Civil Rights in the Republic

May 18, 2016 |  George Seaver

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Civil Rights in the Republic

May 18, 2016 | 

George Seaver

Introduction

The Constitution of the United States had a clear concept of what civil rights should be in the new republic, and importantly, it was part of the greater concept of how a republic can encompass an extended area, population and number of factions. This was considered by many to be impossible at the time, and later became “American Exceptionalism.” Succinctly, it was imperium in imperio, sovereignty within sovereignty, as reformulated by James Madison. Its basis in the writings of Montesquieu and Hume indicate a document well beyond a political compromise of the time. The striking realization is that the terms used by Madison and Hamilton are exactly appropriate today, and are used here for that reason. This provides the second theme of the essay: that the principles these words represent can only survive through the education of each generation, an education that rejects the historicism, relativism, and social justice of our present higher education system.

Madison’s starting point was how to deal with the singular failings of previous republics, the violence of factions, particularly as informed by the republics at Athens and Rome, and later, by Germany and the United Netherlands. Alexander Hamilton, John Adams, and James Madison all described in stark terms this central problem that they sought to redress. A system of civil rights for protecting the individual against the oppressive tendencies of factions, either directly or through enacted legislation, and without government intervention, was sought. Thus, the multiplicity and competition of factions over an extended republic under a proper constitution became Madison’s means of insuring these civil rights. It has now become apparent that this structure was corrupted by governmental inciting of factions beginning in 1965 and since amplified by higher education, thus leading to racial hostility, lawless behavior and violence: the loss of the common good. These are the very conditions that Hamilton, Adams and Madison had warned about in 1787. However, the concepts of our federal republic provides the means to respond to these disintegrate trends, and the loss of this institutional awareness is also education’s 30-year failure.

History of Factions in a Republic

Hamilton told us in a 1787 newspaper editorial on the proposed constitution (Federalist Paper No. 9):

It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid successions of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy, [] momentary rays of glory [...] dazzle us [...] at the same time admonish us to lament that the vices of government should pervert [] those bright talents and exalted endowments.1

John Adams in his research in 1787, published in “A Defence of the Constitutions of Government of the United States of America,”

We shall learn to prize the checks and balances of a free government, [...] if we recollect the miseries of Greece which arose from the ignorance of them [] The consequences were perpetual altercations of rebellion and tyranny, and butcheries of thousands upon every revolution [] The contagion spread through the whole extent of Greece: factions raged in every city.2

James Madison was sent the complete works of the Scottish Enlightenment author, David Hume, by Thomas Jefferson, then an Ambassador to France. He soon realized the singular threat that violent faction posed to a republic (Federalist Paper No. 10):

Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils have, in truth, been the mortal diseases under which popular governments have everywhere perished [underline added].3

The Framers were, by their own assessment practical men, not philosophers or scientists. So where did this enlightenment come from?

David Hume (1711-1776) was a political scientist, and, in fact, was the first to describe the science in political systems over time.  He began with the early republic of Athens, citing the role of faction in their imperfect record, “These people were extremely fond of liberty; but seem not to have understood it very well.”4 In 450 BC the “Thirty Tyrants” made use of arbitrary sentences and execution, and  “Every man was rejoiced at these punishments; not considering, that liberty was from that moment annihilated.”  In his collected works, “Essays: Moral, Political and Literary” (1777), the term “faction” appears from beginning to end, 1742 to 1776. In particular, he cites Plutarch (100 BC) as assigning “for a cause of the decay [...] factions of the several states” and Thucydides in his “attempts to describe the disorders, which arose from faction throughout all the Grecian commonwealths”:

In these contests those who were the dullest, and most stupid, and had the least foresight, commonly prevailed. For being conscious of this weakness, and dreading to be overreached by those of greater penetration, they went to work hastily [...] by the sword [...] and thereby got the start of their antagonists.5

Hume concludes, “What domestic confusion, jealousy, partiality, revenge, heart-burnings, must tear those cities, where factions were wrought up to such a degree of fury and despair.”6 There had been tranquil periods in Athens before it was conquered by Alexander of Macedonia, and Hume tells us that, “No blood was ever shed in any sedition at Rome, till the murder of the Gracchi (134 BC). However, “They made ample compensation [in] the civil wars [with] massacres, proscriptions, and forfeitures” that were to follow.6

