In Federalist 10, James Madison tells us why the Framers chose a representative democracy, a republic, rather than a pure, direct, democracy as the form of government for our new nation. He defined a "pure democracy" as "a society consisting of a small number of citizens, who assemble and administer the government in person." He defined a "republic" as "a government in which the scheme of representation takes place." These were the only two choices. By definition the "pure democracy" was disqualified. The new nation was too large in geographical area and in population for the citizens to "assemble and administer the government in person." But there was one more difficulty with pure democracies. Mr. Madison said:
A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such [pure] democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.
I take Mr Madison's words to mean that "pure" democracies, by their very nature, inevitably trample individual rights and oppress minorities. I think he is saying that the small size of the pure democracy enables the citizens to communicate face-to-face and this will cause passions, rather than reason, to dominate action. A charismatic, forceful leader, I think, can take over the discussion and direct the group to whatever ends he may desire. Tyranni are certainly more forceful than liberti and, given the opportunity and the talents, are more likely to gain power in such a situation. If a tyrannus should gain control of a pure democracy then the government is a democracy no longer.
One of the high officials of our current national government was also concerned about the effects of personal charisma on the administration of justice. On November 23, 2005, Supreme Court Justice Stephen Breyer was interviewed by Larry King on his cable television show, Larry King Live. They were talking about Mr. Breyer’s new book, Active Liberty: Interpreting our Democratic Constitution. Mr. King took the opportunity to ask Justice Breyer about television. The conversation went like this:
KING: We're back with Justice Stephen Breyer. The book is "Active Liberty." Why in an open society can’t we watch the court?
BREYER: Ah-ha.
KING: Why can’t a camera be – what is so sacrosanct?
BREYER: Nothing. Why can’t you? You can go over [to the court] and watch.
KING: But maybe you’re [the person who wants to watch the court] in Delaware?
BREYER: Yes, yes, that you raise and I'm being facetious, a little flip and I won't be, so you want to know why don't we let cameras into the courtroom? And there’s a lot to be said to letting them in.
Sometimes I think we have a case, one that always comes into my mind in this respect is a case about term limits. Could the state of Arkansas impose term limits on their members of Congress under the Constitution?
My goodness that was a close case, you know, if you looked at the language it doesn't really tell you. If you look at the history, you saw Madison on one side, Jefferson on the other side, John Marshall on one side, Storey on another side, my goodness it was hard and everything seems very evenly balanced and if people could have seen the oral argument in that case, they would have thought, well, here are nine people who really don't purport to have the answer. They're simply struggling to find it.
KING: What’s wrong with that?
BREYER: Nothing. That's good, so why not [permit television in the court]? Well, here are the things that we worry about. If there were television in the courtroom, would it be in every criminal trial in the United States?
And, could you have a trial with witnesses, with jurors who might be worrying about what their neighbors would think and so forth and so on. There are a lot of people who think television poses a special problem in criminal cases.
KING: What in your court, what problems?
BREYER: We're afraid not. It wouldn't pose that problem but for one fact. We are a symbol and if we're a symbol and we have it [television], will it be possible to resist? It’s very powerful, television, very powerful.
There's another thing too that bothers me. One is – it's this, that people understandably and wonderfully relate to other people. They will relate to the people in front of them. They will say, "I like that lawyer, don't like this one, like this judge, don't like that one." And what about the story of the person they're representing? What happened to that client and what happens to the other?
Well, in the Supreme Court we have to be aware not just of the people before us, we have to be aware of 200 or 300 million people who will be affected by the rule of decision and they're not there, so I worry about that because I don't want people to get a misimpression. The oral argument itself is like five percent of the whole thing.
Most of what we do is in this enormous stack of briefs. Most of what we do is in memos, briefs, reading. I say when people say what is the job like you know what I say? I say what is it like every day? I said I told Michael, my son, I said, "You know, Michael, if you do your homework really well, you'll get a job and you can do homework the whole rest of your life." So, I said now will people understand that?
