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Administration & Society 45(5) 610 –624

© 2013 SAGE Publications DOI: 10.1177/0095399713497989

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Disputatio Sine Fine

America’s “Broken Government”: What Would James Madison Say?

Laurence E. Lynn Jr.1

Editor’s Note The DSF contribution for this issue comes from Laurence E. Lynn Jr. of the Lyndon B. Johnson School of Public Affairs at the University of Texas, at Austin. It was delivered as the Charles H. Levine Memorial Lecture in 2012. I asked him to allow us to publish it because I think it contains the most important message that the field of public administration needs to hear, absorb, and act upon. That is—we study, teach, and practice within a government NOT of “separated powers,” but rather as James Madison intended, a government of shared or overlapping powers. Richard Neustadt said it well with the phrase “separate institutions but shared powers.” But our theories, research, and practice seem to me, with only a few exceptions, to fail to grasp this most fundamental of realities. Instead, we tend to think and act as though our field of study and practice exists in a vertical and unitary system more akin to the unitary and vertical corporation model. Unfortunately, as Dwight Waldo once remarked: “There is only one unitary form of government in our entire political system—the council-manager form of government.” Sometimes I wonder if we will ever “get it.” Perhaps there is some hope. Professor Lynn drives that point home very effectively.

1University of Texas at Austin, TX, USA

Corresponding Author: Laurence E. Lynn Jr., Lyndon B. Johnson School of Public Affairs, University of Texas at Austin, Texas, TX 78712, USA. Email: [email protected]

497989 AAS45510.1177/0095399713497989Administration & SocietyLynn research-article2013

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Abstract

It has become impossible, or so it seems, to reach agreement on reasonable solutions to the problems confronting American government. Many claim that our political system is broken, our unique Constitutional scheme of governance - separation of powers, checks and balances, federalism, pluralism—dysfunctional or obsolete. Would James Madison, the principal author of that scheme, agree? It Truem the way our political system works can undermine the general welfare. Often our politics seem farcical. Bur Madison would know why. Our governing structures do not fail. We, the people, do. Liberty and justice cannot be secured, Madison argued, unless the people embrace the principle that the stronger parties among them submit to a government that protects all parties, the weaker as well as themselves. When the people abandon this principle - when, for example, wealth rules and joblessness persists - liberty and justice for all, the goals of our republican democracy, are in jeopardy.

Keywords Madison, Federalist No. 51, separation of powers, checks and balances, Adam Smith

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Preamble to U.S. Constitution.

Suppose the Founders’ spirits were to ask us: “About that ‘more perfect union’,” “about ‘domestic tranquility,’ how are we doing?”

“Alas,” we might have to say, “it’s been worse, but with a bit more time, we might yet reach a new low.”

Stress fractures in the Founders’ scheme of governance have become more noticeable in recent years. Sources as varied as CNN, the Center for Public Integrity, and Scientific American magazine, as well as a recent book by a U.S. Court of Appeals judge, have proclaimed that our government is broken.

In its feature, “Our Broken Government,” the Time magazine author remi- nisced: “I remember when I first worked in our Washington bureau in the late

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1980s being amazed at the easy camaraderie that existed across the aisle in Congress. The public jockeying seemed more like acting.” The memories of my decade in Washington are the same. Moderates in both parties were among the most influential members of Congress and in the other branches of government. Now, a document famous for having been conceived in compro- mise, the Constitution, is invoked by powerful factions who proclaim that, unlike the Founders they revere, they will never compromise on their principles.

Perhaps all this handwringing is only the media echo chamber doing what it does. It is harder, however, to ignore surveys by the Pew Research Center for the People and the Press, which document the extent to which the people’s trust in their government and in its political institutions, which have been declining of decades, reached an all-time low just before the 2010 midterm elections. It has not shown much recovery since.

Broken government is one of the rare issues that is bipartisan. Left and right prophesy doom, one because we have too much government, the other because we have too little. Veteran legislators from both parties have decided to give up their seats rather than seek re-election, launching another lament: “the disappearance of the center.” Not only can the center not hold, as the poet Yeats puts it, the center is not even there.

In a new book, a judge of the U.S. Court of Appeals argues that, owing to failures to compromise by left and right, issues once left to the people have increasingly become the province of the courts, eroding the role of our repre- sentative institutions and, thus, leaving us bereft of our democratic liberties. As political scientists tell us, the more difficult it is to create consensus, the greater the threat to democratic stability.

