Editor’s note: This article is part two of a three-part essay adapted from a lecture series created for the Politismos Museum of Greek History. Part one was published in the Fall 2016 issue of TOS, and part three will be published in the Spring 2017 issue.
In part one of this essay, I said that America’s founders modeled themselves more on the Romans than the Greeks. There were several reasons for this, including the fact that in their day, much of ancient Greek literature was still undiscovered or unavailable in English translation. Also, the British Empire enjoyed the pretension of following in the footsteps of Rome. But another important reason was that, for the American founders, ancient Greece stood more as a warning than a model. Although Greek philosophy was a basic framework for the founders’ thinking, Greek political writings were of less importance to America’s founders than were the writings of such Romans as Cicero or Tacitus. Thomas Jefferson explained why in an 1816 letter in which he essentially brushed aside Aristotle’s Politics as largely irrelevant to the American Constitution. This may seem surprising, given that Jefferson elsewhere cited Aristotle as one of the four most important political thinkers for the American Revolutionaries—the others being Cicero and the Englishmen John Locke and Algernon Sidney.1 But he explained that “the style of society” in ancient Greece was
so different . . . from what it is now and with us, that I think little edification can be obtained from their writings on the subject of government. They had just ideas of the value of personal liberty, but none at all of the structure of government best calculated to preserve it. They knew no medium between a democracy . . . and an abandonment of themselves to an aristocracy, or a tyranny independent of the people. It seems not to have occurred that where the citizens cannot meet to transact their business in person, they alone have the right to choose the agents who shall transact it; and that in this way a republican, or popular government, of the second grade of purity, may be exercised over any extent of country. The full experiment of a government democratical, but representative, was and is still reserved for [the Americans to try].2
In other words, the principle of elected representation was a revolution in political thinking. There were elements of it in the British Parliamentary system—though the House of Lords was still an aristocratic body, and the House of Commons was so badly apportioned that it was not really representative. And there were elements of it in the Roman Senate, which was not elected at all. But a government in which the people chose representatives to deliberate over public business and be responsible to the voters had never been tried on anything like the scale of the American Constitution. Indeed, according to the Oxford English Dictionary, the earliest appearance of the word “responsibility” was in The Federalist, written in 1788 by James Madison, Alexander Hamilton, and John Jay as part of the campaign to persuade Americans to adopt the Constitution.3
This concept of representation, however, turned on a deeper distinction between the Greek and the Roman legacies. That was the principle of the rule of law. The history of the Greek city-states was a history of turbulence and warfare, and those city-states were themselves either tyrannies such as Sparta or direct democracies such as Athens. Tyranny and democracy are Greek words, and both have essentially the same connotations: lawless rule in which citizens enjoy no protections against the government. “Had every Athenian citizen been a Socrates,” wrote James Madison in the Federalist, “every Athenian assembly would still have been a mob.”4
True, we find a basic conception of the Rule of Law in the writings of Aristotle and some others, but the history of ancient Greece, and particularly of Athens, showed that these principles were more often betrayed than honored. Rome stood for the principle of law, as opposed to democracy: The Roman ideal was a society in which everyone was bound by reasonable, comprehensible rules, rather than being subject to the shifting, unpredictable will of the majority.
The historian Polybius, writing during the Roman republic, thought the history of the Greek city-states revealed a six-step cycle. This begins with despotism, but when the people can no longer stand being ruled by a despot, a few brave leaders rise to overthrow their oppressors. Those leaders then become an aristocracy, but their children grow up in luxury and excess, and are prone to “avarice and unscrupulous love of money . . . to drinking and . . . debaucheries . . . [or] to the violation of women or the forcible appropriation of boys.” They abuse their power until the citizens finally overthrow them, too. “[B]eing still in terror of the injustice to which this led before,” the people do not dare to trust any new ruler, so they take the power into their own hands. This is democracy. But democracy can only last a generation or two, because
as soon as . . . the democracy has descended to their children’s children, long association weakens their value for equality and freedom, and some seek to become more powerful than the ordinary citizens; and the most liable to this temptation are the rich. So when they begin to be fond of office, and find themselves unable to obtain it by their own unassisted efforts and their own merits, they ruin their estates, while enticing and corrupting the common people. . . . [W]hen, in their senseless mania for reputation, they have made the populace ready and greedy to receive bribes, the virtue of democracy is destroyed, and it is transformed into a government of violence and the strong hand. For the mob, habituated to feed at the expense of others, and to have its hopes of a livelihood in the property of its neighbors, as soon as it has got a leader sufficiently ambitious and daring . . . produces a reign of mere violence. Then come tumultuous assemblies, massacres, banishments, redivisions of land; until, after losing all trace of civilization, it has once more found a master and a despot.5
This warning was well founded. Consider the history of just one city: Athens. In 508 BC, Cleisthenes established the foundation of what we call the Athenian democracy by dividing up the traditional tribal alliances into a more modernized voting system. Eighteen years later came the glorious victory over the Persians, and shortly thereafter the Greeks formed the Delian League, pledging their alliance against the Persians. Only eighteen years later, the Peloponnesian wars began, which lasted until 445, during which time Pericles and other aristocrats exercised virtually unlimited authority under Athens’s so-called democracy. War with Sparta erupted again in 432 and lasted until 404, when victorious Sparta abolished the democracy and instated an occupation government known as the Thirty Tyrants. Democracy was again restored a year later, but in the 330s, the Macedonians, Philip and Alexander, took over Athens, and the democracy was essentially destroyed.
