Wednesday, November 17, 2010

What the founders REALLY thought (1)

Reading the correspondence of Madison and Washington regarding the ratification of the Constitution, I continue to be struck by how their actual views are so much at odds with the caricatured views presented as gospel by the tea partyniks.

Again and again, far from seeing a strong Federal government as a threat to liberty, they saw it as the essential guarantor of liberty against the tyranny of popular majorities.

Standard textbook histories portray the decision to call a constitutional convention as a reaction to the weakness of the United States under the Articles of Confederation, notably the lack of taxation power. And to be sure the founders often spoke of the need for a new arrangement that would give the Federal government the power necessary to perform its essential duties; as Madison wrote in Federalist No. 37, "Energy in Government is essential to that security against external and internal danger, and to the prompt and salutary execution of the laws, which enter into the very definition of good Government."

But, as Madison wrote to Thomas Jefferson, the "inadequacies of the Confederation" were actually a far less important impetus for the new Constitution than was the manifest failure of the states to "secure individuals agst. encroachments on their rights." Madison observed that while representative government by definition must bow to the will of the majority, majorities made up of any one faction — economic, regional, religious — inherently tend to become oppressive and even tyrannical towards competing factions. And all experience has shown, he said, that neither concern for the general welfare of society, nor concern for one's individual reputation and character, nor even religious scruples were sufficient to overcome the power of self-interest of men acting together in such majorities. (Religion, he sharply noted, "has been much oftener a motive to oppression than a restraint from it." All the more so, he said, when it is reinforced by the herd mentality, "the sympathy of a multitude" that makes men acting on the "strongest of religious ties . . . join without remorse in acts agst. which their consciences would revolt, if proposed to them separately in their closets.")

The only check that Madison saw against such a tendency toward self-interest and oppression was a government encompassing enough that no one faction of local interest, economic class, or religious sect could expect to dominate it — so that "no common interest or passion will be likely to unite a majority of the whole number in an unjust pursuit." A powerful Federal government that represented the entire country would counterbalance the tendency toward majoritarian tyranny, injustice, and bad government all too manifest in the states.

Of course, that has been precisely the history of the United States: time and again, it has been the Federal government which has been able to act to protect the rights and liberties of all against the  tyranny of locally powerful and entrenched interests. It was the Federal government that summoned the will that states and localities could not to require railroads and mine owners to take even the most rudimentary steps to protect the safety of their workers, to require drug makers to stop selling dangerous quack products to the public at large, to restore to African Americans the voting rights that had been stolen from them at gunpoint and then by legal chicanery and intimidation for a hundred years, to end segregation, to bring to justice corrupt politicians — not to mention white supremacist murderers — who had long been protected by local judges, juries, and prosecutors.