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Federalism after Washington

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The deliberations of the Continental Congress sought to innovate liberal constitutional governance in a manner that would empower a large independent national government at thevice of direct popular rule

Article by Jasper Wiggins

Image: James Madison, White House Historical Association

Introduction

Australian Political Analysis Review - Open Source Independent Education

The deliberations of the Continental Congress sought to innovate liberal constitutional
governance in a manner that would empower a large independent national government at the
vice of direct popular rule. Maintaining equilibrium between rule by the few and core
Western European democratic principles of participation, representation and liberty became
the objective of American Federalists. James Madison’s Federalist Papers are emblematic of
the distinctions he offers against pure democratic, deliberative, or equal rule given its
consequences concerning representation and how subsequent legislature should operate.
From the outset, Madison’s appeal to large national government emphasises the balance of
large legislature with rule by the few. However, this notion fails to reconcile procedural
complexity and the discretion of lawmakers, with the capacity for lawmakers to consistently
represent voters. Moreover, disagreement between the majoritarian and the non-majoritarian
mechanism of the legislature, demonstrates how a politically entrenched mechanism can
render independent statutory functions and bodies of civil society, political, at the detriment
of autonomy, opposition, or minority view. Finally, the question of utilising legislation as a
standardised tool for agenda-setting bargaining during elections, questions its effectiveness,
when used arbitrarily by lawmakers.

While Madison’s argument widely encourages greater political participation, ultimately, it
would be to a large extent, a fallacy, to describe the Federalist model as a near-perfect system,
for the empowerment of a deeply politicised and ideologically driven mechanism of the
legislature and civil society contradict Madison’s’ theorised and anticipated harmony between
government, people and institutions, in a largely mobile national legislature where legislation
serves to appease constituents at election rather than amend, correct and revise existing faults
and injustices.

Indirect Representation with Big Government: Complexity, Misrepresentation, and the
Dubious Discretion of Legislators

Madison recognised that the threat of constant conflict posed by delegatory models would serve inconveniently to the size and scope of big government. Thus, his understanding of limited representation as loaned trusteeship concerning legislative office sought to reduce conflict to electoral periods. In doing so, constituent views deriving from each of the three “sectors” of “smaller republics”: local, state, and federal would thereby pass “through a medium” characterised by the character of the legislator for that electorate, in the transmission of a view, idea or grievance to Congress. 

 

On the contrary, Kevin Arceneaux contends that the issue of “complexity”, particularly among people with “low levels of political knowledge” assumes citizens are “capable” of distinguishing political orders. Thus, the consequence subsisting is one of the mass election of legislators to a large sum of posts. Arceneaux’s primary concern relates as to how rational citizens assign their values, beliefs and grievances to candidates elected on mass. Thus, must not only the individual discern which jurisdiction their grievance falls under, but also locate the best-suited candidate eligible and willing to carry a policy to election without inference as to how such policy will be “implemented.” For example, a citizen from California with a grievance toward the upkeep of local national parks will need to differentiate between electing on the State or Federal law-making jurisdiction to either the eight-eight seat Californian State Assembly, or one of the fifty-two Congressional representatives per district.; 

 

Moreover, Arceneaux’s point further scrutinises Alexander Hamilton, who juxtaposes the people’s electoral power as the only “rival to power” of the Central Government. While this notion enshrines the voter’s centrality as a part of electoral mechanism, this assumption however is ignorant to procedural complexity, for a confused voter contradicts any source of viable rivalry posed to the Government. To some extent, perhaps such a framework acts conductively to the political elite for lack of certainty in the political process almost always perpetuates a status-quo mentality. Furthermore, Saul Cornell notes that Washington’s successor, Adams was sympathetic to Jefferson’s term “natural aristocracy,” transposing the concept of virtue from talent to merit, during the Constitutional Convention. While it should be recognised that Adams was aware natural aristocracy could decay into the elitist “artificial” aristocratic pollical class, Saul suggests that Federalists “exploited” the “ambiguous” definition by arguing that “republicanism required” naturally “virtuous” leaders. This theory can be observed to be largely hypocritical, for all ministers in Washington’s first Cabinet were all of the same elite class, implying that merit was attainable with wealth.

