Constitutional Majoritarianism against Popular “Regulation” in the Federalist

• Author: James Lindley Wilson
• DOI: 10.1177/00905917211043796
• Published date: 01 June 2022
• Date: 01 June 2022
• Subject Matter: Articles

https://doi.org/10.1177/00905917211043796

Political Theory

2022, Vol. 50(3) 449 –476

© The Author(s) 2021

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DOI: 10.1177/00905917211043796

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Article

Constitutional

Majoritarianism against

Popular “Regulation” in

the Federalist

James Lindley Wilson1

Abstract

In this essay, I make the interpretive claim that we cannot properly understand

the Federalist without appreciating the extent to which the papers mount a

sustained rejection of extra-constitutional democracy—practices in which

people aim to assert authority over the terms of common life in ways that

are not sanctioned by existing laws. I survey such practices, which were

common in America before and after the Revolution. I argue that there is

continuity between Publius’s justification for rejecting extra-constitutional

democracy and his justification for his preferred system against constitutional

alternatives. Adequate analysis and evaluation of the Federalist’s arguments

about faction, representation, and institutional design require attention

to the double duty the arguments play against constitutional and extra-

constitutional opposition. This interpretive argument supports several

analytic and evaluative conclusions. First, we must distinguish a new form

of “non-hierarchical dualist” constitutionalism, according to which irregular

democratic activity need not be limited to extraordinary “constitutional

moments” or revolutions. Second, the politically egalitarian character of

procedures depends not on the procedures alone, but how the maintenance

of such procedures limits other forms of democratic practice. Third, the

1Assistant Professor, Department of Political Science, University of Chicago, Chicago, IL, USA

Corresponding Author:

James Lindley Wilson, Assistant Professor, Department of Political Science, University of

Chicago, 5828 S University Ave, Pick 521, Chicago, IL 60637, USA.

Email: jimw@uchicago.edu

1043796PTXXXX10.1177/00905917211043796Political TheoryWilson

research-article2021

450 Political Theory 50(3)

1. I learned of this editorial from Louis Moore.

2. The best treatment of these issues in the Federalist is Frank 2014, 140–47. See

also Frank 2010; Moore 2013. For an excellent general discussion, see Smith

1999, chap. 1.

argument suggests a novel defense of “uncivil” disobedient politics: one

grounded not in contributions to democratic deliberation, but in the

entitlements of citizens to direct assertions of authority over common life.

Keywords

democracy, constitutionalism, protest, majority rule, the Federalist Papers

In response to the March on Washington for Jobs and Freedom on August 28,

1963, the Mobile Register published an editorial objecting to the “intimida-

tion march.” “Certainly,” the editors wrote, “it cannot be assumed that the

Constitution was drafted with the thought that paralyzing throngs should

descend upon Washington, D.C., in such a manner as to bring about far-flung

interferences and interruptions in the normal course of government” (Mobile

Register 1963).1 The March on Washington is now one of the most iconic

moments of democratic activism in U.S. history. This essay argues neverthe-

less that, on their historical claim, the editors had the right of it.

Influential drafters and defenders of the U.S. Constitution objected to

many forms of disruptive, mass political action. They defended the

Constitution on the grounds that it would suppress such action. This fact that

something like constitutional democracy was defended on the grounds that it

would limit certain forms of popular political activity should shape our views

of the propriety of protest and of the significance of popular demands—both

of which connect to the nature and purpose of representative democracy.

Conflicts over the propriety of popular actions were at the forefront of

political debates in the 1780s United States. These conflicts provide essential

background for understanding the Federalist Papers. The authors of the

Federalist—Alexander Hamilton, James Madison, and John Jay, writing

under the pseudonym Publius—were fighting a two-front argumentative war

over popular government. On one front, familiar to most readers today, they

argued in favor of the proposed Constitution against alternative forms of con-

stitutional republicanism, including the existing system under the Articles of

Confederation. But there was another front, more often forgotten: an argu-

ment not against alternative constitutional forms but against democratic prac-

tices that were essentially extra-constitutional. We ought to attend to this

front, for its interest as a type of democratic politics, and because we cannot

properly understand the democratic theory of the Federalist without under-

standing the work as a response to this alternative.2