Madison and Campaign Finance Reform

Michael J. Malbin * | 23.5 | Article | Citation: Michael J. Malbin, A Neo-Madisonian Perspective on Campaign Finance Reform, Institutions, Pluralism, and Small Donors, 23 U. Pa. J. Const. L. 907 (2021).

Recent events remind us of the importance and fragility of the institutions that undergird a healthy democracy. This article steps away from the speech-and-corruption debates dominating campaign finance since Buckley v. Valeo to suggest an approach it calls “neo-Madisonian.” It begins with the Federalists’ views about fostering a multi-factional and deliberative Congress but tempers their vision with departures relating to parties and pluralism. The article agrees with scholars who see parties as important but disagrees with shaping campaign finance to enhance national party leaders. The time members spend raising funds instead of legislating, the use of member “dues” to select committees, and repeated “message voting,” are symptoms of a larger party-related disease that feeds polarization and hinders Congress’s ability to perform its needed role.

With respect to pluralism, the article argues that Madison’s large-republic framework has clear advantages but leaves too many outside. Accepting the advantages of size should carry with it a duty to address this shortcoming. Small-donor public financing is often proposed as a remedy. The article refutes claims that link small donors to extremism. Nevertheless, the article does point out important risks. To address the risks, it puts forward empirical analysis to support a new approach adopted in New York State that will target generous public financing to empower within-district small donors.

The article thus casts a metaphorical net in two directions—urging reformers to take institutions seriously, while urging institutionalists to reach out to those left aside. These goals are not contradictory. Public resources can help correct pluralism’s flaws, but the correction should simultaneously serve institutional goals for the common good.

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.”

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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.

Madison v. AOC

Greg Weiner at NYT:

But if disappointed progressives are looking for a Democrat to blame, they should consider directing their ire toward one of their party’s founders: James Madison. Madison’s Constitution was built to thwart exactly what Democrats have been attempting: a race against time to impose vast policies with narrow majorities. Madison believed that one important function of the Constitution was to ensure sustained consensus before popular majorities could prevail.

Democrats do represent a popular majority now. But for Madison, that “now” is the problem: He was less interested in a snapshot of a moment in constitutional time than in a time-lapse photograph showing that a majority had cohered. The more significant its desires, Madison thought, the longer that interval of coherence should be. The monumental scale of the Build Back Better plan consequently raises a difficult Madisonian question: Is a fleeting and narrow majority enough for making history?

In this Madisonian sense, Democrats are tripping over their own boasts. Even in announcing that the spending plan had been scaled back, President Biden repeatedly called the measure “historic.” No fewer than four times in a single statement, his White House described elements of the Build Back Better framework as the most important policy innovations in “generations.” Nancy Pelosi, the speaker of the House, called the bill the House passed last week “historic, transformative and larger than anything we have done before.”

Constitutional Obligation

Many posts have discussed the Founding.

Greg Weiner at The Constitutionalist:

When teaching Edmund Burke, I often pose this question: Suppose you inherit a manor house that has been in your family for generations. It has, in all likelihood, been modified, whether with electricity or indoor plumbing or a modern kitchen. But the basic structure of the house remains intact: An ancestor from generations ago would still recognize it. The place doesn’t suit your tastes, so you decide to tear it down and build something in the style of modernist architecture instead. The question is this: Have you done something unwise or immoral?

The politics of obligation holds that you have wronged both your ancestors and descendants. Your ancestors built and tended this house; your descendants will expect to have received it in trust as well. But you elevated your appetites over that obligation.

Constitutional obligation is similar. We are obligated to the Constitution not because it or its framers were perfect—neither it nor they were—but rather because we hold their legacy in trust.

In September 1789, Madison’s friend Thomas Jefferson, the American minister to France—who was infatuated with the revolution in that country—wrote him a letter. Its central claim was that “the earth belongs in usufruct to the living.” Past generations could claim no right over it. Jefferson, using demographic tables to calculate the length of a typical generation at 19 years, said no public debt or law could bind beyond that duration.