Much later, Machiavelli in his 1523 Discourses, his most important work, was concerned with the unity of a republic and made the first coherent attempt at describing the effects of factions and their control. Book I, chapter 24 is entitled “Well organized republics establish rewards and penalties for their citizens, but never set off one against the other.” In it he continues “And a state that properly observes this principle will long enjoy its liberty; but if otherwise, it will speedily come to ruin.” In Book IX, chapter XLIX entitled “A republic that desires to maintain her liberties needs daily fresh precautions,” he described the immigration that was public policy in Rome, and the immigrants who then remained a separate faction. They then, through “elections [...] sensibly changed the government, and caused it to deviate from [...] institutions and principles.” Fabius, who was Censor at the time, caused their influence to be “confined to such narrow limits, they should not corrupt all of Rome. Fabius had well comprehended the evil, and promptly applied a suitable remedy; which was so well received by the republic that it earned him the surname of Maximus.”7

Factions in an Extended Republic

In 1748, Montesquieu in Spirit of the Laws, Book VIII, states “It is natural for a republic to have only a small territory; otherwise it cannot long subsist [...] In an extensive republic the public good is sacrificed to a thousand private views.” During the 1787 Constitutional Convention debate on the U.S Constitution, this statement was relied upon by the Anti-Federalists in opposing the constitution. It was partially rebutted for reasons of self-defense in Montesquieu’s own Book IX (and by Hamilton in FP 9) by introducing the concept of a confederate government. This resulted in the concept of city-sized republics held together loosely in an extended confederacy, where “If a single member should attempt to usurp the supreme power, […] that which would still remain free might [...] overpower him before he could be settled in his usurpation […], should a popular insurrection happen in one of the confederated states, the others are able to quell it.”8 It now remained for Hume and Madison to use this same reasoning, but in rationalizing a republic much larger than the city-republics envision by Montesquieu, that is, for the states of the United States. This would be the “medium between a severe, jealous Aristocracy, ruling over discontented subjects”; and a “turbulent, factious, tyrannical Democracy” that Hume had described.9

The central role of the control of faction in a stable republic, particularly in a greatly extended one, was thus recognized by Hume, Hamilton, Madison, and Adams. In approaching a constitution for the United States in 1787 the potential violence of faction was fully accepted by Madison and Adams, but so were their inherent nature and value, first by Hume and then by the Framers. Early in his career (ca. 1740) Hume had felt that [] the influence of faction is directly contrary to that of law. Factions subvert government, render laws impotent, and beget the fiercest animosities among men of the same nation.”10a However, later in his career (ca. 1752) Hume realized that “to exclude factions from a free government is very difficult, if not altogether impracticable” . . . or even “desirable.”10b It would be left to Madison to fully understand the nature and value of faction, and to incorporate that into a constitution.

In regards to an extended republic, Hume also rejected Montesquieu’s contention:

[…] the falsehood of common opinion, that no large state [] could ever be modeled into a commonwealth, but that such a form of government can only take place in a city or small territory. The contrary seems to be probable [] the parts are so distant and remote, that it is very difficult, either by intrigue, prejudice or passion, to hurry them into any measure against the public interest.11

This convinced the Framers and created the basis of the Federalist argument for the proposed U.S. Constitution.

Nature and Control of Factions

Hamilton and Madison further developed Hume’s ideas in their editorials in the campaign to pass the U.S. Constitution. These newspaper editorials of September 1787 to May 1, 1788 became Federalist Papers Numbers 9, 10, and 51.

Hamilton in Federalist 9 addressed the size of the republic, specifically:

I mean the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single state, or the consolidation of several smaller States into one great Confederacy… The utility of a Confederacy, as well to suppress faction and to guard the internal tranquility of States as to increase their external force and security, is in reality not a new idea [capitals in original].

Hamilton then goes on to quote Montesquieu on the advantages of a confederacy, mentioned previously, and concludes “with the more immediate design of this paper, which is to illustrate the tendency of the Union to repress domestic faction and insurrection.”12

Now we come to the core of Constitutionally-protected civil rights, and its Madisonian/Hume origins, both in terms of what it is and what the government should not do in its execution. That is the means to protect the individual and the common good from “factious spirit.” To do this we will quote extensively from Madison’s Federalist Papers number 10 and 51 and his private communications with Thomas Jefferson, as they are the bedrock of our Constitutional civil rights doctrine. On November 23, 1787 Madison published in the New York Journal what became Federalist 10; in it (and in FP 21) he describes specifically the problems the state governments were having prior to 1787, and the causes which led to the need for a constitutional convention:

