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.”

...

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?

Presidents and the Press: The Early Years

 Many posts have discussed the relationship between presidents and the press. 

Todd Andrlik at Mount Vernon:

Washington read newspapers voraciously and understood the immense power of the printed word. Bruce Chadwick, one of 37 historian contributors to Reporting the Revolutionary War, wrote in George Washington’s War (2004) that “The help of the press was another part of Washington’s winter [of 1777] strategy. The general read as many newspapers as he could… he had friends in every major city in the states send him their newspapers and asked anyone scheduled to visit him to bring along the latest editions. He read them to find out how the press and public felt about the army – and him – but also to determine what the British were doing.”

The following winter, Washington received authorization from Congress to fund the publication of the New-Jersey Journal, a completely army-controlled newspaper that served as Washington’s mouthpiece and helped offset the political vitriol from James Rivington’s and James Humphreys’ Loyalist papers being printed in British-occupied New York and Philadelphia. The story of the Journal is well told in Chadwick’s volume. In Reporting the Revolutionary War, general audiences can now experience firsthand the same impressive assortment of war intelligence and public opinion that Washington craved from newspapers.

Shannon Duffy at Mount Vernon:

The peak of press attacks against Washington came with the public announcement of the controversial Jay Treaty with Great Britain in 1794, which attempted to ward off an impending war with Britain at the expense of American-French relations. Even before the terms of the treaty were announced, Jay's negotiations stirred up widespread opposition. The hostility was triggered not only by anti-British sentiment, but also by fears that the President was overstepping his authority in negotiating the treaty.

Washington's apparent refusal to acknowledge public opposition to the treaty added to a general discomfort with the power he was wielding. "Belisarius" cast harsh aspersions upon Washington's high-handed manner, which he saw as emblematic of the entire administration: "a brief but trite review of your six years administration, mark the progressive steps which have led the way to the present public evils that afflict your country. . .the unerring voice of posterity will not fail to render the just sentence of condemnation on the man who has entailed upon his country deep and incurable public evils."3

John R. Vile at The Free Speech Center:

In 1792, the new Congress under the Constitution adopted further legislation on the postal service. In setting rates, from 6 cents to 25 cents per letter (depending on the distance it was being sent), Congress provided that newspapers would be charged only 1 or 1 1/2 cents, again based on distance. The law also allowed designated governmental officials including the president, vice president, cabinet officers, and members of Congress to send mail related to their offices for free. This practice, which continues today, is known as the franking privilege.

To facilitate the exchange of information, the law continued the earlier practice that provided that “every printer of newspapers may send one paper to each and every other printer of newspapers within the United States, free of postage, under such regulations, as the Postmaster General shall provide.”

Peter McNamara at The Free Speech Center:

Scholars have traditionally cited 17 indictments and 10 convictions, many upon charges so flimsy as to be comical.  Targets of the act tended to be the editors of Democratic-Republican newspapers who criticized the Federalist administration of President John Adams.

...

The prosecutions and subsequent convictions under the Sedition Act galvanized opposition to the Federalist administration. (Samuel Chase, a Supreme Court justice, was particularly partisan toward the Sedition Act when presiding over prosecutions, and was later impeached for this.) The prosecuted Republican printers and editors became folk heroes. In the election of 1800, the Federalists were swept from power—never to return—and Jefferson, the new Democratic-Republican president, subsequently pardoned those who had been convicted under the law.

Almost 170 years later, the Supreme Court wrote in the celebrated libel case New York Times Co. v. Sullivan (1964): “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.” Today, the Sedition Act of 1798 is generally remembered as a violation of fundamental First Amendment principles.

The Federalists in 1800 turned to papers to warn about the election of Thomas Jefferson: 

Monticello:

In order to curb Alexander Hamilton's influence, [James Thomson} Callender published, in his The History of the United States for 1796, a report of the affair between Alexander Hamilton and Maria Reynolds, a married woman.[4] The day before the Alien and Sedition Acts became law on July 13, 1798, Callender fled to Virginia to the home of Senator Stevens Thomson Mason of Loudoun County. Then, in 1799, he moved to Richmond where he wrote for the Richmond Recorder. His anti-Federalist pamphlet, The Prospect Before Us, led to his prosecution under the Sedition Act.[5] He was sentenced on May 24, 1800, to nine months in jail and a $200 fine.

When he got out of jail in the spring of 1801, Callender expected President Jefferson to reward him for his work and his loyalty. He wanted the Richmond postmaster job but he did not get it. In the president's view, Callender was now too radical, and in an attempt to foster reconciliation after the difficult election of 1800, Jefferson did not patronize the more militant or radical Republicans. As Jefferson wrote, "I am really mortified at the base ingratitude of Callender. it presents human nature in a hideous form."[6] In February 1802, Callender joined with Federalist newspaper editor Henry Pace and began to attack both parties, particularly the Republicans and specifically Jefferson. In a series of articles beginning on September 1, 1802, Callender alleged that Jefferson had several children by a slave concubine, Sally Hemings.[7]

Free Speech Center;

Before either of these events, a riot in Baltimore reflected local anger over the publication of the Federalist Republic, a newspaper run by Alexander Contee Hanson.

