Chapter Eleven
Property alone might have paved the way to the independence of the thirteen United States of America in 1776. Self-evidently, as virtually every American patriot sensed, a free individual enjoyed three natural rights, to life, to liberty, and to the acquisition of property. All three came from the same centuries-old root-stock of English common law. Furthermore, almost two centuries of Puritan theology, backed by close to a century of Lockean philosophy, confirmed that they were innate and unalienable. Yet on the first Fourth of July, a new attribute of liberty, “the pursuit of happiness,” was at the last moment grafted on to the existing root. Consequently, the republic came into being endowed with a quite exceptional commitment not to one, but two traditions of freedom, neither, as it turned out, wholly compatible with the other.
The formula that “the people of America . . . are entitled to life, liberty and property” appeared in the First Continental Congress’s declaration of rights in 1774. Had it been incorporated into the United States’s Declaration of Independence, it would not have weakened the new republic’s argument that the assertion of these rights justified rebellion against an oppressive power. In the years that led from resistance to revolution, it had become normal to equate the defense of liberty with the defense of property.
Protesting the imposition of taxes in 1765 by a London parliament where Americans were not represented, the sickly, brilliant pamphleteer James Otis described the attempt as an attack on property and declared, “in a state of nature no man can take my property from me without my consent: if he does, he deprives me of my liberty and makes me a slave.” And his argument was echoed in Samuel Adams’s rhetorical question, “Now what liberty can there be where property is taken away without consent?” Their case was implicitly endorsed by William Blackstone’s magisterial Commentaries on the Laws of England. Natural rights gave rise to “civil immunities,” wrote Blackstone, one of which protected the individual from being “constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his representatives in parliament.”
But the power of the property argument was more than legal, or even constitutional. Economically, the unfettered possession of land had unleashed an acceleration of wealth in the American colonies that brought to the surface tensions that made imperial control intolerable. A boom in land prices in the colonies transformed American society in the generation that grew up after 1740. It was driven by a rapid rise in population that Benjamin Franklin predicted provocatively would see the population of the American colonies double from just over one million in 1750 to 2.6 million by 1775, and that soon afterward, “the greatest number of Englishmen will be on this side of the water.”
Attracted by the prospect of owning land outright, almost one hundred thousand immigrants from Ulster and Germany, augmented by 180,000 free individuals from Britain, together with sixty thousand indentured servants and criminals, came to America. But natural increase accounted for much of the growth, especially in New England, where large families—six to eight surviving children were common—pushed a population of twenty thousand inhabitants in the mid-seventeenth century to more than four hundred thousand by the 1750s.
Most of New England’s immigrants moved southward through Dutch-owned New York to the more open markets of Pennsylvania, Maryland, and the southern colonies. The growing demand sparked the creation of more than a dozen land companies in the eighteenth century to exploit unoccupied land east of the Appalachians. The Connecticut Land Company claimed land on the New York–Pennsylvania border, and young George Washington was prominent among investors in the Dismal Swamp Company that intended to drain and reclaim nine hundred square miles of waterlogged land in southern Virginia. But as the main body of settlement moved from the coastline into the foothills of the Appalachians, the first scouts were exploring the fertile ground beyond the mountains. “Their vallies are of the richest soil, equal to manure itself, impossible in appearance ever to wear out,” a South Carolina surveyor, John William de Brahm, reported in 1756 after traveling through what is now eastern Tennessee. “Should this country once come into the hands of the Europeans, they may with propriety call it the American Canaan, for it will fully answer their industry and all methods of European culture, and do as well for European produce.” To would-be land speculators, the lure was irresistible.
Until 1763, however, they faced one insuperable obstacle. European maps showed the territory up to the Mississippi River to be French, although in reality it was occupied and owned by Creek, Choctaw, and Cherokee nations. But with the defeat of France in the Seven Years War, the maps changed to show the rich soil to be British. In the same year, the first combined campaign of resistance by Native Americans against the incomers, led by the Ojibwe chief, Pontiac, persuaded the government in London to issue a proclamation in King George III’s name forbidding colonial governors “to grant Warrants of Survey, or pass Patents for any Lands” beyond the Appalachians, so that “the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed.”
