MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Jeffrey Rosen on "Madison's Nightmare"

Legal scholar and National Constitution Center President Jeffrey Rosen explains how many of the Constitution's safeguards against "mob rule" have frayed. His description of the problem is compelling, though he is less strong on possible solutions.

James MadisonJames Madison

National Constitution Center President and prominent legal scholar Jeffrey Rosen recently published an insightful article in the Atlantic on how "America is Living James Madison's Nightmare." As Rosen explains, Madison and many of the other Founding Fathers were deeply suspicious of democracy, because of the danger posed by demagogues exploiting voters' biases and ignorance:

James Madison traveled to Philadelphia in 1787 with Athens on his mind. He had spent the year before the Constitutional Convention reading two trunkfuls of books on the history of failed democracies, sent to him from Paris by Thomas Jefferson. Madison was determined, in drafting the Constitution, to avoid the fate of those "ancient and modern confederacies," which he believed had succumbed to rule by demagogues and mobs...

"In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the sceptre from reason," he argued in The Federalist Papers, the essays he wrote (along with Alexander Hamilton and John Jay) to build support for the ratification of the Constitution. "Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob."

Madison and Hamilton believed that Athenian citizens had been swayed by crude and ambitious politicians who had played on their emotions...

In Madison's view, history seemed to be repeating itself in America. After the Revolutionary War, he had observed in Massachusetts "a rage for paper money, for abolition of debts, for an equal division of property." That populist rage had led to Shays's Rebellion, which pitted a band of debtors against their creditors.....

In order to keep the dangers of democracy in check, the Framers filled the Constitution with various constraints on popular rule:

The Framers designed the American constitutional system not as a direct democracy but as a representative republic, where enlightened delegates of the people would serve the public good. They also built into the Constitution a series of cooling mechanisms intended to inhibit the formulation of passionate factions, to ensure that reasonable majorities would prevail.

The people would directly elect the members of the House of Representatives, but the popular passions of the House would cool in the "Senatorial saucer," as George Washington purportedly called it: The Senate would comprise natural aristocrats chosen by state legislators rather than elected by the people. And rather than directly electing the chief executive, the people would vote for wise electors—that is, propertied white men—who would ultimately choose a president of the highest character and most discerning judgment. The separation of powers, meanwhile, would prevent any one branch of government from acquiring too much authority. The further division of power between the federal and state governments would ensure that none of the three branches of government could claim that it alone represented the people.

Unfortunately, as Rosen explains, most of these constraints either never worked as intended, or have broken down over time, especially in recent years. Almost from the very first contested election (1796), the electors mostly functioned as ciphers for the party that selected them rather than exercising independent judgment. By the time of Thomas Jefferson, the president himself was more a partisan politician than an above-the-fray statesman. The 17th Amendment, of course, made the Senate popularly elected. But most states instituted de facto popular election of senators long before then, and it is far from clear that the Senate ever really constrained popular passions to the extent the Founders hoped it would. While federalism continues to be a useful safeguard against majoritarian abuses by the federal government, the powers of the latter have grown enormously over time - far beyond anything envisioned by the Framers.

Rosen describes how more recent developments have further unleashed the "nightmare" Madison feared. For example, growing polarization and partisan hatred have exacerbated voter biases, and made them reluctant to curb the abuses of "their" side, lest doing so help the partisan enemy. a more populist presidential nomination process has increased the influence of ignorance, bias, and partisan hatred in selecting the chief executive. Rosen argues (only partly correctly, in my view) that modern technology and social media have exacerbated the impact of biases and emotion, and weakened institutions that check them.

As a result of these and other factors, Rosen contends that we increasingly have a political system in which demagogic politicians exploit voter biases to promote policies that are often ineffective, or even actively harmful. It is the very sort of danger that Madison sought to guard against.

Rosen's diagnosis of the problem is, in large part, accurate. I would add, however, the major contribution created by the growth of government power. The enormous increase in the size, scope, and complexity of government since the 1930s has made it virtually impossible for voters to have more than a minimal understanding of most of what it does. As a result, most tend to rely on crude "information shortcuts" to form opinions on candidates and issues, which in turn exacerbates many of the sorts of biases that Madison and the other Founders feared. Madison himself warned of this danger in Federalist 62, where he warned that "[i]t 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." The growing scope of federal power also exacerbates partisan conflict, because both sides understandably fear the consequences of ceding such vast authority to their opponents.

The rise of Trump exemplifies the kind of demagoguery and exploitation of voter bias and ignorance that Rosen describes. But, as he emphasizes, the problem is a structural one that goes beyond any one politician, however egregious. While Trump is an extreme case, more conventional politicians, including Barack Obama, have also manipulated public ignorance to their advantage. Despite some noteworthy distinctions, Senator Bernie Sanders left-wing demagoguery actually has much in common with Trump's right-wing populist version. Both are based on crude appeals to zero-sum thinking.