To put that in perspective, the Athenian democracy lasted about 170 years, roughly the same amount of time that California has been part of the United States. That does not count the various temporary interruptions of democratic rule. Of that 170 years, at least 114 were years of war. Little wonder that James Madison regarded the Athenian democracy as a failure. “[D]emocracies have [always] been spectacles of turbulence and contention,” he wrote, “have [always] been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”6 In other words, Greek history taught America’s founding fathers what not to do.
Three examples of the problems of Athenian democracy were particularly instructive to the American founders.
The first lay in the financial history of the Greek city-states. In case after case, the poor outnumbered the rich, and fed their resentments into political action by supporting demagogues who promised that, if they were given political power, they would seize wealth from the rich and give it to the poor, or cancel all outstanding debts. Pisistratus, Nabis, and other dictators came to power in this way. The problem, of course, is that canceling debts destroys the possibility of credit, because lenders will refuse to extend loans in the future. Businessmen and the poor then cannot borrow the money they need, and the engine of economic growth shuts down.
On the other hand, if debts are treated like crimes, as they were in ancient Athens, borrowers will be punished so severely that they will be essentially transformed into slaves. One of the greatest achievements of the Athenian lawgiver Solon, whom the Greeks regarded as among their wisest men, was to end the debt-slavery system that reduced so many people to bondage. Historian Will Durant put the problem well: “Forced to choose, the poor, like the rich, love money more than liberty, and the only political freedom capable of enduring is one that is so pruned as to keep the rich from denuding the poor by ability or subtlety and the poor from robbing the rich by violence or votes.”7 Could a way be found to prevent the majority from using political power to destroy the economic system out of envy or need?
The attraction of the poor toward demagogues suggests the second reason the American founding fathers regarded Greek democracy with skepticism: the democratic susceptibility to popular heroes and agitators. Consider the career of the Athenian general Alcibiades. During the Peloponnesian War, he argued for the so-called Sicilian Expedition, an illegal attack that was advantageous to Athens’s interests. The plan was controversial, but Alcibiades won the day, and his fleet sailed for Sicily. His political enemies, however, found a way to trump up false charges against him the instant he sailed—accusing him of defacing certain religious monuments in the city—so that in his absence, they could put him on trial for blasphemy. They convicted him and sentenced him to death if he should return, so he chose to abandon Athens and join its arch-nemesis, Sparta. Without his leadership, the Athenian military was defeated disastrously in Sicily, resulting in the death or enslavement of some ten thousand men. Yet the Spartans, too, quarreled with Alcibiades, and he again defected, this time to the Persians. At last, when members of the Athenian military plotted a coup against the city’s anti-democratic leadership, they recalled Alcibiades to Athens. He then led a series of Greek military attacks around the ancient world until he at last returned to Athens in 407 BC. All of this took less than a decade.
To the American founding fathers, Alcibiades’s career symbolized the dangers of unlimited, direct democracy: a strongman, handsome and brilliant, clothed in military glory, enjoying extraordinary skill, intoxicating charisma, and boundless ambition, he accumulates a worshipful audience as well as bitter enemies, and comes to imagine himself above the law—leading to civil war. He seemed to foreshadow Julius Caesar and Napoleon Bonaparte. As Alexander Hamilton wrote, “The people commonly intend the public good,” but they do not always “reason right about the means.” In fact, it is a “wonder” that the majority do not go wrong more often than they do, given that the people are continually “beset” by “parasites and sycophants . . . , the ambitious, the avaricious, the desperate, by . . . men who possess their confidence more than they deserve it.” Sometimes good leaders must “withstand” the people’s “temporary delusion[s], in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure.”8 Could the American founders create a system that would help the people to resist parasites, sycophants, and demagogues, and help the people to overcome their “temporary delusions” before they harmed themselves?
