MADISON’S METRONOME: THE CONSTITUTION AND THE TEMPO OF AMERICAN POLITICS A Dissertation submitted to the Faculty of the Graduate School of Arts and Sciences of Georgetown University in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Government By Gregory S. Weiner, M.A.L.S. Washington, D.C. April 19, 2010 Copyright 2010 by Gregory S. Weiner All Rights Reserved ii MADISON’S METRONOME: THE CONSTITUTION AND THE TEMPO OF AMERICAN POLITICS Gregory S. Weiner, M.A.L.S. Thesis Advisor: George W. Carey, Ph.D. ABSTRACT Scholarship on the political thought of James Madison has long been preoccupied with whether he believed in majority rule, but Madison himself would scarcely recognize the terms of that discussion. For Madison, there was no empirically plausible alternative to majority rule: One of the most consistent themes in his work is the assumption that persistent majorities are bound, sooner or later, to get their way. For a study of Madison’s democratic theory, as for Madison himself, the relevant question is not whether majorities will prevail but rather what kind of majorities will prevail—and what Madison regarded as the decisive question: when they should prevail. This study thus hypothesizes that Madison’s political thought maintains a consistent commitment to “temporal majoritarianism,” an implicit doctrine according to which the majority is always entitled to rule, but the primary criteria for whether it should prevail at any given point of decision is the length of time it has cohered. This duration is generally proportional to the gravity of the decision in question, with more serious issues requiring more persistent majorities. On this interpretation, the Constitution is an essentially majoritarian instrument among whose primary purposes is to act as a metronome regulating the tempo of American politics. Madison assumed the natural pace of iii majoritarian politics was allegro; the Constitution’s purpose was to slow it to a steady but deliberate andante. This dissertation traces the development of this doctrine throughout Madison’s writings and explores its operation in several key areas of his thought, including the extended republic thesis of Federalist 10, the Bill of Rights and his theory of constitutional interpretation. In each of these cases, it endeavors to establish both the supremacy of majority rule and the centrality of time in Madison’s thought. The concluding chapter discusses the contemporary implications of temporal majoritarianism, especially the importance of patience as the linchpin of the Madisonian order. iv ACKNOWLEDGEMENTS It is a cliché to preface a dissertation by saying that words cannot adequately express one’s gratitude to one’s advisor. My most strenuous attempts to devise a means of conveying that sentiment in some novel way have led me to conclude that some truisms attain that status precisely because they are, simply, true. This is one of them. I heard George W. Carey described once as “the last of the gentleman scholars.” He is not the last, one hopes, but he surely epitomizes a standard that I shall not surpass but to which I nonetheless aspire. Studying with him has been an extraordinary privilege that has informed every observation and conclusion in the pages that follow. I am similarly grateful to the other members of my committee. The footnotes in this work do not adequately discharge the intellectual debt I owe to Professor Patrick J. Deneen’s reflections on localism and civic engagement, which are so vast that I simply did not know which among them to cite. Professor Richard Boyd has been an unfailing source of both rigorous standards and enthusiastic encouragement. So have other members of the faculty during my time at Georgetown, including Professors Bruce Douglass, Gerald Mara and the late Valerie Earle. Several friends and fellow students have also provided valuable observations and encouragement, including Mo Steinbruner, Justin Litke, Jason Ross, Todd Stubbendieck, Matt Townley and Jack Moline. My parents will eventually discover that their pride is disproportionate to my achievements, but their support nonetheless means everything. In particular, Martin v Weiner (Ph.D., then, years later, M.D.) has always provided an example of lifelong learning and individual initiative that somehow made the altogether senseless act of returning to graduate school mid-career seem rational, and Phyllis Weiner’s maternal effusiveness ought never to obscure the fact that—in the matters of the heart whose importance exceeds those of any professional endeavor—I am the one who aspires to achieve as much as she has. Hannah, Jacob and Theodore have inspired, amused, encouraged, tolerated and provided a general example of eager and innocent curiosity that I hope I can emulate and they can sustain. As for Rebecca, whose idea this entire adventure was and who has borne every sacrifice associated with it, usually with good cheer and always with patience exceeding my own, any attempt at conveying my gratitude would be hopeless. Were there an academic convention for footnoting sources of inspiration, moral support, constructive needling and constant kindness, her name would appear on every page—in which case it would still be necessary for me to say that there are no words. vi DEDICATION This, as all else, is for Rebecca. vii TABLE OF CONTENTS Methodological Note…………………….