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 …