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The Hillsdale College Online Courses Podcast
Constitution 101: Majority Tyranny and the Necessity of the Union
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Welcome to the Hillsdale College Online Courses podcast. I'm Jeremiah Regan.
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And I'm Juan Davalos. We're back with Constitution 101, the meaning and history of the Constitution. We're on to lecture number three today, Majority Tyranny and the Necessity of the union.
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What Dr. Pastrito teaches us in lecture three is about why the Constitution was formed the way that it. That it was, why it has the institutions and the various powers and devices that it does.
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And we've talked about the Federalist Papers in previous podcast episodes, but here we're going to discuss in overview the Federalist Papers and the arguments that the founders made for why they needed a Constitution. I think it's Jefferson who calls the Federalist Papers the. The best commentary on the Constitution. And so if you haven't experienced the Federalist Papers before, I would encourage you to pay attention to this lecture because it is a beautiful explanation of why we needed a Constitution and what the Constitution accomplishes.
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That's right. And Dr. Pastrito gives us a very short overview of the structure of the Federalist, which starts with the discussion of why we need a union at all. And. And interspersed throughout all of the arguments of the Federalist are the commentary of Hamilton and Madison on human nature. Hamilton has a very memorable line in Federalist 6 saying that government's necessary and a union in fact is necessary to protect people, because men are ambitious, vindictive, and rapacious. And he means both the people in the government and outside of the government. So we need some kind of structure that will protect the rights of all, despite the less savory tendencies of human nature.
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And now, unless you are left with the impression that the founders just had a very poor view of human nature, they actually understood also that human nature can be good and can be benevolent. So they had a balanced view in which they, on the one hand, they wanted to put mechanisms in place that would contend for and be. On the one hand, they wanted to put mechanisms in place that accounted for that bad side of human nature. But on the other hand, they built a republic which depended on people being morally virtuous and knowledgeable about the system of government that they were creating. So you get here an explanation of why the system was built the way it was.
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Dr. Pastrito gives us a wonderful encapsulation of the arguments of the Federalist in this lecture. And if you would like to learn more from him about the Federalist, you're already in the app. Go search for the Federalist course that he did with us and you can get an in depth explanation of the political philosophy, the particular practical politics, and the deep education on the Constitution that the Federalist represents. So check out the Federalist with RJ Pastrito on this platform.
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And now let's turn to lecture three with Dr. Majority Tyranny and the Necessity of the union.
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Hi, I'm Dr. R.J. pastrito. I teach in the politics department here at Hillsdale College. I'm also dean of the graduate school. And this is the third lecture in the Constitution 101 series. And I've been asked to talk in this lecture about the problem of majority tyranny and how that problem leads to the Framers making a case for the necessity of the union and the necessity of a firm union. In how we're going to proceed in this lecture I'm going to give you a little introduction and try to recap perhaps what's come before. And then I want to make three main points. The first point I'm going to make is to talk a little bit about American government under the Articles of Confederation and to talk about how effective government under the Articles was at achieving the ends of union, how it was doing and what the deficiencies were. The second point I'm going to make is to go into the framers argument for a firmer union and the reasons that they put forth for that. And finally the third main point, we're going to end up talking about the problem of this thing the framers understood as faction. And we'll say something about what they thought about human nature and how that informed their thinking on the purpose of government. So those would be the three main points. And then we'll try to end with something that'll get everybody set up for going into the next lecture. So in the course so far we've talked a lot about the principles of government, the high purposes. What's the end of government for the framers? Why are we, why are we even here? Why are we doing what we're doing? Well, we know from the Declaration of Independence that the purpose of government is to secure the natural rights of the citizens. And in fact, as Jefferson tells us in the Declaration of Independence, that's not just the purpose of this particular government, that's the purpose of any government that's made for human beings. And remember, when we're talking about natural rights, what we mean by this is these are rights that you have because of your human nature, because you are a human