President Barack Obama has continued the historic trend of expanding executive authority. (Photo: Pete Souza)
Our latest Freakonomics Radio episode is called “Has the U.S. Presidency Become a Dictatorship?” (You can subscribe to the podcast at iTunes or elsewhere, get the RSS feed, or listen via the media player above.)
Sure, we all pay lip service to the Madisonian system of checks and balances. But as one legal scholar argues, presidents have been running roughshod over the system for decades. The result? An accumulation of power that’s turned the presidency into a position the Founders wouldn’t have recognized.
Below is a transcript of the episode, modified for your reading pleasure. For more information on the people and ideas in the episode, see the links at the bottom of this post. And you’ll find credits for the music in the episode noted within the transcript.
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[MUSIC: Paul Freitas, “A Little Crazy”]
STEPHEN J. DUBNER: So basically, all my ranting on this topic in the past — arguing that the President matters much less than people think — you’re saying that I’m pretty much entirely wrong?
ERIC POSNER: No, partly wrong. Not entirely wrong. It depends what you mean. I think, if what you’re saying is, “Oh, don’t worry. It’s Congress and the courts that decide things, and the president doesn’t really decide that much,” then I would say you were wrong. But if what you’re saying is, “Donald Trump will not be able to refuse to enforce the corporate tax,” I think you’re right.
You may have heard that there’s a Presidential election going on. In the past, we have argued on this program that the President of the United States is much less powerful than people generally think. Today, the legal scholar Eric Posner tells us why we’re wrong. But when it comes to Presidential power, we’re not the only ones who are wrong:
POSNER: Yes. Well, the Democrats are wrong.
So how’d this happen? How did Presidents keep grabbing more and more power?
POSNER: Well, with the benefit of hindsight, the whole constitutional system seems pretty nutty.
But c’mon, is it really such a huge deal?
POSNER: Yeah, it’s a huge deal, and interestingly, it’s one that people don’t often really understand.
Today on Freakonomics Radio: help us understand, Professor Posner.
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What were the founding fathers really aiming for when they sat down in 1787 to write the American Constitution?
[MUSIC: Matthew Giraudeau, “Mountain Theme”]
POSNER: It boiled down to one thing, which is: we want a powerful government that will protect us and allow commerce to flourish. But we don’t want a government that becomes so powerful that it would abuse its power and interfere with our liberties.
Eric Posner is a professor at the University of Chicago Law School.
DUBNER: Do you care much about politics on a personal level?
POSNER: I don’t really care that much. I mean, like everybody, I have instinctive political reactions, but I try to maintain a distance and try to be objective about things. And often when I think about politics today, I try to think about how someone 100 years from now might think about politics, how a historian looking back — and when we look back, 100 years or 200 years, we often find it very difficult to understand why people seem to get upset about little things that in the end didn’t matter much. And I think it’s important to take that view when thinking about politics today.
DUBNER: Right. Do you vote, for instance, I’m curious?
POSNER: I vote.
DUBNER: OK, settled that.
One of Posner’s books, co-authored with Adrian Vermeule, is called The Executive Unbound: After the Madisonian Republic. James Madison, the fourth president and so-called father of the Constitution, was passionate about the division of the federal government into three branches: the legislative, the judicial, and the president’s branch, the executive.
POSNER: The Madisonian checks-and-balances view is that we don’t want a single person or a small group of people to have all the power.
DUBNER: How would you say that the role of the president and the power of the presidency of the United States has turned out compared to how the founders intended the role?
POSNER: The founders could not possibly have imagined that the president would become as powerful as he has. I mean, our presidency has completely transformed.
DUBNER: So I wanted to speak with you today about a new essay that you’ve written that was published in the American Academy of Arts and Sciences Journal Daedalus. Your essay was called “Presidential leadership and the separation of powers.” You argue that the presidents that generally judged as great — Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt, and Ronald Reagan, you name — are generally the “presidents who most frequently tread on constitutional norms.” And you ask, “How can our top presidential leaders also be major lawbreakers?” OK, so how can they?
POSNER: The law actually prevents presidents from doing great things. That, in a nutshell, is the problem. The law, constitutional law in particular, but also laws passed by Congress, set down a long time ago, and people are imagining that the President should do one thing but not necessarily other things. And then there’s a huge convulsion. Times change. There’s a war. There’s a depression. These old laws are in place, and a very sort of modest president might obey them and not solve the problems, but the great presidents are the ones who basically push it aside so that they can do something great.
Something great in their eyes, at least. But also: something unilateral. Indeed, if you didn’t know any better, you’d think that most presidents – and especially the two main candidates running for the position this year – can make just about anything happen, just by willing it so.
[MUSIC: Sarah Schachner, “Bibliotaph” (from Bibliotaph)]
Eric Posner is not an alarmist. But he definitely thinks the U.S. government has strayed very far from the founders’ intentions.
POSNER: The founders knew a great deal about classical history, much more than any politician today does. And the great lesson of Roman history was that for quite a long time, the Roman Republic had a limited government; it was not run by kings or emperors. And it was also highly successful. I mean, by the standards of the time, it was wealthy, they conquered lots of places. It was a fantastic kind of role model for the founders who were very ambitious for the United States but didn’t want a king. But then the Roman Republic collapsed and was replaced by an emperor. So the founders, looking back at Roman history, said, you know, “We’d like to be powerful like the Roman Republic and, we’d like to imitate the constitutional structure of the Roman Republic to the extent that it was able to maintain both liberty while creating this powerful country. But we want to avoid the errors that they made, which paved the way for an emperor.”
DUBNER: You write that this system was supposed to “allow decisive action by the executive while blocking it or any other part of government from acquiring excessive power, but it has never been clear how this system could work.” You further write that checks and balances “simply make it difficult for the national government to act, whether for good or bad.” So if I understand you correctly, the Constitution, which we love, I guess, and talk about an awful lot, and is held up as a model around the world, gives a very kind of loose and murky blueprint for the role of the president; and then again, if I understand you correctly, presidents went on to define the role in their image much more concretely than the Constitution did. So, tell me if I’m reading you right, first of all. And second of all, talk about the ways in which presidents over time did shape the Madisonian system to suit their needs.
POSNER: Right. Well, with the benefit of hindsight, the whole constitutional system seems pretty nutty, and we actually know this because some other countries imitated it, which was a big mistake. So especially in Latin America, a bunch of countries imitated our system and what happened was the three branches of government in those countries just became gridlocked, nothing could be accomplished, and eventually the president would just effectively declare himself the only ruler. And he would rule by diktat. And these countries were very unstable. Now, it’s not really clear whether we should blame separations of powers, or these countries had other problems. But most political scientists, I believe, think that parliamentary systems are a lot more sensible. It’s a system that gives the government a great deal of power, but maybe not too much.
[MUSIC: Fine Prince, “Venice Beach” (from Lookout)]
OK, so the U.S. wasn’t set up as a parliamentary system. But it was set up to prevent the president from accruing too much power. So what happened?
POSNER: In our country, something special happened, which was that for a long time, Congress was basically the leading government authority. The courts were pretty passive. The president, with some important exceptions, basically did what Congress wanted it to do. And this was able to work maybe up until the Civil War or so, because basically the country was vast, people were anxious to make money and move westward and so forth. But in the 20th century, things got way too complicated. And I think what was very fortunate was that Congress and the courts eventually realized that the only way to get this system to work was to allow the president to have a kind of primary role, to be the first among equals, which they did by creating what we call an administrative state, which basically means a very big bureaucracy headed by the president, which makes most of the important rules.
DUBNER: So, in your view, a lot of presidents “ran roughshod” — are your words — “over the Madisonian system in countless ways.” So let’s have some quick examples, please. Let’s start briefly in the beginning with Washington.
POSNER: Washington’s a little hard to say because people sort of expected that he would set some precedents. The Constitution says very little about the role of president. It says that the executive power is vested in the president, but it doesn’t explain what executive power means. And then it has a few sort of trivial things like he has the power to receive ambassadors, and a few more significant things like he’s the commander-in-chief of the Army. So it’s possible that the founders or some of the founders thought of the president as basically kind of a limited office who just does whatever Congress tells him to do. It’s also possible that many of them thought of the president as something like a king, except a king who had to survive elections. And we really don’t know. My guess is there was a lot of disagreement and people didn’t really know what the presidency was going to look like. They did expect George Washington to be the first president, and they trusted him, and I think partly because of that they were able to agree to a Constitution that was not very specific about what the president’s powers would be.
DUBNER: OK, how about Thomas Jefferson?
POSNER: The Louisiana Purchase by Jefferson was widely regarded as unconstitutional, even by Jefferson himself. But it was just too irresistible. It just seemed like such a great deal that he went ahead and did it anyway and then hoped Congress would later ratify it.
DUBNER: Abraham Lincoln.
