The Bill of Rights, Factions, and the Power of the Government

One of the debates that took place before the 1788 ratification of our Constitution was whether or not the constitution should include a Bill of Rights, guarantees of freedoms that limit the power of government over the states and citizens. As written, Madison thought the Constitution was complete, and did not see the need for a Bill of Rights. The majority of delegates to the Constitution Convention, however, approved of amendments to the Constitution, and in the end, our founders added 10 amendments to create the Bill of Rights we know today.

In his book The Quartet, Joseph Ellis describes Madison’s thoughts regarding the Bill of Rights, an area where Madison and his political mentor, Thomas Jefferson differed in their opinions. Madison believed that a Bill of Rights would not be effective in stopping government from overstepping its authority, and he felt the amendments to be irrelevant. Ellis wrote the following about Madison:

“Jefferson’s problem, as Madison saw it, was that he believed that the primary threat to personal rights came from government. That might be true in Europe, “but in our Governments the real power lies in the majority of the community.” So the real threat came “from acts in which the Government is the mere instrument of the major number of the constituents.”

This is consistent with Madison’s thoughts as written in the Federalist Papers #10 and #51, in which Madison wrote about the dangers of factions and majoritarian groups of citizens. Madison did not see power as flowing from the government and did not see our political rights and stemming from government. He was developing a constitution and a framework of governance where “the people,” as ambiguous as the term is, held authority and power and a written bill of rights, he argued, was not sufficient to dissuade a majority of citizens from violating the rights of others. His suggestion was not to tie the hands of government with a bill of rights, but instead to ensure that power was divided among many factions so that a tyrannical few could not dominate the interests of the many.

What I find interesting here is that Madison is in effect arguing for what we today would call identity politics. The most basic definition of politics is “who gets what and when?” We will always lack the resources to make sure that everyone’s self interest and desires are entirely fulfilled, and some resources, such as status and prestige, cannot be evenly separated among men, women, and differing groups. Politics is about how we decide to distribute what we have, and it is inherently unequal and identity based. The term identity politics now refers to the distribution of resources based entirely on individual characteristics of certain groups rather than on the good of the majority, but as Madison may argue, operating on the basis of the good of the whole is impractical because you cannot give the whole the same opinion, and what you instead have is a tyrannical majority dominating the few. A bill of rights, paper barriers to liberty, are easily ignored when a powerful majority can silence the voice of a minority. Giving minorities more power and influence is a Madisonian idea that was formed in the founding documents of the nation, well before our current tussle of identity politics.

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