being. They're not rights that you have because government decides to give them to you. They're rights. You have, because you're created by God, your rights of life and liberty and the pursuit of happiness. And so you have these things before any government comes into the picture. The idea then for just government, and the only reason you would consent to government is because government secures those rights. That's the whole idea. The passage in the Declaration is that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. So government could exercise lots of powers, but in order for those powers to be just, they have to be dedicated to the securing of the natural rights of the individual citizens. So that's the standard, that's what we want to start with, right? What is government supposed to be doing? What's the standard for judging whether or not government is actually doing the job that it's supposed to do? Does it secure the individual natural rights of the citizens, your God given rights to life and liberty? And if it doesn't, why would you consent to it? That's ultimately the question and that's the way things are framed in the Declaration. Okay, so the first main point we want to talk about when we move into the framing of the Constitution, is to try to assess how the American government at that time, at this period when the Constitution is being discussed and framed in the mid-1780s, how is the American government as it was then organized, doing at the job that it's been assigned? The job is to secure life, liberty and the pursuit of happiness. So how's that going? Is it meeting the standard that's laid out in the Declaration? That's one way of thinking about this. Well, we have to think about the period of time here in history, the 1780s, and what's going on in America in the 1780s. And it's a very turbulent time. Obviously there's a recovery from this great war that's just been fought. But beyond that, the economic situation is really very unstable. There's a lot of debt. You have a lot of small landowners who are debtors, who've taken out debts and hard currency. There's a lot of inflation and other economic trouble in the States. And to a certain extent, a situation like this, and this is something that many point out, to a certain extent, this is something that comes from recovering from this massive trauma that the new nation has just been through. It's just fought this war and it's a natural part of the recovery. But beyond that, there's lots of things going on at this time that make the situation so much worse. And especially from the point of view of the framers. There's a lot that state governments are doing that is making the situation worse. First of all, we have to remember that under the articles of confederation, the system that it sets up, almost all power in the country resides in the states. So when we talk about government in the 1780s, prior to the constitution, you're really talking about state government and state constitutions. What did these forms of government look like? Well, in most states, and again, there's a certain bit of generalization here because we're talking about 13 different kinds of government. But for the most part, the states employed a very pure, a very extreme form of majority rule and of legislative supremacy. And if you think about the situation, that makes perfect sense. The revolutionary war has just been fought, and it's been fought to overthrow a kind of centralized despotism. It's been fought partly as a reaction against the British crown, depriving the then colonies of their right to self government. And so it's quite natural that once we've overthrown the British, that the states would employ, in a way, the polar opposite form of government as the one that they've just been under. So in most states, you have a form of government with an extremely weak executive, with a very, very powerful legislature, and with a legislature that is very, very dependent on changing majority opinion. There's very frequent election in most of these states. And so you have legislative supremacy combined with very short legislative terms. Bottom line is it's a form of government that is extremely responsive, extremely reactive to every even modest change in public opinion. And so as public opinion kind of goes up and down and peaks and valleys, the policies of state governments tend to follow very, very. Exactly what does this result in? What are some of the consequences of a form of government in a state that's like that? Well, it allows state governments, and they did in many cases to enact some very imprudent laws, perhaps to overreact to immediate spikes in public opinion in ways that weren't very sensible really for the long term. A couple of examples, probably the main economic example would be the paper money laws that were enacted in many states. As I said, you have situation in a lot of the states where you have a lot of debtors and there's an economic depression. And so it's very, very common in these situations. If those debtors can get any control of the government, for them to enact policies that will provide them some relief, and they may get relief over the short term. But of course, basic laws of economics, these are often not very sensible policies. And so you've got a lot of very ill advised paper money schemes that are enacted. And what happens is in many of the economies of the states, they're quickly ruined. And this is kind of the result of the basic laws of economics. People try to print their way out of economic problems and they end up creating all kinds of worse consequences, including very, very high inflation. And