James Madison, Justice, and the Summer of 2020
On February 5, 1794, Maximilian Robespierre, a provincial lawyer turned revolutionary, addressed the French National Convention as the leader of the twelve-man Committee on Public Safety. The Committee, an executive body designed to stabilize the then five-year-old French revolution, exposed and punished counter-revolutionary partisans across France. Over the course of five months, from September 1793 to February 1794, the Committee tribunal tried and executed 238 men and 31women. On the day of Robespierre’s speech 5,434 individuals sat in Parisian prisons awaiting trial for political crimes against the revolution.
He intended his address, titled a “Report on the Principles of Political Morality,” to reassure the squeamish that the trials and executions of the previous few months were absolutely necessary to the success of the revolution. Political violence, said Robespierre, is the handmaid of public virtue. Terror provides the only assurance that the virtuous will triumph:
“. . . the springs of popular government in revolution are at once virtue and terror: virtue, without which terror is fatal; terror, without which virtue is powerless. Terror is nothing other than justice, prompt, severe, inflexible; it is therefore an emanation of virtue; it is not so much a special principle as it is a consequence of the general principle of democracy applied to our country’s most urgent needs.”[1]
Robespierre was a Jacobin, and on Jacobin terms only a coercive moral vision could bring about a republic in France. A healthy republic, argued the Jacobins, demanded complete political conformity, violence in the name of justice, and terror in the pursuit of liberty. “Let the despot govern by terror his brutalized subjects; he is right, as a despot,” said Robespierre, “Subdue by terror the enemies of liberty, and you will be right, as founders of the Republic.”[2]
Less than a decade earlier and an ocean away a very different idea of republicanism found articulation in the American founding. James Madison, a Virginia delegate to the Constitutional Convention and one of the authors of the Federalist Papers rejected coerced conformity and ideological purges as prerequisites for securing freedom.
Madison argued political conflict, competing interests, and factions were inevitable in a free society. A republic without diverse political interests or competing factions was no republic at all for the simple, yet ominous, reason that forced ideological uniformity crushed human nature and freedom. Seven years before Robespierre and the Jacobins took control of France Madison, and every other American founder, avoided the puritanical violence that would manifest in the French Revolution on the grounds that human nature and political community are imperfect and imperfectible.
Factions and conflict are inevitable amongst a free people in a republic, said Madison, because factions and conflicts arise from the way fallible imperfect people pursue their interests. “The latent causes of faction are thus sown in the nature of man;” he wrote in Federalist no. 10, “and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society.”[3]
In 1794 Robespierre tried to extinguish all political differences in the name of an imagined perfected people achieving a realized justice in an imagined unified society. In 1787 Madison argued for government of imperfect people imperfectly striving for justice in a society that would always have conflicts of interests. The contrast is critical. A healthy republic on Madisonian terms acknowledges, rather than tries to eliminate, the complexity of human motives and behavior in its formulation of governance. He writes in the Federalists Papers no. 55:
“As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.”[4]
Depravity and distrust, esteem and confidence—a spectrum of human qualities touching all political activity. People are inconsistent with mixed and often conflicting motives. Societies are likewise complicated. Still, inconsistent and self-interested people are capable of pursuing justice without resorting to violence or terror. Madison wrote in Federalist 51 that “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” But unlike Robespierre Madison understood that though justice is a goal of politics, the reality of the human condition requires protecting a balance of competing interests or “a government which will protect all parties, the weaker as well as the more powerful.”[5] In other words, for justice to aspire to more than force or violence, all interests in a republic must be included as its object, and its proper pursuit must assume and approximate a standard of goodness situated outside of the concept of justice itself.
In Robespierre and Madison two modern visions of politics find articulation. Robespierre encourages political violence and force as the only way to ensure justice and virtue, and he trusts that a virtuous political elite will know how and when to apply violence in the name of freedom. Madison rejects the notion a pure political elite will rightly manage violence and force, arguing instead that people are imperfect and imperfectly motivated and, thus constituted, must agree to checks and balances and the cultivation of freedom through the ongoing practice of virtue in pursuit of justice. For Robespierre politics begins with purity that assures justice. For Madison, politics begins with prudence that aspires to justice.
Madison’s and Robespierre’s respective political heirs look very different. Madison’s politics of prudence dominated most of the American experience, and even influenced republican efforts in other Western countries as well as aspects of post-colonial nation building. Robespierre’s puritanical energy, by contrast, found revised and nuanced expression in Karl Marx and later iterations of Marxism.
