Rambunctious American Democracy

1.

These three books under review do not have much in common, but what does bind them together is James Madison, the influential framer of the Constitution and the Bill of Rights and the fourth president of the United States. Today, Madison’s reputation as a Founder has never been higher. Robert A. Dahl calls him “our greatest political scientist” and the person most responsible for our constitutional system. Michael Novak rightly sees him as the crucial figure in America’s development of religious freedom. Garry Wills considers him to be the third- most-important Founder after Washington and Franklin. Indeed, because he was such an important Founder, Madison and his ideas have come to bear an extraordinary responsibility for the character of American politics and society.

But, of course, by achieving this kind of influence in the founding of the country, Madison has become the object of serious criticism as well. This is the case with all three books under review. Although all of them take for granted Madison’s great significance in the galaxy of Founders, at the same time all are critical of him in one way or another—as a constitution maker, as a political thinker, as a man of faith, and as a president.

Of the three, Robert A. Dahl’s short book is clearly the hardest on Madison and on the constitutional system he more than anyone helped to create. Since Dahl, who is Sterling Professor Emeritus of Political Science at Yale University, doesn’t like our Constitution, his book is very critical of the man considered most responsible for it. His criticism is well directed, for, as Garry Wills points out, Madison, more than any other Founder, was radically opposed to the very sort of direct democracy that Dahl most admires. Madison wanted to refine the voice of the people in government, not replicate it, as Dahl would like to do. In his new book, which originated as the Castle Lectures at Yale, Dahl has brought together his long-existing criticism of Madison’s attempts to restrain majority rule into a devastating attack on the undemocratic character of the American Constitution. Perhaps not since Progressive scholars such as J. Allen Smith wrote at the beginning of the twentieth century has anyone condemned the Constitution so harshly.

Dahl wants us to change the way we think about the Constitution. We should stop assuming it to be a national icon that is superior to the constitutional structures of other democratic countries and begin to consider ways of reforming it in order to make it more compatible with democratic standards and values. Although Dahl has no hope whatever that we will make any substantial democratic changes in our constitutional system in the immediate future, he nonetheless wants to open up discussion of the Constitution and its shortcomings, a discussion that he hopes may, in time, lead to something.

These shortcomings are serious, and many of them can be traced to the mistakes of Madison and the other members of the Philadelphia Convention who drew up the Constitution. Of course, says Dahl, some of the undemocratic features of our constitutional system, such as the extraordinary power over social policy that has come to be wielded by the Supreme Court, were not really the fault of the Framers. But many others were. The most egregious of their mistakes (apart from their failure to abolish slavery, of course) involved their acceptance of political inequality, most notably in the equal representation of the states in the Senate and in the use of electors in the election of the president. Whatever justification there was for the so-called “Connecticut Compromise” at the convention, which entitled each state to two senators, it has led, says Dahl, to “a profound violation of the democratic idea of political equality among all citizens.” That Wyoming, with a half-million people, has the same two senators as California, with nearly 34 million, is in Dahl’s opinion an absurdity. Other established democratic states have federal systems and bicameral legislatures with one house representing geographical units, but none of them has such a gross degree of unequal representation as the United States.

“Exactly whom or whose interests is a second chamber supposed to represent?” Dahl asks. Certainly the Framers provided “no rationally convincing answer.” As far as Dahl is concerned, the only reason second chambers exist “in all federal systems is to preserve and protect unequal representation. That is, they exist primarily to ensure that the representatives of small units cannot be readily outvoted by the representatives of large units. In a word, they are designed to construct a barrier to majority rule at the national level.”

Dahl admits that individual and minority rights have to be protected in a democratic system. But the Bill of Rights and some subsequent amendments together with judicial practice provide sufficient constitutional guarantees that certain fundamental rights are protected. Why do people in less-populated states like Wyoming, Dahl asks, need additional safeguards for their concerns? “Why should geographical location endow a citizen or group with special rights and interests…?” Dahl remains “baffled” by these violations of political equality. (Of course, it is important to remember that, according to Article V of the Constitution, this violation of political equality is the only part of the Constitution that is unamendable.)

