Texto de Cass Sunstein

Eis o texto enviado pelo Prof Farlei Martinis publicado pelo The New York Review of Books

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Volume 56, Number 5 · March 26, 2009
The Enlarged Republic—Then and Now
By Cass R. Sunstein
1.
To many modern readers, the Federalist Papers seem formal, musty, old, and a bit tired—a little like a national holiday that celebrates events long past but lacks any sense of struggle and excitement, or even a clear message. But under stringent time pressure, starting in October 1787, Alexander Hamilton, James Madison, and John Jay, writing under the name of "Publius," produced the best historical record, by far, of the uniquely American contribution to political thought and practice.

It is important to see that their arguments were a product of a concrete historical drama, involving the fate of an emerging nation that was having an exceedingly difficult time governing itself. But Publius's claims bear not only on American debates of the eighteenth century, but also on those of the nineteenth, twentieth, and twenty-first. They offer lessons for making war and making peace, and for domestic crises of many different kinds. Indeed, they provide guidance for constitutional democracies elsewhere, not least when peace and prosperity are endangered.

Publius's project was to reconceive republicanism—a body of thought with ancient origins in Aristotle and Cicero whose modern forms had been elaborated in different ways by Machiavelli, Rousseau, and Montesquieu. Emphasizing self-rule by the people, republicans insisted on the importance of civic virtue and generally believed that self-government works best in small, homogeneous republics. According to the argument of the Federalist Papers, however, such small republics tend to destroy themselves. The reason lay in the power of factions—well-organized private groups with passions or interests inconsistent with the good of the public as a whole.[1] Publius believed that in a large republic, a heterogeneous public could counteract factional power and serve as a creative force, promoting circumspection and introducing safeguards against bias, error, confusion, and even oppression.


In Publius's boldest words, the unprecedented constitutional design of the United States, offering checks and balances in a large republic, provides

a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit, and supporting the character of federalists.
In unifying the cause of republicanism with that of the federalists, who supported the ratification of the Constitution, Publius argues on behalf of a distinctive kind of democracy—a deliberative one. He insists that in a well-functioning deliberative democracy, a wide range of perspectives is a virtue rather than a vice, at least if the constitution has the proper structure. Publius thus explicitly repudiates most of the great republican thinkers, above all Montesquieu, who contended that in a large, diverse republic, self-governance would be impossible. Publius's novel conception of republicanism provides a clue to the longevity and genius of the United States Constitution. It also helps to explain why it has served, for so many, as a model of self-government under law.

To appreciate Publius's achievement, it is indispensable to have some understanding of the Articles of Confederation, which the Constitution replaced. Adopted shortly after the Revolution, the Articles were meant to ensure a degree of unification of the states for the management of shared domestic and foreign problems. But under the Articles, it was understood that the states would remain sovereign. The first substantive provision of the Articles announced that

each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled.
By contemporary standards, the Articles of Confederation had conspicuous gaps. There was no executive authority. There was no general national judicial authority. Two of the most important powers of modern national governments were missing altogether—the power to tax and the power to regulate commerce. By the middle years of the 1780s, many prominent leaders agreed that amendments to the Articles were required.

In 1786, state representatives met in Annapolis to discuss the problems that had arisen under the Articles; they adopted a resolution to hold a convention in Philadelphia to remedy them. But the charge to the framers meeting at the convention was much narrower and more modest than the ultimate product would suggest. Chosen by state legislatures, they were instructed

to meet at Philadelphia...to take into consideration the situation of the United States; to devise such further provisions as shall appear to them necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union.
Notwithstanding this cautious language, the Constitution put forward an altogether novel system of government. Among the most important changes were the creation of a powerful executive branch; the grant to Congress of many enumerated powers, including the power to tax and to regulate commerce; and the creation of an independent federal judiciary, including the Supreme Court and (if Congress chose) lower federal courts. The Tenth Amendment, added two years later, was a pale echo of the first provision of the Articles of Confederation, deleting the word "expressly," and it was countered by the crucial constitutional clause granting Congress the authority to make "all laws necessary and proper" to carry out its enumerated powers. To its defenders and to its critics, the most noteworthy feature of the new constitution was its dramatic expansion in the authority of the national government, giving it a range of fresh legislative powers and authorizing both the executive and the judiciary to exercise considerable authority over the citizenry.

The Constitution was sent to the states for ratification in September 1787. At the time, it proved extremely controversial, and powerful objections were offered against it. There was no assurance that it would be ratified. Opposition was especially intense in New York. Seeking to persuade voters in that state, Alexander Hamilton was the major impetus behind the Federalist Papers ; he recruited John Jay and James Madison for the effort. Because Jay was injured in a street riot at an early stage, he turned out to be only a modest contributor. The name "Publius" was chosen by Hamilton.

