I The Constitution and the Supreme Court ‘This chapter deals with the creation of the American Constitution and with the role of the Supreme Court in interpreting the Constitution. We have two central concerns: (1) What was the founding all about? (2) What is the power of the Supreme Court, and when itis interpreting the Constitution, what does it do, exactly? We begin with history A. THE ORIGINS OF THE U.S. CONSTITUTION ‘The Declaration of Independence was signed in 1776, Here are its most famous words: We hold these truths to be selfevident, that all men are ereated equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness, — That to secure these righis, Govern- ‘ments are instituted among Men, deriving their just powers from the consent of the coverned, — That whenever any Form of Government becomes destructive of these ends, itis the Right of the People to alter or to abolish it, and to institute sew Goverinent, laying ils foundation on such principles and organizing its powers in stich form, as fo them shall seem most likely to effect their Safety and lappiness Hostilities with England substantially ceased in 1781 after the Yorktown campaign; the American Revolution was formally completed in 1783 with the signing of a final peace treaty with England. In February of 1781, the thirteen colonics ratified the Articles of Confederation, under which they lived for seven years. The Constitution was written in 1787 and ratified in 1789. Two years later the bill of rights was added. Why did the states find it necessary to adopt a new Constitution? What were the problems for which the Constitution was supposed a remedy? Did the Con- stitution embody the principles of the American Revolution, or did it betray those 12 1. ‘The Constitution and the Supreme Court principles? Views about the Constitution and its framers span a wide range. Many Americans since have:seen the framers as intellectual. glants, equipped with extruordinary foresight vision, and fails in-iadividual rights and selecale, whe woste able tovise above the squabbles ofthe day, orsomewhat totake advantage of them, in order to institute into law principles that are timeless or at least endur- ing. See C. Bowen, Miracle at Philadelphia (1986); J. Fiske, The Critical Period ‘of American History (1888). To those who think this way, the framers, and especially Alexander lamilion and James Madison (but others too), were able tocombine deg theoretical nights wih practical sense, allowing thet to pr dc yw xlertanings of pital institutions, of seFgovemment and of individual rights To skepti much of the Constitution is best understood as a series of ad hoc compromises, designed to rescue an immensely difficult situation and to resolve very specific issues over which the yourg county was divided. The compromises workel —or-at least ware tmade to work - bul Compromises they were. (Ta tuurnples are the maintenance of slavery and the imiseose power of small tates.) See M. Farrand, The Framing of the Constitution of the United States (1913). A third strand in American historical thought treats the Constitution as a product, at least in part, of elitist conservatives who, far from trusting the people and believing in selfrule, intended to protect private property, and the position of the rel: ‘ly well-to-do, from the workings of democratic politics. See W. Hol- ton, Unruly Americans and the Origins of the Constitu (2007); C, Beard, An Economic Interpretation of the Constitution of the United States (1913). This third view could be given sympathetic or less sympathetic treatments, “There are, of course, numerous variations on these general approaches. For discussion, see M, Klarman. The Framers’ Coup (2016); G. Wood. The Creation of the American Republic, 1776-1787 (1969); G. Wood, ed., The Confederation and the Constitution (1978); G. Wood, The Radicalism of the American Revo- lution (1993); R. Horwitz, ed., The Moral Foundations of the American Repub- lic (2d ed. 1979); J. G. A. Pocock, The Machiavellian Moment (1975); Kloppen- berg, The Virtues of Liberalism: Christianity, Republicanism and Ethics in Early American Political Discourse, 74 J. Am. Hist. 9 (1987). To understand the Constitution and the surrounding debates on its purposes and effects, it is useful to have some understanding of the Articles of Confeder- ation, which the Constitution replaced. The Articles were adopted in order to ensure some unification of the states regarding common foreign and domestic problems, but the overriding understanding was that the states would remain Sovereign, The Articles begin without any kind of poetry ‘To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting tiles of Confederation and perpetual Union betwen the sates of New Hamp- shire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Caro lina, South Carolina and Georgia Notice that the Articles are formed by the states and their delegates — not by We the People, (Compare, if you would, the soaring start of the Constitution that followed the Articles, produced just sixteen years later.) The very first atticle of the Atticles did give an enduring name to the Confederacy: “the United States of America.” But the second more or less took it back, announcing that “each stateA. The Origins of the U.S. Constitution 3 retains ils sovereignty, freedom, and independence, and every Power, Jurisdic- tion, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” ‘To be sure, a number of powers were conferred on “the United States in Congress asscmbled.” These powers included “the sole and exclusive right and power of determining on peace and war’; the authority to resolve disputes between the states; the power to regulate “the alloy and value of coin struck by their own authority, or by that of the respective states”; and the authority to control dealings with Indian tribes, to establish or regulate post offices, and to appoint naval and other offices in federal service, But at least by modem slan- dards, there were conspicuous gaps. ‘Two of the most important powers of the moder national government were missing altogether: the power to tax and the