"There is always a philosophy for lack of courage."—Albert Camus

Wednesday, September 30, 2015

Madison's Hamiltonian interpretation of the Constitution

In light of Tom's post last Friday quoting Madison on constitutional interpretation, I thought I would pass along a link to this this book review posted over at The American Conservative: What Madison Meant.  Author Ralph Ketcham notes that Madison in his later years drew increasingly close to the Hamiltonian judicial theories of the great Federalist chief justice of the Supreme Court, John Marshall.  The review is well worth a read, to help counter some of the more recent Jeffersonian fixation on the Right regarding the best approach to take regarding constitutional interpretation.

As Russell Kirk wrote in his book on the American Constitution, Rights and Duties, an originalist approach to the Constitution is not necessarily an approach that requires strict construction.  Hamilton certainly would have agreed with that, as would have Marshall & his ally on the bench, Joseph Story, Madison's greatest appointment to the judiciary.  And, as Ketcham's review demonstrates, Madison would have agreed to that sentiment as well. For those familiar with Madison and the arc of his views on government, it is little surprise that in his later years he moved away from Jefferson's views of the Constitution & back towards his original insights, hammered out with his past friend Alexander Hamilton.

Madison's shift towards a more Hamiltonian approach to the Constitution needs to be balanced with his long-term commitment to the diversity of local communities and the liberties of individual citizens.  One of the key building blocks of American order has been the pluralism that has existed within our country since the colonial  period.  It was precisely the coalescing of the various colonies into a  single American nation that solidified that pluralism, as no single  colony had sufficient weight to dominate the entirety of the country. Thus New England remained separate from the South, Pennsylvania from  Virginia, South Carolina from its neighbors in Georgia and North  Carolina. The fragmented cultures, demographics and economies of the various colonies, later states, prevented the country from taking on one  particular characteristic.

As a consequence, there were a variety of  religious, economic, political & social interests throughout America  at the time of the Founding, and it was this diversity that spurred on the growth of liberty. Since no single state, demographic group, religion or economic interest could control the whole, it was in the  interest of each differing segment of the country to support freedom. Madison embraced this pluralism through his public career, often in opposition to Hamilton and the policies that brilliant if flawed statesman favored.  At the same time, Madison's commitment to political & regional diversity was deployed to defend a vibrant & strong general government in his greatest collaborative work with Hamilton, The Federalist Papers.

This point was emphasized brilliantly by James Madison in one of his most notable contributions to The Federalist, Essay # 51, dated February 6, 1788, where Madison wrote to console fears that the proposed Constitution would stamp down religious & political rights through the creation of a federal leviathan. Madison emphasized that the true foundation of liberty in the United States came not from paper guarantees but from the vibrant & varied interests within the country, interests that emphasize not the centralization of power but rather the pursuit of the common good through federalism. As Madison put it so well:
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. This view of the subject must particularly recommend a  proper federal system to all the sincere and considerate friends of  republican government, since it shows that in exact proportion as the  territory of the Union may be formed into more circumscribed  Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the  rights of every class of citizens, will be diminished: and consequently  the stability and independence of some member of the government, the  only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and  ever will be pursued until it be obtained, or until liberty be lost in  the pursuit. In a society under the forms of which the stronger faction  can readily unite and oppress the weaker, anarchy may as truly be said  to reign as in a state of nature, where the weaker individual is not  secured against the violence of the stronger; and as, in the latter  state, even the stronger individuals are prompted, by the uncertainty of  their condition, to submit to a government which may protect the weak  as well as themselves; so, in the former state, will the more powerful  factions or parties be gradually induced, by a like motive, to wish for a  government which will protect all parties, the weaker as well as the  more powerful. It can be little doubted that if the State of Rhode  Island was separated from the Confederacy and left to itself, the  insecurity of rights under the popular form of government within such  narrow limits would be displayed by such reiterated oppressions of  factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the  United States, and 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; whilst there being thus less danger to a minor  from the will of a major party, there must be less pretext, also, to  provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is  important, notwithstanding the contrary opinions which have been  entertained, that the larger the society, provided it lie within a  practical sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be  carried to a very great extent, by a judicious modification and mixture of the federal principle.
Federalism, in  Madison's presentation, thus forms perhaps the principal guarantee of liberty in the American Republic. Such federalism means a balanced government, with proper powers vested in a general government as well as proper powers retained by the states to deal with properly local issues. Madison was no radical. His defense of "the federal principle," the idea of both a strong general government & robust local governments, was then & remains today an almost perfect  expression of that unique American ideal of the pluralism of interest guaranteeing liberty within the construct of a constitutional order that was itself divided between general & particular structures, between national & state governments.

It would not be a stretch to say that Madison's turn toward Hamiltonian principles was in many ways a return to his own.

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