The Federalist Papers were written between October 1787 and August 1788. The various essays were published in several newspapers in New York (including the Independent Journal, the New York Packet, and the Daily Advertiser). The goal was to provide a sustained response to the many critics of the new constitution.

2.
The Antifederalists and Small Republics
Throughout American history, scholars, politicians, and citizens have shown enthusiasm for the arguments of the antifederalists—committed opponents of the proposed constitution who claimed that it amounted to a betrayal of the principles for which the American Revolution had been fought. The ranks of the antifederalists included some of the most celebrated names in the nation's history, such as Patrick Henry, Thomas Paine, George Mason, George Clinton, and Luther Martin. We cannot understand Publius's originality without exploring the relationship between his arguments and the more standard republican views of the antifederalists, whom he attempted to rebut.

Many of the antifederalists emphasized the importance, for republican government, of civic virtue. Governmental decisions were, in their view, to be made by citizens devoted to a public good separate from the struggle of private interests; and one of government's key tasks was to ensure the flourishing of the necessary public-spiritedness. In part for this reason, the antifederalists insisted on the importance of decentralization. Only in small communities would it be possible to check a potentially oppressive government, and to find and develop the unselfishness and devotion to the public good on which genuine freedom depends.

In emphasizing the value of small communities, the antifederalists drew on familiar republican theory. Consider the words of Montesquieu, a revered authority for antifederalists and federalists alike:

It is natural to a republic to have only a small territory, otherwise it cannot long subsist. In a large republic there are men of large fortunes, and consequently of less moderation; there are trusts too great to be placed in any single subject; he has interest of his own; he soon begins to think that he may be happy, great and glorious, by oppressing his fellow citizens; and that he may raise himself to grandeur on the ruins of his country. In an extensive republic the public good is sacrificed to a thousand private views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is more obvious, better understood, and more within the reach of every citizen; abuses have less extent, and, of course, are less protected.[2]
Emphasizing these points, the antifederalists were deeply hostile to the idea of a dramatic expansion in the powers of the national government. Only a decentralized society would allow the homogeneity, transparency, and dedication to the public good that would prevent the government from degenerating into a war among private interests. The antifederalist who signed himself "Brutus" (probably Robert Yates, a New York judge) much admired Montesquieu, and he was explicit on the importance of homogeneity:

In a republic, the manners, sentiments, and interests of the people should be similar. If this be not the case, there will be a constant clashing of opinions; and the representatives of one part will be continually striving against those of the other. This will retard the operations of government, and prevent such conclusions as will promote the public good.[3]
The antifederalist "Cato" (probably New York Governor George Clinton) wrote in a similar vein. He called attention to

the immense extent of territory comprehended within the limits of the United States, together with the variety of its climates, productions, and commerce, the difference of extent, and number of inhabitants in all; the dissimilitude of interest, morals, and policies....
He warned that

unkindred legislature therefore, composed of interests opposite and dissimilar in their nature, will in its exercise, emphatically be, like a house divided against itself.[4]
From this perspective, the grounds on which the antifederalists based their opposition to the proposed constitution should be clear. Citizens would lose effective control over their representatives. Rule by remote national leaders rather than by state and local governments would attenuate the scheme of representation, rupturing the alliance of interests between the rulers and the ruled. Because it could not be closely controlled by the citizenry, the powerful executive branch, raising the specter of monarchy, would compound the problem. The potentially powerful judicial branch, deliberately insulated from the people, could not be trusted. The antifederalists feared that the proposed constitution would provide weakly accountable national leaders with enormous discretion to make policy and law.

3.
Publius's Response
These objections to the proposed constitution provoked Publius to offer a theoretical response that amounted to a new conception of self-government. This conception reformulated longstanding principles of republicanism, while in the process rejecting some of its apparently deepest commitments.

The authors of the Federalist Papers were historically minded, but they were hardly traditionalists, and they were fully aware of the originality of the American project. No. 1, written by Hamilton, begins in this way:

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.
What is especially noteworthy here is the distinction between "reflection and choice" on the one hand and "accident and force" on the other, with the suggestion that many constitutions were a product either of random events or of simple power. Suggesting that cherished and time-honored traditions might actually be a product of "accident and force," Publius is hoping for a fresh path.