Since all of British America was technically held under feudal possession—the usual phrase employed in the colonial charters was that the king granted the land “in free and common soccage” to the proprietors—his legal power to prevent further occupation could not be questioned. The proclamation still has that force in the Canadian government’s dealings today with the First Nations of Canada. But the response of American land speculators was typified by Washington’s comment to his land-hunting associate, William Crawford, in 1767: “I can never look upon the Proclamation in any other light (but this I say between ourselves) than as a temporary expedient to quiet the minds of the Indians. It must fall, of course, in a few years.”
His cool appraisal was well founded. With barely a pause, both individuals like Crawford and Washington and surveyors from a dozen land companies went back to work far to the west of the mountains. Astonishingly, the largest of them, the Vandalia Land Company, was backed by some of the most powerful figures in British politics, including the prime minister, Lord North. What the surveyors found beyond the Appalachians confirmed the discoveries of Thomas Hutchins, the most authoritative geographer of the region. On a celebrated map of modern Ohio, Kentucky, and Tennessee, published in 1778 but known long before, he had written lyrical descriptions, “A rich and level country,” “Very large natural meadows; innumerable herds of Buffaloe, Elk, Deer, etc feed here,” and along the Wabash River, “Here the country is level, rich and well timber’d and abounds in very extensive meadows and savannnahs . . . It yields Rye, Hemp, Pea Vine, Wild Indigo, Red & White clover etc.”
In 1775, the Transylvania Land Company employed Daniel Boone to survey and acquire land in Kentucky, and the company’s chief promoter, Judge Richard Henderson of North Carolina, put into words the aspiration that drove every land speculator into the western territory. “The country might invite a prince from his palace merely for the pleasure of contemplating its beauty and excellence,” he wrote, “but only add the rapturous idea of property and what allurements can the world offer for the loss of so glorious a prospect?” The imperial government’s attempt to curb that allurement, the iconic urge of every private property society, led directly to Virginia’s uncompromising claim in 1776 that its citizens enjoyed among other inherent rights “the means of acquiring and possessing property.”
What escaped most contemporary observers, with the notable exception of Benjamin Franklin, was how radically the land market was transforming the colonial economy. Very few companies aimed to buy land directly for their investors. Instead, most operated like modern mutual funds, using investors’ money to purchase assets, in this case land, for sale at a profit. To make this possible, the necessary legal and financial instruments had to be imported from England, including laws of contract and partnership, good practice in accountancy, and more abstruse schemes of corporate governance such as the pure trust constructed in 1765 by Patrick Henry for Robert Morris’s North American Land Company. Long before industrial production became the dominant way of earning money, the land market brought a capitalist structure into being. Driving the market was a spectacular growth in the supply of investment capital within the colonies.
Between 1730 and 1770, it increased at an annual rate of 1.6 percent, primarily as a result of the rising value of land. In 1600, the territory eventually covered by the thirteen original states would have been worthless in monetary terms, but in 1800 it was valued at about six hundred million dollars, including housing, with perhaps two thirds of that increase coming since 1720. Once war broke out, and gigantic loans had to be raised from the Dutch financial market to purchase arms, uniforms, and fodder, the security offered to the Amsterdam financiers was partly the estimated income streams from taxation, but more substantially the gigantic capital value of American land.
By 1776, the net worth of each American proprietor was growing twice as fast as that of his British equivalent. And since four out of five Americans lived on land they owned, the wealth was spread much more widely. “There is such an amount of good land yet uncultivated,” commented the Swedish botanist Peter Kalm in 1750, “a newly married man can, without difficulty, get a spot of ground where he may comfortably subsist with his wife and children. The taxes are very low, and he need not be under any concern on their account. The liberties he enjoys are so great that he considers himself a prince in his possessions.”
The evident prosperity of the American colonies intensified London’s determination that they should pay their share of the costs of the Seven Years War from which they had so clearly benefited. The costs had fallen squarely on the shoulders of British taxpayers who were confronted by a national debt that had risen from £72 million in 1755 to £130 million in 1764. The proposed American taxes and duties on sugar, official documents, and imported goods, including tea, comprised the sort of indirect taxation that the British had become used to. To the colonists, however, they came as a shock, partly because internal taxation was light, and partly because after years of benign neglect, London’s demands were a reminder of the realities of colonial rule.
