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C8TP5WK5ADM634Handout.FederalistNo51.docxFederalist No. 51: Is Liberty Guaranteed by Structures?
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Reference
Lynn, L. E. (2011). Federalist No. 51: Is Liberty Guaranteed by Structures? Public Administration Review, 71, s83–s89. https://doi-org.lopes.idm.oclc.org/10.1111/j.1540-6210.2011.02466.x
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Federalist No. 51 can be read as a statement of the national government's dual responsibility to serve the public interest and to preserve liberty. It is built on James Madison's belief in checks and balances as a method for keeping government's parts in their proper places. This essay asks whether this gridlock has gone too far in rendering the constitutional design obsolete. Drawing on previously unpublished fragments of Federalist No. 51, the author argues that Madison fully anticipated these problems, and he offers the unpublished text as a salutary appendix to this iconic defense of liberty.
Is America's constitutional order failing to vindicate the founders' conviction that it would serve the public interest and preserve liberty? Is Madison's carefully structured political design now a gridlock too far?
The 2010 U.S. midterm elections underscored the salience of this issue. Frustration with, and anger toward, a political system frequently described as dysfunctional and broken—politics exaggerates our differences rather than narrowing them, according to one commentator—has been associated with historically low levels of public trust in American government. Attacks on the power of the presidency, on federal preemption of states' rights, on fiscal and monetary policy and management, on judicial polarization, and on a frequently paralyzed Congress raise questions as to whether the founders' elegant scheme of separated, federated powers modulated by checks and balances any longer validates their faith in our unique republican form of democratic governance.
Yet, while critics of Madisonian democracy argue that it frustrates the enactment of the popular will, the actualization of majoritarian rule, and the preservation of individual freedom, its defenders contend that during a time of uncertainty and political conflict rooted in transformation and change occurring on local, national, and global scales, the Madisonian scheme is performing exactly as intended: ensuring, in Madison's words, that "[our government's] several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places" (The Federalist, 336).1 Widespread frustration and anger, contemporary Madisonians argue, reflect the discontent of passionate interests properly kept in their places.
This essay explores the question, has Madisonian government become obsolete? I first will review Madison's arguments on behalf of the Constitution's design as set forth in Federalist Nos. 47 and 51. Next, the present form of this design will be described, noting in particular the evolution of what Madison called "subordinate distributions of power." Various arguments that question the appropriateness of this scheme as it has evolved, including arguments that constitutional governance in its present form, with its emphasis on representation, is illiberal and antidemocratic, then are considered. The essay's final section reproduces a lost fragment of Federalist No. 51 that reveals Madison's anticipation of the modern condition and concludes that, all things considered, the brilliance of the founders' scheme continues to be fully reflected in the ability of America's republican democracy to temper, although not eliminate, the defects of liberty's virtues.
This essay explores the question, has Madisonian government become obsolete?
Checks and Balances: The Founders' Conception
In Federalist No. 47, James Madison examined "the particular structure of this government, and the distribution of ... power among its constituent parts" (312). His purpose was to contest the claim by critics of the Philadelphia document that its blending of legislative, executive, and judicial powers—rather than maintaining their strict independence from one another—both offended "symmetry and beauty of form" (312–13) and exposed some parts of government to domination by other parts. While conceding that such domination indeed would be undesirable, Madison countered anti‐Federalist critics in a splendid polemic.
Madison argued, first, that the oft‐cited "oracle," Montesquieu, in fact had not favored strict separation of the three departments of government. The Frenchman's admiration for British government, in which the departments were thoroughly blended, belied any claim to the contrary. But Madison's main point in Federalist No. 47 was empirical: after reviewing the constitutions of the several states, he concluded that "there is not a single instance in which the several departments of power have been kept absolutely separate and distinct" (316). A more principled, albeit brief and experiential, argument for "separated institutions sharing power," to use Richard Neustadt's apt phrase, can be found in Federalist No. 48, in which Madison argues that "unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the [separation of powers] maxim requires, as essential to a free government, can never in practice be duly maintained" (321). It is notable that the principal threat to separation, in Madison's view, is the legislative department.
In Federalist No. 51, Madison reaches the vital question: How shall the separation of powers be maintained in practice? His argument is both a passionate defense of liberty and an elegantly reasoned argument for the structures planned in Philadelphia, his sophisticated analysis anticipating the field now known as institutional design. A balance of power will be secured by an "interior structure" (336) of checks and balances between the different departments of the government.