Rosen is less effective at outlining solutions than describing the problem. His main recommendation is to strengthen "civic education." However, decades of experience suggest that it is extremely difficult to use education to overcome political ignorance and bias. Among other problems with this strategy is the painful reality that it is unlikely that politicians who themselves benefit from public ignorance will adopt education policies that seek to reduce it. Even if public education worked much better than it is actually likely to do, it would be difficult or impossible to teach voters to understand anything close to the full range of issues controlled by modern government, or to get them them to control their biases.

There is no easy solution to the problem, and we should be open to a wide variety of possible options. But one that could help is limiting and decentralizing political power by enforcing tighter constraints on the power of the federal government. This could both reduce the partisan hostility that contributes to voter bias, and also enable more decisions to be made by "foot voting" mechanisms, which give citizens stronger incentives to seek out information and use it wisely. Rosen himself has advocated stronger enforcement of constitutional federalism in other writings.

Other commentators have proposed returning to a less populist nomination process for candidates, an idea I am increasingly sympathetic to. There are also a number of steps individual voters can take to become better-informed and less biased, though I am not optimistic that many will do so.

The Madisonian nightmare is unlikely to disappear anytime soon. But much can be done to reduce the dangers it creates.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Eddy||

    IIRC, Madison believed that the different branches/levels of government would fight each other, with each branch wanting more power for itself and the states and the feds competing for power. This conflict would lessen the risk of dictatorship or mob rule.

    But the incentives for any given officeholder in, say, Congress or the state legislature is not necessarily to increase the power of the branch of government to which (s)he belongs vis-a-vis other branches. Indeed, has anyone studied the effects of buck-passing in messing with Madison's predictions?

    I mean that instead of grabbing for as much power as they can vis-a-vis other branches, what if the branches sought ways to pass off hard decisions onto the shoulders of others so as to avoid blame for controversial actions?

  • Eddy||

    War being an example - instead of Congress being outraged when the President starts a war without their permission, they seem more likely to be glad to be relieved of the responsibility. And I think that's hardly the only example, either - economic regulation seems another example.

  • PoxOnBothYourHouses||

    Eddy, you're pointing us toward Ben Sasse's recent excoriation of Congress, in general, and the Senate in particular.

    https://www.youtube.com/watch?v=EJK2JveCAbI

  • bernard11||

    But the incentives for any given officeholder in, say, Congress or the state legislature is not necessarily to increase the power of the branch of government to which (s)he belongs vis-a-vis other branches.

    This seems to me to be quite accurate. The incentives are rather to increase the power of the party to which they belong, because that is what opens avenues to career advancement.

    A state legislator who wants to be a Congressman does better to support his own party, no matter what, than to maximize the power of the state legislature.

  • DRM||

    In which case the obvious first step would be structural reforms to achieve a Canada-style separation of federal-level and state-level parties.

    While that could theoretically be done simply with state-by-state establishment of new laws that separate ballot access for federal and state offices, it seems unlikely that any state party under the current regime would choose to do so. So the way to smuggle it through would be to have the federal government seize full control over elections to federal offices, thus forcing a separation of the levels by placing them under different legal regimes.

  • TheAmazingEmu||

    The administrative state is a good example. Congress likes to set policies, they dislike the hard task of spelling out how those policies work in practice. So they create broad laws and then delegate the details of those of laws to the executive branch - both in the form of rules and regulations and in the form of prosecutorial discretion.

  • Scarecrow Repair & Chippering||

    The root of the problem is letting a majority, even if filtered through representatives, decide anything. Very little of what governments do demands everybody follow one policy. Throw out all victimless crimes, for starters; it is nobody's business what I ingest or do with my body or mind. There is no need for a single monolithic foreign policy, unless you allow that an overseas empire is a proper endeavor for government.

    Building codes may seem righteous government policy at first blush, but who is harmed if my house is "too close" to the property line, or has a vegetable garden in the front yard? For that matter, if I hire a cheap builder to build my shoddy house and die in its collapse, who is hurt but me? Don't regale me with tales of property values; that is far too subjective to make my house any of your business.

    Get government out of all the areas that do not require majority control. That's the only way to tame government. Everything else is arguing over devils on pin heads.

  • Goju||

    And if your neighbor' house is damaged or destroyed by your house burning going up in a fireball due to subgrade building materials and improper electrical wiring? Do you inform any potential buyers of subgrade building materials or shoddy construction? Do you inform buyers they may be killed due to improper electrical wiring or CO poisoning from a malfunctioning HVAC system installed wrong? Will you never have guests over to your house and risk their lives? Will your children not be permitted to have their friends over for the same reason?