power to regulate conmmerce. Moreover, two of the three branches of the national government were absent, ‘There was no executive authority. (One reason was deep distrust of the idea of anything like a king.) There was no general national judicial authority; the only relevant provision authorized Congress to establish a national appellate tribunal to decide maritime eases, OF course, there was no bill of rights (though it should be noted that the absenee of a bill of rights was not in any way the impetus behind the Constitution, and indeed the federalists thought, atthe tine of ratification, that bill tights didnot belonginthe Constitution at all As experience under the Articles of Confederation accumulated, many leading politcal figares became deeply disatsfied with the performance ofthe gover: ‘ment it created. In fact, the situation appeared to be disastrous. Among the complaints were that states refused to provide money owed to the federal gow emment, refused to comply with treaties entered into by the United States, interfered with the commerce of other states, forgave debts, and isstied inflated paper currency. ‘These grievances came in the context of economic decline, which produced a general sense of unease. Just a decade after the American Revolution, the nation’s high ideals and aspirations appeared doomed. James Madison wrote that people “unanimously agree that the existing Confederacy is tottering to its foundation,” and added, “Itis not possible that a government ean last Jong under these circumstances.” James Madison to Kdnnind Randolph, February 25, 1787, in Founders Online, National Archives, hitp:/founders.arch- ives.gov/documents/Madison/01-09-02-0154. In April 1787, preparing for the Constitutional Convention, Madison wrote himself a memorandum that deseribes the situation from the point of view of those advocating substantial changes: 1. FAILURE OF ‘THE STATES TO COMPLY WITH ‘THE CONSTITUTIONAL REQUISITIONS. This evil has been so fully experienced both during the war and since the peace, results so naturally from the number and independent authority ofthe Sats and hasbeen so uniformly exemplified in every similar Confederacy, that it may be considered as not less radically and perma rently inherent in than i is fatal to the object of the present system, 2. ENCROACHMENTS BY THE STATES ON THE FEDERAL AUTHOR- TTY, Examples of this are numerous and repetitions may be foreseen in almost every case where any favorite object ofa State shall present a temptation. Among these examples are the wats and treaties of Georgia with the Indians. The unl cgensedl compacts between Virginia and Maryland, and between Pennsylvania & New Jersey ~ the troops raised! and to be kept up by Massachusetts1. The Constitution and the Supreme Court. 3. VIOLATIONS OF THE LAW OF NATIONS AND OF ‘TREATIES. From the number of Legislatures, the sphere aflife from which most of their members are taken, and the circumstances under which their legislative business is carried on, irregilarties of this kind must frequently happen. Accordingly nota yearhas passed ‘without instances of them in some one or other ofthe States. The Treaty of Peace — the treaty with France — the treaty with Holland have each been violated. [See the complaints to Congress on these subjects) The causes ofthese iregularites must necessarily produce frequent violations of the law of nations in other respects ‘As yet foreign powers have not been rigorous in animadverting on us. This moderation, however cannot be mistaken for a permanent partiality to our faults, or a permanent security aint tho disputes with other nations, which being among the greatest of public calamities it ought to be least in the power of any part of the community to bring on the whole. 4. TRESPASSES OF THE STATES ON THE RIGHTS OF EACH OTHER, hese are alarming symptoms, and mey be daily apprehended as we are admor ished by daily experience. See the law of Virginia resiricting foreign vessels to ceftain ports of Maryland in favor of vessels belonging to he 0 ‘of New York in favor of the same. Paper money, instalments of debls, occlusion of Courts, making property a legal tender, may likewise be deemed aggressions on the rights of other States. As the Citizens of every State aggregately taken sland more or less in the relation of Greditors or debtors, to the Citizens of every other State, Acts of the debtor State in favor of debtors, affect the Creditor State, in the same manner as they dois own eilzens who ate tlatvely creditors towards other eitizens This remark may be extended to foreign nations. [the exclusive regulation ofthe value and alloy of coin was properly delegated to the federal authority, the policy of it equally requires a controul on the States in -he eases above mentioned. It must have been meant I. to preserve uniformity n the circulating medium throughout the nation. 2, to prevent those frauds on the citizens of other States, and the subjects of foreign powers, which might disturb the tranquility at home, of involve the Union in foreign contests, ‘The practice of many States in restricting the commercial intercourse with other States, and putting their productions and shamufaeturers on the same footing with those of foreign nations, though not contrary to the federal articles, is certainly adverse to the spirit of the Union, and tends to beget retaliating regulations, not less expensive and vexatious in themselves than they are destrctive of the general harmony, 5. WANT OF CONCERT IN MATTERS WHERE COMMON INTEREST REQUIRES IT. This defect is strongly illustrated in the slate of our commercial affairs. How much has the national dig ity, interest, and revenue, suffered fom this ‘cause? Instances of inferior moment are the want of uniformity in the laws ‘concerning naturalization & literary property; of provision for national seminaries, for grants of incorporation for national purposes, for canals and other works of general uility, which may at present be defeated by the perverseness of particular States whose concurrence is necessary. 