Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying. The central theme, “republicanism,” carries over from its predecessor. At the core of classic republicanism, going back to the ancient Greek and Roman writers, lies “virtue.” Aristotle, Polybius, and Cicero, among others, saw an essential connection between personal (private) virtue and civic (public) virtue. This was, for most Americans, especially those drawn from Calvinist stock, one of those self-evident truths. An interesting statement of the preconditions for virtue is in the great Northwest Ordinance of 1787: “Religion, morality, and knowledge, being necessary to good government and the happiness [in the Greek sense of personal flourishing as a human being] of mankind, schools and the means of education shall forever be encouraged.,” sentiments expressed almost identically by George Washington in his remarkable farewell address.

Writers on ideal republican systems that emphasized virtue were not faced with the task of constituting an actual working government. One of the asserted practical defects of republics and, worse, democracies, has been their political turbulence. Ever since Plato, Western political theory has emphasized the very practical need that government first and foremost ensure political stability. To that end, every political system must have a symbol or ideal around which to rally, something or someone that can bridge the inevitable tensions that arise among competing personal interests. In the English constitution, that symbol was the crown, and American writers in the 1780s worried about what the absence of a king might mean for the long-term stability of the United States. The political and economic turmoil that was endemic in many of the states was less than reassuring. In the United States, that common ideal was the promotion of republican virtue. Today, some would say, it is the Constitution.

The self-interested part of human nature was called the spirit of party or, more commonly, “faction.” Its effect is to undermine republican virtue, which demands sacrifice of the self or the group for the benefit of the whole. Faction is the anti-matter of classic republicanism The history of the early American republic, including Jefferson’s inauguration speech in 1801, almost wholly revolves around coming to terms with the reality of faction in a system that claimed to rest on republican virtue. Today, politicians still often appeal to bi- or non-partisanship as a republican value and libel their critics’ opposition as un-American selfishness. Truth be told, people love partisanship and engage in full-throated defense of their interests, and politicians quickly change their tune when their own oxen are gored.

Madison shrewdly exploits that. He writes that there are two ways to deal with faction: Address its causes or its effects. The first is impossible, as it would necessitate addressing the root cause of faction, fallen human nature. That is totalitarian, in that it requires remaking human nature by equalizing personal talents and possessions. Such a cure would be a destruction of liberty worse than the disease. Moreover, it actually would go against the duty of government to protect the natural inequalities of persons. We may all be created equal in the eyes of God or enjoy metaphysical equality, but we are not in fact all created equal in talent. Human society will always reflect inequalities in talent and differences of opinion, and we need to deal with the realities of human nature, not with pie-in-the-sky proposals to remake humans. Is anyone in D.C. listening?

He proposes instead to deal with the effects of faction. He sets out the danger of democratic systems, such as ancient Athens, where the ability of people to communicate with each other within a homogeneous and geographically confined polity allows permanent majority factions to appear that oppress minorities. Those endangered minorities are political and religious dissenters and the propertied classes. In fact, he singles out taxation as a tool particularly susceptible of abuse against them. Does this sound familiar at all? The opposite danger could also appear, in oligarchies, where a permanent minority faction might oppress the majority. The key, then, is to prevent both of these permanent conditions. Like Plato and Aristotle, among others, Madison sees both oligarchy and democracy as corrupt political forms. Like many of them, he proposes something he calls a “republic.”

The danger of oligarchy is mitigated by the republican principle of the vote. Easy enough. More difficult is the danger of unadulterated democracy. It is worthwhile to re-read his mellifluous and powerfully concise indictment of such a system in the paragraph that begins, “From this view of the subject….” The control, though not cure, for that ill is the element of deliberation introduced through the republican principle of representation. By itself that is still not enough, as small republics suffer from similar defects as democracies. The second crucial element to forestall oppressive permanent majorities is the large size of the American republic with its large and diverse citizenry. That lessens the dangers of popular passions easily communicated and organized to oppress the minority.

Madison cleverly turns the arguments of his opponents against them. Among Antifederalists, it was almost an article of political faith that a government for a large dominion inevitably becomes oppressive. Not content merely to defend the Constitution and the increased power of the national government against charges that the new system threatens liberty, Madison goes on rhetorical offensive against the political instability found in states with which his contemporaries were all too familiar. In a hard-hitting paragraph near the end (“The influence of factious leaders….”), he argues that the central government is less dangerous than states or localities. It is noteworthy what he perceives to be the bad results from too much democracy: “[A] rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project….”