  • Scarecrow Repair & Chippering||

    Of course buyers have the right to ask how the house was built, and most house builders would be proud to be certified by reputable inspection agencies.

    What makes you think most people want to live in firetraps? Do you really think that the only thing keeping entire neighborhoods from going up in smoke is the heroic county inspectors?

    You're as inconsistent as the loonies who think arming pilots is a bad idea, or that it's wise to search pilots before letting them board the aircraft. The pilots not only could just fly the plane into the ground, making the worries groundless (heh), but pilots don't generally want to die.

  • BillyG||

    The pilots not only could just fly the plane into the ground, making the worries groundless (heh), but pilots don't generally want to die.

    Generally......

  • BillyG||

    And if your neighbor' house is damaged or destroyed by your house burning going up in a fireball due to subgrade building materials and improper electrical wiring?

    Then someone choose poorly or didn't get the house inspected. Not like that doesn't happen already. See household aluminum wiring, lead paint, leaky roofs, old pipes, amateur repairs...... In the mean time, states keep adding costs with little value. I'd like to see the what cost/benefit analysis was done when they made sprinkler systems mandatory in new residential construction. Why can't I be free to consult with an expert and make choices myself? Do you really believe people should be prohibited from making their own choices?

  • Brett Bellmore||

    "I'd like to see the what cost/benefit analysis was done when they made sprinkler systems mandatory in new residential construction."

    I could see some room for nuance there, like not requiring sprinklers in a house built not to be flammable in the first place, or being freed of them if you can demonstrate a good firebreak around your house. But building codes in principle are actually a reasonable thing for local governments to have.

    They're just badly done much of the time.

  • PoxOnBothYourHouses||

    I generally agree with Brett B. on this. Now I'm not as libertarian as some (major 1A exception). I do see codes for electrical wiring, natural gas piping, fireproofing, etc., as eminently reasonable.

    My problem is that the number and complexity of such codes keeps expanding, increasing the time and cost of construction, and ceding ever more power to political/bureaucratic entities, while offering little demonstrated increase in safety or building stability.

  • OtisAH||

    It's more than likely the sprinkler requirement is somewhat more complex than you make it sound. For instance, although it's certainly possible, I would be mildly surprised if a basic single family dwelling requires sprinklers. Also, it's more than likely your state has an appeals mechanism for arguing you should not be bound by one or more requirement of your state's building code. Lastly, even if a simple single family dwelling requires sprinklers in your state, I'll bet the requirement's origins have less to do with some bureaucrat deciding it's a good idea to sprinkle single family dwellings than it has to do with some tragedy involving burned up children/families.

  • nonzenze||

    You know, given the popularity of HOAs, I think there is a significant market of people that wish for their neighbors not to be allowed to store a rusty old Camaro on their front lawn and are willing to give up their freedom to do likewise.

    [ Full Disclosure: would never ever ever live in an HOA. But I respect the choice of those that do, in the sense that I believe they receive something of value in consideration of accepting the restriction. ]

  • PoxOnBothYourHouses||

    nonzenze: "would never ever ever live in an HOA."

    Neither would I -- until I found how hard it is nowadays to find a house that's /not/ in an HOA neighborhood.

  • Brett Bellmore||

    They're popular with developers, but I've never talked to anybody who lived under one who liked it.

    The problem is that once the HOA is started by the developer, they're very hard to get rid of.

  • D-Pizzle||

    The other problem is that those who gravitate toward leadership in HOAs tend to be the pettiest of petty tyrants.

  • OtisAH||

    It's funny to me how, almost 2000 years before the birth of Christ, the Babylonians recognized a need for building codes, such as they were. Yet in 2018, they're an unfair burden on free-thinking Americans. The saying "All Building codes are written in blood" is as true today as it was then.

  • Goju||

    I fail to see how Trump can be blamed for the present attempt at mob rule. It isn't his supporters wearing masks and attacking people they disagree with using bike locks. They aren't shouting down campus speakers. They aren't disrupting Senate hearings demanding a qualified nominee be voted down to satisfy purely partisan demands.

    The first solution should just to enforce present laws already on the books. And actually punish those convicted. I personally have little faith in our legal system. Note, I do not call it a justice system. There is rarely justice in it. These perpetrators are allowed to get away with their actions because of the support of the politicians that benefit from it. But the rabid dogs always bite their masters.

  • Toranth||

    Yeah; the entire post seems to have forgotten the 1960s. I mean, the 1968 DNC riots should have made clear that mobs and politics were as standard in modern America as they were in classical Greece.

    And of course, no one would ever imagine the Found Fathers and their friends dressing up as Indians and destroying shiploads of tea as part of a political movement's protest, right?

