Madison’s metaphor

Can we cure ourselves of our factious spirit? Alas, as James Madison teaches us in the fifth and sixth paragraphs of Federalist #10, any attempt to address the root causes of factions is going to end in disaster. Either we restrict people’s freedom to create and join factions, or we try to impose on everyone “the same opinions, the same passions, and the same interests.” Hell no!, says Madison in essay ten. Yes, factions are bad, but any attempt to remove their causes are going to be far worse. Thank you, Mr Madison: that has to be one of the most important political lessons of all time, a lesson lost on so many serious scholars, sundry politicians, and assorted do-gooders.

Let’s consider the second solution first. Unless you are one of those ‘serious’ scholars who take the crazy and communistic prescriptions in Plato’s Republic seriously, the latter solution is pure folly, especially given human psychology and given “the diversity in the faculties of men.” Moreover, as Madison correctly notes–and as our other intellectual hero Robert Nozick would confirm with his irrefutable Wilt Chamberlain argument–, an unequal distribution of property will inevitably arise from the diversity of our skills and talents. For Madison, the whole point of law and government is to protect our ability to make a living: “The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.”

So, what about the first “solution”; why not impose practical limits or reasonable requirements à la John Finnis on our ability to create and join factions in the first place? Again, hell to the no!, says Madison. The cure (restricting liberty) is far worse than the disease (the mischiefs of factions)! In what is perhaps the most memorable sentence in Federalist #10, Madison propounds one of the most beautiful, haunting, and powerful metaphors in the annals of political philosophy. He compares liberty to air: “Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.” Madison’s fire metaphor is not only memorable; it is spot on!

Simply put, unless we are willing sacrifice our freedoms or willing to impose the equivalent of martial law, there is no way of removing the root causes of faction. Factions are inevitable. Given this reality, the best we can do is to try to control their effects, i.e. limit the damage that factions can do. Stay tuned. It is here where Madison will make one of the most original and surprising political arguments of all time …

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Dollars versus do-gooders

We have thus far diagnosed the main causes and dangers of factions, but before proceeding to possible cures, I want us to carefully examine the eighth paragraph of Federalist #10, the one that famously begins “No man is allowed to be a judge in his own cause …” and one of my favorite parts of essay ten. Although this modest paragraph contains only eight sentences of varying lengths totaling a mere 267 words, in that compact amount of space Madison not only paints an accurate, compelling, and realistic picture of law and politics centuries before James Buchanan and Gordon Tullock established “public choice theory” (look it up!); he also totally obliterates Finnis’s common good theory of law.

Specifically, Madison explains how the lawmaking process is not the product of rational deliberation or practical realizations of the common good a la Finnis. Instead, it is really a cutthroat competition or mad scramble among competing factions, who are simply attempting to promote their own preferred ideological and economic interests at the expense of everyone else! In the immortal words of Madison (emphasis added by us), “… what are many of the most important acts of legislation, but so many judicial determinations … concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine?” Simply put, factions taint or distort the lawmaking process. Madison then provides several examples to illustrate his point (emphasis added): “Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail.”

But Madison saves the best–I mean, worst–for last. The worst form of self-interested lawmaking is the tax code (emphasis added): “The apportionment of taxes … is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.” This is why Finnis’s project is doomed to fail; this is why calls for greater deliberation are in vain: because in politics and law money talks; bullshit walks. However much factions (pressure groups, lobbies, etc.) may try to dress up their positions in terms of the common good or the public interest, the reality is that factions are going to do everything possible to manipulate the legislative process to promote their own selfish economic or ideological ends.

Now that Madison has painted for us a far more realistic picture of law and politics, how do we counteract or control “this dangerous vice” (i.e. self-interested factions)? We shall address this crucial question in our next few posts, for it turns out that there are several possible solutions to the dangers of faction but most of these remedies are either ineffectual or produce more harm than good …

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Madison’s diagnosis

In our previous post, we reformulated James Madison’s broad definition of “faction” and restated the litany of dangers that such factions pose to the rule of law. Here, we will diagnose the main causes of “this dangerous vice.” Simply put, why are factions created, and why do they continue to endure? In the seventh paragraph of Federalist #10, Madison identifies several sources of factions. One reason for our factious spirit is “the zeal for different opinions” in matters of religion and politics. Another source of factions is our psychology, specifically, our “attachment to different leaders.” Yet another cause is economic: “the various and unequal distribution of property.” Madison’s actual words are so eloquent–his sentences have such a lasting literary quality to them–that to paraphrase them is to do Federalist #10 an injustice. Mr Madison’s precise and meticulous diagnosis of the causes of faction is thus worth quoting in full:

1. Religion and politics, or in Madison’s words: “a zeal for different opinions concerning religion, concerning government, and many other points as well of speculation as of practice.” Simply put, people will worship different gods and hold heterogeneous beliefs about politics, law, and morality.

