What Is Madisonianism?

 Many posts have discussed the Founding.

 Jay Cost, "What Does It Mean to Be Madisonian? at AEI:

• Today, the word Madisonian is automatically paired with the American constitutional order, particularly the nexus of Federalist 10 and 51—the popular sovereignty of an extended republic mitigated by institutional mechanisms to temper majority factions.
• While that is arguably a fair characterization of the constitutional system, it misrepresents James Madison’s political position at the time of the Constitution’s drafting. Madison’s Federalist 10 defends the Constitution on grounds on which he privately criticized it, and Federalist 51 employs classical republican ideas his original theory did not heavily rely on.
• While Madison in retirement praised the Constitution as a whole, a more precise vocabulary would distinguish the “Publian” Madison from the authentically Madisonian position of 1787.
• The constitutional system advances Madisonian commitments like democratic governance, deliberation, and consensus—not through the means Madison preferred in 1787 but through the practical accommodations with classical republicanism that he eventually embraced.

From the essay:

From a broader perspective, while the Constitution does not embody the democratic republic to nearly the extent that Madison had hoped, it likely does so much more than it would have had Madison not been involved. His Virginia Plan set the agenda for the early portion of the convention and oriented the delegates to a national plan of government. His insistence on a democratically elected House of Representatives rebutted many delegates who thought states should appoint House members. His staunch defense of proportional representation in both chambers of Congress limited the power of the small states in only the Senate. For instance, William Paterson’s New Jersey Plan would have retained the unicameral Congress of the Articles of Confederation, with votes apportioned equally among the states.33 Madison also opposed demands by delegates sympathetic to commercial interests to entrench representation based on property and many of the demands from his fellow Southerners on protection for the slaveholding interest. He may have failed to create a constitution that reflected his aspirations of a national, democratic republic, but the finished product does reflect that view in part, thanks to his aspirations. In that sense, the Constitution is Madisonian.

Civic Virtue and the Republic

Many posts have discussed volunteering and civic virtue.

 Robert P. George at AEI:

The Constitution was famously defended by Madison in Federalist No. 51 as “supplying, by opposite and rival interests, the defect of better motives.” He made this point immediately after observing that the first task of government is to control the governed, and the second is to control itself. He allowed that “a dependence on the people is, no doubt the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions.” But even in this formulation, our constraints and institutions do not stand alone; indeed, they are presented as secondary. What is primary and entirely necessary is healthy and vibrant political culture — “a dependence on the people” to keep the rulers in line.

As the ablest scholar and political theorist of the founding generation, John Adams understood as well as anyone the general theory of the Constitution. He knew that a healthy political culture was vital to ensuring that rulers stay within the bounds of their legitimate authority and act as servants of the common good and of the people they rule. Adams famously remarked that “our Constitution is made for a moral and religious people” and “is wholly inadequate to the government of any other.”

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This year, we mark the anniversary of a document that acknowledged certain truths to be self-evident, among them that all men are endowed by God with unalienable rights. From the moment of our country’s Founding, the authors of our constitutional and political order saw their project as premised on the notion that the citizenry — though diverse in ethnicity and creed — shared some fundamental premises about human nature and the human person. Now, though, the foundational components meant to form good, moral, and reasonable citizens are frail; they wield less influence in our society and in our politics than they did in the past. Our bonds are weakening; our civic fabric fraying.

If we are experiencing a period of American decline, it’s not because of the constitutional order and political system whose 250th anniversary we celebrate this year. The decline is attributable, rather, to the degradation of what Edmund Burke famously referred to as the essential “little platoons” of society: those building blocks of virtue, from families to voluntary associations, that work together to form an informed and virtuous citizenry. With the elements necessary to foster a healthy and vibrant democratic culture debilitated, is it any wonder that public confidence in our ability to keep our republic is so shaky?

Abusing the Pardon Power

 Many posts have addressed the president's pardon power.

Stephen Holmes at the Project Syndicate:

The pardon power is the only authority that the US Constitution places entirely in one person’s hands, immune from legislative override or judicial review. Alexander Hamilton, defending this arrangement in Federalist 74, understood the danger. But he wagered that shame would restrain abuse – that a president, bearing sole blame for corrupt use of the power, would hesitate where a legislature might not. “The sense of responsibility is always strongest,” Hamilton wrote, “in proportion as it is undivided.”