In No. 14, Madison writes in direct response to the antifederalist objection that the new constitutional order lacked any real antecedents. "Hearken not," he writes, to the voice that "petulantly tells you that the form of government recommended for your adoption is a novelty in the political world." Against those who would look backward, Madison argues that

had no important step been taken by the leaders of the revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment, have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America,...they reared the fabrics of governments which have no model on the face of the globe.
In Madison's account, this level of ambition and originality "is the work which has been new modeled by the act of your Convention, and it is that act on which you are now to deliberate and to decide." But what, in substance, is "that act"? And how might the apparently powerful objections of the antifederalists be shown to be unconvincing?

It is best to start with Madison's No. 10, among the greatest of the papers. For Madison, the primary problem for self-government is the control of faction, understood in his famous formulation as

a number of citizens, whether amounting to a majority or 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.
Madison urges that for a well-constructed union, no advantage "deserves to be more accurately developed than its tendency to break and control the violence of faction."

The antifederalists rooted the problem of faction in that of corruption. Their solution was to control the factional spirit and limit the power of elected representatives. In their view, those close to the people, chosen locally, would not stray from the people's interests. The civic virtue of the citizenry and of its representatives would work as a safeguard against factional tyranny. In emphasizing the importance of small republics, the need for civic virtue, the risk of corruption, and the importance of homogeneity, the antifederalists directly followed Montesquieu.

Madison transformed the question of corruption into that of faction. He saw the "corruption" that created factions as an inevitable and natural product of liberty and inequality in human faculties. This redefinition meant that the basic problems of governance could not be solved by the traditional republican means of education and inculcation of virtue. Crucially, the problem of faction was likely to be most, not least, severe in a small republic. In a small republic, a self-interested private group could easily seize political power and distribute wealth or opportunities in its favor. Specifying his own concerns, Madison wrote:

A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it.
Madison believed that sound governance could not rely on traditional conceptions of civic virtue and public education to guard against factional tyranny.[5] Such devices would be unable to overcome the natural self-interest of men and women, even in their capacity as political actors. "The latent causes of faction are thus sown in the nature of man...." Self-interest, in Madison's view, would inevitably result from differences in natural talents and property ownership. To this point, Madison added the familiar idea that attempting to overcome the effects of passion and interest would carry its own risk of tyranny. Conscious attempts to eliminate the factional spirit would not promote liberty but instead destroy it.

These points raised serious doubts about the antifederalist enthusiasm for civic virtue and small republics, but they supplied no positive solution to the problem. In developing that solution Madison was particularly original. He noted that the problem posed by factions is especially acute in a small geographical area, for a "common passion or interest will, in almost every case, be felt by a majority of the whole," and there will be no protection for the minority. But a large republic would provide crucial safeguards. The diversity of interests would ensure against the possibility that sufficient numbers of people would feel a common desire to oppress minorities. A large republic thus contained a check against the likelihood of factional tyranny. "The smaller the society, the fewer probably will be the distinct parties and interests composing it." But "extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens." An extended republic, with diverse interests, creates a built-in protection against oppression.

Size had an additional virtue. In a large republic, the principle of representation would substantially reduce the problem of faction. In a critical passage, Madison wrote that representation would

refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.
At the Virginia Ratifying Convention, Madison explained his confidence in that "chosen body":
I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.
In his view, a large republic would reduce the danger that representatives would acquire undue attachment to local interests. Emphasizing that risk, Madison favored large rather than small election districts and long rather than short periods of service.

Throughout the Federalist Papers, Publius emphasizes the importance of ensuring virtuous representation. No. 57 urges that

the aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.
In several places, Publius suggests that wisdom and virtue would characterize national representatives. Unlike the antifederalists, Publius regarded representation in a large republic as an opportunity for achieving governance by diverse officials devoted to a public good that is distinct from the struggle of private interests. Representatives would have the time and temperament to engage in a process of reflection. The hope was for a genuinely national politics. The representatives of the people would be free to engage in the process of discussion and debate from which the common good would emerge.