2. Human psychology and the cult of celebrity, or in the words of Madison: “an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions ….” Think of Kim K. or Cardi B. (both of whom are pictured below) or other contemporary celebrities when you conjure up this latter category of persons with interesting fortunes. Think of Barack Obama, Donald Trump, and other ambitious leaders when you picture the former category of persons contending for power.

3. Economic causes: “But the most common and durable source of factions,” Madison explains, “has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views.” In other words, people will develop competing financial and class interests, depending on what they do for a living. (As an aside, check out the chart below for a modern-day confirmation of Madison’s prescient economic thesis.)

People are thus motivated to create and join factions for a wide variety of reasons. As a result, given our heterogeneous political and religious beliefs, given the realities of human psychology, and given the division of labor and the uneven distribution of wealth, factions are here to stay. They are an inescapable feature of our legal and political worlds. Ok, but why are factions so dangerous? Why are they the “mortal diseases under which popular governments have everywhere perished“? Is Madison’s critique of factions just cheap talk or verbal hyperbole, or are factions really to be feared? Stay tuned …

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“This dangerous vice”

As promised, we shall now begin our review of Federalist #10, one of the many erudite essays James Madison penned in 1787 and 1788 in support of the Constitution during the tumultous ratification process. Madison devotes essay ten to the dangers of “faction.” He defines this term broadly in the second paragraph of his classic essay as follows: “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest ….” In other words, factions include all the major and minor players in civil society, including business firms and trade associations; single-issue lobbies and pressure groups; non-profits and NGOs; even religious organizations and political parties. (As an aside, it’s worth taking a moment to compare Madison’s broad definition of factions with Finnis’s more narrow master taxonomy of groups in Chapter VI of NLNR.)

So, why does Madison devote an entire essay to the topic of factions? Because factions are dangerous! At best, they erode the moral values of fairness and justice; at worst, factions can distort democracy and subvert the rule of law. The first full paragraph of Federalist #10 thus describes the many grave dangers posed by factions, dangers such as “instability, injustice, and confusion.” Madison uses strong language here; he does not mince words. He refers to factions as “mortal diseases” and “this dangerous vice.”  Why are factions so dangerous? Because, as Madison makes clear, factions taint the lawmaking process. When factions dominate the legal and political process, laws “are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” As a result, factions not only produce “unsteadiness and injustice“; they are also the reason why “popular governments have everywhere perished.”

Before proceeding, I want you to take a moment to compare Madison’s pronounced picture of the rough-and-tumble world of factions with the sundry idealistic and fictional worlds described by so many political philosophers, including Jean-Jacques Rousseau’s “general will,” John Rawls’s “original position,” John Finnis’s “common good” theory of law, or Robert Nozick’s “invisible hand” explanation of the state. Now that Madison has painted this Hobbesian picture of the self-interested nature of law and politics, he will devote the remainder of his essay explaining the main causes of factions–why factions are inevitable features of the legal and political landscape–and weighing the pros and cons of possible solutions to this danger. We will thus continue our extended review of Federalist #10 in our next post …

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“To the People of the State of New York”

Thus begins James Madison’s essay Federalist Paper No. 10, and thus begins my extended detour into factions, law, and politics. This classic essay is addressed to the people of New York because it was first published on 23 November 1787 in The New York Packet, a popular periodical that was published in NYC from May 16, 1785 to January 26, 1792. (Here is a complete list of now-defunct NYC newspapers.)

Before we delve into the details of essay ten, here is some background. A draft of a new U.S. Constitution had been proposed to the 13 States then in existence in September of 1787, but this new constitution would not be legally binding on anyone unless it was ratified by at least nine of them. (See Article VII of the original Constitution: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”) The New York convention (which would meet in June of 1788) would thus prove to be a crucial test for our new national charter; the future of our republic hung in the balance.

Would the New York convention vote to ratify or reject the proposed constitution? At the time, the outcome was highly uncertain, and if New York ended up rejecting the constitution, the ratification process would likely be doomed! Enter James Madison, John Jay, and Alexander Hamilton, who decided to write a series of weekly articles and short essays–now known collectively as “The Federalist Papers”–in order to drum up public support for the new constitution. In all, they wrote 85 popular essays praising the virtues of the new constitution, essays that would help change the course of history. (Check out the musical tribute to The Federalist Papers from the Broadway show Hamilton below.) Of these 85 papers, Number Ten is my all-time favorite. Here, Mr Madison will discuss the dangers of “domestic faction” and propose some possible cures. In the process of writing this erudite essay, Madison will also paint a far more realistic picture of law and morals than Finnis does. Stay tuned. We will begin exploring the substance of Federalist #10 in earnest in our next post.

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Source of legal duties: common good redux (review of XI.8 & XI.9)

Professor Finnis concludes Chapter XI of NLNR by asking (and I paraphrase), What is the ultimate source of our invariant obligation to obey the law? That is, what is the source of legal duties? Is it God’s will? The legislator’s will? Or something else? We probably cannot do justice to Prof Finnis’s elaborate and erudite philosophical analysis of this question in a blog post. Nor will we even try. It suffices to say that, for Finnis, the ultimate source of legal duties is not the will of God or the will of the lawmaker but rather “the needs of the common good” (p. 343).

