How Might the Federalists Vote?
by Ari Armstrong, October 20, 2006
If the authors of the Federalist papers were alive today, what would they think of Colorado's ballot? The question is speculative, but recently I looked up some quotes that seem relevant.
James Madison was no fan of direct democracy. In Number 10, he writes:
[A] pure democracy, by which I mean, a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication in concert, results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives, as they have been violent in their deaths.
What's the solution? "A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking," Madison writes.
Madison describes two benefits of republicanism. First, the elected body serves "to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations."
Second, a republic can be extended over a broader territory and encompass more citizens, "and it is this circumstance principally which renders factious combinations less to be dreaded," argues Madison.
This would seem to present an argument against Amendment 38, the Petition Rights Amendment, which would make direct democracy easier at the state level and extend direct democracy to local governments.
I quoted part of Madison's argument on October 17 when I discussed the ballot measures with House Speaker Andrew Romanoff at Middle College High School in Denver. Teacher Bonnie Hutchins brought together around 100 students (and a handful of adults) to discuss the issues. I complimented Romanoff for agreeing to speak with a crowd too young to vote during an election season. I appreciated Romanoff's generally-fair debating style, and he gave a masterful closing speech urging students to pay attention to state-level politics. (He tells a funny story about how one constituent got excited about the chance to meet with him -- until a volunteer told her that Romanoff is a state legislator, not the famous football player with a similar name.) I did give Romanoff a dressing down for the lie contained in the Blue Book, and I also pointed out the good points of Amendment 38.
I also pointed out that, while direct democracy can become "two wolves and a sheep voting on what's for dinner," a representative system can succumb to a related problem, that of special interests. Some interests vie for subsidies or protectionist legislation, for instance. The formalized description for this problem (which I didn't have time to discuss at the school) is "concentrated benefits, dispersed costs." The problem (as I've discussed) is basically that those who benefit from political favors have a strong incentive to push those favors through a representative system, while the masses who share the costs have little incentive to oppose these interests. (We must distinguish between "special interests" who seek political favors from those groups that seek merely to protect their rights. While today's Democrats routinely ignore this distinction, it is of crucial importance. When I speak of "interests," I mean parties that seek unjust political advantage at the expense of individual rights.)
So advocates of Amendment 38 might argue that more power in the hands of the masses will check the abuses of interests. The counter-argument is that interests will merely use the increased power of petition to further abuse the masses. After all, petitions are expensive both in terms of time and money, many people don't vote, and those who do vote are often uninformed or members of an interested class (including the growing class of government employees).
Amendment 38 promises to "strengthen citizen control of government." In an October 2 editorial, The Denver Post claims it "would weaken representative government..." This is a fundamental debate, I pointed out. Romanoff discussed the matter as one of balance: should power shift more toward the voters or remain with the legislature?
I pointed out the irony of modern Democrats promoting republicanism while many modern Republicans promote more direct democracy.
The more important point, though, is that neither more republicanism nor more direct democracy can do much to protect our rights. What is needed is a cultural shift in which a respect for individual rights is more widespread.
I also looked up Alexander Hamilton's remarks about the judiciary in Number 78 (though I didn't have time to share this material at the school). Are his comments applicable to the debate over Amendment 40, pertaining to term limits for judges? He argues:
"[T]he judiciary is beyond comparison the weakest of the three departments of power, that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. ... [A]s liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; ... that as from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches; and that as nothing can contribute so much to its firmness and independence, as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution; and in a great measure as the citadel of the public justice and the public security."
At the national level, Hamilton's warning is born out by FDR's court-stacking schemes, which resulted in the rubber-stamping of much of the socialist New Deal.
Are state courts substantially different? Are modern judges "activists" in a way that Hamilton failed to anticipate? Do many judges become corrupted by power or lazy? Advocates of Amendment 40 need to argue that these concerns trump Hamilton's argument that "permanency in office" protects the judiciary from undue political influence.
Hamilton further argues that judges should protect the citizens against legislative violations of the constitution, which often hasn't happened, yet Hamilton suggests that quicker turnover would exacerbate this problem. John Andrews, a principal supporter of Amendment 40, argues instead that "term limits have helped make Colorado's legislature more respectful of the plain language of the constitution and more responsive to the sovereign will of the people" and that "term limits can yield similar benefits in our court system." (He also points out, "Up to 1965, Colorado was one of the many states that elected all their judges in partisan campaigns.") Andrews notes that "mostly liberal" judges" on the state's Supreme Court "would be gone in two years if the measure passes." Hamilton worries about "a momentary inclination [that] happens to lay hold of a majority of their constituents incompatible with the provisions in the existing constitution..."
Is the "sovereign will of the people" more likely to check the court's abuses of individual rights, or is a judiciary made independent through "permanency in office" more likely to check the tyranny of the majority? Neither strategy will long suffice in a culture that disvalues liberty, yet that is no argument against strong institutional protections.
No doubt others will find contrary arguments from history. But these Federalist passages at least raise important concerns about Amendments 38 and 40.