Complaints are everywhere heard [] that our governments are too unstable, that the public good is disregarded in the conflict of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority [...] These must be chiefly, if not wholly, effects with which a factious spirit has tainted our public administration [...] adverse to [] the permanent and aggregate interests of the community. 13a

Earlier, in October, in a private letter to Thomas Jefferson, Madison explained at length the results coming out of the Constitutional Convention that had ended on September 17th. In it, he firstly stated “[...] it is impossible to consider the degree of concord which ultimately prevailed as less than a miracle.” In this letter he went into detail on the necessity “to secure individuals against encroachment on their rights [...] [from] the laws of the states” (bold added):

The injustice of them has been so frequent and so flagrant as to alarm the most steadfast friends of Republicanism. I am persuaded I do not err in saying that the evils issuing from these sources contributed more to that uneasiness that produced the Convention, and prepared the public for general reform [...] A reform therefore which does not make provisions for private rights, must be materially defective.13b

This practice that Madison deplored in the pre-Constitution states was resurrected by the federal government in 1965 under “Affirmative Action,” in spite of Constitution intent, as discussed in the next section.

Madison continued in his letter to Jefferson on the nature of faction and government’s responsibility to it. This is a profound observation, particularly for a political person:

As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government...From the influence of these on the sentiments and views of the respective proprietors ensues a division of the society into different interests and parties [emphasis added].13a

Madison then cites the many factions of his day, most prominently religion and the unequal distribution of property, whereas those of today, race, gender, immigration status, and sexual orientation, were not then considered.

As to Hume’s uncertainty whether it is “impracticable or even desirable” to exclude faction from government, Madison answers with this remarkably perceptive and concisely stated basic principle of civil rights in a republic:            

                         “The latent causes of faction are thus sown in the nature of man.”13a

The understanding of this basic attribute of mankind is essential for the survival of a large republic. It can only be sustained through generational education or its demise is tragic, as discussed in the next sections.

Factions, Civil Rights, and Government Intervention

We now come to the specifics of what the U.S. Constitutional method provides for controlling the effect of faction in the extended republic of the United States, without government interference. Madison describes the concept of civil rights with a “greater number of citizens and extent of territory” than was historically thought possible, detailed in Federalist 10, and concerning government interference (“a will in the community independent of the society”) in Federalist 51.

Extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.14a

In an extensive private letter to Thomas Jefferson (referenced above), Madison described his thoughts on this in greater detail:

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… [They] are distinguished rather by the extent within which they will operate, than by any material difference in their structure [...] and prove, in contradistinction to the concurrent opinions of theoretical writers, that this form of Government, in order to effect its purposes must operate not within a small but an extensive sphere.14b

The first discussion of this concept is found in Hume’s “Idea of a Perfect Commonwealth” (1752): “In a large government […] the parts are so distant and remote, that it is very difficult, either by intrigue, prejudice, or passion, to hurry them into any measures against the public interest.”15 This is very similar to what Madison would state 35 years later. The Constitution of the United States was not invented in 1787, but developed over time, as a “political science.”

How does this concept of civil rights work in regards to Madison’s “poisonous factions”?

The influence of factious leaders may kindle a flame within their particular states but will be unable to spread a general conflagration throughout other states. A religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it, in the same proportion as such a malady is more likely to taint a particular county or district than an entire state.

In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government.16                        

In summary, James Madison provided the definitive statement on the civil rights intended by the Constitution of the United States (Federalist Paper 51 of February 6, 1788):

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government.17

Just as we do not allow “affirmative action” for religious sects, for the same reason we should not do so for factions. The simplicity, coherence and elegance of Madison’s concept is effectively conveyed in Goya’s “Allegory on the Adoption of the Constitution of 1812”. The inspiration that this, as well as other liberal arts vehicles, provide are properly transmitted through the higher education system.

Civil Rights vs Government Intervention

We know from the history of republics previously cited that factions can become poisonous and violent. Madison in Federalist 10 formulates more specifically what Hume had alluded to in action:  “There are two methods of curing the mischiefs of faction: the one by removing its cause; the other by controlling its effects.”

It could never be more truly said than of the first remedy that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air because it imparts to fire its destructive agency.18

“Removing its cause” would be government restricting liberty; “controlling its effects” would be by providing an extended republic.