But the Americans’ explosive reaction when the 1765 Stamp Act was introduced pointed to the change of outlook that had taken place in the new, young generation of colonists. As poor, undermanned settlements, the colonies had had no choice but to accept London’s rule—the restrictions on what could be manufactured, from hats to pig iron, the prohibition on New England shippers selling cod to French sugar planters, the duties on Virginian tobacco, and the impressment, or forcible enlistment, of sailors from American vessels; but in the previous thirty years they had grown into wealthy, populous societies that resented and resisted affronts by an outside power. And as they did so an authentically American note began to emerge.
When James Otis attacked the Stamp Act, he did so on the grounds that as a “British subject,” he had the right not to be taxed without the consent of his representative in Parliament. His argument was repeated as the language of liberty became common in newspapers, pamphlets, and general meetings during the 1760s and early 1770s. But it sounded more like the protest of a disaffected British subject than an independent American citizen. The deeper groundswell of dissatisfaction demanded something more.
In 1773, the New York Sons of Liberty declared that paying tax on imported tea would leave them with “no property that we may call our own,” but concluded in a significant departure from the Otis argument that in such an event, “we may bid adieu to American liberty.” What distinguished American from British liberty had still to be explained.
Many events served to transform British colonists into Americans—anger at London’s punitive action against Massachusetts following the dumping of tea in Boston Harbor, suspicion of the Coercive Acts’ threat to the independence of legislatures, resentment at the incorporation of western lands into Canada through the 1774 Quebec Act, and finally outrage at the killing of civilians by British troops—but they all fused into a single determination to assert independence from an oppressive power. And that entailed a definition of the liberty that oppression threatened to take from them.
The first appearance of a different argument had appeared in an influential series of articles, Letters from a Farmer in Pennsylvania, written in 1767 and 1768 by John Dickinson. Americans had to resist taxation, he argued, on the grounds “that we cannot be happy, without being free; that we cannot be free, without being secure in our property; that we cannot be secure in our property, if, without our consent, others may, as by right, take it away; that taxes imposed on us by parliament, do thus take it away.” By the time George Mason came to write Virginia’s Declaration of Rights in 1776, the association had become common enough for him to list among mankind’s “inherent rights” to life, liberty, and property that of “pursuing and obtaining happiness.”
The idea of happiness as a fundamental human goal was given birth in the 1730s by the founder of Scottish Enlightenment thinking, Francis Hutcheson. Before him, in his Essay on Human Understanding, Locke had speculated that one of the earliest impressions drawn on the tabula rasa of the human mind was a basic preference for pleasure and happiness over pain and suffering. But Hutcheson gave the impulse purpose. Brought up in the belief of reformed Calvinism that, far from being predestined to heaven or hell, the soul had simply been created with an instinct for goodness, Hutcheson translated goodness to its secular equivalent, happiness, and taught that the innately sociable nature of mankind led everyone to seek happiness as their goal. It was a moral impulse, inseparable from being human.
The optimistic teaching of the Scottish Enlightenment deeply influenced Hutcheson’s fellow Calvinist, the Swiss law professor Jean-Jacques Burlamaqui. Lecturing on natural law at the University of Geneva, Burlamaqui defined the notoriously slippery word, droit, usually translated as “law,” not as a requirement imposed from outside, but as an internal drive. His lectures, published in 1748 as The Principles of Natural Law, explained that droit was derived from the Latin word dirigo, “which implies, to conduct a person to some certain end by the shortest road.” Following Hutcheson, he taught that happiness was the goal of every moral person. But in The Principles this was given a political and social context; it was an unconstrained moral right common to all people living in an ordered community.
Since he shared the same intellectual background as Adam Smith, it was perhaps not surprising that Burlamaqui should also have argued that the selfish pursuit of personal happiness would produce general happiness, and for the same psychological reasons that Smith advanced. Every moral individual would instinctively recognize that the welfare of others was the source of “all the knowledge, conveniency, and ease that form the security, pleasure, and happiness of life.” This was the social contract. The shorthand description was “Do as you would be done by.” So long as that awareness of others was in place, the social equivalent of the hidden hand’s self-righting mechanism would do its work.