POSNER: Well, he suspended habeas corpus even though the Constitution pretty clearly says only Congress can suspend habeas corpus. So the practical effect of that was that the president could arrest people or have the military arrest people, and they would not be able to go to court. So that was pretty dramatic. But he did other things as well. He impounded funds. In other words, he used money that Congress had appropriated in ways that he wasn’t supposed to. A lot of the country was just ruled by martial law, meaning that the military made the rules; Congress did not make the rules. But what you can say about Lincoln is that a Civil War was going on, so he could make a reasonable argument, I think, that in the middle of a Civil War, a lot of these constitutional rules can be suspended or weakened. And what is true is that after the Civil War, in the following decades, nobody tried to act like Lincoln.
DUBNER: Skipping ahead quite a bit, Theodore Roosevelt.
POSNER: So before him it was generally understood that Congress would make policy — debate policy, pass the laws, and so forth. Roosevelt took the view that the president should lead using the bully pulpit, as he called, to appeal to the public, which, of course, we’re used to that now, but that was new when he did it. And so the president began to be the primary figure for determining domestic policy, as well. It wasn’t that he would pass laws by himself, but he would set the agenda, and he became a much more important figure than he had been in the past.
DUBNER: Talk for a moment about Woodrow Wilson.
POSNER: Woodrow Wilson was a professor, and he had these professorial ideas, one of which is that parliamentary systems are better than presidential systems. And he sort of thought of himself in that way. And what that meant was that he, as the president, would be the primary person for determining domestic, as well as foreign, policy. So he was building on Roosevelt. And he also helped initiate the modern administrative state. He was one of the first presidents who really put a lot of force behind the idea that a lot of the rules should be made and enforced by bureaucracies in Washington, which would be headed by the president.
DUBNER: OK. And take a deep breath for the next one. Franklin Roosevelt.
POSNER: Well, yeah, we could be here all day. He did so much. One thing he did, of course, was stay in office for more than two terms. That was not unconstitutional, but it violated a long-standing precedent which had been set by Washington of all people. And a lot of people did accuse him of being dictator, not just for that, but because, of course, in the New Deal, he vastly expanded the power of the federal bureaucracy. And he got Congress to pass laws which were what lawyers call “delegations of power.” Basically, rather than passing a law that says you have to do this or that to ordinary people, the laws say to the President, “you figure out what people should do.” So, to use an anachronistic example, but an easy one to understand: when environmental law was eventually enacted in the 1970s, Congress didn’t really say, you know, “Here are all the pollutants and this is what you should do about them.” Congress said to the executive branch, “Do something about air pollution. And do something about water pollution.” And the Supreme Court initially struck down these laws, but eventually acquiesced to them. And then it was up to the bureaucracy and the executive branch, ultimately the EPA, to figure out what the rules were. And then, the final thing of course, is World War II, and of course, you know, for all intents and purposes, during the war, Roosevelt was a dictator who basically decided how things would go, both in terms of how the war was prosecuted and in terms of domestic policy.
DUBNER: But again, in extreme times, we give more leeway, yes?
POSNER: We do, but what’s striking here that in both settings, things were permanently changed. So once the administrative state was put in place and strengthened under Roosevelt, it just remained there, and ever since it’s become more and more powerful. There was a very brief and weak effort to roll it back in the mid-to-late 40s. And then from time to time, people like Ronald Reagan say, “We should deregulate.” But basically this system of administrative governance is fully entrenched. And then on the foreign-policy side, the president basically as the commander-in-chief and as leader of foreign policy, his decisions just had much more importance than they had before WWII, and that would never change. That would become permanent.
[MUSIC: Billy Brush, “Tending Bar” (from Tending Bar]
So the accumulation of power by U.S. presidents has been not only substantial but cumulative.
[MUSIC: Jelly of the Month Club, “Welcome to the Carnival”]
POSNER: The executive branch went from basically a post office at the founding to, it now has I think three million people or so. I mean it’s just extraordinarily huge.
Our Constitution says that Congress should be center of law-making. But Congress has ceded, or perhaps delegated, much of that authority to the President and the many agencies under his – or, potentially, her — control.
POSNER: Congress is a small body with relatively small staff, and it’s a multiheaded body, consisting of people who disagree with each other about all kinds of things. It simply cannot exert consistent, powerful influence over the agencies in the executive branch. It just can’t.
And then there’s the expansion of power in the foreign and military arenas. During the Cold War, presidents were given broad powers that included unilateral authority over the CIA, which was behind coups in countries like Iran, Guatemala, the Congo, Dominican Republic, South Vietnam, and Chile. Presidents have also led the U.S. into many wars – every one since World War II, in fact – without having an official declaration of war from Congress, although Congress did formally authorize some of them.
POSNER: The president has always had quite extensive war powers. Even before World War II, presidents would send troops off to do things without congressional authority, although they were usually relatively minor sorts of things. But after World War II, this power expanded. There was something of a backlash in the 1970s, but I think the backlash was to a large extent a backlash against Nixon. And to some extent a backlash against the Vietnam War.
In 1973, Congress passed the War Powers Act over President Nixon’s veto, we should say. It stipulates, among other things, that the President should consult with Congress over matters of war and peace, and it requires congressional authorization for conflicts that last more than 60 days.
POSNER: And I don’t think the War Powers Act really had much of an effect. The presidency in the 70s was weak because of the backlash against Nixon. But by the time we have Reagan — you know, Reagan sent troops abroad, Grenada, in Lebanon, without congressional authorization. George H.W. Bush would do it in Panama and Somalia. Clinton would do it in Serbia and Somalia and Afghanistan. I mean, there are all these examples of presidents using military force without congressional authorization, and then most recently Obama in Libya.
Every president since the War Powers Act has said that it is an unconstitutional abridgment of their prerogatives as commander-in-chief. For now, it’s an unsettled constitutional question. But functionally, Posner says, when it comes to war-making, Congress generally bows to the might of the President.
POSNER: And we’re basically back to where we were before the War Powers Act was passed.
[MUSIC: Friendlierbear, “The Ascent” (from Friendlierbear)]
So it’s clear that on many dimensions, the president isn’t nearly as constrained as the founders planned. Does that mean, however, that the president is all-powerful?
DUBNER: So I’ve been arguing for a few years, to little or no effect I should say, that the president of the United States essentially matters much less than is commonly thought. That he or she is greatly constrained by Congress, by the Constitution, etc. And yet, many Americans think that the president has vast powers over everything from the economy to geopolitics of countries halfway around the world. So, tell me in a nutshell, how do you characterize the breadth and depth of presidential power?
POSNER: I think the president is enormously powerful and certainly the most powerful person in the United States and really in the world by a large amount. But I also don’t disagree with you. What people usually say about the president is that his power is constrained by the Constitution, and in particular this idea about separation of powers, where the government is divided into the executive branch, led by the president, Congress, and the courts. And the old idea, which I think we all learned in junior high school is that this separation of powers is what constrains the president. But I think most people — political scientists, historians, and me, as well — think that that system doesn’t really operate the way people imagine it does. And in fact, these constraints are much more limited.
So what does constrain the president?
POSNER: What really constrains him is the difficulty of leading, and in particular, this institutional environment that is evolved which has made him leader of three different groups. And so he’s understood to be the leader of the country. He’s also the leader of the party. And he’s the leader of the executive branch. And trying to be leader of these different groups with different interests and values turns out to be an extremely difficult task.
DUBNER: An extremely difficult task, and you would argue, a more significant constraining factor on the power of the president than the Constitution itself, yes?
POSNER: Yes. The major constraints on the president in the Constitution are the Congress and the courts. And Congress has to a large extent has acquiesced to presidential power, has given the president more and more power. And the courts also tend to be highly deferential, at least for important issues. But if the president wants to accomplish something, he does need his subordinates in the executive branch to carry out his orders; and he does need popular support within the country as a whole; and he also needs cooperation from his party, because, you know the party is a very important institution through which the president also maintains his support and accomplishes the things that he wants to get done.
DUBNER: Give me an example of an issue that a president might care about a lot, and as leader of the country, he or she, has let’s say a clear path, but as leader of the party, his or her political party, there’s obstruction .
POSNER: I think Guantanamo Bay is a pretty good example, actually in multiple ways. So George Bush, at some point, decided he wanted to basically shut down Guantanamo Bay, and his party was definitely opposed to that. And then — but you know, I don’t think Bush cared that much, but Obama cares a great deal, and I think both the Democratic Party and the Republican Party have gotten in his way. I’m not exactly sure what the country as a whole thinks about Guantanamo. I think people have pretty mixed feelings about that. But that’s an example of conflict.
[MUSIC: Christine Sako, “Five Foot Four” (from The Math Project)]
Since the midterm elections of 2010, President Obama has faced a Republican-controlled Congress that has countered many of his policy goals. This led Obama to repeatedly employ executive orders to get what he’s after, sidestepping the pesky process of getting Congress to pass laws. Saturday Night Live took note of his constant maneuvering, in a parody of the old Schoolhouse Rock bit about how a bill becomes a law.