  • RoyMo||

    Are mobs really standard in American politics, and standard in comparison to what?

  • Sarcastr0||

    The literal violent mob in 1968. That's...not the mob that mob rule is talking about.

    But yeah, not a fan of Trump but I don't think a bad President is what Madison was worried about; more a bad Congress.

  • Toranth||

    The 'mob rule' that Athens was infamous for was the people enflamed by extreme emotions, making bad decisions... a lot like the people enflamed to extreme emotions that rioted in Chicago.

  • nonzenze||

    To be fair, our adventure in Vietnam was inflammatory in both the figurative and literal sense of the word.

  • Sarcastr0||

    So you know what mob rule means, but then cited to an actual riot for some reason.

    Those are not the same thing. The '68 mob for all their force ended up with Hubert Humphrey, hardly a populist firebrand.

  • Toranth||

    In 1968, the Democrats had already decided on their candidate before the convention. The riots were too late, and the delegates too protected, to have any effect. Then.

    However, the 'howling mob' did scare them. The Democrats enacted a series of reforms that took power away from the party bosses, and put it into the hands of 'the people'. In 1970, 72, 74, and onward you see a series of every more popularly selected and less political animal Democrats in their elections.

    We don't have a direct democracy on every issue, so Athenian 'mob rule' simply cannot happen here in the US. But what we saw in the Democrats (nationally, and locally - see Chicago) was that the mob got what they wanted.
    As a major example: In 1974, the Democrat-controlled Congress voted to abandon our obligations and let South Vietnam fall, by cutting off all aid and refusing to allow troop deployments.

  • Sarcastr0||

    I'd argue that the reason for the changes weren't the mob being in charge, but the rules reforms that got rid of the political machines. That's the drama from Daily's alternative slate and subsequent tantrum in '72.

    Your example of pulling out of Vietnam may not be publicly viewed as the damming example you think it is.

  • Toranth||

    Whether you think the US abandoning Vietnam was a good thing or not, the fact is that in 1968, Democrats in Congress were still voting to fund the military efforts. By 1974, with the new Congressmen elected under the more populist rules, they were no longer willing to do so.

    I see the rules changes coming as a direct result of the mob violence. You seem to see them as coming from some other source.

  • PeteRR||

    Lower the stakes involved by devolving power back to the individual states. Fed.gov has two real purposes: defend the border and defend the currency. Everything else can be handled at the local level.

    Strike down Wickard and return the commerce clause to what it was always intended to be about: interstate commerce, not intrastate.

  • nonzenze||

    The States are some of the most egregious offenders. If it was up to them, we'd still have the poll tax.

  • MoreFreedom||

    I don't consider the poll tax to be exceptionally offensive. All taxes are offensive in that they're taken from you via force or the threat of it. At least with poll taxes, voters are invested in the government they get. The same thing applies to real property taxes, because the property is part of the government jurisdiction.

    If you're not contributing to the government, why should you get a say in how it's run and in how taxpayers' money is spent? Seems to me opponents of poll taxes, want voters to back a system whereby people can vote to take the money away from others for the benefit of people who pay little or no taxes. Just as with regressive income taxes. There's a strong argument that everyone should pay the same tax, just as there are arguments whereby some benefit more from taxes than others and should pay more than others as a result. I stand by the idea that there's no such thing as a fair tax, because they aren't voluntary.

  • OtisAH||

    You don't know what a "poll tax" is, or what it's purpose was. At all.

  • Brett Bellmore||

    The original Articles of Confederation had the federal government too weak, but they may have overshot the right balance when fixing this with the Constitution.

    The real mistake in the Constitution, the flaw that caused the real problems, was having the federal courts staffed by judges chosen by federal office holders. This gave the elected branches the power to relieve themselves of the Constitution's limits by simply choosing judges who wouldn't enforce them.

    That this would happen eventually was inevitable. The process might have been slowed a bit by the fact that Senators, prior to the 17th amendment, were at least theoretically creatures of the states, capable of having their careers ended if state legislatures became unhappy enough. Not a threat much exercised, but the 17th amendment removed it entirely, and we've seen the result

    I really see no solution but transferring the selection of federal judges to a body composed of STATE office holders. Not chosen by them, mind you, but actually comprised of them.

    Something only a constitutional convention might do.

  • Stephen Lathrop||

    I have become accustomed to hearing calls for a constitutional convention from right wingers whose ambition seems to be to create an opportunity to further empower minority rule for the nation. What would you say to a constitutional convention conducted instead under rules ratified by a 60% super-majority of a nationwide popular vote?

  • Brett Bellmore||

    When you say "conducted under rules ratified by a 60% super-majority of a nationwide popular vote", could you clarify what you mean?

