Having had my fun at the European Union’s expense, perhaps it’s time to move past Lufthansa jokes (although I do have a few more) and pay more serious attention to the EU and its federalism. There’s little room for American gloating or Schadenfreude: the ongoing EU disaster is hanging over our economy; and besides, our own federalism isn’t in such terrific shape, either. Read on to learn more.
It may surprise students of the life and thought of James Madison to see him described as a game theorist. Madison worked for his entire life in the world of politics, which was never for him a game. But Jack N. Rakove, in A Politician Thinking: The Creative Mind of James Madison, succeeds in suggesting that Madison’s approach built upon the model of what we now recognize as a game-theoretic methodology. Rakove, the Pulitzer Prize-winning Stanford University professor, interprets this as taking the measure of political possibilities in relation to the possibilities inherent in political situations and not in terms of ideals.
One might be tempted to assume that the goal here is to oppose the conception of Madison the idealist to that of Madison the political opportunist, since the game-theoretic approach consists entirely in optimizing strategic advantage in a given set of possibilities—as opposed to creative, architectural intervention in order to restructure those possibilities. But Rakove captures both elements of the “thinking politician”; that is, he does not reject the Madison who declared that “justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”
That all-or-nothing gambit certainly defies game-theoretic posturing. Rakove, though, makes the linchpin of his argument for Madison-the-game-theorist the famous series of essays in The Federalist Papers that eventuate in the dramatic affirmation quoted above. Accordingly, he believes there is a way to mediate between idealism and opportunism that faithfully captures the true Madison, and along the way serves the heuristic purpose of redefining the question of whether Madison was consistent throughout his political career.
This intriguing argument does not, in the end, work. Let me here highlight only two of the several reasons why.
An Attempt to Build Scripture Without Revelation
To take the last first, Rakove does not forthrightly announce his intention to defend Madison against the charge of inconsistency until the nearly the end of the work. He accomplishes this in part by building upon Colleen A. Sheehan’s powerful account of Madison’s understanding of public opinion as something “to be constructed and then devoted to ‘guarantee with a holy zeal, these political scriptures from every attempt to add to or diminish from them’.”
Unfortunately, much as the late Pauline Maier sought in the context of the Declaration of Independence to build scripture without revelation, this attempt also fails to identify a coherent structure of belief that answers to the purpose. The reason for this, in the latter case, is Rakove’s identification of Madison’s focus with “the workings of institutions”—one is tempted to say, “working the institutions”—as the basis for arguing that Madison became thereby “the greatest lawgiver of modernity.”
The problem with this analysis is its attempt to derive the notions of the “lawgiver” and the “constitution-maker” from the empirical experience of the legislator. It does not derogate from Madison’s just claim to fame to observe that it would be difficult to identify his “law code” despite his meaningful contributions to the Virginia Statute of Religious Liberty, the Bill of Rights to the U. S. Constitution, the organization of the government under the Constitution, and other signal legislative accomplishments.
The lawgiver or the founder of a constitution characteristically does something more fundamental than achieve strategic advantage in a choice matrix. In a word, the lawgiver establishes the standard of choice for a society.
It may well be that no one in modernity has ever attained the real status of lawgiver. When Rakove acknowledges that Madison’s practical career of “lawgiving” ended by 1801, when nearly half of his political life still lay ahead of him (including the powerful years as Secretary of State and President), he effectively acknowledges the improbability of his account. Madison himself explains it when, on diverse occasions, he refers the Constitution’s authority to the “ratifiers” and not to the drafters. The most important of these observations occurs in the “informal and unauthorized propositions” spoken of in Federalist 40, which propositions do not largely bear the stamp of Madison’s direct authorship though they were strongly influenced by his energies. When we seek a lawgiver, we look for the source of structures and practices that shape a people’s character and not for a people that shape the character of their institutions.
The way this plays out in A Politician Thinking is that we reduce constitution-making to the working out of institutional relationships in the context of resolving differences in preferences in a manner compatible with overall social stability. That is a worthy objective for politics, and a sound constitution must enable such a process. Madison’s struggle (in company with Thomas Jefferson) to direct politics under the Constitution in line with his constitutional principles was an inflection point in U.S. political development, but it was not constitution-making. Hence, many of the most fundamental concerns were left not only unaddressed but essentially without resource to address them after his labors had ended.
Rakove provides the instance of slavery, though he mistakenly imagines that politics did not solve that problem. It is true that war became necessary, but it is not true that politics failed. Indeed, the more plausible argument is that there was a potentiality for politics to rid the nation of slavery beyond anything Madison conceived, and that alone requires that his claim to authorship of our political institutions be significantly qualified.
Thus does the defense of Madison’s consistency on the basis of his intelligent response to the empirical reality of political decision-making work only by diminishing the larger claims for his lawmaking influence!
I do not think it is necessary to defend Madison in this way. I think it suffices merely to observe that at every stage of his career, he sought to advance the case for republicanism (curing the ills of democracy but using democratic means to do it) with intelligent resort to prudent measures as far as he was able to judge of them. He brilliantly defended the freedom of conscience; he not so brilliantly defended the United States.