This, in turn, suggests the third and most famous of the problems of Athenian democracy: its instability. The Athenians could celebrate Alcibiades one moment and sentence him to death the next. In another infamous episode, when the city of Mytilene rebelled against Athenian rule, an Athenian general persuaded them to punish Mytileneans by sending troops to kill all of the men and enslave all of the women and children. The next day, an opposing politician persuaded the people to change their minds, and the Athenians dispatched a ship to overtake their previous expedition and stop them. Fortunately, the second ship arrived in time to spare the Mytileneans. But once again, the Athenian democracy had proven itself too easily swayed, subject to wild reversals of policy. “Athens,” wrote John Adams in 1787, was never a place of “[s]obriety, abstinence, and severity.” Instead, “from the first to the last moment of her democratical constitution, levity, gayety, inconstancy, dissipation, intemperance, debauchery, and a dissolution of manners, were the prevailing character of the whole nation.”9
By far the most notorious example of the weakness of Athenian mob rule was the trial and execution of Socrates.
Socrates (born in about 470 BC) worked as a stonecutter and a soldier before taking up his famous philosophical inquiries. This was at a time when Sparta was prevailing against Athens in the Peloponnesian War, and historian Bettany Hughes has argued that the war and other circumstances led to a populist reaction against avant-garde liberal intellectuals such as Socrates, who had led the city into this disastrous war and who despised the Athenian democracy.10 Certainly Socrates’s reputation cannot have been helped by the fact that he surrounded himself with such figures as Plato, whose hostility to democracy is well known; and Xenophon, who was so repelled by democracy that he moved to Sparta. His most notorious follower was, of all people, Alcibiades, with whom Socrates had served in the army and who felt for Socrates more than friendly attraction. When Athens’s fortunes suffered in its war against Sparta, it would only have been natural for the people to turn their resentment against the city’s lazy, philosophical, homoerotic intellectual elite, and particularly against their leader.
In 423 BC, the playwright Aristophanes presented a comedy, The Clouds, which satirized Socrates as an airy philosopher who encourages sexual deviancy and teaches sons to rebel against their fathers. The play ends with the city’s respectable citizens burning down Socrates’s school and chasing him out of the city. That was twenty years before Athens was defeated in the war, and Sparta installed the Thirty Tyrants to rule over Athens. When the Tyrants drew up a list of three thousand Athenians they thought could be trusted, Socrates was on the list. Yet when they ordered him to help them round up troublemaking Athenians, he refused.11 This gave reason for both the Spartans and the Athenians to distrust Socrates, who was left without a protector.
In 399 BC, he was charged with two crimes against the state: atheism and misleading the youths. He was convicted and sentenced to death, and Western civilization today regards him as a martyr of free speech—a martyr against democracy, not against monarchy or dictatorship, because it was the people of Athens, the voting majority, who put him to death.
Two thousand years later, by the time of the American Revolution, Western intellectuals had reached a consensus that democracy was a foolhardy, futile, and dangerous form of government. The crucial political question was not who should hold political power, but how to impose a rule of law on society. If the majority is subject to no will but its own, then they are essentially above the law. They have power, but they may not exercise that power rightly. What force can make the people obey the law? The people themselves? Or is that like the dieter who tries to hide the chocolate cake from himself? In 1776, most political philosophers believed that the people could not give law to themselves and that democratic rule would inevitably collapse into chaos, instability, and the various evils of Athenian history.
We must not roll our eyes at this consensus, or assume that previous generations were ignorant or prejudiced against democracy. These questions are still very much with us—a matter of life and death to millions in the Middle East today. Since 9/11, the United States and allied countries have struggled with the question of whether Islamic nations can thrive under democratic rule, or whether they are forever doomed to rule by one strong-armed dictator after another. And U.S. policy has oscillated accordingly.
Recall that the second Bush administration became persuaded that supporting foreign dictators was not in the United States’ long-term best interests and that “linking international policy to building free societies”12 was both more to our interests and more humane. The administration initially met with success in replacing the dictatorship of Saddam Hussein—whom previous administrations had regarded as a useful son of a bitch—with democratic rule. But among the many missteps that followed, Western leaders continued to prioritize the majoritarian aspects of democracy over the protections of individual rights. When given the opportunity to cast their votes, the Middle Easterners overwhelmingly preferred some form of dictatorial or totalitarian rule instead of political freedom. The results of the West’s naive democracy-first approach were such parodies of democracy as the triumph of Islamofascists in Egypt and Tunisia, and the rise of ISIS. Today, prominent voices once more tout the benefits of political repression.13
How can we balance the rule of the majority with the need to keep the majority in check? How can the people make law for themselves and also follow it? To borrow a quintessentially Greek metaphor, can the people, like Odysseus, bind themselves to the mast so that they will not be tempted away from what they know is right?