6. WANT OF GUARANTY TO THE STATES OF THEIR CONSTITU- TIONS & LAWS AGAINST INTERNAL VIOLENCE. The confederation is silent on this point and therefore by the second article the hands of the federal authority are tied. According to Reputlican Theory, Right and power being both vested in the majority, are held to be synonimous. According to factand experience a minority may in an appeal to force, > an over-match for the majority, 1. if the rninority happen to include all such as possess the skill and habits of military lie, & such as possess the great pecuniary resources, one-third only may conquer the remaining two-thirds, 2. one-third of those who partiefpate in the choice of the rulers, may be rendered a majority by the accession of those whose poverty excluclesA. The Origins of the U.S. Constitution them froma right of suffiage, and who for obvious reasons will be more likely to join the standard of sedition than that ofthe enlablshed Cavernment ula slavery exists the republican ‘Theory becomes sli more fallacious. 7. WANT OF SANCTIONTO THE LAWS, AND OF COERCION IN ‘THE GOVERNMENT OF THE CONFEDERACY. A sanction is essential to the idea of law, as coercion is to that of Government. The federal system being destitute of both, wants the great vital principles of a Political Constitution. Under the form of such a constitution, itis in fact nothing more than a treaty of amity of commerce and of allianee, between independent and Sovercign, States. From what cause could so fatal an omission have happened in the articles of Confederation? from mistaken confidence thatthe justice, the good faith, the honor, the 0 of the several legislative assemblies would render superfliotis an owdinay motives by which the laws secure the obedience of individ confidence which does h imich as the inexper ne tothe enthusiastic virtue ofthe compilers 3s of the crisis apologizes for their errors. ‘The tine which has since elapsed has had the double effect, of increasing the light and tempering the warmth, with which the arduous work may be revised. Its no longer doubted that «snanimous and punctal obedience of 13 ulepenlent dies to the acts of the federal Government ought not to be calculated on, Even during the ‘war, when external danger supplied in some degree the defect of legal & coercive sanctions, how imperfectly did the States fulfill their obligations to the Union? In lime of peace, we see already what is to be expected. Flow indeed could it be otherwise? In the first place, Every general act of the Union must necessarily, bear unequally hard on some particular member or members of it, secondly the patility ofthe member to thetr own interests ard ight, a pataity which wil be fostered by the courtiers of popularity, will naturally exaggerate the inequality where it exists, and even suspect it where it has no existence, thirdly a distrust of the voluntary compliance of each other may prevent the compliance of any, although it should be the latent disposition of all, Here are cates & pretexts which will never fail to tender federal measutes abortive. If the laws of the States vwere merely recommendatory to theit citizens, or if they were to be rejudged by County authorities, what secunity, what probability would exist, that they would be carried into execution? Is the security or probability greater in favor of the acts of Congress which depending for their execution on the will of the State legislatures, hich are tho’ nominally authoritative, in fact recommendatory only? 8, WANT OF RATIBICATION BY ‘THE PEOPLE OF THE ARTICLES OF CONFEDERATION. In some of the States the Confederation is recognized by, and forms a part of the Constitution. In others however it has received no other sanction than that ofthe legislative authority. [As] faras the union ofthe States isto be regarded as a league of sovereign powers, and not as a political Constitution by virtue of which they are become one sovereign power, so fir it seems to follow from the doctrine of compacts, thata breach of any ofthe articles ofthe Confederation by any of the parties to it, absolves the other parties from their respective Obligations, and gives them a right if they chuse to exert it, of dissolving the Union altogether. 9. MULTIPLICITY OF LAWS IN'THE SEVERAL STATES, In developing the evils which viciate the politcal system of the U.S, itis proper to include thoxe which are found within the States individually, as well a those which ditectly affect the States collectively, since the former elass have an indirect influence on the eneral malady and must not be overlooked in forming.a compleat remedy. Among {Revie then of our situation may well be ranked the mullpiely of us Rove which no State is exempt. As far a8 laws are necessaty to mark with precision the uties of thase who are to obey them, and to take from those who are to administer them a diseretion which might be abtised, their number isthe price of liberty. As far as laws exceed this limit, they are a nuisance; a nuisance of the most pestilent kind. ‘Try the Codes of the several States by this test, and what a huxuriancy of legislation6 1. The Constitution and the Supreme Court do they present. The shor period of independency has filled as many pages asthe century which preceded i Every yen almost every session, ade 2 new volume ‘This ntay be he effect part, but catanly bein part ofthe station in which the revolution has placed ts. A review the several Codes will shew that every hecesary and beful pat of the feast solaminous of them might be compressed info one tenth of the compass, and a the same time be rendered ten fold as Poy INJUSTICE OF THE LAWS OF THE STATES. [Injustice] betrays a defect sill more alarming; more alarming not merely because fir a grater ev in sel but because it brings more nto question the fundamental principle of republican Government, that fre majority who rule in sich governments are the safest Guar- dius both of public Good! and private rights, In 1786, state representatives met in Annapolis to discuss problems that had arisen under the Articles; they adopted a resolution to hold a convention in Philadelphia to remedy those problems. But the nation’s charge to the