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James Madison, Benjamin Constant, and the Liberal-Republican Framework for Political Neutrality

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James Madison, Benjamin Constant, and the Liberal-Republican Framework for Political Neutrality ‘The Great Desideratum in Government’: James Madison, Benjamin Constant, and the Liberal-Republican Framework for Political Neutrality A Thesis Submitted to the University of Manchester for the Degree of Doctor of Philosophy in the Faculty of Humanities 2015 James A. Shaw School of Arts, Languages, and Cultures Table of Contents Abstract 3 Declaration 4 Acknowledgements 5 Introduction – Liberalism, Republicanism, and the Idea of Political Neutrality 8 Part One – The Idea of Neutrality 28 Chapter One – A Shared Intellectual Heritage: Modernity, the Public Good, and the Foundations of Political Neutrality 29 1.1: The Science of Politics at Edinburgh and Princeton 32 1.2: Virtue, Pluralism, and the Public Good 42 1.3: Neutrality and Political Science 51 Chapter Two – Law, Sovereignty, and a Liberal-Republican Conception of Liberty 54 2.1: Freedom and the State: Conceptions of Liberty in the Eighteenth Century 56 2.2: Madison: The Free State and Higher Law Foundations of Negative Liberty 59 2.3: Constant: Modern Liberty 72 Part Two – Inventing the Neutral State 88 Chapter Three – Bicameralism and the Equilibrium of Interests in the Extensive Republic 89 3.1: Hume, Montesquieu, and the Small Republic Debate 93 3.2: Nemo Iudex in Causa Sua: Balancing Popular and Impartial Governance 98 3.3: The Auxiliary Desideratum: The Invention of a Patrician Elite 108 3.4: An Effectual Remedy of Two Parts: Neutral Congressional Authority in Federalist Theory 112 Chapter Four – The Common Interest, Decentralisation, and L’élection sectionnaire 116 4.1: ‘A Frequent Source of Error’: Interests Common and Particular 120 4.2: Heterogeneity and Political Liberty in the Extensive Republic 125 4.3: A New Theory of Federalism? 135 Part Three – Guaranteeing the Neutral State 139 Chapter Five – Legality and Legislation in the Neutral State 140 5.1: Constant: Neutrality via Restraint Principles 142 5.2: Constant: The Illegitimacy of Social Improvement 150 5.3: Madison: Judicial Review and the Madisonian model of Coordinate Construction 156 5.4: Madison: Blending Popular Control and Judicial Oversight: The Council of Revision 165 Chapter Six – Constitutional Monarchy and the Federal Negative 171 6.1: Constant: Political Liberty and the Supreme Power 174 6.2: Constant: Inviolability and the Royal Power 184 6.3: Madison: Sovereignty and the States 192 6.4: Madison: Forging the Great Desideratum in Republican Government 200 6.5: The Primacy of Public Opinion and the Neutral Power 207 Conclusion – Neutrality Before Liberalism? 209 Bibliography 218 2 Abstract The liberal and republican traditions of political thought are commonly treated as divergent political-philosophical doctrines which existed in a state irreconcilable opposition in late eighteenth-century France and America. The present study challenges this notion through examining the concept of political neutrality as discussed and expounded in the political and constitutional writings of James Madison and Benjamin Constant. In seeking to account for not only why, but also how, both thinkers endeavoured to construct political systems geared toward securing the production of neutral laws, this thesis explores and highlights the complex interdependent relationship between the liberal and republican philosophical traditions in late eighteenth- and early nineteenth-century political theory. It is argued that in their desire to construct political-constitutional systems tailored toward guaranteeing the materialisation of neutral laws, Madison and Constant incorporated republican, or ‘Real Whig’, concepts into their respective constitutional strategies. Their shared objective, it is shown, was to form limited and neutral states through exploiting the diversity of public opinion in such a way that would render popular sovereignty self-neutralising. More specifically, this thesis suggests that both Madison and Constant placed considerable emphasis on de-legitimising particular justifications for legislative action, and that their respective efforts in this area were motivated by a desire to restrict the legislature to the promotion of objective, and impartially-conceived, accounts of the public good. Thus through examining Madison’s and Constant’s attempts to form neutral states, this thesis challenges the traditional account of the development of modern liberalism through pointing to the existence of an autonomous liberal- republican philosophy in post-revolutionary French and American political thought. It is argued that this hybrid political philosophy – which underpinned the constitutionalisms advanced by both Madison and Constant – had as its principal objective the reconciliation of the practice of popular governance with the restoration and maintenance negative individual liberty. Both thinkers, in other words, exploited republican concepts and institutions in order to realise the distinctly liberal end of forming limited and neutral states. 