    Congress chooses between two modes of ratification, by state legislature, or by state convention. But Article V is notoriously vague about the convention's internal rules, who chooses the delegates, how many delegates there will be... Some people assume that each state would get a number of delegates equal to its electors in the EC, others that each state would get an equal vote, but this isn't outright stated, or who picks them.

    A rather large set of omissions, IMO. Article V was kind of a rush job, I suspect, without much consideration to what would be entailed if a convention were held.

    Are you talking about internal rules, or delegate selection? Because ratification is already laid out, and couldn't be altered short of an amendment.

  • Stephen Lathrop||

    I meant what I said. Do you support it?

    By the way, the instant a constitutional convention becomes the subject, the existing constitution's rules are out the window, just as the the Articles of Confederation went out the window when the federal convention assembled in Philadelphia. And of course, rules for ratification would be totally up to the newly convened convention, just as they were in Philadelphia.

    So the key issue is the threshold issue. What rules will govern a constitutional convention? And the Constitution itself provides no guidance. And even if it did, the new convention would, in principle, be there to replace whatever the current constitution decrees.

    Right wingers who suppose they can use a constitutional convention to fasten minority rule upon the nation do so only on the basis of a profound misunderstanding of the constitutive process, in which a sovereign acts at pleasure to decree a new government. The ability to do that is not bounded by any preexisting power, or preexisting procedure.

    So if the sovereign People want a new constitution, and they want an orderly process for it, the first thing they need to do is to use their sovereign power to agree on which rules will govern the process.

  • Brett Bellmore||

    "Do you support it?"

    No, I'm in the proportional to EC camp, it sets a nice compromise between one state, one vote, and simply letting a half dozen large states do whatever they want while the rest of us watch.

    "And of course, rules for ratification would be totally up to the newly convened convention, just as they were in Philadelphia."

    No "of course" about it: The reason they got away with replacing the Articles using new ratification rules, was that the Articles were widely agreed to be a piece of crap, and had only been in place for a few years, weren't at all entrenched. So starting over wasn't unthinkable.

    That's nothing like the situation today, where the Constitution is better respected than any political figures, and thought by most to only need some tweaking. And even of that tweaking, much of it might be simply restoring former Constitutional understandings the judiciary had tossed aside.

  • Ghost on the Highway||

    Well he did wait to blame Trump until halfway through the article out of professional courtesy, I guess. But then, what can't be blamed on Trump? So it's a wash - join the mob.

  • Ghost on the Highway||

    Well he did wait to blame Trump until halfway through the article out of professional courtesy, I guess. But then, what can't be blamed on Trump? So it's a wash - join the mob.

  • Scarecrow Repair & Chippering||

    He didn't blame Trump. Go back and read again.

    The rise of Trump exemplifies the kind of demagoguery and exploitation of voter bias and ignorance that Rosen describes. But, as he emphasizes, the problem is a structural one that goes beyond any one politician, however egregious. While Trump is an extreme case, more conventional politicians, including Barack Obama, have also manipulated public ignorance to their advantage. Despite some noteworthy distinctions, Senator Bernie Sanders left-wing demagoguery actually has much in common with Trump's right-wing populist version. Both are based on crude appeals to zero-sum thinking.

    Where does he blame Trump?

  • Brett Bellmore||

    True, blaming and deploring aren't the same. A headache is part of a hangover, it doesn't cause a hangover.

    I think, however, Trump is at least as much a reaction to the problem, as an example of it. Hence the common statement, "You want more Trump? Because this is how you get more Trump."

    We have developed a self perpetuating political class, who for the most part share common values and opinions which are different from that of the general population. On any topic where this becomes the case, voting ceases to be an effective way to alter public policy.

    The voters are growing increasingly restive under this system, and are resorting to ever more extreme candidates in an effort to find people who will actually represent them, rather than delivering the political class's preferred policies.

    On this view, Trump got elected in the hope that he'd bust things up, and delicacy is not something you look for in a battering ram. If they manage to defeat him, he'll be followed by worse.

  • bernard11||

    We have developed a self perpetuating political class, who for the most part share common values and opinions which are different from that of the general population.

    By "general population" you of course mean the people who live in small towns and rural areas.

  • RoyMo||

    Or maybe just suburbs, or inner cities, or particular regions of the country.

    There are a whole host of issues where the political class is very divergent from the public.

  • Brett Bellmore||

    No, by "general population", I mean the whole population. "Elite" opinion doesn't come anywhere near being representative of popular opinion on a fairly wide range of topics.

  • Sarcastr0||

    Which is by design. The Founders were skeptical both of rule by an elite aristocracy and by the mob. So they set them against one another. It's pretty genius, actually.

  • Brett Bellmore||

    Yeah, but these days te "set against each other" thing doesn't work so well, because the elites have effectively locked out of politics people who disagree with them.

