 July 31, 2021 |
In my Tuesday column on the pessimism of the founding fathers, I included a quote from the relatively optimistic James Madison expressing his view that for all of its faults, republican government was the best of the alternatives: |
“No government of human device and human administration can be perfect; … that which is the least imperfect is therefore the best government.” |
The context for this quote is interesting. It comes from a December 1834 letter to an unknown recipient on the issue of “majority government.” Madison was writing in the context of a fierce political battle over the Tariff of 1832 and its predecessor, the Tariff of 1828, condemned as the “Tariff of Abominations” by its opponents. |
As protectionist efforts meant to protect the profit of Northern manufacturers, both tariffs faced fierce opposition from Southern planters, who would not benefit from industrial protection but would pay higher taxes on imports from Europe. In South Carolina, where anti-tariff anger was most acute, lawmakers declared the measures unconstitutional and asserted the state’s right to nullify federal law on that basis. In 1828 after the passage of the initial tariff, the pre-eminent South Carolina statesmen of the time, John Calhoun, described the state’s position in a 35,000-word document called “Exposition and Protest,” published anonymously because Calhoun was serving as vice president to Andrew Jackson at the time. |
After arguing that the tariff was unconstitutional because it favored manufacturing interests over agricultural ones, Calhoun articulated his now-infamous theory of nullification. |
If it be conceded, as it must be by every one who is the least conversant with our institutions, that the sovereign powers delegated are divided between the General and State Governments, and that the latter hold their portion by the same tenure as the former, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself, and being reduced to a subordinate corporate condition. In fact, to divide power, and to give to one of the parties the exclusive right of judging of the portion allotted to each, is, in reality, not to divide it at all; and to reserve such exclusive right to the General Government (it matters not by what department to be exercised), is to convert it, in fact, into a great consolidated government, with unlimited powers, and to divest the States, in reality, of all their rights. It is impossible to understand the force of terms, and to deny so plain a conclusion. |
In short, if the states are equal in sovereignty to the national government, then they have the right to challenge and invalidate any law they judge to be beyond the authority of that national government. And if states do not have that right, then they are subordinate and without rights. |
Madison’s 1834 letter is an almost direct response to this argument. Calhoun’s case for nullification rests on his hostility to majority rule, incompatible as it is with his vision of a nation of co-sovereign states. To Madison, this conception of the United States, and this opposition to “majority government,” was a real concern. “Dear sir,” he starts, |
You justly take alarm at the new doctrine that a majority Govt. is of all Govts. the most oppressive. The doctrine strikes at the root of Republicanism, and if pursued into its consequences, must terminate in absolute monarchy, with a standing military force; such alone being impartial between its subjects, and alone capable of overpowering majorities as well as minorities. |
Madison makes two major points in the letter. The first is that the principle claim of the nullifiers, that majority government engenders oppression when there is a diversity of interests and one obtains an advantage over another, applies to state governments as much as it does to the federal government. That within states, there are diversities of interest, that majorities would inevitably form and that they would act. The only way to avoid this — to have a perfectly homogeneous community where interests are in harmony — is to create ever smaller polities. But even this, Madison says, is doomed to failure: |
In the smallest of the fragments, there would soon be added to previous sources of discord a manufacturing and an agricultural class, with the difficulty experienced in adjusting their relative interests, in the regulation of foreign commerce if any, or if none in equalizing the burden internal improvement and of taxation within them. On the supposition that these difficulties could be surmounted, how many other sources of discords, to be decided by the majority, would remain. Let those who doubt it consult the records of corporations of every size, such even as have the greatest apparent simplicity & identity of pursuits & interests. |
Madison doesn’t deny that “majority government” does not always represent a true popular majority or that majorities can act as narrow factions rather than representatives of the whole. But even then, he insists, the majoritarian principle acts as a “salutary controul on the abuse of power by a minority constitutionally possessing it,” given the “numerical majority” and its “influence on public opinion.” |
Madison’s second point brings us back to quote I used in my column, which is the final note in his larger argument that majority rule is the only impartial way to organize a republican government in a nation of diverse, opposing interests. Here’s that quote in its full context, in a paragraph that reads like an extended if/then statement: |
The result of the whole is, that we must refer to the monitory reflection that no government of human device and human administration can be perfect; that that which is the least imperfect is therefore the best government; that the abuses of all other governments have led to the preference of republican government as the best of all governments, because the least imperfect; that the vital principle of republican government is the lex majoris partis, the will of the majority; that if the will of a majority cannot be trusted where there are diversified and conflicting interests, it can be trusted nowhere, because such interests exist everywhere; that if the manufacturing and agricultural interests be of all interests the most conflicting in the most important operations of government and a majority government over them must be the most intolerable of all governments, it must be as intolerable within the States as it is represented to be in the United States; and, finally, that the advocates of the doctrine, to be consistent, must reject it in the former as well as in the latter, and seek a refuge under an authority master of both. |
Simply put, Madison says there is only one alternative to majority rule. Not nullification but “aristocracy, oligarchy or monarchy.” He was right then — and he is right now. |
What I Wrote |
Even with a newborn and a toddler, I had a surprising amount of time to read during my parental leave. One book in particular, “Fears of a Setting Sun: The Disillusionment of America’s Founders,” by Dennis C. Rasmussen, left me with a lot of thoughts and observations. And so, for my Tuesday column, I wrote about it: |
The problem is that the men we call the founders did not stop thinking or writing or acting in politics with ratification of the Constitution. Nor did they stop after serving in office. Even when retired from public life, they continued to comment on current affairs, to express their highest hopes and aspirations as well as their deepest fears and apprehensions. |
My Friday column dealt with the attack on voting rights and how there’s nothing wrong with a partisan bill to defend the right to vote: |
We are living in an age of high partisanship and deep polarization, where one party has an interest in a broad electorate and an open conception of voting rights, and the other does not. If Congress is going to pass a voting rights bill of any kind, it is going to be on a partisan basis, much the way it was from the end of the Civil War until well into the 20th century. Democrats will either accept this and do what needs to be done, or watch their fortunes suffer in the face of voter suppression, disenfranchisement and election subversion. |
I did a live Q. and A. on the Instagram page of The New York Times Opinion section, and I spoke about the Supreme Court on CBS News. |
Now Reading |
Sam Adler-Bell on video games and labor rights for Dissent magazine. |
Annie Lowrey on administrative burdens for The Atlantic. |
Karin Wulf on “vast early America” for Aeon magazine. |
Alissa Wilkinson on the lie of “expired” food for Vox. |
Lauren Michele Jackson on critical race theory for The New Yorker. |
Feedback If you’re enjoying what you’re reading, please consider recommending it to your friends. They can sign up here. If you want to share your thoughts on an item in this week’s newsletter or on the newsletter in general, please email me at jamelle-newsletter@nytimes.com |
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