Happy Birthday James Madison:

Tim Sandefur points out that today is James Madison's birthday, and links to some of Madison's most important works. As a Property professor, I agree with Tim that Madison's "Property" is among his best writings. But my favorite little-known Madison quote is his warning in Federalist 62 that big government undermines democratic control over public policy by making it impossible for citizens to acquire the knowledge they need to monitor what government is doing:

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

This is a point that I have focused on in much of my own work on political ignorance (e.g. - here and here). Madison, however, at least partially foresaw that this danger might arise over 200 years ago, when the functions of government were incomparably narrower and simpler than they are today.

UPDATE: When I first wrote this post, I hadn't noticed that co-blogger Randy Barnett had put up his own post on this subject just a few minutes before. Sorry for any confusion.

Shortcomings of Madison's Federalist 10:

I am a big fan of James Madison's work, as I noted in my last post. He was probably America's greatest constitutional theorist, as well as an influential Founding Father. I am happy to celebrate his birthday here at the VC. I even have a portrait of Madison hanging in my home office, an "honor" I rarely bestow!

However, I have serious reservations about Madison's best-known essay, Federalist 10, which I think is overrated. In Federalist 10, Madison erred by ignoring the threat posed by minority interest groups and understating the dangers of political centralization.

I. Ignoring the Threat 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 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 by a faction, 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 flee an oppressive federal policy. 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 view was understandable in its historical 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 than Madison's 1787 view 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 was far from his best work.

UPDATE: As Tim Sandefur points out in the comments, Madison favored relatively strict limits on federal power, even in 1787. My point is not that Madison wanted unconstrained federal power, but that in Federalist 10 he ignored the specific danger from federal power discussed in this post.

UPDATE #2: Tim Sandefur criticizes this post here.

In response to my second point, he argues that "Madison could not possibly have imagined that Americans would so eagerly give up so much of their freedom to create the regulatory welfare state. He thought, and was correct, that America was far more prone to centrifugal forces." I agree that Madison could not and did not fully foresee these problems. That's why I said that his view was understandable in historical context. However, he could have foreseen that centralization would pose the risk I mention in the post (that if factional capture did occur at the federal level, it would be more dangerous than similar capture of a state). That point follows logically from the fact that a federal policy affects more people than a state law and is harder to escape. Both of these realities were possible to understand in 1787. And Madison possibly did have an intuitive grasp of them. But he failed to integrate them into the theory presented in Federalist 10.

Tim also responds to my first point as follows:

As far as your first critique, Madison does not rely entirely on the republican principle to counteract minority factions. He explains that one method of preventing this problem is an independent judiciary which will enforce the constitution against factions that capture legislatures. The problem, as he sees it (and as historically he naturally would see it) is that a "will independent of the people," while effective in preventing such faction problems, tends to become so independent that it then starts ruling in its own interest--and (in one of his subtler observations) that the federal judiciary is in fact a republican institution that is (indirectly) controlled by the majority, so that it cannot entirely prevent faction-capture problems. It is one method, but not perfect.

I think that Madison viewed these other mechanisms as tools for controlling majority tyranny and self-dealing by government officials. I'm not aware of any evidence that he believed they were necessary to control rent-seeking by minority "factions" outside the government: the issue discussed in this post.

Finally, Tim notes that "Madison rightly saw that there was no institution that would prevent the people from (in Oliver Wendell Holmes' timeless expression) choosing to go to hell." That's true, of course; there are no perfect safeguards against the abuse of power. But Madison failed to recognize - at least in Federalist 10 - that institutional safeguards against the two dangers discussed in this post are necessary to reduce the chance that we will end up in hell.

UPDATE #3: In the comments, I think one can detect a growing convergence between my position and Tim's. For example, Tim notes that Madison in 1787 demonstrated "shortsightedness [about] the dangers of the federal government," as evidenced by his early view that there was no need for a Bill of Rights to constrain abuses of federal power.