This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
By Rich Lowry
The National Review
The shade of James Madison hovers over the Obamacare argument at the Supreme Court.
It is the system of limited and carefully divided government powers that he had a large hand in crafting and defended so ably in The Federalist Papers that is at stake in the contest over the constitutionality of the individual mandate.
If the mandate stands, it will be the latest blow to Madison's scheme, which is the best architecture for self-government yet devised by man, but has been steadily worn down over time. It is a damning indictment of contemporary Washington that, overall, it is so hostile to the Madisonian ethos. He is a most inconvenient Founding Father since he tells us: No, the federal government can't do whatever it wants; no, we can't just all get along; no, we can't rush to pass whatever legislation deemed a "can't wait" priority by the president. Now, grow up.
In the mind of contemporary progressivism, these words of Madison from The Federalist Papers simply don't compute: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." They are an antiquated 18th century sentiment unsuited to our more complex and more sophisticated time, to be ignored when not actively scorned.
But Madison thought this division of power so important for a reason: "In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself."
The entire system is meant to maximize accountability and competition in the belief that the undue accumulation of power in any one source is, in Madison's words, "the very definition of tyranny." The frequent Supreme Court swing vote Anthony Kennedy has written that "federalism was the unique contribution of the Framers to political science and political theory." This contribution has been trampled through the decades, and Obamacare stomps on it once more.
Madison concerned himself with limits on government because "there is a degree of depravity in mankind, which requires a certain degree of circumspection and distrust." So, "ambition must be made to counteract ambition."
He would have no patience for gooey discussions about the divisiveness of our political life. "The latent causes of faction," for Madison, "are sown in the nature of man." In his marvelous new biography of Madison, Richard Brookhiser calls him not just the Father of the Constitution but the Father of Politics because he was a pioneer in fighting the sort of partisan battles we now rue.
Nor would Madison be moved by the lamentations that Congress isn't passing enough legislation quickly enough. He wanted a Senate to check the rush to enshrine momentary causes into law. In a passage that could have been written as commentary on the handiwork of Nancy Pelosi's Congress, he argued "it will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood."
In his book on Madison's political thought, American Compact, Gary Rosen notes that "as Madison feared, utility rather than constitutionality has become the ultimate test for public policy." The debate over Obamacare at the time of its passage focused on its cost, its workability and its aggrandizing tendency more than its constitutionality. For Madison, Rosen continues, constitutional limits "were the deepest source of republican dignity, the bulwarks that he expected citizens to defend in order to remind themselves of their sovereignty."
Would that they were once again.