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Tuesday, October 01, 2013

Oppression Is More Efficient At The State Level

It was posited to me today that most things--save, national defense, naturally--ought to be left to state and local government.  Easy to say when you're a white guy, perhaps, but let's ask those certain persons oppressed under state regimes like Jim Crow and slavery, let alone Americans who lived under the Articles of Confederation.

In light of that, I found an exchange between James Madison and Thomas Jefferson to be interesting.  First, Madison writing a little more than a month after our Consitution was proposed by the Philadelphia Convention:

It may be asked how private rights will be more secure under the Guardianship of the General Government than under the State Governments, since they are both founded on the republican principle which refers the ultimate decision to the will of the majority, and are distinguished rather by the extent within which they will operate, than by any material difference in their structure. A full discussion of this question would, if I mistake not, unfold the true principles of Republican Government...

Those who contend for a simple Democracy, or a pure republic, actuated by the sense of the majority, and operating within narrow limits, assume or suppose a case which is altogether fictitious. They found their reasoning on the idea, that the people composing the Society, enjoy not only an equality of political rights; but that they have all precisely the same interests, and the same feelings in every respect.

Were this in reality the case, their reasoning would be conclusive. The interest of the majority would be that of the minority also; the decisions could only turn on mere opinion concerning the good of the whole, of which the major voice would be the safest criterion; and within a small sphere, this voice could be most easily collected, and the public affairs most accurately managed.

We know however that no Society ever did or can consist of so homogeneous a mass of Citizens...In all civilized Societies, distinctions are various and unavoidable. A distinction of property results from that very protection which a free Government gives to unequal faculties of acquiring it.
In the extended Republic of the United States, The General Government would hold a pretty even balance between the parties of particular States, and be at the same time sufficiently restrained by its dependence on the community, from betraying its general interests.

Jefferson a couple months later:

I like much the general idea of framing a government which should go on of itself peaceably, without needing continual recurrence to the state legislatures. I like the organization of the government into Legislative, Judiciary & Executive. I like the power given the Legislature to levy taxes, and for that reason solely approve of the greater house being chosen by the people directly... I am captivated by the compromise of the opposite claims of the great & little states, of the latter to equal, and the former to proportional influence. I am much pleased too with the substitution of the method of voting by persons, instead of that of voting by states...

There are other good things of less moment. I will now add what I do not like. First the omission of a bill of rights providing clearly & without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal & unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land & not by the law of nations. 
[I]t is my principle that the will of the majority should always prevail. If they approve the proposed Convention in all it's parts, I shall concur in it chearfully, in hopes that they will amend it whenever they shall find it work wrong. 

Madison again, a month after the Confederation Congress responded to ratification by setting the date for the new government to convene:

Wherever the real power in a government lies, there is the danger of oppression. 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. This is a truth of great importance, but not yet sufficiently attended to.
Altho' it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter sources; and on such, a bill of rights will be a good ground for an appeal to the sense of the community.

Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers, may by gradual & well-timed advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard agst. it, especially when the precaution can do no injury. At the same time I must own that I see no tendency in our governments to danger on that side...

It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power, and that the line which divides these extremes should be so inaccurately defined by experience. 

A few months later, Jefferson responded to Madison's various points, and noted:

I am much pleased with the prospect that a declaration of rights will be added; and hope it will be done in that way which will not endanger the whole frame of the government, or any essential part of it.

What I liked about these letters is that both men had different ideas about government: Jefferson preferred more direct, localized democracy, Madison feared a tyranny of the majority without the bulwark of a larger republic; Madison didn't think we really needed a Bill of Rights, but also that it couldn't hurt, while Jefferson wanted a Bill, but not at the expense of working governance.

It was such tension between ideas--and men--that gave rise to our current framework and precedent.  Conflict is inevitable, but reasonable people can disagree and somehow constructively work on compromise without burning everything down.

And since that time we've seen both visions expand and complement each other.  Greater democratization has been the trend for two centuries whilst retaining a republican form of government to protect civil rights.  We're seeing some steps backward on all those scores at the moment, but one hopes the progression can resume in the wake of extremist tactics currently on display.


October 1, 2013 in Constitution, Schmonstitution | Permalink


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protection against standing armies,

I'm no expert on Constitutional history, but I'm guessing this was the guiding sentiment behind the first clause of the 2nd Amendment, a clause that has been rendered so contentious (and now moot) by changing standards of English syntax, as much as anything.

'Course, we did away with the "protection against standing armies" first, so maybe that misinterpretation is more the rest of the Amendment falling over anyway, just in the wrong direction.

Posted by: Rmj | Oct 1, 2013 1:37:45 PM

The primary concern does appear to be about mitigating the need for a standing army, which would be the best protection against one. But since the 2 year appropriations requirement never seems to faze anybody in Congress these days, guess we kinda let that go by the wayside...

Posted by: NTodd Pritsky | Oct 2, 2013 5:00:46 AM

Yes, lower tyranny is the MOST effective.

Just ask anyone that is in a HOA.

Posted by: Snarki, child of Loki | Oct 2, 2013 7:19:12 AM

You can't fight City Hall. Or your neighbors.

Posted by: NTodd Pritsky | Oct 2, 2013 7:30:59 AM

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