Last week, I was at an event with United States Senator Chris Coons of Delaware where he was interviewed about this country’s current political crisis. As he was responding to questions, Senator Coons (full disclosure, he is a former student) gave an unusually eloquent and impassioned call for service and political engagement.
He offered his audience an opportunity to consider why democracy is worth defending. I was enthralled.
Senator Coons also offered some explanations of how we got to where we are, paying particular attention to developments in Congress. Late into those explanations, the Senator weaved into his remarks a reference to the Federalist Papers.
He pointed in particular to Federalist 51. There, James Madison defends the constitutional system of separation of powers and checks and balances and explains that such a system can only work if members of Congress are willing to defend the prerogatives of that branch, even against a president of their own party.
Recall that in Federalist 51, Madison wrote: “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…. The interest of the man must be connected with the constitutional rights of the place.”
In the last decade, as America entered an unprecedented period of constitutional and political turmoil, such references have become so ubiquitous that the Senator’s mention of the Federalist Papers almost escaped my notice. But on reflection, his remarks illustrate a serious dilemma in the present moment.
Can we defend and preserve democracy and the rule of law without uncritically venerating our founding documents and without engaging in a kind of constitutional worship that rings hollow to millions of Americans? The answer, I think, is that we need to do two things at once: appeal to the values and institutions enshrined and established in those documents while acknowledging that if we survive the present moment, they will need serious reevaluation and reform.
Indeed, it is a little odd that in our defense of democracy, we fall back, uncritically, on the Federalist Papers. To be candid, I have done so repeatedly in my public writing over the last few years.
When Alexander Hamilton, John Jay, and James Madison wrote them, they were not so much advocating or defending democracy as warning about its dangers. Take this famous line from Federalist 51: “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
Madison continued, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
Note the reference to controlling, not serving, the governed. In a less often quoted line, Madison referenced one of his repeated worries about the way democracy might work: “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.”
In Madison’s view, democracy, in itself, offered no protection against such dangers. Indeed, as he observed in Federalist 10, "Democracies have ever been spectacles of turbulence 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."
Picking up on Madison’s worries about such problems, more than a century ago, American historian Charles Beard offered a stinging critique of the Constitution and the Federalist Papers in “An Economic Interpretation of the Constitution.” Beard argued that, far from being a statement of the best in America, the Constitution was written by and for wealthy property owners to ensure that their interests would be protected from democratic majorities.
Federalist 51 was one of Beard’s prime targets, authored as it was by one of the people whom he accused of naked self-interest. Beard characterized the system of checks and balances that Madison defended as one designed to “maintain a hierarchical order protective of economic, political, and social elites.”
Of course, Beard’s criticism has not gone unchallenged. In 1977, Henry Steele Commager published one of the most important of those criticisms. In “The Empire of Reason: How Europe Imagined and America Realized the Enlightenment”, Commager accused Beard of falling prey to what he called ''sterile'' economic determinism.
In Commager’s view, the Constitution was primarily “a political document focused on the distribution of power between governments, rather than an economic document solely aimed at protecting property.”
Whether you think Beard or Commager has the better of the argument, it goes without saying that Madison did not anticipate the rise of mass, highly disciplined political parties of the kind that now dominate in Congress, the magnitude of campaign finance, the prevalence of social media, or AI. Those things make his hopes for checks and balances seem almost quaint.
This is not to say that the insights found in the Federalist Papers are no longer relevant. They have never been as important as they are today.
And Senator Coons was right to reference them. They are a helpful reminder of a vision of limited government that is in jeopardy today.
But the Federalist Papers and the Constitution they were defending should not be treated like the tenets of scripture that are discussed in a church sermon but then ignored by the parishioners when they leave church. We need to recognize that what Commager wrote in the aftermath of Watergate is as apt today as it was then. “Responsibility for our crisis,” he said, “is rooted in changes in the American character, the American mind, American habits or traits…over the past quarter century.”
In that 1977 essay, Commager argued that “it is insufficient, it is almost trivial, to assign full responsibility for our current sickness to particular presidents. After all, it is the American people who elected them… our government and politics, with all their knaveries, vulgarities, and dishonesties, more or less reflect American society, and even the American character, and that we are, in fact, getting the kind of government that we want. The fault, in short, is in ourselves.”
That is why Senator Coons rightly urged his audience not just to get busy now, trying not just to preserve democracy, but also to use this moment of crisis to restore the traditions, service, and dedication that the Constitution calls “the general welfare”—traditions that speak to the best in the character of this country.
Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
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