so that's one of the things you have going on. It's not only bad economics, of course, but the other thing that the Framers are even more concerned with at this time is it's an injustice. Because what a lot of these paper money laws enable people to do is to pay off their debts in basically worthless currency. And so to use the power of government, the majority basically gets to use the power of government to vote its way out of debt. And that's certainly a violation of the natural property rights of the creditors. And so as much as the Framers are concerned with the bad situation in terms of economics, they're even more concerned with the injustice, right? Governments that do this, governments that allow the majority to vote itself some of the wealth of the minority. This is not a government that secures the equal natural rights of its citizens. And so you've got that going on. And you also have other kinds of problematic laws which we don't have much time to detail here, but things like the disenfranchisement of religious minorities, for example, that we saw in states like Pennsylvania. We had a unicameral legislature in the state of Pennsylvania and it disenfranchised Quakers. And so you've got a lot of, again, violation of the rights of the minority by the majority who possess power in these kinds of governments. Some of the most prominent framers of the American Constitution, some of the most important members of the founding generation, recognized these problems and wrote about them in the 1780s. And there's an increasing sense of alarm among the principal founders that there's something wrong here. And it's interesting that you see this concern not just among a sort of particular kind or particular subset of the Framers, but from some pretty diverse people. So people as diverse as James Madison, Thomas Jefferson and George Washington all have similar kinds of concerns that maybe the system of government here is not living up to the standards laid down in the Declaration. I want to talk first about James Madison. So James Madison was a very keen observer of the problems in the states that I've just been describing. And he's got an essay that he writes in 1787. It's just a few months before the Constitutional Convention. And it's an essay called Vices of the Political System of the United States. And I'm going to refer to it here. It's an essay that's in the Hillsdale Constitution Reader, and if you look at it, Madison lists 11 vices of government that apply to the way things are going there in the 1780s. And fully seven of those 11 vices apply to how state governments are run and the kinds of things that they're doing. And notice in the passage I'm going to read that his concern is twofold. He said, first of all, the laws that you're seeing from a lot of these states, their bad policy, in other words, they're having effects that are simply impractical. So kind of from a utilitarian point of view, they're hurting us, but even more so, they're unjust. What does he mean by they're unjust? When you see him talk like that, he means these laws are not fulfilling the purpose that government is supposed to fulfill, governments only consented to in order to secure the natural rights of citizens. So if you've got a system where those rights are being violated, you have an injustice. So let's turn to Madison from his essay on the vices of the Political system in the United States. This is an essay that, as I said, it's in your Constitution Reader, and I'm going to be reading from pages 200 and 201 of the Constitution Reader. And he these are his final three vices that he talks about. And he talks about the 9th vice, the multiplicity of the laws that you see from the states. That is to say, states are just passing a lot of laws. And why is this a problem? Well, you can't keep up. So as public opinion is changing, new majorities are getting put into these state legislatures, and they keep enacting laws. The 10th vice, this is a vice where he refers to the mutability of the laws. So not only do you have a lot of laws, but they're different. They're changing. People don't know what the standards are. And this makes perfect sense if you think about the nature of public opinion. So public opinion is fickle, and it goes through peaks and valleys. And so if you have frequent elections and legislatures are changing over all of the time, those laws are going to change as well, and you're going to really undermine stability. And finally, the final thing that he points out, the vice, is the injustice of these state laws. And he says in his essay that more alarming, not merely because it is a greater evil itself, because it brings more into question the fundamental principle of republican government, that the majority who rule in such governments are the safest guardians both of the public good and of private rights. And so what Madison is asking there is, if we keep seeing this kind of behavior from legislatures, if they keep enacting laws that hurt the minority for the benefit only of the majority, brings into the question, are the majority capable of ruling in a just way, if they keep passing laws that violate the rights of their fellow citizens? So Madison's essay there, I think, is very interesting and right on point. Let's move to Thomas Jefferson. Now, Thomas Jefferson is not by any stretch a Federalist. He is someone who by reputation, a deserved reputation, is far more comfortable with pure forms of democratic government. He seems to be often less concerned with the problem of tyranny, the majority. But even Jefferson recognizes exactly the same problem that Madison has identified. He