3 Declaration No portion of the work referred to in this thesis has been submitted in support of an application for another degree or qualification of this or any other university or other institution of learning. Copyright Statement i. The author of this thesis (including any appendices and/or schedules to this thesis) owns certain copyright or related rights in it (the “Copyright”) and s/he has given The University of Manchester certain rights to use such Copyright, including for administrative purposes. ii. Copies of this thesis, either in full or in extracts and whether in hard or electronic copy, may be made only in accordance with the Copyright, Designs and Patents Act 1988 (as amended) and regulations issued under it or, where appropriate, in accordance with licensing agreements which the University has from time to time. This page must form part of any such copies made. iii. The ownership of certain Copyright, patents, designs, trade marks and other intellectual property (the “Intellectual Property”) and any reproductions of copyright works in the thesis, for example graphs and tables (“Reproductions”), which may be described in this thesis, may not be owned by the author and may be owned by third parties. Such Intellectual Property and Reproductions cannot and must not be made available for use without the prior written permission of the owner(s) of the relevant Intellectual Property and/or Reproductions. iv. Further information on the conditions under which disclosure, publication and commercialisation of this thesis, the Copyright and any Intellectual Property and/or Reproductions described in it may take place is available in the University IP Policy (see http://documents.manchester.ac.uk/DocuInfo.aspx?DocID=487), in any relevant Thesis restriction declarations deposited in the University Library, The University Library’s regulations (see http://www.manchester.ac.uk/library/aboutus/regulations) and in The University’s policy on Presentation of Theses 4 Acknowledgements I am indebted to many individuals without whom the production of this thesis would not have been possible. First and foremost, my special thanks must go to the members of my research panel who have encouraged, challenged, and guided me over the last three years. I am especially grateful to Professor Stuart Jones (Manchester), my principal supervisor, for the way in which he has calmly steered me through my postgraduate work. Over the last four years, Stuart’s erudition and expertise have been constant sources of inspiration, and I will always be indebted to him not only for his masterful supervision, but also for his role in fostering my broader appreciation for the discipline of Intellectual History. I have also been most fortunate to have worked with two exceptional secondary supervisors, Dr. Pedro Ramos Pinto (Cambridge) and Dr. Francisco Eissa-Barroso (Manchester). My decision to pursue doctoral work in 2012 had much to do with Pedro’s encouragement and rigorous guidance, and it was an honour to work with him during my first year as a doctoral student. Frank’s input has also been hugely insightful and constructive, and I am deeply grateful to him for agreeing to become my supervisor in 2013. I’ve always found his professionalism and thoroughness to be inspiring, and the depth of his historical knowledge to be nothing short of humbling. I would also like to thank Dr. Steve de Wijze (Manchester) who has served as my academic advisor. When Stuart and I began discussing this project we knew that it would benefit from the input of a political theorist, and Steve’s contributions have always been challenging, stimulating, and constructive. I must also thank Professor Chris Beneke (Bentley). Chris was pivotal in transforming my interest in American constitutional theory into what I hope is a broader appreciation for the history of the early republic, and I will long remember with fondness the marathon conversations we shared both in our offices and from our seats at Fenway Park. My thanks for Chris, however, extends slightly beyond the realm of academia. I’m deeply grateful for the way in which he made me feel most welcome and at home during my time in Massachusetts, and perhaps even more importantly, I will be forever thankful that he occasioned in me a level of fandom for the Boston Red Sox that shows no signs of abating. My acknowledgements would incomplete without a mention of Professor John Stagg (Virginia), the editor of The Papers of James Madison. It was an honour as well as a pleasure to spend some time with him in Charlottesville, and I remain thankful not 5 only for his support, but also for that offered by other members of staff at University of Virginia. My thanks also goes to the School of Arts, Languages, and Cultures at the University of Manchester for their generous financial support without which I would not have been able to pursue my research with the same level of focus and dedication. Finally, the thanks I owe to my parents, Jim and Wendy, cannot be properly expressed in words alone. Their unwavering support is something for which I will always be truly grateful, and without their continued encouragement this process might not have been possible, and would certainly not have been quite so enjoyable.
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