Say what? This reliance on the common good as an all-purpose theoretical crutch is getting old … Basta! Enough already! [Insert your favorite double facepalm gif here, or see ours below.]

As the reader must have noticed by now, the lynchpin of Finnis’s entire theory of law is this vague and opaque notion of the common good. To the extent Finnis defines the common good in terms of our ability to cooperate and solve collective action problems, Finnis appears to be mostly on solid ground. (I say “appears to be” and “mostly” because of the problem of bad common goods–scenarios involving nefarious ends.) Still, we have strongly criticized Prof Finnis’s focus on the common good on many occasions. That is why I now want to hit the pause button on my review of NLNR. Before we conclude our review of Finnis, I want to take a moment to explain in greater detail my unyielding and unrepentant critique of the “common good,” a seemingly-innocuous idea that might be unobjectionable to most people. Since my hardcore critique of the common good is based on James Madison’s Federalist Paper No. 10 (1787), one of my favorite essays of all time–along with David Hume’s 1752 essay “On the original contract” and Benjamin Franklin’s 1786 essay “On the morals of chess”–I will therefore take an important intellectual detour in my next few posts in order to review Mr Madison’s provocative ideas in Federalist #10.

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Taxes, penalties, and the moral content of law (review of XI.6 & XI.7)

Otro triste 20 de mayo. (Another melancholic 20th of May.) Today would have been Cuban Independence Day had JFK not botched the Bay of Pigs invasion. When will our beloved Cuba be free? In the meantime, let’s pick up where we left off with our review of “Natural Law and Natural Rights” (NLNR).

Thus far, Professor Finnis has drawn a distinction between two distinct types of “obligation”–moral and legal–and has speculated about the content of our legal duties. Next, Prof Finnis will explore the moral side of legal duties in subsections six and seven of Chapter XI of NLNR. In particular, does the enactment of a law in a given polity generate any moral duties? Or put another way, what moral duties, if any, do laws impose on the members of the polity to whom those laws apply? In short, what is the moral content of law? Alas, the answer to these deep queries boils down to this: “it depends.” For Finnis, the moral content of any given law depends on the type of law under consideration, or to be more precise, it depends on purpose of the law and the way it is enforced. Simply put, does the law in question impose a penalty or a tax? Is its main purpose to punish or collect revenue? (I have added the word “main” to the previous sentence since a single law can be animated by multiple and conflicting purposes.)

Although Finnis concedes that “this distinction [between taxes and penalties] inevitably is hard to draw in practice” (p. 332), since both taxes and penalties often produce similar incentive effects, this “basic distinction” (p. 327) is the secret key to unlocking the moral mysteries of legal duties. Why? Because to determine what the moral content of a law is we first need to figure out what the purpose of the law in question is (i.e. why was the law enacted?), and for Finnis, the most important clue for discovering a law’s purpose is to identify the way in which the law is enforced. In his own words, Finnis explains the inner logic of his tax/penalty litmus test thus (p. 332):

Is this (i) a form of conduct authoritatively declared to be incompatible with the authoritatively chosen common way (and therefore subjected to penalty) or is it (ii) a form of conduct which the legislator perhaps (a) approves but finds convenient as an occasion for raising revenue, or perhaps (b) disapproves of but is willing to concede to citizens (including the law-abiding) but only at a discouraging price?

In other words, in evaluating the moral content of a law what matters most for Finnis is not the intent of the lawmaker but rather the underlying behavior that the lawmaker is trying to regulate, in particular, whether a given behavior promotes or hinders the common good, i.e. whether such behavior promotes human cooperation and contributes to the solution of whatever collective action problem that the lawmaker is trying to solve. So, the tax/penalty distinction is a proxy for a law’s moral content: laws enforced via taxes regulate conduct that the lawmaker regards as compatible with the common good (i.e. human cooperation), while laws enforced via penalties involve conduct that the lawmaker deems to be incompatible with the common good.

This is a beautiful theory, and I appreciate how Finnis defines the common good in terms of human cooperation and the solution of collective action problems. That said, I will simply restate my previous objections to Finnis’s theory in the form of three Socratic questions:

  • Why is human cooperation and the solution of social dilemmas and collective action problems a moral imperative as opposed to just a practical one?
  • Why should we accept as authoritative the lawmaker’s solutions to our social dilemmas and collective action problems?
  • And why is law and legal regulation a morally good method for solving our social dilemmas and collective action problems?

For now, it suffices to say that the main weaknesses with Finnis’s theory of law is that it does not grapple with our Socratic questions; instead, Finnis appears to take the answers to them for granted. (If you don’t believe me, check out the top of page 335.) In any case, we will conclude our review of Chapter XI in our next post.

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