My Bench Memos colleague Ed Whelan has just replied to Evan Bernick’s latest NRO article defending judicial activism, which is itself a response to Ed’s previous criticism of an earlier article by Bernick (and of a recent speech by Rand Paul). I want to home in on Bernick’s quotation of something James Madison says in Federalist No. 10, which he has taken so far out of context that he has stood Madison on his head and entirely reversed the point he was actually making.
Bernick writes:
As James Madison noted in Federalist 10, “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” When judges do not judge (or, rather, when they merely go through the motions of judicial review while depriving it of any substance, as they routinely do in rational-basis cases), the political branches are left to be judges in their own cause, and unconstitutionality follows.
One might think, from this gloss on the Federalist, that Madison was arguing in No. 10 that because legislators can’t be trusted, we need (or the Constitution contemplates) judges to check their excesses, on grounds that otherwise the legislators will be “judges in their own cause.” Nothing could be further from Madison’s meaning, though Bernick is not alone in misreading him in this way.
Let’s place this famous sentence back in its proper context. The question examined in Federalist No. 10 is what to do about factions, or more generally about the problem of self-interest in democratic politics, particularly as it manifests itself in self-interested majorities tempted to do injustice to minorities. After reviewing the causes of factions, and the difficulty of attacking the problem at the level of its causes, Madison writes, in the essay’s eighth paragraph:
No man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men, are unfit to be both judges and parties, at the same time; yet, what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but 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? 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. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes; and probably by neither, with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property, 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 over-burden the inferior number, is a shilling saved to their own pockets.
The first sentence, which Bernick quoted, describes a familiar legal principle: judges can’t sit in cases where their personal interests are at stake. But one can always find another judge when one has to recuse himself on this ground. The second sentence begins an extended description of an analogous but not identical problem in electoral and legislative politics that isn’t so easily solved. Legislators are almost by definition the mouthpieces for interest groups, whether we like it or not. They cannot, indeed must not, recuse themselves from their duty to represent the interests of their constituents, with whom their own interests are naturally aligned, perhaps in the strict sense (of, e.g., the merchant representing mercantile interests), and certainly in the electoral sense of seeking the future support of one’s local voters.
There is no mention in Federalist No. 10 of the judiciary as a “solution” to this “problem” of self-interested legislative behavior. Indeed, it is not quite right even to call it a “problem” to be “solved” so much as a natural phenomenon to be managed in some way. But what way? Here is the sequel, Madison’s ninth paragraph in the essay:
It is in vain to say, that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm: Nor, in many cases, can such an adjustment be made at all, without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another, or the good of the whole.
Never mind enlightened judges—even “enlightened statesmen,” who are rare creatures, are not going to be available, or even able, to cope with the problem of faction in a way that will achieve the “adjustment” of these “clashing interests” so that the “justice” that “ought to hold the balance” will actually do so.
This marks a turning point in the essay. The problem of self-interest in democratic politics—in both elections and the legislative process—is a permanent one. Sometimes justice will prevail. Sometimes minorities will get the shaft. But, however permanent, is the problem intractable? Isn’t there something to be done to maximize the probability of justice prevailing over injustice? You bet there is, and it’s the subject of the remainder of the essay, beginning with the tenth paragraph:
The inference to which we are brought, is, that the causes of faction cannot be removed; and that relief is only to be sought in the means of controlling its effects.
Thus begins the building of that remarkable new political science of the large republic, with its many and varied factions, its reduction of the chances any one of them will be a majority, its reconceived notion of representation as a “refinement” rather than an unmediated transmission of public opinion, and its politics of compromise and coalition-building.
The entire edifice of this new republicanism is built on the recognition that the world of politics and legislation cannot be governed by the principle on which we insist in courts of law, that judges remove themselves from cases where their own interest is at stake or their bias will come into play. That’s an appropriate principle for adjudication, but bias and self-interest are the bone and sinew of the electoral and legislative arenas. We do well to recognize their kinship with the biased judge by way of analogy, so that we see matters clearly. But it is equally important to see that self-interest is a gritty political problem, and requires a gritty political solution. That, and not some immaculate cure in the form of wise judges second-guessing public policy choices, is what James Madison is really talking about in Federalist No. 10.