IS JAMES MADISON COMPLETELY IRRELEVANT?

Sandy Levinson

In the 51st Federalist Paper, James Madison famously wrote, “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” The mechanism of American “separation of powers” is often said to derive from Madison’s insight. That is, it is not only that Congress, the Executive, and the Judiciary have quite different formal powers; it is also ostensibly true that members of each branch are psychologically disposed to work zealously to preserve the institutional prerogatives of the branch with which they are connected and will therefore be vigilant in trying to prevent incursions from the other branches.

In a brilliant article about two years ago, Darryl Levinson (no relation), now at the Harvard Law School, demonstrated the fallacies in Madison’s assertion. The reason why Madison is profoundly wrong, Levinson suggested, can be summarized in two words: political parties. Madison, of course, was no friend, at least in 1787, of the idea of a political party, which he viewed as a “faction,” defined in Federalist #10 as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Many writers well before Levinson noted that Madison’s vision (or fantasy) of a country without political parties, organized “factions,” did not survive for even a decade beyond the ratification of the Constitution in 1788. He himself became a major leader of the Democratic-Republican Party organized by Thomas Jefferson and, concomitantly, an opponent of the Federalist Party headed by Alexander Hamilton and John Adams. What was less emphasized is Levinson’s point: The organization of political parties, one of whose main goals is the election of presidents who can implement the party’s agenda, negates any serious notion that the “interest” of the member of Congress is necessarily linked with the “constitutional rights of the place” (Congress) rather than the flourishing of the political party. They view their interests as lying with the achievement of the party’s agenda, which is set, when the party controls the Presidency, by the White House. (There is also the key reality that most members of Congress wish to be re-elected, which may, depending on events of the day, lead them to stronger or weaker identification with the interest of a president of their own party, but this is analytically distinguishable from suddenly developing a great commitment to preserving the prerogatives of Congress. It most likely leads to greater pandering to their constituents.)

We are about to see an important test of Levinson’s hypothesis in the confirmation hearings—and, more to the point, the voting—on Samuel Alito’s nomination to be a member of the United States Supreme Court. In two earlier postings, I have suggested that Alito’s nomination is part of a systematic effort to reinforce the aggrandizement of the institutional powers of the presidency by, in this instance, placing on the Supreme Court someone who is predicted to be a solid vote in favor of presidential prerogative. N.Y.U. Law Professor Noah Feldman has an illuminating article in today’s New York Times Magazine, “Who Can Check the President?” He, too, sees the Bush Administration as devoted to presidential power, and he rightly believes that this grab for power must be checked. He also rightly believes that it is close to futile to look to the courts to stem such aggrandizement, even assuming that the judiciary were inclined to do so. His answer to his own question, therefore, is the Congress. But this assumes, of course, that Madison was in fact correct in suggesting that members of Congress would rebel against a president who threatened the “constitutional rights” of their own “place.”

The modern Republican Party has been notable for bending to the President’s will, save when, as with the ill-fated nomination of Harriet Meirs, social conservatives mobilized to defeat someone viewed, however implausibly, as too “soft on abortion.” Whatever explained that rebellion, it certainly was not linked to a perception that Meirs’ nomination threatened the institutional prerogatives of Congress. But the Alito nomination is different. Since Meirs’s nomination, it has become crystal clear that presidential power is the most important constitutional issue at the present time, and into the foreseeable future. And it is even clearer that Alito, by background and inclination, is a firm believer in presidential power. A long profile in today’s Washington Post notes that a key value from his youth until the present is what many of us would describe as an exaggerated respect for those in authority.

If Madison were correct, then one would predict that Alito’s nomination stood almost no chance. There is no reason for any member of what might be termed a “Madisonian” Congress to vote for Alito. Instead, senators would be looking for someone who had demonstrated great respect for the Congress and seemed likely to take Congress’s side in any potential struggles with the White House. This is, of course, not happening. Instead, Republican members of the Congress, whether “self-hating” (in the way that Jewish critics of Israel are often accused of being “self-hating Jews”) or simply indifferent to reality, seem more than happy to support Alito.

Most observers seem to believe, entering the hearings, that he will be confirmed. The only question that most articles discuss is whether the Democrats will attempt to filibuster the nomination, which would, of course, require the vigorous opposition of at least 41 Democrats. My own view is that they most certainly should try to block this nomination, but that is neither here nor there. The real question is whether the ultimate vote, whether it is to break a filibuster or to vote on the nomination itself, will deviate in any significant sense from straight party membership. Chief Justice Roberts did, of course, receive the votes of exactly half of the Democratic Senators; no Republican voted against him. So the question this time around is whether any Republican, stirred by recent White House assertions of unfettered power with regard to torture or to domestic spying, will break ranks. Or will they all be proud lemmings, willing to support “their President” in spite of his demonstrated contempt for Congress even as a co-equal branch of government? If, as I fear, the answer is the latter, then Madison will be proved, as clearly as is possible, utterly wrong in his speculations about political psychology, and we will all have to contemplate ever harder what remains of our purported commitment to separation of powers and checks and balances.
Posted 9:07 PM by Sandy Levinson [link]