To be fair, Obama is not remotely anomalous in his use of executive orders. George W. Bush, for example, issued 291 executive orders. Bill Clinton? Three hundred and sixty-four. President Obama, with a few months to go, has signed 249. So by sheer number, that isn’t remarkable. But, Eric Posner argues, Obama has used his power differently.
POSNER: Well, the most distinctive and interesting innovation by President Obama has been to use a power that people don’t talk about much, sometimes called prosecutorial discretion, sometimes called enforcement power. So the idea, in the original Constitution, was that Congress passes the law and the president enforces them. But it turns out — and people understood it at the time — but it turns out that the president— what does it mean for the president to enforce the laws? Maybe he doesn’t, then what happens? And there’s a clause in the Constitution called the Take Care Clause, which says well you’ve got to enforce the laws. But there’s also the Executive Power Clause, which seems to say, well you have discretion. And this whole idea of the executive as being an independent branch suggests that the president has discretion.
The discretion, for instance, to provide legal status to nearly five million immigrants who’d illegally entered the U.S. That’s what Obama tried to do in 2014.
POSNER: And so our immigration law says that if you come into our country without papers, you’re here illegally, and you’re going to get kicked out. And President Obama has made it clear, in a way that these earlier presidents haven’t, that as a matter of policy, he doesn’t think he should kick out certain classes of people: children who came here when they were very young and a few other classes of people. And what he’s doing, in some ways, is continuous with our understanding of presidential power. He’s using discretion to enforce the law. And presidents are allowed to do that. But I think it also troubles a lot of people because he’s doing it on such a huge scale and in an area where we would normally expect Congress to act by issuing an amnesty or providing a path to citizenship. And so I do think this is a major advance in presidential power.
[MUSIC: Leo Islo, “Body Speak” (from Modern Fiction)]
Obama’s immigration move was blocked by a Texas court; the decision was later upheld by the U.S. Supreme Court. On the day of the Supreme Court’s ruling, the Texas attorney general issued a statement that said, “Today’s decision keeps in place what we have maintained from the very start: One person, even a president, cannot unilaterally change the law … This is a major setback to President Obama’s attempts to expand executive power, and a victory for those who believe in the separation of powers and the rule of law.” That said, Obama hasn’t been shy about using executive orders when he couldn’t accomplish his goals through the legislative branch.
DUBNER: So President Obama came to office making a number of promises of reform in a number of different areas. I’d like to go through them with you, one by one. I’d like you to tell me how far he got, if at all, and whether that happened according to what we think of normal constitutional channels or other channels. So, number one, let’s call it — we’ll combine these: economic stimulus and financial regulation. Talk about his promise, and the outcome, and the methodology.
POSNER: He obtained laws from Congress, both for stimulus and for financial regulation, so in that sense, he used normal, congressional procedures. On the other hand, the response to the financial crisis, which of course, started with Bush but continued while Obama was in office, involved tremendous use of administrative powers, many of which were of questionable legality. And so, at least with respect to the response to the financial crisis, I think some of it was outside of the traditional constitutional sense.
DUBNER: OK. Talk about President Obama’s policy initiative on universal health care.
POSNER: So here, in one sense, he followed constitutional norms. He obtained a statute that we call Obamacare, the Affordable Care Act. But once the statute was in place, and Congress turned hostile, he had to aggressively use administrative powers to implement it. And so famously, he has, in several instances, delayed the administrative rollout of the statute for both practical and political reasons in ways that many people think are constitutionally questionable. Although, you know, people argue back and forth about that.
DUBNER: Carbon-emission regulation.
POSNER: President Obama tried to obtain a statute and failed. And so then he used his administrative powers under existing statutes, like the Clean Air Act, to issue regulations. So this is a good illustration of how our system works. He wanted Congress to pass the statute. Having failed to do so, he was still able to accomplish much of what he wanted to do through regulation.
DUBNER: His preferred reforms to counter terrorism.
POSNER: Interestingly, George Bush was much more successful than Obama here. George Bush wanted to do some aggressive things and basically persuaded Congress — of course, a mostly Republican Congress — to pass statutes like the Patriot Act, that allowed him to do that. Of course, he broke some rules, as well. Obama hasn’t been as successful in obtaining the statutes that he’s wanted. But, on the other hand, he’s been able to use the powers that Congress gave to Bush. And he’s also pushed on the envelope a little bit — using drone strikes to kill people, including American citizens, is, you might argue, constitutionally questionable.
[MUSIC: Boat, “Prince of Tacoma” (from Setting the Paces)]
DUBNER: You write that when it comes to the Affordable Care Act and Dodd-Frank, that “not only did Congress acquiesce in the President’s legislative agenda, but vastly expanded his authority, and the authority of his successors, to regulate — that is, to make policy decisions in the financial and health sectors of the economy.” So considering, Professor Posner, the health and financial sectors of our economy are gigantic, that sounds like a huge deal that President Obama expanded his authority and that of his successors to make policy decisions there. What do you make of that, and what would James Madison make of that?
POSNER: Yeah, it’s a huge deal, and interestingly it’s one that people don’t often really understand. The President didn’t break any laws. He wasn’t like Nixon. He went to Congress, and he got a statute, which is what the president is supposed to do under Madison’s vision. But what these statutes do is they give the president enormous discretionary authority. So that means that going into the future, when we’re trying to figure out what’s good financial policy and what’s good health policy, what we should do is talk to the president and persuade him to pass the regulations that we think are important, rather than going to Congress. Now, Madison wouldn’t have recognized this. He just didn’t think, he just didn’t imagine that this is what would happen. And partly, in those days, these sorts of things would’ve been dealt with by state governments, not the national government. But basically, the founders were not creating a system of administrative government. They knew about administrative government. A lot of countries had big bureaucracies with the king at the top, places like France. These sort of systems did not appeal to them, and they tried to create a different type of system, but that system is gone, and we have an administrative state today.
DUBNER: So I’m trying to square two conflicting narratives here. One is the Obama and Democratic narrative that a Republican-dominated Congress stymied everything that President Obama and the Democrats wanted to do, with your narrative that President Obama got almost everything he wanted by expanding or kind of maximizing presidential power. So can you put those two narratives together for me?
POSNER: Yes. Well, the Democrats are wrong. Obama has accomplished a huge amount, both by obtaining statutes and through his administrative powers. What is true is he hasn’t accomplished as much as he’d have liked to accomplish, and as much as many Democrats would’ve liked him to have accomplished. There could’ve been a health law that was much more ambitious with a public option. Dodd-Frank could’ve been stronger. The president has been disappointed that he hasn’t been able to close Guantanamo Bay, and there he certainly was stymied by Congress. But you’ve got to be realistic about what can be accomplished. And if the public doesn’t want something, and a president wants to remain influential and popular, he just can’t do as much as his party might want him to do.
DUBNER: Now, you sound a little bit like a Democrat when you describe how much he accomplished. I don’t know if you are or aren’t or if you care to say whether you are or aren’t.
POSNER: I vote both ways.
DUBNER: Are you or were you friends and/or colleagues with President Obama when he was at the University of Chicago Law School?
POSNER: Yeah. I knew him. I actually knew him in law school, when we were in law school. I knew him a bit. He lived in Hyde Park, as I do. And I occasionally saw him around the law school. I wouldn’t call him a friend though. I mean, I probably should, but he’s not really a friend. I didn’t know him that well.
DUBNER: But in terms of the big policies that we’ve been talking about, do you generally find yourself on the side of President Obama in seeking out the kind of, let’s say, financial reforms and health-care reform?
POSNER: Yeah, well, I think Dodd-Frank was a good idea, although a lot of the details one could quarrel with. I think he basically was right that we needed health-care reform. I don’t whether the Affordable Care Act was a good statute or not. But mainly because this is an area of policy about which I know very little. So I don’t have strong views about this. I think historians in the future will look back at Obama and say, “Yeah, he did a pretty good job.” He accomplished many of the things he wanted to accomplish in difficult circumstances. I don’t think he’ll be regarded as a fantastic president like Lincoln or Jefferson or any of those people. And I guess, from my part, I’m kind of ambivalent. I don’t know. I think it’s very hard to evaluate presidents until long after they’ve left office, and the archives have opened up, and you can really see what sorts of choices they’ve faced.
DUBNER: But considering your argument that all the Presidents who were categorized as “great” by political scientists and historians make a lot of end-runs around the Constitution, then, by that logic, President Obama will be close to great, no?
POSNER: Well that’s a necessary but not sufficient condition I think, right? So, a President could be a dictator who destroys the country. I think if you compare someone like Obama to Carter, Carter’s never going to be considered a great president maybe because he was too scrupulous about the law and about the Constitution. I think in the case of Obama, it’s possible he’ll be considered a great president and partly because he was very aggressive . And law professors have already written thousands of articles talking about how many laws he’s broken, and they will continue to do so, but in the end, I don’t think that’s how people are going to evaluate him as a President.
