Some Essential Principles Assumed

The Papers name at times but do not expound upon three principles that are nevertheless part of the foundation—the rule of law, majority rule, and popular sovereignty. The rule of law in a very crude form goes back to the Sumarians in 3000 BC. Majority rule can be traced to the Spartans and Athenians of Greece but did not settle into a common legal form until the sixteenth century in England. Popular sovereignty, power to the people, and with its concomitant sense of popular liberty, can be argued to have first arrived on earth with the American decision to eliminate monarchy and titles of nobility, and form a republican system for legislative and executive branches based on elections and limited terms. That the actual Constitution falls somewhat short of this goal—the Senate was appointed then by state legislatures and the President took office through a mechanism that could theoretically side-step voting altogether—does not deny the concept, and the fact that at least these two deficiencies have been largely (but not completely) corrected. Much of what we find in the Constitution, to this day, will reflect the compromises required within the Constitutional Convention to give it life at all. History suggests that the good parts are good and the difficult parts amenable to work-arounds or the simple business of living with them. Some argue that our state constitutions now, with popularly elected governors, equal populations mandated for political districts, amendment by majority vote through initiatives (18 states), term limits for legislative offices, recall, and elected judges (26 states) look more like “popular sovereignty” than the present federal constitution.

We discuss these underlying principles briefly in their historical order.

We expect laws, we expect to obey them, and we expect those who do not will be suitably punished. We accept this idea even if we object to specific laws, punishments are not even or equitable, and juries and judges, as human beings, make variable and at times terrible or unjust decisions. We have accepted this idea since the first settlers reached Jamestown in 1607. We have no history otherwise. Of course, it was otherwise in England and most of the world for most of its history, during which monarchs or autocrats ruled arbitrarily, sometimes through “laws” of their own making, sometimes through sheer caprice. England’s Magna Carta (1215) began a tradition of some laws independent of the monarch. During the reign of James I (1603-1625) the top jurist of the land, Edward Coke (pronounced “Cook”), insisted that James I was not above the law, and survived to write the tale (he was merely imprisoned), a critical turning point in British attitudes towards the law. We inherited his sense, and much of his writing on the law. However, the most important writer on what became the basis of the American appropriation of English common law is Sir William Blackstone, whose Commentaries on the Laws of England, published between 1770 and 1778, remain a touchstone for the sense and the letter of American systems of judicial understanding and procedure.

We are watching the rule of law at work in the general reaction to the Capital invasion on 6 January 2021. While calling it an “insurrection” feels like giving the small mob that got in more credit than they deserve (we know what an “insurrection” looks like from our own 250 years ago), the immediate reaction from the FBI has been to seek and arrest all those who violated the Capital’s walls, with sentences for at least one now at 18  years, with broad public approval as far as anyone can tell. Most of those who still worship our last Republican President do not seem to voice support for the invaders, in the sense of exculpating them from responsibility and concomitant prison time. They broke the law; they should be punished. It’s in our political DNA. (We avert our eyes from those like our previous Republican President who has publicly called them heroes.)

However, we should not ignore the rather continuous problems with legitimacy, that ambiguous force underneath it all that propels the people to obey the law voluntarily. Our country was founded when we separated from Britain on grounds that the people had the right to alter or abolish its government should it fail to serve the people’s safety and happiness (from the Declaration of Independence). The bond of legitimacy was broken, violence ensued–the country for a while was ruled by men, not the law, until they won the war and instituted new means the people could accept. Eleven southern states felt the same way in 1861 and attempted to secede, forming the Confederate States of America around their own constitution. They lost the war, but many in the south to this day feel the tug of the Lost Cause, reflected in persistent racism and almost obsessional attachment to state’s rights as long as it is their state. The election of our last Republican President, whose sense of legitimacy was focused largely within himself, still strains universal commitment to the rule of law as an assumption of living in America.

Finally, we should not ignore the power our republican system has on the rules themselves and our sense of legitimacy. Laws are made by legislatures. Members of every legislature in America are elected for limited terms. If a law becomes unsatisfactory to a majority of citizens who bother to vote, the people can throw the bums out and hope those elected instead change the laws. This practice occurs with some regularity in smaller municipalities where people know each other and their elected leaders. It happens less often as the size of the constituency and level of government increases. But some moments in our history have seen convulsive interventions by the people in our laws. The labor movement, for example, suffered through years of anti-union laws and court decisions until 1935, when they finally got the closed shop through the Roosevelt administration. Prior to that federal troops were used to quash union organizers and labor strikes, with violence and occasional deaths attending. Unions themselves have declined to a large degree, but closed shop laws remain on the books should a resurgence materialize.