    They've even been eliminating write in votes, so as to deny you the capacity to vote for people they don't approve of.

  • Sarcastr0||

    Just because you don't like where we are doesn't mean it's all the way over on one side. We could be a LOT more elitist than we are.
    Certainly, both political parties are feeling the pinch. Our franchise is more inclusive and democratic than its has ever been.

    We are in fact in a populist upswing, and it's not going super great.

    I'm all for write in votes, but I don't think that's exactly the populist hill to die on.

  • Brett Bellmore||

    Ballot access rules are one of the ways the perpetual political class perpetuate themselves, by making it impossibly hard to get elected outside a couple of private institutions they have a strangle hold on.

  • Sarcastr0||

    I don't disagree that we are a bit too much on the elite side of things; I just don't think things are quite as stable as you think, and I also believe we are actually less elitist than ever before in many ways.

    No argument about ballot access, though since they are ostensibly private institutions I don't know what can be done.

    I think a parlament would be a great way to move things beyond the two big parties, what do you think?

  • captcrisis||

    Odd to see your concern about populist sentiment. If the people really had a say, if the person who won the most votes actually got into power, the Presidency and control of both houses of Congress would currently be in the hands of the Democrats. The fact that they're not is due to the antimajoritarian constraints that you tell us have faded away.

  • Smooth Like a Rhapsody||

    Wrong again, Capt Butthurt.
    If the rules had been that the Presidency goes to the winner of the popular vote, the campaign would have had a completely different dynamic.
    There is no way of knowing who would have won.

  • y81||

    The Republicans won the most votes for the House of Representatives in 2016. Per Wikipedia, it was 63,173,815 Republican to 61,776,554 Democratic. Do you think the Volokh Conspiracy readers are too stupid to know that?

  • Scarecrow Repair & Chippering||

    Would you have sports championships based on total points won over a full season, rather than games?

  • Brett Bellmore||

    Not only did Republicans get an absolute majority of votes cast in House races, more votes were cast for "right-wing" Presidential candidates, (Trump, Johnson, McMullin) than "left-wing" (Clinton, Stein).

    The Senate can't fairly be assessed in this context, because not every state has a Senate race in any given election year.

  • MatthewSlyfield||

    "His description of the problem is compelling, though he is less strong on possible solutions."

    The system can't be fixed from within. The only real solution is to start over from scratch and hope we can do better next time.

    Short of starting over from scratch, all you can do is treat the symptoms and hope you can put off the end for a few more years.

    And starting over from scratch will take either violent revolution* or waiting for the current system to collapse under it's own weight.

    *Things are not YET bad enough that I would actually advocate for this. However, I believe that it is inevitable that it will eventually get bad enough to make that a reasonable choice.

  • Scarecrow Repair & Chippering||

    My feeling too. Jimmy Carter's transportation rollbacks were so remarkable because of their rarity and are far outweighed by other regulatory increases. What rollbacks are possible? Could the Slaughterhouse decisions be reversed and Privileges and Immunities restored? Could Wickard be rolled back, or any other expansions? They are woven into the country's basic fabric now. The only way backwards is by going so far forward that revolution becomes the only option.

    I don't think it has to be a civil war type revolution. Maybe all countries will stagnate so much that some small ones will get desperate and throw off the self-imposed progressive shackles, and blossom so much that other countries will follow suit. But that's just a SciFi scenario. I think most likely the world economy will simply slow down to some pathetic rate until technology can allow colonists on other worlds, as the Pilgrims founded a new freedom in the New World. Will these future colonists do any better with the natives?

  • MatthewSlyfield||

    "Maybe all countries will stagnate so much that some small ones will get desperate and throw off the self-imposed progressive shackles"

    Personally, I'm not that optimistic about it. I don't think any country, even the US will be able to throw off the progressive shackles without bloodshed, and maybe not even then. And if we don't, in the long run, even economic stagnation is too much to hope for. No government can run primarily on debt indefinitely. Eventually, they will collapse, and they will take the economy with them at least in the short term.

  • JBogart||

    Much better to rely on the biases and ignorance of natural aristocrats.

  • Stephen Lathrop||

    The portrayal of founding-era Madison as an opponent of popular will seems peculiar. Madison was an opponent of direct democracy, as were other founders. But he was an unabashed proponent of popular sovereignty on the basis of majority rule—albeit organized in a representative system.

    In Federalist 10, Madison explicitly rejected too much shackling of popular will, even at the cost of tolerating faction—the inevitability of which he deplored, but the limitation of which he reckoned at yet higher cost to political liberty—by which he explicitly meant popular rule. He argued the solution to the problem of faction was to be found in the enlargement of popular will by giving it greater extent, so that factions countering one another would become more likely.

