Breslin is the Joseph C. Palamountain Jr. Chair of Political Science at Skidmore College and author of “A Constitution for the Living: Imagining How Five Generations of Americans Would Rewrite the Nation’s Fundamental Law.”
This is the latest in “ A Republic, if we can keep it,” a series to assist American citizens on the bumpy road ahead this election year. By highlighting components, principles and stories of the Constitution, Breslin hopes to remind us that the American political experiment remains, in the words of Alexander Hamilton, the “most interesting in the world.”
We are all characters in James Madison’s worst nightmare.
The plot of this bad dream is simple: Marginalized Americans are deviously tormented by an effort to reassign power from the federal government to the states. The antagonists are many: the conservative bloc of the Supreme Court, the ineffective and anemic Congress, well-funded interest groups, state officials, even those who espouse the dictates of Project 2025. The theme, like most nightmares, is terrifying: tyranny. Specifically, tyranny of the majority.
Madison’s reputation for brilliance comes partially from his ingenious solution to the curse of majority tyranny. Majorities, he insisted, can abuse just as cruelly as autocrats. Take states, for example. A permanent majority in the state legislature can trample on the rights of the minority without fear of reprisal. “By a faction,” he wrote in Federalist 10, he’s talking about those who are “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.” Factions — interest groups and political parties in the modern vernacular — are wicked. They care mainly about their own welfare; the well-being of the community is a distant second.
Madison’s solution to this form of tyranny is dazzling. Instead of small-scale republics like states, the font of power, he reasoned, should always reside in Washington, where no single faction can gain a permanent majority. “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.” The more geographically expansive the nation is, and the more distinctively diverse We the People are, the greater our freedom, the louder our voice and the closer we come to achieving justice.
The plot of our Madisonian nightmare includes several intersecting storylines. Most notably is the affinity of federal officials, especially on the right, to interpret the Constitution and federal statutes as if the United States is some kind of commonwealth, a voluntary association of independent sovereign states. I can assure you that a commonwealth America is not.
The most notorious antagonists in this nightmare are the Supreme Court justices. As Lala Wu recently wrote in Democracy Docket, “an under-the-radar consequence of the Supreme Court’s 6-3 conservative supermajority is that it is poised to hand over unprecedented power to state governments.” Lawsuits involving environmental protection, health care, gun control, school curricula, diversity initiatives, even how we describe our collective past, are consistently falling the states’ way.
The Dobbs decision is just the most familiar case illustrating the transfer. Here, the Republican-appointed majority overturned Roe v. Wade and, in the process, empowered state officials to determine the extent to which women can seek legal abortions. Blue states can protect a woman’s access to reproductive health while red states can impose severe restrictions, or outlaw the procedure altogether. Madison would be horrified. Abortion seekers in red states, he would scream, are being tyrannized by the majority.
The Chevron deference case is equally frightening. Removing federal agencies as the executor of often-vague xongressional statutes will not only authorize judges to fill the breach, but also empower state officials. “States,” Rich Maloof, deputy director of the Senate President’s Forum, recently said, “are more than willing to shape policy in the abyss of federal inaction.”
Congress is also to blame. Members from both sides of the aisle seem content not only to write vague laws, but also to engage in more infighting than lawmaking. Productivity in Congress has steadily declined over the last 50 years.
Conservative influencers interest groups like the NRA, leaders of the Republican National Committee and GOP state committees, lobbyists, authors of Project 2025 and so on are expending enormous resources to galvanize support for a 10th Amendment revolution. In their mind, that particular addition to the Constitution no longer states “but a truism that all is retained which has not been surrendered.”
Can we turn this dystopian tale around? Of course. But we need to act, individually and collectively. First, Americans should take notice of the slow transfer of power. It’s happening all around us. Second, citizens must vote up and down the federalism ladder. State representatives are just as key to the lives of Americans as is the president or Congress. Third, we should raise our voices. Peaceful protest can bring much needed attention to those marginalized communities that are so often ignored by the majority. Fourth, we should work towards real constitutional and legal reform. Term limits for members of Congress, restructuring the federal courts, pursuing social and environmental justice initiatives, and holding our elected representatives accountable are all tangible actions that will help. Fifth, we should always remind our elected officials that they maintain their power only at the consent of the governed.
One thing is certain: Inaction will prolong this frightening dream. Our Madisonian nightmare will endure for as long as we remain passive to its plotlines. Let’s honor the wise counsel of the father of America’s Constitution and wake up.