[MUSIC: Brother Wild, “Home” (from White Flag)]
DUBNER: At least according to his public statements, which I find no reason to think are not how he really feels, President Obama is not enthusiastic about a Donald Trump presidency, at all. How would you characterize the calculus of a president in office, creating new leverage for the presidency so that he or she can take advantage of that leverage, while potentially handing off said leverage to a successor with very different views?
POSNER: I think this is a real problem that Obama has thought about. He has said — and if you read the various memoirs and so forth — he has said to his subordinates and his lawyers, that he doesn’t want to expand presidential power, because he’s worried about future presidents relying on these precedents to do bad things. But he’s done it anyway, you know? And he’s done it because he felt that the immediate objectives were sufficiently important. The nature of how precedents influence future behavior is very complicated. People have made the same argument that because he refused to enforce the immigration law, if Trump becomes president, Trump could refuse to enforce corporate taxes, for example. But I just don’t believe that. I think if Trump refused to enforce corporate taxes, there’d be an enormous political backlash. I just think they’re different settings. But it is a risk that Obama has taken.
DUBNER: Given what Donald Trump has said about his plans overall for the presidency including immigration, a ban on Muslims, etc., etc., etc., how would you see a President Trump being able to carry out his various plans if he were elected, and even if the Democrats were to control Congress?
POSNER: He can probably ban Muslims from coming into this country, at least in the short term. The immigration statute already gives the President enormous power to block anyone from entering the country if the President thinks it’s in the national interest. So he can say, “Well I think it’s in the national interest not to allow Muslims into the country,” and he’s acting consistently with the statue. It’s possible that a court could block this type of order on constitutional grounds. It’s hard to know whether that would happen, because there’s really no direct precedent for that. In terms of trade, the President can tear up trade treaties; he can tear up NATO. And because he controls American forces abroad, he could just not use them. Like if if Russia invades Germany, there’s no way to force the President to use troops to defend Germany. So he has a lot of power over these alliances and treaties as well.
DUBNER: And let’s say Donald Trump, a President Trump, were to decide that a new alliance was in the benefit of America. He does seem to profess quite a fondness for Vladimir Putin as a leader. Let’s say that Trump decides rather than being this kind of, neo-Cold War antagonists, why don’t we, why don’t we join forces? And, that we should essentially form an alliance, maybe even a merger. How far could Donald Trump go in not only tearing up existing alliances, but maybe creating new ones along the lines of that?
POSNER: He can do what he wants. He and Putin could agree that henceforth, the United States and Russia are military allies. And let’s suppose they entered into an agreement that if one country were invaded, then the other country will come to its aid. And then subsequently Russia’s invaded, I don’t know, by China. He would have the power to bring the military to Russia’s aid. He can do those sorts of things. There are possible ways to constrain him. But just looking at the tradition of presidential power, presidents make agreements all the time. Obama himself made the Iran agreement and the Paris agreement on climate change without the involvement of the Senate, even though the Constitution says the Senate’s supposed to be involved in treaties. But, in many ways, his power’s limited because he can’t use a treaty to affect the rights and obligations of Americans on American soil. So he couldn’t, for example, order every American to send a check of $100 to the Russian Treasury. That wouldn’t work. Even if he promised Putin that he would do that. So it’s kind of a complicated thing, but if he wants to destroy the world, he can do it. That’s our system. If he wants to enter into crazy alliances or tear up good alliances, he can do that up until he’s impeached, or until he leaves office and is replaced by another president who puts everything back in order. But that’s what Presidents have been doing for quite a long time.
DUBNER: Hearing you talk, I have to think that if someone is even a little bit of a constitutionalist, then they have to be worried that the presidency is turning, or seems to be turning into a form of dictatorship. Is that happening?
POSNER: Yes. I think that is happening. Although dictatorship is such a freighted term.
DUBNER: What’s a better word?
POSNER: I like the term “presidential primacy.” But that’s a kind of vague, weasley way of putting it, isn’t it?
DUBNER: Well, you are a legal scholar. We expect vague and weasley from you people.
POSNER: Yes. That’s true. I mean the Romans, for example, they had an office called the Dictator, who was a temporary office, sort of like the Commander in Chief, who would lead the forces for six months or a year, but would also have dictatorial power. You know, people thought this was unfortunate, but necessary in certain emergency situations. But nowadays, when we think of dictator, we think of Hitler and people like that. And I don’t think the presidency is headed in that direction. I think what we’re getting is an administrative state, headed by the president. But the reason why the president isn’t going to be Hitler or anybody like him in the foreseeable future, is that he continues to need political support and the support of his subordinates in the executive branch, who he needs to carry out his orders; and the support of the press, and the country is just very complicated. I don’t, although there’s a sense, a kind of technical sense in which the president has more dictatorial power than the founders imagined he would, I think the practical implications aren’t nearly as terrifying as that word suggests, because there continues to be all these constraints, political and others, that prevent him from acting in arbitrary fashion.
[MUSIC: John Toronto, “Semantics” (from To the Moon and Back)]
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Freakonomics Radio is produced by WNYC Studios and Dubner Productions. Today’s episode was produced by Greg Rosalsky. The rest of our staff includes Arwa Gunja, Jay Cowit, Merritt Jacob, Christopher Werth, Caitlin Pierce, Alison Hockenberry, Emma Morgenstern and Harry Huggins. If you want more, Freakonomics Radio, you can also find us on Twitter and Facebook and don’t forget to subscribe to this podcast on iTunes or wherever else you get your free, weekly podcasts.
Here’s where you can learn more about the people and ideas in this episode:
- Eric Posner, Kirkland and Ellis Distinguished Service Professor at the University of Chicago Law School
- The Federalist Papers, James Madison, Alexander Hamilton, and John Jay, 1788
- “Once Skeptical of Executive Power, Obama Has Come to Embrace It,” The New York Times, 8/13/16
- “Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications,” Congressional Research Service, 4/18/2014
- Listen to an episode from our archives called “How Much Does the President Really Matter?“
Source: Essay in Carey's In Defense of the Constitution, revised and expanded edition, (Indianapolis: Liberty Fund, 1995).
2. Majority Rule and the Extended Republic Theory of James Madison
Of all the Federalist essays, Federalist 10 is by far the most widely read and cited. Indeed, most students of the American political tradition have come to regard it as the document to which one must recur in order to understand the underlying theory of our constitutional system. Its assumptions, principles, and theorems form the foundations of what is commonly known as the “Madisonian model” which many close observers, scholars and practical politicians alike, believe best explains the nature and operations of the American political system. Thus, the essay enjoys a quasi-constitutional status.
That much may be said about Federalist 10 without too much fear of contradiction. However, principally because of its acknowledged and strategic role in fixing the character of the regime, it has been subjected to numerous readings and interpretations, and many of these can hardly be characterized as “neutral.” In this respect, I should remark, it would seem that many, if not most, analysts do not employ the essay as an “eyepiece” through which they might gain a clearer or more comprehensive picture of the American political system; rather, they seem to use it for purposes of finding theoretical support for conclusions they have already reached about the salient characteristics of the system and its operations. This often leads to a piecemeal and distorted interpretation of Madison’s extended republic theory, a theory set forth not only in this essay but in his personal correspondence and at the Philadelphia Convention.
The modern critics of the “Madisonian model,” though they subscribe to essentially the same revisionist thesis concerning Madison’s underlying thoughts about the need to protect the “haves” from the “have nots” who constitute a majority, are less direct and more subtle in presenting their case. Thus, disentangling their arguments is sometimes a difficult matter. For instance, as we shall see in chapter 3, we find Madison’s arguments for an extended republic mixed with and fused into his arguments concerning the necessity for the separation of powers. But other lines of argument seem designed to show that we cannot really take Madison’s position very seriously, presumably because it will not withstand critical analysis. Madison presumes, for example, that the permanent and aggregate interests of the community and rights of citizens are not necessarily what the majority may hold them to be at any given moment; that, in other words. they have an existence quite apart from what majorities may will or think. This, however, makes no sense to many moderns who have come to regard man as the measure of all things. From their perspective Madison was offering up, much as our politicians of today are wont to do, sweet-sounding maxims designed to enlist popular support: rather than offering an “operational” theory, he was presenting an attractive and appealing rationale for minority rule.
These lines of analysis or argument are appealing primarily to those already convinced that our system is built on the foundations alleged by the revisionists. Put another way, they do not come to terms with Madison’s argument on Madison’s terms; they simply reject the presumptions that lie at the heart of his approach. For instance, those who do not believe in an objective moral order cannot “enter” Madison’s system; they must summarily reject it or, as I have intimated, question his motives or sincerity. However, as I believe the following analysis will make clear, the central issue in the revisionists’ critique is whether Madison makes his case that the rights of other citizens and the permanent and aggregate interests of the community can be protected in the proposed system without having to abandon the republican principle of majority rule. This, in my estimation, is both a legitimate and crucial question raised by the modern critics. Yet, it is also one they have not chosen to explore with any intellectual rigor.