has an experience which is very interesting. He has to serve as a governor in the state of Virginia. He's governor of the state of Virginia from 1779 to 1781. And that kind of sobers him up a little bit on the virtues of pure majority rule. Because one of the things that that experience teaches him is that pure majority rule isn't the answer. It's a natural reaction to having overthrown an overly powerful executive. But when you employ pure majority rule, you can have just as much injustice as you can under the government of a single person. Let's read from Jefferson's chapter on the Virginia Constitution. And this is in his book, the Notes on the State of Virginia. And again, this is in the Hillsdale Constitution Reader, and he has many criticisms of the Virginia Constitution. But the one I want to focus on is on pages 190 and 191 of the Constitution Reader, where he makes the following criticism of the Virginia Constitution. He says, quote, all the powers of government, legislative, executive and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. By the way, that's a passage Madison's then going to quote later in the Federalist Papers. He continues, it will be no alleviation that these powers will be exercised by a plurality of hands and not by a single one. 173 despots would surely be as oppressive as one. So that's the number of delegates in the Virginia legislature. That's not just a random number. He goes on to conclude, little will it avail us that they are chosen by ourselves. An elective despotism is not the government that we fought for. So what Jefferson is focusing on there is this kind of realization that simply replacing rule by one with rule by many, that's a necessity because you want people to be able to consent to the laws that they live under. But that doesn't guarantee that those laws are going to be just. It doesn't guarantee that you're going to get laws that are consistent with the natural rights of all citizens. So what's the lesson that they're drawing from this? The lesson is that consent is essential for just government. We know that from the declaration. Consent is essential, but it's not sufficient because people are perfectly capable of consenting to unjust laws. A plurality of people is just as capable of making an unjust law as a single person. As an obvious example of this, and this example I use all the time in the classes here at the college. Normally I'll get up in front of the class and I'll say something like, well, I'm going to be the king of this class. And I'll point to someone in the front row and say, I'm going to make a decree here because this is a monarchy, that this person's going to take us all out for steak dinners after class. And I'll ask the student how they feel about that. And they don't feel very good about it usually, but I'll say, well, this is a monarchy, and I get to decide, and so that's sorry, you lose. And then the students will complain, and I'll say, okay, let's make this a democracy. Let's make this a kind of majority rule system. And I'll put a vote to the class. Let's have a show of hands, how many here are in favor of this poor student taking us out for steak dinner after class? And of course, everyone will kind of catch on by this point. They'll all raise their hands. And it's kind of a silly way of demonstrating a very important point, which is that consent is not a guarantee that the rights of the minority are going to be protected. And that's the lesson that the framers are starting to draw in the 1780s. Gosh, we gotta form a government here. We got the consent part right. We successfully changed that. But we haven't got the secure natural rights for everybody part down yet.
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And so what happens is in the 1780s is a kind of sobriety about human nature. And one commentator has said that the period of the 1780s kind of takes us from a Republican enthusiasm to a Republican sobriety. That is to say, there's a recognition that human nature has got some good and some bad in it and that you have to account for both of these things. And I'll just give you one quick example of the recognition that takes place. And it's in a letter that comes from George Washington. This is the letter. There's a lot of interesting correspondence from Washington in the 1780s. I'm going to read you a letter. It's in the Constitution reader from Washington to John Jay, and it's in your reader on page 183. And they're talking about the problems that are going on, just like Madison and Jefferson have been talking about. This is Washington. He says. Your sentiments that our affairs are drawing rapidly to a crisis accord with my own. What the event will be is also beyond the reach of my foresight. We have errors to correct. We have probably had too good an opinion of human nature in forming our confederation. We've probably had too good an opinion of human nature. So unlike the American progressives who we're going to talk about later in the course, the framers of the Constitution were not utopians. They were not dreamers about human nature. And partly this is a result of this lesson that they're learning in the 1780s, that the 1780s taught them and even taught, you know, People like Jefferson that human nature is always going to be a mix of good and bad, of reason and passion. This is language, you see. You know, if you've read the Federalist Papers, you see those words all the time in the Federalist Papers. The good part of human nature justifies government by the consent of the governed. You got to have government by consent because you've got that higher part of human nature. But the