or of interest, adverse to the rights of other citizens or to the permanent and aggregate interests of the community” (Fed. 10, p. 123). Republican government solves the problem of minority faction but not that of majority faction. Madison’s famous solution to the latter involves the geographic redistribution of decision-making authority. His epiphany is that majority faction is disarmed in large republics, because factional interests and passions are less likely to command a majority, and, if they do, coordinated action is more difficult (p. 127). Where force of numbers no longer avails, rational persuasion must be tried instead. “In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good” (Fed.51, p. 322). In a large and heterogeneous republic, there are enough parties with critical distance from sectional disputes to constitute an impartial judge. Let us call this the sociological argument.
Madison’s pessimism about small republics can be severe. Rhode Island is doomed to majority tyranny or dictatorial usurpation unless it joins a federation (Fed. 51, p. 322). It must choose between complete independence (strong sovereignty) and republican government; it cannot have both. Without the federal union, we lack a “disinterested and dispassionate umpire in disputes between different passions and interests in the state.”43 Not only does the extended republic create the possibility of an impartial judge, but the Constitution, recognizing the fragility of republican institutions at the state level, provides formal guarantees. Under Article IV, “the United States shall guarantee to every State in this Union a Republican form of Government,” while under Article I, Section 10, no state shall “pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” Although these rights are promised in most state constitutions, “Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted” (Fed. 44, pp. 287–88). Chief Justice John Marshall called Article I, Section 10 “a bill of rights for the people of each state.”44 The Constitution is, among other things, an early human rights treaty.
The importance of the sociological argument cannot be overstated. Critics of Madison’s checks and balances model have faulted him for not anticipating the rapid emergence of party politics—which, ironically, he took a lead in creating not long after The Federalist appeared. But I think Madison in The Federalist is aware of the danger. His very awareness that no system of checks and balances is foolproof causes him to make his last stand with the sociological argument. On it depends the success of his project. Hence his fear that constitutional checks and balances are insufficient to prevent majority tyranny in the unfederated states; his belief that territorial enlargement is the main reason why faction becomes less dangerous in republican than in democratic government;45 and his decision to conclude Federalist 51, the locus classicus of his institutional checks and balances argument, with a recapitulation of Federalist 10.
The sociology of Federalist 10 must be updated, however. Let us admire The Federalist without pretending that time stopped in 1788. Madison himself predicts the growing homogenization of the United States: “increased intercourse among [citizens] of different States … will contribute to a general assimilation of their manners and laws” (Fed. 53, p. 329). This admission, damaging to the argument that the diversity of an enlarged republic will allow rational discourse to replace factional dominance, should have set alarm bells ringing in his head. Of course, the succeeding centuries have effected deeper transformations than he could ever imagine. Today, mass parties, instant communications, modern broadcast technology, and the concentration of enormous economic and media power in a few hands allow political mobilization to quickly outrun rational discourse, and they make it all too easy for majority and minority factions to seize control of the policy process. In addition, the national security state has concentrated vast unchecked powers in the executive branch. In such an environment, individual rights, justice, and the common good are easily overwhelmed.
The conditions that in Madison’s time threatened justice in direct democracies and small republics are today reproduced and exacerbated at the national level. To ignore this problem is to risk the fate of Rhode Island. Federalist 10 teaches us to seek help from the outside. In our own time, Madisonian constitutionalism calls for international oversight of national policy—in other words, the creation of a strong international human rights regime. Under such a regime, national policy is monitored by those with both the institutional and psychological independence, the means and the motive, to act as an impartial judge. International monitoring not only offers an additional check against injustice, but provides needed reinforcement for domestic checks and balances.46 Of course, the monitors must be guided by a genuine commitment to human rights, and the regime must incorporate mechanisms of mutual accountability to prevent corruption and political manipulation.
I argue in the next chapter that the transnational human rights regime developed in Europe over the last seventy years offers a model of how such a regime might be constructed. The United States can learn from Europe’s example. I do not wish to be misunderstood: there are obvious differences between an international human rights regime and the kind of compound republic that Madison aimed to achieve by means of a closer union of the original American states. An international human rights regime (of the kind found in Europe) is unlike a national government, because it lacks its own legislature and military or police apparatus, and because its mandate extends only to human rights rather than the much wider set of purposes entrusted to national governments (though as in Europe it may be enmeshed in regional organizations exercising broader governance responsibilities). However, it provides the advisory, admonitory, deliberative, and adjudicative functions that Madison argued in Federalist 10 and 51 were necessary for the promotion of justice. It rests on Madisonian principles of wise constitutional design.
Because of his commitment to justice, Madison is pledged to the rights of outsiders. This is the third source of his cosmopolitanism. The third, fourth, and eleventh Vices of the Political System of the United States are, respectively, “Violations of the law of nations and of treaties,” “Trespasses of the States on the rights of each other,” and “Injustice of the laws of the States.”47 The rights of minorities and outsiders are closely connected; both groups stand as outsiders to legislative majorities with the power to dispose of their fates. In discussing the “Injustice of the laws of the States,” Madison comments: “Is it to be imagined that an ordinary citizen or even an assembly-man of R. Island in estimating the policy of paper money, ever considered or cared in what light the measure would be viewed in France or Holland; or even in Massts or Connect.?”48 Madison wrote to George Washington on April 16, 1787, that in the absence of institutional reform “the States will continue to invade the national jurisdiction, to violate treaties and the law of nations & to harass each other with rival and spiteful measures dictated by mistaken views of interest.”49
The legal education of the time was steeped in the law of nations, and Federalists held it in highest regard. They were alarmed to see widespread violations of the law of nations by individual states under the Articles of Confederation, and viewed the prevention of such violations as one of the chief purposes of the Constitution.50 When presenting the Virginia Plan to the Constitutional Convention, Edmund Randolph listed among the defects of the Articles “that they could not cause infractions of treaties or of the law of nations, to be punished.”51 Madison’s first question in response to the New Jersey Plan was:
Will it prevent those violations of the law of nations & of Treaties which if not prevented must involve us in the calamities of foreign wars? The tendency of the States to these violations has been manifested in sundry instances. The files of Congs. contain complaints already, from almost every nation with which treaties have been formed. Hitherto indulgence has been shewn to us. This cannot be the permanent disposition of foreign nations. A rupture with other powers is among the greatest of national calamities. It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them on the
