Bench Memos

The Perennial Publius, part 63

The Senate’s small numbers and long terms will make it, Madison says in Federalist No. 63, the “select and stable member of the government.”  And a large part of democracy’s problem of instability–and of injustice itself–lies in the people themselves:

[S]uch an institution may be sometimes necessary, as a defence to the people against their own temporary errors and delusions.  As the cool and deliberate sense of the community ought in all governments, and actually will in all free governments ultimately prevail over the views of its rulers; so there are particular moments in public affairs, when the people stimulated by some irregular passion, or some illicit advantage, or misled by the artful representations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.  In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice and truth, can regain their authority over the public mind?

It is a fair question whether the Senate still performs this function as it was designed to do.  Senators are now popularly elected, and in many respects Senate elections are more competitive than House elections, where careerist incumbents win reelection at astonishing rates–making the House look like the more “stable” chamber in some respects.  And the Senate’s claim to be the “world’s greatest deliberative body,” as its members and admirers like to call it, is pretty thin in an age when staffers do increasing amounts of the legislative work, and when the action on the floor looks like a simulacrum of debate rather than the real thing.  Byrd’s retort to McConnell isn’t exactly Webster’s reply to Hayne.

Still, the two houses of Congress differ so markedly in their character that they serve one of the functions of bicameralism noted by Publius–the division of lawmaking between two institutions that are structured differently, respond to different impulses and incentives, and have developed different habits and customs.  They filter public opinion differently–but one important thing is that they do filter it.  After a review of ancient republics showing the benefits of stabilizing assemblies such as he hopes the Senate will be, Madison makes this very interesting remark:

[T]he principle of representation was neither unknown to the antients, nor wholly overlooked in their political consitutions.  The true distinction between these and the American governments lies in the total exclusion of the people in their collective capacity from any share in the latter, and not in the total exclusion of the representatives of the people, from the adminstration of the former. (Madison’s italics)

Yes, that’s a confusing sentence.  Madison’s point is that in the ancient republics, representative assemblies were used, but as supplements to the primary means of legislating, which was the assembly of all the citizens in a direct democracy.  The Americans, says Madison, have wisely eliminated that imprudent way of governing, totally excluding “the people in their collective capacity” from any regular governing function other than the election of those who will actually make laws and policies.

No direct democracy for Madison, in other words.  This wisdom of his would be rejected by the “reformers” of the early twentieth century, who invented the folly known as the referendum.

(For explanation of this recurring feature, see here.)

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