 

Nevertheless, Anti-Federalist literature by Thomas Paine further calls into question the issue of legislator’s detachment from their constituency concerning their capacity to represent. Paine’s chief concern was in relation to the significant discretion of lawmakers. If legislators remained detached and therefore insulated from pressures by constituents, there was a chance they would rather act in their own interests upon election. Thus, the quasi-deliberationaloist means of “regular interval” posited by Paine’s Common-Sense pamphlet, favours the mechanism of “regular elections” designed to penetrate the autonomy of legislators, for the people could vote out lawmakers deemed ineffective on greater basis. Madison by contrast, argues the notion of “greater aggregate” (diversity) over constituent views, empowered by trusteeship, rather enables popular voice to be “consonant” or widely appealing to all voters, to perhaps mitigate constant grievances. Paine however, refutes this assertion, arguing that fear of re-election operates more effectively as a check than a moral responsibility owed to the people by leaders as suggested by Edmund Burke, for such a necessity in Paine’s view exists as “matter of right”, rather than non-binding moral thought.;


Lastly, Penniman recognises that Paine’s’ view towards the structural overlaps between the Executive and Judicial branches contradicts the doctrine of the separation of powers. Paine compares the function of a judiciary, citing that in a monarchy “judges may protect the people” whereas in a democracy, they are (by fault of the legislature) “a limitation” on people’s right to “self-government.” This, subsequently, is a product of the legislature’s role in appointing and thereafter, influencing the composition of politicised judicial benches.

The Legislature and its Effects on Civil Society: Majoritarianism V Non-Majoritarianism Mechanism

A significant criticism of the majoritarian mechanism instituted by the Madison Model lies not at fault in the separation of powers, but rather with its extension and thus domination on civil society. George Carey notes that Madison’s hypothesis relied on doctrine of the separation of the Executive, Judicial and Legislative facets of governance to justify a delegating power in a majority as a way of preventing the condition of factionalism, and conflicting interest. By doing so, Madison recognised that each facet would be empowered by “popular majorities” operationalised on the basis of political ideology, to safeguard the will of a majority of electors. On the contrary, Robert Dahl and Paul Edwards argue that discrepancies arise from Madison’s failure to “reconcile” legal rights with factionalism, a term otherwise synonymous with “special interest.”; Dahl explains that a fundamental contradiction emerges with Madison’s logic when he accepts broadly that “all adult citizens” of the republic “must be assigned equal rights”, alongside a political model that guarantees the “status” or influence of a ruling elite.; Therefore, a majoritarian mechanism only truly serves as a compromise in Dahl’s view, as the function of the legislature observes the “minority, rarely trump the majority” without consultation. Dahl, concedes that this dilemma results in the a lack of scrutiny to Government policy that should otherwise press pressure on those who “maximise” what is right or objective. Dahl concludes by inferring that this mentality is comparable to that of aristocrats, for the Government of the day holds absolute agenda-setting and overly proportional deliberative authority. 

 

Moreover, Alexis de Tocqueville stresses that the greatest weakness of the “Madisonian” model is “not it’s weakness, but its irresistible strength.” Power in de Tocqueville’s view should be thus placed somewhere, other than with the majority for it can become “tyrannical.” De Tocqueville thus, argues, that the strength of the majority is unrivalled, for Madison’s model entrenches majority-composition means into civil society in the composition of judicial benches, juries, and county deputy electoral methods. De Tocqueville’s fear thus resides over the consequence that this mechanism has the potentially to penetrate all spheres of “governance and institutions”, through unchallenged imposition if mandate is met. De Tocqueville juxtaposes the Madisonian model with the means by which European models function. Inference suggests that independent statutory bodies such as English courts, thus, preside over greater autonomy and independence from their political counterparts, for judges are nominated on apolitical basis rather than on partisan “ideological leanings.”;


Nonetheless, arguments proposed by John Stuart Mill furthers de Tocqueville’s concern with the majoritarian-logic’s social-cultural implications. Mill contends that “a show of hands” through majoritarian democratic consensus does not “determine wisdom” or objective truth, this is because such logic encourages “conformity” and lack of contrariety. In his view, “more or less” restrictive suffrage on plural voting can overcome “low grade” intelligence of representatives, and citizenry, in addition to the possibility of “a single class” dominating the legislature’s composition. While Mill’s demeaning attitude towards lower class voters contradicts with his own emphasis on electoral participation, Joseph Thompson notes “competence and participation” drive Mill’s theoretical philosophy. Thus, by restricting the lower class to a single vote, theoretically a small yet “competent minority” is empowered to operate in the legislature.; Unlike Madison who views the minority as a reactive consequence of the majority, Mill rather infers that the minority is afforded, to some extent, a more proactive role in the formation of coalitions against major majoritarian parties that control the mandate. This is because minority parties can operate collectively to minimise domination by their larger counterparts.