Republican Virtue and 1/6

Robert Kagan at WP:

As it happens, however, that is what the American experiment in republican democracy requires. It is what the Framers meant by “republican virtue,” a love of freedom not only for oneself but also as an abstract, universal good; a love of self-government as an ideal; a commitment to abide by the laws passed by legitimate democratic processes; and a healthy fear of and vigilance against tyranny of any kind. Even James Madison, who framed the Constitution on the assumption that people would always pursue their selfish interests, nevertheless argued that it was “chimerical” to believe that any form of government could “secure liberty and happiness without any virtue in the people.” Al Gore and his supporters displayed republican virtue when they abided by the Supreme Court’s judgment in 2000 despite the partisan nature of the justices’ decision. (Whether the court itself displayed republican virtue is another question.)


The events of Jan. 6, on the other hand, proved that Trump and his most die-hard supporters are prepared to defy constitutional and democratic norms, just as revolutionary movements have in the past. While it might be shocking to learn that normal, decent Americans can support a violent assault on the Capitol, it shows that Americans as a people are not as exceptional as their founding principles and institutions. Europeans who joined fascist movements in the 1920s and 1930s were also from the middle classes. No doubt many of them were good parents and neighbors, too. People do things as part of a mass movement that they would not do as individuals, especially if they are convinced that others are out to destroy their way of life.

 

Statesmanship

Daniel Stid at National Affairs:

To understand why even these acts of statesmanship appear increasingly rare in American politics, we can turn to an essay written by the great political scientist Herbert Storing in the early years of the Carter administration. In "American Statesmanship: Old and New" (which ended up being his last essay before his untimely death in 1977), Storing identified three categories of obstacles to American statesmanship: an original set that was consciously adopted by America's founders, as well as two more resulting from the spread of populism and technocracy, respectively.

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If a system is designed to operate with minimal dependence on statesmen, it becomes difficult to identify what incentives and structures will remain in place to create them for the moments of crisis when they are needed. In such a system, it is easy to imagine that the people would come to take the machinery of government for granted and lose sight of the virtues of leadership upon which even the most well-designed governments ultimately depend. In Storing's estimation, by developing a system of government that so limited the need for statesmen, the America's founders created a polity that would likely fail to understand, appreciate, or generate them.

This original challenge to American statesmanship has been compounded by the rise of populism in the centuries since the founding era. Storing noted that, contrary to the standard critique from progressives, the founders sought to establish a popular government based on the principle of majority rule. But they also recognized the danger inherent to such democratic systems — which they called "majority foolishness or tyranny" — and sought to mitigate it through constitutional arrangements that would foster large yet unstable majorities. "Democratic statesmanship," Storing argued, "must be understood, above all, in the light of that great danger, which implies its great task" — namely, refining and enlarging and, if need be, standing against public views that run counter to the rights of some or the long-term interests of all.
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In addition to the descent into populism, Storing identified the rise of technocracy as a force that undermined American statesmanship. Though Storing argued that the origins of this approach to governance can be traced to the founding era, and especially to Alexander Hamilton, it only became a dominant way of thinking about politics in response to Jacksonian populism in the mid-19th century. Following the Jacksonians' rank embrace of the so-called "spoils system" — by which administration offices are awarded to the supporters of election winners, rather than based on merit — subsequent generations of reformers became ardent proponents of meritocracy, efficiency, and "sound administration." One result of this development was an eventual push for civil-service reform in the latter part of the 19th century, spearheaded by a new generation of Hamiltonians seeking to save government from populists by professionalizing it.

These efforts gained momentum during the Progressive Era of the early 20th century, when the government began to undertake more daunting tasks in regulating society and the economy. As government swelled in size, politicians increasingly looked to technical experts to understand how best to achieve their desired results. The ideal of scientific management as the standard for government decision-making has been predominant in America — and in our governing class, in particular — ever since.

Writing in the 1970s, amid simultaneous waves of regulation and deregulation in federal policy driven by this worldview, Storing lamented that "what scientific management has been moving toward is not statesmanship, and not even administration or management, but rather economizing." He warned that the notion (per efficiency expert Frederick Taylor) that there is always one best way to solve a problem, and that it can be identified through research, analysis, and optimization uncoupled from moral considerations, would ultimately lead administrators down a blind alley. Though a statesman should take empirical data and research into account, Storing understood that true statesmanship hinges on the moral dimension of decision-making — on the statesman's capacity to grasp the ends of government and to balance competing moral values in his pursuit of those ends.