My basic concern then and now, to put this in terms of my introductory remarks, is that the active, positive government along the lines suggested by Croly and initiated by the New Deal is in the long run incompatible with the conditions and processes necessary for the successful operation of the “Madisonian model.” I see no reason to change my prognosis. Indeed, it has been borne out over the years, nor is there any indication that our leaders are about to change course. The principal reasons for my assessment—that groups will not willingly give up benefits or advantages once bestowed by the government whether they are needed any longer or not; that our present morality encourages groups to take full advantage of governmental largess; and, among others, that our elected officials seem incapable of resisting or tempering the demands of significant groups—are still operative. I would add only that the “new morality” that triggered this seemingly irreversible process has produced a state of affairs completely at odds with what it intended or promised. Rather than making the nation more of a nation in the manner Croly envisioned, it has served to make it less so.
MAJORITY RULE AND THE EXTENDED REPUBLIC THEORY OF JAMES MADISON
The American experience with self-government has long been the object of admiration by foreign observers. Principally for this reason students have pored over the records, debates, and pronouncements of our founding period with an eye to discovering the principles, theories, and beliefs that undergird the system and seem to have contributed to its success. Their interest has been more than academic. A belief, still widely held and for good reason, is that certain principles embodied in our constitutional framework are exportable, that underdeveloped nations, or nations embarking on the enterprise of deliberately creating governments, may benefit from our experience by incorporating certain of our principles into their political design.
But the results of these searches into our underlying principles have been less than encouraging. Rather than coming to substantial agreement, scholars seem hopelessly divided concerning even the most basic and important features of the American system. Were our institutions designed to allow for popular control of government or were they the product of men who actually feared republican government? Was the system really designed to provide for a unitary form wherein authority would be centralized in the national government, or was it intended to provide for an effective and meaningful division of powers between the states and national government? Was the President intended to be a prime mover among our branches of government or was this to be the function of Congress? These are only a few of the fundamental matters over which there has been lively dispute. The predictable result is great uncertainty concerning precisely what our basic principles are. Most certainly, it seems impossible to construct any coherent political theory that must have guided our Founding Fathers.
The situation is such that the contention advanced by John Roche seems warranted. He writes that the Framers are best understood “as extremely talented democratic politicians” and that the emergent Constitution was not “a triumph of architectonic genius,” but rather “a patch-work sewn together under the pressure of both time and events.” 1 From this point of view, the search for coherent theory is necessarily doomed to failure; or, if not that, the underlying theoretical principles will at best be hazy, less than well developed, and often employed with an eye to their acceptability and workability given the political and social circumstances of the time. Moreover, we should not expect consistency in their application given the practical bent of the Framers.
Despite all this, there was one overriding question of enormous theoretical import that the Framers and presumably a majority of the American people answered affirmatively and unambiguously with the adoption of the Constitution; namely, they believed a republican and nontyrannical government over an extended territory possible. Certainly, in back of, or overarching their democratic caucusing, as Roche would have it, there must have been a prior and fairly wide consensus as to the feasibility of their undertaking. Admittedly not all shared this conviction—not, at any rate, to the degree and extent of the Constitution’s more ardent proponents—and in many respects it can be viewed as one of the most, if not the most, basic issue(s) that divided the political leadership during the period of ratification. The issue, to be sure, may not have been put precisely in these terms on every occasion, but key debates over the role of the national government vis-à-vis the states, how secure the liberties of the people would be in the hands of the national government, the role and accountability of representatives in the national government, and popular recourse from abuses of power by the national government can be directly related to and subsumed under the more general question of the feasibility of a nontyrannical republic over an extended territory.
Our purpose here is a limited but important one. We will examine with some care Federalist 10, an essay in which Madison sets forth what is generally conceded to be the strongest argument for the workability of a stable, nontyrannical, and republican form of government over an extended territory. We will do so with certain critical questions in mind: What novel features or departures from traditional teachings does Madison advance? What presumptions must Madison have held in advancing his thesis? What changes in our social and political environment seem to bear upon critical elements of his argument? What conceivable developments might destroy or undermine the validity of his arguments? An examination of these and similar questions will hopefully provide some clues as to what the future holds for our republic.
The Extended Republic Theory
Federalist 10 presents us with a number of novel theses. In this respect, the main thrust of the essay, which stresses not only the workability but desirability of an extensive republic, is noteworthy. At the time Madison wrote, the traditional and widely accepted teaching held that a republican government—a government based upon the democratic principles of majority rule and political equality but one in which elected representatives would meet to conduct the business of the whole community—would be short-lived and marked by turbulence unless it operated upon a relatively small and homogeneous population within a relatively confined territorial expanse. Madison, however, advanced precisely the opposite proposition. In direct or “pure” democracies, where the entire people would meet to conduct the business of the community, and in small republics as well, the majority will more easily and readily feel “a common passion or interest”; “a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual” (46). Thus, he reasoned, pure democracies and small republics were inherently ill-suited to control the effect of majority factions, that is, a majority “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community” (43–44). But a large and extensive republic, he maintained, held out every prospect for controlling the effects of majority factions. Why so? Precisely because of the conditions necessitated by and associated with extensiveness. Extensiveness would require representation of some kind and that would serve, in his judgment, “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations” (47). More: extensiveness would of necessity involve the inclusion of a greater number of parties and interests which would hamper the formation of factious majorities. In his words,
Extend the sphere and you take in a greater variety of parties and interests: you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary (48).
Summing up this whole matter in the latter portion of Federalist 51, which is recognizably a reiteration of the argument presented in Federalist 10, Madison writes: “among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good” (269).
Now, in setting forth his theory relative to the extended republic, Madison is ever mindful of the basic requirements of republicanism; namely, in the last analysis, a truly republican government “derives all its power directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.” What is “essential to such a government,” he takes pains to emphasize, is “that it be derived from the great body of society, not from an inconsiderable proportion, or a favored class of it” (39:194–95). His avowed strategic purpose in Federalist 10 is to convince the reader that in the extended republic the effects of majority faction can be controlled without violence to these republican principles. So much he makes clear at the outset of this essay and in the final paragraph he writes, with seeming confidence in his analysis, “we behold a republican remedy for the diseases most incident to republican government” (48).
His republican remedy for a republican disease, like his inversion of the traditional large versus small republic theories, is highly original but also enigmatic. As we shall see later, its enigmatic character derives from the obvious assumption that the attributes of extensiveness, representation, and multiplicity of interests will serve to thwart majority factions without doing violence to the republican principle. But, we are entitled to ask, since republicanism involves control by the “great body of the people,” presumably at least a majority, how do the attributes of extensiveness serve to control this majority when it should be controlled, that is, when its ends are factious? Will such majorities somehow be “forced” to restrain themselves? If so, how can this be accomplished without recourse to some process or institution independent of the “great body of society” which would represent a significant departure from the republican principle?
One approach that leads to the heart of the enigma is to focus on solutions to the problem of majority factions that Madison expressly rejects. In doing this, we can best see what intellectual baggage Madison explicitly discarded or left by the wayside in the development of his theory. The results of such an undertaking are quite revealing in their own right largely because they stand in direct opposition to most of our contemporary interpretations of how the American system was “designed” to handle the problem of unjust and overpowering majorities.
One method that Madison rejects outright can be termed the traditionalist approach. It is the one that most readily comes to mind and finds its contemporary expression in the faith that some individuals place in certain of our institutions, most notably the Supreme Court. Quite simply this approach involves placing a veto power over actions of a majority in the hands of a select group. In Madison’s time, for instance, theories of “mixed government” that would lodge such powers in the hands of the major social classes were prevalent and obviously could have been adapted to the American environment to provide a ready framework for such a solution. Yet, it must be emphasized that aside from the principle of representation that would require a legislative body, Madison at no point in Federalist 10 speaks of constitutional institutions as barriers to factious majorities. The means by which their effects will be controlled relate only to the noninstitutional factors associated with extensiveness that we have already noted. This fact, often overlooked by contemporary scholars, provides very strong, albeit indirect, evidence that Madison was aware that such institutions would rest upon nonrepublican foundations and would, moreover, at best be a precarious check on factious majorities. We need not, however, rely upon inferences. At other points he explicitly rejects any such approach. He writes that we cannot count on “enlightened statesmen” to control factions because they “will not always be at the helm,” besides which, even if they were, they would be of little use since “indirect and remote considerations ... rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole” (10:45). He flatly rejects creating a will in the community independent of the majority—that is, of the society itself. This he notes is the method that “prevails in all governments possessing an hereditary or self-appointed authority.” “This, at best,” he warns, “is but a precarious security because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests, of the minor party, and may possibly be turned against both parties” (51:268).
