Thursday, September 20, 2007

In Praise of James Madison

As Americans mark the 220th anniversary of their nation's

charter this week, Israelis can only look on in envy

YOU COULD be forgiven for having missed it, but Monday, September 17, marked Constitution Day in the United States. In schools across America students commemorated the 220th anniversary of the Constitution. A presidential proclamation has designated September 17 through September 23 as Constitution Week.

According to the Center for Civic Education, children in American kindergartens are being taught how and why "authority is useful in society," while high-school students are expected to examine how and why the Constitution reorganized America's original form of government.
As most American youngsters (though, I suspect, fewer adults) can attest, for 11 years - between the time it gained independence from Britain on July 4, 1776, until September 17, 1787 - the United States didn't have a constitution. It operated instead under guiding principles known as The Articles of Confederation.

THE PHILOSOPHICAL foundations of the American Constitution deserve to be studied not only by students of American politics, but also by those who wish to spread democracy to the Middle East; and by Israelis debating whether and how to craft a constitution for the Jewish state.

Though the US Constitution begins memorably with "We the people..." the founding fathers adhered to a cynical view of human nature, which in practice meant that the last thing they wanted was to hand raw power to "the people."

Benjamin Franklin and Alexander Hamilton, whatever their differences, agreed that men loved power and would, if left to their own devices, act exclusively in their own interest, unmindful of the collective good. That's why the founders concluded that power concentrated in any one place - whether with a majority, a minority or any single branch of government - would be abused.

Thus the architect of the American Constitution, James Madison, argued for a system in which "Ambition must be made to counteract ambition." Power should be set against power, so that no one faction, group, or institution could overwhelm any other.

For Madison, the secret of good government was balancing contending groups. So long as no one center of power could capture the entire government, tyranny could be avoided. This explains why Madison's constitution called for a complex system of checks and balances, and separation of powers ensuring that neither "the people" nor the self-interested elites (meaning Madison and his contemporaries) could hijack the American regime.

THE FAR-SIGHTED founders came up with a framework in which power would be diffused among the elite and the masses. An electoral college - not "the people" - would elect the president; state legislatures would elect the senate. Power in the Congress would be divided between two houses, and a Supreme Court would balance the executive and legislative branches.

Indeed, in one of its first actions, the new Supreme Court gave itself the power of judicial review.

What America's sages produced was not a participatory democracy, but a republican form of representative government. They did this not to hoodwink the masses but to protect them from themselves. The founders held that der oilom is a goilem.

Or as Madison put it, a little differently: The "public voice, pronounced by representatives of the people, will be more consonant to the public good than if pronounced by the people themselves."

Elsewhere he argued that "You must first enable the government to control the governed; and in the next place, oblige it to control itself." He knew that "enlightened statesmen will not always be at the helm," so the US political system was designed for the worst of times, not the best.

Men were not angels, in Madison's assessment of human nature, thus the constitution's architects needed to design a regime which would take the harsh reality of human nature into account. However, he wanted the people granted maximum personal liberties, while constraining the government's ability to impose itself on the individual citizen.

TO SUM UP, the main features of the Madisonian model of democracy include:

Secularism. The preamble invokes "the people," not a deity.

Enlightenment. The manifesto is a product of the 18th-century movement which rejected orthodox social, religious and political ideas in favor of an emphasis on rationalism. The men who wrote America's political rules had read Locke and Montesquieu.

Republicanism. The ethos of the Constitution is representative government, not popular democracy; this explains the intricate system of checks and balances, and the separation of powers intended to prevent both masses and rulers from concentrating too much power in any one set of hands.

Adaptability. The founders designed a system that could be modified as time and circumstances demanded, but not one that could be radically altered with abandon. They did not want lurches in popular opinion during periods of upheaval to set the stage for changing the fundamental rules of America's political game (though as the 1919 18th Amendment outlawing alcohol proved, the Constitution wasn't completely immune to populist pressures).

Elite-driven alterations to the original manifesto were in fact ratified within just four years. Ten new amendments, spearheaded by Congressman James Madison himself and now collectively known as The Bill of Rights, were added to make explicit provisions for freedom of religion, press and speech.

Over time, the American Constitution required further modification to - among other things - belatedly outlaw slavery (1865); provide for federal supremacy over the states in matters of political liberty (1868); give women the right to vote (1920); and, in 1971, lower the voting age to 18 (which, counterintuitively, helped Richard Nixon defeat George McGovern in the 1972 presidential elections).

WHILE THE philosophy that went into crafting the US Constitution ought to inform 21st-century proponents of representative government, let's be mindful that America's Constitution was and remains a product of a particular time and political culture.

Americans can be grateful to Madison (and to several centuries of Supreme Court case law) for helping to create a relatively egalitarian polity that encourages political as well as socioeconomic upward mobility. In my book, this history of what I'd call responsible elitism helped make America the greatest country in the world.

Yet it would be dangerous to think America's unique experience could serve as a template for spreading democracy in the Middle East.

First off, the architects of the American political system would probably be aghast at the notion of tyrannically-oriented masses voting in an ambiance that lacked permanent rules and political institutions. They would, rightly, see such balloting as contributing nothing to political development, minority rights, civil liberties or stability. Using the Madisonian yardstick, the January 2006 elections held in the Palestinian Authority that brought Hamas to power would, I suspect, be the antithesis of representative democracy. The same would probably apply elsewhere in the region.

USING THE US experience as a template for an Israeli constitution is also a nonstarter. Creating permanent political rules for a 59-year-old polity may appear long overdue, but when that also society happens to be an ancient civilization risen from the ashes - prudence should trump speed.

Israel faces this constitutional dilemma: how to conserve and develop the state's Jewish character, while not impinging on the civil liberties of individual citizens. And regrettably, there are no altruistic and wise elites to lead the way. Instead, Israeli politics is largely dominated by small-minded politicians, phoney holy men and moneyed oligarchs. Not surprisingly, they can't agree about where we've come from, where we are, and where we should be heading.

THE DEFICIENCIES of the Articles of Confederation led America's Founders, in 1787, not just to modify their broken system, but to radically overhaul it. A parallel approach in today's Israeli setting would be dangerously destabilizing. This country's hyper-pluralist system - in which narrow-minded and single-issue groups are empowered to run amok while irresponsible, benighted and self-interested elites profiteer - has led many Israelis to lose faith in our regime's legitimacy.

Given the dearth of Madisonian-like wisdom and the fractiousness of our society, perhaps the way ahead is for the Jewish state to first reform its election system (for instance, by raising the electoral threshold and introducing constituency representation), and only afterwards turn to overhauling the permanent rules of the political game.

This week, America's youngsters are fortunate in having the opportunity to study anew why their Constitution deserves to be cherished. It's too bad there's no Madison anywhere on the horizon for their Israeli counterparts.

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