Maryland Bar Bulletin
Publications : Bar Bulletin : March 2012

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James had a problem. He had spent months poring over trunkloads of books, sent from France, trying to understand why earlier democracies had failed. He looked as well at some governmental structures that were not actually democratic but had some components that might be useful in developing a constitution for a new nation. He read carefully the writings of what we have come to call the Enlightenment. He had to answer Montesquieu’s assertion that democracies could only succeed on a small scale and nothing like the vast and expanding colonies that confronted him.

Madison, not unlike many of those who attended the Constitutional Convention, was a member of a wealthy minority and he knew that the fundamental problem with Democracy was that it could be – well – too democratic! In contemporary terms, he would be a one-percenter.

Already, the individual colonies were busily printing paper money that was not helping the wealthy landed class and there was also this slavery thing that benefited a distinct minority of the potential voting pool of the colonies even as restricted as it was likely to be.

For us as lawyers, the debate over the Constitution is not ancient history, although as Madison demonstrated there is much to be learned even from “ancient history”. The issues confronting that remarkable group in Philadelphia as expounded by both Federalists and Anti-Federalists (even these early political types recognized the value of “tagging” ideas with negative wordsmithing as this group certainly did not want to be referred to as “anti-federalists”) have been and continue to be an idealogic push-me, pull-me in our nation.

Proving that the anti-federalists could also read Montesquieu, “Brutus” (probably Supreme Court Justice-to-be Robert Yates) pointed out the problem to “Publius” that size mattered. James Madison’s response in “Federalist 10” is a legal masterpiece wherein he describes how the desires and machinations of the various minority factions will offset one another and result in the common good.

Which brings us back to the original problem where the majority can be a faction that oppresses a minority, and here he turns the tables on Brutus and Montesquieu by averring that by being larger with so many complex and competing factions there would be less of a likelihood of the formation of a majority faction.

But Madison knew he had not solved the majority faction problem, so he spent a number of other Federalist papers explaining the system of checks and balances in the three branches of a representative government. A pure democracy, he was convinced, would never work and had never worked because of the faction problem. There was always that “tall poppy” problem in the ancient Greek democracies.

In our modern society, it is actually quite within our reach given our present communication capabilities to have virtually everybody vote on everything. Publius pointed out that this would be burdensome and inconvenient so that most citizens would ultimately not want to do it. But what if we really wanted to simply have, as has been bandied about, a direct, one-person-one-vote with no Electoral College election of the President – see any regional faction problems there?

Certainly the proposition system of California should give one pause, but let’s consider something a bit closer to home a minute.

Is the use of the referendum in Maryland a salutary Jacksonian Democratic affirmation of the “common man”, or is it a vehicle whereby a majoritarian faction can harm minorities all decked out in the duds of Democracy?

I think that there is, by reason of the care of our founders in constructing it, a great deal of anti-faction, particularly anti-majority faction protection built in to our representative form of government, which is bypassed in a referendum.

We will have a referendum on the partial funding for the education of the children of a minority who pay taxes but cannot vote, and  there is work on a referendum on same sex marriage, again involving a minority.

Remember the recommendation by some in the fight over slavery in the westward expansion states to let the people of each state vote on whether or not each would be a slave state?  Some people recognized that proposed policy for what it was.

So here we are, a couple of hundred years later, still facing James’ quandary. There is no simple answer, but unless we understand Madison’s analysis of why the ancient democracies failed, we may be crossing the line from a form of republican democracy that, all things being equal, has kept majoritarian factionalism at bay, into a graveyard of minority oppression that may not be salvageable by our court system.

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Publications : Bar Bulletin : March 2012

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