Thus, echoing the economic argument of the physiocrates that lifting taxes and duties would increase the national wealth, Burlamaqui insisted that the removal of social and political constraints would allow individuals to pursue their innate right to happiness and enable society to raise the general well-being of its citizens. Under eighteenth-century conditions, however, humanity was rendered miserable by laws, customs, and privileges that restricted its potential. In the ear-catching language that his fellow Swiss, Jean-Jacques Rousseau, would later use about human rights, “Man was born free, and everywhere is in chains.”
Burlamaqui’s universal right existed quite independently of English common law. And it was one with which Thomas Jefferson was entirely familiar. As a teenager, he had been taught and befriended by William Small, a Scottish teacher at William & Mary College, and developed a relationship that, as Jefferson testified, “fixed the destinies of my life.” It etched into his mind the rationalism and unwavering confidence in social wisdom that ran through the teachings of Hutcheson and other followers of the Scottish Enlightenment. Their books, including Burlamaqui’s Principles, crowded the shelves of his well-read library.
Jefferson’s attitude to natural property rights, by contrast, remained consistently skeptical throughout his life. It was, he believed, “a moot question whether the origin of any kind of property is derived from nature at all” rather than being created by laws “flowing from the will of the people.” But where the ownership of real estate was concerned, he had no doubts. “It is agreed by those who have seriously considered the subject,” he wrote in old age, “that no individual has, of natural right, a separate property in an acre of land.” In other words, Locke was wrong: No amount of mixing of labor created a natural right to own the soil. Property was simply a matter of civil law.
What the representatives of the United States gathered in Philadelphia drew from Locke was his belief that free citizens were justified in rebelling when their contract with government was broken. On that point, the young Jefferson concurred. But quite deliberately, when given the task of editing the draft of the Declaration of Independence, he chose to explain the birth of the United States not by referring to liberties created by the laws of an oppressive government, but to a universal freedom created by birth. This was the motive that shaped the declaration’s defining phrase: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
With those imperishable words, the United States grafted on to its propertied roots an alien cutting that committed it to a perpetual struggle between the rights of property and the rights of people.
The potential conflict was immediately clear to those fighting for their own freedom: slavery condemned one in six Americans to be treated as property and denied any rights to the pursuit of their happiness. “For shame,” wrote Nathaniel Niles of Rhode Island, “let us either cease to enslave our fellow-man or else let us cease to complain of those that would enslave us.” The contradiction led Pennsylvania to legislate in 1780 for the gradual abolition of slavery. “We rejoice that it is in our power to extend a portion of that freedom to others,” ran the preamble, “which hath been extended to us; and a release from that state of thraldom to which we ourselves were tyrannically doomed.”
Despite actively promoting the Atlantic slave trade themselves, the British also targeted the contradiction. “How is it that we hear the loudest yelps for liberty among the drivers of negroes?” demanded Dr. Samuel Johnson. In 1779, Sir Henry Clinton, in command of British forces, offered freedom “to every Negro that shall desert the rebel standard,” and the following year the British switched their strategy from the original sources of rebellion in New England and Pennsylvania to focus on the South, with the same offer of liberty to the enslaved. As many as one hundred thousand slaves did find their freedom with the British, among them Titus Cornelius, known as Colonel Tye, who went on to conduct a fierce campaign of harassment against the rebels in New Jersey at the head of the Black Brigade guerillas.
Yet unmistakably, what brought tens of thousands of Americans to take up arms was the plain desire to defend their liberty against British military might. At the start, they provided the militia forces who fought at Bunker’s Hill and successfully expelled British troops from Boston. And at the end, the most effective defense was mounted by General Nathanael Greene in the South who waged a genuine people’s war that depended on civilian support and a popular commitment to what he himself described as “the defeat of oppression and diffusion of happiness.” No one could doubt that it was for the freedom to pursue their own happiness that Americans fought and won their independence.