This question was particularly important to the English-speaking world at the time of the American Revolution, because a century earlier, England had been torn by civil war and by a brief experiment with something approaching democracy. In 1649, the English executed their king and established a new, written constitution under which Parliament would govern. This experiment lasted only four years before collapsing into military dictatorship, which lasted only six more years before the English gave up and restored their monarchy. To Europeans, this proved once more that the people are incapable of ruling themselves and must be controlled by a strong and independent power. Montesquieu, the political thinker most admired by America’s founding fathers, called the whole thing “a very droll spectacle” that proved that the people can only govern if they are virtuous. But virtue is a hard thing to maintain:
When virtue is banished, ambition invades the minds of those who are disposed to receive it, and avarice possesses the whole community. The objects of their desires are changed; what they were fond of before has become indifferent; they were free while under the restraint of laws, but they would fain now be free to act against law; and as each citizen is like a slave who has run away from his master, that which was a maxim of equity he [now] calls rigour; that which was a rule of action he [now] styles constraint; and to precaution he gives the name of fear. . . . The members of the commonwealth riot on the public spoils, and its strength is only the power of a few, and the license of many.14
Note how this echoes the warnings of Polybius. Was there a way for the American founders to create a popular government that would also be lawful? In which the people would possess power but would also be subject to the law? That was the question that faced James Madison and his colleagues when they sat down in Philadelphia in 1787 to write a constitution. “In framing a government,” James Madison wrote, “the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control . . . but experience has taught mankind the necessity of auxiliary precautions.”15
It was Madison, more than any other thinker, who would fashion the United States’ unique solution to this problem. He was born in Orange County, Virginia, in 1751 and, unusually for that time, attended college in the North, at what is now Princeton. He stayed on to study even after graduating, becoming America’s first graduate student. He studied some law but never became a lawyer. Instead, at the age of twenty-three, he served on the Committee of Public Safety in his home county, the beginning of a career in public office that would last until his retirement at the age of sixty-six. Of his many political interests, his first and most fundamental was his belief in religious freedom. One of his earliest surviving letters is a note to a friend complaining about religious intolerance in Virginia, where the Anglican Church was the official religion, and Baptists were being persecuted for preaching, even in private homes.16
Religion, Madison believed, was a matter purely of individual conscience. If one person harmed another on the basis of a religious belief, the state should intervene, but a person’s private beliefs and religious practices are simply none of the government’s business. It was among the rights that no government, whether monarchical or democratic, could justly violate. The purpose of government is to protect individual freedom, not to empower the majority to do its will.
Note how undemocratic this thinking is. For the Athenians—even for Socrates—the individual belonged to the city, and the city’s rulers had the power to determine how the individual should be treated. Although the laws of Athens were highly tolerant, Greek political philosophy had no fully formed concept of individualism. Remember that Socrates was executed in part because of his unorthodox religious views. According to the rules of pure Athenian democracy, nothing about this was unjust. He himself did not regard it as unjust and made no reference to any individual right of freedom of conscience in his defense before the court. On the contrary, he refused the opportunity to save himself from death because he agreed that the laws were on the side of the prosecution. He viewed himself as owned by the laws of Athens—he called himself their “child and servant”—and believed that for him to defy the majority’s legal judgments would “destroy” the city.17
Athenians such as Socrates were free, but they had no rights—no moral and political principles they could assert against the power of the city-state. By Madison’s day, John Locke and others had formulated the principle of individual rights and argued that government may not give or take our freedom in accordance with the state’s view of what is tolerable or intolerable. Rather, we have rights to freedom that precede government, and the state must respect and protect those rights.
This change in thinking is clearest, again, in the case of religious freedom.18 At the time of the Revolution, British law accorded subjects broad religious toleration. Any Protestant sect that acknowledged the king’s supremacy was free to practice its faith—although Catholics and non-Christians were excluded, and people of all faiths were still forced to support the Anglican Church through taxes. The British considered this an extremely liberal policy, and it was, relatively speaking. But for Madison and his allies, toleration was not enough. Instead, they insisted on religious liberty. Madison’s friend Thomas Paine denounced the idea of toleration: “Toleration is not the opposite of intoleration, but is the counterfeit of it,” he wrote. “Both are despotisms. The one assumes to itself the right of withholding liberty of conscience, and the other of granting it.”19 George Washington agreed. “It is now no more that toleration is spoken of,” he wrote, “as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” In the United States, “[a]ll possess alike liberty of conscience.”20
In 1776, the Virginia legislature asked the respected fifty-one-year-old statesman George Mason to prepare a Declaration of Rights. Madison, then half Mason’s age, was new to the state legislature, but he was not too shy to object to part of Mason’s draft. Madison later wrote that although he had been “young & in the midst of distinguished and experienced members of the Convention,” he had “suggested amendments,” including a change to “the terms in which the freedom of Conscience was expressed.” Where Mason had “inadvertently adopted the word toleration,” Madison urged the elder statesman to “substitute a phraseology which declared the freedom of conscience to be a natural and absolute right.”21