Another approach to the problem of majority factions, one that at least seems to fascinate behaviorists concerned with the development and formation of the norms, attitudes, and values upon which political behavior is predicated, would be this: to produce and inculcate in the general population democratic values and norms with the end in mind of creating such a consensus that divisive issues (e.g., issues involving the truth or wisdom of basic values or ways of life of the society) would simply not arise in the political arena. Or, to put this into a more respectable framework, we know that every viable society rests upon some commonality of belief or, quite simply, it no longer remains a viable society. This commonality of belief—if, of course, it conforms with the known and tested standards of virtue—would serve to limit the boundaries of political discourse, particularly the introduction of factious proposals. In this connection, we cannot help but note that one of the critical functions of public education, at least as it was originally conceived, was to reinforce and bolster in each successive generation the fundamental ethics of this commonality.
With this we come to one of the most interesting and perplexing aspects of Madison’s thought, to wit, his rejection of this approach for both normative and empirical reasons. For one thing, Madison seems adamant in rejecting methods that would serve to eliminate the causes of faction. “The latent causes of factions,” he writes in Federalist 10, “are sown in the nature of man.” And even if “no substantial occasion presents itself [such as attachment to different political leaders, or matters concerning “government” or “religion” ] the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts.” It would be “impracticable” (at other points he suggests impossible) to give “to every citizen the same passions and the same interest” that, if it could be done, would surely serve to eliminate the causes of faction. Nor is he about to destroy liberty, the other means he perceives for eliminating the causes of faction. This would be analogous to “the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency” (44). From Madison’s vantage point, there is little that can or should be done to eliminate factions. They will always be with us:
As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves (44).
And, as we might expect, he placed little reliance on appeals to a higher morality or religion in staying the hands of a majority faction. “They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful” (10:46). By the same token, he placed little faith in the sufficiency of written limitations to block factions. At other points in The Federalist (e.g., Federalist 48) and consonant with the general approach set forth in Federalist 10, he is somewhat disdainful of “parchment barricades” controlling the effects of factious groups. And even after his change of heart concerning the need for a bill of rights, it is apparent from his own language that he holds out limited and guarded prospects regarding their efficacy in curbing majority factions:
It may be thought that all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defence; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor and rouse the attention of the whole community, it may be one means to control the majority from those acts to which they might be otherwise inclined.2
The perplexing aspect of Madison’s theory in this respect can be put as follows: unlike many of his contemporary critics, Madison was an objectivist in the sense that he attached meaning to such terms as “justice,” “permanent and aggregate interests of the community,” and the “rights of other citizens.” In his very definition of factions, for example, he uses this terminology to set such groups apart in a class by themselves on the rather obvious assumption that, by reference to such objective standards as “rights” and “permanent and aggregate interest,” they could be operationally identified. For instance, justice, probably his highest end, is not to be equated with what any majority or “the great body of the people” may regard it to be at any given point in time; it embodies known and objective characteristics that are the measure of whether a group is factious. In sum, Madison was not a relativist.
In light of this and his depiction of majority factions, his assertion that a majority will “seldom” coalesce on any other principles than “those of justice and the general good” is startling. What kind of faith can we place in any such prediction? Why are we to assume majorities will almost always act in a manner consistent with the public good? Factions, after all, are inevitable; they are the source of “the diseases most incident to republican government.” Factious majorities, and this seems to be another of their inherent characteristics, will seldom, if ever, be dissuaded or show forbearance; they will press ahead with their demands no matter how unjust their cause, totally unaffected by appeals to a higher morality, justice, or the common good. Debate, deliberation, and reason, the characteristics of decent and orderly government, will be of no avail in modifying or thwarting their ambitions. They will introduce “instability, injustice and confusion” into our highest councils and when the opportunity presents itself—once, that is, they are the “superior force” —they will rule without regard for the “rules of justice and the rights of the minor party” (10:45).
Madison’s answer centers on the extensiveness of the republic. And, as we have seen, he sees no need to depart from the republican principle that, of course, leaves majorities virtually unlimited. But, given the very formidable threat posed by majority factions to the existence of the republic, we are entitled to ask whether extensiveness alone is sufficient. To answer this, we must examine more thoroughly the arguments that he advances.
The Virtues of Extensiveness
The two attributes of extensiveness, already noted, that serve to control the effects of faction are representation and the multiplicity and diversity of interests. We shall discuss these in greater detail with an eye to determining how it is they might operate to accomplish this end consonant with republican principles.
At least one claim advanced by Madison on behalf of a system of representation in the context of a large republic seems self-evident. He observes that there must be an upward limit to the size of a representative assembly. The reasons for this are twofold: the assembly cannot be so large as to constitute a tumultuous mob incapable of conducting its assigned business in an orderly fashion; nor, by the canons implicit in republicanism, should it be so large that strict oligarchic internal rule is needed. Quite obviously, the larger the republic in terms of population, the more fit characters there will be to choose among for the limited number of positions in the legislature (10:47). To put this point in a familiar context, we can be reasonably certain, all things being equal, that a high school with 5,000 students will be able to field a better football team than one with but 500 students.
The greater number of fit characters means that the opportunities for selection of worthy representatives are increased. Extensiveness also provides other opportunities that are not so obvious. The larger the constituency, the less susceptible is the election to the “intrigues of the ambitious, or the bribes of the rich” (57:298). In other words, the possibilities of one man or a small group of men manipulating the electoral outcome are drastically diminished. The campaigns promise to be open contests wherein the voters will more likely be freed from the pernicious influences that all too frequently afflict small electoral districts.
And Madison seems to suggest something beyond this when in Federalist 10 he maintains that in large republics “it will be more difficult for unworthy candidates to practice with success the vicious arts, by which elections are too often carried” (47). Here, because he is contrasting the conditions of democracy with those of republicanism, we can without injustice take him to mean that extensiveness will diminish the opportunities for the election of demagogues. This rests on two assumptions that seem warranted in light of his general theory: first, the worthy candidates will be able to counteract the effects of the demagogue; and second, extensiveness will require a candidate to expose himself repeatedly to a variety of audiences, which means at a minimum that he cannot secure election by one passionate appeal in a setting where all the voters are present. Each candidate, in sum, will be forced to state his case repeatedly before different groups with sufficient opportunities for rebuttal by opposing candidates. This will serve to give the electorate sufficient opportunity to reason and deliberate.
These are forceful, though far less than compelling, arguments to the effect that the electorate would have a greater opportunity to select representatives “whose patriotism and love of justice will be least likely to sacrifice” the common good “to temporary or partial considerations.” But Madison is less than convincing in telling us why the attention of the people will focus on men of the most attractive merit. The opportunity may be there but the motive may be lacking. To recur to our football team analogy, the coach of the high school with 5,000 students may by design, ignorance, or stupidity select the worst, not the best, available talent for the team. Conversely, the coach of the school with 500 students may be knowledgeable and conscientious and field a far better team.
Madison’s clear assumption, stated in Federalist 57, is that the people will choose those “whose merit may best recommend” them “to the esteem and confidence of [their] country”:
As they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their engagements (296).
Bearing this in mind, let us look at the end that Madison felt would be attained through representation to see how this relates to the majority faction problem. The representative assembly, for one thing, will constitute a “chosen body of citizens” that will “refine and enlarge the public view” and “whose wisdom may best discern the true interest of the country.” Moreover, the representatives “patriotism” and “love of justice,” as we have mentioned, will presumably operate to prevent the sacrifice of the true interest to “temporary and partial considerations.” And of this, Madison goes on to write, “it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose” (10:47).
We can ask, apart from the fact that representatives are more capable and virtuous than the average constituent, why should the representative assembly possess this clearer conception of the common good? One obvious answer is that the representative assembly is so constituted that its members collectively, through their deliberations and debates, will provide a picture of the whole so that, unlike an ordinary constituent, the representative can weigh and measure with greater knowledge and certainty the impact of particular policies upon the whole country, not just one section or district. They are, in other words, strategically placed for this purpose. Contrasting the domains of the states and national government, for example, Madison writes:
The great theatre of the United States presents a very different scene. The laws are so far from being uniform that they vary in every State; whilst the public affairs of the Union are spread throughout a very extensive region, and are extremely diversified by the local affairs connected with them, and can with difficulty be correctly learnt in any other place than in the central councils, to which a knowledge of them will be brought by the representative of every part of the empire (53:279).
Thus a policy that may have only a marginal benefit for a given geographical section of the country may have factious effects for another and eventually the whole nation. Or, it could be that a policy when viewed in the context of the whole may be seen as counterproductive. At least this much a representative will be in a better position to determine than constituents who, we must presume, will have more partial views.