Even after the fighting ended, concerns for personal liberty still trumped those of property, leading Massachusetts to make the trade in slaves illegal in 1783, followed by all the New England states, and eventually New York and New Jersey. In the most important legislative act of its peacetime life, the Continental Congress made it a provision of the 1787 Ordinance governing the settlement of territory northwest of the Ohio River that “There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted.” That sentence preserved the entire band of states from Ohio to Minnesota, and perhaps the United States itself, from developing a slave economy.
The underlying conflict between human liberty and property rights came into the open when the delegates from twelve states, Rhode Island abstaining, met in Philadelphia in May 1787 to draw up a new constitution to replace the old Articles of Confederation that had united them through the fight for independence. The battle revolved around the poisoned concept of treating humans as property, and specifically whether a slave should count as a thing or a being when matters of taxation and representation in Congress were being discussed. Incomplete though the records of the debates are, they reveal how clearly those present understood the nature of the double standard being applied.
After tortuous discussion had ended with the compromise of treating a male slave as three fifths of a free man, James Wilson, soon to be a Supreme Court justice and author of a famous series of lectures on the natural rights of man, asked “on what principle the admission of blacks in the proportion of three fifths could be explained. Are they admitted as Citizens? then why are they not admitted on an equality with White Citizens? are they admitted as property? then why is not other property admitted into the computation?”
Equally damning were the clauses that postponed a ban on the slave trade for twenty years and required any slaves who escaped and reached a free state to be denied their freedom and returned to their masters. When they came to the wording of the Constitution, William Patterson of New Jersey pointed to the hypocrisy that prevented the framers even using the word “slave.” Instead, slaves were referred to as “other Persons” where the three fifths rule was concerned, and the slave trade became the “Importation of such Persons as any of the States now existing shall think proper to admit.” Luther Martin of Maryland, himself a slave owner, admitted that the reason the word could not be used was because “It is inconsistent with the principles of the Revolution, and dishonorable to the American character to have such a feature in the Constitution.”
That was the crux of the problem. To the framers of the Constitution, a slave-owning society might be shameful, but it was possible. A society without property was inconceivable.
“The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it,” John Adams declared in his defense of the Constitution, “anarchy and tyranny commence. If ‘Thou shalt not covet’ and ‘Thou shalt not steal’ were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free.”
It was this veneration of property, condemning millions of Americans to slavery, that led to the earliest portrayal of the Constitution by the anti-slavery movement as the product of a narrow class intent on protecting their own interests. In the early twentieth century, the economic historian Charles Beard produced an influential thesis based on exhaustive, though flawed, research on the financial wealth and real estate holdings of delegates that helped flesh out this charge. The rebuttal to his case led later historians to emphasize the inseparability of property rights from individual rights. The critical factor in the constitutional debates, they insisted, was the delegates’ practical experience of representative government, and their consequent desire to safeguard a democratic spirit in any future United States government.
Yet what the Constitution achieved was rarer than either of those interpretations would suggest. Both its failure to appreciate the moral outrage of slavery and its achievement in creating a framework of democratic government sprang from the same source.
Most delegates to the Constitutional Convention expected merely to improve the existing Articles of Confederation that had united the states. The articles allocated control of foreign policy and military affairs to the central government but left it no powers to raise taxes or settle disputes between what were self-declared sovereign bodies. This omission had to be remedied, but that was the full extent of the convention’s remit. When the fifty-five delegates met in the austere Georgian elegance of the Assembly Room in the Pennsylvania State House in early May, however, they were presented with a blueprint drawn up by the Virginia delegation for a federal government based on a national vote and exercising national executive powers. Although other designs were put forward, and many alterations were made in the next four months by a group that was exceptionally well grounded in law and the business of government, the agenda was effectively set by the Virginia plan. And that itself bore the unmistakable imprint of James Madison’s thought.
To this day, the constrained, dogged character of Madison, widely regarded as “the father of the Constitution,” remains enigmatic. Physically diminutive and handicapped by ill health, socially awkward, and a bachelor until, in his forties, he married the irrepressible Dolley Payne Todd, he compensated for those political shortcomings by an intellectual’s capacity for prolonged research and logical argument that compelled his colleagues’ admiration. “He perceives truth with great clearness,” remarked his fellow congressman Fisher Ames in 1788, “and can trace it through the mazes of debate without losing it.” And as even his rival, and later bitter enemy, Alexander Hamilton, freely admitted, “he is Uncorrupted and incorruptible.” He had many followers but few close friends, with the one towering exception of Thomas Jefferson, whose appointment as ambassador to France, however, kept him absent from the Constitutional Convention’s deliberations.