Hamilton was wrong. He did not anticipate a shameless president.

Hamilton’s case for the pardon was political, not moral. He barely mentioned mercy. The power’s core purpose was emergency peace-making: “in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.”

This was the rationale for Massachusetts’ offer of clemency to participants in Shays’s Rebellion, and for George Washington’s pardon of those who took part in the Whiskey Rebellion during his presidency. The pardon was an ad hoc instrument for ending conflict after rebellion was suppressed – a discretionary tool for restoring peace when peace took priority over justice.

Crucially, Hamilton insisted that clemency must remain unpredictable. “It would generally be impolitic beforehand,” he wrote, “to take any step which might hold out the prospect of impunity.” A standing promise of pardons would encourage rebellion. The power works only if potential lawbreakers cannot count on forgiveness in advance.

Trump has inverted every element of this design. He has transformed the pardon from an instrument for ending conflict into a weapon for stoking it, from an ad hoc exercise of discretion into a standing promise of impunity, from a tool of reconciliation into a system for rewarding loyalty. Hamilton envisioned a president using clemency to heal divisions after insurrection; Trump pardoned the insurrectionists who attacked the US Capitol on January 6, 2021, only after returning to the presidency four years later, signaling that loyalty to him guarantees impunity.

The effects are already visible in courtrooms and law offices across the US. “If I were any defendant now,” a former senior Department of Justice official told the Financial Times, and “I had the financial wherewithal or connections, my thought would be, maybe I’ll be convicted, but I very well may get a pardon as well.” Defense attorneys are reportedly advising clients that conviction need not be the end for those who meet the criteria. Hamilton’s nightmare has become litigation strategy.

 

Court Strikes Down Tariffs

Many posts have dealt with tariffs and trade.

Conor Friedersdorf at The Atlantic:

The debate over President Donald Trump’s tariffs often focuses on whether they are prudent. Defenders insist that Trump’s tariffs will help make America great again and boost national security. Critics counter that they’ll wreck the economy. But the strongest argument against the tariffs is actually that they are unlawful. Neither the Constitution nor any statute authorizes Trump to impose what he ordered.

Now, months after sticklers for the rule of law began making that argument, it has finally been vindicated: Yesterday, the United States Court of International Trade, the federal court with jurisdiction over civil actions related to tariffs, struck down almost all of Trump’s tariffs in a 49-page ruling. The decision includes a detailed discussion of the International Emergency Economic Powers Act, the 1977 law delegating increased power over trade to the president during national emergencies, which the White House had cited to support its moves. It concludes that the law does not authorize any of Trump’s tariff orders.

V.O.S. Selections, Inc. v. Trump

State of Oregon v. Trump

Underlying the issues in this case is the notion that “the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments.”  Federalist No. 48 (James Madison).  Because of the Constitution’s express allocation of the tariff power to Congress, see U.S. Const. art. I, § 8, cl. 1, we do not read IEEPA to delegate an unbounded tariff authority to the President.  We instead read IEEPA’s provisions to impose meaningful limits on any such authority it confers.  Two are relevant here.  First, § 1702’s delegation of a power to “regulate . . . importation,” read in light of its legislative history and Congress’s enactment of more narrow, non-emergency legislation, at the very least does not authorize the President to impose unbounded tariffs.  The Worldwide and Retaliatory Tariffs lack any identifiable limits and thus fall outside the scope of § 1702.  Second, IEEPA’s limited authorities may be exercised only to “deal with an unusual and extraordinary threat with respect to which a national emergency has been declared . . . and may not be exercised for any other purpose.”  50 U.S.C. § 1701(b) (emphasis added).  As the Trafficking Tariffs do not meet that condition, they fall outside the scope of § 1701.  

Stashing Away Residents of this Country

  The Trump administration is snatching people without due process.

 UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUITNo. 25-1404(8:25-cv-00951-PX)KILMAR ARMANDO ABREGO GARCIA; JENNIFER STEFANIA VASQUEZSURA; A.A.V., a minor, by and through his next friend and mother, JenniferVasquez Sura,Plaintiffs – Appellees,v.KRISTI NOEM; TODD LYONS; KENNETH GENALO; NIKITA BAKER;PAMELA JO BONDI; MARCO RUBIO,Defendants – Appellants.ORDER WILKINSON, Circuit Judge, with whom KING and THACKER, Circuit Judges, join:

Upon review of the government’s motion, the court denies the motion for an emergency stay pending appeal and for a writ of mandamus. The relief the government is requesting is both extraordinary and premature. While we fully respect the Executive’s robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.