If religious freedom is a “natural and absolute right,” then it is not something government may justly intrude upon, regardless of whether that government is a monarchy or a democracy. The majority may justly take action only so long as it respects individual rights. In Madison’s words, “the Sovereignty of the Society as vested in & exerciseable by the majority, may do any thing that could be rightfully done, by the unanimous concurrence of the members.” Madison himself emphasized the word rightfully because “the reserved rights of individuals (of Conscience for example)” are “beyond the legitimate reach of Sovereignty, wherever vested or however viewed.”22 But, of course, the majority easily can be carried away by a “common impulse of passion or interest”23 and violate those rights. This is the problem known as “the tyranny of the majority.” “Wherever the real power in a government lies, there is the danger of oppression,” Madison wrote. “In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.”24
Consider again the three examples of Athenian misrule: the tendency of the poor majority to use political power to plunder the wealthy; the popularity of strongmen such as Alcibiades, or demagogues who can sway the majority one direction one day and another on the next; and the instability of the laws, such that unpopular individuals such as Socrates could be put to death unjustly. Madison diagnosed these problems in The Federalist. In a “pure democracy,” groups of people motivated by a “common passion or interest” will often act in ways “adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Often, the majority of the people are themselves members of a faction, and “there is nothing to check [their] inducements to sacrifice the weaker party or an obnoxious individual” such as Socrates.25 Living under a government of this kind—in which the individual can never be sure what the majority might do to him—is even more dangerous than living with no government at all. “In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may . . . truly be said to reign . . . [because] the weaker individual is not secured against the violence of the stronger.”26
Historically, the most common solution to this problem had been monarchy. Because kings are not elected and do not depend directly on the people for their power, they can act in ways the majority disapproves. They can stop the people from persecuting an unpopular group, or insist on imposing some unpleasant but necessary rule that is in the people’s best interest—but one they would not choose if left to their own devices. Like Middle Eastern dictators today, the king could keep the lid on the dangerous passions and irrational acts of different factions in society. But, of course, the king can also exploit that position for his own private interest and ignore the majority’s will even when it should be obeyed. “In absolute monarchies,” wrote Madison, “the Prince may be tolerably neutral towards different classes of his subjects, but may sacrifice the happiness of all to his personal ambition or avarice.” Aside from an absolute monarch, the only other solutions philosophers had proposed for restraining the majority were prudence, respect for character, and religious scruples. All of these were helpful but not exactly reliable.
Madison found a new solution, or at least a partial solution, and again it was inspired by his scholarship on religious freedom. The reason Britain and America enjoyed relative religious freedom was that so many different religious groups were vying for position in society that they tended to balance out each other. Their competition ensured that no one faction could seize political power and impose its will on the nation. In the same way, Madison argued, different social and economic groups might also be balanced against one another so as to prevent the government from falling into the hands of any one class of citizens. “Divide [and conquer],” he wrote, is “the only policy by which a republic can be administered on just principles.”27
This was what the Constitution of 1787 set out to do. It would include democratic elements, but it would place those elements within a rigid legal framework that would limit and balance the majority’s power in different ways. The House of Representatives—the most democratic part of the constitutional system—would be elected directly by the people every two years. The Senate, by contrast, would be elected by state legislatures, in a staggered fashion so that only one-third of the Senate faces election at any one time, and senators would serve six-year terms, the longest term of any elected officials. The people would not choose the president, but neither would he be unelected—he would be chosen by electors specially chosen for the purpose of selecting a president. And the courts would be staffed by judges appointed for life by this indirectly elected president. Coming full circle to the democratic elements again, the financial system giving life to the entire scheme would be primarily in the hands of the House of Representatives.
In The Federalist, Madison set out to explain this system to ordinary Americans. The basic problem of democratic government, he wrote, is this problem of faction—the danger that private interest groups will use government power to impose their desires at the expense of their rivals. “It is in vain to say, that enlightened statesmen will be able to adjust these clashing interests,” Madison wrote, for “[e]nlightened statesmen will not always be at the helm.” There are two other solutions to the problem of faction: destroy its causes or limit its consequences.
Destroying the causes of faction Madison rejects out of hand. This is because the cause of faction is freedom itself. “Liberty is to faction, what air is to fire.” Freedom leads to some people becoming richer than others, some being more successful than others, some greedier or crueler or better educated or more tolerant than others. Competing interest groups are therefore inevitable. “So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions.” The only way to eliminate the causes of faction, therefore, would be to curtail freedom of speech and assembly, do away with voting, and subject everyone to rigid control by the state to ensure that no one is able to express any interests. This, Madison writes, would be as foolish as getting rid of air because it sometimes leads to fires. Life, too, depends on air—and abolishing liberty to destroy faction would be a remedy “worse than the disease.”28 This point is worth emphasizing, because many of today’s leading politicians urge proposals that they believe will stifle faction in just this way: specifically, campaign finance laws, which each year impose heavier and heavier restrictions on political speech and lobbying groups. This effort to stamp out faction by restricting liberty is just the path the Constitution’s authors chose not to take.