Even more absurd, says Dahl, is our presidential system of government and especially our method of electing the president through the electoral college. Nearly all of the twenty-two advanced democracies with which Dahl compares the United States have rejected our presidential system in favor of a parliamentary system. Not only does our Constitution permit divided government, that is, with the presidency held by a different party from the Congress, “it cannot prevent divided government.” Our presidential system, in which the president is both the chief executive and the ceremonial head of state, is unique in the democratic world. And it is unique with good reason, says Dahl: no democratic state in its right mind would ever try to copy it. Of course, Dahl doesn’t mention that many of the advanced democracies he praises are in fact mon-archies. At any rate he can’t find much good to say about the American presidency. He dismisses the claim that the president is the only real representative of all the people as “little more than a myth created to serve the political purposes of ambitious presidents.”

If the office of the presidency is inane, it is no more so than the means by which the president is elected. Of course, there is not much one can say for the anachronism of the electoral college, which after 1796 never really worked as the Constitutional Con-vention expected it would. But Dahl doesn’t have much sympathy at all with the eighteenth-century Framers’ attempts to find a practical method of electing the president. Indeed, he comes close to accusing them of a failure of imagination for not coming up with a system “that would prove acceptable to a democratic people.”

Contrary to Dahl’s conventional wisdom, the Framers dismissed direct popular election of the president not because they feared the people, but because in the absence of political parties and a modern press they did not think the people would know whom to vote for outside of their own state, at least not after Washington passed from the scene. They rejected election by the Congress because they did not want the president dependent on the legislature. Dahl wishes they had selected this method because it would have created something akin to a parliamentary system of responsible government. But of course, as Article I, Section 6 indicates, the Framers were intent on preventing members of the legislature from simultaneously holding office in the executive, which is the prerequisite for the development of the modern cabinet government of Britain and the other parliamentary democracies. In the end, says Dahl, the “baffled and confused” Framers settled on the electoral college “more out of desperation than confidence.” Actually, in 1787 it seemed like a brilliant solution to the problem, for the electoral college is in fact an alternative Congress (except for the electoral votes accorded the District of Columbia in 1961 by Amendment XXIII).

The electoral college began to reveal its flaws almost immediately. By 1800 the development of political parties and party loyalties, which the Framers had not desired or anticipated, soon turned the elaborate machinery of the electoral college into simply a system of counting votes, a defective and unequal system, says Dahl, that has proved to be an “undemocratic blemish” on America’s constitutional structure. Several times, including the election of 2000, this electoral system has resulted in the candidate with fewer popular votes than his opponent becoming president. What, says Dahl, could be a greater violation of democracy?

Our electoral system in general does not help matters any. Especially irritating to Dahl is the Anglo-American first-past-the-post method of elections, where the winning candidate takes all no matter how many votes the other candidates may have received; this method of voting tends to favor a two-party system. He prefers proportional representation, where all candidates are awarded seats in proportion to the votes they received; this method tends to favor multiparty systems and seems to Dahl to better serve democratic ends. It is fairer to citizens than what he labels two-party “majoritarianism.” It is more inclusive, and it is more apt to lead to consensus in governing. He believes that proportionality results in fewer losers and more satisfied voters than majoritarianism.

Unfortunately, says Dahl, the American system is neither; it is a hybrid that possesses the defects of both proportionality and majoritarianism and the virtues of neither. Even when the same party wins the presidency and the two houses of Congress, he says, three different majorities are at work, and they usually do not agree with one another. Consequently, voters have difficulty knowing what part of the government to hold accountable for the success or failure of national policies. “Compared with the political systems of the other advanced democratic countries, ours is among the most opaque, complex, confusing, and difficult to understand,” he writes. It is unfair, unequal, and undemocratic and ought to be changed, says Dahl, but because of the difficulty of amendment and the power of the least-populated states it probably won’t be.

