The Politics of Natural Right: Federalism as Remedy
Within democratic politics exists the potentially destabilizing tension between popular will and natural right. Democracy is often considered to be a uniquely legitimate regime, governed by popular consent and participation rather than coercive force. However, democratic theorists and statesmen have also long recognized that self-rule can generate its own form of coercion, wherein a tyrannical majority violates the rights of a political minority. In modern American democracy this dangerous tendency is often thought to be restrained by the judicial branch, which overrides democratically enacted laws that violate natural rights protected by the Constitution.
In this paper, I will argue that our reliance on judicial decisions to adjudicate issues of natural right debilitates our political discourse, and that the judiciary lacks the capacity to effectively address these matters when society is divided over moral questions. Instead, I will argue that the American federalist structure itself-rather than a single branch within that structure, acting more as an external check on democratic action rather than a constituent part of it-is most suited to translating popular will into public policy while also protecting political minorities from tyrannical majorities. In Federalist #10 Madison doubts the possibility “that enlightened statesmen will be able to adjust these clashing interests,” and, rather than looking to a force external to democratic politics to adjudicate factional conflict, Madison indicates in Federalist #51 that “as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” The compound structure of American democracy, “divided between two distinct departments” in a federalist structure, offers remedy for democratic ills.
I will distinguish federalism from state’s rights and unitary institutional approaches, and demonstrate that federalism is capable of maintaining political diversity while organically nationalizing and adjudicating issues of natural right. This structure allows federalism to sustain political diversity when disagreement over morally contested issues persist, compel moral discourse over such questions between citizens in differing states, and finally resolve the matter after a compound majority develops. Furthermore, federalism opens the possibility for increased political and moral education among the citizenry, improving the nature of political discourse and maintaining unity in a morally divided political society. Here I will look to Abraham Lincoln’s approach to the question of slavery, and argue that while both he and Stephen Douglas agreed that the legal status of slavery ought to be left to the states, Douglas’s understanding of federalism improperly nationalized the issue through the judiciary, while Lincoln’s emphasis on moral engagement across state lines serves as a model for how to approach issues of natural right through federalist institutions. In my paper, I will primarily draw from James Madison and Abraham Lincoln when articulating and defending this form of federalism, and the function it can play in maintaining democratic politics, particularly within the American context.
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