Madison's argument proceeds from the premise that "each department should have a will of its own" (336). While that principle might be secured by giving each department an entirely independent base of power among the people, practical considerations—ensuring a qualified judiciary and an executive with sufficient authority and resources to act—dictate that "some deviations ... must be admitted" (336). Argues Madison, "the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others ... [A]mbition must be made to counteract ambition" (337).
The extent to which Madison's argument on behalf of checks and balances depends on the overall structure of what he terms "the compound republic of America" (339) must be emphasized. Both federalism, all those governments (so long as they are of adequate size), and pluralism, all those "parts, interests, and classes of citizens" (so long as no one faction can dominate the others), are essential to effective republican governance. It is the entire scheme, Madison believed, that would ensure "that the rights of individuals, or of the minority, will be in little danger from the interested combinations [comprising] the majority" (339).
Checks and Balances: The Current Structure
The checks and balances in the Constitution, enumerated in figure 1, are well known. However, Madison, also made reference in Federalist No. 51 to "subordinate distributions of power" (337). Specifically,
Graph: 1 Constitutional Checks and Balances
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights. (337)
Although it is not often interpreted as such (or at all), the concept of subordinate distributions of power can be construed as depicting a system of what may be termed "subordinate checks and balances" created pursuant to the exercise of constitutional authority.2 These subordinate checks and balances are defined, for example, in statutes or other rules that have the force of law, as well as in conventions of governance, such as the standing rules of the House and Senate and the practices of political parties.
Four distinct categories of subordinate checks and balances encompass a wide swath of "the whole system of human affairs" (337): checks by one branch on another; checks that operate within the branches of government; checks by "the people," that is, by private citizens and entities, on the branches of government; and official delegations of power and influence to private individuals or organizational entities. These checks have a pervasive influence on the character and extent of government's capacity to deliberate, decide, and implement how the manifold expression of public interests will be determined and fulfilled.
The first category of subordinate checks and balances adds to the original capabilities of each branch to check the others. It includes, for example, the authority of the courts to approve, monitor, and enforce consent decrees in lawsuits in which the government is a defendant; the activities of the Government Accountability Office and the Congressional Budget Office, both of which are agencies of the U.S. Congress, to provide audits, analyses, research, and evaluations that often contain alternative perspectives to those of the executive branch on public policy and management issues and therefore provide a check on executive branch accounts of issues and events; and the authority of legislatures to oversee, monitor, and investigate the activities of public officers and agencies and to authorize independent investigations for such purposes.
The second category of subordinate checks and balances operates within the branches of government. Within the executive branch, for example, it includes inspectors general, protections afforded whistle‐blowers and other employee rights (including the right to sue their employers), and overhead offices that perform functions such as budget review and execution, personnel administration, and internal audit. Within the judicial branch, it includes the multiple levels of review that oversee the decisions of trial courts. Within the legislative branch, it includes, for example, the separation of the authorization and the appropriations processes and a wide variety of rules that balance competing interests within representative institutions.
The third category of subordinate checks and balances concerns the power of private citizens and groups with respect to the three branches of government. This category includes various transparency measures such as labor relations acts, freedom of information acts, administrative procedure acts, acts authorizing citizens' petitions, and "government in the sunshine" acts (some of which actually are written into state constitutions), which provide citizens with opportunities to question the exercise of government authority, with the attendant political consequences or even, usually on an ad hoc basis, to share power. It also includes not‐for‐profit watchdog groups, which enjoy the privileges of formal non‐for‐profit status, such as tax exemption and the right to receive tax‐exempt contributions; many of them engage in virtually constant surveillance of public agency activity and actively engage in litigation on behalf of their constituencies.
The fourth category of subordinate checks and balances includes the variety of ways in which power and influence are distributed among individuals or among entities created or allowed to exercise it. This category includes, for example, congressional chartering of the National Academy of Sciences and the Institute of Medicine, which often are commissioned by the executive branch and Congress to produce authoritative analysis of controversial public policy issues (such as dietary standards and global warming); the power inherent in the independent professional status of public employees such as actuaries, scientists, physicians, and statisticians; the Federal False Claims Act, which entitles employees of private firms under contract to the government who report deliberate waste of public funds to a share of any funds that are recovered through legal action; and government's reliance on what are termed negotiated and private rulemaking and on self‐regulation.
Examples of these four categories of subordinate checks and balances are presented in figure 2.