Contrary to Dahl’s suggestion, however, it is not simply constitutional restraints and the opposition of “some geographical minorities” that have kept Americans from changing their system of government. Apparently most Americans really don’t want to change it (except perhaps for the electoral college), and seem much happier with our democratic politics than he is. And where they are unhappy, as, for example, with campaign financing, they tend to blame not the Constitution but the politicians. Precisely because the Constitution has become a sacred icon—giving our politics a stability it otherwise might not have—Dahl’s powerful indictment of our constitutional structure seems unduly pessimistic and overwrought and sometimes limited as well. In his criticism of our party system in contrast to that of most other advanced democratic systems, for example, he never deals with our unusual practice of relying on primary elections for the selection of party candidates. Although no European party could ever imagine losing control of the nomination of its candidates as the American parties have done, we have come to believe that primaries make our system more democratic. Are we wrong? Dahl doesn’t even raise the question. Ultimately, he never presents convincing evidence that our constitutional system, however structurally absurd it may be, is unworkable or has led to absurd and grossly undemocratic results, results that at least would justify our trying radically to change it.

Instead, Dahl starts from an unquestioned premise about the supreme normative value of political equality and follows out the logic of that premise, whatever the consequences for our Constitution. But if political equality is such a supreme value, why focus exclusively on our constitutional system? Surely the structure of the Senate is the least important source of political inequality in America. Even if we had a constitutional system that provided for one person, one vote throughout, radical political inequality would still exist, produced by differences of money, education, and other means of political access that are far more important than any inequality created by the Constitution.

But is political equality or the direct and equal political participation by all citizens that Dahl admires really what we want after all? Within decades if not sooner, we will have the technology to turn the United States into something akin to the direct democracy of a New England town meeting. It may become possible for all citizens via the Internet to vote on all sorts of issues—taxes, the budget, going to war, etc.—that hitherto have been the preserve of the logrolling and compromising of our unequally elected representatives. The growth of ballot initiatives in California and elsewhere are showing the way toward this new democratic future, a future in which we might do away with representation altogether. If Dahl’s goal is to replicate the people as accurately and fairly as possible in the constitutional system, then surely eliminating the representatives entirely ought to be his ultimate ideal. But is this where we want to go with the logic of political equality?

In his more convincing moments Dahl seems to recognize that constitutional structures really don’t determine the health, the stability, and the democratic character of countries. What really counts in maintaining democracy are the liberties protected by the Bill of Rights and the underlying conditions of the country—its culture, its social arrangements, its economic well-being, and the political experience of its citizens and their leaders. Dahl simply acknowledges that these underlying conditions may be more important than the constitutional structure, but he can’t linger on the point, for it would undermine his whole argument. It may be that our culture and society are in fact so rambunctiously democratic that we actually need some undemocratic institutions (e.g., the Supreme Court, the Federal Reserve Board) to discipline and control them.

2.

With Michael Novak’s book we enter a quite different world. Novak is a prominent conservative Roman Catholic layman who has spent his career arguing for the importance of religion in American life. He dislikes the kind of secular society that America has become, and he resents the way the law schools, the jurists, and the history departments of the country have been taken over by secular-minded people who want to drive religion into the private realm where it will wither and eventually die away as a public social presence. What better way to reverse this process and demonstrate the importance of religion than to show that the eighteenth-century Founders were actually “men of faith” who greatly valued religion? Of course, there is Madison, the apparent exception. He was “the least religious of the founders,” and indeed was the only one who had no confidence in the capacity of religion to control the viciousness of the American people. But if Novak can show that even Madison grounded his support for religious liberty on faith, not reason, then he thinks he will have clinched his case. Such is the peculiar power of the Founders in American culture: they have become our church fathers.

Novak’s book concerns a subject that he has thought about and researched for forty years. It is disorganized and often repetitious, really a series of essays cobbled together. It is unsophisticated in its arguments and use of evidence and full of exaggerations and distortions, as, for example, when he describes Madison’s important 1787 working paper “Vices of the Political System of the United States” as “at least in part the result of the habit encouraged among Christians and Jews of examining all things for their virtues and vices.” But in the end the book is perhaps redeemed by its earnestness.

At the beginning the American eagle, writes Novak, had two wings. One of them was reason or common sense; the other was faith. (This image of wings comes from Pope John Paul II.) In our own time the wing of faith has been quietly forgotten, Novak says, and he wants to remind us of how significant that faith once was, lest our forgetfulness eventually undo the nation. His method of reminding us is to amass mountains of quotations from the writings of the Founders in order to demonstrate that they cared about religion.