bad part of human nature, the lower nature, the passions, teach the framers that there's a need for limits on government, that the rule of the majority simply has to be structured in the right way, has to be channeled in the right way. And so with respect to that structure, they're drawing two key lessons that are really going to inform how the Constitution looks. The first lesson they draw is a lesson about union. That there needs to be the state governments within a firmer structure of union in order for both of these high and low elements to be. To be handled properly. And second, there is a need for the structure to have the separation of powers and checks and balances. Think of the passage that we read from Jefferson. What's his complaint? There's not a separation of powers. All power results to the legislative body. So that point about union, that's what we're going to talk about in our remaining time here in this lecture. And then the point about separation of power is we're going to talk about largely in the subsequent lecture. So why is a union necessary, and why is a firmer union necessary than what we had under the Articles? Well, the first place to start in talking about this is to say something about the Articles. And we have to understand that the government under the Articles of Confederation, the national government, wasn't really a sovereign government. The government under the Articles is more like a kind of diplomatic entity. It's a coming together of other sovereign nations. Think about, say something today like the United nations, right? You have sovereign nations that come together. They may pass measures, they may come to agreements, they may come to resolutions, solutions, as they're called in the UN but it's up to each member country whether or not that country is going to abide by those measures. And that's a situation you have under the Articles of Confederation. You have a Congress, and the Congress can pass laws, but obedience to those laws, compliance with those laws, is entirely up to the will of the state governments. And so whether it's something like taxation or abiding by an agreement with a foreign nation, that's up to the individual states. And so you Have a Congress in the kind of dictionary definition sense. It's kind of a diplomatic arrangement. You have this arrangement. A firmer union is necessary. A union where the national government can actually have some real sovereignty. This is necessary if you want to secure the rights that the Declaration sets up as a standard for just government. Why were the Articles insufficient? In what ways was the government of the Articles not living up to these standards? And I think there are three basic ways that we see elaborated on in the Federalist Papers. First of all, government is supposed to protect your life, your liberty and your property from foreign threats. From those outside of the social compact who might want to come in and deprive you of those things. This is the most basic thing that government is supposed to do. Can the country defend itself from foreign attacks? And in the early Federalist Papers, the case is made that the government under the Articles cannot do that. In Federalist Number three, the founders argue that we're actually going to deserve to have a just war waged against us. Because under our government, we can't make the states abolish by the agreements that we're entering into. And so there are going to be other nations out there that are going to have just cause to come and make war against us. Because we don't even have a functioning central government that can make commitments on behalf of our country. And then in the fourth Federalist Paper, the point is made that even where just cause doesn't exist, we're going to be so weak and so infirm from the current form of government that nations are going to see us as a ripe target for attack, even if we don't deserve it. And so we're failing that. First basic obligation. The protection of the rights of the citizens from foreign powers. The second basic problem under the Articles Is that the government is failing to secure the basic conditions. Not just for the protection of property, but also providing the conditions where the acquisition of property, the building of prosperity can take place. Above all, this means we need to develop and cultivate the right kind of circumstances where commerce can thrive. We can't do that if we continue to be so weak and so infirm and so incompetent in our government. That we're just going to continue to be a dumping ground for European goods. They're taking advantage of us. And so if we form a firmer union, we can be stronger. And we can be an equal partner in commercial arrangements. And start to dictate some of the terms of commerce. And so we're not able to do that now. And That's a second difficulty and the third and final difficulty. And this is one that it's pretty clear the framers thought was the big one. We need to protect life, liberty and property from internal threats, from the threat of faction, of insurrection, of internal instability, of infighting, which of course had taken place in Europe in the centuries before and is very much on their mind. And the articles with the form of government that they had set up were not doing a very good job at mitigating that, that threat. So why do the framers think that this is going to be a problem, this internal fighting and instability? Again, the answer there is a basic lesson that they had come to learn about human nature. This is a lesson that I think can be seen in lots of places in the Federalist Papers, but is really best captured