framers was much narrower than the ultimate product would suggest. The framers, chosen by state legislatures, were instructed “to meet at Philadelphia [to] take into consideration the situation of the United States, to devise such further provi- sions as shall appear to them necessary to render the constitution of the federal govemment adequate to the exigencies of the Union.” ‘The limited character of this charge proved a scrious embanassment to the framers, whose product reflected their view that it was necessary to provide not “further provisions” but an entirely new governing document whose character was not clearly propor- tionate to the weaknesses of the Articles. ‘There is therefore a sense in which the Constitution was itself an unlawful act. As noted above, the Convention disregarded the amending procedure set out in the Aticles, which required approval by ll thiteen state legislatures. The Con. stitution was instead sent to Congress, with a request thatit be sent in turn to state legislatures, The state legislatures would then send it to popularly elected state ratifying conventions ‘The Constitution changed the framework set up by the Articles of Confeder- ation in a number of ways. Among the most important changes were the creation ofan executive branch; the grant to Congress of the powers fo tax and to regulate commerce; and the creation ofa federal judiciary, including the Supreme Court and, if Congress chose, lower federal courts. The tenth amendment, added two years later, was a pale echo of the first provisions of the Articles of Confederation, deleting the word “expressly,” and it was countered by the clause granting Co gress the authority to make “all laws necessary and proper” to effectuate the enumerated powers of the federal government. Was there an underlying theory that justified this expansion of federal power? Many historians think so. They insist -hat the delegates to the Convention were responding to serious flaws under the Articles of Confederation, and that they created a document that reflected ona novel theory of self government. Others contend that the new Constitution was an effort to solve distinetly practical problems, and that it is not best seen as a theoretical project. Still others claim that many of the delegates were motivated largely by interest-group politics advanced under the cloak of high political then. State legislators had favored the interests of farmers and taxpayers against the interests of creditors and the commercial class. The latter group responded by attempting to change the structure of government so as to disadvantage the former group. See generallyConstitution 7 W. Holton, Unnuly Americans and the Origins of the Constitution (2007). For a valuable perspective, see Klarman, The Framers’ Coup, stipra Whatever one’s conchusion on these issues, there ean be no doubt that the struggle aver the design of the founding document, and also over its ratification, produced an outpouring of fresh thinking. As you read the material that follows, consider the extent to which the tinking of the framets and tatificts should influence contemporary constitutional interpretation. One of the central disputes at the Convention was disagreement over the implications of classical republican theory, fueled hy the recent memory of the American Revolution, Republican theotsts placed a prem om the ea of self government. 'The colonists were particularly influenced by the French theorist Montesquieu, who famously divided governments into three kinds: “a ‘epublican government is that in which the body, or only a part of the people, is possessed of the supreme power; monarchy, that in which a single petson governs by fixed and established laws; a despotic government, that in which a single petson directs everything by his own will and caprice.” Montesquieu, The Spirit of Laws 8 (1906), In the period that preceded the Revolution, the colonists were seized by republican thinking, which repudiated the whole idea of a monarchy, and which ended up asa challenge to hierarchies of many different kinds, See G Wood, The Radicalism of the American Revolution (rev, ed. 1998). In the long history of republican thought, many theorists stressed the impor- tance of civie virtue — the willingness of citizens to subordinate their private interes to the general good. Polis thus consisted of selene, but it was sel rule of a particular sort, SelF-rule was a matter not of puusuing self-interest, or of aggregating “preferences,” but instead of selecting the values that ought to control public and private life. Dialogue and discussion aiong the citizenry were eitical atures in the governmental process. Ina republic, political participation should he ative and frequent and uot lanied to voting oy other sear statements of preference, Civil society was to operate asa sort of teacher, inculeating virtue, and not merely as a regulator of private conduct. The model for government was the town meeting, a metaphor that played an explicit role in the conception of polities put forth primarily by the proposed Constitution's opponents, Consider in this regard ‘Thomas Jefferson’s suggestion that the Constitution should be amended in every generation, partly in order to promote general attention to public affairs this suggestion was a natural one for those who saw frequent participation and virtue as important ingredients in democratic self-government. See Letter to Samuel Kercheval, fly 12, 1816, in The Portable Thomas Jefferson 5357-558 (M. Peterson ed., 1975), For republican theorists, one of government’ tasks was to ensure the flourish- ing of the necessary public-spiritedness. Many believed in small republics and henwe a high degree of decentralization; only in small communities would it be possible to find and develop the unselfishness and devotion to the public good on which genuine freedom depends. ‘The Articles of Confederation promote such decentralization. “Brutus,” writing in opposition to the proposed Constitution, emphasized the need for homogeneity: “In a republic, the manners, sentiments, and interests ofthe people shout bessmilar If this be ot the cae, there wil bes constant clashing of opinions; and the representatives of one part will be contin- ually striving against those of the other.” 