Federalist Project 13

“The Mirror of Representation” and Federalist 62 – 64

In this crucial chapter of Original Meanings, Rakove looks at the complex relationship between American self-perception as an independent republican state, a fresh experiment in democratic government, and its ancestral respect for English models, Parliament in particular. “Yet even after independence,” he notes, “Americans still regarded Parliament as a paradigmatic model of a representative assembly” (209). This observation reminds us that the revolutionary spirit engendered among the Founders did not preclude an educated and relatively detached appreciation for the lessons of history and the laboratory of European society from which the American hypothesis was launched. Too often today, the pieties of “American exceptionalism,” however unfounded and fantastical, dominate political discourse and, in one way or another, require policymakers to “reinvent the wheel” in the fields of health care, energy, immigration, and education. Looking to other countries and societies for answers – especially those of Europe, God forbid – is seen as anti-American and cast as downright blasphemy in some circles. This is gross hubris of the most unintelligent form, of course. It’s refreshing to learn that it wasn’t always thus among policymakers.

    Specifically, early American political thinkers looked to Parliament as a prototype mechanism for providing a healthy check on executive power: “In the traditional Whiggish theory to which the American revolutionaries subscribed, the great purpose of representation was to prevent the Crown and its subordinates from acting arbitrarily, without securing the consent of the people’s representatives” (209). The Constitution’s aim, therefore, was largely to get Congress functioning in the same way with respect to the Presidency, with the third branch, the judiciary putting both of the latter under constant legal scrutiny. To some extent, our system still functions in this regard, despite the gradual and seemingly inexorable creep of what some observers call “the imperial presidency” and a staggering growth in executive power in the post-World War II period through the present. The Founders’ admiration for Parliament was not unqualified, however: “Perhaps the [House of] Commons could still respond to ‘the feelings of the nation,’ but in its unreformed state, it was more likely to pursue the interests of the propertied elite” (209).

    Here, our contemporary system differs dramatically, the Senate functioning more like the “unreformed” House of Commons of 18th-century England. Because the Constitution was set up to give state legislatures elective power in populating the Senate, Madison and Hamilton placed more faith in the quality and accountability of the upper house. Today, we find the opposite scenario has obtained. The House of Representatives is commonly thought to be more responsive and accountable to public sentiment (and thus, more volatile), if only because its members are nearly constantly campaigning for reelection; the Senate, on the other hand, with its formidable six-year terms, is more entrenched in the vested interests of powerful (and long-lasting) elites.

    Madison expressed his confidence in Federalist 63 that “the Federal Senate will never be able to transform itself, by gradual usurpations, into an independent and aristocratic body” (389). Because a Senator’s professional fate was tied to his ability to maintain a salutary reporting relationship with the home state legislature, the Founders saw little risk in collusion with propertied interests, industry concerns, or moneyed elites that may attempt to purchase that Senator’s affection (as they are readily able to do today, thanks to the 17th amendment, adopted in 1813, which guarantees direct election by voters). Even as they looked to the English Parliament, the Founders were also contemplating the superior example they saw in the colonial assemblies, which “possessed a measure of both independence and accountability that sharply departed from English practice” (212).

    That our deliberative bodies still strive (however imperfectly) to fulfill the noble precedent set by their colonial counterparts gives a flavor of the troubling contradictions inherent in American political thought. It’s very difficult in the highly partisan environment of contemporary politics to maintain both independence and accountability, in the sense that independence is often held to account by way of removal from office as long as powerful forces can array to punish the trait. A truly honest lawmaker such as former Senator Russ Feingold of Wisconsin losing reelection to a rich nobody called Ron Johnson is a perfect example of this expectation run amok.

    In Federalist 62, Madison makes an interesting comment on the desired length and readability of laws: “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow” (381). Even brief examination of early legislation reveals that Madison’s hope was well founded. Laws were succinct and expressed in a very concrete, direct idiom. What he would have to say of the giant laws of recent memory – not just the Patient Protection and Affordable Care Act or the Dodd-Frank financial reform law (both at 800-plus pages), but also the 1000-page USA Patriot Act that in 2001 was rushed through floor debate and brought to a vote before members had a chance to read it – we can only imagine, but I doubt that he’d be favorably impressed.

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