Madison’s last stand

By Rich Lowry
The shade of James Madison hovers over the Obama-Care argument at the Supreme Court.

It is the system of limited and carefully divided government powers that he had a large hand in crafting — and defended so ably in The Federalist Papers — that is at stake in the contest over the constitutionality of the individual mandate.

If the mandate stands, it will be the latest blow to Madison’s scheme, which is the best architecture for self-government yet devised by man, but has been steadily worn down over time. It is a damning indictment of contemporary Washington that, overall, it is so hostile to the Madisonian ethos. He is a most inconvenient Founding Father since he tells us: No, the federal government can’t do whatever it wants; no, we can’t just all get along; no, we can’t rush to pass whatever legislation deemed a “can’t wait” priority by the president. Now, grow up.

In the mind of contemporary progressivism, these words of Madison from The Federalist Papers simply don’t compute: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” They are an antiquated 18th-century sentiment unsuited to our more complex and more sophisticated time, to be ignored when not actively scorned.

But this division of power is meant to maximize accountability and competition in the belief that the undue accumulation of power in any one source is, in Madison’s words, “the very definition of tyranny.” Madison concerned himself with limits on government because “there is a degree of depravity in mankind, which requires a certain degree of circumspection and distrust.” So, as he famously wrote, “ambition must be made to counteract ambition.”

He would have no patience for gooey discussions on the Sunday shows about the divisiveness of our political life. “The latent causes of faction,” for Madison, “are sown in the nature of man.” He was a pioneer in fighting the sort of partisan battles we now look down upon and rue.

Nor would Madison be moved by the lamentations that Congress isn’t passing enough legislation quickly enough. He wanted a Senate — that balky, frustrating upper body — to check the rush to enshrine momentary causes into law. In a passage that could have been written as commentary on the handiwork of Nancy Pelosi’s Congress, he argued “it will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

In his book on Madison’s political thought, “American Compact,” Gary Rosen notes that “as Madison feared, utility rather than constitutionality has become the ultimate test for public policy.” The debate over ObamaCare at the time of its passage focused on its cost, its workability and its aggrandizing tendency more than its constitutionality. For Madison, Rosen continues, constitutional limits “were the deepest source of republican dignity, the bulwarks that he fend in order to remind themselves of their sovereignty.” Would that they were once again.

(Rich Lowry is editor of the National Review.)
© 2012 by King Features Synd., Inc.