A constitutional oligarchy: Deconstructing Federalist No. 10

See correction, June 7, 2020 (supersedes previous correction) at end of post.


I often say that the U.S. Constitution ensures oligarchy, that James Madison sought to protect the minority rights not of any subaltern group, but the property rights of wealthy white male slaveholders. How do I get this?

There are two important pieces to this argument: First, we need to understand the importance of the Federalist Papers. Second, in Federalist no. 10,[1] Madison was not very subtle about how he thought power should be allocated.

First, the Federalist Papers sought to persuade voters in the state of New York (generally male property owners, see correction above[2]) to support the then-proposed constitution that had emerged from a convention in Philadelphia. They were written by three authors, Alexander Hamilton, James Madison, and John Jay, in collaboration, all using the name “Publius” for publication. Of these, Jay is especially important as the first chief justice of the U.S. Supreme Court. The founding fathers were circumspect about their intended meanings in writing the constitution,[3] but because of Jay’s influence, we can infer that much initial precedent draws on the thinking in the Federalist Papers. As precedent guides subsequent decisions, this thinking was “baked in” to the system. In his introduction, Garry Wills writes,

Though The Federalist did not motivate people to adopt the Constitution, it supplied them with the most authoritative interpretation of the Constitution once it was adopted. The text of the Philadelphia draft is brief. It mandates; it does not explain. It does not enunciate doctrine—there is no mention in it of checks and balances, of separate powers, of judicial review. Furthermore the debates of the delegates in Philadelphia were secret; no official record gave reasons for shaping the clauses as they stand. Even Publius pretends in several places that he is not privy to what went on in Philadelphia. [emphasis in original][4]

In short, the Federalist Papers offer an indisputably important clue as to meaning in the unamended Constitution.

In Federalist No. 10, Madison begins by observing that

the public good is disregarded in the conflicts of rival parties; and that measures are too often decided, not according to the rules of justice, and the rights of the minor party; but by the superior force of an interested and overbearing majority.[5]

The first question here is of “justice.” Whose justice, we should ask, according to what priorities? Whose principles?

Second, Madison wants to protect minority rights. Which minority?

Third, who is the “public” whose “good” would be protected?

It is clear, as Madison proceeds, that he is addressing faction and that he sees opposing views as inherent to the human condition.[6] That said,

the most common and durable source of factions has been the various and unequal distribution of property. Those who hold, and those who are without property, have ever formed distinct interests in society. Those who are creditors and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a monied interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views.[7]

Madison, we see, is principally concerned with the minority interest of property owners. There are other causes of faction, but stepping back in a way that Madison fails to do in his writing, they divide neatly into the one he names as “most common and durable,” that is, between those who own property and those who do not.

Hence it is, that such Democracies [in contrast to Republics] 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.[8]

Thus we see that Madison’s concern for minority rights is not about subaltern groups but rather for property owners. Many of the founding fathers, we would note here, were landed slaveholders. They were white, male, and wealthy. Federalist No. 10 is not about protecting the poor from the rich, enslaved humans from those who claimed ownership of them, women from men, or nonwhites from whites, but rather the reverse.

We next move on to the question of how power should be allocated:

No man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.[9]

But here the mischief of citing those other interests, which are really still about property, whether in land, manufacturing, shops, or bluntly, money, becomes important.

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote: It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government on the other hand enables it to sacrifice to its ruling passion or interest, both the public good and the rights of other citizens.[10]

This only works as long as we can subdivide those propertied interests and pit them against each other. But particularly with the benefit of hindsight, we see that those interests in fact have a great deal in common. Much more unites them than divides them[11] and there is considerable evidence in support of a claim that caste distinctions exist between the rich and at least the middle class,[12] while I would argue that an additional caste distinction often coinciding with race exists between the poor and middle classes.[13]

Understanding the U.S. as a caste society exposes how Madison’s factions actually function. Howard Zinn’s history is largely about how much the upper caste must concede across what we can recognize as a caste boundary between the upper and middle castes, to prevent the middle and lower castes from uniting against them[14] and we can thus understand the stigmatization and scapegoating aimed at the lower caste as a means of social control to keep the middle caste allied with the upper caste.[15] If you wonder why, as is often claimed, the poor do not vote, it is because the republic is aligned against them. Even if they vote, they are consistently outvoted. Madison’s protection of “minority rights” does not extend to them and the “public” whose “good” Madison would ensure does not include them.