This is easy to do, for the Founders and the founding generation of Americans did in fact care a great deal about religion. Certainly they cared more about religion than we do, despite all the statistics we mount today showing the high percentages of people who believe in God and attend church. Religion permeated late-eighteenth-century life in ways we can scarcely imagine. Many if not most of the publications of the day were concerned with religious matters. Biblical references even for unlettered people could be taken for granted. Most people in the eighteenth century still explained the world, even the weather, in religious terms. By contrast today, even most Christian fundamentalists don’t rely on the Bible or their minister for weather reports. Although many of the elite Founders scorned organized religion and doubted the divinity of Christ, they were not atheists, and they certainly had great respect for the religiosity of the common people and the usefulness of religion for republican government.

At every turn the Founders (Madison being the conspicuous exception) appealed to God and relied on religion to inculcate the virtue and morality on which their republican experiment depended. The first presidents and Congresses called for days of public fasting and thanksgiving. Religious groups brought their faith into the public square, holding open meetings in public parks and parading down public streets. For years the largest religious service in the nation took place in the US Capitol and later in the Supreme Court. The states of Connecticut and Massachusetts maintained their tax-supported Congregational religious establishments until the second and third decades of the nineteenth century. And jurists in other states thought that Christianity was part of the common law. Whatever Jefferson said or hoped for, there was by modern standards little or no wall separating state and religion in the early decades of the Republic’s history.

The religion that late-eighteenth-century Americans cared about was Christianity. But Novak is obviously nervous that Christianity by itself might not be inclusive enough for modern sensibilities. Desiring to bring at least the Jews into the founding moment, he goes out of his way to emphasize the prevalence in eighteenth-century American culture of what he calls “Hebrew metaphysics.” By Hebrew metaphysics what he really means is the Puritans’ stress on the typology of the Old Testament and their use of ancient Israel as a model for the founding of America. So eager is Novak to highlight the Jewish contribution to American culture that he gets carried away and declares that “the language of Judaism came to be the central language of the American metaphysic—the unspoken background to a special American vision of nature, history, and the destiny of the human race.” Its effect on “the American understanding of law was vast,” as was its effect on the American “understanding of human sinfulness.” The Jews were even responsible for the success of the American Revolution. Without this Hebraic metaphysical background, concludes Novak, “the founding generation would have had little heart for the War of Independence.”

Since Novak’s founding has no place for any other religions besides Judaism and Christianity, he effectively cuts out of his American vision all Muslims and the followers of other non-Judeo-Christian religions—something that one would think was no longer possible in our diverse society. Indeed, so convinced is Novak that the Founders “believed mightily that of all philosophies and religions, the Jewish and Christian religion is the best foundation for republican institutions” that he can’t allow for any other influences. For Novak even the inscriptions on the Great Seal—“Annuit Coeptis” and “Novus Ordo Seclorum”—which were in fact taken from Virgil’s Georgics, somehow have to be the consequence of the Judeo-Christian tradition.

Novak’s earnestness and sincerity at least command one’s respect, and one is moved by his often desperate efforts to reconcile America with his own religious faith. As a Catholic, he has often heard that Protestant America is unsuited for Catholics. But he wants us to know that “virtually every Catholic writer or thinker who has visited America since 1607 has been excited by the country’s extraordinary consonance with Catholic faith.” One sympathizes too with his concerns for the future of a secularized America, especially when the ACLU has recently gone so far as to deem the phrase “God Bless America” posted on a school marquee as unconstitutional. But his foreboding seems exaggerated, especially since America remains the most religious of the advanced democracies even with, or perhaps because of, its constitutional separation of Church and State. We don’t live in the eighteenth century anymore, and we may need a wall of separation between the state and religion in ways the eighteenth century did not. Thus the Madison who wanted to keep religion free from the state may be more relevant than ever.

3.

Garry Wills has no doubt about Madison’s significance for the separation of Church and State. “Madison’s views on religious freedom,” he says, “are the inspiration for all that was best in his later political thought.” Madison was one of the first of the Revolutionaries to move beyond advocating mere religious toleration to a belief in true religious freedom—a distinction that Novak does not always seem to appreciate. In Madison’s opinion the state had no more right to tolerate the free exercise of conscience than it did to limit that exercise. Indeed, Wills concludes, “as a champion of religious liberty, [Madison] is equal, perhaps superior, to Jefferson.” Not only that. “As a framer and defender of the Constitution,” writes Wills, “he had no peer.”