2 The Complete Antifederalist 369 (H. Storing ed., 1980). ‘The Constitution's opponents, referred to as “antifederalists,” were especially hostile to a dramatic expansion in the size and power of the national government8 1. The Constitution and the Supreme Court ‘They thought that it threatened liberty itself and that it endangered the princi- ples for which the Revolution had been fough:. A powerful national government would threaten liberty; it could be a return to monarchy. It would undermine the spirit of civie virtue, creating heterogeneity and distance from the sphere of power, both of which would undermine deliberative processes and the citizens’ willingness to subordinate their privete interests to the public good. Closely connected to this view was the antifederalists’ desire to avoid extreme disparities in wealth, education, and power. It should not be difficult to see why the antifederalists would have had at best an ambivalent attitude toward a system in which decisions were made by repre- sentatives of the people rather than by the people themselves — certainly if the representatives were not close to the people. According to one strand of republican thought, all decisions should be made in small communities or even during a face-to-face process of deliberation and debate. Such a process ‘would inculcate civie virtue in the public at lrge, virtue from which the process itself would simultaneously benefit “The antifederalists did not go so far. By 1787, allagreed thatrepresentation was necessary at both the sate and the national levels, The size ofboth governments made it impossible to conduct politica. affairs on the model ofthe town meeting, ‘The proposed Constitution’s opponerts believed that it would prevent citizens from having effective control over their representatives and deprive them of an opportunity to participate in public allairs. It would thus pose a severe threat to the underlying principle of civic virlue. Rule by remote national leaders would attenuate the scheme of representation, rpturing the alliance of interests between the rulers and the ruled. It would create a class of quasi-aristoctats, charging them with the task of directing a huge national government. ‘he anti- federalists foresaw a system in which the pecple would be effectively excluded from the world of public affairs and in which national leaders, only weakly accotintable, would have enormous discretion to make law and policy. ‘The antifederalists were also skeptical of the emerging interest in commercial development that played a prominent role in thedecision to abandon the Articles of Confederation, In the antifederalists view, commerce was a threat to the principles underlying the Revolution, for it gave rise to ambition and avarice and thus to the dissolution of communal bonds. Montesquieu, an important source for federalists and antifederalists alike, had said that “in countries where the people are actuated only by the spirit of commerce, they make a traffic fall the humane, al the moral vitaes; the most trifling things, those which humanity would demand, are there dene, or there given, only for money.” Mon- tesquieu, The Spirit of Laws bk. XX, sh. ii (spec. ed. 1984) (1751). In sum, the antifederalists attacked the proposed Constitution on the ground that it was inconsistent with the underlying principles of republicanism. ‘The removal of the people from the political process, the creation of a powerful, remote, and liberty-threatening national government, and the new emphasis ‘on commerce — all of these threatened to undermine the purposes for which the Revolution had been fought. ‘The antifederalist objections to the proposed Constitution provoked a theo- retical justification that amounted in many respects to a new conception of polities — in Gordon Wood's words, a “political theory worthy of a prominent place in the history of Wester thought.” G, Wood, The Creation of the ‘American Republic, 1776-1787, at 615 (1969). ‘That conception consisted of a reformulation of the principles of republicanism —a reformulation thatA. The Origins of the U.S. Constitution 9 attempted to synthesize elements of traditional republicanism with an emerging theory that welcomed rather than feared heterogeneity, and that understood the reality that the spirit of faction could not be eliminated, Much of that reformulation can be found in ‘The Federalist Papers — essays attcmpting to defend the proposed Constitution to the country against antifeder- alist attack. The Federalist Papers were published under the name “Publius,” but they were in fact written by James Madison, Alexander Hamilton, and John Jay. Although the papers are rightly consulted asa means of undlerstanding the theory underlying the Constitution, and the understandings of its drafters, itis important to keep in mind that the essays were designed to persuade the ambivalent. None- theless, The Federalist Papers count among the classic works in the theory of democracy and constitutionalism. ‘The Federalist No. 10 (Madison) (1787) ‘To TE Prorte or THE Stare oF New YoRk: Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their po- pensity to this dangerous vice. [The] instability, injustice, and confusion intro- thc into the public vounets, have, in trthy been the mortal scares unvlet which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. [Complaints] are everywhere heard from our most con- siderate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the nules of justice and the tights of the minor party, but by the superior force of an interested and overbearing. majority However anxiously we may wish that these complaints had no foundation, the evidence of known facts will not permit us to deny that they are in some degree true, [The] distresses under which we labor [must] be chiefly, if not wholly, effects of the unsteadiness and injustice with which a faetious spirit has tainted our public administrations. By