The inspiration for reissuing this piece from the archives (it first appeared in February 2012) was an article appearing in the April 24th edition of The Economist. Entitled, “Because Men are Not Angels”, the article explores the new found interest in James Madison. Among other occupations, including being a member of the Tidewater gentry and 4th President of the United States, he is most famous as the key architect of the Constitution as well as its foremost proponent.
Two hundred and twenty-five plus years later, Madison remains the country’s most important (and influential) political theorist. That club is small. I count (Thomas) Jefferson, (Alexander) Hamilton, (John) Marshall and (Daniel) Webster as the other seminal and important voices in the American constitutional dialogue. But Madison’s contribution stands head-and-shoulders above his contemporaries. And, far above those who have followed.
It was Madison — along with Hamilton, and to a lesser extent (John) Jay — who so eloquently (and prolifically) advanced the case for a stronger central government as envisioned in the then yet to be ratified Constitution. Many scholars cite his oft quoted observation, “If men were angels, no government would be necessary.” (The Federalist No. 51), as evidence of his sympathy for a strong, interventionist, federal government.
Yes, Madison realized the central government would need the power and authority to contain the centripetal force of a federal structure composed of individual, sovereign states. But the same Madison in The Federalist No. 62, avers,
“It will be of little avail to the people that laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”
So Madison was hardly a proponent of unbridled government.
Today, a counter-argument made to a literal interpretation of the Constitution, and, the intent of Founding Fathers, is the world has changed in the intervening time. The argument proceeds along the lines that society has grown ever more complex, requiring a central government (and, laws) to deal with this complexity.
True. Yes, the world has indeed evolved. But certain constants — human psychology — prevail. Madison, like so many of our nation’s Founding Fathers, was influenced by his study of classical antiquity. He, like other educated and erudite men of his age, were familiar with the surviving works of Herodotus, Thucydides, Sallust, Livy, Tacitus and Suetonius.
He would have known how the incessant squabbling among the Greek city states and regions allowed their subjection by Rome. He would have also known how the Roman Republic was ultimately subverted by civil war to become the Imperium. Naysayers of his age though did not use the naive argument the world of Antiquity was two thousand years in the past; that, Romans would not recognize the world of the 18th Century with its printing presses, muskets, potash process and loom, as a reason to reject the proposed Constitution. The rationale: the lessons of Antiquity are thus foreign to the current age. No. This argument was not made. Probably because Madison’s opponents recognized the verity of human constants.
Madison I am certain was familiar with Tacitus’ observation (the Annals),
“Now bills were passed, not only for national objects but for individual cases, and laws were most numerous when the commonwealth was most corrupt.”
I sense Madison, knowing his Tacitus (among other classical historians), would be appalled at the idea of the prolixity of a legal code as a measure of its utility. So much so, that if today, his spirit were to walk along the corridors of Congress, I believe Madison would invite the British to set Washington to the torch for a second time.
My preference when resurrecting a piece from the archives is to present it to the reader unaltered from its original form, save for matters of grammar or spelling. The commentary offered thus differs only slightly from the original.
In the intervening period, it should be noted approximately 239 Thousand pages were added to the Federal Register. The volume of additions is so large, dwarfing other measures, that the only comparison is past additions. Alas, the pace has hardly slowed.
And, likewise, the intervening period (the years from 2011 to 2013, inclusive) have seen a 5.4 percent increase in licensed lawyers. Over the same period, the U.S. population rose by just 2.2 percent. Consequently, the ratio of the U.S. population to licensed attorneys has decline further to 250 citizens to every lawyer.
In comparison, average non-farm payrolls over this period rose 4.7 percent. So the legal profession may be, despite the lamentations of its elders, a recession-proof industry.
Click here to read the commentary, 20140506 Commonsense is not so Common