However, after 50 years of higher education rejecting these principles, the infringement of liberty is just what has happened throughout the United States. President Lyndon Johnson’s commencement speech at Howard University in 1965 marked the beginning of this in his “Affirmative Action” campaign:

Freedom is not enough [] All our citizens must have the ability to walk through the gates. This is the next and the more profound stage of the battle for civil rights [] We seek not just equality as a right and a theory but equality as a fact and equality as a result. Equal opportunity is essential, but not enough [emphasis added].19a

For example, today most university are in pursuit of this result, and allow a 150 to 240 point deficit in Scholastic Aptitude scores in the admission of specified racial factions.19b

In Federalist 51, following up on Federalist 10, Madison provided specifically the inappropriateness of having the government do what President Johnson commissioned it to do:

[This civil right’s] [...] method prevails in all governments possessing a hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major as the rightful interests of the minor party, and may possibly be turned against both parties.20a

The repudiation of Madisonian civil rights, which began in 1965, has continued and expanded to this day with tragic results to the common good, the essential starting point of a republic. This would have been prevented with traditional education. For example, the action by Governor Winthrop in 1635 that led to the stability of the Massachusetts Bay Colony (“Diverse free schools were erected, as at Boston and Roxbury […] [and] Cambridge […]”).20b

Civil Rights Corrupted by Poisonous Factions

Madison defines competing factions as “citizens [...] united by some [...] passion, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”3 The condition of many factions in the United States today is perilously beyond this. They are “poisoned” in the Madisonian sense, as he warned “[...] the violence of faction [...] the mortal diseases under which popular governments have everywhere perished.”3 The number of factions afforded by government “affirmative action” and a protected status has and is greatly expanding. Their demands have become increasingly aggressive, non-negotiable and irreconcilable. Black factions threaten and demand immunity; feminist factions demand laws specific to their feelings and are a powerful political/media force; North American Indians demand and receive increased sovereignty and land; Hispanic factions demand amnesty and receive sanctuary for illegal immigrants who then publically demonstrate; homosexual factions demand special protection and successfully attack individuals, religions and legislatures that oppose their demands; and Muslim factions demand Sharia law and are now joining this faction-protection movement. These are the very definitions of poisoned factions. Equally important, the media is amplifying these factions and, in the process, sabotaging the benefits cited by Hume and Madison that were provided by an extended republic—benefits intended to counter the poison of passionate factions. That “the parts are so distant and remote” is defeated by a media that has become itself a faction, a media that has instant communication across the entire extended republic (Hume, 1752, Madison, 1788).11, 16

In summary, reading today the descriptions by Hamilton and Madison (Federalist 9 and 10) of the consequences of poisoned factions in a republic is disturbingly like reading today’s newspaper headlines. The ultimate victim of the affirmative action is the common good and civil rights of today, the “permanent and aggregate interest of the community” (Madison), the “public virtue” (Cicero). The consequences, ultimately, are the loss of the republic and of all civil rights.

Is this of long standing, simply the historically-expected decline of the common good in a republic? An answer is found in the 1944 research by Gunnar Myrdal entitled An American Dilemma: The Negro Problem in America and in a 2010 online NAS essay by Seaver entitled “Virtus: from the Ancient Republics to the Postmodern.”21; 22 Myrdal found in 1944, to his surprise, that the American Negro was as engaged in American Exceptionalism as was the rest of the population.

The “Old Americans”, [] the Negroes, the new immigrants, the Jews, [] profess the identical ideals [] This spiritual convergence [] is what makes the nation great and what promises it a still greater future.21

Ralph Bunche, a principal author of An American Dilemma, a black American and an Ambassador to the United Nations, also was committed to the American ideal:

Every man in the street, white, black, red, or yellow, knows that this is “the land of the free,” the “land of opportunity,” the “cradle of liberty,” the “home of democracy,” that the American flag symbolizes the “equality of all men” and guarantees to us all “the protection of life, liberty and property,” freedom of speech, freedom of religion and racial tolerance.23

Finally, Frederick Douglas, Booker T. Washington, W.E.B. DuBois and Ralph Bunche disapproved of the term “African American.”25 Frederick Douglas in 1859 stated: “No one idea has given rise to more oppression and persecution toward the colored people of this country than that which makes Africa, not America, their home.”24 Today, in the United States it is clear that the racial animosity came after 1944, was relatively abrupt and may be recoverable. Also, the other factional demands, described above, were non-existent in 1944.