Majority Rule

“As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed.” In this line Madison clearly intends that such opinions cannot be reconciled or the differences dissolved through rational or deliberative means. Our most common means to reach collective decisions when people disagree is majority rule. In the Papers Madison shows a distinct pattern of concern for oppressive majority rules, the minority suffering somehow, but he never wavers from majority rule’s existence and necessity. (His principal concern seems to have been with agricultural interests overwhelming merchant interests given merchant’s relatively small percentage of the population, a problem we might see in reverse today.) As with the Rule of Law, it only works because people accept outcomes contrary to their own opinion or interests. Of course, we are going through a period where millions seem to feel otherwise, but they are not objecting to majority rule, they are objecting to the manner by which votes were made and counted, an implicit affirmation of majority rule. The three-ring circus around electing a Speaker of the House in early 2023 affirms the same principle. There was talk about tinkering with the rule (such as convincing a few Democrats to abstain or be absent so a minority vote taken as a whole would be a majority vote of those voting), but in the end the rule stood. (Yes, we know that McCarthy was elected because a few Republicans just did not vote, reducing the number required for a “majority,” but that does not obviate the rule.)

It is worth noting the tensions created by the two prominent examples where majority rule does not hold—in how we elect our President, and how the Senate reaches many conclusions. The former reflects a pair of tensions built into the Constitution itself—between state and individual sovereignty, and between trust and suspicion of the people. The organization of the Senate favors state rule, in which small states have the same proportional power as large states. As both the House and Senate have to approve new laws, the Congress as a whole is imbalanced in this sense. (The whole idea was a critical compromise within the Constitutional Convention in which all states had the same voting power, one vote each; a majority of states, not delegates, was needed to pass provisions of the Constitution. The seven smallest states, a majority, had only 25% of the population at the time. As Rhode Island did not show up at the Convention and New York lost its vote when two of its three delegates bolted six weeks in, the seven states held a 2/3 majority. They saddled the country with an often-unwieldy instrument which serves more to obstruct than gain useful legislation.)

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The Constitution provides direct elections proportional to the people for the House, but incorporates an awkward and ill-formed manner of electing a President, one proposed in the last few weeks of the Philadelphia Convention to replace the recommendation to that point, of a President appointed by the Legislature. The Convention felt the latter was too cozy, inviting collusion based on self-interest between the President and Legislature (one instance of distrusting people in general). It also favored the large states over the small states based on the composition of the House, a pressure point at the Convention. The alternative adopted at the Convention involved states creating electors by some means decided by state legislators (meaning that state legislators could appoint electors as well as have them selected through popular elections) who would gather at the capital and elect a president if they could (majority rule at work); if they could not, the House of Representatives would decide, but under the provision that each state had but one vote, another compromise favoring the smaller states. The Twelfth Amendment fixed some anomalies in the first rendition (such as the prospect of the President and Vice President coming from opposing parties), but the central idea stood.

Owing to the inherent flexibility given each state in how it chooses electors, this process has over time morphed without textual change into our present system, in which all but two states allocate all of their electoral votes to the candidate in that state who wins a popular election in that state (Nebraska and Maine allocate electors proportional to votes earned by candidates). This has led to the two most recent Republican candidates winning the office with a minority of total votes cast. This is not only a violation of majority rule, it is a violation of popular sovereignty and the principle of one man, one vote. However, not enough states have come together to realize genuine majority rule for Presidential elections (it would only take the eleven most populated states to agree to commit their electors to whoever won the majority vote in the country, a perfectly appropriate rule within the language of Amendment XII). (We apologize for the longer than usual disquisition here, but the relevance of this problem given the 2020 election and its ever-lasting aftermath seems to warrant a fuller explanation. The very basis of our system as outlined here implies that we should elect a President and Vice President for the nation as a whole by majority or plurality rule; we do not.)

The Constitution imposes supermajority rule on certain decisions by the Senate: conviction on impeachment takes a three-fourths vote; approval of treaties, expelling a member of Congress, and overriding a Presidential veto require a two-thirds vote. However, the Constitution also allows each House of Congress to set its own rules of procedure. Over time the Senate has adopted a procedure by which a filibuster—a continuous speech by one member who may turn the floor over to another member indefinitely—may be terminated by majority vote only for bills involving budgets, Supreme Court nominations, and Acts of War. All other prospective pieces of legislation require 60% of the Senate to approve “cloture,” the termination of a filibuster. It is rare for the Senate to have 60% of its members from one party. Both national parties when in the minority in the Senate have used this procedure to block legislation they find unfavorable. This process has many other thorns, roadblocks, and side-drafts that has made the Senate a kind of spectacle of what a democracy should not be, but no Senate has been dominated enough by a party sensible enough to change the rules. The only comfort for this scandal offered by the Federalist Papers is the infrequent but real admission that the system of separation and balance of powers was designed more to prevent bad laws than make good ones, the general obstructions inhibiting fast legislative or executive action fully intended.