Marx exudes all the moral outrage that fueled Robespierre’s taste for violence. “There is only one way in which the murderous death agonies of the old society and the bloody birth throes of the new society can be shortened, simplified and concentrated,” he wrote in 1848, “and that way is revolutionary terror.”[6] That same year he concluded in the Communist Manifesto:
“. . . the Communists everywhere support every revolutionary movement against the existing social and political order of things. . . The Communists disdain to conceal their views and aims. They openly declare that their ends can be attained only by the forcible overthrow of all existing social conditions. Let the ruling classes tremble at a communist revolution.”[7]
Both an admirer and critic of Robespierre, Marx wanted to give a logic to the chaos and failures that characterized much of the French Revolution. With Robespierre he agreed the singular pursuit of political ends demanded violence in the cause of overthrowing convention. But, Marx also believed the French revolutionaries were too self-consciously bourgeois, and their efforts missed the powerful economic determinism central to his formulation of history. For Marx, social structures shaped human nature, not vice versa. “It is not the consciousness of men that determines their being,” he wrote in A Contribution to Political Economy, “but, on the contrary, their social being that determines their consciousness.”[8]
Here, Marx not only outpaced Robespierre’s revolutionary vision, he also drew an important contrast with James Madison and the American founding. Where Madison’s understanding of politics begins with the belief human nature carries essential and permanent qualities that make it capable of pursuing justice even amid competing interests, Marx held human nature to be only an imagined by-product of social arrangements. Humans possess no essential qualities that can serve as a basis for politics. For Marx, and later Marxists, there is no natural humanity as received through classical Western and Christian configurations. “The human essence has no true reality” wrote Marx in 1844. Consequently, humans are perpetually malleable and shaped exclusively by their circumstances.[9]
In rejecting traditional categories that gave meaning to virtue and human nature Marx in effect abolished the idea human nature itself. Social conditions, rather than a properly trained innate moral nature, determine how humans will behave. Where Robespierre believed virtue still possible for a select few visionaries who could harmonize the discordant elements of civil society through violence and terror, Marx argued such harmony is impossible until virtue itself is seen for the historically conditioned illusion it was. For people “to give up their illusions about their condition” he argued, “is to call on them to give up a condition that requires illusions.”[10]
The implications for the modern idea of revolution are significant, but the contrast with the Madisonian vision is even more striking. Capitalism, though an inevitable stage of history, falls short of justice, but justice itself, like human nature, has no independent reality or standard apart from the social environment in which it arises. Marx posits an ideal, says the ideal is inescapable and will be realized through violence and terror, and offers no moral standpoint from which to assess whether the ideal is truly just or not. His understanding of justice, in contrast to Madison’s, is abstracted from history and human experience.
With Madison and other American founders, intelligent moral agency is prerequisite for the possibility of justice. People, though passionate and prejudiced by nature, are also by nature capable of navigating their passions and prejudices through reason, persuasion, and discourse. Marxism, however, rejects this dialectic between passion and reason. All knowledge, even self-knowledge is conditioning. Though Marx was certain his vision for post-rational historically determined revolutions would eventually transcend violence and assure justice, in practice they never did. Instead, Marxist driven revolutions proved a recrudescence and extension of the same narrow puritanical violence pioneered by the Jacobins and Robespierre.
After Marx, many of his disciples present for consideration, but one in particular who stands out for his influence over late 20th century American intellectuals and the rise of the New Left is Herbert Marcuse. Marcuse perfected and popularized of the role of identity politics in shaping public life by engineering an ingenious synthesis of Marxism with Freudian psychology. He successfully translated virulent Communist puritanism into the idioms of culture and group identity by shifting the language of revolution from economic determinism to matters of personal truth and radical subjectivity.
