James Madison and the Future of Limited Government

John Samples

• Publisher: Cato Institute
• Year: 2002
• Print ISBN: 9781933995793
• eBook ISBN: 9781933995793
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

Americans are once again rediscovering the wisdom of the founders who wrote and ratified the U.S. Constitution, which has stood the test of two centuries. James Madison's efforts in Philadelphia during the summer of 1787 earned him the reputation of being the "father of the Constitution." The time is ripe for Madison to take his place alongside John Adams and Thomas Jefferson as a thinker for the ages. This book looks at the ways in which Madison's ideas might instruct and inform our era. Alex Kozinski, Stephen Engel, and Roger Pilon call for a return to Madison's belief that the powers of the federal government are limited to those granted in the Constitution. The historians Joyce Malcolm and Robert McDonald examine the ways in which Madison was unique and the differences he had with Jefferson. Tom G. Palmer, Jacob Levy, and John Samples reflect on Madison's implications for contemporary multiculturalism and the practice of direct democracy. Walter Berns and Michael Hayes hold up his strict separation of politics and religion for both praise and blame. The book closes with essays by James Dorn and John Tomasi, which suggest that developing nations and the larger world would do well to follow Madison's concern for limited government and human rights.

The contributors to this volume provide an informed, but never pedantic, guide through Madison's thought. They are determined to let Madison speak to our time. Every reader interested in current politics and the future of our Constitution will treasure this book.

1. Madison's Angels

James M. Buchanan

But what is government itself, but the greatest of all reflections on human nature. If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In forming a government which is to be administered by men over men, the great difficulty lies in this: you must first enable government to control the governed; and in the next place oblige it to control itself.

James Madison, The Federalist No. 51

I could scarcely go wrong by starting with this most familiar passage from James Madison's justly acclaimed The Federalist, No. 51. Here Madison succinctly provides a justification for government itself and, at the same time, offers the reason for constitutional constraints on political authority. I shall not challenge Madison's statement here. Indeed, Madison retains an honored place in my personal pantheon.

What I propose to do, instead, is to examine Madison's statement more carefully. But, at the outset, let me say that my initial project was to examine what must have been Madison's counterfactual image of a society without governance, a society of angels. Just what sort of behavior would such angels exhibit, and what would the social interaction among the separate angels look like? I soon found myself in difficulty. As my old professor Frank Knight always said, it remains nearly impossible to describe what heaven would be like. Nonetheless, it does seem to me that Madison must have had some such image in mind when he wrote that statement.

We may begin to unravel some of his thinking.

Consider Madison's use of the word "angels" twice in the passage cited. I suggest that Madison did not intend to refer to the beings called angels in modern dictionaries. There, angels are defined as beings that possess suprahuman attributes or qualities. Such a definition, in Madison's construction, would rob the passage of much of its meaning. By "angel" I think that Madison referred to a being recognizable as human but who does indeed treat others in a fashion that, if generalized to all persons, would eliminate the need for governance. All of us can, I think, imagine such persons to exist, as ideals toward which we might strive but not as divinities of unattainable perfection. The most imaginative element in Christianity is surely the attribution of humanity to Jesus.

This interpretation of Madison allows us to place ethics alongside politics as alternative and complementary means to move beyond the ever-threatening Hobbesian jungle.

We may note, in particular, that Madison remained unclear about the particulars of the behavioral requirement. He did not say that government would be unnecessary if only all persons behaved like angels all of the time. He did not assume that all persons could be identical. But some persons, some of the time, surely behave toward each other in such fashion as to make explicit governance of those persons unnecessary. And, Madison did not imply that no persons were ever angels. Recognizing that individuals are different in relevant behavioral dimensions allows us to construct an ethical spectrum that may be used to describe societies potentially, ranging from one extreme defined by "all persons behave as angels all of the time" to the other extreme defined by "no person behaves as an angel any of the time."

Madison does not directly address the subsidiary question that such a spectrum prompts: Does the need for, and the range and scope of, government vary as societies find themselves differently located along an ethical scalar? Can and does ethics serve as a substitute for politics, and in what degree and in what manner? Can we make government less necessary by making more persons more like angels more of the time?