a faction, | understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community. ‘There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. ‘There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests It could never be more truly said than of the first remedy, that i was worse than the disease. Liberty isto faction what air is to fire, an aliment without which it instantly expires. But t could not be less folly to abolish liberty, which is essential10 I. The Constitution and the Supreme Court to political life, because it nourishes faction, than it would be to wish the anni- hilation of ait, which is essential to animai life, because it imparts to fire its destructive agency. The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise i, different opinions will be formed. As long as the connection subsists between his reason and his selF-love, his opinions and his passions will have a reciprocal influence on each other; and the former wil be objeetsto which the latter wil attach them selves, The diveisity in the faculties of men, from which the rights of prop. originate, is not less an insuperable cbstacle to a uniformity of interests. Th protection ofthese faculties isthe frst cbject of government. From the protection of different and tmequal faculties ct acquiring property, the possession of different degrees and kinds of property immediately resulis; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and patties. "The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions, concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending, for preeminence and power; or to perscns of other descriptions whose fortunes Rave been interesting to the human passions, have, in turn, divided mankind nto partics, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate fortheit common. good. So strong is this propensity of mznkind to fall into mutual animosities, that where no substantial occasion prescuts itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their ent violent confits. But the most common and durable source of factions has been the various and unequal distribution of property. ‘Those who hold and those who are without property have ever formed distinct interests in society. ‘Those who are creditors, and those who are debtors, fall under a like discrim nation. A landed interest, a manufacturing interest, a mercantile interest, a mon- eyed interest, with many lesser interests, grow up of necessity in civilized nations, Sha divide them into different classes, acusted by different sentiments and views, ‘The regulation of these various and interfering interests forms the principal task cofmader legislation, and involves the spirit of party an faction inthe necessary and ordinary operations of the government, No man i allowed to be a judge i his on cause, beeause his interest would certainly bias his judgment, and, no: improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legis- [ation, but so many judicial determinations, not indeed coneeraing the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed coneeming private debts? It isa question to sich the eveditor are parties cn one side and the debtors on the other, Justice ought to hold the balance between them. Yet the parties are, and must be, themselves, the judges; and the mos! numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufacturers be encouraged, and in what degree, by restrictions on foreign manufacturers? are questions which would be differently decided by the landed and theA. The Origins of the U.S. Constitution ul ‘manufacturing classes, and probably by neither with a sole regard to justice and the public good It'is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlight- ened statesmen will not always be at the helm ‘The inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of contro ling its effects Ifa faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vole. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution, When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens, To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this forn of government can be reseived from the opprobrium tnder which it has so ong Atbored, and be recommended © the steers a adoption of mankind. By what means is this object attainable? Kvidently by one of two only. Rither the existence of the same passion or interest in a majorily at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rerxlered, by'heir number and loca situation, unable to concert an eanry io cffect schemes of oppression. If the impulse aud the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on a an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in. proportion to the number combined together, that is, in proportion as their efficacy becomes needful From this view of the subject it may be concluded thal a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischief of faction. A conmon passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of ttubulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths, Theoretic politicians, who have patronized’ this species of government, have. etroneausly supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions ‘Arepubic, by which Tmean a government in which the scheme of represen: tation takes place, opens a ciferent prospect, and promises the cure for which we "The two great points of difference between a democracy and a republic are first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.2 1. The Constituti and the Supreme Court The effect ofthe first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the tue interest of their country, and whose patriotism and love of justice will be east likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the rep:esentatives of the people, will be more Consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the cther hand, the effect may be inverted Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other reans, first obtain the sulfrages, and then betray the interests, of the people. ‘The question resulting is, whether small or extensive republics are more favorable to the clection of