Popular Sovereignty

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The Federalist Papers present a very confusing picture of popular sovereignty. The word “people” appears 539 times in the 85 essays, with very few ignoring the word altogether. But the word serves various purposes. Sometimes it feels like a kind of popular will, say, that the people would put national safety as the highest priority of government. Sometimes it refers to power, of the people to make critical decisions. Sometimes it limits popular power to voting, those representing the people invested with all downstream government activities. Sometimes it has the opposite valence, of a brake on misuses of power by those we elect to serve us. At no time do the Papers overtly grant the people power to influence or inflect government decision making except in the extreme case of the need to “alter or abolish” the government itself, a power openly granted the people in Federalists 40 and 78.

Among the problems the Papers present when trying to understand what these two words mean is that the Papers make very clear that the “people,” meant not in the abstract or fully collective sense but in the sense of habit and operation, will always be divided, “different opinions formed,” and that people of common opinion seeking political power will form interest groups or “factions,” creating “parties” who wage combat with each other over political preferences. Even though the Papers were written several years before our two-party system emerged, ironically formed by the two principal authors of the Federalist Papers then taking opposite position relative to centralized powers, they clearly lay the foundation for such a system. After all, in their rear-view mirror, back less than a decade, was the conclusion of the mother of all acts of civic engagement, the Revolutionary War, a battle waged between two parties over the question of liberty, each charging the other with trespass on their constitutional rights, in which the “people” could not be more actively engaged. We repeated the process seventy years later over the same word, one party seeking freedom for slaves, the other defending its sovereign rights as given in the Constitution and granted overtly in Lincoln’s first inaugural address to continue an historically honored and economically necessary practice, the continuation of which required them to exercise their right to “alter or abolish” their existing government. The south made the error not made by the colonies—they lost the war, and with it the power to alter or abolish their government. Constitutional lawyers consider this loss to be permanent, even though the instrument of loss was violence and deaths, not legislative action or constitutional amendment. It forms part of our “living” or “unwritten” Constitution we discuss below.

Whereas the Papers seem to restrict popular involvement in governance to voting, the general logic they build insists upon more from the people than voting. First, the Papers tend to distrust the people and their elected leaders more than they trust them. For all the brave words about the best and brightest finding their way to the capital, the general justification for republicanism and separation of powers derives from prospective mischiefs and human incapacities. If we could reliably elect competent and right-minded leaders, we would not need terms limited to 2, 4, or 6 years, nor impeachment, nor powers separated so that “ambition would be made to counteract ambition.” In Federalist 10 Madison famously asks governments to control the violence of factions, but in so doing creates the reasons for any group of interested citizens to form interest groups actuated by common opinions which necessarily occupy the political space with groups holding opposite opinions, each seeking political preferences or a “redress of grievances” as the First Amendment has it. And Madison and Hamilton could hardly be ignorant of the course events took that led to the American insurrection against their British government, whose purpose to abolish their government was hardly the work of elected leaders as seen from the British point of view.

In Federalist 39 Madison takes apart the various aspects of our government, assigning some features to “national” interests (such as voting to enter a war), assigning others to “federal” interests (such as ratifying the Constitution itself). He somewhat buries the “people’s” interest as something separate and distinct from “national” interests. This is consistent with the general sense the Papers give that the people only count when voting. But the insurrection named above was in the name of liberty. The Papers name “liberty” 137 times, usually as the purpose of government. Liberty was the purpose for popular mass movements thereafter, to free the slaves, to enable women to vote, to allow labor unions, to fully emancipate those citizens whose heritage was slavery, to make “equality” an equal partner to “liberty” in the calculus of American political development even as they have been recognized as incompatible by writers as far back as deTocqueville. The Papers do explain why our governments are horribly handicapped relative to change or innovations which they initiate; the big changes have all been forced from outside—by wars, crises such as the Depression, massive improvements in technology, or mass movement by the people. At the end of all this assessment of the Federalist Papers will be this condition. We the people force the changes we need, in the past, now, and in the future. Our future depends upon us, in civic engagement, actively moving our elected and appointed leaders to new paths for our country, and now the world.