Much of our current politics is what I would call “pre-Constitutional.” The early Americans revered by a large segment of voters are not those in Philadelphia in 1787, but those who settled the Massachusetts Bay Colony in the early 17th century, 150 years earlier. The Puritans were not seeking what the Founders sought, namely, liberty and justice for all, not the indi- vidualism that is America’s most conspicuous trait, but a community of believers in which the Biblical meanings of moral and immoral were strictly enforced. Imagine the Constitution if it had been drafted by the heirs of John Winthrop, not by the likes of James Madison. In a recent Atlantic article, James Fallows said, in the same vein, that perhaps never in the his- tory of our republic has politics been so closely aligned with religion.

In the light of these developments, what could the Founders have been thinking? Has their scheme become obsolete, as many claim?

These are more than rhetorical questions. The United States has long been a puzzle to its admirers and detractors across the world. In the second decade of the 21st century, however, we have become more puzzling than ever, at

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home and abroad. How are we to account for what historian Eric Foner has termed “the riddle of America” (Foner, 1984, p. 57)?

Over a long period, students of American political development and American exceptionalism have offered various explanations for America’s paradoxical combination of apparent “statelessness” and its production of often stunningly positive policy outcomes domestically and internationally. Explanations range from the inherent weakness of its institutions to its dis- tinctive anti-statist ideology to social issues such as racial, ethnic, and reli- gious divisions.

Whatever the explanation, the Founders’ system is clearly vulnerable to dysfunction. The debt crisis of 2011 “revealed a number of weaknesses in the political system,” said conservative Washington Post columnist Michael Gerson (2011), whose views were widely shared. The presidency was weak- ened when one party took “a routine procedure—the debt-limit increase— and [turned] it into a powerful policy lever.” That party had come to be dominated by an intransigent faction that attained a partisan veto over prag- matic solutions to the crisis. As a result, the policy that was enacted would hurt the poor and the unemployed the most, make the revival of a struggling economy much more difficult, and presage rising debt levels due to higher interest costs on existing Federal debt. Public opinion polls revealed extraor- dinary anger among people who expected better from their leaders. Ideological polarization of the two political parties made serious discussion of the most important issues of taxation and entitlements literally impossible. “[A]fter this spectacle,” Gerson asked, “why would a credit rating agency, a foreign investor or an American voter have confidence in the ability of the American political system to confront those issues?”

I argue that, properly understood, the structural features of America’s con- stitutional scheme of self-governance, largely credited to founder James Madison, provide a necessary but insufficient explanation for why America can supply “the defects of better motives,” in Madison’s words,1 while also tolerating the reflections of baser motives.2

These failings—on near-fatal display as Abraham Lincoln was gaining the presidency on the eve of the Civil War—seemed to be gaining strength again during America’s 2011 “debt/spending/deficit crisis.” But many readings of the words of the Founders, and especially of Madison, have neglect passages that add essential qualifications to their most famous statements, which emphasize the structures of government. These qualifications make it clear that the success of America’s “compound republic” (Madison’s term) was intended to depend not only on the capacity of its basic governing structures but, in extremis, on the virtues, the inherent fairness, of “the people.” Competence and virtue are evi- dent in American history, but neither of them is a certainty.

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“The Political Hand”: Madison’s Institutional Design

In the Federalist, Nos. 47 and 51, Madison explains the institutional design incorporated in the then-draft Constitution. In Federalist 47, he examined “the particular structure of this government and the distribution of . . . power among its constituent parts,” that is, among its three “departments”: legisla- tive, executive, and judicial (p. 312).3 His objective was mainly to counter the criticism that the powers of the three branches were overlapping, not strictly separate. His argument that none of the colonies, nor the government of Great Britain, featured such strict separation, nor did Montesquieu, author of the tripartite scheme, required such separation.

Checks and Balances

In the Federalist No. 51, “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments,” Madison explains the structural key to understanding American democracy. In that famous essay, Madison addresses the question: How shall the separation of powers be maintained in practice? His argument is a passionate defense of liberty and an elegantly reasoned justification for the structures in the draft Constitution, his analysis a splendid polemic and a sophisticated example of institutional design. A balance of power will be secured by an “interior struc- ture” (p. 336) of checks and balances between the separate departments (branches) of the government.