But Wills in this book is not interested in praising Madison for his religious and constitutional views. Instead, he has chosen to write about the bleakest part of Madison’s career—his presidency. As president Madison had few of the successes he had as the champion of religious liberty or as father of the Constitution and the Bill of Rights. Indeed, says Wills, his presidency is now “semi-forgotten.” Madison may have been one of the nation’s greatest Founders, but in the opinion of most historians and biographers he was not one of its greatest presidents. In fact, as president during the War of 1812, he is best known as the bumbler who allowed the capital to be invaded and the White House burned. Why this discrepancy? This is the basic question about Madison’s presidency that Wills sets for himself: “Why did it fall below the level of excellence reached in other areas of his life?”

Wills’s book is the first volume to appear in the new American Presidents Series edited by Arthur M. Schlesinger Jr. Wills is amazing. He works fast and has the most remarkable range of any writer I know of working in America today. He moves easily and skillfully between such disparate subjects as Lincoln at Gettysburg, Reagan’s America, John Wayne, Venice, and Saint Augustine. He has the admirable ability to read rapidly through masses of material, as he did in preparing this book, and to extract crucial facts from this material and then give those facts his own provocative spin. He brings to whatever subject he tackles the most extraordinary imagination. Whether right or wrong, and more often than not he is right, he always has something interesting to say about a variety of subjects that others have spent a lifetime studying.

Wills certainly has something interesting to say about Madison’s presidency. He does not think that his presidency can be sharply separated from his earlier achievements; indeed, he believes that Madison remained the same person throughout his life. He concedes that by temperament and talent Madison was better equipped to be a legislator and a committee-man than an executive. But he believes that Madison’s legislative temperament cannot fully account for the discrepancy between his earlier successes as a Founder and his problems as wartime president. He thinks Madison behaved in a similar fashion in both the earlier and later periods of his career, and he did so because of two qualities in his makeup that historians and biographers have tended to neglect: “These weak points were a certain provincialism with regard to the rest of the world and a certain naiveté with regard to the rest of his fellow human beings.” Madison never went abroad and did not know his enemy England in any direct way. Consequently, he never understood that his scheme of withholding American commerce in order to bring Britain to its knees would never work.

Madison’s naiveté came from his “bookish remove from others.” He was not adept at social relations, says Wills, not even trying to woo a woman until he was thirty-one and then choosing, only to be rejected, the fifteen-year-old daughter of a man who admired him. He did not approach another woman until he was forty-three, when he finally married the merry widow Dolley Paine Todd, who was seventeen years his junior. “He thought remoteness an advantage,” Wills writes, “as in his theory of representation in an extended republic.” Indeed, as suggested by his need for political collaborators—with Hamilton, Washington, and later Jefferson—Madison tended “to treat life as at one remove.”

He was impractical and unworldly, like a dreamy college professor more impressed with the intellectual elegance of his schemes than with their workability. When he was a member of the Confederation Congress he wanted to enforce congressional edicts by giving the United States the coercive power to wage war upon the separate states. He thought this could be done easily by interdicting the trade of the seacoast states, which in turn would bring pressure to bear on the inland states. In the Constitutional Convention of 1787 he clung long and hard to his scheme of granting to the national government the power to veto all state laws that it thought contravened the Union. Indeed, he believed that his negative power over state legislation was “absolutely necessary” to his system, and when his fellow delegates threw his veto power out as impractical, he concluded that the Constitution was doomed to failure.

In the 1790s he fixed upon his idea of commercial discrimination as the best way to deal with the arrogant behavior of Britain on the high seas. But when the Washington administration signed Jay’s treaty with Britain in 1795, he lost that weapon. Only after Jefferson was president and Jay’s treaty lapsed in 1805 was Madison able to bring his fixation with commerce as a weapon of peaceful coercion into play once again. As secretary of state he foisted on President Jefferson an embargo of all American trade abroad, and clung to it with mounting desperation. Even when told that “the embargo could not be continued without unparalleled state repression, Madison supported it with unflagging confidence.” When he became president, Madison continued to believe that England was vulnerable to trade pressure, and when that pressure failed, he found himself forced into war with the most powerful sea-going nation in the world. In the end Madison’s shortcomings as president were not simply the consequence of circumstances; they flowed from basic flaws in his character and outlook. He was someone who, once he was sure a plan was right in his own mind, became unable to recognize its impracticability.