in Federalist Paper Number six. And so I want to take you through part of the argument of Number six, because it's where he connects these certain truths and lessons that he's learned about human nature to the need for union. And the question in Number six is basically the following. Why isn't a loose union of states sufficient? Why is there a need for a kind of federal referee? What reason is there to think that if these states are basically left only loosely connected, that they won't be just fine as neighbors? After all, while it's true there had been lots of warfare and infighting in Europe, these states are not monarchies, they're republics. They're not interested in the things that those monarchies in Europe were interested in. They're interested in good commercial relations. And so there's no reason to think that they will fight. And that's largely the argument or the assumption of the anti Federalist. And what you see in Federalist Number six is Publius, the author of the Federalist Papers. That's the name that Madison and Hamilton use for their work. Publius basically saying that's naive. That's a utopian vision of human nature. Let's turn to Federalist Number six. And the criticism that he makes is the following. He says if these states should either be wholly disunited or only united in partial confederacies, a man must be far gone in utopian speculations, right? You've got to be a dreamer. You've got to be kind of maybe smoking something funny. If you think that these states are just going to continue in mutual good relations, this person would be far gone who can seriously doubt that the subdivisions into which they might be thrown would have frequent and violent contests with each other to Presume a want of motives for such contests as an argument against their existence would be to forget that men are ambitious, vindictive and rapacious. There's that low part of human nature. Now, that's not the whole picture. It's important to bear that in mind. But we have to be realistic. To look for a continuation of harmony between a number of independent, unconnected sovereignty situated in the same neighborhood would be to disregard the uniform course of human events and to set at defiance the accumulated experience of ages. And he goes on to point this out in a lot of different ways in this Federalist paper. He says this is too visionary. He's really criticizing, especially the French part of the Enlightenment here, this assumption that, well, maybe back in those bad old days, human nature was partially corrupted and government needed to be limited. But now there's been all this progress, and now we know that human nature is enlightened. And so we can kind of take some of the checks on government away and just let things kind of roll from there. And this is a great point to remember that he's making, especially later in the course when we talk about the progressives. The Federalists are not progressives in this respect. They're not progressives with regard to the question of human nature. They're progressives in lots of ways. They think there's been lots of improvement to the. The science of government and lots of things we learned from experience. But with respect to human nature, that's a constant, and that's a critical point in understanding the Federalist. And the way he structures the argument in the Federalist shows this. He says, look, if you simply look to history. And he's going to cite examples as he goes through the paper. And examples deliberately that he cites are an ancient example paired with a more contemporary example. And the point is to show how human nature is consistent across centuries and even millennia. And so he says there are three basic causes of conflict that we've learned through human history. One are the basic social and general causes of conflict. And this is that element of man that loves power, that desires power, that gets jealous when others have power. That's a core part of our nature that hasn't changed. That's one reason. The second cause are causes that he calls particular causes. These are particular circumstances between countries that will always lead to conflict. For example, borders that are not well settled between the states in this young country. And it's true the causes of conflict here may not be the same as they were in Europe hundreds of years ago, but it's not like there aren't things to fight about. Some of the anti Federalists had said, well, we're just interested in good commerce. And Publius responds in this paper by saying, sure, because people never fight about money, right? That never happens in human history. And so this is, this is going to be a cause for conflict. And the final cause that he mentions are the private causes, just the particular likes and dislikes of individuals, the leaders of one republic who don't like the leaders of another. There can be some very petty reasons for human beings to fight with one another. And as Madison will say later in 51, which we'll talk about what is government but the greatest of all reflections on human nature? And so there's a recognition that human nature is going to lead to conflict. That's the bottom line. And so we need a structure that understands that, yes, we have to have consent to the governed, but that consent has to be structured through a firm union. That's a truth that the framers also carry with them with regard to the shape of the internal institutions. And that's going to be the topic that we're going to take up. We talk about separation of powers and checks and balances in the lecture to follow.
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