Madison endorsed the second alternative: limiting the effects of faction. This can be done by “creating a will in the community independent of the majority” that can limit the majority’s power.29 The Constitution does this, in part, by establishing an independent judiciary, which shall prevent the legislature from going beyond its constitutional limits.30 Such separation of powers is “essential to the preservation of liberty.” Another way to protect the people from the problem of faction is the limitation of powers: the government cannot abuse authority that it lacks. But the most important method is to “render an unjust combination of a majority of the [people] very improbable, if not impracticable” by balancing different groups against one another. Here again, Madison used the analogy to religious freedom: “In a free government, the security for civil rights must be the same as that for religious rights. It consists in the one case of the multiplicity of interests, and in the other, in the multiplicity of sects.”
This was a radical new idea in political science. The most admired political philosopher of the age, Montesquieu, had argued that democracy could survive only if the people were virtuous, and therefore that a democratic government could exist only in a small geographical area, where people could know one another. Madison was arguing the reverse: A larger country could be better protected against the evils of democracy, because its size would prevent the factional problems that had caused so much trouble in Athens. “[T]he larger the society,” he argued, “the more duly capable it will be of self-government.”31
The Constitution’s authors, therefore, hoped that they had solved the problems that since the days of ancient Athens had plagued democratic rule. But the Constitution they were writing was not just for a single government—it was also supposed to bring together thirteen states, each of which had its own political and social institutions. During the Revolution, the colonies had often had trouble putting their internal differences aside, and it was not until 1781 that they had ratified the Articles of Confederation. It took just six years for Americans to realize that the Articles were not working, primarily because they left too much power with the individual state governments. To fix those problems, a new Constitutional Convention was scheduled for May 1787. Madison sat down with his books to prepare for the Convention and wrote out two sets of notes to guide his thinking. In one, he listed the “Vices of the Political Systems of the United States.”32 In the other, he wrote out a list of notes “On Ancient And Modern Confederacies,” beginning with three Greek confederacies: the Lycian Confederacy (200 BC to 43 BC), the Amphictyonic League (which began at an unknown time—Madison believed about 1500 BC—and ended some time in the 2nd century AD), and the Achean Confederacy (280 BC–146 BC). He also included more recent leagues and confederacies in his study, listing under each how their powers were divided between the states and the central government, and the problems that each had encountered.
For example, he noted that under the Amphictyonic League, each Greek city sent two deputies to the central government, that the members of the League were bound by oath to defend each other, that the central government was responsible for deciding conflicts between the members, had the authority to enforce its decrees with military power, and so forth. But under “vices,” he noted, that “[t]he Execution of [these] powers was very different from the Theory. . . . It did not restrain the parties from warring agst. each other. Athens & Sparta were members during their conflicts.” This lack of real authority was why Greece had been unable to resist the invasion of Philip of Macedon. “If [Greece’s] confederation had been stricter, & been persevered in,” he wrote, “she would never have yielded to Macedon, and might have proved a Barrier to the vast projects of Rome.”33
These notes came in handy at the Constitutional Convention and later when he urged Virginians to ratify the Constitution. For Madison and his supporters, the overwhelming concern of the Convention was to create something that would keep the union of states together. God forbid American states fall into war against one another the way the cities of Greece or the nations of Europe had. True, American states shared a common religion and a common language, but as one of Madison’s colleagues at the Convention observed, the Greeks had also shared “[a] common language, a common law, common usages and manners, and a common interest in being united,” but they had nevertheless “destroy[ed] every tie.”34 How could the civil wars that marked European and ancient Greek history be avoided?
In Madison’s view, the primary reason the ancient Greek confederacies had failed was the weakness of the central authority. A “weak government, when not at war,” he wrote, “is ever agitated by internal dissensions,” which “never fail to bring on fresh calamities from abroad.”35 In Federalist Number 18, he used the notes he had prepared on Greek confederacies to make this point. The Persians had constantly exploited the rivalry between Sparta and Athens, and the Greek cities had been unable to discipline themselves enough to present a united front against the Macedonians or the Romans. If the American states quarreled with each other now, the British, French, or Spanish—all of whom owned vast territory in North America at the time—might see a similar opportunity to divide and conquer the New World. Americans needed to act now to prevent the union from collapsing.