Madison’s premise is that “each department should have a will of its own” (p. 336). While that result might be secured by giving each depart- ment an entirely independent base of power among the people, practical considerations—ensuring a qualified judiciary and an executive with suf- ficient authority and resources to act—dictate that “some deviations . . . must be admitted” (p. 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. (p. 337)

Madison’s combination of separated powers and checks and balances is why Dwight Waldo and other seminal scholars of American public adminis- tration, many with intellectual roots in European universities, believed that European administrative thought and practice was inappropriate for the emerging American administrative state. It explains, too, why Walter Kickert and other Europeans argue that American administrative thought and practice

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are not automatically transferable to European and other non-American con- texts (Lynn, 2011).

Madison and Adam Smith

A significant exception to the American aversion to foreign doctrines was Adam Smith. The resemblance between Madison’s institutional design and the ideas of Smith concerning the virtues of collective action, in his case mar- kets, guided by a competition of interests is no accident. Madison and other American Founders were familiar with Smith’s The Wealth of Nations and shared his liberal values. As a consequence, according to David Prindle (2004, p. 223), “Madison believed that, in politics as in commerce, competi- tion among self-interested participants, if correctly structured, could produce republican virtue.” Prindle continues,

Madison is a philosopher of regulated conflict, but he is not an advocate of amoral struggle [as some have contended];4 he intends the competition his system creates to force self-interested individuals to become partisans of public virtue. As with Smith, it turns out that given the right sort of social order the evident tendency of men to pursue their own interest is a boon, not a problem. (p. 234)

In the light of the financial and fiscal crises beginning in 2008, the truth of that proposition is, as already noted, far from clear, however.

The checks and balances in the Constitution itself are familiar to all stu- dents of American government and need not be repeated here. Madison, how- ever, also made reference in The Federalist 51 to “subordinate distributions of power”:

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. (p. 337)

Although not often interpreted as such (or at all), the concept of subordi- nate 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 and resulting in what has been called “the diffusion of sovereignty.” (Price, 1965)5 These subordinate checks and bal- ances 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

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Senate and the House and the nominating practices of political parties (Hill & Lynn, 2009).

Four categories of subordinate checks and balances encompass a wide swath of what Madison called “the whole system of human affairs”: checks by one branch on another (example: legislative and legislatively authorized oversight and investigation); checks that operate within the branches of government (example: inspectors general); checks by “the people,” that is by private citizens and organizations, on the branches of government (example: freedom-of-information and government-in-the-sunshine acts); and lawful delegations to or acknowledgments of power and influence of private individuals or organized entities (example: Federal False Claims Act). These sorts of checks have a pervasive influence on the character and extent of government’s capacity to deliberate, decide on, and implement how the manifold expression of public interests will be determined and fulfilled.

Veto Players

The implications of this complex system of checks and balances are illumi- nated by a simple veto player analysis (Tsebelis, 2002). A veto player is a political actor with the power to prevent an action from being taken or a policy from being adopted. The U.S. Constitution establishes three institu- tional veto players in the lawmaking process: the senate, the House of Representatives, and the president; any one of them can prevent (“veto”) the enactment of a law. In the event of a legal challenge to the constitutionality of a law or its provisions, the Supreme Court is also an institutional veto player.

Additional veto players, termed partisan veto players, may be generated by the political process itself, including the process of formally making or informally acknowledging subordinate distributions of power. As was dem- onstrated in the 2011 American debt crisis, it was not the House of Representatives as an institution but the Republican Party as the majority party within the House that could veto action on debt ceiling legislation. Not only that, a cohesive faction within the Republican Party, the so-called “Tea- Party conservatives,” was large enough and sufficiently cohesive to exercise a de facto veto over the Republican Party’s position on various debt ceiling relief proposals. In the Senate, in contrast, the Democratic Party held the majority and was a partisan veto player in that body.

The situation is even more complicated in the Senate. That body has adopted a rule that passing significant legislation requires 60 (of the 100 pos- sible) votes, that is, a supermajority. Thus, any block of 41 senators can become a partisan veto player on a given legislative proposal. Furthermore,

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any senator may, on a given occasion, become a partisan veto player by posi- tioning himself or herself as the “41st senator” holding out for a particular provision or “deal.” In general, any faction that acquires sufficient influence to block action by an institutional veto player becomes a partisan veto player. The identity of such powerful factions can vary widely from issue to issue and from one Congress to the next (as the dramatic shift of legislative power from Democrats to Republicans between 2008 and 2010 illustrates).