The ostensible heart of Marcuse’s project is a critique of industrial based consumerism as a system of conditions that create modern of totalitarianism. Consumerism, technological advances, mass production, popular entertainment, and scientific management produced unprecedented social conformity in the modern world. Even more than the old system of repression allegedly created by the bourgeoisie, mass society generated new forms of oppression and domination. As a result, culture deteriorated and the idea of freedom itself became stunted under illusions created by new consumerist power structures. “Under the rule of a repressive whole,” Marcuse wrote with typical vagueness in 1964, “liberty can be made into a powerful instrument of domination.”[11]
Marcuse’s answer to this dilemma was what he called the “Great Refusal,” a cultural revolution whereby individuals return to a happier condition by rejecting all forms of repression and affirming a new subjective consciousness of fulfillment. He believed the Great Refusal could take a variety of forms, but the result would inevitably be the “emergence of different goals and values, different aspirations in the men and women who resist and deny the massive exploitative power of corporate capitalism even in its most comfortable and liberal realizations.”[12]
Cultural revolution, Marcuse argued, meant establishing a new kind of tolerance, “liberating tolerance,” led by a new kind of proletariat, not simply exploited workers, but resistance figures who struggle against all injustice—racial, economic, sexual, gendered, environmental—and who likewise held personal liberation to be as necessary to ending exploitation as social liberation was to an older generation of Marxists. Unambiguous in his purpose Marcuse wrote that liberating tolerance specifically meant “intolerance against movements from the Right, and toleration of movements from the Left.”[13]
Marcuse understood that revolution in the late modern post-industrial world would not necessarily reflect the same violent pattern engineered by Robespierre and Marx. But to bring about true, as opposed to false freedom, revolution was needed nevertheless. Marcuse concluded that in advanced capitalist societies a revolution that will bring about a just society begins not with violent upheaval, but rather with “intensified work in political education . . . [a] period of enlightenment prior to material change—a period of education, but education which turns into praxis: demonstration, confrontation, rebellion.”[14] The only force capable of countering the unjust dominating structures of modern life, argued Marcuse, is “an effectively organized radical left, assuming the vast task of political education” as a means of creating a way for both personal and social liberation.[15]
For Marcuse the classroom rather than the barricades is the incubator of a new more refined sans-culotte in search of justice. “History is made and recorded by and for the victors,” he wrote in Repressive Tolerance, and as such it is a record of “the development of oppression.”[16] Students must “learn to think in the opposite direction” or they will tragically remain in “the predominant framework of values.”[17] Marcuse’s definition of the predominant framework of values is elusive, but what is apparent is his inclusion of rational human nature as an impediment to overcoming those values. “The web of domination has become the web of Reason itself, and this society is fatally entangled in it.” he writes in One-Dimensional Man,” and again, “Reason … contradicts the established order of men and things on behalf of existing societal forces that reveal the irrational character.”[18]
Unlike the political anthropology articulated by Madison (and for that matter the larger Burkean tradition as well), Marcuse is not suggesting human nature is a mix of sentiment, feeling, affection, beliefs, and reason, and as such must learn to accept complexity and negotiate conflict to secure freedom and justice. Rather, he is urging that reason has been fetishized and abused in the modern West and it is an impediment to creating a just social and political order. In his assault on conformity, and in his celebration of identity as liberation, Marcuse rejects rational human nature as an organizing principle of reality. Humanness is plastic, it is whatever one says it is in the name of freedom. Essential nature is replaced by will and desire. No need for violence and terror to achieve justice because justice is no more or less than the realization of personal fulfillment and the assertion of one’s chosen happiness over inherited values and nature. Faction and conflict are not negotiated through politics, rather faction and conflict are encouraged until one political side completely obliterates the other. With Marcuse, Madison and the premises of American order are turned on their head.
From Robespierre to Marx to Marcuse demands for a more just world devolved into programs of violent terror, social perfection, and irrational and appetitive self-affirmation. Their agendas stand in marked contrast to James Madison’s and other American founders, and for many years their ideas had little impact on American life.
Which brings us to the present. In the summer of 2020 what began with the death of a black citizen at the hands of the police, an act that demands justice, ignited into a reflexive puritanical purge against all perceived oppression, real or imagined. Meaningful discussion, deliberation, and possible reforms of serious public consequence disintegrated. Mobs raged and found support in the media and elected offices. Robespierre’s and Marx’s ghosts hovered over the moment. Marcuse’s intellectual progeny fueled it. Madison’s politics of prudence was nowhere to be found. Wittingly or unwittingly Americans in the summer of 2020 rejected the Madisonian vision of justice tempered with virtue and reverted instead to the idea of justice as power.
Why so? Why now? One possible answer can be found in the long-standing deference academics and universities have given to radical thinking that rejects compromise and demands purity. Over the course of a generation the educated class in this country transformed the Civil Rights Act of 1964 into a sweeping program of identity politics at war with an abstraction called “privilege.” They expanded and weaponized literary deconstruction and critical theory, devices beloved by university mandarins and initiated student acolytes, to supposedly unlock and expose inequitable power relations. They disregarded inherited religious notions about the limitations of human nature and human freedom and turned sexuality, gender, and race into an ever-evolving experiment in social engineering. They charged outrageous tuition for degrees that emphasized such teachings at the expense of older humanistic pursuits intended to train for responsible citizenship and leadership.
“Justice” under these conditions slowly became the last metaphysical redoubt of religious experimentation and indifference at the same time aggressive appeals to power and identity found new homes in the world of education. The idea of justice lost its relationship to other virtues such as prudence, and in turn reverted to revisionist versions of Robespierre and Marx filtered through Marcuse. Vitriolic evidence of the turn manifested in the streets, but the distorted idealism was born in the classroom just as Marcuse urged.