It seems clear that there are externalities between ethics and politics considered as instruments to keep our behavioral proclivities within acceptable limits. The libertarian ideal of ordered anarchy comes closer to realization if and when more persons more of the time behave like Madison's angels. On the other hand, and conversely, an increase in the politicization of our society almost necessarily reduces the proclivities of persons to behave like angels. In a paper written a quarter century ago entitled "Markets, States, and the Extent of Morals," I suggested that, if we politicize activities that extend beyond our moral capacities, we necessarily generate increased exploitation. To put this argument in Madisonian terms, if we put too much reliance on politics, we may stifle even those behavioral motivations that might qualify as near-angelic. This conclusion becomes especially relevant as and if we allow our political units to become too large, in both membership and territorial extension. A returned James Madison would surely stand aghast at the behemoth that is the United States federal government.

How can we act like angels, even in limited aspects of our behavior, when we are thrown, willy-nilly, into the gladiatorial pit of present-day political reality? Madison was not suggesting that we are necessarily gladiatorial, always out to destroy one another, facing a fate from which only politics can save us. Such interpretation would distort the meaning of the message. Madison would say that now, as in 1788, we need laws to control our behavior. But he would surely also say that now the political realm has gone far beyond his imagined constitutionally ordered limited governance.

We create and maintain institutions of governance to preserve social order in light of the proclivities that we, as members of the community, exhibit in our behavior, one toward another. The attainability as well as the desirability of this order remain critically intertwined with those proclivities, as measured along our imaginary ethical scalar. We must move well beyond Madison and realize that justification of marginal extensions of government must be grounded on something other than the universal human attribute of ethical fallibility. At the margin, the positive benefit-cost ratio from investment in ethics may be much larger than those from investment in politicization, which may indeed be negative. We may be logically libertarian in our opposition to all efforts to enlarge the range and scope of governance while, at the same time, we may be persuasively puritan in our discourse on behavioral attributes.

Finally, we should never forget what was surely James Madison's starting point, namely, his presumption that the ideal society is one in which all persons are indeed angels and in which governance has no place.

2. Recapturing Madison's Constitution:
Federalism without the Blank Check

Alex Kozinski and Steven A. Engel

James Madison spent the last six years of his life troubled by a national debate over federalism. On the one side stood the "nullifiers," who claimed that the Tariff of 1828 was unconstitutional and that the states, as sovereign entities, retained the right to ignore it, or even secede from the Union. On the other side were the nationalists, who argued that sovereignty resided only in the federal government and that the states had no authority to question its dictates. Madison feared the nullifiers much more than the nationalists, but the old man was convinced that both camps misunderstood the government that his generation had established. The nation must not forget, he warned, that the Constitution had set in motion a regime "so unexampled in its origin, and so complex in its structure" that the traditional "political vocabulary" of sovereignty could not apply.¹ The Founders had divided sovereignty between two governments, leaving the federal and state governments each supreme in their respective spheres.

The one thing Madison refused to do during his last days was to release his notes on the Constitutional Convention, which he had tirelessly recorded more than forty years before. The Convention had deliberated in secret; so to many Americans of his time, Madison's notes were a buried treasure of constitutional wisdom. Madison refused requests that he release them during the nullification crisis, fearing that the public might then read them with partisan eyes. Instead, he repeated his desire to postpone their publication until after his death, when no one could malign his motives for publishing them. Madison hoped that the notes would be regarded as a gift to the people of the United States.

Well, not exactly a gift. Madison was also convinced, like some contemporary public figures, that private publishers would pay big money for his memoirs. Madison expected that his wife, Dolly, and his family might live for some time off the proceeds. He instructed Dolly on the fine points of extracting a good deal from the publishers in New York.

