During the American Revolution, the Book of Samuel became a popular text for sermons. In particular the story of the people Israel begging for a king: “We want a king over us. Then we will be like all the other nations, with a king to lead us and to go out before us and fight our battles.” Samuel reproaches the people, but he relents. The burden of liberty is too great, and the people Israel take a step back toward Egypt.
Is that the situation Americans face today? In the name of “progress” are we seeking a king? The rise of the megastate is a large step in that direction. In fact, James Madison would suggest that the rise of what we colloquially call “big government” is inherently monarchical.
Madison’s famous lines about the virtues of an extended republic in Federalist 10—”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”—are often cited. But we seldom consider Madison’s theory in full. A large republic is, pace Madison, not merely different in size from a small one. It is also different in kind. Small republics, like ancient Sparta and Rome and, we might add, ancient Israel, were thick communities. The laws regulated life comprehensively, from birth to death, covering religious, political, and economic life. The extended republic would be a different sort of republic altogether. Particularly at the federal level, the government would have little to do with the daily life of the average citizen. It would not possess the police power—the authority to regulate health, safety, and morals. Should an extended nation like the United States come to resemble the ancient republics in that regard, Madison recognized, it would mean a return to monarchy.
This logic is most clear in Madison’s “Virginia Report of 1799-1800,” his summary of the fights of the 1790s. In particular, Madison noted “two consequences, evidently flowing from an extension of the federal powers to every subject falling within the idea of the ‘general welfare.’ ” Invoking the language of Federalist 10, he wrote, “One consequence must be, to enlarge the sphere of discretion allotted to the executive magistrate.” The “other consequence would be, that of an excessive augmentation of the offices, honors, and emoluments depending on the executive will.” And that would, ultimately, make our elections irredeemably corrupt. In a word, the president would become a king.
Why was that the case? For starters: “In proportion as the objects of legislative care might be multiplied, would the time allowed for each be diminished.” As a practical matter, a handful of legislators cannot make a comprehensive legal code for a large, continental republic of over 300 million citizens. The legislative power is Article I of the Constitution for a reason. The power of the people’s representatives to make the laws under which we live is paramount in a democratic republic. The power was limited in scope, however. The text reads “all legislative powers herein granted,” and not “all legislative powers.” The people did not give a blank check to Congress.
Extending the scope of federal power would, as a practical matter, put the president in charge, subverting the constitutional system:
Extend the sphere of federal power, and it would become necessary to pass bills in order to find out what is in them. Congress would pass large, complicated bills that few if any legislators had read, and the bills would delegate to the executive or his agents the authority to make much of the legal code that implements the bill. It would mark a return to a class of presidential appointees with jobs for life who have something like the old “magistrate power”—to interpret and enforce the rules that govern our day-to-day affairs. That such officers would also write those very rules is still worse. This would mark the return of an aristocratic government, under the direction of a single sovereign.
Madison would not be surprised that nowadays our elites speak favorably of appointing “czars” to oversee the regulation of broad areas of American life. And once we grow comfortable with such discretion, it is a short step to the return of other kingly powers, such as the dispensing power—the power to dispense with a law the king deems bad or inconvenient, as in refusing to enforce immigration law. At first, presidents would use legal fictions, such as prosecutorial discretion, to cover their tracks, but soon enough they would dispense with such forms. In other words, expand federal power greatly and the president’s duty “to take care that the laws be faithfully executed” would be forgotten.
Madison recognized that big government would yield corrupt elections, particularly at the presidential level. He explained:
Granting expansive powers to the federal government subverts the extended sphere. Instead of creating a system in which the only laws that pass are those that support the common good, and apply, as much as can be expected, to all equally, we get a system where the law, if it can still be called such, is interpreted so as to be hostile to enemies and helpful to friends. The rule of law, as in our judicial oath “to do equal right to the poor and the rich” (an echo of Leviticus 19), ceases to be an essential feature of the regime. The rule becomes do unto others before they do unto you, rather than “love thy neighbor as thyself.”
In this presidential election season, as we ponder the choice between the product of a corrupt, Southern political machine that has become what Walter Russell Mead calls “the first post-modern political machine,” on one side and a businessman who brags about bribing politicians on the other, there is much for Americans to think about, constitutionally speaking. Madison reminds us that the problem is not in the Constitution itself; it is in our czars.
Richard Samuelson is associate professor of history at California State University, San Bernardino, and a fellow at the Claremont Institute.