Graph: 2 Subordinate Checks and Balances
Madison and the other founders believed that their exceptional scheme of governance would tend toward balance, an equilibrium, among its myriad factions and powers. And so it has, surviving a potentially mortal threat to its unity to become the most durable written constitution in the world, adjusting the balance as necessary to meet extraordinary circumstances. However, whenever the American political system appears to be "out of equilibrium," as many believe is the case now, citizens may become restive and express a lack of trust in their governing institutions. A hundred flowers of criticism bloom.
Madison and the other founders believed that their exceptional scheme of governance would tend toward balance, an equilibrium, among its myriad factions and powers.... However, whenever the American political system appears to be "out of equilibrium," as many believe is the case now, citizens may become restive and express a lack of trust in their governing institutions. A hundred flowers of criticism bloom.
Criticisms take a variety of forms. Certain ambitions should not be checked as severely as they are, or should be checked even more severely. The balance produced by setting faction against faction, ambition against ambition, results in a stasis that is "too liberal" or "too conservative" or "ignores the will of the people"; too prone to gridlock on critical issues such as deficit and debt reduction; allows one or the other of the branches to become too powerful at the expense of the others; allows the federal government to usurp the powers of the states; or is unstable, too easily tilted in ways many consider undemocratic. James [ 5] argues, for example, that, in effect, Madisonian politics has produced a "predator state" in which the wealthy prey on the powerless and undermine social justice. [ 3] argue that, at the state level, Madisonian politics privileges every interest concerned with public education except the interests of children and their parents.
Critics have identified several factors that appear to be disfiguring the Madisonian scheme:
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· Recent Republican administrations have argued that both the legislative and judicial branches have erred in attempting to limit the executive's plenary authority over all policy making, both domestic and national security, associated with executing the laws ([ 7]). The separation of powers, in other words, was intended to be categorical in order to ensure the political accountability of administration. Opponents argue that such constitutional interpretations undermine the rule of law and the idea of publicness in public administration.
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· Overturning the 2002 Bipartisan Campaign Reform Act (McCain‐Feingold), the U.S. Supreme Court ruled in 2010 that corporations, as well as natural persons, are entitled to First Amendment protection when providing financial support for "electioneering communications." Critics argue (controversially) that the so‐called Citizens United decision reflected judicial activism and overreach that unbalances Madisonian deliberation in favor of neoliberal and corporate interests.
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· The influence of modern technology on political communication arguably changes altogether the basic processes of "checking" and 'balancing." The combination of social networking and the 24‐hour news cycle, for example, can confront policy makers with "flash mobs" of angry citizens that cannot be ignored.
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· Because of the partisanship in Congress resulting from the political realignments in recent decades, the filibuster rule in the Senate arguably frustrates majority rule and can result in legislative stasis. Critics of the rule argue that when deals are struck to end filibusters, the political outcomes often are regarded as profoundly undemocratic.
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· The intensity of the ambition of the branches of the federal government to encroach on the powers of the others is reflected in concerns over judicial activism, as in the Supreme Court's Bush v. Gore decision; the unitary executive, as in the George W. Bush administration's claims of unaccountable commander‐in‐chief authority; and congressional usurpation of states' rights, as in the No Child Left Behind Act of 2001.
Some academic critiques of the Madisonian scheme are more basic. Postmodern critics reject "the ideology of pluralism and procedural democracy" as a "legal fiction" and a "legitimizing myth" ([ 4], 52). The popular will, it is said, is unscrupulously manipulated and the people's representatives are co‐opted and corrupted by, special interests. Charles Fox argues that "ultimately constitutionalism fails us because it is simply too conservative.... To defend the administrative state by constitutional inquiry looks back instead of forward" ([ 4], 56). In a similar spirit, Mark Bevir believes that "it is today a daunting task to retain faith in participatory and pluralist ideals" ([ 1]).
What are the alternatives to representative, procedural democracy? Basing his argument on the discourse theory of Jürgen Habermas, Fox believes that "we would be far better off to disaggregate institutions to overlapping sets of phenomenological practices of varying degrees of stability and, one might add, relevance, merit and validity" (1993, 88). Citizens will be represented not by elected officials but by other citizens who demonstrate and earn trust by "( 1) disinterested intentionality, ( 2) willing attention, and ( 3) substantive contribution" ([ 4], 65). Bevir believes that the social‐science‐based expertise, which informs and justifies the modern state, is inherently undemocratic. He advocates "new forums in which citizens can deliberate, formulae policies, and connect with the state" (2010, 145).