    I challenge either Rosen or Somin to back up with citations from the historical record the OP's characterization of Madison as an opponent of government by popular rule. I note that the Atlantic article seems closer to founding era Madison than does Somin's libertarian mis-characterization of him.

  • Toranth||

    For Somin to back up his argument, he'd need to find other people that agree with him. Notice that almost all the links he put into the article are links to his other articles?

    'Begging the question' is Somin's stock in trade; I would not look to him for an authentic argument on any topic.

  • Stephen Lathrop||

    As for the "Madisonian nightmare," to the extent that it exists, its foundation rests largely on the extraordinary monopolization of media enabled by the publishing power of the internet. That was recklessly exacerbated by the congressional folly of suspending for internet publishers their liability for defamation—a liability which continues to be applied against traditional publishers.

    That is what opened the door to media consolidation and monopoly, by enabling companies including Facebook, Twitter, and a few others to publish without reading nearly the entire corpus of public discourse in the nation. While seeming to enlarge the diversity of published content generally, that in fact undermined the business model which had supported a diversity of thoughtful and publicly useful publications.

    So now readers who were previously accustomed to media which were at least somewhat useful and trustworthy, are forced to trade that off for a deluge of useless, unedited, and heedless rancor, tribalism, defamation, and weaponized speech. Under the preceding publishing regime, most of that dross could never have won publication.

    A citizenry capable of governing itself cannot be nourished up on the sort of information diet the internet now affords. Internet publishing monopolies need to be broken. Private editing of published information needs to be restored to its previous place in national life. A diversity of responsible publishers must be re-established.

  • Ghost on the Highway||

    Not to belabor using Trump as an example of media bias, the recent stories on a google search on Trump yielding 95% negative results is hardly mysterious. 95% of the (published) stories are negative. Their search algorithm is performing exactly as would be expected. Were it not for Fox, sometimes the Wall Street Journal, and off-brand outfits like the Washington Examiner, the 5% would go away. And as you point out, there is general distrust of the media for providing some semblance of accurate information across the spectrum.

  • BillyG||

    You might want to check on the News Papers impact on sentiment prior to the Civil War and Spanish-American war. Yellow Journalism has been around for a long time.

  • Brett Bellmore||

    "So now readers who were previously accustomed to media which were at least somewhat useful and trustworthy,"

    I think it would be more accurate to say that readers were previously accustomed to media which were able to maintain the illusion of being trustworthy, because nobody who pointed out when they were lying or omitting crucial facts would have a way to be heard by anything like enough people to matter.

  • Toranth||

    The number of older Americans who were shocked when, after his death, Walter Cronkite was revealed to be dishonest, corrupt, and biased proves your point.
    The entire industry knew what he was doing, they just let him get away with it because it benefited him.

  • scio me nihil scire||

    I think the differences we are dealing with are more a matter of degree than of kind.

    In terms of mainstream media monopolization, outside of the major cities it was unusual for more than two daily papers to be available, and for much of television's history nationwide broadcast was dominated by a handful of networks (Although quality was generally higher).

    In another sense the media is more fragmented than ever before given that the costs of publishing have cratered, and now there are publications that cater to many particularized and small interests that were historically under-served.

    A liability which continues to be applied against traditional publishers.

    Accurate insofar as it applies only to their physical copies or else they couldn't allow commenting the way many of them currently do in their online editions.

    Under the preceding publishing regime, most of that dross could never have won publication.

    Maybe? Many here are old enough to remember Underground/Guerrilla Newspapers, Magazines, Radio etc.
    To be sure serious corporate publishers shied away from such drivel, and there was less floating around due to the higher publication costs, but you could always find it if you knew where to look.

  • Stephen Lathrop||

    scio me nihil scire, the costs of world-wide publishing have not merely cratered, they are practically non-existent. Unfortunately, the costs of news gathering, and the costs of editing for truth, accuracy, and freedom from defamation, are much as they were.

    Those are the facts which, when combined, loosed into the world the new thing which is nearly cost-free world-wide publishing, completely unconstrained by even private judgment, and tending powerfully toward monopolization of all the revenue previously available to support news gathering and editing costs. The result is swill from which national public discourse can draw no nourishment, and doom for the nourishing alternatives upon which public discourse customarily depended for sustenance.

    These are not promising developments.

  • scio me nihil scire||

    Stephen Lathrop thanks for your observations. Like many I'd like to see an improvement to our public discourse which has, as you pointed out, sadly deteriorated. That said I'm skeptical that your proposed revisions to the CDA would accomplish the sought after ends.

