How to Think Politically

by James Bernard Murphy

  How might we think of Hegelian ‘rights in context’ in relation to contemporary ethical and political debates? Our debates about abortion are especially polarizing and bitter precisely because we see the brute opposition of two highly abstract individual rights: the right of a woman to autonomy and the right of the unborn child to life. The woman and the unborn child are each described as isolated individuals armed with abstract rights. Within the terms of liberal rights theory, there is no ‘solution’ to this conflict, only an outcome. What does this dilemma look like if we interpret rights contextually? Within the context of the relationship between a mother and her baby, we see that traditionally mothers have a customary and legal right to give up their children to adoption. What this means is that even a pregnant woman has in principle a right to separation from her unwanted baby. Unfortunately, with current technology, that separation usually requires the death of the baby, which violates the duty of parents to their children. But in the near future, it will be feasible to separate the foetus from its mother without killing it, thereby protecting the rights of both mother and unborn child. Hegel’s conception of rights in context thus enables us to overcome the often tragic conflict between the rights of individuals and the relationships central to our lives. According to Hegel, we should not have to choose between rights and relationships, between individuals and communities.

  18

  James Madison: The Founder

  After the American Revolution, the independent colonies were loosely united under the Articles of Confederation (1781). But this fledgling national government was not able to raise taxes, promote interstate trade or protect the new states from foreign aggression. Leaders from the various states agreed to organize a new and stronger national government, calling for a US Constitutional Convention in 1787.

  To prepare for this upcoming convention, James Madison, a Virginia delegate, devoted himself to learning all he could about federal and republican governments. He wrote to his best friend and political ally, Thomas Jefferson – who was serving as an American delegate to the court of France – to request some treatises on ancient and modern federal republics, ‘especially by Greek and Roman authors’. Jefferson scoured the bookstalls of Paris, shipping 197 books, mostly in French, to Madison in Virginia.

  Madison’s reputation as the ‘father of the constitution of the United States’ and, more generally, as the greatest theorist and practitioner of constitutional design in history, rests upon his deep learning. Unlike most great political thinkers, however, Madison combined prodigious book-learning with wide experience as a politician – making him a philosopher among statesmen and a statesman among philosophers. He followed in Jefferson’s footsteps through political office from the Virginia state legislature to the Continental Congress and from Secretary of State to President of the United States. Although he lacked Jefferson’s soaring rhetoric (‘all men are created equal’), Madison tempered Jeffersonian ideals of popular government with both greater realism about human nature and keener insights about institutional dynamics. Jefferson, for example, wanted each generation to write its own constitution. What does rule of the people mean if the people are governed by the dead? Madison insisted, by contrast, that healthy democratic politics required a fixed framework of basic law. Changing the constitution frequently would be like changing the rules of a game in the middle of play, undermining the fairness of democratic competition for power. Madison’s contributions to The Federalist Papers – a collection of essays explaining and defending the proposed new constitution – are what make it America’s greatest contribution to the history of political thought.

  At the College of New Jersey (now Princeton University), the young Madison acquired an Augustinian pessimism about human nature from his teacher John Witherspoon, a Calvinist Christian from Scotland. Augustine, you will recall, has been called the first political realist because of his view of radical human evil – a tendency to selfishness that may be tempered but never eliminated by upbringing or education. Because of this radical human evil, ‘power tends to corrupt, and absolute power corrupts absolutely’, in the later words of Lord Acton. What this means is that no set of rulers – no matter how ‘virtuous’ – can be entrusted with plenary political power. Echoing Augustine, Madison famously said ‘If men were angels, no government would be necessary’. Appraising Madison’s institutional machinery for controlling the arbitrary exercise of power, Immanuel Kant claimed that a well-designed constitution could work even with a ‘race of devils’. Madison would not go that far. He insisted that a sufficient lack of civic virtue among citizens and politicians would undermine any constitutional arrangement.

  Having just rejected the tyranny of the British Crown and Parliament, Madison feared that Americans would now become tyrannized by their fellow citizens. Already, in the Confederated States, he had witnessed large numbers of debtors expropriating the wealth of the smaller number of creditors. Much worse, of course, was the long-term tyranny of white majorities over racial minorities. The fundamental challenge for Madison throughout his life was to figure out how to combine popular government with individual liberty: how to empower democratic majorities without tyrannizing minorities. European history seemed to suggest that unpopular minorities, such as Jews, were often protected better by monarchs than by popular assemblies.

  It is often said that Madison favoured republican government over democratic government, but it would be more accurate to say that he favoured a democratic republic. He often disparaged what he called ‘pure’ democracy, meaning ancient direct democracy, in which every citizen could vote on every issue. Passions among citizens, he thought, would lead to tyrannical assemblies: ‘Even if every ancient Athenian were a Socrates, every Athenian assembly would be a mob’. Madison favoured the practice of representation in which a few men would govern on behalf of the others, so that the raw passions of the people might be moderated by the deliberation of their representatives. Many republics in history were aristocratic; Madison insisted upon a democratic republic. The ancient world gave us models of direct democracy that were not representative; medieval Europe gave us models of representative governments that were not democratic. Madison pioneered the development of a truly representative democracy, combining ancient and medieval political ideals.