I am often purist about the distinction between a republic, a so-called “representative democracy,” and a democracy, sometimes called “direct democracy,” and I cite Federalist No. 10 for that distinction. Madison explains:

The two great points of difference between a Democracy and a Republic are, first, the delegation of the Government, in the latter, to a small number of citizens elected by the rest: secondly, the greater number of citizens, and greater sphere of the country, over which the latter may be extended.[16]

Taking these in reverse order, the second point here is that a republic scales in a way that a direct democracy cannot: Imagine trying to pack a population of over 300 million people into any kind of forum to debate and decide an issue, and not just an issue but a multitude of issues in modern society, and you see, to an extreme Madison might never have imagined, the problem he is in fact addressing.

But the first point there raises a question: Who shall comprise that “small number of citizens elected by the rest?”[17] In the context of an exchange system, any electoral system will favor those who are able to pay for attention, be it through advertising or other forms of publicity. Madison continues:

The effect of the first difference is, on the one hand to 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.[18]

Hannah Arendt understood society as dividing into public and private realms, with the public dominated by men who had (allegedly) accomplished great things and acquired the wealth that spared them the indignities of needing to devote much attention to matters of day-to-day life, cooking, housecleaning, earning a living, and the like. It is such people who could devote their full attention to public affairs, to politics.[19] I see no other way of understanding Madison’s “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”[20] than through Arendt’s lens and it is thus that the rich will indeed be judges in their own causes.

It follows then, that I am unimpressed by the hair-pulling over Citizens United. Federalist No. 10 shows us that the U.S. Constitution in fact enshrines oligarchy, just as the wealthy white male slaveholders who wrote it would have preferred.


Correction, June 7, 2020 (supersedes previous correction): A question I have been meaning to answer since originally writing this posting on April 22, 2020 is, who were the authors of The Federalist Papers aiming to persuade to support the proposed U.S. Constitution? We know that this was a campaign in the state of New York and that these Papers were published in newspapers.[21] The intended audience, therefore, logically would have included eligible voters of the time in that state and, as we shall see, answering the question requires a deep dive, deeper than I have yet completed, into some obscure minutiae.

The state of New York ratified the Constitution at a “ratifying convention” on July 26, 1788, becoming the 11th state to do so,[22] but I do not know how delegates were selected for this convention. Federalist No. 10 is dated November 22, 1787,[23] and the last of the Federalist Papers, No. 85, May 28, 1788.[24]

In general, it appears that the right to vote for Assembly members in the state of New York from 1776 to 1790 was limited to male property owners with a value of at least 20 pounds and renters paying 40 shillings or more annually. Renters do not seem to have been eligible to vote in Senate elections. To vote for members the Senate, it appears one had to be a male property owner with a net property value of 100 pounds over that pledged as collateral.[25] I interpret ‘Assembly’ and ‘Senate’ as houses of the state legislature. I do not know how these amounts translated to ‘Continentals,’ a severely devalued U.S. currency at the time[26] and I do not know how these amounts would translate to today’s dollars, nor am I clear on how these requirements would have affected the selection of delegates to ratify the U.S. Constitution. There were two exceptions: First, in Albany, any freeman could vote; and second, in New York City, any freeman who had been freed on or before October 14, 1775, could vote. Race does not seem to have affected voting rights in the state of New York prior to 1821.[27] I have not found what proportion of the electorate these exceptions amount to.

All this seems fairly maddening. I’m guessing these thresholds represented significant sums of money and that it would have been reasonable for the authors of The Federalist Papers, those being Alexander Hamilton, James Madison, and John Jay,[28] to have tailored their arguments to the well-heeled, a majority of whom were surely white.

