BY JONATHAN SKRMETTI
James Madison features prominently in the mythology and propaganda of legal groups on both the left and the right. On the right, Madison’s profile constitutes the logo of the Federalist Society. On the left, the American Constitution Society, constructed in an attempt to parallel the grassroots successes of the Federalist Society, was originally named the Madison Society.
The two sides of the political spectrum come at Madison from entirely different directions. The Federalist Society embraces Madison’s mistrust of government and his support for separation of powers both horizontally and vertically. Madison’s dim view of human nature accords with the Federalist Society’s reluctance to concentrate power.
The American Constitution Society, on the other hand, attaches itself to Madison’s unabashed elitism. Madison would never agree with Lincoln’s ideal of government of the people, by the people and for the people. Paternalism and, to put it bluntly, arrogance underlie this aspect of Madisonian thought. This attitude is most pronounced today in condescending judges who undermine legislative policy decisions based on their convictions that the legislators got it wrong and their failures to respect the democratic process.
A rich example of the latter is Judge Harry Pregerson’s string of dissents in California three strikes cases. Pregerson refuses to apply the law as written and interpreted because he believes the law is wrong. Morally correct or not, Pregerson’s consistent flouting of the law seems exactly the sort of behavior that Chuck Schumer keeps warning us to expect from Bush appointees, yet Pregerson is venerated (by ACSmembers among others) as a left-wing hero for having the guts to ignore the law and stick to his convictions.
Madisonian elitism is the bread and butter of a Harvard Law School education. The entire first year curriculum, perhaps barring Civ Pro (depending on which professor you have), focuses on how judges set policy. Legislatures and political activity in general are looked down upon as obstacles to getting the right result. Under this view, an enlightened few with the proper credentials reveal the one true way and impose their vision on the unclean masses as the late President Madison smiles benignly from above.
The history of the former Madison Society reflects this worldview. Whereas the Federalist Society was founded by a ragged band of disgruntled students weary of the yoke of liberal orthodoxy, the ACS sprang from the ponderings of liberal academics and policymakers who felt the need for their own group. The ACS was born with the institutional equivalent of a silver spoon in its mouth; judges, professors and politicians tripped over themselves lining up to lend their support. It’s a far cry from the hysteria that met the formation of the initial conservative student group, the Harvard Journal of Law & Public Policy; not only the law school administration and faculty but even the Carter administration attempted to nip that organization in the bud.
Madison’s distrust of government was related to his fear of the masses. He feared the masses employing democracy to oppress the elite. SinceMadison’s time, however, the reverse has been increasingly true:the American elite has increasingly focused on imposing its will on the masses.
Oppressed people around the world dream of living in a democracy. Providence blessed America with the first modern democracy, a privilege earned with blood and bullets. Madison ushered in that democracy and contributed heavily to the document that secured it for centuries. But Madison’s derision of ordinary people continues to haunt our elite institutions, and many of our brightest thinkers cleave to a vision of a technocratic America untroubled by disagreement and debate.
The left’s rejection of the other strand of Madisonian thought – government limited in scope and emasculated by structure – draws them toward what can only be described as a dictatorship of intellectuals. Though initially benevolent, at least in the vision of the New York Times readership, such a regime must inevitably fall into oppressive habits to retain power. Madison’s legacy is thus in tension with itself.
Madisonian elitism threatens Madison’s legacy itself – American democracy. Our founders did not fight and die for a democracy so that judges could make all of the important decisions. The beautiful chaos of participatory democracy – essential to the health of a nation and anticipated by Madison’s constitutional structure – withers and dies when decisionmaking is confined to back rooms, regardless of whether those back rooms are in Tammany Hall or Harvard Law School. By seeking to remove policy decisions from the people and grant them to a judicial elite, the ACS undermines the legacy of the man whom they once so honored that they took his name as their own.
Jonathan Skrmetti’s column appears biweekly. He is Editor-in-Chief of the Harvard Journal of Law & Public Policy.
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