Overemphasis on Madison’s Proposed Negative on State Legislation
This problem of assessing Madison derives mainly from the problem of assessing the political tendencies of his ideas and endeavors. This appears at the beginning of A Politician Thinking, when Rakove attempts to establish the watermarks of Madison’s constitutional thinking. In this regard he highlights Madison’s dramatic failure to put into the constitutional framework a national negative on state laws. Rakove, rather than accept this failure for what it is, attempts to provide theoretical support for it by investing it with the special property of providing protection for minorities in the states. It is true, of course, that Madison included that as a dimension of the proposal, though it is yet truer that Madison primarily aimed it at prohibiting state interference with the operation of national laws. Taking the secondary effect as the primary effect, Rakove, at the end of the book, even assigns the Fourteenth Amendment the credit for finally realizing Madison’s dream.
This will not work. Apart from James Wilson, Madison attracted no very fervent support for his proposal. Moreover, his subsequent political labors in support of federalism would have been entirely thwarted by such a constitutional provision. It turns out, in other words, that a political inconsistency is not necessarily a constitutional or principle inconsistency for the sufficient reason that life under the Constitution calls sui generis for prudent judgments on the basis of the law that exists and not that might have existed.
Yet so heavily does Rakove’s argument rely on Madison’s failed proposal that he inflates Madison’s claim to respectability for having made it, as when he suggests that George Washington showed “enthusiastic” support for it. Washington never voiced such support. The one document that Rakove cites, a letter of March 31, 1787, refers not to the negative on state laws but to the “power of coercion” in the federal or national authority, by which Washington meant and Madison understood not the “negative” but the direct operation of national laws upon the citizens in the states rather than through the intermediation of state governments. That is, moreover, precisely what was acquired through the Constitution that came into force in 1788.
That argument is set forth most completely by Alexander Hamilton in Federalist 15, but all of the Federalists subscribed to it. This power of coercion to which Washington referred is what Madison means in his reply to Washington dated April 16, 1787, when he speaks of “positive and compleat authority” in the areas subject to national provision. Then he says, “Over and above this positive power, a negative in all cases whatsoever . . . appears to me to be absolutely necessary.” (Emphasis in original.)
Here’s the point: The proposal was at that time, and has remained ever since, completely incompatible with the genius of the people of the United States. It resulted from erroneous reasoning about what was politically desirable as well as politically possible. Game-theoretic reasoning it was not. It was a doctrinaire conclusion built upon false premises. Remarkably, however, Madison easily overcame that error, preserved unimpaired his commitment to republicanism, and retained the incisive judgment that enabled him to speak candidly about the “aristocratic” character of Southern society in a manner that was calculated to further the republican cause (though Rakove concludes at that point that “Madison could conceive no political solution” to the problem of slavery).
To try a work of history solely by passing judgment on its organizing trope rather than its presentation of insightful arguments about past deeds and speeches would be a grave mistake. Rakove conveys in this work much that is of interest, and that expands the range of our understanding of James Madison. Nevertheless, in history as in literature, it is fair to take the organizing conceit to task, and bespeaks no disfavor or ill regard for the author when one takes him or her seriously.
Rakove himself illustrates this at considerable length when, in numerous notes in this volume, he finds the work of Mary Sarah Bilder (her 2015 book Madison’s Hand has been much discussed at Law and Liberty) problematic but nevertheless retains a secure confidence in the integrity and significance of the work. So, too, we here convey what appears problematic in Rakove’s newest effort while retaining secure confidence that he has once again made a contribution to our understanding.
To encourage inquirers not to believe while nevertheless to read this work, let me offer one of its many golden nuggets:
Over the course of the 1790s, Madison’s constitutional thinking evolved in new and significant ways . . . In its customary form, the crux of that problem lies in reconciling the ‘fervent nationalist’ of the 1780s . . . with the ‘strict constructionist, states’ rights cofounder’ of the Republican party . . . The deeper source . . . pivoted on [the] accurate perception that Hamilton wanted to build an American version of the modern fiscal-military state, a nation-state that came encumbered with a potent executive, but one that could still be linked with the mechanisms of representative government.
Madison and Hamilton, Before the Partisan Divide
This golden nugget strips from the interpretation of Madison’s “evolution” the Sturm und drang of partisan declarations. Perhaps Rakove could have carried it even further, if he had cited what Madison said in his letter to Hamilton of November 19, 1787. In this letter we see the seedling of a qualification that would eventually grow into the trunk of partisan opposition:
I need not apprize you that some of the ideas I have hazarded may proceed not only from an inaccurate view of the subject but from a mistake of local for general sentiments with regard to it.
Rakove’s own very detailed accounts (following Lance Banning) of Madison’s sensitivity, perhaps even susceptibility, to parochial interests indeed constitutes a great portion of the evidence of game-theoretic reasoning. And the fact that Madison made this confession in a context in which none of the suspicions about a “monarchistic” Hamilton had yet emerged, and when Madison himself had been largely the architect of the program of activity that the new Secretary of the Treasury would carry out, lends great weight to the narrative that Madison was not merely the lad with a finger in the dike of constitutional excess.