Misrepresenting Madison, Destabilizing Democracy By Thomas Koenig
https://www.nationalreview.com/2022/01/misrepresenting-madison-destabilizing-democracy/#slide-1
A Columbia law professor takes to the New York Times to libel the Constitution’s chief architect and to propose system-unsettling changes to our politics.
T here is much talk of the impending death of American democracy. Some of it is worth reading and worrying about. A volatile situation is brewing as partisan tribes become more internally homogenous and distanced from one another — geographically, ideologically, and culturally.
We can ward off potential disaster via piecemeal changes geared toward lowering the temperature and weakening the power of the most extreme elements in our politics; we will catalyze disaster through brash, systemic overhauls. Enter Columbia Law professor Jedediah Britton-Purdy and his recent New York Times opinion piece, “The Republican Party Is Succeeding Because We Are Not a True Democracy.”
In support of his advocacy for constitutional change by simple majority, Britton-Purdy draws a straight line from our supposedly antidemocratic constitutional structure to much of the Republican Party’s (ongoing) descent into conspiracy and rejection of the democratic process during the Trump era.
He argues that “an antidemocratic system has bred an antidemocratic party,” while claiming that key Founders such as James Madison harbored “elite dislike and mistrust of majority rule” that they then translated into an antidemocratic document. That’s not true.
The current iteration of the Republican Party has many problems. But we can’t let partisan arguments slip into libels of the Constitution and its Framers for a simple reason: Recommitting ourselves to their insights regarding government and human nature — and the Constitution they framed embodying those very insights — is the only way we’ll forge a functional politics. Defaming the dead isn’t a good call when it is their wisdom that could help lead us out of our present mess.
At the national level, constitutional overhauls via simple majorities such as those proposed by Britton-Purdy offer the surest means of catalyzing actual breakdown and violence. Resuscitating constitutional values and opting for piecemeal reforms through the legislative and amendment processes provide our best bet at muddling through these strange, overcharged, challenging times.
It’s objectively silly to argue that the Constitution’s supposedly antidemocratic structures — think of the Electoral College and equal state representation in the Senate — are responsible for the GOP’s Trump-era defects. These constitutional structures have been around for a long time, and only recently have Republicans begun searching for Chinese bamboo fibers in ballots. The Constitution is not responsible for Trump’s stolen-election myth in 2020, or for how he acted on it. Nor is it responsible for various suspect attempts, such as by John Eastman, to justify his beliefs and actions. That’s on us.
Britton-Purdy, however, claims that without the Electoral College, “there would have been no constitutional machinery to jam” last January 6. Well, there also would be little legal “machinery to jam” going forward if Congress were to take the simple step of amending the Electoral Count Act. Yet Democrats are instead fixated on combatting voter suppression in the wake of an election that set records for voter turnout. Meanwhile, there are plenty of simple electoral reforms with bipartisan appeal that could actually shore up American democracy. Simple legislative fixes be damned; instead, we’re told that overhaul of our antidemocratic Constitution is what’s needed.
And here’s where libeling the dead comes in. According to Britton-Purdy, our system has been antidemocratic by design since the start. He claims that one of the Constitution’s lead architects, James Madison, was guilty of antidemocratic “condescension” and “mistrust” of majority rule. To support this striking assertion, he quotes Madison in Federalist No. 55, where Madison wrote: “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”
But the preceding sentence in Federalist No. 55 makes clear that Madison’s quip was not anti-democracy; it was in opposition to having too large a representative legislature: “In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason.” In no way was Madison questioning the right of the majority to rule.
Indeed, a passing familiarity with Madison’s political thought makes clear that he was a majoritarian through and through. According to Madison, “the people were in fact, the fountain of all power.” Madison believed human beings were equipped with sufficient virtue to rise to the challenge of self-government; he rejected the notion that “nothing less than the chains of despotism can restrain [humans] from destroying and devouring one another.”
Madison understood that the choice was simple: “the general question must be between a republican Govern’t in which the majority rule the minority, and a Govt in which a lesser number or the least number rule the majority.” Madison never wavered in his belief in the majority’s rightful rule.
As scholars such as Greg Weiner have explained, Madison “never questioned the majority’s rightful authority to make decisions.” With the Constitution, Madison et al. sought to filter the majority’s ability to rule through cooling mechanisms that would result in laws dictated more by reason than by passion. Exercising prudence does not amount to rejecting democratic principles. Indeed, is not that the essence of American constitutionalism — the prudential restraint of democratic power?
In critiquing the Senate and Electoral College as anti-democratic, it’s ironic that Britton-Purdy takes aim at Madison, for Madison himself was no fan of the state-centered structure of both the Electoral College and the Senate. Indeed, Madison was such a majoritarian that he did not even question the right of a bare majority to upend the Constitution: “My idea of the sovereignty of the people is, that the people can change the constitution if they please, but while the constitution exists, they must conform themselves to its dictates.” Modern scholars such as Akhil Amar have long recognized this. Britton-Purdy himself even gives a nod to Madison on this front.
Here again, though, prudence is important. Like everything else in life — political and otherwise — having the right to do something does not mean one should do it. Federalist No. 49 makes this point clear: Constitutional change, especially via bare majorities, is a “ticklish” and tricky business and is especially dangerous when the “spirit of party [is] connected with the changes to be made.” Madison thought that many Founding-era state legislatures had failed this test in setting up their constitutions; surely today, so would we at the national level.
Indeed, nothing that Britton-Purdy proposes in his op-ed is devoid of partisan coloring. And nothing that he — or anyone today, really — is advocating warrants constitutional overhaul via bare majoritarianism. Whatever one thinks of the propriety of the Electoral College or equal state representation in the Senate today — especially now that our state political identities have all but disappeared — upending them via bare majorities would be asking for further partisan uproar and animosity.
The best we can do is muddle through, maintain, and tinker, approaching public affairs with “a spirit of moderation” as Madison counseled, and resisting the calls for destabilizing changes. Madison himself was disappointed with the Constitution’s concessions to the states’ jealous protection of their sovereignty, but he then proceeded to work within the system — never losing faith in the American experiment up through the day he died. We can and should do the same as we opt for piecemeal, sensible reforms, grounded in gratitude for the genius of the system passed down to us by the likes of Madison.
But heck: Even if we can’t do that, the least we can do is not libel the Constitution’s dead dad.
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