A revealing example of how this system of checks and balances works is provided by the attempt by the Clinton administration to implement an administrative reform adopted in Great Britain, the so-called “Next Steps” reform. This reform mimicked corporate management by creating individual agencies headed by chief executive officers (CEOs) to handle distinct gov- ernmental activities on behalf of ministries, each within a regulatory frame- work that included features such as performance measures and targets. Although the CEOs were civil servants, their pay was to be based on meeting targets, and removal for poor performance was possible in principle.

The Clinton administration called its version of such agencies, operating under cabinet-level departments, performance-based organizations (PBOs). The idea was to have performance agreements that required the administra- tion to commit to provide specific budgets for the period of years covered by the agreements and allow the CEOs considerable latitude in how to use them. However, Congress, under pressure from unions representing federal govern- ment employees, refused to surrender its authority over the operations of public agencies. Moreover, the Constitution forbids one Congress from bind- ing the actions for future Congresses. Owing to America’s constitutional scheme of governance, PBOs never had a chance.

Madison and the other Founders believed that their exceptional scheme of governance would tend toward balance, or equilibrium, among its myriad fac- tions and interests. 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 among rival interests as necessary to meet ordinary and extraordi- nary circumstances. When the political branches of government have been in the hands of different political parties, the resulting gridlocks have tended to reflect divisions among the people themselves: ideological and interest-based conflicts that persist until greater clarity and a sense of direction emerge.

The extent to which Madison’s argument on behalf of the equilibrating mechanism, checks and balances, depends on the overall structure of what Madison terms “the compound republic of America” (p. 339) cannot be overemphasized, however. Both federalism—all those state and local gov- ernments (so long, Madison insists, as they are of adequate size)—and plural- ism—all those “parts, interests, and classes of citizens” (so long, Madison says, as no one faction can dominate the others)—together with a judiciary to

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ensure the rule of law and the just redress of grievances, are, in the Madisonian system, essential to securing liberty and justice for all. It is the entire scheme, not just a few constitutional formalities, which will ensure “that the rights of individuals, or of the minority, will be in little danger from the interested combinations [comprising] the majority.” (p. 339)

Will Structures Alone Secure Liberty and Justice?

Yet it is Madison’s scheme which, as we have already noted, produces so many puzzles in the minds of Americans as well as of observers elsewhere, nurturing the impression of statelessness. Whenever the American political system appears to be “out of equilibrium,” as has arguably been the case in recent years, citizens may become restive and express a lack of trust in their governing institutions.6 In the absence of trust and approval, governments have fewer resources—of loyalty, skill, forbearance, and funds—to govern. Does the Federal government’s chronic failure to address its long-run fiscal imbalances demonstrate that Madison’s finely wrought handiwork is failing? Great Britain’s unified system was able to muster the political will to embrace austerity and to overhaul its system of financial regulation. Without judging the wisdom of its policies, it is evident that a scheme of governance less encumbered with veto players produced a decisive outcome when necessary. America’s government could not do that.

The Defect of Base Motives

The problems of governability, accountability, responsiveness, and legitimacy that have been piling up in America make an 18th 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 fair- ness that legitimizes its outcomes or socially just outcomes that legitimize its procedures.7 But short of a Jacobin revolution, whose only contemporary ava- tar appears to be the “primitive libertarian philistines” (Fox,1993, p. 56) 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 as a revolution.

Whatever one’s ideology on the virtues or vices of the American republic, the conundrum noted by Madison himself—not enough controls on power allows for abuse and arbitrariness, too many checks and balances unduly restricts government’s capacity to act to realize policies—cannot be avoided. How, then, are the problems of the American republican democracy to be addressed? Should Americans remain resolved to confront such problems using the scheme devised by Madison and his colleagues for just such pur- poses, as has been done to confront the crises that began in 2008? It is not an

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academic question. The possibility of global depression has been avoided, but barely and with many unacceptable consequences.

But the issue is even deeper and more complicated. 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. 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 (ACA), background checks for gun control, sealing our borders against ille- gal immigrants. But the capillaries—the minimum loss ratio provisions of the ACA or the design features of background checks—of specific authorities, appropriations, regulations, and guidelines are of vast but much less well- understood importance and are closely monitored by activist interest groups.

The following detailed example illustrates the point. In the summer of 2011, the Federal Aviation Administration was forced to shut down, leading to the immediate unemployment, on furlough, of 74,000 employees of the agency and its contractors. The reason was a disagreement between the Senate and the House on certain provisions in legislation, passed in 2007, that would provide long-term authorization for the funding of FAA operations. Pending a resolution of this difference, the FAA operated under a series of short-term “continuing resolutions” that ensured continuation of existing funding levels. Two constitutional checks and balances come into play here. First, all appro- priations laws must originate in the House. Second, both houses must agree on the text of a law for it to be sent to the president for signature.

