blacks to Africa—are a reminder that he was all too fallible.)25 In his preoccupation with human fallibility and his belief that a well-designed political system rescues collective deliberation from the worst effects of interest and passion, we see a hint that our understanding of justice can improve over time. Madison suggests that constitutional democracy is conducive to moral progress. I find his political philosophy hard to reconcile with theories of constitutional interpretation that wed us to understandings of moral and political concepts prevalent at the time of ratification.26 As Justice Kennedy writes of those who drafted the Due Process Clause in the Fifth and Fourteenth Amendments, they did not presume to know “the components of liberty in its manifold possibilities,” for “They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”27
The sources of human fallibility are complex. Our political judgment is warped by self-interest, ambition, pride, opinion, religious zeal, and personal loyalties.28 These give rise to factional allegiances so intense that we often prefer to harm our adversaries rather than seek mutual advantage (Fed. 10, p. 124). It is not enough to be motivated by justice. We may be taken in by the noble rhetoric of cynical leaders.29 More important, our opinions about justice are distorted by self-interest and pride: “As long as the connection subsists between [man’s] reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves” (pp. 123–24). In addition, the intrinsic difficulty of political questions (emphasized in Fed. 37) renders inevitable the emergence of deep-seated disagreement, which self-interest and pride easily fan into mutual animosity and distrust.30
Avowed self-interest is not the main issue. Rather, self-interest is one of several motives that distort our judgment. The antisocial motives are often disguised as demands for justice. This is a problem—the antisocial motives are harder to unmask—but also an opportunity—we find ourselves arguing about justice, and thus potentially in a position to be influenced by reason.
We should strive ever harder to comply with justice. We are not angels, however, and humility requires acknowledgment of our imperfection. Virtue is proven by our acceptance of checks that raise the standard of our deliberations.
Why does Madison say that “ambition must be made to counteract ambition” and that “the private interest of every individual may be a sentinel over the public rights”? (Fed. 51, pp. 319, 320). I propose the following account. Under a well-designed constitution, officials chosen for their virtue and wisdom are pledged to uphold the constitution, defend justice, and seek the common good. Seeking a reputation for public probity and effectiveness, they have reasons of pride and political ambition as well as duty to honor their commitment. Scrutiny by an informed electorate and by the independent branches raises the level of performance needed to maintain a favorable reputation. It is to be expected, moreover, that officials will form some identification with their own department. Conscious of its contributions to the public order, and eager to demonstrate their personal abilities, they will have self-interested as well as principled reasons to resist improper encroachment on their constitutional responsibilities. Ambition thus sharpens their perception of their rivals’ misdeeds. But any claims made against the other branches must be presented on impersonal legal and moral grounds. Conscientious officials will internalize this requirement, impartially evaluating the counterclaims of the rival branches, and asking themselves whether their own arguments are truly sound. Ambition and interest contain a moral element: we can take pride in satisfying high moral standards, while interest makes us sensitive to injustices that others inflict on us. Madisonian checks and balances harness the moral side of interest and ambition as one strategy among others to heighten our sense of moral responsibility. Madison’s view is the opposite of the adversarialist position with which it is often confused.
Constitutional theory has become a haven for two fallacies—the adversarialist conceit that a well-designed system reliably directs self-interest to the public good, and the related institutionalist conceit that a well-designed system will yield good results without the determined efforts of the parties. Madison emphatically rejects both: “To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.” If the people be not virtuous, “No theoretical checks—no form of government can render us secure.”31 The Constitution is not a “machine that would go of itself.”32 It is not a machine at all. It is a mutual commitment to seek justice and the common good, in which we not only pledge our own efforts to that end but hold one another accountable for doing the same. Recognizing our imperfection, we employ one another to correct our errors, but external oversight does not relieve us of the burden of striving to act and judge as justice requires. When Senator Arlen Specter voted for the 2006 Military Commissions Act despite his belief that its denial of habeas corpus to military detainees “was patently unconstitutional on its face,” stating as his excuse that the Supreme Court “will clean it up,” he was led by a false constitutional morality to violate his constitutional oath of office.33 Waiting for the Supreme Court to clean up our mess was never Madison’s idea of checks and balances.
Madisonian Democracy
Democratic theorists often locate the value of popular government in the empowerment of the people’s will. To let the people decide public policy is to realize the good of self-government or public autonomy. Madison takes a different approach. On his view, popular government is an indispensable means to justice. Because it is not sufficient, however, “auxiliary precautions” are needed. He supports a combination of popular government and other institutions that are collectively needed to secure justice. Constitutional democracy is the term we now use for this arrangement. (Of course, there are also non-Madisonian arguments for constitutional democracy.)
We can agree with Madison that the purpose of popular government is to secure justice without binding ourselves to his own conception of justice. For example, we can insist more clearly than Madison that justice requires equal universal adult suffrage. (The mature Madison moved toward endorsement of universal adult (white) male suffrage, but continued to show some sympathy for the argument that only property holders should be allowed to vote for the upper house.)34 To deny some adults an equal vote is an affront to justice, because it denies their status as equal members of the community, entitled to an equal voice. Principled support for equal universal suffrage can be fitted into a “Madisonian” conception of democracy. It is different from saying that the purpose of popular government is the realization of the people’s will, because (1) equal universal suffrage forms only one element of the larger end of justice, and (2) the purpose of political power, in whosever hands it is placed, is to secure justice.
Why not say that the purpose of popular government is public autonomy or the realization of the people’s will, regarded as an end in itself? I believe that references to public autonomy or the people’s will obscure the central fact that popular government, like all forms of government, is a system of rule. Popular government is not continuous with individual autonomy, because some people are obligated to obey rules they do not in fact agree with. The stakes are high, every decision produces winners and losers, and the potential to harm others unjustly is always present. It is hard to believe that choice is a value when the choice being exercised affects the vital interests or decides the fate of other people. What is valuable is the avoidance, by means of the correct choice, of injustice or misfortune.
If we are honest, popular government always entails rule over others.35 The use of the term “self-government” as a synonym for popular government is enormously misleading.36 Because decisions must be made, minorities must defer to majorities. There is not enough role-switching to lend this practice the semblance of self-government even over the long term. Decisions are continually made regarding specific groups of people—farmers, factory workers, teachers, welfare recipients, homeless people, drug addicts, and so on—by people who do not belong and do not expect to belong to the affected