The combined effects of these two arcs of decline, Storing argued, was "to resolve the role of the public official into two simple elements: populism...and scientific management." Storing saw this problematic resolution embodied in the presidency of Jimmy Carter, who had won his party's nomination through the recently democratized primary system. A nuclear engineer by trade, Carter vowed to re-organize, streamline, and fix government to deliver what the people wanted more efficiently.

Despite Carter's determination to govern as both a populist and a technocrat, he had to make judgments and take actions on matters for which the will of the people was not clear, and for which there were real questions about not only the best means but also the proper ends of policy. Carter needed to practice statesmanship, but he and others could not understand or describe his leadership as such. For his part, Storing doubted "the feasibility, at least on any significant scale or over any considerable period of time, of a statesmanship in which there is such a sharp difference between style and substance."

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.

Congress and Constitutional Reform

From AEI:

In Federalist 51, James Madison argued that as “the legislative authority necessarily predominates,” Congress needs to be divided into two branches to constrain its immense power. Two centuries later, it seems Madison’s fears were unfounded, with both the House and Senate increasingly delegating authority to the president, judiciary, or mushrooming administrative bodies. This dilution of Article I has not only destabilized our constitutional system but also catalyzed political polarization through the increasingly fraught battles consequently being waged over judicial appointments and presidential elections.

Please join AEI for a panel discussion cohosted with Claremont McKenna College’s Salvatori Center on how Congress can work to restore its legislative authority and the healthy functioning of our government.

Friday, October 16, 2020 | 11:00 AM to 12:30 PM ET

LIVE Q&A: Submit questions to Nicole.Penn@aei.org or on Twitter with #AEICongress.

Agenda

11:00 AM
Welcome and introduction:
Yuval Levin, Director, Social, Cultural, and Constitutional Studies, AEI

11:05 AM
Panel discussion

Panelists:
Kevin R. Kosar, Resident Scholar, AEI
Molly E. Reynolds, Senior Fellow, Brookings Institution
Jeffrey Tulis, Professor, University of Texas at Austin
Philip Wallach, Resident Scholar, AEI

Moderator:
Zachary Courser, Codirector, Claremont McKenna College Policy Lab

12:15 PM
Q&A

12:30 PM
Adjournment

Contact Information

Event: Nicole Penn | Nicole.Penn@aei.org | 202.862.5845
Media: MediaServices@aei.org | 202.862.5829

Checks and Balances in Action

Madison in Federalist 51:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

During the Obama years, Republican state officials sued to stop administration policies.  Democratic officials  have been doing the same since 2017.

 An editorial in The Daily Sentinel (Grand Junction, CO):

 Montana’s Democratic Gov. Steve Bullock hit the nail on the head with a tweet following a federal judge’s ruling Friday that William Perry Pendley has been serving unlawfully as the acting director of the Bureau of Land Management.

“Today’s ruling is a win for the Constitution, the rule of law, and our public lands,” Bullock wrote.

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U.S. District Judge Brian Morris said Pendley has served as the acting director of the BLM unlawfully for 424 days without being confirmed to the post by the U.S. Senate.

Pendley’s “ascent to Acting BLM Director did not follow any of the permissible paths set forth by the U.S. Constitution or the (Federal Vacancies Reform Act),” Morris wrote in his opinion. “Pendley has not been nominated by the President and has not been confirmed by the Senate to serve as BLM Director.”

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“Under Federal Defendants’ theory, a President could ignore their constitutional appointment responsibility indefinitely and instead delegate authority directly or through Cabinet Secretaries to unconfirmed appointed officials. Such an arrangement could last for an entire presidential administration. In fact, the case before the Court presents that scenario.”

The administration’s theory “flies in the face of the constitutional design.”

An Interior spokesman told CNN the administration will appeal immediately. In the meantime, Morris gave both sides of the case 10 days to file briefs about which of Pendley’s order must be vacated.

We all intuitively know that someone exercising the power of BLM director without Senate confirmation doesn’t square with the law.

Witnessing in action the checks and balances design of our Constitution is a thing of beauty.

James Madison and the Declaration

Paul Specht at PolitiFact:

Speaking at the Republican National Convention, 25-year-old congressional candidate Madison Cawthorn said that people who doubt young people "don’t know American history."

Cawthorn, who faces Democrat Moe Davis in North Carolina’s 11th Congressional District, then reeled off a few historical figures who were young when they helped change America.