Reflecting sentiments that prevailed among members of the Federalist Party, it had vehemently opposed American participation in the War of 1812, which Congress had declared at the request of President James Madison, largely over English interference with American shipping. After being driven from his business by rioters, Hanson had retreated to Georgetown but returned to Baltimore where he resumed his vitriolic verbal attacks against the war and its Democratic-Republican supporters.

 

James Madison, Majority Leader

 At AEI, Jay Cost writes that Madison was effectively the first House majority leader.

To be clear, Madison never held that title in the same way that Rep. Steve Scalise (R-LA) currently does. The title did not exist when Congress first opened its doors in the spring of 1789. Almost nothing did. Nowadays, a new member of Congress must learn all manner of rules and procedures to be an effective member. There is even a mandatory orientation session they all are supposed to take. But when the House gaveled into session in April 1789 there were no rules beyond those briefly laid out in the Constitution. There was no organization beyond the speaker, whose role was completely undefined in the Constitution. It was into this vacuum stepped Madison.

...
Madison rose to the top of the congressional heap thanks to his extensive experience in legislative assemblies, which he had been serving in since 1776, as well as his almost superhuman work ethic. In doing so, he took the lead in three essential projects for the new nation—the impost, the establishment of the State Department, and the Bill of Rights.

...

All in all, Madison was the essential man of the first meeting of Congress. Perhaps the best illustration of his influence was George Washington’s inaugural address. The president had his secretary, David Humphreys, write an early draft of it, but unsatisfied with the result, he turned to Madison in February 1789, who was traveling from his home in the Virginia Piedmont to New York City. Madison served as Washington’s ghostwriter, refining the points the president which to make into the polished draft that became part of history. A few months later, the House appointed a select committee to write an official response to the inaugural, with Madison serving as chair. And so it was that communication between the executive and the legislature was essentially Madison corresponding with himself!

Madison’s time as leader of the Federalists in Congress was short lived. The first session of Congress ended in September 1789. When the second session began in January 1790, Alexander Hamilton submitted the Report on Public Credit, the first of several proposals that would transform American public finance and the shape of its politics. Hamilton would become de facto prime minister of the Washington Administration, while Madison would oppose him, in so doing planting the seeds of American partisanship. Madisonian opposition in the House would, in short order, blossom into a broad-based political coalition known at the time as the Republican Party (today referred to as the Democratic-Republican Party). Madison would win election to the second and third Congresses, but retire in 1797 to his Montpelier homestead, returning to government in 1801 as the secretary of state.

The period of Madison’s domination of the House was quite brief, from April to September 1789. But it constitutes one of the most significant accomplishments of his career in government. Not only was he essential in enacting important pieces of legislation, he helped establish the way the House would do business and prove to the nation that Congress could accomplish the tasks the Constitution laid out for it.

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.  

A Dark Direction

Many posts have discussed presidential power.

 Editorial at The Dispatch:

[N]owhere is the evidence of the new right’s willful decline more obvious than in its rejection of fidelity to the rule of law and the Constitution. As the Trump administration ignores due process, encroaches upon press freedom, and subverts the independence of the judiciary—all central pillars of self-government—top executive branch officials and Republican members of Congress turn a blind eye, or cheer it on. And let us be clear: The previous administration was no paragon of civic health either. Our own Sarah Isgur argued earlier this year that Joe Biden left office in January having caused more damage to the rule of law than any of his predecessors. But the Biden administration’s myriad failures and abuses are not a warrant for this administration to do worse in the spirit of “retribution.”

Take, for example, the administration’s ongoing campaign of intimidation against law firms. These executive orders may have begun as an exercise in retaliation, but their initial success at extracting concessions and capitulation has given way to both a shakedown operation and a means of hacking the rule of law and the constitutional order. Lawyers who might want to take on clients targeted by this administration have, in effect, been told, “That’s a nice little law firm you have there, it’d be a shame if something happened to it.”