proper guardians of the publie weal, and itis clearly decided. in favor of the later by two obvious considerations: In the first place, itis to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against theccdbelé of @ fove and that, however large itanay be; they must be lirited fo a cerlain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being propertionally greater in the small republic, it follows that, if the proportion oft characters be not less in the large than in the sinall republic, the former will present a greater option, and consequently a greater probability ofa fit choice. In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be mo-e difficult for unworthy candidates to practice with success the vicious arts by which elections are too olten enrtied and the sulfrages ofthe people being morelive, will be more likely to center in men who possess the most attractive merit and the most dif- fusive and established characters, Itmust be confessed that in this, asin most other cases, here isamean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumsiances and lesser interests as by redueing it too much, you render hina unduly attached to these, and too lite fitto comprehend and pursue xreat and national objects. ‘The federal Constitution forms a happy combination in this respect; the great and aggregate nterests being referred to the national, the local and particular to the State legislatures. ‘The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of repablican than of dem- octatic government and itis this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and intezests composing it; the fewer the distinct parties and interests, the more frequently wil a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take ina greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, itwill be more difficult for all who feel it to discover their own strength, and to’act in unison with each other. Besides other impediments, it may be remarked that, where there is aA. The Origins of the U.S. Constit 1B consciousness of unjust ot dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary. Henee, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic, — is enjoyed by the Union over the Slates composing it; Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and to schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security alforded by a greater variety of parties, agains the event of any one party being able to outnumber and oppress the rest? In an equall degree does the increased variety of parties comprised within the Union, increase this security Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust_and interested majority? Here, again, the extent of the Union gives it the most palpable advantage The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire fuce of it must secure the national conneils against any danger from that source. A rage for paper money, foran abolition of debis, foran equal division of propery, or forany other improper or wicked project, will be less apt to pervade the whole body of the Union than a padticular meraber of isn lie same proportion as uch a malady 6 more likely to taint a particular county or district, than an entire State In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government And according to the degrce of pleasure and pride we feel in being republicans, ought to be cur zeal in cherishing the spirt and supporting the character of Federalists. Publius Note: Madisonian Republicanism AAs The Federalist No. 10 reveals Madison agreed with the antifederalists that a primary problem of governance was control of factions. The antifederalists rooted the problem of faction in that of corruption, understood broadly as the capture of public institutions by private interests, Their solution rested in the effort to control the factional spirit and the power of representatives. In their view, the civie virtue of the citizenry and of its representatives would work as a safeguard against factional tyranm "The Federalist No. 10 tuned the antifederalist understanding on its head. For Madison, and for many other federalists, factions were an inevitable product of liberty, which would produce inequality in the ownership of property. Therefore, the problem could not be solved by the traditional republican means of educa. tion and inculcation of virtue. Moreover, the problem of faction was likely to be most, not least, severe ina small republic. It was in a small republic that a self interested private group would be most likely to be able to seize political power in order to distribute wealth or opportunities in its favor. Indeed, in the view of the federalists, this was precisely what had happened in the years since the4 1. ‘The Constitution and the Supreme Court Revolution, In that period, factions had usurped the processes of state govern- rent, puting both liberty and propery at risk Consider in this regard Madison's rejection of Jefferson's proposal of frequent constitutional amendment on the ground that such a proposal would produce “the most violent struggle between the parties interested in reviving and those interested in reforming the antecedent state of property.” M. Meyers, ed., The Mind of the Founder 232 (1969). For Jefferson, by contrast, turbulence is “pro- ductive of good. It prevents the degeneracy of govemment, and nourishes a zencral attention to the public affair. I hold that a little rebellion now and then is a good thing,” Letter to Madison, Jan. 30, 1787, in The Portable Thomas Jefferson 416—417 (M. Peterson ed., 1975). For Madison, ongoing processes of selEgovernment produced not the promise of genuine selfdetermination but instead the danger of factional warfare. ‘Madison believed that selFinterest was an inevitable force in political behax= ior. The federalists did not, however, suppose that self-interest was all there was to human beings. “The supposition of universal venality in human nature is little Jess an error in politigal reasoning than the supposition of tmiversal rectitude,” wwrote Hamilton in The Federalist No. 76, And in No. 35, Madison made the same