"George Washington was 21 when he received his first military commission. Abe Lincoln: 22 when he first ran for office. My personal favorite: James Madison was just 25 years old when he signed the Declaration of Independence," Cawthorn said.

While Cawthorn’s claims about Washington and Lincoln merit minor corrections, there’s a big problem with his claim about Madison.

Madison did turn 25 in 1776, the same year the Declaration of Independence was signed. But Madison didn’t sign it. You can see the list of signatories on the website for the National Archives.

Transparency v. Deliberation

Yuval Levin at AEI:

Members consequently use their positions to build personal brands and to excite fans and followers.

But these trends have been greatly exacerbated by a further transformation that does not get enough attention: the loss of protected spaces for deliberation in Congress in the name of transparency. Every institution needs an inner life — a sanctum where its work is really done. This is especially true in a legislature, where members must deliberate and bargain to reach practical compromises. There is no such thing as bargaining in public.

The American constitutional system owes its origins to its framers’ understanding of that fact. The Constitution was conceived by a convention held behind closed doors. “Had the deliberations been open,” Alexander Hamilton argued in 1792, “the clamours of faction would have prevented any satisfactory result.” The point was not to keep out the public’s interests and views—the members present still spoke up for their states. The point was to provide a protected arena to work out deals. By retreating to a private space to deliberate, the convention’s members were able to try out ideas, let proposals be floated, and avoid embarrassing one another in public or using one another as props. Decades later, James Madison told the historian Jared Sparks that he thought “no Constitution would ever have been adopted by the Convention if the debates had been public.”

But Congress has progressively lost its inner life, as all of its deliberative spaces have become performative spaces, everything has become televised and live-streamed, and there is less and less room and time for talking in private. By now, about the only protected spaces left are the leadership offices around midnight as a government shutdown approaches, so it is hardly surprising that this is where and when a great deal of important legislation gets made.

Administrative agencies offer another cloistered venue for negotiation and bargaining, and so significant legislative power has moved to those agencies, where it can be exercised effectively—but not legitimately. Conservatives rightly complain that legislative power without legislative forms can easily become tyrannical, but we tend not to notice that a major driver of this shift in recent decades has been Congress itself, which has altered its own forms and functions in ways that have crippled its ability to act legislatively.

All of this has happened in pursuit of transparency. And transparency is a good thing, up to a point. Without it, institutions that serve a public purpose can easily become debased and unaccountable. But every good thing is a matter of degree, and political reformers have treated transparency as a benefit with no costs, when in fact it can have enormous costs that have to be accounted for. In this case, the price can be measured in a loss of bargaining spaces, and the result of ignoring it is a Congress that increasingly has the appearance of a show.

Madison, Delegates, and Trustees

Jay Cost at AEI:

• Recent impeachment controversies emphasize the competing views of representation in a republic—encapsulated by the delegate and trustee models.
• As both a first-rank political philosopher and an enlightened practitioner of republican government, James Madison can help shed light on these disputes through his theory and statecraft on how politicians should represent the people.
• Madison’s extensive efforts to enact the Bill of Rights demonstrate how he sought to reflect the best elements of public opinion for the good of the nation, effectively merging the delegate and trustee models.
• Contemporary statesmen can learn valuable, practical lessons from Madison’s example.

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.

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 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.”).

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 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).

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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.

James Madison on Freedom of the Press

Many posts have discussed freedom of the press in the United States.

James Madison, The Report of 1800, January 7, 1800.

Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true, than in that of the press. It has accordingly been decided by the practice of the states, that it is better to leave a few of its noxious branches, to their luxuriant growth, than by pruning them away, to injure the vigor of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect, that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity, over error and oppression...

The Cost of the American Revolution

Jay Cost at National Review:

On an absolute scale, the American Revolution was a relatively modest affair. However, judged in light of the tiny American economy of 1776–83, it was an enormous undertaking. As a percentage of GDP, the Revolutionary War cost the United States about as much as World War I did (and remember that, before the absolutely massive conflict of World War II, World War I was known as “the Great War”).