It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. 

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear. 

The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. 

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 “Energy in the [E]xecutive” is much to be respected. FEDERALIST NO. 70, at 423 (1789) (Alexander Hamilton) (Clinton Rossiter ed., 1961). It can rescue government from its lassitude and recalibrate imbalances too long left unexamined. The knowledge that executive energy is a perishable quality understandably breeds impatience with the courts. Courts, in turn, are frequently attuned to caution and are often uneasy with the Executive Branch’s breakneck pace. 

And the differences do not end there. The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.

The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?∗ And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to “take Care that the Laws be faithfully executed” would lose its meaning. U.S. CONST. art. II, § 3; see also id. art. II, § 1, cl. 8.

-- Judge J. Harvie Wilkinson 

* See, e.g., Michelle Stoddart, ‘Homegrowns are Next’: Trump Doubles Down on Sending American ‘Criminals’ to Foreign Prisons, ABC NEWS (Apr. 14, 2025, 6:04 PM); David Rutz, Trump Open to Sending Violent American Criminals to El Salvador Prisons, FOX NEWS (Apr. 15, 2025, 11:01 AM EDT).

2 telling things here:

1) White House crosses out “wrongly,” despite repeatedly acknowledging its error in court.

2) “who’s never coming back” is basically taunting SCOTUS. Signals the opposite of any intent to “facilitate” his return. https://t.co/Pn2ltL8lzX

— Aaron Blake (@AaronBlake) April 18, 2025

Faith and Norms

Madison in Federalist 55:

As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.

Russell Moore at Christianity Today:

Ironically, some of the very people who advance the myth of a “Christian America,” in which the American founders are retrofitted as conservative evangelicals, now embrace a view that both the orthodox Christians and the deist Unitarians of the founding era would, in full agreement, denounce. From The Federalist Papers to the debates around the Constitution and the Bill of Rights, virtually every Founding Father—even with all their differences on the specifics of federalism—would argue that constitutional procedures and policies alone were not enough to conserve a republic: Moral norms and expectations of some level of personal character were necessary.

 Do these norms keep people of bad character from ascending to high office? Not at all. Hypocrites and demagogues have always been with us. What every generation of Americans have recognized until now, though, is that there is a marked difference between some leaders not living up to the character expected of them and leaders operating in a space where there aren’t expectations of personal character. You might hire an accountant to do your taxes, only later to find that he’s a tax fraud and an embezzler. That’s quite different from hiring an open fraud because you’ve concluded that only chumps obey the tax laws.

 That’s because no leader of any community, association, or nation is an abstract collection of policies. We select leaders to make decisions about matters that haven’t happened yet, or that might not even be contemplated. A dentist who screams profanities at opponents and promises a practice built around “revenge and retribution” and the tearing down of all the norms of modern dentistry is not someone you should trust with a drill in your mouth. How much more so when it comes to entrusting a person with nuclear codes.

Moreover, what conservatives in general, and Christians in particular, once knew is that what is normalized in a culture becomes an expected part of that culture. Defending a president using his power to have sex with his intern by saying, “Everybody lies about sex” isn’t just a political argument; it changes the way people think about what, in the fullness of time, they should expect for themselves. This is what Daniel Patrick Moynihan famously called “defining deviancy down.”

January 6 and President Selection

 From the J6 Committee:

At the Constitutional Convention 233 years ago, the framers considered but rejected multiple proposals that Congress itself vote to select the President of the United States.143 Indeed the Framers voiced very specific concerns with Congress selecting the President. They viewed it as important that the electors, chosen for the specific purpose of selecting the President, should make the determination rather than Congress:

It was desireable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men, chosen by the people for the special purpose, and at the particular conjuncture.144

The Framers understood that a thoughtful structure for the appointment of the President was necessary to avoid certain evils: “Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue and corruption.”145 They were careful to ensure that “those who from situation might be suspected of too great devotion to thepresident in office” “were not among those that chose the president.”146 For that reason, “[n]o senator, representative, or other person holding a place of trust or profit under the United States, can be of the number of theelectors.”147

...