  Madison’s genius as a political thinker is evident in how he overturns some basic assumptions of traditional political thought and practice. One basic axiom of all ancient and medieval politics was the idea that a community could not be politically united unless it was religiously united. Virtually all governments in human history have claimed the right to enforce religious orthodoxy in the name of political unity. Jefferson and Madison rejected this traditional assumption when they enacted Virginia’s statute of religious liberty, which became the model for the First Amendment protections of free exercise of religion in the US Constitution. Madison argued that a state-established church corrupted both the state and religion and that religious pluralism made for better churches and better governments. The enforcement of religious orthodoxy, he insisted, does not prevent but actually creates political conflict. As it turned out, American Christianity spread more rapidly under religious liberty than under any state-established Christian church.

  A second basic axiom of traditional political theory was that a democratic polity must be small and homogeneous. Ancient democracies, after all, were tiny city-states. As the Roman republic became a large empire, the Roman people lost their political liberties. Champions of states’ rights in the US, who opposed Madison’s new national government, insisted that representatives would be accountable to the people only in small states. But the history of small republics, ancient and modern, Madison argued, proves that they all founder upon factional conflict. Indeed, the smaller the polity, the more likely it is to devolve into two warring blocks: rich versus poor, creditors versus debtors, Catholic versus Protestant. Given the diversity of human temperaments and circumstances, no free society will ever reach spontaneo
us unanimity. Faction and division cannot be suppressed.

  The solution to the mortal danger of warring factions is, paradoxically, the multiplication of factions. David Hume had already noted that religious liberty fares best where there are many religious sects, preventing any one sect from oppressing the others. Madison generalized this insight by arguing that a large and diverse polity will contain so many degrees and kinds of property, so many religions, so many geographical and cultural identities, that no single divide will threaten civil war. In a large and geographically diverse nation, said Madison, each citizen will have many identities: for example, poor, Catholic, urban, northern and white. Instead of exhorting citizens to work for the common good, Madison accepts the reality of parochial self-interest. Factions are inevitable; safety is found in the multiplicity of cross-cutting groups. Before Madison, no one had argued that a large democratic republic was more viable than a small one.

  A third basic axiom of traditional political thought is that every government must have a sovereign authority. In European polities, the king is sovereign or the parliament is sovereign or the ‘king-in-parliament’ is sovereign. What is sovereignty? Sovereign authority is final and cannot be challenged; sovereign authority is indivisible, to avoid impasse; sovereign power cannot be legally limited, because whatever limits sovereignty is itself sovereign. Although Madison would argue that in the US ‘the people’ are sovereign, the genius of his constitutional design is that sovereignty is located everywhere – and nowhere. First, he divided the national government from the governments of the several states. Is the national government sovereign, or are the state governments sovereign? The answer is ‘yes’ to both. As for the national and state governments, these are then internally divided into executive, legislative and judicial branches, each with its own powers to check and balance the other branches. It makes no sense even to ask which branch of government is sovereign. Not even the whole government is sovereign, since the people can organize state constitutional conventions to abolish state or national governments.

  What if two or more branches of government collude to usurp power? Madison was well aware that mere constitutional provisions, or what he disparaged as ‘parchment barriers’, could not stop ambitious politicians from ignoring legal niceties. He argued that the institutional separation of offices would lead to salutary conflict among office-holders, so that ‘ambition must be made to counteract ambition’. Politicians would jealously protect the powers and prerogatives of their branch of government against other branches, not from high-minded loyalty to the constitution but merely to protect their own power base. According to Madison’s political psychology, politicians identify with their offices, so that ‘where you stand depends upon where you sit’. Instead of exhorting politicians to defend the constitution, he relies upon their conflicting ambitions to check their power. He takes human beings as they are, not as they might be.

  Madison is often called the father of the US Constitution because of his intellectual leadership of the Constitutional Convention of 1787. Yet his preferred ‘Virginia Plan’ – which erected a much stronger national government with power of veto over all legislation by individual states – was defeated. Madison was much more directly responsible for drafting the first ten amendments of the Constitution, known as the Bill of Rights – the most influential statement of basic liberties in world history. They are Madison’s supreme political achievement.

  Madison was fully aware of the hypocrisy of being a champion of human rights while also owning slaves. He never wavered from his condemnation of slavery as a moral evil but also never attempted to abolish it. As a Virginian, he fully understood that the southern states would never join a Union at the cost of surrendering slavery. Jefferson and Madison were both targets of the bitter reproach against American revolutionaries by the English writer Samuel Johnson: ‘How is it that we hear the loudest yelps for liberty among the drivers of negroes?’