Such a position regarding representation is easily reconciled with republicanism by assuming that, if the constituents possessed the same knowledge as their representatives, they, too, would see matters in the same light as their representatives and abandon their temporary or partial interests. For such a process to occur would require a fairly high degree of “communion” between the representatives and their constituents because the representatives would be obliged, in this variant of republicanism, to make as accurate a calculation as possible concerning what factors or values derived from a comprehension of the whole, if known to the constituents, would cause a shift in their thinking. Madison perceived this need for communion,3 as we have termed it, but it presented him with serious problems. Critics of the proposed Constitution contended that the electoral districts under the new form of government would be so large that communion between constituents and the representatives would be virtually nonexistent. Madison was able to counter that the districts would be no larger than those found in certain of the existing states. Yet, on Madison’s own showing this was hardly a satisfactory rejoinder. If, as he conceded, the population of the nation would grow and if, as he also conceded, there must be an upward limit to the size of the representative assembly, the bonds of communion could not help but be severely weakened, if not entirely broken. Madison’s general comment reflecting on this problem is noteworthy because it touches upon a theme that recurs throughout The Federalist:
By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures (10:47).
But, in suggesting the need for a division of authority between the states and national governments, Madison theoretically evades one problem only to introduce another that even to this day defies solution.
If representation itself provides at best only a very partial solution to controlling the effects of faction, what can be said of the other characteristics of an extended republic, namely, multiplicity and diversity of interest? The clearest statement of the desired effect of multiple interests is found in Federalist 51:
Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, will be in a little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government (268–69).
By recurring to Federalist 10, we find specific reasons that we have mentioned in another context as to why this state of affairs will prevail. Here, again, we find the conditions of the small and large republic contrasted. In the small republic, with fewer “distinct parties and interests,” the likelihood increases that interests composing a majority will possess a common motive to oppress or otherwise abuse a minority. Beyond this, the opportunities for discovering and acting upon such a common motive are more abundant because of the “small compass” within which the interests operate. The opposite is true of the large republic that Madison envisions. The interests and parties will be so numerous that it will be difficult for them to discover a common motive for oppressive action. And even if such a motive does exist—and here Madison seems to feel geographical factors come into play— “it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.” In this view of things, each interest is a small stone in a large mosaic.
In addition to all the difficulties attendant upon majority formation with such a diversity of interests, Madison cites another impediment: “where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary” (10:48). This, of course, presumes that there are recognized social norms regarding what constitutes an unjust or dishonorable purpose, even to the extent that factious leaders sense they are doing something wrong. To what extent this would really operate as an impediment, given Madison’s characterization of factions, is somewhat questionable. However, and more important in light of his general theory, is the “distrust” that is bound to occur among the diverse interests. Given the picture painted by Madison, the degree of mutual suspicion might well be sufficient to preclude unified action. To this we might also add that organization for unified action would probably have to take on conspiratorial overtones because secrecy might well be required in plotting action contrary to the common morality. Thus, all the factors of extensiveness operate to render a successful conspiracy most unlikely.
Yet there are obvious problems with Madison’s theory. Why will the extensiveness operate to thwart only factious majorities? Why, that is, won’t the hurdles of interest diversity operate to prevent the formation of virtuous or nonfactious majorities? Still another and more crucial problem can be put as follows: Madison clearly didn’t want an inert government, one incapable of making necessary decisions. And the fact is that the system he designed does make far-reaching decisions. Given this, how are we to tell whether factious majorities have been able in practice to overcome the hurdles of extensiveness? To answer these and like questions we must probe Madison’s theory a bit further.
Extensiveness, Interests, and the Common Good
A fruitful approach to the central problems posed by Madison’s interest theory is to set forth and examine the currently fashionable interpretation of the American political process, which is presumably a logical outgrowth of the Madisonian system. In the course of this we will also have need to cast Madison’s remarks on representation in a somewhat new light, one that links them more closely to his interest theory.
A standard but by no means universally accepted theory of American politics, derived from Madison’s extensive republic theory, comes to this: there are, indeed, varied and numerous interests vying with each other; and, as Madison put it, the chief task of modern legislation is to regulate “these various and interfering interests.” 4 Our political processes, both between and during elections, are best viewed as shifting alliances or coalitions of these various groups and interests. The processes of decision making are slow, but through compromises, log rolling, and other give-and-take practices, a general consensus emerges on policy matters. Certain interest alliances, if strong enough, may block action, but, whether consensus is reached or not, the process is best understood as an interplay between the varied and numerous interests that comprise the republic.
This, in brief outline, is probably the most widely shared view of how the American political system operates at the national level with regard to those features with which we are concerned. It is also considered, as we have mentioned, to be the logical outgrowth of the Madisonian theory, which we have set forth in some detail. What we see at once, however, is that this account of the process does not deal with the key normative elements of Madison’s theory. Put otherwise, our processes are viewed in terms of a collision of interests where it is assumed that the outcome of the collision accords with the common good largely because of the degree of consensus behind it. Absent from this depiction are such considerations as “the true interest” of the country, “the permanent and aggregate interests of the community,” or the “general good.” More to the point, while the foregoing account may be an accurate portrayal of the American system in its relevant dimensions, there is little reason to presume that we have a republican government free from the control of factions.
This matter can be put another way. Madison’s theory, no matter how one chooses to read it, does not support the notion that the true interests of the country emerge through the resolution of interest conflict. For example, two or more factions may be the participants in any such conflict and one would be hard pressed to say that the ensuing result is likely to conform with the general or common good. Far from it: the presumption would have to be precisely the opposite. But Madison tells us this will seldom happen, and we are led to ask: what does the Madisonian theory require that is overlooked or ignored in our contemporary theory? If we were, in fact, following the Madisonian model, what would our political processes look like? How would they vary from what we have today as described by most observers?
The major difference, as we see it, is the emphasis that the Madisonian theory places on the cultivation and existence of a predominant independent force in our highest decision-making councils. What precisely do we mean by an independent force? In essence this: a group of decision-makers sufficiently detached from the immediate interests of a given controversy that they would serve more or less as a jury to judge the relative merits of the arguments and proposals advanced by the interested and contending parties. The members of the independent force would necessarily change from issue to issue as different interests become embroiled in controversy. Yet, the point is that on any given issue the force would be of sufficient size to hold the balance among contending interests.
The whole thrust of Madison’s theoretical discourse leads us to this conclusion. To see this, we need only transpose Madison’s thought a bit: suppose we do not, as Madison did, focus our attention on how the large republic will serve to control the effects of faction, but rather on how the large republic and the conditions associated with it will serve to produce an independent force of the kind described above. In other words, if we look to Madison’s theory as an explanation of why it will come to pass that no interest group will become “a judge of its own cause,” we are in a better position to understand how Madison’s extended republic will control the effects of faction. Indeed, Madison as much as invites us to look at the matter this way when he laments the character of the decision-making process that has led to the undoing of republics:
No man is allowed to be a judge of his own cause because his interest would certainly bias his judgment, and not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of the legislators but advocates and parties to the causes which they determine? (10:45)
If we transpose Madison’s theory, we can readily see how the conditions that he identifies in the large republic will enhance the probabilities of an independent force. Let us detail some of these:
(a) Multiplicity and diversity of interests certainly reduce the possibilities of a widespread union of interest with common motives. Thus, on any given issue normally only a small proportion of the entire population is likely to be aroused or involved. As a result there will be a large independent force that can perform a “jury” function. In these terms the contrasts between the small and large republic are striking: in the small republic where the interests are fewer and the ties between individuals are such that most individuals are forced to take sides one way or the other, the possibilities of an independent and decisive force in the decision-making councils are considerably reduced.
(b) The independent force, freed from the interest bias that clouds and distorts judgment, is more likely to resort to the accepted norms of the community in making its decision. Certainly it will have no need to deviate markedly from the accepted norms; it has no axe to grind, nor does it seek favors that might impinge on the rights of others. In sum, there is every reason to suppose it would represent a stable and calm force during stress and conflict.
(c) Representation, aside from placing a third force at a critical juncture in the decision-making process, is bound to temper deliberations. Interest advocates possessed of a greater knowledge of the whole would be obliged to weigh the contentions of opposing interests. The outgrowth of this would be a debate in which passions are minimized in large part because the contending parties must come to grips with the issues, that is, with the long-term effects, the merits, and shortcomings of any given proposal with an eye to persuading the independent force.
(d) When issues arise where the prospects of an effective independent force seem unlikely—that is, issues that “mobilize” the entire community sentiment one way or another—Madison seems to presume one of two processes occurring. Where a common motive prevails there is less likelihood of factious behavior because all interests alike will perceive a common stake in the outcome. Such, for example, would normally be the case with respect to a foreign attack or intrigue. Where, as in the case of competing religious sects, a partial end is sought to the detriment of other sects, the fragmentation of interests will preclude any action.
With this before us we are able to perceive why nonfactious groups are in a far better position to achieve their ends through the system, and why it is that factions face almost insurmountable obstacles. To the extent that proposals do not impair the accepted rights of others, there is every presumption that the independent force will favor them if they are otherwise meritorious. In any event, members of the independent force will be able to do those things good and virtuous representatives should do: act in the true interest of the country. Stated otherwise, when there is no independent force, the possibilities of factious control are greatly increased.