In the summer of 2011, however, the chair of the House Transportation and Infrastructure Committee slipped into the short-term funding bill a provi- sion that cut funds for the Essential Air Service program, which subsidizes the operations of rural airports that otherwise cannot continue to operate. He also added a provision that would reverse a regulatory ruling that airline workers can form a union if a majority of ballots favor it, the same rule that governs most workplaces. This had the effect of restoring the status quo in which employees not voting were counted as “no” votes. Other provisions seemed directed at the interests of particular Democratic Senators. The Senate refused to accept—vetoed—these changes to the continuing resolution, forc- ing a shutdown of the agency.

A Washington Post journalist subsequently reported as follows (Milbank, 2011).

Congressman John Mica, the Florida Republican blamed for single-handedly shutting down the Federal Aviation Administration, sounded like a beaten man when he called me Thursday evening. The usually biting chairman of the House transportation committee spoke with remorse about the standoff, which put 74,000

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people on furlough or out of work, caused delays to airport-safety projects, and cost hundreds of millions of taxpayer dollars.

“I’ve had a brutal week, getting beat up by everybody,” Mica told me, minutes after Senate Majority Leader Harry Reid announced a deal that would end the shutdown and avoid the cuts to regional air service that Mica wanted. I didn’t know it would cause this much consternation,” Mica said . . . “So I don’t know what to do, what to say.”

As the Post journalist, Dana Milbank (2011), put it, “With no goodwill between the two parties, or the two chambers, ordinary disagreements mush- room into governing crises, with unpredictable results.”

The extraordinary, often deeply divisive, and continuously increasing complexity of the issues facing American policy makers helps explain the growing significance of constitutional checks and balances and the prolifera- tion of subordinate checks and balances.

The current volatile array of groups and categories of Americans, each pursuing its own interests, has led to deep fractures in the popular will. However, this is neither a valid argument against Madison’s scheme nor a reason for its amendment in any particular way. To be legitimate, the solu- tions to the contemporary ills of American democracy must from within the constitutional system itself.

The extent to which the outcomes of American democracy reflect how the nation’s income and wealth are distributed among “the people,” including business corporations the spending on election campaigns of which now enjoys the free-speech protection of the First Amendment, raises an urgent question. To an increasing extent, American democracy’s most basic pro- cesses, political communication, deliberation, and election, are fueled by money, and its concentration distorts these processes’ wealthy individuals, and corporations can speak much more loudly and often to politicians needing funding for their election campaigns than can other individuals. Can a democ- racy with seriously imbalanced income and wealth produce social justice?

This is a political question, of course. One suggestion is that the growing perception of capitalism’s weaknesses might finally render Warner Sombart’s question, Why is there no socialism in America?, moot. The current eco- nomic crisis, wrote Miguel Requena in 2009, “puts Sombart’s essay on the table for discussion today, a 100 years after it was written.” He speculated about the renewed interest in social democracy in the United States in the light of the impact Americans were suffering as its recession deepened. The reaction of conservative populists to greed on Wall Street and of liberals to the consequences of deregulation and the lack of transparency suggest at least the possibility of eventual political realignments favoring the left,

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notwithstanding the clamor for reductions in spending, debt, and deficits. Stagnant wages, prolonged joblessness, and rising income inequality and its visible symbols were having their effects, too.

Liberty and Justice

The Founders, however, were wise enough to understand the vulnerability of their own handiwork. Madison would not be fazed by America’s drift toward plutocracy. In addressing the many other problems of our democracy, he would note that checks and balances have served in the past to assist in dra- matic reductions in American poverty and income inequality, and they can do so again. But he would insist, what Americans need now is not different structures but virtue among the people. Madison’s argument in The Federalist No. 51 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. (p. 340, italics added)

Madison thus comprehended here, and elsewhere in The Federalist, that, even within the constitutional scheme in the draft Constitution, 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.

Alexander Hamilton concurred. Among his most famous utterances in The Federalist No. 70 is that “Energy in the Executive is a leading character in the definition of good government.” This sentence has led many to suppose that America is an executive-oriented, managerialist state (Lynn, 2011). This sup- position, however, overlooks another, equally important Hamiltonian pre- cept. To ensure that citizens enjoy “safety” from tyranny of the sort that had led to the Declaration of Independence, administration must, said Hamilton, exhibit a “due dependence on the people [and] a due responsibility [in a republican sense].” In other words, the new nation must not tolerate the recreation of European-style central institutions that the Founders saw as threatening liberty and property.

