Skip to comments.Federalism and Freedom (2017)
Posted on 01/29/2023 9:28:37 AM PST by Jacquerie
Can an extensive nation keep free government and avoid centralization?
In 1787-1788, the Anti-Federalists didn’t think so and the Federalists couldn’t be sure. Charles de Montesquieu (1689 – 1755) wrote in The Spirit of the Laws, “It is natural for a republic to have only a small territory; otherwise it cannot long subsist. In an extensive republic, the public good is sacrificed to a thousand private views.” Only in small republics, ideally of the Greek city-state size, are private interests and abuses minimized and the general welfare of the public is better understood and within the reach of every citizen.1
Free government wasn’t found in large empires. The peoples of Russia, Spain, the Turkish domains and France were oppressed and ruled by force rather than through voluntary cooperation in a free society. In these despotic regimes, Montesquieu noted that the wise ruler made allowances for varying customs and traditions. For example, it was in the interest of the Russian czar to appeal to Christian Orthodoxy in his western domains and Islam in his eastern provinces. Only a foolish despot would risk rebellion through a uniform set of laws imposed across extensive territories with diverse peoples. The United States would be a far happier nation today if the scotus understood this maxim.2
All the above was well-known by the leading men of America. If Anti-Federalists were to sink ratification, it would likely be on the shoals of the impossibility of an expansive free republic. History, observation, and their own experiences in self-government among thirteen smallish states proved their point that any people who were to govern themselves must be more or less homogenous in interest, opinions, habits, and mores.
Illustrative of the Anti-Federalist press were the writings of “An Old Whig.” In The Independent Gazetteer of Philadelphia, he wrote, “From the moment we become one great Republic, either in form or substance, the period is very shortly removed, when we shall sink first into monarchy, and then into despotism.”3 From Massachusetts to Georgia, America started off large and expected to grow larger. How could so many diverse peoples, each with distinct interests, peacefully combine in a representative republic rather than centralized despotic government? Wouldn’t factions form around local interests? In the Tenth Federalist, James Madison defined a faction as “a group of citizens, either a majority or minority, united and actuated by some common passion or interest adverse to the rights of other citizens or to the aggregate interests of the community.”
Madison identified two solutions. Either remove the causes of factions, or control its effects.
Remove the Causes. The first and obvious solution was destruction of the liberty to form factions. Anti-Federalists feared that eventually, as diverse peoples clawed at each other’s throats, the new government would use its power to tax and raise armies to keep the peace. Through freedom-choking uniformity in laws that stomped on free speech, free press, and freedom of association, consolidation was unavoidable. Tranquility through the law and oppression, just like Czarist Russia.
Control its Effects. Factions are inevitable in a free society. Madison wrote that “Liberty is to faction what air is to fire.” Like fire, factions are dangerous if their effects are not controlled. The size and structure of the American Union provided what Madison called, “a republican remedy for the most common diseases (faction) of republican government.”
He posited that larger republics, such as the existing states in the union, and plenty more of them, would limit the danger posed by factions by diffusing their harmful effects across a continent-wide republic. Without a majority, factions were prevented from consolidating the new government into a central, unified, single, oppressive government over all.
Unfortunately, the rise of political parties, especially the modern democrat party, worked around the first portion (the size of the Union) of James Madison’s theory to limit the baneful effects of faction. The democrat party vacuums up every poisonous anti-American faction it can find and strives for power at any cost . . . even the demise of the United States. Whether it is a small faction limited to a city, like Green Action of San Francisco, or one with nationwide reach, like the Southern Poverty Law Center, no destructive progressive group is too small or large to be welcomed into the vicious faction known as the democrat party.
Secondly, and much more effectively, the structure of the American Union, a republic composed of member republics with their own legislative chamber, the Senate, was Madison’s next line of defense against dangerous factions and consolidation of power. This arrangement was an American adaptation of Montesquieu’s idea of an “assemblage of societies,” a confederated republic composed of city-states. When combined in a strong union, member republics present an impressive bulwark against foreign aggression while internally each tiny republic secures the liberty of its citizens.4
For instance, in a working federal system, a democratic demagogue might call for the abolition of student debt. His rants might take hold among several states and gain a following in the House of Representatives. However, the corporate, federal nature of the Senate is likely to oppose such measures and stop dangerous, possibly nationwide factions cold.
So yes, an expansive nation can keep free government and avoid the centralization. This is the stabilizing effect of federalism to which the United States must return. In Part II, we’ll examine diversity, not the corrupt social justice version, but the healthy diversity in society and republican forms that are the hallmark of free government.
Article V ping!
In before the Convention Cowards and Chicken Littles publicly soil their drawers again.
That’s why the 10A is so important (and relegated to lip-service by most politicians)...
Yes, and the 17th practically pulled the 10th from the Bill of Rights.
The Seventeenth Amendment and the Death of Federalism by Ralph A. Rossum (2003, Claremont McKenna College).
Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and Its Implications for Current Reform Proposals by Todd J. Zywicki (1997, Mississippi College School of Law)
Senators and special interests : a public choice analysis of the seventeenth amendment by Todd J. Zywicki (1994, George Mason University). (scroll down to see the text).
1. The states were often slow to appoint replacement senators.
2. The claim that state legislators were in the pocket of the railroads. A claim that was probably somewhat true. It was also said then that governors were in the pocket of railroads. Again, probably somewhat true! If that statewide office picked by the voters can be in the railroads pocket how is picking a senator via the same electoral process an improvement?
The late 1800s to 1920s democracy as defined by the Progressive movement was all the rage. Many political intellectuals thought they were smarter than the Founding Fathers. You should read some Wilson's commentary on them and the Constitution. He was convinced it had outlived its usefulness time!
In 1911, former Secretary of War, and of State, senator Elihu Root, delivered an eloquent and thoughtful defense of indirect election. Our Constitution sought to “insure domestic tranquility.” Stability in government, said Root, “was a matter of vital concern.”
First, he encouraged simple adjustments to the 1866 law that caused electoral deadlocks in state legislatures.
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