propose that such thinking leads us astray, and that Madison shows us why. The political theory presented in his Federalist essays furnishes an argument for the integration of constitutional democracies, not least the United States, into a transnational human rights regime. He leads us toward the theory of cosmopolitan republicanism, by which I mean the view that individual freedom depends on a particular configuration of domestic and international institutions working in tandem.3 Aside from passing suggestions, Madison does not make this view explicit, understandably so, given that neither international institutions nor other large-scale republics existed in his time. But his writings lend theoretical support to the view.
I develop this argument in the course of an examination of Madison’s constitutional philosophy. Along the way, I hope to correct what I regard as certain common misconceptions about Madison’s own political thought and, with Madison’s help, to challenge widespread, but I think mistaken, ways of understanding democracy. Specifically, I shall argue that Madison is a democratic thinker; that he wisely provides democracy with a nonvoluntarist justification, valuing popular government not as an end in itself but as an indispensable means to the end of justice; that he properly warns us against an adversarialist, self-interest-based model of political action; and that he sensibly grounds checks and balances on a logic of concurrent responsibility, in which different institutional actors ensure one another’s compliance with the dictates of justice.
I argue that Madison leads us toward a worthier conception of democracy, thus placing its legitimacy on firmer ground.4 One of my purposes is to show that there is no conflict between democracy on the one hand and constitutional bills of rights or international human rights law on the other. Madison’s nonvoluntarist conception of democracy helps us make this argument. However, not everyone may be persuaded to adopt a nonvoluntarist conception of democracy. In Chapter 6 I shall argue for the democratic legitimacy of international human rights law (and of constitutionally entrenched rights) without assuming a nonvoluntarist conception of democracy.
Madison as a Democrat
Madison is remembered as a theorist of checks and balances, divided powers, federalism, and representative government. He is less often remembered as a friend of democracy. Bernard Manin writes that “for Madison, representative government was not one kind of democracy; it was an essentially different and furthermore preferable form of government.”5 With notable exceptions,6 this is the prevailing view.
I want to consider a different possibility—that Madison, instead of rejecting democracy, invites us to redefine it. Perhaps we are mistaken about democracy and Madison can set us straight. Madison is committed to popular government, but not on the voluntarist grounds that have come to dominate democratic theory. Preventing the misuse and abuse of power is his aim. “Checks and balances” are the central device—understood not as an “invisible hand” mechanism that renders personal virtue unnecessary to the common good, but as a means of harnessing moral impulses that are distributed among the citizenry at large. They are the core of a civic ethic that extends beyond interbranch relations and federalist arrangements to the construction of civil society, popular political participation and debate, and the act of voting.
Inspired by Madison, we can think of democracy as a system designed to ensure the responsible exercise of power by means of checks and balances, in which popular participation through voting is the most important but not the sole check. In democracy rightly understood, citizens reinforce and enhance one another’s efforts to comply with justice and seek the common good. Realization of the people’s will is not the purpose of democracy. (By the common good, I have in mind outcomes that are beneficial and morally desirable, though not required by justice—for example, a policy that takes a good educational system and makes it even better. Justice takes precedence over but does not exhaust the common good. Both are proper ends of democracy. I shall sometimes use the term “justice” as shorthand for both.)
Like Locke and Rousseau, Madison does not call himself a democrat.7 But he earns the title of democrat as that term is now ordinarily used, because he declares himself a friend of popular government and takes it for granted that “the people are the only legitimate fountain of power” (Fed. 49, p. 313). Though he favors republics over democracies (the latter being impossible in any territory larger than a city-state), he defines both as a species of popular government: “in a democracy the people meet and exercise the government in person; in a republic they assemble and administer it by their representatives and agents” (Fed. 14, p. 141). America’s glorious gift to posterity and the world (p. 144) was the discovery that by means of representation governments of large territories (for example, both the individual American states and the contemplated union) could remain “wholly popular” in character (p. 141). Europe originated the principle of representation, but “America can claim the merit of making [it] the basis of unmixed and extensive republics” (p. 141).
Of course, Madison does not idealize the people. He worries about the propensity of popular government to mobilize faction, and he seeks institutional arrangements that will allow a virtuous few, chosen by the people, to carry out the main tasks of government. Yet to call him an elitist is misleading. Though he believes that some people possess more virtue than others, he does not regard virtue as the exclusive property of any class (Fed. 57, pp. 343–44). Public officials should be chosen by the people or their elected representatives, not assigned by heredity. He follows the republican tradition of placing all social classes under suspicion: the rich have their vices no less than the poor.8 If the emboldened state legislatures of the 1780s heightened his distrust of the people, his subsequent break with the Federalists and horror at the Alien and Sedition Acts reawakened his fear of arrogant elites. Even in The Federalist (written when the recent excesses of empowered majorities were freshest in his mind), there is a straightforward reason for his preoccupation with majority tyranny that has nothing to do with aristocratic leanings.9 The reason is that there is an obvious solution to minority tyranny, namely popular government and majority rule, whereas the solution to majority tyranny is harder to figure out (Fed. 10, p. 125).
Madison illuminates the value and purpose of popular government. Contemporary readers are sometimes bothered by the rude things he says about the people. How can someone with such a dim view of the people believe in their right to govern? But that is precisely the point. Madison does not trust the people, because he does not trust anyone. Or more precisely, he does not trust any collectivity defined by a shared interest or identity. His constant fear is that power will be misused or abused. Participation in government is not a prize to be distributed for our enjoyment, but a responsibility whose burden should be keenly felt. If widespread character flaws threaten the proper exercise of power, those flaws should be constantly kept in mind so that we can more adequately correct and counteract them. Self-distrust, like mutual distrust, is a necessary precondition of good government.
To ensure the responsible exercise of power, we must enlist one another’s help in exposing and correcting our errors. Since partiality hinders perception of our own faults, we need others to help point them out. Mutual criticism protects society, not only by exposing error to public view, but also by encouraging virtue, since to avoid the shame of external criticism and correction, we become more self-critical. Madison embraces what I call the principle of concurrent responsibility, according to which each actor must ensure that all actors (oneself and the rest) exercise their power responsibly. Concurrent responsibility is another name for checks and balances and forms the heart of “Madisonian democracy,” by which I mean the engagement to hold one another accountable in a shared project of crafting and enacting policies that promote justice and the common good.
The reason why concurrent responsibility, or checks and balances, implies democracy is that popular control is the most important of all checks. “A dependence on the people is, no doubt, the primary control on government” (Fed. 51, p. 320). Madison does not pause to defend the claim—perhaps