With the failure of the embargo the obvious next step, says Wills, was for Madison to prepare for war. But Madison was opposed to the very idea of war. Consequently, he and his fellow Republicans did very little to get ready for it. The Republicans in Congress talked about war, but at the same time proposed eliminating the army. They cut back the War Department and defeated efforts to build up the navy. They abolished the Bank of the United States on the eve of hostilities, and in March 1812 they very reluctantly agreed to raise taxes, which were to go into effect, however, only if an actual war broke out. Right up to the moment war was declared, says Wills, Madison clung to “the naive belief” that England would give up impressing British sailors who had escaped to the American navy rather than lose the benefits of American trade.

All in all, Wills, like most other historians, presents a very dismal picture of Madison’s presidency. At several points he even compares Madison’s behavior with that of President Nixon. Madison’s plan to liberate Canada from the British (“a mere matter of marching,” predicted Jefferson) ended in disaster. After some initial successes the few American frigates that the Federalists had built in the 1790s were bottled up in American ports. New England was in near revolt and refusing to aid the war effort. Members of the cabinet were confused and at loggerheads with one another. All Madison could do, says Wills, was return, “like an addict…to his favorite drug”—the withholding of American trade. At the end of 1813 he called for another embargo, the third he had proposed in the past two years. The final treaty of peace signed in 1814, Wills points out, did not achieve a single one of Madison’s announced goals for going to war.

What explains Madison’s strange policies and behavior? Was it, as Wills argues, simply a matter of his character and personal outlook, of his provincialism and naiveté? Wills seems to suggest that Madison and Jefferson’s opposition to Hamilton in the 1790s was largely personal. They were obsessed with Hamilton, and Hamilton was not similarly obsessed with them. Jefferson was “the unworldly” and Madison was “the provincial,” and they were caught up in their “romantic agrarianism.” At one point Wills says that “Madison, like Jefferson, had an ideological block about war of any kind.” But Wills never fully explains the significance and context of this “ideological block.” Madison and Jefferson and many of the other Republicans may have been naive, but they were not provincial and they were not unworldly. They thought they were offering the world a new and grand experiment in international politics. They believed that the American Revolution opened up the possibility of a different kind of world from what hitherto had been experienced, a new republican world free of warmongering monarchies. Like other eighteenth-century enlightened liberals Madison and Jefferson were taken with the possibility of eliminating war and creating a universal peace. If only the states of the world could became republics and end the dynastic rivalries and monarchical militarism of the several previous centuries, then peace might come at last to the Atlantic community. In a republicanized world the war-making ambitions of kings would be eliminated and states would be tied together only by commerce.

This was Madison and Jefferson’s enlightened dream, and it explains their opposition to Hamilton’s state-building in the 1790s and their Republican policies of commercial discrimination in the early nineteenth century. Their various nonimportation acts and the embargo were designed to show the world the possibility of peaceful alternatives to war. (These were the predecessors of our modern reliance on economic sanctions in place of soldiers.) They feared Hamilton’s program because they thought, correctly, that the secretary of the treasury was trying to turn the United States into the same kind of modern fiscal-military state that England and France had become. They believed that the modern monarchies of Europe had become the dreaded tyrannical states they were—with their burdensome taxes, overblown bureaucracies, heavy debts, standing armies, and enhanced executive powers—because of their desires and need to wage war.

For at least three hundred years Europe had been wracked by wars that were the products of dynastic ambitions and monarchical state-building. Madison and Jefferson, like other liberals, dreamed of ending this process and creating a different kind of peaceful world. They ultimately failed, and instead we have Hamilton’s modern fiscal-military state with a huge Pentagon, a standing army of over a million men and women, a CIA, and all the accoutrements of executive power that they feared.

Wills senses some of this when he concludes that Madison and the Republicans were “forced unconsciously” to accept “modernity” as a consequence of the War of 1812. As he points out, five military veterans of the war would eventually become president. We have often preferred our presidents to have been military leaders. But maybe the presidency of the very unmilitary Jemmy Madison has something to teach us after all.