It turns out that Madison had mistaken the commercial value of this national treasure. Dolly Madison wrote to Congress that the reputable publishers were not sure the debates would be a best seller, and so they would not publish them unless the widow paid some of the production costs. She might therefore lose money if the notes failed to sell as well as Madison expected. Mrs. Madison asked whether the government might be willing to buy the manuscript. After some haggling, she agreed to accept $30,000 (the equivalent of $467,470 in the year 2000)², so long as she retained the foreign copyright.

But there was a problem. A number of members believed that Congress had no authority to purchase the copyright. John Calhoun, the arch-proponent of state's rights, expressed his admiration for the manuscript, but he asked Madison's supporters what part of the Constitution gave Congress the power to purchase a copyright and publish a book. Madison himself, Calhoun recalled, had argued that Congress's power to raise money for the "general welfare" did not permit spending beyond the constitutionally enumerated powers of the federal government. Fortunately for Madison's family, Madison's vision of a limited spending power did not carry that day.

With the publication of Madison's account of the Constitutional Convention, his position as the "Father of the Constitution" seemed assured. But as the debate over purchasing his manuscript reveals, not all of Madison's constitutional views survived him. In considering Madison's legacy today, we might ask whether this Founding Father would even recognize the federal government we have today.

So why do we honor Madison as our constitutional father? As his description of the debates reveals, the Constitution was the work of many men. Madison was one of the most vocal advocates of the system that emerged from the Convention, but he was hardly the only one. Nor was he the sole architect of the great compromises that made the adoption possible. Madison shared the writing of the Federalist Papers with Alexander Hamilton and John Jay, and by the time Madison appeared at the Virginia Ratifying Convention, six other states had already ratified.³ Although no one did more than Madison to ensure the ratification of the Constitution, he is not the father of the Constitution in the sense that Thomas Jefferson is the father of the Declaration of Independence.

We honor Madison as the Father of the Constitution because of his contribution on the plane of ideas. Madison was the political philosopher of the Constitution, the one who articulated the grand theory on which the text was based.⁴ As the national government descended into crisis in the 1780s, Madison researched in painstaking-detail the fate of confederacies and republics in the past. He concluded that republics that grew too large inevitably collapsed into tyranny. On the other hand, confederacies inevitably were undone by rivalries among their constituent republics. As Madison pored through the books that his friend Thomas Jefferson sent him from France, he sketched out a new political system, which he believed might rescue the Union from its weakened state and from the mistakes of the past.⁵

The name of this political theory was federalism. Its secret was a form of dual sovereignty that had never been tried before. Madison posited that state and federal governments might coexist as sovereigns over the same space, representing and acting on behalf of the people of the. United States, the ultimate source of authority. The national government would enjoy a limited set of powers, which Madison described as "few and defined," enabling it to deal with those matters that concerned the states collectively, such as national defense and interstate commerce. At the same time, the states would retain everything else—powers that were "numerous and indefinite, extend[ing] to all objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."⁶

The states would retain all the attributes of sovereign nations, "form[ing] distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them within its own sphere."⁷ But the Constitution would limit the states in 'two ways. They could neither regulate in ways that frustrated national policies on matters of national concern nor violate any of the explicit limitations in the Constitution, which in Madison's day were few in number but have grown considerably since the adoption of the Fourteenth Amendment.

Madison understood that this federal system had the potential to be superior to any historical alternative. By creating a system of dual sovereignty, the Constitution established a central government with the authority to secure national goals while, at the same time, maintaining the local autonomy necessary for good republican government. The smaller republics would provide their citizens with a greater chance to participate in the democratic process and their representatives would more closely reflect their interests. Rather than imposing a uniform solution to local problems, the state governments would enact laws suited to the character and interests of their citizens.

While a consolidated government might obtain some of those benefits by delegating power to local governments, divided sovereignty fundamentally changed the business of government by introducing competition into that oldest of monopolies. Federalism aimed at producing many of the benefits one would expect from open competition. The most important benefit, Madison recognized, was that each government would stand watch over the other, to prevent its rival from abusing the liberty of the citizens and to provide instruments of judicial redress.⁸

The multiplication of governments would also improve the quality of institutions. As each state government chooses its own way, there will be a greater diversity of choices. Some may be bad choices, but others will not. The good ones may be followed, replicated, and improved upon. Competition among governments also gives the states an incentive to innovate as they compete for taxpayers and encourages them to improve their infrastructure and laws in order to attract a mobile citizenry. Many bad ideas are also avoided, because states know that businesses and citizens may vote with their feet.