  1. [1]James Madison, “Federalist No. 10,” in The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003), 50-58.
  2. [2]Alexander Keyssar, The Right to Vote (New York: Basic, 2009).
  3. [3]Garry Wills, Introduction to The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003).
  4. [4]Garry Wills, Introduction to The Federalist Papers (New York: Bantam, 2003), xi-xii.
  5. [5]James Madison, “Federalist No. 10,” in The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003), 51.
  6. [6]James Madison, “Federalist No. 10,” in The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003), 50-58.
  7. [7]James Madison, “Federalist No. 10,” in The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003), 52-53.
  8. [8]James Madison, “Federalist No. 10,” in The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003), 55.
  9. [9]James Madison, “Federalist No. 10,” in The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003), 53.
  10. [10]James Madison, “Federalist No. 10,” in The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003), 54.
  11. [11]Christopher Hayes, Twilight of the Elites (New York: Crown, 2012); C. Wright Mills, “The Structure of Power in American Society,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 139-145.
  12. [12]John Asimakopoulos, The Political Economy of the Spectacle and Postmodern Caste (Leiden, Netherlands: Brill, 2020); Peter W. Cookson, Jr., and Caroline Hodges Persell, “The Vital Link: Prep Schools and Higher Education,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 380-391; G. William Domhoff, “The American Upper Class,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 156-164; C. Wright Mills, The Power Elite (Oxford, U.K.: Oxford University Press, 2000); Christopher Hayes, Twilight of the Elites (New York: Crown, 2012); C. Wright Mills, “The Structure of Power in American Society,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 139-145; Kanishk Tharoor, “The Exclusivity Economy,” review of The Velvet Rope Economy: How Inequality Became Big Business by Nelson D. Schwartz, New Republic, April 21, 2020, https://newrepublic.com/article/157153/velvet-rope-economy-book-review-rich-exclusivity-hides-inequality; Ralph H. Turner, “Sponsored and Contest Mobility and the School System,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 71-76.
  13. [13]Regina Austin and Michael Schill, “Black, Brown, Red, and Poisoned,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 440-448; Robert D. Bullard, “Environmental Justice for All” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 418-430; Lisa Catanzarite and Vilma Ortiz, “Family Matters, Work Matters? Poverty Among Women of Color and White Women,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 165-172; Kathryn Edin and Laura Lein, “Making Ends Meet at a Low-Wage Job,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 173-185; Barbara Ehrenreich, Nickel and Dimed (New York: Owl, 2001); Herbert J. Gans, The War Against The Poor (New York: Basic, 1995); Herbert J. Gans, “The Uses of Undeservingness,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 85-94; Jonathan Kozol, Savage Inequalities (New York: HarperPerennial, 1991); Jonathan Kozol, “The Savage Inequalities of Public Education in New York,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 392-410; Charles Lee, “Toxic Waste and Race in the United States,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 431-440; Jeffrey Reiman, “Weeding Out the Wealthy,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 146-155; Marta Tienda and Haya Stier, “The Wages of Race: Color and Employment Opportunity in Chicago’s Inner City,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 224-234.
  14. [14]Howard Zinn, A People’s History of the United States (New York: HarperPerennial, 2005).
  15. [15]Herbert J. Gans, The War Against The Poor (New York: Basic, 1995); Herbert J. Gans, “The Uses of Undeservingness,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 85-94; Jonathan Kozol, Savage Inequalities (New York: HarperPerennial, 1991); Jonathan Kozol, “The Savage Inequalities of Public Education in New York,” in Great Divides, ed. Thomas M. Shapiro (New York: McGraw Hill, 2005), 392-410.
  16. [16]James Madison, “Federalist No. 10,” in The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003), 55.
  17. [17]James Madison, “Federalist No. 10,” in The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003), 55.
  18. [18]James Madison, “Federalist No. 10,” in The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003), 55.
  19. [19]Hannah Arendt, The Human Condition (Chicago: University of Chicago, 1998).
  20. [20]James Madison, “Federalist No. 10,” in The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003), 55.
  21. [21]Garry Wills, Introduction to The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003).
  22. [22]New York Historical Society, “New York Ratifies the Constitution,” July 26, 2017, http://blog.nyhistory.org/ontd-new-yorks-ratification-of-the-constitution/” target=”_blank”>http://blog.nyhistory.org/ontd-new-yorks-ratification-of-the-constitution/
  23. [23]James Madison, “Federalist No. 10,” in The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003), 50-58.
  24. [24]Alexander Hamilton, “Federalist No. 85,” in The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003), 531-538.
  25. [25]Alexander Keyssar, The Right to Vote (New York: Basic, 2009).
  26. [26]Paul S. Boyer et al., The Enduring Vision, 8th ed. (Boston: Wadsworth, 2014).
  27. [27]Alexander Keyssar, The Right to Vote (New York: Basic, 2009).
  28. [28]Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Garry Wills (New York: Bantam, 2003).