Balkinization: Senator Manchin, Justice Breyer, and the Madisonian Delusion

Senator Manchin, Justice Breyer, and the Madisonian Delusion

Sandy Levinson

Both Senator Joseph Manchin of West Virginia and Justice Stephen Breyer can, I believe, be viewed in terms of the Madisonian hope--or delusion--of staving off factional partisanship by relying instead on the virtuous impulses of what we today might describe as "bi-partisan" and public-spirited leaders. One should not disdain this desire. Madison was clearly on to something when, in Federalist 10, he bewailed "factions" as collectivities committed not to the public good, but, instead, to their own selfish interests. That, of course, is what political parties can be viewed as, and there is widespread agreement that the Madison of 1787, like Washington and most other luminaries, were trying to stave off the development of political parties.

One can easily say that Madison and Washington were delusional in their hope, not to mention illustrating the propensity of all of us to define our own particular desires with "the public good." In any event, the only interesting controversy among historians is dating exactly when the Madisonian fantasy collapsed. Some would say as early as the first couple of Congresses and the debate, in particular, over the chartering of the first Bank of the United States, where Madison led the attack on Hamilton's brainchild. Others might say the election of 1796; everyone would agree that by 1800 it was in complete shambles and, like Humpty Dumpty, would never be put back together.

But it is still possible to say that "partisanship," though completely explicable and even productive, has its downsides as well. There is no evidence that either Senator Manchin or Justice Breyer is an ignorant fool in emphasizing the importance of moving away from our present polarization. That being said, however, one can say that even if not foolish, they are still nonetheless subject to justified criticism in refusing to recognize what is obviously true, for better and, certainly, for worse about our contemporary polity. They are making the best--i.e., a Madisonian (or "Publian") society of leaders selflessly committed above all to the "common good"--the enemy of the good. So what is "the good" in this context: The answer is a political system that, at least over the next few years, is basically controlled by the Democratic Party, given that the GOP has become largely a fascistic cult of personality around the truly malevolent figure of Donald J. Trump and the necessity to support his Goebellian big lie concerning the integrity of the election.

I suspect that Manchin, as an experienced practicing politician realizes this. His resistance to "partisanship" can in part be explained by his tenuous position in West Virginia itself, the most Trumpista state in the Union, apparently. Breyer's position must find a different explanation, and I think the basic answer lies in his being a very bright technocrat--he has taught at the Kennedy School as well as the Harvard Law School--who really buys fully into the Hegelian/Frankfurterian ideal of a class of civil servants, including judges, who transcend "the political thicket" and can make judgments faithful to the public interest and/or "the rule of law."

In some ways, Breyer is more interesting than Ginsburg, who I think had become simply a form of megalomaniac at the end, encouraged to accept the view of her acolytes that she was truly indispensable and irreplaceable. Breyer, on the other hand, is more the instantiation of a particular ideological vision. Whether this makes him more admirable, or even more dangerous, than Ginsburg is truly debatable.

Posted 12:30 PM by Sandy Levinson [link]