All this was sufficient, in Publius's view, to suggest that the standard republican argument in favor of smallness, rooted in Montesquieu and underlined by Brutus, was altogether wrong: small republics were far less promising than large ones. But what about the risk of "clashing opinions," which would seem to be greatly increased in a large republic? It is here that Publius offers one of his most important arguments: what Brutus sees as a vice is actually a virtue. In No. 70, Hamilton writes that

the differences of opinion, and the jarring of parties in [the legislative] department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority.
Publius views the system of bicameralism as a way of ensuring increased "deliberation and circumspection," in large part because it enlists diversity both as a safeguard and as a way of enlarging the range of arguments.
We might note here that in the very same essay, Publius is actually defending a kind of "unitary executive"—the decision to create a single president, who would be in charge of the executive branch and thus in a position to ensure "promptitude of decision" as well as energy. But this understanding of the unitary executive should not be identified with the idea, associated with the Bush administration, that the president would have broad inherent authority. Under the Constitution, the executive lacked authority to make law; it was in key ways subordinate to the legislature. As Hamilton explains in No. 79, an independent judiciary was also a crucial element: "The complete independence of the courts of justice is peculiarly essential in a limited constitution." A central function of the independent judiciary would be to interpret the Constitution, and thus to ensure that the other institutions would be kept within their lawful bounds as established by We the People.

Publius's arguments rejected some of the defining commitments of traditional republicanism. Far from being a threat to freedom, a large republic could help to guarantee it. At the same time, Publius did not believe (as some modern observers do) that the Constitution merely set the rules for interest-group struggle. He hoped that national representatives, working above the fray, would be able to disentangle themselves from local pressures, check one another, and deliberate about, and help produce, the public good. Those representatives would have something like the virtue associated with classical republican citizens.

Of course representation in a large republic was far from the entire story. The structural provisions of the Constitution attempted to increase the likelihood of public-spirited representation, to provide safeguards in its absence, and to ensure an important measure of popular control. The bicameral legislature attempted not only to promote "jarring" but also to ensure that representatives in the Senate would be relatively insulated while those in the House would be relatively close to the people. The Senate was intended to have particular insulation from political pressure, and until the twentieth century senators were chosen by state legislatures (an approach abandoned in 1913 under the pressure of modern democratic sensibilities).

Perhaps most important, the separation of powers system was designed with the recognition that even national representatives may be prone to the influence of "interests" that are inconsistent with the public welfare. In No. 10, Publius acknowledges that "enlightened statemen will not always be at the helm." In No. 51, he elaborates this point, relying on the celebrated "policy of supplying, by opposite and rival interests, the defect of better motives." Whereas conventional republicans emphasized virtue, and Madison had expressed confidence that "men of virtue" would be selected, Publius also offered a different prescription: "Ambition," in the classic formulation, "must be made to counteract ambition."

The system of checks and balances within the federal structure was intended to operate as a safeguard against both self-interested representation and factional tyranny. If a private group were able to achieve dominance over a certain part of the national government, or if a segment of rulers obtained interests that diverged from those of the people, other national officials would have both the incentive and the means to resist.

The federal system would also act as an important safeguard. The "different governments will control each other" and ensure stalemate rather than action at the behest of particular private interests. The jealousy of state governments and the attachment of the citizenry to local interests would provide additional protection against the aggrandizement of power in national institutions.

Publius thus described an assortment of safeguards: national representation, bicameralism, indirect election, distribution of powers, and the federal–state relationship would work in concert to counteract the effects of faction despite the inevitability of the factional spirit. The Constitution itself would be enforced by independent judges. Adopted in a moment in which the factional spirit had been perhaps temporarily extinguished, it would prevent both majorities and minorities from usurping government power to distribute wealth or opportunities in their favor.[6]

4.
Our Deliberative Democracy
The picture that emerges is one of deliberative democracy.[7] Publius rejects the view of his antifederalist adversaries on the ground that they missed the lessons of both theory and experience. They undervalued the likelihood that small republics would be dominated by private interests. Publius doubts that the private passions and interests of the citizenry could be subordinated by instilling principles of civic virtue. But he does not believe that representatives would or should respond mechanically to private pressure. Instead, the national representatives are to be above the fray of private interests. Above all, their task is deliberative.

The deliberative features of the federalists' approach are captured in Hamilton's suggestion in No. 71 that

when occasions present themselves in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests to withstand the temporary delusion in order to give them time and opportunity for more cool and sedate reflection.
Publius did not believe that politics should be conducted solely as a process of bargaining and trade-offs. His suspicion of civic virtue and his relatively skeptical attitude toward the possibility that citizens could escape expressing their self-interest led him to reject the traditional republican structure without rejecting important features of its understanding of politics. Hence Madison's suggestion that the "pleasure and pride, we feel in being republicans" does not lead to the doubts and fears of the antifederalists; on the contrary, that very pleasure and pride lead directly to the hope and optimism of the federalists.

