Is Federalist 10 Still Valid? 9-19-2010, Part Two

 [Continued from "Is Federalist 10 Still Valid? 9-19-2010, Part One." sch 7/16/2023.]

Madison begins No. 10 with his explanation why faction is so important:

... The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under 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. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate 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 rules of justice and the rights 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. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.

I will point out that the American constitutions refers to state constitutions. Madison explains why the state constitutions fail at preventing faction, and foreshadows how the federal constitution shall remedy those defects. 

Doesn't the passage I have emphasized echo our modern American federal politics?

Madison defines faction as:

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

I do not understand that definition to include either the Democrats or the Republicans. [This sentence I might need to change, certainly would need to expand, nowadays. sch 7/16/23.] Our parties have acted as collections of faction - except for the election of 1860. In 1860, all four presidential candidates represented factions. Since then, those same political parties have strenuously avoided a repetition of 1860.

Madison puts forward two broad methods of curing the causes of faction: removing its causes and by controlling its effects. I think we can agree with Madison that neither method is acceptable:

It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal 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 it, 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 will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; 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 parties.

[Although it does seem state legislatures controlled by Republicans have become attached to the first idea for preserving their power. sch 7/16/2023. Along these lines, How to stop Democrats from flipping a swing seat? Don't call an election. However, common wisdom about the effectiveness of limiting ballot access may be wrong, Changes in state election laws have little impact on results, new study finds:

But a new study by two political scientists is causing a stir by finding that state legislators’ changes to election laws — both those that tighten election rules in the name of integrity, and those that loosen rules to expand access — have almost no impact on which side wins.

“Contemporary election reforms that are purported to increase or decrease turnout tend to have negligible effects on election outcomes,” write the authors, Justin Grimmer and Eitan Hersh, political scientists at Stanford University and Tufts University, respectively, in “How Election Rules Affect Who Wins,” which was published online as a working paper June 29.

These laws, the authors write, “have small effects on outcomes because they tend to target small shares of the electorate, have a small effect on turnout, and/or affect voters who are relatively balanced in their partisanship.”

That doesn’t mean these laws don’t matter. Many advocates, as well as the authors themselves, say there are plenty of reasons beyond partisanship to care about voting policy — not least the effect some can have on non-white voters.

 sch 7/17/2023]

 

Madison distinguishes between the factions of less than a majority and those of a majority. Factions having less than a majority find their control in regular elections. What worries him most is a majority faction.

If a 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 vote. 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 form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind. 

Consider at the present time, the electoral closeness of both parties. Independents continue to grow as a political group, becoming collaborators instead of members. That the primary elections bring out the extremes of both parties, the independents keep those factions from complete control. [Unless one of the radical factions can appeal to independents, as we saw in 2016. sch 7/16/2023]

Madison puts forward two means to counterbalance a faction's influence:

...Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as 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.

***

The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is 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 interests composing it; the fewer the distinct parties and interests, the more frequently will 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 in a 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, it will 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 consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary. 

Madison finds the federal constitution to have enlarged the number of electors and created geographic distance that will stymie faction.

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 more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters.

It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.

And that might have been fine, if the Commerce Clause had not expanded federal power to the point of concentrating local interests in Washington, DC.

sch

[Continued in Is Federalist 10 Still Valid? 9-19-2010, Part Three. Another effect of this particular essay came to fruition while I was in prison. Give me free access to federal law and awaken my curiosity, and what else could I do but get busy? What I learned on my own, I did not learn in law school - there is no principled limit to the Commerce Clause. This I learned from reading Gonzales v. Raich - which did come down long after I left law school - that the Commerce Clause is not limited to mere business transactions and that nothing by its nature is excluded from the clause. The first portion of that proposition I ought to have learned in law school - if law schools taught theory rather prepare one for practice. That the Commerce Clause attaches itself to any and all movements across state lines is an idea going back to 1917. Read Caminetti v. United States. Only the imagination of Congress and its will retrains the Commerce Clause; federal power has no other restraint. sch 7/16/2023.]