Madison well understood the virtues of this "compound republic." But while we may praise this system on a theoretical level, we should consider whether it really reflects our present system of government. Madison described a limited federal government, whose powers were few and defined, limited to regulating only national objects. Contrast that vision to the federal government of today. By the mid-1980s, the federal government had effectively set a national speed limit, minimum wage, and drinking age. It is a federal crime to grow marijuana on your land or to shoot a wolf menacing your cattle. Many Americans turn to the federal government to provide them with health care, disability and unemployment insurance, and a social security pension. And in return, Americans give more than a third of their income to the federal government. We may talk about a federal government of limited powers, but for much of the past century it would be difficult to discern any limits on that power.

At some point in the recent past, the Supreme Court began to remember that the Constitution contemplated a federal government of limited authority. In several decisions, the Court took small steps to recapture the Madisonian Constitution, often citing Madison himself. The Court barred Congress from requiring state officers and state legislatures to carry out federal policies;⁹ it imposed upon Congress clear statement rules to ensure that decisions altering the federal balance are not made lightly;¹⁰ and it revived the Eleventh Amendment as a protection of the states' sovereignty.¹¹

These decisions reflect a desire to recapture the system of dual sovereignty that Madison envisioned. When the federal government regulates every aspect of our society, we lose the benefits of energetic state governments. State politicians have proven unwilling to resist, because it always seems better to have someone else pay the bills, and many state politicians run for election with the ambition of someday ascending to federal office. Thus, if the Supreme Court neglected to enforce the constitutional limitations on federal power, few state or local politicians would mourn the demise of federalism.

Through recent decisions, the Court has attempted principally to protect state sovereignty by constraining the means through which the federal government might regulate state actions. But protecting federalism by limiting the choice of means at the national government's disposal is an incomplete solution. Congress must have broad discretion in choosing how to exercise its powers, and in any event, if Congress is determined to regulate an area, it may always choose alternative means to achieve the same goal. So long as the end result is constitutional, the legislature will find a way to reach it.

In two recent instances, though, the Court has taken the more significant step of striking down laws it regarded as beyond the ends permitted by the Constitution. Although there was nothing particularly objectionable about the means used in either case, the Court concluded that the object of the legislation was a matter of local, not federal, concern. In the first of those decisions, United States v. Lopez, the Court held that Congress could not make a federal crime out of possessing a gun near a high school.¹² The Court began by quoting what it called "first principles," which, not surprisingly, turned out to be James Madison's words: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."¹³

The Court reached the unremarkable conclusion that prohibiting gun possession in schools, though no doubt a good idea, fell outside Congress's power to regulate interstate commerce. When Alfonso Lopez, a Texas high school senior, packed his .33-caliber handgun and went to school, few ordinary people would assume he was engaging in commercial activity, much less commercial activity with implications in Oklahoma, Arkansas, or Louisiana. But, in deference to Congress, the Court had concluded 5...

Table of contents

• Introduction
• 1. Madison's Angels
• 2. Recapturing Madison's Constitution: Federalism without the Blank Check
• 3. Madison's Constitutional Vision: The Legacy of Enumerated Powers
• 4. The Novelty of James Madison's Constitutionalism
• 5. The Madisonian Legacy: A Jeffersonian Perspective
• 6. Madison and Multiculturalism: Group Representation, Group Rights, and Constitutionalism
• 7. Indians in Madison's Constitutional Order
• 8. James Madison on Religion and Politics
• 9. James Madison on Religion and Politics: Conservative, Anti-Rationalist, Libertarian
• 10. Madison and the Revival of Pure Democracy
• 11. The Rule of Law and Freedom in Emerging Democracies: A Madisonian Perspective
• 12. Governance beyond the Nation State: James Madison on Foreign Policy and "Universal Peace"
• Contributors