Madison’s research on different types of governance ranged from Athenian democracy to sixteenth-century Poland’s elected kingship and eighteenth-century Switzerland’s federation of cantons. As he demonstrated in the notes he took during the convention and equally in the articles he contributed to The Federalist Papers in support of the new constitution, he had come to an understanding of democratic government that differed radically from anything that had occurred earlier in the European tradition.
The difference began with the primary goal of government, which he took to be the protection of “the rights both of property & of persons.” But, as he explained to the convention, even at the basic stage of voting, the two rights were bound to be in competition: “Allow the right [of voting] exclusively to property, and the rights of persons may be oppressed. The feudal [system] alone sufficiently proves it. Extend it equally to all, and the rights of property or the claims of justice may be overruled by a majority without property, or interested in measures of injustice. Of this abundant proof is afforded by other popular Govts.”
The assumption that private and public interests were irreconcilable was in the classic tradition of Western thought. Aristotle, as Madison knew from his own readings of the Politics, had declared that aristocratic government degenerates “when the few who are rich govern the state as best suits the interests of their avarice and ambition,” and that republics are finished “when the many who are poor make the gratification of their own passions the only rule of their administration.” And from the days of the Roman republic, praise for public virtue and condemnation of personal ambition were part of every orator’s repertoire.
Individuals combining to promote their own selfish interests would create “parties” and “factions,” two dirty words that explained to eighteenth-century politicians why democracy was unworkable. They produced the sort of vendetta politics in which, as George Washington put it, “the alternate domination of one faction over another, sharpened by the spirit of revenge . . . has perpetrated the most horrid enormities.” To keep factions in check, a monarch or “chief Magistrate” was essential. A republic, as the influential Montesquieu had written in The Spirit of the Laws in 1748, could only survive if it were small and cohesive, otherwise it would be torn apart by dissension.
Montesquieu’s diagnosis of democracy’s future was bleak. Its survival in any form, even in a monarchy like Britain, must always be threatened by private factions. The only defense was a national policy to promote “a constant preference of public to private interest.” Accordingly, every citizen had to be taught, almost brainwashed, to sacrifice selfish interests for the good of the country, “a self-renunciation, which is ever arduous and painful.”
The outstanding accomplishment of those who met in Philadelphia in the summer of 1787 was the complete break they made with that long constitutional tradition. Madison was the unlikely architect of a constitution that destroyed two thousand years of European fearfulness about the poisonous effects of democracy.
Most of the debates at the convention were concerned with the immediate problem of deciding how much power should be given to the new federal government at the expense of the states, and whether the new system would allow Virginia, Massachusetts, and Pennsylvania, the three largest states, to ride roughshod over the remainder. But for Madison the challenge was deeper: to create a structure of government in which different interests could compete freely for power but without the risk of destroying their opponents’ rights. “No free Country has ever been without parties, which are a natural offspring of Freedom,” he remarked.
His research and his experience of Virginia politics convinced him that faction was inseparable from government. Human nature would always impel people with similar interests to band together. And other divisions lay beyond the basic split between propertied and unpropertied: “All civilized Societies would be divided into different Sects, Factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader—the disciples of this religious Sect or that religious Sect.”
In every society, such groups naturally sought political power to protect their interests. As a result they inevitably came to associate themselves with their property, so that the shape of society itself in turn reflected those different interests. “From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results,” he wrote in The Federalist Papers; “and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of society into different interests and parties.”
This might not have sounded extreme to an eighteenth-century audience who naturally assumed “interests” to be the guiding light in people’s social existence. Madison went further than that, however, with his assertion that people’s relationship to what they owned affected their consciousness, and by extension helped mold the shape of society. Today that thesis has a radical ring because it also appeared in a more definite, Germanic style in Karl Marx’s description of “property relations” or “relations of production” that shaped the outlook of the bourgeoisie and the proletariat. “The totality of these relations of production,” Marx wrote in the 1859 preface to A Contribution to the Critique of Political Economy, “constitutes the economic structure of society, the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness.”
