The Madisonian Constitution

Conclusion

Conclusion I say that to me it appears that those who damn the tumults between the nobles and the plebs blame those things that were the Wrst cause of keeping Rome free, and that they consider the noises and the cries that would arise in such tumults more than the good eVects that they engendered. Niccolò Machiavelli The separations at the heart of the American constitutional order, while bringing to mind the tensions of the mixed polity, are wholly republican. And if the tumult in America has largely been characterized by discordant constitutional un­­ derstandings, rather than violence, these tensions can still be seen as complementary to constitutional liberty and self-government. Writing in Democracy in America , Alexis de Tocqueville observed, “Scarcely have you descended on the soil of America when you Wnd yourself in the midst of a sort of tumult; a confused clamor is raised on all sides; a thousand voices come to your ear at the same time, each of them expressing some social needs.” He then continued in a manner that brings to mind our constitutional discourse:“Citizens assemble with the sole goal of declaring that they disapprove of the course of government, whereas others gather to proclaim that the men in place are the fathers of their country.”1 The Madisonian Constitution seeks to channel such conflict, even foster it; it does not seek to abolish it. To attempt do away with conflict by way of a constitution, rather than institutionalizing it,would reach beyond the limits of what a constitution could do.The lesson at the heart of modern constitutionalism recognizes the limits of politics and, thus, the existence of conflict as an inescapable feature of politics.2 The notion that the Constitution was a harmonious machine comes to us largely from progressives like Woodrow Wilson, who wrote about it as Newton’s mechanical theory of the universe applied to politics.3 Although Wilson spoke of frictions in the Newtonian scheme—frictions, however, that were part of “politics turned into mechanics”—he also insisted that government “is not a body of blind Conclusion      forces; it is a body of men.”4 Despite Wilson’s views, this is precisely what underpins Madison’s willingness to utilize conflict.With some irony, the progressive fostering of democratic tumult was, in fact, a way of overcoming the Madisonian Constitution: it was tumult to forge democratic and evolutionary unity.5 The progressives ’ insistence on democracy, in this manner, bears a striking resemblance to Rousseau’s emphasis on the sovereign will of the people that challenged the earlier progenitors of modern constitutionalism like Montesquieu.6 While Wilson himself owed a signiWcant debt to Rousseau’s great critic, Edmund Burke, the progressive insistence on democracy unbound by constitutional forms reads like an application of Rousseau’s theory of the general will, much as The Federalist reads like an application of Montesquieu’s theory of the separation of powers. Even Wilson’s critique of the separation of powers Wnds expression in The Social Contract, in which Rousseau rejected the notion that sovereignty itself could be divided, taking aim at “separations” in politics altogether: “But our politicians, being unable to divide sovereignty in its principle, divide it in its object. They divide it into force and will, into legislative power and executive power; into rights of taxation, or jus­ tice, and of war; into internal administration and foreign relations—sometimes conflating all these branches into a fantastic being, formed of disparate parts; it is as if they created a man from several diVerent bodies, one with eyes, another with arms, another with feet, and nothing else.”7 If sovereignty cannot be divided according to Rousseau,neither can it be bound: “If, then, the people simply promises to obey, it dissolves itself by that act and loses its character as a people; the moment there is a master, there is no longer a sovereign , and forthwith the body politic is destroyed.”8 What is more, Rousseau presumed a natural harmony between democracy and the good: “the general will is always right and always tends toward the public good.”9 This supposition, too, Wnds expression in the progressive insistence that constitutional forms cannot legitimately bind the people’s will: constitutional development naturally follows the historical development of our national consciousness as it moves in a pro­ gressive direction.10 The sentiment that the Constitution does not bind the people (as opposed to the government) also underlies the eVorts of popular constitu­ tion­ alists.11 In...