The Problem with Legislating in America and Elections: Is Law the Solution for Everything?

The issue with large bureaucratic governments is that legislation of new laws will often be observed as the fastest but expedient means by which, lawmakers can address grievances. Madison recognises that although the scope of legislative membership is large enough to make lawmakers “too little acquainted” with their constituencies, he saw the three sectors of government as the “happy” solution to matters where inconsistencies arise over laws with exclusive or shared jurisdictions. However, in the contemporary setting, Samuel Halperin notes that the role of the national government has since changed, whereby, “anything goes.” Thus if the Federal Government is limitless in jurisdiction, so is its capacity to overturn law-making jurisdictions of States. Such a reality was theorised by De Tocqueville in his concern for legislative stability and capacity. De Tocqueville further coined the term “omnipotence” to characterise the near limitless strength vested in the majority, because “legislators’ activity never slows down.”  Naturally, this means that the quality and effectiveness of bills may be diluted, for proposed laws never achieve as sufficient scrutiny and debate as adequately needed to eliminate potential ramifications or implicit prejudices. 

 

Not only can law passed by the Federal Government provoke significant legal challenges if inconsistent with other laws or the jurisdiction of the legislature itself, but De Tocqueville also believes this reality has an “unstable” effect on administrative capacity. Thus, lawmakers may choose to bring forward a policy to satisfy constituents in a period of disapproval to win support, before “ardour” compels them elsewhere, leaving policy incomplete. Moreover, Anthony Downs’ Economic Theory of Democracy complements conceptualising this dilemma. Analogising “electoral competition as a market” for “entrepreneurship” demonstrates how government is placed in the hands of voters (consumers) whose values “correspond to the preferences” of the majority.; However, Clayton Chin and Andrew Heywood note that candidates are not likely inclined to construct feasible policy, but rather formulate expedient agenda as promises. Consequently, because US policymaking is a competition, parties will excel in portraying the most persuasive agenda possible to seize power, as opposed to construct effective legislation to effectively pass reforms or reapeal existing laws that may be the causation of existing grievances. 

Conclusion

At the heart of the Madisonian Federalist model, fault lies not within its overarching structural framework or intentions but rather with the recognised minor privileges, provisions and problematic mechanisms contemplated during the Constitutional Convention. Firstly, while Madison attempts to balance large national governance with the rule by an autonomous elected few, both the framework by which Federalist governance places the complete onus of accurate election on an uninformed and uneducated voting class, proves fortuitous to status quo rule by pre-existing lawmakers. Secondly, does the expanded discretion of lawmakers theorise on mass appeal through trusteeship, yet fail in attending to the interests of constituents due to a lack of enabled popular pressure, and accountability. Moreover, does the majoritarian mechanism of the legislature observe the legislative function impose a widely politicised framework on civil society which has the ability to render the function, integrity and independence of the courts and treasury in conflict with the interests of the legislature’s political composition. Finally, the constant appeal of legislation as a means by which, the grievances of constituents are assessed and resolved, places immense instability on the function, overlapping existence, and capacity to reform pre-existing laws between Federal, State and Local jurisdictions. Not only can this induce administrative inefficiency, but it renders elections marketplaces of persuasiveness for voting preference based on attractive agenda appeal to interest groups rather than objective legislative reforms and amendments.

Not only can law passed by the Federal Government provoke significant legal challenges if inconsistent with other laws or the jurisdiction of the legislature itself, but De Tocqueville also believes this reality has an “unstable” effect on administrative capacity. Thus, lawmakers may choose to bring forward a policy to satisfy constituents in a period of disapproval to win support, before “ardour” compels them elsewhere, leaving policy incomplete. Moreover, Anthony Downs’ Economic Theory of Democracy complements conceptualising this dilemma. Analogising “electoral competition as a market” for “entrepreneurship” demonstrates how government is placed in the hands of voters (consumers) whose values “correspond to the preferences” of the majority.; However, Clayton Chin and Andrew Heywood note that candidates are not likely inclined to construct feasible policy, but rather formulate expedient agenda as promises. Consequently, because US policymaking is a competition, parties will excel in portraying the most persuasive agenda possible to seize power, as opposed to construct effective legislation to effectively pass reforms or reapeal existing laws that may be the causation of existing grievances. 