In testimony before the Select Committee, [VP counsel Greg] Jacob described in detail whythe Trump plan for Pence was illegal:

[T]he Vice President’s first instinct, when he heard this theory, was that there was no way that our Framers, who abhorred concentrated power, who had broken away from the tyranny of George III, would ever have put one person—particularly not a person who had a direct interest in the outcome because they were on the ticket for the election—in a role to have decisive impact on the outcome of the election. And our review of text, history, and, frankly, just common sense, all confirmed the Vice President’s first instinct on thatpoint. There is no justifiable basis to conclude that the Vice President has that kind of authority.155

 143. The framers specifically considered and rejected two constitutional plans that would havegiven Congress the power to select the Executive. Under both the Virginia and New Jersey Plans, the national executive would have been chosen by the national legislature. See Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102Mich. L. Rev. 545, 592, 595 (2004); see also 1 The Records of the Federal Convention of 1787,at 21, 244 (Max Farrand ed., 1911) (introducing Virginia and New Jersey Plans), available at https://oll.libertyfund.org/title/farrand-the-records-of-the-federal-convention-of-1787vol-1; James Madison, Notes of the Constitutional Convention (Sep. 4, 1787) (Gov. Morris warning of “the danger of intrigue & faction” if Congress selected the President), available at https://www.consource.org/document/james-madisons-notes-of-the-constitutionalconvention-1787-9-4/

144. The Federalist No. 68, at 458 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 

145. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

146. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

147. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). See also U.S.
Const. art. II, § 1, cl. 2 (“but no Senator or Representative, or Person holding an Office of
Trust or Profit under the United States, shall be appointed an Elector”).

`155. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 16), available at https:// www.govinfo.gov/committee/house-january6th

 

Thwarting Ambition: A Feature, Not a Bug

 Wesley Lowery at GQ writes about Congresswoman Alexandria Ocasio-Cortez

There would be other impediments—obstacles about which Ocasio-Cortez is practical, if not exactly optimistic. “Could Obama have gotten elected without the kind of financial support that he had?” she asked, noting that her opposition to Wall Street would be a major hurdle to any further rise. “I don’t know.” Even were she theoretically to become president, then what? She’d face a system—from the Senate to the Supreme Court—both empowered and inclined to thwart her most sweeping ambitions. “There are still plenty of limitations,” she said, playing out the hypothetical. “It’s tough, it’s really tough.”

Federalist 51:

 Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. 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. 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

Mass Incapacitation and Appointment of House Members

 

In case of a terror attack or other disaster that causes a mass incapacitation of the House, the law provides for expedited special elections.  Some favor constitutional changes to provide for other means of filling the seats.  At The Hill, former representatives F. James Sensenbrenner and David Dreier argue against such measures.

Describing the unique character of the U.S. House of Representatives in Federalist Paper 52, James Madison, wrote: “[I]t is essential to liberty that the government in general should have a common interest with the people. . . . Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured.” Madison also warned “[w]here elections end, tyranny begins.”

...

Gubernatorial appointment of U.S. representatives would invite partisan intrigue and legal challenge. Presently, Democrats hold a 12-seat majority in the U.S. House (221-209), among the most narrow of margins in recent history. Currently, 28 of 50 governor’s mansions are occupied by Republicans. If governors could appoint U.S. representatives, some might delay appointments while others expedite the process for partisan gain. This disparity would deny to citizens their constitutional rights to representation and the equal protection of the laws. The second general approach to jettisoning the direct election of U.S. representatives is more dubious than the first. These proposals would amend the Constitution to empower U.S. representatives to surreptitiously create a list of designated successor(s) to be appointed in the event of the elected representative’s death or incapacitation. Allowing members of Congress to choose their own successors invites opportunism and confers to a hand-picked designee the privilege of office and advantage of incumbency that must be earned from voters, not capriciously granted. Covert, dynastic succession of office is more emblematic of North Korea than the world’s greatest representative democracy.

Federalist and Anti-Federalist Views of the Executive

 At AEI, Gary Schmitt and Joseph Bessette have a paper titled "Debating the presidency: Anti-Federalist and Federalist views of executive power during the ratification debate."

The paper analyzes Anti-Federalist and Federalist views of the office of the presidency during the ratification debate over the Constitution in 1787-1788. It explores in detailed fashion the critiques and defenses of what the Constitution’s architects had established with respect to executive power and its relationship to republican government.