  Madison’s overriding aim in constitutional design was to avoid the dangers of tyranny – especially of the majority. His maxim was ‘divide and govern’: first, by enlarging the republic and dividing society into many cross-cutting factions so that no stable majority can oppress a minority; second, by dividing sovereignty between national and state governments; third, by dividing governments internally into branches so that competition among politicians prevents any conspiracy against the people. The danger of this dispersal of sovereignty is that it can often lead to an impasse: since no branch has full power, each often simply vetoes the agenda of the other branches. Also, since no branch of government is sovereign, voters often do not know whom to credit or blame. The dispersal of sovereignty usually entails the dispersal of accountability. Ever since Woodrow Wilson (in office 1913–21), American progressives have argued that Madison’s constitution so weakens the national government that reform of US society is almost always stymied by organized special interests.

  Madison’s is the only modern constitution in the world that makes no provision for political parties. Yet without parties there could be no stable co-operation among branches and thus no capacity to govern. At the same time, parties undermine the tendency of each branch to check the other branches: where one party controls two or more branches of government, checks and balances are weakened. Political parties are thus necessary for governing while they also undermine Madison’s carefully calibrated controls on the exercise of power.

  Ever since Madison, political scientists and economists have devised increasingly complex and subtle institutional incentives and constraints designed to ‘nudge’ people to do the right thing. For example, today we structure choices to be an organ donor or to save money for retirement by making the ‘virtuous’ choice the default option. We provide financial incentives to encourage companies to stop polluting or to offer health insurance to their employees. Like Madison, we carefully structure our institutions so that people make the ‘right’ choice for the wrong reasons. Meanwhile, unlike Madison, we have largely abandoned the whole language of moral character and civic virtue. The use of public office for subsequent private enrichment, once castigated as corrupt, is now almost universally accepted. We know from history and from contemporary politics that no constitutional arrangement – no matter how carefully designed – can control politicians who lack essential civic virtues.

  19

  Alexis de Tocqueville: The Prophet

  The French writer Alexis de Tocqueville never once attended a New England town meeting, despite travelling throughout Massachusetts and Connecticut in the autumn of 1831. Yet he begins his classic book Democracy in America by effusively praising the New England town meeting as the world’s best example of democratic virtue in action. Instead of passively waiting for the state or national government to solve their local problems, these sturdy, independent farmers and tradesmen would come together periodically to discuss, debate and decide the local issues before them – raising money, allocating funds and building roads or schools. Tocqueville concedes that American local government is often inept – but that, he says, doesn’t matter: American towns possess the supreme virtue of teaching citizens how to make honourable use of their freedom by governing themselves. Tocqueville’s focus on town meetings in his study of American democracy is puzzling, since those meetings resemble ancient Greek direct democracy more than modern American representative democracy. But Tocqueville was writing to instruct his fellow Frenchmen, not the Americans.

  As a French aristocrat who embraced the rise of democracy, Tocqueville hoped that some of the robust self-sufficiency of his feudal ancestors might inform the character of modern democratic citizens. In the distant European past, before the rise of the modern state, feudal nobles convened to govern their common affairs, each man respecting the freedom and independence of his peers. Tocqueville wanted every democratic citizen to act with the civic virtue of these idealized nobles: an aristocracy of everyone. He claimed that emerging democratic legal and moral equality is the irresistible will
of God – our own choices will decide only if we have equality of freedom or equality of servitude, a society of independent citizens or a society of lackeys. Tocqueville foresaw two primary threats to his beloved political liberty: governmental centralization and market consumerism, both of which cause people to withdraw from the demands of civic virtue into a private life of quiet servitude. Like an Old Testament prophet, he not only claimed to see the will of God in the rise of democratic equality but also warned us of a possible future in which the democratic ‘herd’ fattens itself on private luxuries while being shepherded by remote powers – a vision of what he called a ‘soft despotism’ eerily applicable to both twentieth-century communism and, perhaps, to twenty-first-century capitalism.

  What enabled Tocqueville to be a democrat among aristocrats? He lived after the death of French aristocracy but before the birth of French democracy. His life’s mission was to warn aristocrats that democracy was inevitable and to warn democrats that political liberty was not inevitable. No prophet is honoured in his own country, and Tocqueville was never embraced by either French aristocrats or democrats; his estrangement from French politics made possible his vocation as a writer. Only an aristocrat could write so brilliantly of democracy, and only a Frenchman (or foreigner) could write so brilliantly of America.

  Tocqueville lived in the shadow of the French Revolution of 1789, in which many of his relatives, and very nearly his parents, were executed. His contemporaries were deeply divided over the justice of this epochal event, but all agreed that it represented a radical break with feudal monarchy. Tocqueville alone insisted that the Revolution merely removed the debris of a feudal order already destroyed by monarchs since King Louis XIV. French feudalism was bitterly hated only after it had largely ceased to exist: by the eighteenth century, French nobles possessed many privileges but no real power; they had all the rewards of governing without having to govern. Ambitious monarchs during the previous two centuries had monopolized all political power in Paris. The revolutionaries of 1789 and then Napoleon merely perfected the centralizing administration pioneered by the absolute monarchs, bypassing the nobles and governing the people directly.