James Madison and the Future of Limited Government is a collection of essays from scholars put out by The Cato Institute and edited by John Samples.
2. Recapturing Madison’s Constitution: Federalism without the Blank Check, by Alex Kozinski and Steven A. Engel
On the general welfare clause of the Constitution:
The Constitution’s critics feared that the clause granted Congress the power not simply to spend money but to adopt any measure that would in effect provide for the general welfare. Not so, Madison wrote in The Federalist. That clause refers only to the purposes for which Congress may raise money. It does not authorize Congress to spend money for any purpose whatsoever. The General Welfare Clause precedes Congress’s other enumerated powers and, as Madison wrote, “Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.” In short, it would make no sense to list a series of particular purposes, which would all be rendered unnecessary by an all-encompassing general phrase. Thus, the General Welfare Clause does not permit spending for all purposes. The clause permits spending only in the exercise of those powers enumerated in Article 1, section 8, of the Constitution. [p. 19]
Note that this is not the current interpretation.
3. Madison’s Constitutional Vision: The Legacy of Enumerated Powers, by Roger Pilon
Thus, the doctrine of enumerated powers speaks explicitly to powers, only implicitly to rights, which helps to explain why it so foreign to the modern ear. Madison understood that if you want to protect rights from government abuse, you would be wise not to give government the power in the first place that can then be used to abuse rights. That is a lesson we have forgotten. As we have asked government to do more and more for us, we have forgotten that a government big enough to give us everything we want will be powerful enough to take everything we have. [p. 31]
By corollary does a government that is big enough to protect our rights also have to have the power to take them away? This was, of course, the problem that the framers were trying to solve and it seems to me that they thought it was necessarily so (and we have seen this in history.) Their solution seems to have been an attempt to articulate the proper role of government so that the people would understand that another type of government would be unjust and that they have the power and authority to remove said government and revivify a just government.
That lesson, that the government is for people, rather than the reverse, seems to be what has been forgotten by many in modern times. The answer, I think, cannot be propaganda about the horrors of government or a hostile take-over of government, but a genuine transmission of understanding so that people believe and accept these principles. At that time they will fight for them, but you cannot force freedom.
6. Madison and Multiculturalism: Group Representation, Group Rights, and Constitutionalism, by Tom G. Palmer
On group specific rights and exemption from certain laws for certain groups:
Kymlicka believes that sets of group-differentiated rights pose no danger to social or political unity, since in the cases he considers the groups seek inclusion or integration: “Enabling integration may require some modification of the institutions of the dominant culture in the form of group-specific polyethnic rights, such as the right of Jews and Muslims to exemptions from Sunday closing legislation, or the right of Sikhs to exemptions to motorcycle helmet laws. These examples could also be accommodated by a reformulation of the rule so that it would apply to all. Rather than propose exemptions, which means that some persons are empowered to decide who will be punished for infractions and who will not be punished, why not simply propose the abolition of compulsory shop closing laws and the elimination of compulsory helmet laws? It seems never to occur to Kymlicka that the state might have no business interfering in personal choice or voluntary transactions in this manner. If such foolish and paternalistic restrictions were removed for all, the no one would feel the exclusion that so concerns Kymlicka. [p. 96]
Supposing that such group-differentiated “rights” did exist, Palmer says that they would not truly be rights:
[Exemptions] may be “granted” by the state, but they should always be understood to be gifts or dispensations made by those with the power and the right to grant or to deny them. They are not rights. [p. 100]
(A similar argument can be made about patents and copyrights and was made in Government and Microsoft: A Libertarian View on Monopolies, by François-René Rideau. Also note that Tom Palmer himself has written about intellectual property issues, seeAre Patents and Copyrights Morally Justified?: The Philosophy of Property Rights and Ideal Objects, although I have not read this so I cannot comment.)
Palmer explains one “right” that may be the initial wedge to create group–restricted rights: voting.
But Kymlicka does have a thing wedge to open the door to group-differentiated rights: even if borders were open to trade and travel, one legal right at least would not be open to any and all who desired it. One right that should be reserved for citizens is the right to vote. That is an important limitation on the scope of a legal right, but voting is hardly a natural right like the right to own property or the right to choose one’s profession; it is a procedural right that is useful as a means of protecting our fundamental rights, such as the right to freedom or religion or the right to choose one’s profession or spouse. And it is a very, very, very thin wedge to use to create a general theory of group-restricted rights. [p. 100]
I read this after writing my article on democracy and natural rights, but after reading I like his term “procedural right” very much. At this point, I want to step out of this essay and include a reply to Richard connecting my article to Karl of La Grange‘s article.
Richard writes that my definition is not optimal because I do not distinguish between government and country, or taxpayer, citizen, and resident.
