A Republic No More. Jay Cost

be channeled through well-designed institutions that carefully distributed governing power to protect the public interest. The Framers adopted many such institutions; some they borrowed from previous thinkers, some they developed themselves. These include:

       • A written constitution ratified by the representatives of the people. The Framers believed that the king had violated the rights they enjoyed as Englishmen under the British Constitution, which was unwritten. A formal document, explicitly endorsed by the people at large, would check the capacity of the government to abuse the public trust.

       • Separation of powers between the three branches. The utility of separating powers was a key insight of French philosopher Montesquieu, and the Framers made it integral to their system. According to Madison, separated powers would make “ambition . . . counteract ambition.” Separate branches would give politicians competing, and often contradictory, incentives, so a corrupt initiative in one branch could be stopped by another.

       • A bicameral legislature. The Framers were quite concerned about the legislature’s capacity to encroach upon the spheres of the rival branches. A second branch, argues Madison, would require “the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.”

       • An independent judiciary. The experience during the colonial period, when the king controlled colonial judges, convinced the Framers that the judiciary had to be separated from the rest of the government, or else it could not be a fair arbiter.

       • A government encompassing a large sphere. This was an innovation unique to Madison. Previously, republican philosophers advocated a small polity so that the people could be reasonably homogenous. But Madison had seen too many small republics behave incorrigibly. A larger sphere, he asserts, would “make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”

       • A Senate with equal representation for all states. A device to win over the small states during the Constitutional Convention, this guaranteed that larger states could never form a dominant faction within the government.

       • A government of discrete powers. Madison and the Virginia delegation to the Constitutional Convention originally wanted a government that could legislate wherever the states were deemed incompetent. Skeptics of this plan were fearful of a government acquiring too many powers to harass the citizenry, and a compromise was made to grant the government specific (and limited) powers.

       • A bill of rights. Like the specification of powers, this was meant to restrict what the government could do. Thus, even if a faction did acquire control of the government, there would be limits to what it could do.

      Woodrow Wilson once called the constitutional regime a Newtonian system, with forces carefully calibrated against one another. In other words, the rules of the constitutional game are structured so that the vast array of forces within the public sphere will combine to produce something that is in the common interest, regardless of how self-interested the initial impulses may have been. The idea is that a faction may have representatives who will do its bidding in the government, but those agents will only possess limited power and will often be stymied by agents aligned with other factions. Per Madison’s theory of government, it is irrelevant if those who check these selfish ambitions are themselves driven by private motives. All that matters is the result: the only proposals that should make it through the constitutional gauntlet and be enacted into law will be those that benefit the people generally. Everything else will fall by the wayside, thus offering a decisive check on corruption and preserving the republican integrity of the government.

      Considering how regularly this country has fought over morals, it is interesting that morality does not enter into the Madisonian system in any direct way. Classical republican theorists had emphasized the necessity of virtue, but our system—reflecting in part Madison’s Calvinist background—eschews that. Far from building a sturdy republican government by outlawing avarice, he seeks to do the opposite: let those who enter the Madisonian fray be as self-interested as they want; his system will pit them against one another, confident that the public good will win out in the end.

      That’s the theory, at any rate. What about in practice? Given the extensive efforts of the founding generation, and Madison in particular, to curtail corruption, why has it persisted? The answer: because we have not heeded Madison’s prescriptions on how to “break and control the violence of faction.”

      Different sides of the political spectrum have different attitudes toward the Constitution these days. The left sees a living Constitution that is supposed to adapt and evolve beyond the historical contingencies of any era. On the other hand, the right views the Constitution more as laying down timeless principles and practices that the country would be foolhardy to ignore.

      In a sense, both sides have some purchase on the truth. As suggested in the previous section, there is a timeless aspect to the Constitution. It is a document trying to build structures to supplement the principle of majority rule in ways to ensure the survival of the new republic. Similarly, the Federalist Papers are grappling with enduring issues that defy historical contingency.

      On the other hand, the Constitution also represents a compromise between various factions within society in the year 1787. The nationalist faction—led by Hamilton, Washington, and, for a time, Madison—wanted a government of expansive powers wielded by nationalistic institutions. Meanwhile, a faction composed of men like George Clinton and Patrick Henry were suspicious of centralized power and wanted to retain a local preeminence in the government’s institutions. The Constitution occupied a middle ground between these sides, although many Anti-Federalists opposed its ratification until the very end.

      A comparison between the dueling plans at the Constitutional Convention—the Virginia Plan, largely the brainchild of Madison, and the New Jersey Plan, offered by William Paterson of New Jersey—is illustrative. The Virginia Plan would have given the government the right to legislate, “in all cases to which the separate States are incompetent: or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” It also would have made it much less dependent upon local interests. For instance, the Senate would have been apportioned by population, with no guaranteed representation for states; further, the national legislature would have veto authority over state legislatures, and a Council of Revision would have review power over national laws. Meanwhile, Paterson would have retained the same Congress as existed under the Articles of Confederation. There was to be no single president, but rather an executive council selected by Congress. Further, Congress would have the power to tax and regulate interstate commerce, but state courts would hear initial disputes over these powers.

      Thus, the fight between the two sides was not simply about the power of the government, but also its design. And the final Constitution represents a compromise along both dimensions—the nature of federal power and the nature of federal institutions. Power was expanded and institutions were nationalized relative to the Articles of Confederation, yet by less on both counts than what the Virginia Plan called for. But there is more to it than this. The only way a system of checks and balances could ever possibly work is by ensuring that each institution possesses the right amount of power to guard against encroachments from the others. Thus, the Framers could not merely split the difference between the two sides of the debate; instead, they had to find an intellectually coherent middle ground. The debate over the Constitution was not like a fight over appropriations or taxes in contemporary politics, where both sides pick a number in the middle regardless of whether it makes sense. The Framers had to satisfy all sides while also building institutions that could wield their powers responsibly.

      Think of it this way. It would have been grossly irresponsible of the Framers simply to have granted the parochial Congress under the Articles of Confederation all the powers in the new Constitution. The old Congress would have failed miserably because it was not designed to handle such important responsibilities. By the same token, it would have been a waste of effort to create a new, more nationalistic set of institutions without expanding