For Publius, deliberation would not occur free from popular control. Representatives were accountable to the public; their deliberative task was hardly disembodied. In Publius's account, the framers created political checks designed to ensure that representatives would not stray unjustifiably or too far from the desires of their constituents. The result was a hybrid conception of representation, in which legislators were neither to respond blindly to constituent pressures nor to undertake their deliberations in a vacuum. And the system of checks and balances, in a large republic, would help to improve deliberation. In this system, judicial review was hardly a means of frustrating the public will; on the contrary, it would help to ensure that We the People would remain superior to our rulers.

Perhaps the most significant innovation in federalist thought was the expectation that the constitutional system would serve republican goals better than the traditional republican solution of small republics and close ties between representatives and their publics. The federalists insisted that the new system of deliberative democracy would preserve the underlying republican model of politics without running the risk of tyranny or relying on naive understandings about the human capacity to escape self-interest.

Was Publius right? Reasonable people have wondered, especially in periods of crisis. Antifederalist themes can be found in longstanding American skepticism about a centralized and occasionally remote national government—and in corresponding enthusiasm, prominent in the Reagan era, for the authority of state and local officials. At important times in American history, including the era of Dred Scott and the New Deal, an independent judiciary has been seen not as a bulwark of liberty but as a threat to self-government, very much in line with the fears of the antifederalists. And in a large republic, interest groups, or factions—whether oil companies or tort lawyers—have wielded considerable power, requiring serious qualifications of Madison's arguments in No. 10. One of the enduring challenges to Publius's arguments is that even in a large republic, factions are able to exert their will, ensuring, for example, that legislation nominally designed to reduce air pollution or to enact insurance reform may in some respects reflect the influence of strong private interests.

The rise of an immensely powerful executive branch and the growth of the administrative state have raised especially serious questions about many of Publius's claims. After the New Deal in particular, policymaking power is often wielded by those with technical expertise—specialists in environ- mental protection, occupational safety, communications technologies, banking, financial stability, and much more. Some institutions—the Federal Reserve Board, the Environmental Protection Agency, the Federal Communications Commission—often seem to combine the power to legislate with the power to execute the laws. It is a serious question whether Publius's claims about republican government can easily coexist with modern bureaucratic structures. And during the "war on terror," concerns about the "unitary" power of the executive branch, and about the accountability of a relatively remote national government, have been felt with new urgency.

For promoting prosperity and peace, Publius has hardly had the last word. The nation has carried out large-scale structural changes, recasting the constitutional design at many stages in our history, most prominently after the Civil War and during the New Deal, but also during the presidencies of Lyndon Johnson, Ronald Reagan, and George W. Bush. Both structures and rights have changed, not only as a result of formal constitutional amendments, but also and more often as a result of perceived public necessity and changing moral commitments.

But the sheer longevity of the constitutional system that Publius defended, and the place it has maintained for both accountability and deliberation, attest to the power of his arguments. Taken as a whole, the American experience suggests that Publius did not go far wrong in insisting that it is possible, and perhaps not even difficult, to be at once a republican and a federalist.[8]

Notes
[1]Note that Publius is not referring to political parties, which were not foreseen and first emerged some five years later. In his account, factions consist of any kind of organized group that seeks to impose itself at the expense of the public good (a term that he did not define).

[2]Montesquieu, The Spirit of Laws (1748), Book 8, Chapter 16.

[3]The Complete Anti-Federalist, edited by Herbert J. Storing (University of Chicago Press, 1981), 2.9.16.

[4]The Complete Anti-Federalist, 2.6.12.

[5]Notably, the Federalists did not call for but, on the contrary, opposed a bill of rights. No. 84, written by Hamilton, contains a sustained explanation of this opposition, suggesting that the Constitution already protected rights sufficiently through its structural guarantees and through the rights it recognized, such as the right to habeas corpus and the ban on ex post facto laws. Indeed Publius added that bills of rights

in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?
In rejecting these arguments, the antifederalists, with the strong support of Thomas Jefferson, won the national argument just two years after the Constitution was ratified. History's verdict is of course in their favor.

[6]It is notable how little Publius has to say on the subject of slavery. In No. 54, he defends the constitutional provision allowing slave states to add three fifths of their slaves to the number of free inhabitants in computing the number of representatives sent to Congress by each state. In this intriguingly ambiguous discussion, relying largely on a hypothetical argument by "one of our Southern brethren," Publius does not really defend or reject the legitimacy of slavery.

[7]A valuable discussion is William Bessette, The Mild Voice of Reason: Deliberative Democracy and American National Government (University of Chicago Press, 1994).

[8]I am grateful to Martha Nussbaum for helpful discussions and to Daryl Levinson, Frank Michelman, Mark Tushnet, and Adrian Vermeule for valuable comments on a previous draft.