Posted by Ilya Somin:
Reservations About Federalist 10:
http://volokh.com/archives/archive_2009_03_15-2009_03_21.shtml#1237260088
I am a big fan of James Madison's work, as I noted in my last post.
However, I have serious reservations about his best-known essay,
[1]Federalist 10.
I. Ignoring the Dangers Posed by Minority "Factions."
One major flaw in Federalist 10 is Madison's claim that "If a faction
consists of less than a majority, relief is supplied by the republican
principle, which enables the majority to defeat its sinister views by
regular vote. It may clog the administration, it may convulse the
society; but it will be unable to execute and mask its violence under
the forms of the Constitution." Madison believed that "tyranny of the
majority" is a serious danger in a democracy, but rent-seeking by
minority interest groups is not.
This is true in some cases. However, there are many ways minority
factions can use the democratic process to benefit themselves at the
expense of the majority. For example, the majority may simply be
ignorant of the existence of policies that harm its interests in order
to benefit a well-organized minority, a dynamic that may help explain
[2]the failure of many states to enact the strong protections for
property rights against takings that are supported by the overwhelming
majority of the public. Small interest groups might also be able to
outmaneuver the general public because they are less subject to
collective action costs and free-riding.
II. Understating the Dangers of Political Centralization.
The most famous argument in Federalist 10 is Madison's assertion that
the national government is less dangerous than state governments
because it is harder for a faction to capture it and use it for its
own benefit at the expense of minorities or the general public:
[T]he greater number of citizens and extent of territory which may
be brought within the compass of republican than of democratic
government; and it is this circumstance principally which renders
factious combinations less to be dreaded in the former than in the
latter. The smaller the society, the fewer probably will be the
distinct parties and interests composing it; the fewer the distinct
parties and interests, the more frequently will a majority be found
of the same party; and the smaller the number of individuals
composing a majority, and the smaller the compass within which they
are placed, the more easily will they concert and execute their
plans of oppression. Extend the sphere, and you take in a greater
variety of parties and interests; you make it less probable that a
majority of the whole will have a common motive to invade the
rights of other citizens; or if such a common motive exists, it
will be more difficult for all who feel it to discover their own
strength, and to act in unison with each other . . .
The influence of factious leaders may kindle a flame within their
particular States, but will be unable to spread a general
conflagration through the other States. A religious sect may
degenerate into a political faction in a part of the Confederacy;
but the variety of sects dispersed over the entire face of it must
secure the national councils against any danger from that source. A
rage for paper money, for an abolition of debts, for an equal
division of property, or for any other improper or wicked project,
will be less apt to pervade the whole body of the Union than a
particular member of it . . .
This is correct in so far as it goes. It probably really is easier for
a faction to use a state government to "execute . . . plans of
oppression" than the federal government. However, Madison ignores the
fact that if the federal government does get captured in this way, the
consequences are a lot worse than =with a state. An oppressive federal
policy will likely affect far more people than an oppressive state
policy. In addition, people living in a state with harmful policies
can often "vote with their feet" and move to another state with
relatively better ones. It is usually much more costly to leave the
country completely - the only way to escape an oppressive federal
policy. Thus, Madison may have been right to believe that state
governments might become tools of factional oppression more easily
than the federal government. But he ignored the fact that the
consequences of federal oppression, when it does happen, are
potentially much worse. This failure significantly weakens Madison's
argument for concentrating more power in the federal government
relative to the states.
In fairness, Madison's lack of concern about the very weak federal
government of the 1780s was understandable in context. When Madison
wrote Federalist 10 in 1787, the feds had too little power to be a
serious threat to anybody. Madison became more attuned to the dangers
of federal power later in his career, when he helped lead the
opposition to Alexander Hamilton's centralizing policies. Much less
defensible is the use of Federalist 10-like arguments to justify the
growth of federal power today.
Madison was a great writer and thinker. But, contrary to conventional
wisdom, Federalist 10 wasn't his best work.
References
1. http://www.constitution.org/fed/federa10.htm
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=976298
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