The Federalist Papers 10

But the issue was more general than that. Complexity and adver¬sarial institutions were instances of something broader. Tension— networks of tensions—was the fundamental necessity for free states. The whole of the Constitution, The Federalist made clear, was a great web of tensions, a system poised in tense equilibrium like the physi¬cal systems Newtonian mechanics had revealed. Administration within and among departments of free governments, Madison wrote, will have both the “means and the personal motives to resist encroachments of the others… Ambition must be made to coun¬teract ambition.” The organized competition of “opposite and rival interests” that is built into the Constitution, he believed, reflects “the whole system of human affairs, private as well as public.” Pressures exerted at one point would activate rebalancing responses elsewhere; and it was in this mechanism of tense equilibria that Madison placed his hopes of protecting minorities from the impact of majoritarian rule.
If for Hamilton the main problem was to convince a reluctant people that creating a centralized power complete with an army, commercial regulation, and taxation was both necessary and safe, for Madison the principal and much subtler problem was how to protect minority groups and individuals from the domination of majorities in control of a powerful, freely elected government. On the face of it, the problem was unsolvable: both legislative majoritar- ianism and private rights were ultimate values in free societies, and surely they contradicted each other. How could they coexist? One or the other would have to prevail: a choice was inescapable. But Madi¬son refused to choose between them, and struggled to resolve the dilemma.
He had learned how difficult and yet how urgent the problem was as he had observed the evil effects of legislative majorities within some of the states over the previous five years. Again and again minority property rights had been overwhelmed by populist majori¬ties. And he had good reason to anticipate that the same injustice would happen to other minorities—religious groups, whose plight he had seen at close hand in the recent struggle in Virginia to enact Jef¬ferson’s Act for Establishing Religious Freedom, and political dissi¬dents. He took some comfort from the section of Article I that prohibited the states from impairing the obligation of contract and from issuing their own bills of credit and tender laws. And there were implicit reinforcements in the clauses that guaranteed to the states protection against violence that would threaten their republican integrity and bound the judges in every state to enforce the Constitu¬tion, the laws of Congress, and the treaties entered into by the United States. He believed too that the complicated amendment process would help block the domination of one or another passion¬ate and well-organized group, and he expected the Senate to con¬strain the powers of majorities in the House.
But these institutional arrangements, he feared, would not be enough to protect minorities within the states. He had pondered the issue deeply, and by the time the Philadelphia convention met he had reached a conclusion, which he explained to Jefferson in the massive letter that became the basis for Federalist No. 10.
He was convinced, he wrote Jefferson in what he called an “immoderate digression,” that the only true protection for minority rights threatened by majorities in the state assemblies was a veto by the federal Congress on legislation passed in the states—a “constitu¬tional negative” that he believed would tend to be impartial because of the moderating effect of diversity at the national level. In the Philadelphia convention, he explained, he had argued that a con¬gressional veto over state legislation was necessary “to secure individ¬uals against encroachments on their rights.” But to his great regret that effort had been defeated, and with that defeat had gone his hope for enforcing justice at the state level. But, one might ask—and he asked himself this—-would not the federal judiciary “supply the place of a [congressional] negative on [the states’] laws”? Possibly, he wrote; but “it is more convenient to prevent the passage of a law than to declare it void after it passed,” and in any case, would injured individuals within the states be in a position to carry suits against states up to the Supreme Court? And if they did, and if they won, would it not take the use of force by the federal government to impose a judicial ruling against an offending state? And was that not precisely what the Constitution had sought to avoid?

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