If this view is substantially correct, it would seem to follow that the Madisonian theory presupposes what can be termed a low-key or relatively passive government. If it were otherwise, the problems of controlling the effects of faction would go well beyond those canvassed by Madison. A positive government would, more likely than not, serve to arouse the people; and, to the extent that it became the mechanism through which interests, factious or not, could achieve differential and favored treatment, it would increasingly become the object of capture or domination. Scarcely any interest could avoid being drawn into this political vortex. Soon “horse trading” and coalitional politics, all with the end of securing needed majorities, would become common practice. With this the prospects of an independent force would be greatly diminished. Moreover, as the government would be obliged to embark upon long-range programs that would necessarily favor one set of interests over another, the society would become increasingly polarized. To a lesser and lesser extent would issues be decided on the basis of the common good or the true interests of the nation. Rather, such decisions would be made with an eye on how to maintain and enlarge a winning coalition. In sum, an active government involves a form of bribery in which only a few can afford to remain neutral. And, on Madison’s own showing, once this process begins, there is little, if any, hope that considerations of long-term national interest will arrest the tide.5
Active or positive government thus poses very critical problems for Madison’s extended republic theory. Once a government has shifted gears from a more or less passive instrumentality that operates within a relatively narrow sphere to an instrumentality for the advancement of interests and purposes that are of enormously broad scope, the best one can hope for consistent with the Madisonian theory is that the true interests of the country reside somewhere within the depths of the forces that propel the dominant interest coalitions, or that, at the very least, these forces do not contain strategically placed factions. But, in light of Madison’s assumptions, these hopes are at best very dim.
The Modern Problem
With the foregoing in mind, we have at least some idea of where to look to determine whether Madison’s solution to the problem of factions is any longer applicable to the American system as it presently operates. We shall briefly examine some of the characteristics of our present system with reference to Madison’s basic assumptions and propositions.
In one respect—the continued growth of the United States—the conditions essential for a nontyrannical republic seem to have been immensely strengthened. Whether the effects of this growth have been offset by advanced systems of communication and travel is obviously a judgmental matter. However, because of our industrial and technological development, interest proliferation has been increasing at an enormous rate. Today there is virtually no sector of American life in which interest organizations do not abound, and many of these are highly organized for political action. Thus, one is safe in saying that one of the basic props of the Madisonian theory, multiplicity and diversity of interest, is quite sound.
Developments of another sort, however, present a very basic and serious threat to a republic free from the control of faction. We have already commented on the effects of positive government with reference to Madison’s theory. In this regard, we have already witnessed a dramatic shift in our thinking about the legitimate role of government in our society. We can say that, since at least the advent of the New Deal, Madison’s basic presumption regarding the role of government has been rendered inoperative. Since that time the dominant political forces have seen their main task as one of achieving “social democracy,” which, when distilled, comes down to greater economic and social equality. The extent of the shift since the New Deal can hardly be exaggerated. What were formerly regarded as dispensations by government are now looked upon as vested rights. We now have entrenched interests in the bureaucracy whose very livelihood depends upon identifying social “wrongs” and developing long-range plans to ameliorate them. The quest for equality in all spheres of social life seemingly knows no bounds short of repealing the laws of nature. In this process, the government has massively intervened in precisely those areas of economic and social life where it is abundantly clear that the opportunities for factious influence abound. It has done so, moreover, where independent forces by the very nature of the situation are either weak or nonexistent.
Equally important in the disintegration of independent forces produced by positive government is the ideology that has justified and propelled positive government, namely, secular liberalism. The characteristics of this ideology hardly need recounting here. Yet we must not ignore two of its features that do bear upon our analysis. First, the push for social and economic equality moves us in a direction clearly fraught with danger. In an important sense, such movements, when carried to the extreme, embody the essence of what Madison seemed to regard as factionalism: namely, the attempt to reduce men as far as possible to the condition of sameness. A second and related feature worthy of note is a perverse form of relativism that exalts equality or, better said, transforms equality into the common good or the true interest of society, but simultaneously and dogmatically holds that it is meaningless to speak of national interest or the common good as something apart from and “above” the clash of particular interests. In this, the contemporary and prevalent ideology and Madison’s theoretical presumptions, which were plainly not relativist, are poles apart.
Secular liberalism would pose no dangers in terms of Madison’s extended republic theory save for its pervasiveness. Its simplicity and moral gloss make it the standard to which academics, the priests of the mass media, and, perhaps because of this, our political leaders, repair. It is the source of “respectable” opinion and those who operate most effectively within its confines are our “statesmen.” Yet, its acceptance at the highest levels further diminishes the possibilities of an independent force in our decision-making assemblies. The ideology, being the measure of what is best for the country, serves to exclude from consideration measures, policies, and proposals at variance with its principles, no matter how prudential, worthy, or effective they may be. Even in the field of foreign policy, where we would expect to find a vast independent force at the national level, the effects of ideology on our policies are pronounced.6 More than this, it threatens to incapacitate the national government in performing its requisite and primary functions, such as securing the common defense and providing for domestic tranquillity.
Finally, secular liberalism’s attachment to pure democracy, as far as that is attainable in the United States, promises to reduce even further the possibilities of an independent force. The reforms of political parties and Congress, all designed in the name of greater democracy, have this effect. Not only would they create a decision-making structure that would force a division of the whole society along majority-minority lines, they would also assure that this cleavage was reflected in our decision-making bodies, thereby eliminating the possibilities of an independent force. Thus the benefits of diversity, one of the fundamental pillars of Madison’s theory, would be lost in this rigid and constrictive framework.
A number of reasons can be adduced as to why we have not as yet evidenced the full effect of factions. The basic reason, as we see it, is to be found in the relative affluence of the American society. This is to say that interests caught up in the politics of positive government have to date experienced little hardship. Quite the contrary. To this point in time, most of the interests have benefited. In addition, the potential independent forces have been, so to speak, bought off. Thus, positive government has generated an interest of its own that all but forecloses a significant number from showing forbearance. For any substantial group to try to arrest the process now in full operation would be considered an act of betrayal and bad faith that could only result in severe deprivations for the “guilty.”
Yet the day of reckoning is inevitable. Hard and painful choices will have to be made as resources become scarcer. Circumstances not of human design or volition will force forbearance. The severity of withdrawal will depend in large measure on the sacrifices demanded of interests, and this, in turn, will depend on the extent to which government will be forced to curtail its activities. But as the tide of secular liberalism has not ebbed, we have every reason to believe the reactions will be severe. And the severity of the reaction will be compounded by the fact that the major interests, because of their strategic positions in society, can resort to forms of extortion to gain favored status or to hold at least whatever gains they have made. Those, for instance, performing essential services can always hold out the threat of a general strike. But whatever configuration politics does assume at this juncture, there is little prospect that the effects of faction can be controlled without resort to coercion. Whether coercive powers will be exercised moderately or in a relatively benevolent manner would seem to depend on whether the middle class will be able to act as a viable independent force.
One thing does emerge from this analysis. Madison’s reliance on the extended republic to prevent the abuses of faction, like such devices formulated by the traditionalists, is far from foolproof. This can be seen in our increasing popular reliance on the feeblest of the traditional devices, a body presumably removed from the purely political arena (the Supreme Court) empowered to enforce written limitations (a Bill of Rights). This is indicative of the misdirection and sad state of our thinking about the problem of the nature of factions. It also constitutes a remarkable regression in our thinking about democratic government.
Certainly Madison cannot be faulted for not having seen the true dimensions of the problems associated with factions. Perhaps more clearly than other theorists who preceded him, he saw their root causes. Yet, he can be faulted for not having urged upon his audience the observance of that morality necessary for the perpetuation of the regime he envisioned.
[1 ]John Roche, “The Founding Fathers: A Reform Caucus in Action,” American Political Science Review 56 (March 1962), 814.
[2 ]The Annals of Congress, 1st Congress, 1st Session, Philadelphia, April 8, 1789, 437.
[3 ]See especially Federalist essays 52 and 57 on this point.
[4 ]Most students readily acknowledge their indebtedness to Madison for an understanding of the general workings of the American system. See, for example, David Truman’s classic, The Governmental Process (New York: Knopf, 1951).
[5 ]John C. Calhoun, one of the first major critics of the extensive republic theory, lays out a scenario very similar to this in his A Disquisition on Government, in Union and Liberty: The Political Philosophy of John C. Calhoun, ed. Ross M. Lence (Indianapolis: Liberty Fund, 1992). It would seem that because Calhoun was on the Southern side in the slavery controversy we have seen fit to ignore his warning.
[6 ]This Henry Regnery thoroughly documents in his “The Age of Liberalism,” Modern Age 19 (Spring 1975).
Last modified April 13, 2016