The Right Coast

December 15, 2004
The Federalist Papers
By Mike Rappaport

Recently, I attended a Liberty Fund Conference on the Federalist Papers (along with Right Coasters Gail and Maimon and Legal Theory Blogger Larry Solum). The conference allowed us to re-read the Papers and then to discuss them with a group of accomplished scholars. What a treat!

After re-reading the Papers, I continue to believe that they are one of the most impressive works of political writing in history and perhaps the greatest work of American political writing. What is especially powerful about the Papers is their method for analyzing political institutions. On the one hand, they are a great and early example of a work that recognizes that political actors will pursue their self interest and need to be constrained. Madison's famous line about using the separation of powers to make "ambition counteract ambition" is an example of this approach.

But the Papers do not, like modern public choice theory, ignore people's other motivations. They acknowledge that people act from various motives, including the desire to act morally. For example, in Federalist 57, Madison discusses the reasons why Representatives will be unlikely to abuse the people's trust, and provides reasons based on "duty, gratitude, interest, and ambition," concluding that these "are the cords by which [Representatives] will be bound to fidelity and sympathy with the great mass of the people."

While the method of analysis in the Federalist is excellent, that does not mean that every prediction or claim in it is correct. In fact, in the same paper, Federalist 57, Madison states one of the traditional ideals of liberal democracy:

I will add as a fifth circumstance in the situation of the House of Represenatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments of which few governments have furnished examples; but without which every government degenerates into tyranny.
Madison continues:

If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of society? I answer: the genuius of the whole system; the nature of just constitutional laws; and, above all, the vigilent and manly spirit which actuates the people of America -- a spirit which nourises freedom, and in return is nourished by it. If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anyhing but liberty.
While Madison's statement of the ideal is correct -- requiring the government to live by its own laws is essential -- he was wrong that the Congress would not be able to set itself apart. Congress did precisely this for a time, exempting itself from one regulation after another. It was Newt Gingrich and the Contract with America that finally significantly cut back (but if memory serves did not entirely eliminate) the special treatment for Congress. As this example suggests, Newt did much to remind the people of the United States that it is wrong to tolerate infringements on their liberty.