    To be sure Twitter, Facebook, Reddit etc. would be forced to shutter immediately (or radically change their business models or completely offshore) which granted some might count as victory enough. However, it's unlikely this would return revenue to support news gathering and editing. Likely we would see in replacement some combination of many websites and forums that operated a low to minimal revenue model (and would not be worth bringing suit against) combined with offshore operations largely beyond the reach of US Courts. Others might try to maintain a revenue model by offering a platform with no editorial oversight, so as to retain immunity, though I'm more dubitante on how successful they would be (this could also be completely frustrated by imposing some kind of strict liability but that comes with its own set of problems).

  • scio me nihil scire||

    (continued)

    Note this hypothetical is not something I've drawn from thin air. A constellation of piracy dedicated sites continues to operate despite the liability threat and occasional governmental rounds of whack-a-mole. And we were sharing news on usenet long before the CDA was even contemplated.

    Further, in this discussion I've set aside the many potential negatives that would result from revision, and would need to be weighed against the potential gains; whose impact can not be easily dismissed.

    I'm not saying I have the right answer or that my crystal ball is perfect, but given available evidence I don't see it as the way forward although I'll happily revise my assessment if additional information shows me to be in error.

  • Stephen Lathrop||

    scio, thanks for a thoughtful response. We're all guessing, of course. What might happen in an utterly novel situation—well, that's a puzzle.

    As a former small newspaper publisher, I have had some solutions in mind for that puzzle, but none of them can solve it in the present circumstance, where a few gigantic platforms can largely monopolize all the advertising revenue there is. If that ever changes, get in touch, and I'll tell you how we can make some money—while also showing the world a model for improving public discourse.

  • Michael Cook||

    The only sure counter-balance to mob rule is another mob. You see, I watched the movie "Gangs of New York" some years ago. Quite impressive. The character Brian Dennehy played illustrated the risk you take, however, when you think politics have become so collegial and chummy that you can turn your back on a true butcher.

    Even smaller mobs and gangs can play an essential role in maintaining the façade of civil society, order, and the rule of law. It is not so much how inexhaustible the absolute power they can wield that matters, but when and where they choose to spend their political capital.

  • ReaderY||

    I would humbly suggest that, as much as any structural issue, an informal check on a demagogue has been the traditional role of elites in vetting candidates before presenting them to the voters. Candidates for an office like the President would need to have some experience in lower office, have their attitudes and behavior observed over some period of time, and gain the acceptance of elites in order to be able to get support to run as a serious candidate.

    For perhaps the last century, elites have been seen as the obstacle to the good, the source of prejudice and corruptions. Bypass the elites, let the people rule directly, and all will be well.

    The Trump candidacy represented the overthrow of Republican elites by someone claiming to represent the common people, someone who had held no office, and whose career had involved no position purporting to benefit or be responsible for anyone but himself.

    One advantage of an elite is that it facilitates a club atmosphere, of respect for other members of the elite, which in turn facilitates respect for institutions as institutions. This may well sometimes mean that it sometimes fosters respecting the elite's interests over others. But it does tend to prevent putting ones own personal interests completely above others.

    In a functioning society, the elite have some sense of obligation towards others. They serve as intermediaries, buffers, lubfricants, between the atomized individual and the absolute state.

  • Ghost of Patrick Henry||

    Exactly the reasons why Patrick Henry opposed the Constitution.

    However, the doable solution is obvious, overrule Wickard, put the Commerce Clause back in its box, amend the Judiciary Act to change federal judges to 10 year terms and pass the Fair Tax, thereby eliminsting the current tax code.
    None of this requires a Constitutional amendment.

  • Sanctimonica||

    Should there be representation without taxation?

  • David Welker||

    We should not forget that James Madison was a threat to liberty and freedom than most people. At least if we take someones actions, and not merely their words, seriously. He was a slaveowner. Period.

    So, James Madison was worried about so-called "mob rule." Of course. After all, how many people were held in bondage so that they could serve James Madison rather than themselves? Of course, if such people were to organize into something like a "mob" (which is, after all, an organized entity that has at least some power whereas, all of the individuals, when not engage in collective action, tend to be powerless and easily exploited by the James Madison's of the world).

    Similar logic might motivate Ilya Somin. Because of course, if Ilya Somin were to organize and take action with fellow libertarians, that organization would not be a "mob" would it?

    Whether a group of people who are "acting out" in a manner you don't like is a "mob" is a matter of perspective. To the British, surely George Washington and the other "revolutionaries" were mere criminals and what they were advocating is "mob rule."

    I am surprised that Ilya Somin, although he can be smart, fails to show any skepticism here of the self-serving rhetoric employed by James Madison and others. A big part of this is simply beneficiaries of the status quo talking about people who might be threats to those benefits in a derogatory way.

  • JonFrum||

    " voter bias and ignorance..."


    You mean Hillary's dispicables? You must get nauseous looking so far down your nose at the common people.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online