What Can Be Done

The way back from this precipice was likely outlined by Montesquieu (Book IX, Ch. 1), which Hamilton quoted verbatim in Federalist 9:

Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty.25

In the United States of today, “those that remain sound” might be the growing independent media, such as the National Association of Scholars, and the re-establishment of the rule-of-law might come when some of “the confederates preserve their sovereignty.” It is Imperium in Imperio again, sovereignty within sovereignty, where the states retain partial sovereignty as discussed at length by Bernard Bailyn in 1992, and, in fact, four state legislatures have recently invoked that sovereignty.26 There is competition not only among factions, but also among states. Of particular relevance here is that this confirms the exceptionalism of the U.S. Constitution, that is, that Hume and Montesquieu’s Spirit of the Laws were its conceptual origins. Montesquieu wrote in 1752, 24 years before U.S. independence and 35 years before the U.S. Constitution. The applicability of its doctrine today is evidence that the Constitution is based upon political science, as Hume would define it, and not local, political compromise and self-interest, as others have suggested. The genius of the federal republic, then, is that it provides a remedy for Madison’s “mortal diseases” that this republic is now experiencing, short of having to “cross the Rubicon.” The failure to understand these concepts rests with higher education over the last 30 years.

Conclusion

It is routine today to hear as a preface to comments on civil rights the disclaimer, “we know that racism still exists,” as an apology against a charge of being thought racist. It is true in the sense that there is an “ism” applicable to all factions: The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of society.13a Practiced within Constitutional rules and without governmental interference, this can be, in fact, American Exceptionalism, as it had been for the first 188 years of the Republic. The Republic became greater than the sum of its factions, and this subtle relationship could only be conveyed through higher education. Rejecting it is at our peril in this “diverse” culture, as Hamilton, Adams, and Madison foretold.

 

References

1. Hamilton, A. , 1787: The Federalist Papers No, 9, Ed. Isaac Kramnick. Penguin Books, 1987. Pg. 118.

2. Adams, J., 1787: Defence of the Constitutions of Government of the United States of America. C. Dilly, London. Da Capo Press, NY. 1971. Pg. iv, v.

3. Madison, J., 1787: ibid., No. 10. Pg. 122.

4. Hume, D., 1752: Essays: Moral, Political and Literary. Ed. E. Miller. Liberty Fund, Indianapolis. Pg. 408.

5. Ibid., pg. 409.

6. Ibid., pg. 413.

7. Machiavelli, 1513: The Discourses.. The Modern Library, NY. 1940. Pg. 540.

8. Montesquieu, 1752: The Spirit of the Laws. Encyclopedia Britannica, London. Book IX, Ch. 1, pg. 59.

9. Hume, ibid., pg. 416.

10a. Ibid., (“Of Parties”), pg. 55

10b. ibid., (Populousness of Ancient Nations) pg. 407.

11. Ibid., pg. 527, 528.

12. Hamilton, ibid., pg. 119, 121.

13a. Madison, ibid., pg. 123, 124.

13b. Madison, 1787: Letter to Thomas Jefferson. October 24, 1787. Founders Online.    

       <founders.archives.gov>

14a. Ibid., FP No. 10, pg. 127.

14b. Madison, 1787: Letter to Thomas Jefferson. October 24, 1787. Founders Online.

       <founders.archives.gov>

15. Hume, ibid., pg. 528.

16Madison, ibid., No. 10, pg. 128.

17. Ibid., FP No. 51, pg. 321.

18. Ibid., FP No 10, pg. 123.

19a. Johnson, L., 1965: Shifted Civil Rights Focus to Equality of Results.  

    <www.ontheissues.org/Celerb/lyndon Johnson.

19b. Center for Equal Opportunity, 2006 to 2011: Racial and Ethnic Preferences at

      Universities: Report on Naval and Military Academies, 2006; Univ. of Michigan, 2006;

      MU and OSU, 2011; Univ. of Wisconsin, 2011. <ceo.org>.                                               

20a. Madison, J., ibid., FP No. 51. Pp. 321.

20b. Seaver, G., 2015: Civic Education: a Republic is But One Generation Old. National      

       Association of Scholars, Feb. 25, 2015. http://www.nas.org.

21. Myrdal, G., 1944: An American Dilemma: The Negro Problem and Modern Democracy. Pantheon Books. Pg. 13.

22. Seaver, G., 2010: Virtus: from the Ancient Republics to the Postmodern. National Association of Scholars, Feb. 26, 2010. http://www.nas.org.

23. Myrdal, ibid., pg. 4.

24. Schlesinger, A., 1992: The Dis-Uniting of America. W.W. Norton, NY. Pgs. 25, 82, 26.

25. Montesquieu, ibid., pg. 59.

26. Bailyn, B., 1992: The Ideological Origins of the American Revolution. Harvard University Press, Cambridge, MA. Pg. 223-229. 

 

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