During the spring of 1787, in preparation for the Philadelphia Convention that summer, Madison turned his critical gaze on a confederation closer to home. The title of his newest project was “Vices of the Political System of the United States.” The document is a more polished and focused piece of writing than the fragmentary “Notes” he had compiled of other confederacies. In it, he enumerated the defects experienced under the Articles of Confederation (the failure of the states to comply with requisitions, encroachments by the states on the federal authority, abuses of one state by another, etc.), and next to each heading Madison supplied examples recent history and dire warnings of the evils that would inevitably proceed from that vice. For instance, very year produced new violations of the treaties with France and Holland by one state or another. The only reason why these violations had not yet resulted in calamitous wars was owing to the forbearance of other nations. But the United States would be dangerously naïve to expect such forbearance to last, and as long as the Articles retained unchanged, violations such as these could be expected to continue.
Madison elaborated on each of the Confederation’s vices: its insufficient powers; its inability to execute the powers it did possess; and the states’ trespasses upon the federal authority as well as the rights of other states. Each of these “vices” had a remedy, most of which amounted to giving more authority to the central government at the expense of the states. For instance, one of the defects of the existing Articles was that it had been ratified by the state legislatures. Therefore, any time a state legislature violated the terms of the Articles, it was unclear which act of the legislature should take precedence—its prior agreement to abide by the Articles or its subsequent violation of them. The solution, then, was for a new compact to be formed and ratified by the people of each state, which would clarify that the federal compact took precedence over ordinary state laws.
Madison focused much of his attention on the dysfunctions within the state governments. Although only three of the eleven vices on which Madison elaborated relate to the internal structure of the state governments, his discussion of those three comprise about half the total length of the document. He railed on the mutability and injustice of state laws (he also listed a twelfth vice—the impotence of the state laws—but the unfinished document fails to provide any commentary on this last one). Their deficiencies were not merely a matter of the balance of powers between the state and federal governments being out of kilter; rather, lacking a firm hand at the tiller, the entire experiment in republican government was breaking down within the states—the vey bodies that were supposed to exemplify the republican form of government.
State legislatures were making too many laws; they were changing the laws too frequently; and the laws they passed too often favored one group to the detriment of another. Of all the vices that Madison found blameworthy in the state laws, none received more condemnation than their injustice. Republican governments had to pass only two tests to prove their legitimacy. First, the source of all political power to be derived from the people; second, governments must be instituted for the protection of the people’s rights. The brutal truth, Madison was coming to realize, was that governments that could pass the first test with flying colors usually failed the second test. Religious majorities threatened the rights of religious minorities, and property rights were threatened by the clamorous demands of the debtor class. When the majority of people acted tyrannically so consistently, it called into question the political wisdom of deriving all power from the people. Madison warned that the injustice of state laws “brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.” The very future of popular forms of government therefore depended on finding some remedy for the scourge of unjust state laws.
It is within the pages of the “Vices” that Madison first laid out a revolutionary new argument that he would later develop further in the debates in the Constitutional Convention, in a lengthy letter to Jefferson immediately after the Convention, and, most famously, in Federalist No. 10. The true source of the evils they were experiencing, he thought, was not the structure of government; in truth, political arrangements could only exacerbate or ameliorate the real problem. The true source of their ills could be found in the nature of man. People favor their own interests above the common good; therefore, whichever group holds the reigns of political power can be expected to use it for their own benefit to the detriment of others. This outcome would always be the case unless some measures were taken to prevent it. And the measures that had already been tried in the state governments—bills of rights or separation of powers—had so far proved too ineffectual to counter the magnitude of the problem.
The solution to the problem of faction, according to Madison, was a republican government that was the opposite of what most everyone else was insisting it had to be. Most people at this time believed that republics needed to be small, in order to render the citizenry loyal toward their compatriots. Madison argued instead that republics needed to be much larger, in order to keep self-interested motives from infecting a majority of the citizenry. In larger republics, “the society becomes broken into a greater variety of interests, of pursuits, of passions, which check each other.” Madison made clear that the people in a large republic were no less prone to following selfish interests than they were in a small republic; nevertheless, “a common interest or passion is less apt to be felt and the requisite combinations less easy to be formed by a great than by a small number.” When a majority interest did form on a particular issue, the members of that group were likely to differ on other issues, preventing formation of an oppressive faction. Hence, the structure of government, and especially its extended size, could mitigate the lethal effects of faction.
Madison’s diagnosis of the Confederacy’s infirmities was no less radical than the remedy he proposed for it. Many others at this time were hoping that the forthcoming Convention would solve their international embarrassments and interstate dissensions. And Madison shared these hopes. But he was also trying to solve local problems with continental reform, and he may have been the only delegate to arrive in Philadelphia with that object. But if the Convention’s proposed government had any chance of success, it would have to provide solutions to the whole array of problems. It each of the “Vices of the Political System of the United States” that Madison named implied a corresponding virtue, his next project was to turn those implied virtues into a plan.