He [meaning me] defines democracy as “A regular [say] in the government that you are citizen of.” The difficulty with that definition is that people are not citizens of a government, but rather citizens of a country (or possibly more than one country, since some countries’ governments think it’s possible to be loyal to more than one country). Those of voting age—but even those who are not, since many non-voters also pay taxes, and many voters don’t, legally and otherwise, meaning by definition, voters usually outnumber taxpayers—comprise the government.
I agree with Richard that this is an important distinction. However, I did not mention it because I was referring to an idealized definition of democracy not one of any particular government. By this, I mean to suggest that I don’t think non-taxpayers should be considered citizens, i.e. voters. Note, this does mean a citizen taxpayer can violate the natural rights of a non-citizen (an immigrant or non-taxpayer) because the role of government is to protect natural rights within its borders, not within its borders for its citizens.
When my French is a bit better I plan on reading Karl’s article on the connection of the market and democracy. I anticipate referring to a particular section of In Defense of Global Capitalism, by Johan Norberg.
7. Indians in Madison’s Constitutional Order, by Jacob T. Levy
Jacob Levy mentions the way General Andrew Jackson ignored the civilian government and rode into power in Washington, something I have not yet read about.
Andrew Jackson took over some land after the War of 1812 and James Madison worked to get the land back to the Cherokees from whom it was taken and who had fought on the side of the Americans, against the Creek Indians.
Madison seems to have been entirely unprepared for the political maneuvering that followed. Jackson led fierce resistance to the new treaties and against the payment for damages. He encouraged settlers to occupy the disputed territory, creating what in the Middle East today are referred to as new “facts on the ground.” [...]
Jackson’s freelance policymaking as a general was to continue, most spectacularly with his unilateral invasion and annexation of Spanish Florida. Jackson’s career as a general may have been the most important failure of civilian control of the military in U.S. history. Douglas MacArthur ultimately lost in his standoff with the Truman administration and, despite widespread speculation, did not reach elected office himself. Neither Madison nor Monroe ever publicly stood up to Jackson or stopped his string of successes, which paved the way for him to take the White House, with disastrous consequences for the Cherokee. [p. 128]
8. James Madison on Religion and Politics, by Walter Berns
This essay talks mainly about religion and politics obviously, but I found something mentioned on the first page to be most interesting:
Everyone who ought to know does know that James Madison is often described as the father of the Constitution. They ought also to know that he rightly deserves to be known as the father of the Bill of Rights, for, although he thought them unnecessary, it was he who succeeded in getting a reluctant First Congress to propose the 10 amendments that we know as the Bill of Rights.
The first (or what emerged as the first) of these amendments provides, in part, that [...]. Less well known, although part of the public record, is that Madison proposed another amendment that, had it been adopted, would have imposed similar restrictions on the states. [...] Madison called it “the most valuable amendment on the whole list,” most valuable almost surely because anticipated that what we have come to see as our most fundamental rights would more likely be abridged by the states than by the national government. [p. 135]
This site talks about other failed amendments but with a more recent character. This site has the original text. Notice that the amendment mentioned is not included, this must mean that Madison proposed the addition to the Bill of Rights, but that it was not added–not that it was not ratified by the states.
10. Madison and the Revival of Pure Democracy, by John Samples
This essay is interesting but hard to quote. It deals with whether direct democracy is harmful or not to liberty. It deals with statistics and and with some theorizing about the role of minorities in manipulation of the government. Something that my article (mentioned above) also talks about.
11. The Rule of Law and Freedom in Emerging Democracies: A Madisonian Perspective, by James A. Dorn
Contains a great quote from a Russian…
Russia’s slow progress should not be surprising; it takes time to change one’s thinking after so many years under totalitarian rule. As Alexander Tsypko, a professor of philosophy at Moscow State University, wrote just prior to the collapse of the Soviet Union, “It is hard–very hard–to admit that your life and your work are being senselessly wasted and that you are living in an unnatural, false society, headed with your country for the dead of history.” He recognized that half measures would not solved the problems of communism:
There is no third way between modern civilization and socialism as it is. The market cannot be combined with a government monopoly on the organization of labor or with public ownership of means of production. A return to the market is impossible … without broad-based privatization. It is impossible to have the rule of law without a multiparty system, without renouncing the communist monopoly on power. It is impossible to adopt moral values and to earn the right to return to civilization, to the European home, without rejecting the idea … of forcible transformation of society.
Madison could not have said it better. When force rather than consent is the governing principle of society, justice and civility lose ground and individuals become pawns of the state. The longer totalitarian regimes remain in power, the more corrupt they become and the longer it will take to restore or to create the principles of a liberal constitutional order. [p. 201-203]