point, claiming that “[as] there is @ degree of depravity in mankind which requires a certain degree of cirenmspection and distrust, so there are other qual- ities in human nature, which justify a certain portion of esteem and confidence.” In any case, the specter of faction was sufficient to justify rejection of the anti- federalist understanding that in a small republic the problem of faction could be ‘overcome. But it was in developing a solution that Madison, Hamilton, and their colleagues were particularly original. ‘The solution began with the insight that in a direct democracy the problem posed by factions is especially acute, for a “common passion or interest will, in almost every case, be felt by a majority of the whole” and there will be no protection for the minority, But safeguards would be found in a large republic. There, the diversity ofinterests would reduce the risk that a common desire would be felt by sufficient numbers of people to oppress minorities. In this respect, the likelihood of factional tyranny contained a buil-in check in a large republic On this view, heterogeneity — Brutus's fear — was a positive good. It would work against factionalism and paroctialism. At the same time “differences of opinion, and the jarrings of parties [wold] ,.. promote deliberation and cireum- spection; and serve to check the excesses of the majority.” The Federalist No. 70. Differences and disagreement were not harmful to a deliberative republic, On the contrary, they were indispensable to its successful operation. Nor were these the only virtues of size. The other feature of the large republic ‘was that the principle of representatior would serve in that setting as a substantial solution to the problem of faction. ‘The central phrase here is Madison's sugges- tion that that principle would “refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the frue interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or pattial considerations,” This is so in part because in a large republic the dangers produced by undue attachment to local interests would be reduced. This conception of representation appears throughout The Federalist Papers and indeed throughout the work of both Madison and Hamilton, In No. 57, Madison urges that “the aim of every political constitution is, or ought to be,A. The Origins of the U.S. Constitution 15 first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of society; and in the next place, to take the most effectual precautions for keeping them virtuous while they continue to hold the public trust” Elsewhere he suggests that “wisdom” and “virtue” will characterize national representatives. Where the antifederalists accepted representation as a necessary’evil, Madison regarded itas an opportunity for achieving governance by officials devoted toa public good distinet hom the struggle of prsate interest For these reasons, Madison favored long length of service and large election districts — precisely what the antifederalists most feared. In the Madisonian account, representatives were to have the time and temperament to engage in a form of collective reasoning. ‘They were not to be mere “transmission bells” for the will of the various constituencies, much less to be a mechanism for agere- gating interests. The hope, in short, was for a genuinely national politics. ‘The epresentatives of the people — not the people themselves — would be free to engage in the proces of discussion and Jebate from which the common good would emerge. Consider the fact that the first Congress rejected a tight to instruct, by which constituents would be authorized to give binding instructions to representatives. ‘Those who apposed this right contended that it would be inconsistent with the point ofthe legislative mecting: publiesprited deliberation among people with different poins of view iven if The Federalist No. 10 is taken to set out some central themes in the new Constitution, itis far from the entire story. ‘The Constitution embodies a set of structural provisions designed to bring about publie-spirited representation, to provide safeguards in the event that it is absent, and to ensure an important measure of popular control. The various systems of representation in the different branches ofthe national government were designed to promote deliveration in ;overnment and to control possible abuses, Recognizing that sovereignty lay in the people, the framers designed a system in which no branch could speak authoritatively for the people themselves. On this view, the Constitution's siruc- tural provisions can be seen as a kind of bill of rights, designed to protect against tyranny. Many of the framers, inchiding Hamilton, saw the struetural provisions in exactly that way. Bicameralisi — the division of Congress into the House and the Senate, with two-year and six-year terms, respectively — was intended to ensure that some representatives would be relatively isolated from the people and that other would be relatively close to them The fact that the houses of the legislature were divided in this way would combine political accountability (on the part of the House) witha degree of independence (on the part of the Senate), enabling, the Senate to serve a kind of “cooling” function. Indirect election of representa: tives played a far more important role at the time of ratification than it does today. Only the House of Representatives was to be directly elected. The original Con- tution provided thal Senators would be chosen by state legislatures, and envi- sioned an electoral college whose members would deliberate over the choice of the president. These features provided additional insulation from political pressure and factional tyranny Perhaps most important, the system of checks and balances was designed with the recognition that even national representatives may be prone to the tifluence of “interesis” thatis inconsistent with the public welfare, In'The Federalist No. 10 itself, Madison recognizes that “[enlightened] statesmen will not always be at the helm.” The Federalist No. 51 is the most celebrated elaboration of this Point.