The Politics of Place

Federalist 57: "THE THIRD charge against the House of Representatives is, that it will be taken from that class of citizens which will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few."

David Fontana at WP Magazine:

[Place] still matters a lot — more than you might think — in defining who many Americans are. In the average county weighted by population, according to a study from the Journal of Economic Perspectives, 55 percent of Facebook friends live within 50 miles of one another, even though only 1 percent of people live within 50 miles of one another. Childhood is defined by being in the places that your family chooses for you, and after high school you can finally pick your own place to live — yet one analysis found that college students on average move less than 15 miles from their childhood home. Another study found that the median distance that adults live from their mother is 18 miles.

...

Since places are their own communities with their own self-reinforcing worldviews, it stands to reason that, in our democracy, the people who represent those places should genuinely understand them. A democracy that allocates power by place is, or is supposed to be, an intimate democracy. Not all democracies are set up this way — countries like Israel and the Netherlands allocate power through national systems of proportional representation — but in the United States, our political leaders are meant to govern people with whom they share a lived experience anchored in a place.

...

Most Americans still realize how much their place shapes their lives and choices. However, for the most privileged Americans, the power of place, while very real, has become harder to see — because their places change more significantly and more frequently.

Those with professional or graduate degrees are nearly three times as likely as those without a high school degree to move across state lines in a given year, according to the American Community Survey and demographer Lyman Stone. These numbers are even more dramatic among the highest-status educational institutions: As of 2015, 85 percent of Harvard first-year students moved from outside Massachusetts. And those Americans more willing and able to move toward opportunity tend to concentrate in the most privileged neighborhoods in the most privileged metropolitan areas. In 2019, 9 percent of Washington’s population moved from outside D.C. The comparison here is admittedly imperfect, but in the congressional district where I’m from in the North Country, 3 percent of the population moved in from a different state or country.

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One study in the journal Political Behavior found that in the 2005-06 congressional election cycle, about 5 percent of America’s Zip codes — concentrated in a few neighborhoods in a few metropolitan areas — were responsible for 77 percent of all individual contributions to congressional campaigns. And Anne Baker at Santa Clara University found that, from 2006 to 2012, the “average member of the House received just 11 percent of all campaign funds from donors inside the district.” The trend in this direction has been dramatic. In 1990, according to a study in Political Research Quarterly, out-of-district donors accounted for 42 percent of individual contributions to the median incumbent in the U.S. House. By 2010, that number was 72 percent. And candidates from both parties have a similar geographic distribution in their fundraising: Republicans also raise lots of money from New York City, and Democrats also raise lots of money from Houston.

...

There is an entire infrastructure that reflects — and then reinforces — the sense that place matters much less than it really does. Polling firms that produce results dominating our political system ask questions that matter enormously everywhere rather than those that only matter somewhere. They ask how people compare Joe Biden to Donald Trump, or what they want done about immigration, rather than what should be done about a locally significant employer that is departing.

Political elites campaigning for office internalize this lesson over their careers and speak the language of a post-place politics. They talk about red or blue and Trump or Biden. For their part, political editors at major outlets send reporters from far away to cover wide swaths of the country because they do not have reporters living there — and those reporters are more likely to cover these places through a national lens.

Representation, Congress, and the Presidency

 Yuval Levin at NR:

Whatever you think about the particulars of the impeachment trial, the broader truth of this point is increasingly impossible to deny. Almost every other problem in our constitutional system now is a function of or a response to willful congressional weakness. And that willful weakness is not best understood as a reticence to exercise power but as a fundamental failure to understand the nature of Congress’s purpose, function, and role. It’s a failure evident among members of Congress, but also among other constitutional officers, and among the broader public.

That failure is rooted in a deformation of our concept of representation, which itself reaches back to that Wilsonian presidentialism. Long before he was an elected official himself, in his political-science work, Woodrow Wilson argued that the president is the most representative (and therefore the most legitimate) of our public officials because he is the only one chosen by a national electorate. The idea was that the presidency could focus and consolidate the public will in a single person who would then represent our society. This has been a core belief of progressive nationalism ever since, but it has long since become a bipartisan vice and it’s behind a lot of the disfigurement of our republican politics. The fact is that our society is not politically consolidated in this way. It is diverse and manifold, and it is therefore best represented by a plural rather than a singular institution.