Consider one example of the ways in which the Articles of Confederation committed the same mistakes as the ancient Amphictyonic League. Under the Articles, the Congress had no power to implement its own orders. It could ask states to provide tax dollars or to supply troops for the needs of the union, but it had no power to tax directly, raise its own armies, or enforce national laws if the states chose to resist. As Madison put it, the Articles of Confederation were “derived from the dependent derivative authority of the legislatures of the states.”36 It was not created by the people directly.37 The same was true of the Amphictyonic League. Its powers “were administered by deputies appointed wholly by the cities in their political capacities.”38 This meant that if the central government tried to pursue a policy that a city disliked, that city could easily jam up the works, and the only thing the central government could do to enforce its decrees was to go to war against that city. The American Articles were already showing signs of the same problem: A single state could stymie national projects, and even such states-rights enthusiasts as Thomas Jefferson were suggesting that Congress could use the military to force states to comply.39
The “great and radical vice” of the Articles, wrote Madison’s ally Hamilton in The Federalist, was that it only allowed Congress to legislate “for states or governments, in their corporate or collective capacities” instead of allowing Congress to adopt laws that bound individuals directly.40 “If a number of political societies enter into a larger political society, the laws which the latter may enact . . . must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty . . . and not a government.”41 It was because the ancient Greek confederations lacked that supremacy that they had collapsed and the Greek city-states fell to bickering among themselves—making them “ineffectual for the preservation of harmony, and a prey to their own dissentions and foreign invasions.”42 The new Constitution would avoid this mistake by replacing the treaty-style Articles of Confederation with an actual Constitution—one that would be the “supreme law of the land,” which all states as well as national officers would be required to obey. In crucial respects, the federal government would be a single unit, not a mere League of sovereignties as in ancient Greece.
Thus the Greek experience taught Americans important lessons about the dangers of democratic politics, both internally and externally.
Internally, the power of the majority had to be bound by the limits of law—a law that would divide the majority’s power in ways that would enable the people to control their government but would prevent them from becoming a tyrannical majority. “An elective despotism,” wrote Jefferson, “was not the government we fought for.” Instead, the Revolutionary generation hoped to create a government “which should not only be founded on free principles, but in which the powers of government should be so divided and balanced . . . that no one could transcend their legal limits, without being effectually checked and restrained.”43
Externally, the Greek experience with leagues and confederations showed the necessity of a strong central government that could prevent the states from flying off in their own directions. “Governments destitute of energy, will ever produce anarchy,” Madison told his fellow Virginians when urging them to ratify the Constitution.44 He did not mean by this what we mean when we speak of “big government” today; Madison believed in a government that did a few things well, rather than one that does a lot badly. The states should retain most day-to-day government power. But on matters that concerned the American nation, the federal government should have the power to make national policy, and make it stick.
These two lessons relate in an important way. The founders hoped that a strong central government would not only enable the American states to resist foreign attack and avoid conflict with each other, but that it would also protect citizens against tyranny at the hands of their own states. At the top of Madison’s priorities when he went to the Constitutional Convention was a federal power to veto state laws, especially laws that violated his favorite individual right: religious liberty. He was unable to persuade the Convention to agree. This was the worst defeat of Madison’s career, and for a while he considered his work in Philadelphia practically a failure because of it.45 Later, he tried to get the proposal added to the Bill of Rights and again failed. Not until 1868, with the passage of the Fourteenth Amendment, would this omission be corrected.
Still, the Constitution restricted the states in important ways that did help, though imperfectly, to restrain the majority from acting tyrannically. By dividing power between the states and the federal government, the Constitution created a “compound republic” in which power “is first divided between two distinct governments”—state and federal—“and then the portion allotted to each subdivided among distinct and separate departments.” This would give “a double security . . . to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”46
The creation of the United States of America was the work of many great minds. But of the founding political thinkers, James Madison was arguably the most ingenious. Jefferson was a brilliant abstract theorist, John Adams a principled and practical man. But it was Madison, more than any other, who combined the highest abstractions of political theory with the practical skills of a political leader. History, and particularly the history of Greek democracy, was his indispensable guide in that effort. “Experience,” he wrote, “is the oracle of truth.”47 The experience of the Greeks, and especially of Athens, taught Madison important lessons—lessons about the failures of previous democracies—lessons about what not to do if the new nation was to prove true to the principles of freedom on which it was based. “I most earnestly pray,” he told Virginians when urging them to adopt the Constitution, that America would “have sufficient wisdom” to learn from the mistakes of the past “and that she may escape a similar fate.”48
It is, of course, always up to us whether we choose to take advantage of that wisdom.
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1. Thomas Jefferson to Henry Lee, May 8, 1825, in Jefferson: Writings, edited by Merrill Peterson (New York: Library of America, 1984), 1501.
2. Thomas Jefferson to Isaac Tiffany, August 26, 1816, in The Writings of Thomas Jefferson, edited by Albert Ellery Bergh (Washington, DC: Thomas Jefferson Memorial Association, 1907), vol. 15, 65–66.
3. Michael I. Meyerson, Liberty’s Blueprint (New York: Basic Books, 2008), 283, n. 218.
4. Federalist No. 55 in The Federalist, edited by Jacob Cooke (Middletown, CT: Wesleyan University Press, 1961), 374.
5. Polybius, Histories Bk. 6 ¶ 9, in The Histories of Polybius, translated by Evelyn Shuckburgh (London: Macmillan, 1889), vol. 1, 465.