As a political theorist, however, Madison possessed a quality lacking in either Marx or Montesquieu. Unlike them, he embraced the diversity of opinion as evidence of a free society. Madison did not deny that the instability of the thirteen states stemmed from the quarrels between different interests, and from the “factious spirit [that] has tainted our public administrations.” But it was hopeless to expect education or even legal sanctions, as Montesquieu had urged, to stamp it out. Those remedies would only work “by destroying the liberty which is essential to . . . political life.”
“The causes of faction cannot be removed,” Madison concluded. The trick was to find “the means of controlling its effects.” And by a stroke of genuinely creative imagination, he turned Montesquieu’s theory on its head. Competition for power only became dangerous in a small republic where control could easily be seized by one group, Madison argued, but in a large republic there would be so many factions no single one could dominate all the others. “The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party . . . 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.”
It was akin to Adam Smith’s thesis that free-enterprise capitalism worked automatically without a mercantile hand to guide it. No monarch was needed to keep control of Madison’s government. With power diffused among the three branches of government, responsibilities divided between federal and state administrations, and popular passions expressed “through the medium of a chosen body of citizens” in Congress, no single-issue faction could take control. The system would be in essence self-regulating. “Society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”
It is almost impossible to exaggerate the importance of the argument that Madison presented to the convention and amplified in The Federalist Papers. At a stroke, it undermined the almost sacred hold that political tradition and Montesquieu’s dictum exerted on contemporary American thought. It certainly swayed delegates previously hostile to the sheer size of the proposed new federal state. Above all, it exorcized the specter of disorder that haunted all previous attempts to contemplate how democracy might work in government.
The inevitable growth of executive power and the Supreme Court’s authority at the expense of legislative supremacy has blurred Madison’s insight. But the Constitution and the experiment in democratic government that developed—the popularly elected House of Representatives, balanced until the twentieth century by a restricted selection of members of the Senate, the retention by the states of all powers not specifically allocated to the federal government, and the capacity of the judiciary to revise laws—created something unique, a political marketplace where different interests could compete safely for power.
As clearly as Adam Smith, Madison insisted that without a shared sense of justice—in constitutional terms, the confidence of each section of society that its rights would not be violated—the market would collapse. It was, however, this last condition that led him, and the delegates who crowded into the Assembly Room to hear his speech on the subject, into their fatal misjudgment concerning slavery.
Reflecting widespread unease in the convention about condoning slavery, Madison argued that its very unpopularity exemplified the danger of allowing the majority to have its way. “It is apprehended,” he told his audience, “that if the power of the Commonwealth shall be in the hands of a majority, who have no interest in this species of property [i.e., slavery], that . . . injustice may be done to its owners.” Precisely because they were a minority, therefore, the rights of slave owners had to be protected against abolitionists.
His logic, however twisted, was entirely consistent. When Madison endorsed the enslavement of black Americans, with only the saving compromise of regarding slaves as three fifths human, he did so in order to maintain the political balance that he regarded as essential for democracy. It was not an aberration.
Madison never deviated from his belief in the absolute necessity of maintaining equality in the political marketplace. It led him to advocate a form of government intervention apparently at odds with its role as protector of unfettered property rights. Looking to the future, he foresaw that as the population grew, the primarily rural economy of 1787 would give way to one dominated by “the great Capitalists in Manufactures & Commerce and the members employed by them.” The political influence they could exert through their employees and their accumulated wealth posed a danger of distorting the political marketplace, but, Madison added, “it may be observed that the opportunities, may be diminished, and the permanency [of inherited wealth] defeated by the equalizing tendency of the laws.”
Madison’s expectation that government might need to pass “equalizing laws” was only part of his larger concern to establish “equality & fairness” between different interests. At times it almost seemed like an obsession: propertied had to be balanced against unpropertied, creditor against debtor, rich against poor, “landed interest” against “Commerce & Manufacture.” The balance of interests was the one necessary condition for democratic government to operate freely.
To keep the scales level, Madison was prepared to alter voting rights, adjust the composition of Congress, and take whatever other steps were necessary. In the eyes of the father of the Constitution, freedom and political equality were indivisible.