The presidency is formed around a single person not because representation is best served by a unitary figure but because, as Alexander Hamilton noted in Federalist No. 70, unity is the first and most essential ingredient of energy in the executive. The president’s job isn’t fundamentally representative. It is Congress that is shaped to be representative. And more important still, Congress is shaped to enable the diverse interests and views of our society to be represented in a way that also enables them to negotiate and bargain, and ultimately to accommodate each other.

This is a primary purpose of Congress as an institution — to enable and compel accommodation in a divided society. And the fact that accommodation now seems nearly impossible in our politics is a result of Congress’s failure to recognize and serve its purpose more than it is the cause of that failure.

Thanksgiving and Constitutional Gratitude

 Yuval Levin and Adam J. White at National Review:

George Washington’s Thanksgiving Proclamation in 1789, like so many other aspects of his presidency, set a precedent. Even if they were spurred by a congressional resolution, Washington’s words went far beyond Congress’s, offering the newly constituted people an example of what to be grateful for, and how to express that gratitude.

Washington went on to further exemplify constitutional gratitude at the end of his presidency, in his 1796 farewell address. There he expressed thanks not just to those who created the Constitution, but also to the Americans now tasked with sustaining it. They had entrusted Washington with the first presidency, and his farewell address is replete with statements of gratitude to Americans, of love for America, and of a profound sense of that with which he had been entrusted.

The man who had devoted his life first to the revolution, and then to the Constitution, left office not suggesting that the people were indebted to him, but the opposite: He offered “deep acknowledgement of that debt of gratitude which I owe to my beloved country,” he wrote, “for the many honors it has conferred upon me; still more for the steadfast confidence with which it has supported me; and for the opportunities I have thence enjoyed of manifesting my inviolable attachment.” The presidency was not a prize that he had earned, but an “important trust” that soon would be committed to his successor.

Washington would not be the last president to speak in such terms, nor should these themes be the exclusive province of presidents. Statesmen in Congress can offer such examples, too. In Federalist No. 57, James Madison writes that members of Congress would be motivated by more than just ambition and self-interest; he also counted duty and gratitude among “the chords by which [those members] will be bound to fidelity and sympathy with the great mass of the people.”

Some more than others, of course, and if the likes of Washington and Lincoln are rare in the White House then they are rarer still on Capitol Hill. But when members of Congress, like presidents, are able to define their office not just in terms of power but also in terms of gratitude both to their fellow countrymen and to their forefathers, they help to perpetuate the Constitution that creates their offices; and they offer an example for the people whose own constitutional gratitude is indispensable for this perpetuation.

This Thanksgiving, when the nation is battered by a pandemic and fractured by political strife, we can hope that statesmen will step forward to exemplify constitutional gratitude. But more important, we can rediscover the sources of our own gratitude, for those who wrote the Constitution and those who perpetuated it — not just for our own sake, but for the sake of posterity.

Foreign Influence on Elections

Federalist 22:

One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind.

In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments.

From the FBI:

Election Day 2020 is less than two months away, and the FBI is charged with protecting the rights of all Americans, including their right to vote.

From now until November 3, every American has a role to play in protecting the election from threats against the democratic process. Across the country, the FBI has initiated public awareness messaging about election security online at fbi.gov and across our social media platforms.

The goal of this social media campaign is to increase the public’s awareness about threats to the upcoming election and to inform Americans about what they can do to help the FBI ensure that the elections are safe and secure. These threats include crimes the FBI has been charged with investigating for decades, including campaign finance crimes; voter/ballot fraud; civil rights violations, cyber threats targeting the election process; and the potential for foreign influence on the democratic process, elected officials and institutions.
...
The FBI is the primary investigative agency responsible for engaging with local and state election security counterparts to safeguard election integrity. The FBI is also the lead federal agency for identifying and combating malign foreign influence operations targeting our democratic institutions through the FBI’s Foreign Influence Task Force (FITF). The FITF brings together all FBI authorities and capabilities from multiple divisions to include Counterintelligence; Cyber; Criminal; and Counterterrorism assets to coordinate and work together to combat the threat.

The FITF is committed to providing accessible tools and resources to all levels of government through both in-person briefs and online tools, such as our Protected Voices campaign, found at fbi.gov/protectedvoices. Protected Voices is a public initiative which provides political campaigns, organizations, and other election security stakeholders with tools and resources to protect against malign foreign influence and cyber security threats.

