The Basic Decency of Republican Self-Government (Greg Weiner, Law & Liberty)
Carey shows, against the Progressive reading that Federalist 10 is anti-democratic, that it actually reflects a commitment to deliberate republicanism. Nowhere in the essay, he observes, does Madison raise a constitutional barrier to majorities, relying instead solely on the empirical conditions that naturally occur in an extended republic. There is particularly no reference to the Supreme Court as a barrier against abusive majorities. Instead, by the end of the essay Madison pronounces the disease of factions cured without any resort to constitutional mechanisms: The theory should hold in any extensive republic regardless of its particular constitutional forms.
“Separation of Powers and the Madisonian Model: A Reply to the Critics” similarly seeks to exculpate Madison from accusations of anti-democratic heresy. The misconstructions he dismantles continue to haunt American thought in the form of an assumption that the separation of powers is designed to inhibit majorities, with political fault lines merely forming around the question of whether that is a salutary feature of the system.
Instead, and this is Carey’s central and, I think, irrefutable premise, Madison explicitly distinguishes between two problems: the abuse of minorities by majorities, which he calls the problem of “faction” and solves wholly within the confines of Federalist 10, and “tyranny,” the exposure of the people to the arbitrary rule of the government, which he defines in Federalist 47 and solves in Federalist 51 through the separation of powers. He writes:
We may say, then, that the chief end sought through separation of powers was avoidance of capricious and arbitrary government. The end, however, can be stated more precisely and positively. Article XXX of the Massachusetts Convention of 1780, in which we find the injunction that no branch shall exercise the functions of another, concludes “to the end it may be a government of laws and not of men.”
The import of the distinction between majority oppression and governmental tyranny is not merely theoretical. Without it, the separation of powers, perhaps the cornerstone of Madisonian republicanism, is rendered duplicative and therefore undemocratic.