The Volokh Conspiracy
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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.
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.