In addition to protecting the November 2020 election, the FITF remains focused on persistent malign foreign influence efforts targeting our democratic institutions and processes outside of election events and works closely to address threats targeting the democratic process and American elections.

If you have information about allegations of election crime or voter fraud, please call your local FBI field office. The Washington Field Office can be reached at 202-278-2000.

Additional information on the FBI’s role in election security and access to educational resources about how to protect your voice and vote, can be found by following the FBI’s Washington Field Office at @FBIWFO.

 

Courts, Civic Education, and Social Media

Chief Justice John Roberts's annual report:

 Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside.  In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital.  The judiciary has an important role to play in civic education, and I am pleased to report that the judges and staff of our federal courts are taking up the challenge.

By virtue of their judicial responsibilities, judges are necessarily engaged in civic education. As Federalist No. 78 observes, the courts “have neither FORCE nor WILL, but merely judgment.”  When judges render their judgments through written opinions that explain their reasoning, they advance public understanding of the law. Chief Justice Earl Warren illustrated the power of a judicial decision as a teaching tool in Brown v. Board of Education, the great school desegregation case.1  His unanimous opinion on the most pressing issue of the era was a mere 11 pages—short enough that newspapers could publish all or almost all of it and every citizen could understand the Court’s rationale. Today, federal courts post their opinions online, giving the public instant access to the reasoning behind the judgments that affect their lives.

The Federalist Papers and a Court Case

Judge Ketanji Brown Jackson explaining why former White House counsel Don McGahn has to testify before Congress:

DOJ’s arguments to the contrary are rooted in “the Executive’s interest in ‘autonomy[,]’” and, therefore, “rest[] upon a discredited notion of executive power and privilege.” Id. at 103. Indeed, when DOJ insists that Presidents can lawfully prevent their senior-level aides from responding to compelled congressional process and that neither the federal courts nor Congress has the power to do anything about it, DOJ promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards. In reality, it is a core tenet of this Nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny. See The Federalist No. 51 (James Madison); see also Buckley v. Valeo, 424 U.S. 1, 120 (1976). Thus, when presented with a case or controversy, it is the Judiciary’s duty under the Constitution to interpret the law and to declare government overreaches unlawful. Similarly, the House of Representatives has the constitutionally vested responsibility to conduct investigations of suspected abuses of power within the government, and to act to curb those improprieties, if required. Accordingly, DOJ’s conceptual claim to unreviewable absolute testimonial immunity on separation-of-powers grounds—essentially, that the Constitution’s scheme countenances unassailable Executive branch authority—is baseless, and as such, cannot be sustained.

...
 To the contrary, the Framers spoke specifically to the importance of maintaining an established rule of law to regulate government conduct—and, thus, to the significance of the judicial function—when they explained why a system that separates the powers of government and includes checks on the exercise of government power is crucial to sustaining a democracy:

...[T]he 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 provision for defense must in this, as in all other cases, be made commensurate to the danger of the attack. . . . It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. 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. 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.

The Federalist No. 51 (James Madison). The Framer’s specific reference to providing
government officials in each of the separate branches with “the necessary constitutional
means and personal motives to resist the encroachments of the others[,]” id., is especially noteworthy, because, here, DOJ’s artificial limit on the federal courts’ jurisdiction to consider disputes between the branches seemingly decreases the incentive for the Legislature or the Executive branch to behave lawfully, rather than bolsters it, by dramatically reducing the potential that a federal court will have occasion to declare conduct that violates the Constitution unlawful. And there can be no doubt that providing the branches with the power to limit each other’s behavior, for the protection of the People, was the original intent of the Framers, as evidenced both by the constitutional scheme they adopted and by the remarks they made to explain the separation-of-powers construct. Indeed, far from DOJ’s present suggestion that the separation-of-powers construct means that the political branches must resolve their disputes in the political arena and never head to federal court, Federalist No. 51 proceeds to explain that political checks are not the sole solution, and that the branches themselves must also be vested with the power to police the abuses of the others. See id. (“A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. . . . We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights.”).

...
 In short, DOJ’s implicit suggestion that compelled congressional process is a ‘zero-sum’ game in which the President’s interest in confidentiality invariably outweighs the Legislature’s interest in gathering truthful information, such that current and former senior-level presidential aides should be always and forever immune from answering probing questions, is manifestly inconsistent with a governmental scheme that can only function properly if its institutions work together. See The Federalist No. 51 (James Madison).