Appeals to Madison’s evident respect for Adam Smith’s “invisible hand” to supply the defect of better motives, moreover, does not undermine Madison’s

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appeal to virtue. In The Wealth of Nations, Smith foresaw not only the pros- pect of economic transformation and dramatic enhancements of national wealth but, as well, the necessity of regulating the agents of such transforma- tion for the preservation of civil rights and for the just distribution of its benefits. Smith cautioned,

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.8

He acknowledges,

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.9

It is ironic, but true, that the legitimacy of American political institutions, sustained as they are by the rule of law, depends on an unwritten and unen- forceable faith in law and lawful institutions. Legal scholar Michael Mullane puts it this way:

When you get right down to it, the rule of law only exists because enough of us believe in it and insist that everyone, even the nonbelievers, behave as if it exists. The minute enough of us stop believing, stop insisting that the law protect us all, and that every single one of us is accountable to the law—in that moment, the rule of law will be gone. So I cling to my belief in the rule of law. It is probably the single greatest achievement of our society. It is our bulwark against both mob rule and the overweening power of the modern state. It is the rule of law that governs us, that protects each one of us when we stand-alone against those who disagree with us, or fear us, or do not like us because we are different. It is the strongbox that keeps all our other values safe.

The riddle of America, then, is explained this way: The authority and, of equal importance, the legitimacy of American governing institutions and their outcomes is the faith placed in them by citizens, elected officials, and judges. Such faith requires a sense of responsibility—virtue—on the part of all to the principles that protect all. America’s many recent crises demonstrate that if virtue is lacking, not only our own liberty and justice but the well- being of peoples far distant are in jeopardy.

Sustaining that sense of responsibility of all to all is the continuing politi- cal duty of the people themselves. If he could observe contemporary politics

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in America, Benjamin Franklin might well say, as he did on the final day of the Constitutional Convention, that every member of our democracy should “doubt a little of his own infallibility.” And Madison would surely remind us that, if our structures fail, we, voters, candidates for office, and officeholders, must become no less than partisans of virtue, lest we lose altogether the abil- ity to sustain liberty and justice for all.

Author’s Note

An abridged version of this article was originally presented as the Charles H. Levine Memorial Lecture at the School of Public Affairs, American University, in 2012.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publica- tion of this article.

Notes

1. The “defects” of better motives refers to the private interests of officeholders which, because they are constituted to be “rival and opposite,” supplement “the people” as a check on tyranny by checking each other. See (Allen & Cloonan, 2009, pp. 248-249).

2. This essay draws on, and adapts material from, Bertelli and Lynn (2006), Hill and Lynn (2009), and Lynn (2011, 2012, 2013).

3. All quotations are from The Federalist, Modern Library College Editions (soft- cover), published by Random House, n/d.

4. As Prindle (2004) analyzes it, the argument is between those who privilege Madison’s views concerning the tendency of his political scheme to generate virtuous officials and Madison’s mechanistic/Smithian view that “ambition must be made to counter ambition.”

5. For an elaboration of this idea, see Hill and Lynn (2009), pp. 101-115. 6. Immediately following the legislative agreement that ended the debt crisis in

August 2011, 82% of respondents in a popular public opinion poll said that they disapproved of how Congress was doing its job, the highest disapproval rate on record (New York Times/CBS News Poll, August 2-3, 2011; at http://www.nytimes. com/interactive/2011/08/05/us/politics/20110805_Poll-docs.html?ref=politics.

7. The concept of an “equilibrium” to depict Madisonian outcomes may be unin- sightful. A netter 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.

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8. A contemporary source for this quote is Spiegel (1991, p. 236). 9. A contemporary source for this quote is Cassiday (2009, p. 35).

References

Allen, W. B., & Cloonan, K. A. (2009). The Federalist papers: A commentary: “The Baton Rouge lectures.” New York, NY: Peter Lang.

Bertelli, A. M., & Lynn, L. E., Jr. (2006). Madison’s managers: Public administra- tion and the constitution. Baltimore, MD: Johns Hopkins University Press.

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Author Biography

Laurence E. Lynn Jr. is the Sid Richardson research professor at the Lyndon b. Johnson School of Public Affairs, University of Texas at Austin and the Sydney Stein, Jr. professor of Public Management Emeritus at the University of Chicago. He is a frequent contributor to Disputio Sine Fine.