Mr. Breyer’s remarks, in my view, are in accord with those of Mr. Madison. Both men understood that personal charisma can be a powerful force in determining the course of events. Mr. Madison did not know about television, but he knew that in small groups, which rely on face-to-face communication, charisma can be more effective than reason because it can stir passions. Mr. Breyer knows that television is the modern magnifier of face-to-face communication and it can put a charismatic leader face-to-face with millions of people. Mr. Breyer feared that millions of citizens, watching court proceedings via television, might succumb to the personalities they were watching and come away with an incorrect impression of how the proper administration of justice works. Careful deliberation and analysis of facts are the essential elements of good jurisprudence, not the personal charisma of judges and lawyers.
This conflict between personality and reason appears throughout our political system and other public institutions. For example, when there is a presidential debate during a party’s primary process, all the candidates show up in person. None of them mail in their answers to be scrolled as written text across the screen. Like it or not, each must put his personality, his charisma, on display to be evaluated by millions of citizens who are trying to find the best "guardians of the public weal." Mr. Breyer’s answers to Mr. King’s questions are a little disorganized and rambling, yet he is without doubt a very intelligent man who understands the question and its importance. Yet even he sometimes fumbled. I mean this as no criticism, but on this occasion Mr. Breyer was not very charismatic. But that is not what we need in our Supreme Court justices. We need thoughtful, intelligent people who can think clearly and analytically. But in presidential primary debates we showcase the charisma, or lack of it, of the candidates. In the Democratic presidential race in 2008 Dennis Kucinich was noted for his lack of charisma. As a consequence Mr. Kucinich’s ideas were given little serious consideration, because everyone knew he had no chance of winning—in the television age, people without charisma don’t become president, except by accident. The media gently ridiculed him for this supposed deficiency, while the Internet blogosphere was often cruel. George W. Bush, in the 2000 presidential race against Al Gore, was often described as someone you would like to have at your backyard cookout. He appeared to be personable, even affable, and his initial charm won him votes so that his ideological sympathizers on the Supreme Court could give him the office. But as events unfolded we learned that he is one of the men that George Washington warned us about. George W. Bush is a tyrannus, a "cunning, ambitious, and unprincipled" man, yet he served as President of the United States of America for two full terms, and in so doing caused great harm.
Mr. Breyer said in Supreme Court cases oral argument is "like five percent of the whole thing." But as we all know, if we take time to think about it, in presidential elections, and in Senate and House elections as well, oral argument, or oral posturing, is the "whole thing." There is something terribly wrong with this picture.
So the deficiencies of the "pure" democracy are well established, but the republic had its own problems. While it could be effective in larger nations than the pure democracy, the natural struggle between tyranni and liberti was in full force and had to be managed. Mr. Madison put it this way:
[The republic can] refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people.
The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter...
Mr. Madison answered his own question by deciding that the large republic is better than the small republic for electing "proper guardians of the public weal." He argued that each size of republic would have the same percentage of good men within its own population, and therefore the large republic, in absolute terms, would have more good men to choose from. Simply put, he argued that the republic that is twice as populous as another would have twice as many good men. He also argued that the districts in a large republic will be made of more voters and therefore it will be more difficult for a bad man to fool all of the people thereby making it more difficult for such a man to win office. And finally, he argued that a large republic would be likely to have more diverse points of view and more diverse interests in various issues than would a small one. These different parties would tend to control each other and limit their adverse effects on society as a whole. By having several small parties rather than a few large ones, or, say, two large ones, the People would be better served. From all these arguments we get our current form of government, a republic, a representative democracy. Or so it is widely believed.
Is Our National Government a "Pure Democracy?"
As its President, George Washington made only one statement during the Constitutional Convention in Philadelphia, and it was about Mr. Madison’s "scheme of representation." The convention was in its final stage, delegates were preparing to sign the finished document, but there was still a discussion about how many people should a representative represent. Should it be thirty or forty thousand? Mr. Washington indicated that "smaller congressional districts would ensure a closer relationship between representatives and their constituents." The thirty thousand number passed unanimously.
The Constitution established rules for determining the representatives for each state, but these rules depended on a census of the national population. Until such a census could be taken the Constitution called for 65 delegates to the House of Representatives. After the first census was completed in 1790 the constitutional formula was applied and the number of delegates grew to 105. The actual calculation of the number of delegates is a little complicated and it has been altered a few times over the years. Congress passed legislation to limit the number of delegates to 435 in the early part of the 20th century.