But the administration’s most disturbing assault on the Constitution is the one it cynically touts as a patriotic defense of it: a president’s unchecked power. There is plenty of scholarship supporting the theories of the unitary executive; at a basic level, the arguments are uncontroversial and defensible. But the idea of the unitary executive is not, and has never been, a warrant for what Edmund Burke, John Locke, and the Founders called “arbitrary power.” As James Madison wrote in Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

We are not there yet. Our sadly enfeebled institutions and deteriorating commitment to republican government are not yet so enervated as to permit outright tyranny, and we are encouraged by fledgling efforts by lawmakers to reclaim some of the authority granted to the legislative branch by Article I of the Constitution, however unlikely they are to succeed. But the rhetoric coming out of the White House—and the logic underpinning it—is moving rapidly in a dark direction. Donald Trump’s musings about serving a third term or his promotion of a Napoleon quote—“He who saves his Country does not violate any Law”—may be discounted as trolling, but as our own Nick Catoggio has noted, when it comes to Trump, “everything’s a joke until it isn’t.”

Spitting on James Madison's Grave

Many posts have discussed the separation of powers, which is rapidly eroding.

Carl Hulse and Catie Edmondson at NYT:

The Republican-led Congress isn’t just watching the Trump administration gobble up its constitutional powers. It is enthusiastically turning them over to the White House.

G.O.P. lawmakers are doing so this week by embracing a stopgap spending bill that gives the administration wide discretion over how federal dollars are distributed, in effect handing off the legislative branch’s spending authority to President Trump. But that is just one example of how Congress, under unified Republican control, is proactively relinquishing some of its fundamental and critical authority on oversight, economic issues and more.

As they cleared the way for passing the spending measure on Tuesday, House Republicans leaders also quietly surrendered their chamber’s ability to undo Mr. Trump’s tariffs on Mexico, Canada and China in an effort to shield their members from having to take a politically tough vote. That switched off the only legislative recourse that Congress has to challenge the tariffs that are all but certain to have a major impact on their constituents.

Republicans have also stood by, many of them cheering, as the administration has upended federal departments and programs funded by Congress and fired thousands of workers with no notice to or consultation with the lawmakers charged with overseeing federal agencies. So far, no congressional committee has held an oversight hearing to scrutinize the moves or demand answers that would typically be expected when an administration undertakes such major changes.

 “This is us, in a sense, giving the keys to the president to be able to continue to do the great work that they’re doing,” Representative Michael Cloud, Republican of Texas, said this week. Mr. Cloud, who rarely votes in favor of spending bills, was explaining his support for the stopgap funding measure the House passed this week and is pending in the Senate.

Madison and Virtue

 Many posts have discussed civic virtue.

James Madison, June 20, 1788

 But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.

Tariffs Are Bad

 Phillip W. Magness at Cato:

• James Madison viewed tariffs as necessary to raise revenue but was caught off-guard by early attempts to enact tariffs for industry protection.
• Alexander Hamilton and Henry Clay supported the use of tariffs to stimulate infant industries. However, there’s little evidence the American System of tariffs and industrial subsidies was responsible for American economic growth in the 19th century.
• Contrary to the “national conservative” narrative, many of the leading figures of the American Founding opposed the protectionist arguments of Hamilton and Clay.
• From 1789 to 1934, tariff-seeking industries were notorious for diverting resources into rent-seeking, or the lobbying of Congress for preferential rates with bribes and backroom deals.
• Corruption associated with protectionist tariff policy of the late 19th century directly led to adoption of the 16th Amendment and the federal income tax as an alternative revenue system.
• Modern American trade policy was restructured in 1934 to bypass the disastrous Smoot–Hawley Tariff Act of 1930, which exacerbated the Great Depression and illustrated the tendency of protectionist tariffs to serve corrupt interest groups.

Civic Virtue

Many posts have discussed volunteering and civic virtue.

Brooks, Arthur C. "America's Crisis of Civic Virtue." Journal of Democracy 35, no. 2 (2024): 23-39. https://doi.org/10.1353/jod.2024.a922831.

Civic virtue is the set of personal qualities associated with a civil or political order. It is a shared set of behavioral norms and basic moral rules that make the order's functioning possible. Tocqueville believed that this undergirded the American experiment with democracy and free enterprise, which could not be guaranteed by laws and coercion, but  only by voluntary adherence to virtuous behaviors such as honesty and civility.9

Some of the Founders doubted whether ordinary Americans possessed sufficient civic virtue for democratic self-government. In January 1776, six months before independence was declared, John Adams wrote fretfully to Mercy Otis Warren that "there is So much Rascallity, so much Venality and Corruption, so much Avarice and Ambition, such a Rage for Profit and Commerce among all Ranks and Degrees of Men even in America, that I sometimes doubt whether there is public Virtue enough to support a Republic."10 In 1788, James Madison agreed that a lack of civic virtue would doom the republic: "To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea."11 He believed, however, that ordinary Americans were sufficiently wise and virtuous to use the democratic system to choose good leaders, for immediately after uttering these words, he added: "If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend upon their virtue, or put confidence in our rulers, but in the people who are to choose them."