The problems of governability, accountability, responsiveness and legitimacy that have been piling up make an eighteenth‐century system of structural checks and balances seem to many to be obsolete. According to its critics, Madisonian governance cannot be trusted to produce either the procedural fairness that legitimizes its outcomes or socially just outcomes that legitimize its procedures.3 But short of a Jacobin revolution, whose only contemporary avatar appears to be the "primitive libertarian philistines" (Fox's term) of many in the Tea Party movement, it is not clear how radical structural reforms might eventuate as either a "whole‐of‐government" reform or a revolution.
According to its critics, Madisonian governance cannot be trusted to produce either the procedural fairness that legitimizes its outcomes or socially just outcomes that legitimize its procedures. But short of a Jacobin revolution... it is not clear how radical structural reforms might eventuate as either a "whole‐of‐government" reform or a revolution.
Still, the conundrum noted by Madison cannot be avoided: not enough controls on power allows for abuse and arbitrariness, while too many checks and balances unduly restricts government's capacity to act to realize policies. How, then, are we to correct the problems of our republican democracy? Do we remain resolved to confront such problems using the scheme devised by Madison and his colleagues for just such purposes? It is not an a academic question: the possibility of secession, after all, has been countenanced by a prominent and ambitious state governor, and many advocate state nullification of federal law.
The reality is that public policy at all levels of government now requires countless specific decisions that are both arcane and consequential for "the people" in their many categories and groups, for politics, and for public administration. While the jugular of major legislation attracts the lion's share of public attention—the individual mandate in the Patient Protection and Affordable Care Act of 2010—the capillaries—the minimum loss ratio provisions of that act—inscribed in specific authorities, appropriations, regulations, and guidelines, and the "rent seeking" that is associated with them, are of vast but much less well understood importance and are closely monitored by specific interest groups.
This development is an explanation for the proliferation of the kinds of secondary checks and balances enumerated in figure 2. That the current volatile array of groups and categories, each pursuing its own purposes, has led to deep divisions in the popular will—the disappearance of the "center"—is neither a valid argument against Madison's scheme nor a reason for its amendment in any particular way.
The solutions to the contemporary ills of our democracy must from within the constitutional system. For example, the extent to which the outcomes of American democracy reflect how the nation's income and wealth are distributed among "the people," among whom are now numbered private corporations, remains an urgent question of ensuring social justice. To an increasing extent, our democracy's most basic processes—political communication, deliberation, and election—are fueled by money, and its concentration distorts these processes. This is a political, not a structural, question, however. In addressing it and the many other problems of our democracy, Madison's checks and balances will grow, not diminish, in importance. Madison's own published argument is dispositive:
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. (340)
Madison thus comprehended, and so must we, that even within the constitutional scheme drafted in Philadelphia, liberty might be lost and anarchy reign unless the stronger parties submit to a government that protects all parties, the weaker as well as themselves.
But can the liberty of all within the American republic and its states be guaranteed by structures alone? Indeed, if Madison and his colleagues had foreseen such eventualities, might their design of the American republic have been different? How might Madison have addressed the vulnerabilities of his elegant structural system? Fortunately, imagining what Madison might have said is unnecessary.
Federalist No. 51 Rediscovered
In a stunning but unpublicized discovery, heirs of an employee of The New York Packet, in which Federalist No. 51 and other Federalistessays were published, recently contacted an international auction house concerning a frayed, barely legible manuscript, currently being authenticated, purporting to be the final pages of the Federalist No. 51 manuscript submitted by Madison for publication. In these concluding pages, which inadvertently were lost under a cabinet during typesetting, Madison foresaw the issues just posed. Because Public Administration Review is the flagship journal of the profession responsible for implementing the Madisonian scheme, I have been granted special permission to quote the text of this long‐missing fragment for publication in this symposium. It reads as follows:
One final consideration must be addressed. What if it be the will of the people themselves, a majority of whom claim reiterated oppressions that seem to them to be authorized by the very structures meant to protect their rights, wish to change those structures? Just as there are critics of the present draft Constitution, so, too, must criticisms of its operations and effects be expected in the future. Indeed, though one side or the other may be vexed by them, such criticisms, even as transformed and magnified by little critics into a plot against their rights, real or imagined, they are properly tolerated and respected as of the essence of democratic deliberation. And a remedy is available.
As explained in an earlier essay, and appropriately reiterated here, useful alterations to the system conceived in Philadelphia will be suggested by experience. So much may be anticipated with certainty. Provisions for amendment have accordingly been included in the draft document, which are intended to guard against both an undue mutability of the Constitution and a perpetuation of its discovered faults. We should expect, therefore, that if the discovery of error, or the experience of oppression, be sufficiently offensive to human sensibilities, that corrective action will be initiated by the general or State governments and adopted according to the Constitution's provisions.