If this explanation is plausible Madison’s legacy, like virtually all influential figures from Western history, has been reduced to the selfish interests of his gender, class, and race. He, like all of the American architects were, so it goes, inconsistent, limited by time and place, and fell short of their promise of freedom. These criticisms, however, beg the larger question of the accomplishment of the Madisonian moment and its meaning for our time. People in pursuit of an ideal, perhaps especially in pursuit of an ideal, are always limited by time and place, always inconsistent, always fall short of idealism, and can always choose otherwise. Madison’s vision accounted for these failures and shortcomings. Today’s zealots for justice do not. They do not because they have no vision, regard, or account of the limitations of human nature in relation the pursuit of justice through politics.
And this is just the point. Reject Madison’s, as well as other founder’s, great insight about the relationship between virtue, justice, and power and freedom itself is compromised in pursuit of purity. But “pure” justice, including racial justice, is not possible through politics alone because the pursuit of justice is limited by human fallibility. This is precisely why Madison and the founders envisioned a system of government that could absorb the inconsistencies of human motives. Likewise, it is why they held virtue to be the chief prerequisite for maintaining a just political order. If, with Marx and Marcuse, you believe virtue to be a deception of bourgeois power and reject its influence in the pursuit of justice then Madison is irrelevant. The American project is itself an artifact, and a new order is necessary to bring about an imagined better existence. As the summer of 2020 demonstrates, this may in fact be what some envision.
But how will this new order account for human behavior? How will it control ambition and faction? What measures will it put in place to mediate differences and conflict in public life? Madison and the American founders had an answer that allowed for compromise, growth, and stability. Astoundingly, their foresight even allowed for the correction of the inherited unjust birth defect of slavery and eventually expansion of civil rights. The alternative to the Madisonian vision is coercion and punishment, evidence of which can be found in almost every modern revolution from oaths of allegiance, to political trials, to cultural purges, to the Gulags, reeducation camps, and executions.
Madison made room for dissent and disagreement without resorting to savagery or subversion. Robespierre, Marx, and Marcuse did not, and their moral resources for cultivating and sustaining the pursuit of justice are anemic to non-existent. Violence and power supply the deficit. Madison, by contrast, understood the pursuit of justice begins with a morally responsible yet flawed human nature. He and other American Founders also knew this flawed nature could not be perfected through politics. In fact, suspicions that such efforts would impede if not destroy freedom and justice motivated their creative fragmentation of power across multiple entities. In effect, their vision understood diversity before diversity was popular.
The summer of 2020 exposed the seduction and destructiveness of political puritanism as disseminated through a generationally confused educational system. America’s elites who presume to speak for the dispossessed face a critical crossroad. They can continue to either naively or intentionally push the narcotic of group identity and power as the foundational premise for a just society; or, they can revisit and educate themselves and their students on Western principles of virtue and ordered liberty as the only responsible means by which justice is sustainable. To choose the latter will require courage, prudence, and wisdom, and perhaps even faith, hope and charity—habits of thought and behavior still possible even for repentant political puritans living in an imperfect and imperfectible world.
Notes
[1] Maximillian Robespierre, “Report on the Principles of Political Morality Which are to form the Basis of the Administration of the Interior Concerns of the Republic, Speech to the Convention February 5, 1794.” Selected Writings And Speeches. (CreateSpace Independent Publishing Platform; First Edition, October 19, 2016).
[2] Ibid.
[3] James Madison, “Federalist No. 10,” The Essential Federalist and Anti-Federalist Papers, ed. David Wootton. (Indianapolis: Hackett Publishing Company, 2003).
[4] Ibid., Federalist No. 55.
[5] Ibid., Federalist No. 51.
[6] Karl Marx, Neue Rheinische Zeitung, No. 136, November 1848.
[7] Karl Marx, “Manifesto of the Communist Party,” The Marx-Engels Reader, ed. Robert C. Tucker (New York: W.W. Norton & Company, 1978)
[8] Karl Marx, A Contribution to the Critique of Political Economy, Trans. N.I. Stone (North Delhi DL: Lector House, 2020)
[9] Marx, “Hegel’s Philosophy of Right,” The Marx-Engels Reader.
[10] Ibid.
[11] Herbert Marcuse, One Dimensional Man (Boston: Beacon Press, 1964).
[12] Herbert Marcuse, An Essay on Liberation (Boston: Beacon Press, 1969).
[13] Herbert Marcuse, Repressive Tolerance. https://www.marcuse.org/herbert/publications/1960s/1965-repressive-tolerance-fulltext.html
[14] Marcuse, An Essay on Liberation.
[15] Herbert Marcuse, Counter Revolution and Revolt, (Boston: Beacon Press, 1972).
[16] Marcuse, Repressive Tolerance.
[17] Ibid.
[18] Ibid.
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