Civic virtue promotes trust within a society; then we can be confident that outward honesty and civility will be reciprocated by others. This trust is akin to what Robert Putnam famously called "social capital" in this journal in 1995.12 Social capital comes in two forms: bonding and bridging. The former creates solidarity and trust between people who are alike based on a shared identity (the in-group), but not with those who do not share this identity (the out-group). While bonding social capital can create a strong sense of belonging, it does not necessarily foster public trust due to its tendency to foster an "us-versus-them" mentality. By contrast, bridging social capital acts like a glue that holds differing groups together, thus breaking down barriers and fostering trust between people who are not alike.

As political theorist Kevin Vallier notes, trust through bridging social capital takes several forms—social, legal, and political. Social trust refers to the confidence we have that our fellow citizens will generally not take advantage of us.13 This refers to friends and family, of course, but also to strangers in the marketplace. Legal trust refers to institutions such as law enforcement and the courts. Political trust is placed in government officials, elected and nonelected, who are assumed not to use their special access to power to enrich themselves and their friends, or to disadvantage their enemies.

Francis Fukuyama argues that the trust instantiated in social capital (especially bridging capital), mediated by civic virtue, makes voluntary exchange and democratic governance possible.14 When people trust others—even strangers—to be fundamentally honest and civil, they feel more free to carry out economic transactions with reasonable confidence, and can take part in elections with similar confidence that the voting will not be rigged.

This, scholars have found, can initiate a virtuous cycle in which trust in others' virtue stimulates market exchange and democracy, which in turn raise trust. This cycle then raises societal well-being overall. Research by Sonja Zmerli and Ken Newton shows that when markets are backed by property rights, and when social norms encourage mutually beneficial exchanges among strangers, general trust grows.15 In addition, well-functioning markets make corruption less attractive by opening a path to wealth that is more lucrative, and less risky, than efforts to get rich by abusing public office.

The idea that trust promotes capitalism, which in turn further raises trust, is supported by empirical evidence. Analyzing data gathered from eighty countries during the years 1990 through 2020, economist Johan Graafland finds that: 1) civic virtues of honesty and civility reinforce free markets and vice-versa; 2) trust lies behind civic virtues, the rule of law, and thus democracy; 3) civic virtues are positively related to citizens' feelings of life satisfaction; and 4) the rule of law increases well-being by means of trust and civic virtues.16

Dodgeball and Deliberation

Don Wolfensberger at The Hill:

There was a time, in the not-too-distant past, when House members were drilled by their leaders at the beginning of a new Congress on three unwritten party rules they were expected obey without exception. First, always vote for your party’s nominee for Speaker; second, always support your party’s package of House rules proposed at the opening of a Congress; and, third, always vote for your party’s position on special rule resolutions from the Rules Committee that set the terms of debate and amendment on major legislation. The Rules Committee was known then, at least, as “the Speaker’s committee” because it reflected the leadership’s policy priorities and procedural means of considering them.

For a small group of hard-right junior Republicans, all three of those rules were tossed out of the window as the beginning of this 118th Congress. They first balked at electing Rep. Kevin McCarthy (R-Calif.) as Speaker over the course of four days and 14 ballots until they had wrested from him certain concessions on House rules changes and processes they wanted him to adhere to.

... 

In grappling for an appropriate analogy for this new procedural game in town, I finally settled on circle dodgeball, labeled here as “procedural dodgeball.” A large circle is drawn and, in the middle a smaller circle with five or so targets (or leaders). Around the perimeter are 20 or so throwers (rebels) on marked spots who try to eliminate the players in the middle by hitting them below the waist with dodge balls. Once all the center circle targets are eliminated, they switch places with a comparable number of throwers in the inner circle until they in turn are all removed. And back and forth it goes, between special rules and the suspension bills.

Unfortunately, all the players on the inner and outer circles are of the same party. The Democrats, on the other hand, are in the stands, cheering on both sides in their game of self-elimination, while providing sufficient votes on special rules to allow the handful of rebels to prevail in defeating those rules.

It’s difficult to predict when or whether all this will end. But it is a far cry from James Madison’s ideal of a Congress in which various competing factions overcome their hostilities and finally come together to act in the public interest after extended deliberations over the nature of the problems and its solution. Deliberation today is in short supply. Performative, partisan point-making has replaced serious national lawmaking as the order of the day.

Is Maladministration an Impeachable Offense? Madison Said no.

Many posts have discussed impeachment, including the impeachment of former officials.

Records of the Federal Convention [1:85; Madison, 2 June]

Col. Mason. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined--As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He movd. to add after "bribery" "or maladministration". Mr. Gerry seconded him--

Mr Madison So vague a term will be equivalent to a tenure during pleasure of the Senate.

Mr Govr Morris, it will not be put in force & can do no harm-- An election of every four years will prevent maladministration.

Col. Mason withdrew "maladministration" & substitutes "other high crimes & misdemeanors" agst. the State"

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.”

...

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