Bibliography

Madison, James 2001, ‘The Federalist Papers’, in Democracy: A Reader, Edinburgh University Press; 1st edition (15 June 2001).

 

Arceneaux, Kevin. “Does Federalism Weaken Democratic Representation in the United States?” Publius 35, no. 2 (2005): 297–311. http://www.jstor.org/stable/4624713.

 

United States Congressional Delegations from California.” n.d. Ballotpedia.  Accessed 19/09/2023. https://ballotpedia.org/United_States_congressional_delegations_from_California

 

Antolini, Jenise. “National Park Law in the U.S.: Conservation, Conflict, and Centennial Values” William and Mary Environmental Law and Policy Review. Vol 33 (2008-2009), Issue 3.

Cornell, Saul. “Aristocracy Assailed: The Ideology of Backcountry Anti-Federalism.” The Journal of American History 76, no. 4 (1990): 1148–72. https://doi.org/10.2307/2936593.

 

George Washington Presidential Library. “George Washington’s Mount Vernon.” 2019. George Washington’s Mount Vernon. Mount Vernon. 2019. Accessed 20/9/2023 https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/cabinet-members/.

Penniman, Howard. “Thomas Paine -- Democrat.” The American Political Science Review 37, no. 2 (1943): 244–62. https://doi.org/10.2307/1949385.

 

Conniff, James. “Burke, Bristol, and the Concept of Representation.” The Western Political Quarterly 30, no. 3 (1977): 329–41. https://doi.org/10.2307/447933.

 

Dahl Robert A. 1956. “A Preface to Democratic Theory.” Chicago: University of Chicago Press.
 

Edwards, Paul. “Madisonian Democracy and Issue of Advocacy: An argument for deregulating private funding of political parties.” Catholic University Law Review. (2000)

 

Tocqueville, Alexis de. “Democracy in America”, A Reader, Edinburgh University Press; 1st edition (15 June 2001)

 

Bray, John. “Choosing Our Judges: The 2012 John Bray Oration” Transcript of speech delivered at The University of Adelaide Law School, 2012.

 

Mill, Stuart John. “Representative Government”, in Democracy: A Reader. Edinburgh University Press; 1st edition (15 June 2001)


 

Epstein, Lee, William M. Landes, and Richard A. Posner. “Revisiting the Ideology Rankings of Supreme Court Justices.” The Journal of Legal Studies 44, no. S1 (2015): S295–317. https://doi.org/10.1086/682696.

 

Miller, J. Joseph. “J.S. MILL ON PLURAL VOTING, COMPETENCE AND PARTICIPATION.” History of Political Thought 24, no. 4 (2003): 647–67. http://www.jstor.org/stable/26220010.

 

Halperin, Samuel. “The Crisis of Federalism in Education... And What Might Be Done About It.” The Journal of Education 159, no. 2 (1977): 83–92. http://www.jstor.org/stable/42773068.

 

Downs, Anthony. “An Economic Theory of Political Action in a Democracy.” Journal of Political Economy 65, no. 2 (1957): 135–50. http://www.jstor.org/stable/1827369

 

Heywood, Andrew. Chin, Clayton. “Political Theory: An Introduction.” London. Bloomsbury Academic, 2023. 





 

Jasper Wiggins

19/09/2023

The Legislature and its Effects on Civil Society: Majoritarianism V Non-Majoritarianism Mechanism

The Problem with Legislating in America and Elections: Is Law the Solution for Everything?

The Legislature and its Effects on Civil Society: Majoritarianism V Non-Majoritarianism Mechanism

The Social Contract captures the relationship between consent to govern by the individual, and the extent to which the State exercises authority. Both Kant and Locke examine conditional express and tacit consent and how it compares with obliged moral duty. Kant's view towards the role of the State differs from Locke's notion that authority to establish a society is granted by the consent of the majority, rather than constitution. Ultimately, Kant's morally regulative approach challenges Locke, asserting that the empowerment of constitution requires the incorporation of popular obedience, to uphold enforceable legal authority.

Article by Jasper Wiggins

Article by Jasper Wiggins

Article by Jasper Wiggins

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