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The war effort was the single greatest reason for the nationalist movement of the 1780s, which led in turn to the Constitution. The 1770s was characterized by a revolutionary fervor — informed by a simple, virtuous type of republicanism that rings through the Declaration of Independence. That was the ethos of Patrick Henry, Richard Henry Lee, and Samuel Adams. But five years later, it was others — such as George Washington, Robert Morris, James Madison, and Alexander Hamilton — who had to reckon with the prospect of a failed revolution. They had to deal with the impossible challenge of running a government completely unequipped for the task at hand. This is the origin of our Constitution, born first and foremost of the sacrifice of the Revolutionary soldiers.

Basic Madison

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

Jefferson, Adams, Citizenship, Friendship

Alexander Khan at National Review:

Citizenship in America is in a troubling state. In 2015, the American Council of Trustees and Alumni conducted a survey of college graduates which found that only 28.4 percent could name James Madison as the father of the Constitution. Thirty-nine percent did not know that Congress had the war power, and roughly 45 percent did not know the length of congressional terms. In 2017, the Annenberg Public Policy Center found that 37 percent of Americans could not name any of the rights in the First Amendment, and that only 26 percent could name all three branches of government. Gallup poll results from 2018 reveal that young Americans’ views of capitalism and socialism have switched since 2010, with only 45 percent of respondents now professing a positive view of the capitalist system. A November 2018 YouGov poll revealed that Americans’ patriotism and knowledge of civics was troublingly low. More recently, in January 2019, Gallup released survey results which showed that 30 percent of younger Americans, a record high, would like to permanently leave the U.S. Unfortunately, these results are not shocking. Each new poll extends the long line of depressing findings.

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 While liberal education will never be a cure-all for the disgraceful state of civic life and historical knowledge in America, its renewal in a spirit of friendship is essential if we seek to tackle our citizenship deficit. Students educated in such an environment will not only deeply understand the ideas and principles of the Founders and of Americans throughout history, but they will also come to understand their own connection to those ideas. They will feel invested in the future of their country and in the principles that form its foundation. This educational environment will also affect the concern and interest students have in what government does, how it acts, and the way in which they see their rights and duties. Robust engagement in the classroom naturally translates to the open marketplace of ideas and the active world of citizenship. These students will serve as examples to their fellow citizens, expanding the education of the classroom to the entire country. In the fight to restore civic life and knowledge in America, the rebuilding of liberal education in the spirit of Jefferson and Adams’s friendship is an essential component.

Thanksgiving Proclamations

Richard Samuelson at Law and Liberty:

George Washington set the tone for the office in many ways, none more so than in his Thanksgiving Proclamation, given in October, 1789, seven months after he took the oath of office. Why have such a proclamation at all? Where in Article I, Section 8 (the section that lists the powers the people gave the federal government) is the power to proclaim a federal holiday? In 1791 James Madison would criticize Alexander Hamilton’s assertion that the U.S. government has the authority to create a national bank, for nowhere in the Constitution did the people give the federal government the right to create a bank or to create a corporation (an entity that had traditionally been regarded as a “person” in the eyes of the law). And fourteen years later, the Louisiana Purchase would tie President Jefferson in knots, for nowhere did the people give the U.S. government the right to acquire territory. Yet Madison lost the national bank argument in 1791 and by 1816 he had changed his mind about its constitutionality. Meanwhile, Jefferson didn’t stop the Senate from ratifying the Louisiana Purchase. In other words, he and Madison implicitly accepted that there are some powers that belong to government due to the nature of the thing, and when the people created the U.S. government they, of necessity, allowed it those powers without which no government can function.

The authority to proclaim a Thanksgiving might seem trivial to us—mere words, and an idle declaration. But it is, in fact, fraught with meaning, for the assumption of such authority highlights the degree to which a President is, by nature, much like a monarch—albeit an elected one. Similarly, it points us to the limits of secular nationalism.

Consider President Washington’s Thanksgiving Proclamation. He begins with the universal “duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor.” But then he stops, as if he knew some might ask why the President is involved. Washington goes on, “Whereas both Houses of Congress have, by their joint committee, requested me ‘to recommend to the people of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a a form of government for their safety and happiness.’” Congress asked Washington to proclaim the day. An interesting request. Congress did not pass a law proclaiming a day of Thanksgiving. Such an act may, according to some constructions of the Constitution, have crossed over into an establishment of religion. Instead, they have merely asked the President to “recommend” such an observance to the people. But if it’s not a law, wherefore does the authority come from? It must adhere in the nature of the thing.