...

Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. See The Federalist No. 51 (James Madison); The Federalist No. 69 (Alexander Hamilton); 1 Alexis de Tocqueville, Democracy in America 115–18 (Harvey C. Mansfield & Delba Winthrop eds. & trans., Univ. of Chicago Press 2000) (1835). This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.

Happy Constitution Day

Yuval Levin at AEI:

Populism and elitism are each in its way a kind of politics of hubris. Each is rooted in a plainly unreasonable view about the capacity of human beings — be it a select class or the people as a whole — to make just the right governing decisions. The Constitution is plainly dubious about both sets of claims to superior judgment. It is built upon a profound skepticism about the ability of any person and any group or political arrangement to overcome the limitations of human reason and human nature, and so establishes a system of checks to prevent sudden large mistakes while enabling gradual changes supported by a broad and longstanding consensus. Experts and aristocrats should not govern, nor should the people do so directly, but rather the people’s representatives should govern in a system filled with mediating institutions and opposing interests — a system designed to force us to see problems and proposed solutions from a variety of angles simultaneously and, as Alexander Hamilton puts it in Federalist 73, “to increase the chances in favor of the community against the passing of bad laws through haste, inadvertence, or design.”

That such a system is far from populist should be obvious. In Federalist 63, James Madison says that the constitutional architecture involves “the total exclusion of the people in their collective capacity” from directly governing. The more democratic elements of the Constitution are intended to be checks on the power of government, not expressions of trust in the wisdom of the public as a whole. And the more aristocratic elements are checks as well — on the tendency of representative institutions to shamelessly curry favor with the electorate at the expense of responsible government.

Basic Madison

James Madison's Montpelier has a  basic video explainer on James Madison, the Constitution, and The Federalist:

War, Veterans, Presidents

The recent passing of President George H. W. Bush -- a hero of World War II -- reminds us that most presidents have served in the military.

Rebecca Burgess at The American Interest:

War creates political opportunities for those who fight them. This is meant as an observation of fact, not a remark intended to cheapen the sacrifices made by soldier-politicians whose military service draws the voting public’s attention and praise. Indeed it is a fact that, historically, some soldiers’ motivation for military service has rested on its perceived value for capturing later electoral dividends. Long before Napoleon Bonaparte strategized how to rule Europe from horseback, and even before Julius Caesar rode his military successes across the Rubicon to occupy Rome, soldiers have leveraged their military prowess for political ends. Sometimes they’ve accomplished this peacefully. Often, they’ve employed their martial skills more directly. The ties that bind war and the political do not necessarily mean that those who wage war will become those who rule, but the historical magnetism between the two expressions of leadership is hard to deny.

The formal exception to this historic trend—the United States—only seems to confirm how deep-seated the attraction is. The framers of the American republic intentionally erected barriers between the military and the political realms. Wary of the dangers that “standing armies” posed to individual liberty, and conscious of the threat that a “man on horseback” could pose to a self-governing people, the framers subordinated military power under layers of civilian control and stripped any political power from the military as an institution. In the final Federalist Papers entry, Publius concludes his pitch for ratifying the Constitution by identifying it as a bulwark to prevent “the military despotism of a victorious demagogue.”

And yet since 1789, Americans have overwhelmingly elected former soldiers to be the nation’s chief executive. Of the first 25 Presidents, 21 had military experience, beginning famously with George Washington, whose chief cabinet officers during his two terms (Henry Knox, Edmund Randolph, Timothy Pickering, and Alexander Hamilton) had served with him as Continental officers. Of the presidential contests from 1789 to 2016, military veterans have been nominated by their parties 65 times, compared to nonveterans’ 58 times. About two-thirds of elected Presidents have been veterans. Mitt Romney in 2012 was the Republican Party’s first presidential nominee to be a nonveteran since Thomas Dewey in 1944. The 2016 presidential election was only the 14th time that both of the two main parties have fielded candidates without military experience.

Kagan on the Court

Justice Elena Kagan spoke at Princeton.

I transcribed the entirety of Justice Elena Kagan's answer about the Supreme Court and institutional legitimacy because I think it's important. pic.twitter.com/BzEbXF5Z9T

— Cristian Farias (@cristianafarias) October 6, 2018

Her comments on the army and money were a loose paraphrase of Hamilton in Federalist 78:

The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.