The structure of the Constitution is simple yet profound. It carefully restrains the passions of factionalism, however intense, from imposing destructively on either minority or majority. It limits the potential for regional conflict and ensures the strength to confront external threats.
It is the antagonistic divisiveness current among Americans that concerns us here. “Give all the power to the many,” wrote Alexander Hamilton, “they will oppress the few. Give all the power to the few, they will oppress the many.”
To understand how and why we depend on the Constitution as we navigate through crises, it will be useful to consider both the reasoned manner in which it was conceived and the negative reaction that it at first inspired.
It can be instructive to review some of the numerous essays and polemics that were published in the American colonies during the period when the proposed document was being considered for ratification. Among these, a series of 85 commentaries was published in 1787 and 1788 by three members of the Constitutional Convention for the purpose of supporting ratification.
The three writers, who originally shared the pseudonym, “Publius”, were Alexander Hamilton, John Jay, and James Madison.
Later consolidated into a single volume as The Federalist, the assembled papers were said by Thomas Jefferson, another participant at the Convention, to be “the best commentary on the principles of government, which ever was written,”[i] a view many legal scholars agree with today.
The Federalist is often cited in major court cases and has appeared in the debates surrounding virtually every constitutional crisis. Another collection entitled The Anti-Federalist Papers and edited by Ralph Ketcham is also available.
In the end, the outcome turned out not to be in question except in New York, where the State Constitutional Convention passed it by only three votes. But, the issues remain instructive and have a similarity to some we find ourselves engaged in today.
As an example, I refer here to the way the framers addressed a familiar challenge to both basic freedoms and effective governance.
In The Federalist, Number 10, James Madison argues that there is no more important purpose in structuring a sound government than that of limiting the “violence” of factionalism.
Responding to the issues prevalent in the colonies immediately following the Revolutionary War, Madison writes:
“Complaints are everywhere heard…, that our governments are too unstable; that the public good is disregarded in the conflicts of rival parties; and that measures are too often decided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and overbearing majority.”
“As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves.
“The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society…. So strong is this propensity of mankind, to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions, and to excite their most violent conflicts.
“But the most common and durable source of factions, has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a monied interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views.
“The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of government….
“The inference to which we are brought,” Madison concludes, “is that the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects.”
Please look for the next blog post, “A different kind of nation,” to appear on or about Friday, October 28.
[i] Thomas Jefferson to James Madison, November 18, 1788, in Thomas Jefferson, The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison, 1776-1826, 3 vols., ed. by James Morton Smith (New York: W.W. Norton, 1995), vol. 1, p.567.