6. Federalist No. 10, in The Federalist, 61.
7. Will Durant, The Life of Greece (New York: Simon & Schuster, 1960), 122. It need hardly be added that the ancient Greeks, lacking all but a rudimentary concept of individual rights, also lacked any foundation for understanding laissez-faire capitalism.[groups_can capability="access_html"]
8. Federalist No. 71, in The Federalist, 482–83.
9. John Adams, “A Defence of The Constitutions of the United States,” in Works of John Adams (Boston: Little, Brown and Co., 1856), vol. 6, 100.
10. Bettany Hughes, The Hemlock Cup (New York: Vintage, 2010), 143–45, 260–61, 276.
11. Hughes, The Hemlock Cup, 321–23.
12. Natan Sharansky, The Case for Democracy (New York: Public Affairs, 2004), xxv. President Bush has cited Sharansky as a particular influence on his thinking. See Amanda Schnetzer, “The Side of Freedom,” George W. Bush Institute, June 11, 2015, http://www.bushcenter.org/blog/2015/06/11/side-freedom.
13. See, for example, Shadi Hamid, Temptations of Power: Islamists and Illiberal Democracy in a New Middle East (Oxford: Oxford University Press, 2014).
14. Baron de Montesquieu, The Spirit of Laws, translated by Thomas Nugent (Chicago: University of Chicago Press, 1952), 9–10.
15. Federalist No. 51, in The Federalist, 349.
16. James Madison to William Bradford, April 1, 1774, in Madison: Writings, edited by Jack Rakove (New York: Library of America, 1999), 7.
17. Plato, The Crito, 50b–51a, in Plato: The Collected Dialogues, edited by Edith Hamilton and Huntington Cairns (Princeton: Princeton University Press, 1982), 35–36.
18. See Timothy Sandefur, The Permission Society (New York: Encounter Books, 2016), 39-42.
19. Thomas Paine, “Rights of Man,” in Thomas Paine: Collected Writings, edited by Eric Foner (New York: Library of America, 1995), 482.
20. Letter to the Hebrew Congregation in Newport, Rhode Island, August 18, 1790, in George Washington: Writings, edited by John Rhodehamel (New York: Library of America, 1997), 767.
21. Quoted in Robert S. Alley, “The Despotism of Toleration,” in James Madison on Religious Liberty, edited by Robert S. Alley (Amherst, NY: Prometheus Books, 1985), 147 (emphasis added).
22. James Madison, “Sovereignty,” in The Writings of James Madison, edited by Gaillard Hunt (New York: G. P. Putnam’s Sons, 1910), vol. 9, 528.
23. Federalist No. 10, The Federalist, 57.
24. James Madison to Thomas Jefferson, October 17, 1788, Madison: Writings, 421.
25. Federalist No. 10, The Federalist, 61.
26. Federalist No. 51, The Federalist, 352.
27. James Madison to Thomas Jefferson, October 24, 1787, in Madison: Writings, 152.
28. Federalist No. 10, The Federalist, 58–60.
29. Federalist No. 51, The Federalist, 351.
30. See Federalist No. 78, The Federalist, 521–30.
31. Federalist No. 51, The Federalist, 348–53.
32. Madison: Writings, 69.
33. The Mind of The Founder: Sources of The Political Thought of James Madison, edited by Marvin Meyers (Hanover, NH: Brandeis University Press, rev. ed., 1981), 48–50.
34. Notes of Debates in The Federal Convention, edited by Adrienne Koch (New York: Norton, 1966), 256.
35. Federalist No. 18, The Federalist, 112.
36. Speech in the Virginia Ratification Convention, June 6, 1788, Madison: Writings, 362.
37. See also Federalist No. 22 (Alexander Hamilton), in The Federalist, 145: “It has not a little contributed to the infirmities of the [Articles] that [they] never had a ratification by the people,” but depend “on no better foundation than the consent of the several Legislatures.”
38. Federalist No. 18, The Federalist, 111.
39. See, for example, Answers to Questions Propounded by Monsieur de Meusnier, January 24, 1786, Writings of Thomas Jefferson, vol. 17, 121–22; Thomas Jefferson to Edward Carrington, August 4, 1787, Writings of Thomas Jefferson, vol. 6, 217–18.
40. Federalist No. 15, The Federalist, 93.
41. Federalist No. 33, The Federalist, 207.
42. Speech in the Virginia Ratification Convention, June 7, 1788, Writings of James Madison, vol. 5, 139.
43. Notes on Virginia, in Jefferson: Writings, 245.
44. Writings of James Madison, vol. 5, 141.
45. James Madison to Thomas Jefferson, October 24, 1787, Madison: Writings, 148–52.
46. Federalist No. 51, The Federalist, 351.
47. Federalist No. 20, The Federalist, 128.
48. Speech in the Virginia Ratification Convention, June 7, 1788, Writings of James Madison, vol. 5, 142.