…………………………………….……….. ix Introduction…………………………………………………………………………….... 1 Chapter 1…...................................................................................................................... 11 Aristocrat or Republican? The Debate in Madison Scholarship……………………….. 11 Madison on Majority Rule…………………………………………………………….... 25 Chapter 2……………………………………………………………………………….. 72 Reason vs. Passion……………………………………………………………………... 72 Temporal Majoritarianism……………………………………………………………... 87 Gradualism……………………………………………………………………………. 111 Madison on Human Nature………………………………………………………….… 116 Chapter 3…………………………………………………………………………….... 123 Introductory Considerations…………………………………………………………... 123 Factious Activity in the States………………………………………………………... 127 Time and Majority Formation in the Tenth Federalist………………………………... 150 Temporal Majoritarianism and the National Negative……………………………….. 167 Chapter 4…………………………………………………………………………….... 178 Introductory Considerations…………………………………………………………... 178 Freedom of Conscience……………………………………………………………….. 181 Political Expression…………………………………………………………………... 192 viii The Bill of Rights as Majoritarian Instrument………………………………………... 204 The Judiciary and Constitutional Interpretation…………………………………….... 219 Temporal Majoritarianism and the Separation of Powers……………………………. 234 Chapter 5…………………………………………………………………………….... 240 Quantum Constitutionalism and the Law of Compounding Disappointment……….... 242 Transactional Politics and the Lost Skills of Civic Engagement……………………... 250 The Lost Virtue……………………………………………………………………….. 257 Bibliography………………………………………………………………………….. 263 ix METHODOLOGICAL NOTE The inherent risk of attempting to draw disparate strands of any author’s work into a single coherent interpretation is compounded when the subject in question is a practicing statesman rather than a systematic theorist. This study relies not merely on Madison’s explicitly theoretical works but also on his correspondence as well as polemical writings produced for political contexts. Rather than attempting to divine which among these reflect Madison’s “true” beliefs, I have approached this study by assuming that Madison more or less meant what he said in whichever context in which he expressed himself. I have endeavored not to deviate from this standard unless there was a specific reason to privilege or diminish the importance of a particular document, in which case I have attempted to be conscientious about acknowledging and explaining such a choice. There are, of course, difficulties involved in imputing theoretical meaning to non-theoretical writings. By way of apologia, I would note, first, that the fact that Madison was not a systematic theorist forces us to rely on a full range of writings in order to obtain a comprehensive sense of his views; second, that by the standards of a practicing politician, his private and public statements are remarkably consistent, and I am unaware of any instance of fundamental and contemporaneous incompatibility between them; and, finally, that what George W. Carey says of The Federalist also x applies to the range of Madison’s work: Its value lies precisely in the fact that it constitutes a public philosophy articulated in and accommodated to the political realm.1 The most important apology for this approach is, of course, acknowledging its limits and claiming conclusions no more sweeping than the method itself can justify. My intent is merely to identify one pattern—a tendency, one I assert to be a strong one—on which I believe Madison to have remained largely consistent. Where I am aware of writings that complicate or contradict this interpretation—as, in a public career spanning six decades, there must be—I have tried, again, to acknowledge the difficulties involved. Finally, at various places I have invoked illustrations from either contemporary or, in historical terms, relatively recent politics. These include the New Deal regime, the health care controversy and disputes over various assertions of rights. Generally speaking, I have tried to minimize the use of controversial illustrations so as not to distract from the underlying exegetical intent of this study.