We must ask, however, whether the provisions for amendment are a sufficient supplement to the structure of checks and balances so as to preserve the protections of the separation of powers? We will do well to consider a brilliant work titled "The Wealth of Nations," by the Scot economist Adam Smith. In it the author has suggested not only the prospect of economic transformation and dramatic enhancements of national wealth but the necessity of regulating the agents of such transformation for the preservation of civil rights and for the just distribution of its benefits. He also acknowledges, and this argument we must acknowledge as well, that "regulations may, no doubt, be considered as in some respects a violation of natural liberty. But these exertions of the natural liberty of a few individuals, which might endanger the security of the whole society, are, and ought to be, restrained by the laws of all governments."4
Smith cautioned, however, and it is a caution which merits the approbation of all men of good will: "civil government, so far as it is instituted for the security of property, is in reality instituted for the defense of the rich against the poor, or of those who have some property against those who have none at all."5 That property and wealth might become so unequally distributed as to endanger the separation of powers and the inalienable rights of citizens and corrupt the very government designed to protect them is, therefore, a possibility that we might reasonably foresee.
That the power of wealth, if unchecked, might threaten the separation of powers is a sufficient reason for the structure of government planned in Philadelphia. In the same way that contenders in a free market strive to subdue rivals and must, therefore, be regulated, so, too, may we anticipate that factions within our society may employ every means at their disposal to secure their interests to the detriment of the people as a whole and must, therefore, be held in check. Whatever solutions deliberation may suggest as necessary and proper must, however, arise from within the governing system itself.
But this will require the vigilance of all people. It may be assumed that, as the United States of America develops and takes its place among sovereign nations, with all the inevitable social, economic, and political changes associated with such development, the ways in which people are grouped and categorized will also change. Such changes will, in turn, be reflected in changes in the popular will that properly animates and gives direction to the several branches and levels of government. Therein lies a danger: that those groups and categories whose ambitions are harmed by such changes will seek to prevent them by misappropriating or disabling the very structures that preserve the liberties of all. It must be counted on, then, that the ambitions of the three departments, of the several states, and of the people themselves, will see these threats to liberty for what they are and counter them using the structures and principles herein set forth.
The Liberty of All cannot be taken for granted. It is the determination to preserve this Republic of the people themselves, and the availability of Constitutional means to protect it from the threats it will surely confront from even the well‐meaning among them, that will ensure that the Government of the United States of America will long endure.
—PUBLIUS
No one can say how the inclusion of these prescient observations and arguments in the published version of Federalist No. 51 might have influenced the evolution of America's political ethos or its jurisprudence. It now seems clear, however, that, as Madison foresaw, his scheme of governance forged in Philadelphia requires an ambition on the part of all parties to protect the interests and rights—civil rights and property rights alike—of all parties. Unless, as a later president expressed it, "the better angels of our nature" prevail, liberty might perish.
1 All quotations are from The Federalist, Modern Library College Editions, published by Random House.
2 For an elaboration of this idea, see Hill and Lynn (2008, 101–15).
3 The concept of an "equilibrium" to depict Madisonian outcomes may be uninsightful. A better conceptual framework might be provided by repeated game theory and the folk theorem, according to which any outcome can be a feasible solution if certain conditions are satisfied.
4 A contemporary source for this quote is Cassiday (2009, 35).
5 A contemporary source for this quote is Spiegel (1991, 236).
Bevir, Mark. 2010. Democratic Governance. Princeton, NJ: Princeton University Press.
Cassiday, John. 2009. How Markets Fail: The Logic of Economic Calamities. New York: Farrar, Straus and Giroux.
Chubb, John E., and Terry M. Moe. 1990. Politics, Markets, and America's Schools. Washington, DC: Brookings Institution.
Fox, Charles J. 1993. Alternatives to Orthodoxy: Constitutionalism, Communitarianism, and Discourse. Administrative Theory and Praxis 15 (2): 52 – 70.
Galbraith, James K. 2008. The Predator State: How Conservatives Abandoned the Free Market and Why Liberals Should Too. New York: Free Press.
6 Hill, Carolyn J., and Laurence E. Lynn, Jr. 2008. Public Management: A Three Dimensional Approach. Washington, DC: CQ Press.
7 Shane, Peter M. 1995. Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking. Arkansas Law Review 48 : 161 – 214.
8 Spiegel, Henry William. 1991. The Growth of Economic Thought. 3rd ed. Durham, NC: Duke University Press.
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By Laurence E. Lynn
Reported by Author
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