If we divide our present population of 300 million by 435 we find that each member of the House represents about 690,000 Americans—twenty-three times more than the number Mr. Washington favored. If we divide the same 300 million by Mr. Washington’s number of 30,000 we find that 10,000 House members would be needed. Which number should it be, 435 or 10,000? Is the first too small and the second too large? Before I answer these questions, let’s see what Mr. Madison had to say about them.
Again in Federalist 10, he said that the number must be large enough to "guard against the cabals of a few." But he said that the number should also be small enough to "guard against the confusion of a multitude." Both are very sensible propositions, but the technology of the time did not permit them to be evaluated based simply on their own merits. The modes of travel in the 18th century made it difficult to imagine a very large number of members coming to the seat of government from far off places. And there was no other technologically feasible way to run the government except by meeting in some suitable place. Thus the new national government immediately assumed the form of a "pure" democracy—a small number of delegates, 65 at first and then 105 after 1790, {and a mere 435 today} were to meet and administer the government in person. And remember that Mr. Madison, when he was describing the shortcomings of a "pure" democracy, said that its deficiencies resulted from the "form" of the government itself.
Now it might be argued that there is a difference between a citizen of a "pure" democracy and a representative in a republic. The citizen in the "pure" democracy is present and speaking for himself. The representative in a republic is present but he is speaking for those whom he represents. But this argument fails because our representatives are notorious for speaking for themselves. They do not speak for the totality of the citizens they represent and that would be impossible, for even in gerrymandered districts of approximately 690,000 people there is always a minority of citizens who hold opinions that disagree with the majority. Of course our representatives may not even speak for the majority in their districts. They are free to speak for corporations or unions or any other vested interest. So, in essence, it is folly to think that our representatives speak for anyone other than themselves. Their intentions may be good, and they may try to balance the competing interests of the people they represent, but at bottom they must make a judgment and this can only come from their own personal point of view.
Mr. Madison said that the republic would have an advantage over the smaller pure democracy because a smaller population would more easily fall victim to "plans of oppression:"
The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression.
So today we have a huge republic, with only two parties—not the many "distinct parties and interests" that Mr. Madison expected. Mr. Madison’s theory has not worked. In fact, the members of Congress, acting in their own self-interest, have acted to increase, rather than dilute, their power by voting to maintain the number of representatives to the House at 435 rather than increase it as our population increased.
As we saw above, if we had maintained the ratio of citizens to representatives at 30,000 to 1, as Mr. Washington preferred, we would have a House of 10,000 members. Because of this artificial limitation of 435 members our House needs only 218 members to constitute a majority and control the agenda. And there is nothing to keep such a majority from carrying out schemes that defeat the design goal the Framers had in mind: to control tyranno-parties. Such a tiny majority could easily take actions that are "adversed to the rights of other citizens, or to the permanent and aggregate interests of the community."
So, in my view, no matter if the government is a republic or a pure democracy, the person who is present and who has the power to vote will vote his personal opinions and beliefs. This means that a representative democracy, a republic, contrary to its underlying theoretical characteristics, actually functions as a "pure" democracy, with all its deficiencies, so long as the republic has a small number of representatives who meet to administer the government in person. This fundamental weakness could not be corrected until very recently. But during my lifetime technologies have been developed and proved which make it easy finally to establish what the Framers wanted.
If the number of 435 representatives is too small then is 10,000 too large? The number of 10,000 representatives is actually just right. If we choose this large number of delegates for the House of Representatives, and if we arrange things so that they do not have the opportunity to exert charismatic influence on each other, and if we select them randomly from the People, and if we enable them to conduct the affairs of government without ever meeting in person, and if we give them the resources they need, and if we truly limit their powers, and if we let them use their power for a very specific and limited purpose, and if we reduce their time in office to the briefest possible, and if we protect them from undue intrusions and influence from others, and if we enable the rest of the People to easily see what is happening, and if we provide a way for the People to directly voice their concerns and ideas, and if we provide a mechanism for the People to accept or reject the decisions reached by the 10,000, then we will have a truly representative democracy. As you can see, there is nothing to it. If the Framers had access to the technologies available to us, they would have done what we are now able to do.