Ingenious as his control of faction is by embracing its reality while blunting its worst manifestations (an issue to which he returns in Federalist 51), is he still right today? Certainly there are big variations in dominant popular political opinions between states or even within states. Though the contrast is becoming paler, there still is greater political homogeneity within particular localities than among Americans as a whole. On the flip side, mass communication and personal mobility, along with a weakening of intermediary institutions, make even our national system much more like the participatory or plebiscitary democracies about which Madison warned. Moreover, the central government, through means to be addressed in future papers, has taken on some of the very characteristics the Antifederalists feared. If that is the case, isn’t local control (and the ability to vote with one’s feet) more conducive to personal liberty than top-down central government from which there is no escape?

Monday, May 10th, 2010

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums.  Read more from Professor Knipprath at: .

20 Responses to “May 11, 2010 – Federalist No. 10 – The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection, From the New York Packet (Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”

  1. Susan Craig says:

    Wow! In my note taking for this paper, I found it hard not just to copy the whole thing! But the portions that hit the hardest were: “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 by two obvious considerations:”


    “The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.”

  2. Maggie says:

    Excellent interpretation! You have clearly explained the very “soul” of this paper….I really have nothing to add. Thank you again for your time and willingness to help all of us learn more about our founding and the great men who were inspired to give us our Republic. Now let’s hope that it’s not too late to keep it.

  3. Carolyn Attaway says:

    I wish we could have had this Federalist Paper assignment over a weekend; there was so much in it that my thought process was constantly racing from one end of the spectrum to the other. I had to read this paper several times in order to take in all the ideas of information.

    For me, the main theme in this paper was the statement “There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.”

    Prof. Knipprath goes in great detail explaining the methods of removing factions, and the example he used regarding the differences in human talent spoke to me best.

    For years, I have told my children that everyone should be guaranteed an equal opportunity in life, but no one is guaranteed equal outcome. There are too many factors is life to make equal outcome impossible, no matter what any politician tells you. The factors that direct a person’s life are limitless and cannot be controlled.

    The following statement by Prof. Knipprath hit the nail on head as to why I believe many societies fail: ‘We may all be created equal in the eyes of God or enjoy metaphysical equality, but we are not in fact all created equal in talent. Human society will always reflect inequalities in talent and differences of opinion, and we need to deal with the realities of human nature, not with pie-in-the-sky proposals to remake humans.’

    I have heard it said that if you take all the wealth in the country and evenly distribute it among that country’s citizens, within a generation or two, the majority of the wealth will be back to its original distribution. Why? Because the spirit of the entrepreneur will always rise to the surface to better the situation around him. That spirit is always dissatisfied with the status quo.

    Sadly, many in our government believe in equal outcome, and have convinced a large portion of our country that this process is not only doable but sustainable. Both I believe to be false statements, and a major cause of faction in our country today.

    My humor statement of the day in this paper, “Enlightened statesmen will not always be at the helm”. Oh, if only I had time to debate this!

  4. Carol Frenier says:

    In the 1970s I taught American History in high school. I remember that Federal #10 was viewed as one of the cornerstones of the Federalist papers in the eyes of many historians, but it took me 65 years of living to see why. Quite simply #10 explains in the most realistic terms how people relate to their government: they form factions to get what they want.

    Madison’s definition of factions and its causes, plus his conclusion that removing the causes would essentially destroy liberty, are intriguing. But even more interesting to me is this passage which sums up the whole situation.

    “The diversity in the faculties of men, from which the rights of property originate, is…an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on sentiments and views of respective proprietors ensures a division of the society into different interests and parties.”

    The idea that it is the duty of government to protect the inherently different capacities in people is well worth pondering. Liberals and conservatives would probably react to this very differently. Many liberals might grudgingly concede that inherent differences are a reality, but they might also find it appalling—something for Progressives to alter via government action. Conservatives would more likely find it appalling that liberals would think this reality is something that could be changed, sort of like defying gravity. They would likely support the protection of such differences as the ground upon which people thrive and create.

    Wanting people to be free to use their inherent capacities (and wanting to protect the fruits of their labor) is not the same thing as being indifferent to the suffering of those in need, but it is often interpreted that way. The distinction between these two ideas is important for conservatives to get across to the electorate in November. We are, it seems to me, at a crossroads between reaffirming the protection of liberty as the bedrock of our political tradition or moving toward a nanny state in which differences of ability—and the creativity that results from those differences—are minimized and group identity and grievances are emphasized.

    As we debate these two political courses—often rancorously—we are ourselves caught up in factions. Can we calm the debate and minimize our different views by focusing on the values and principles that we all do agree on? How, for example, is the best way to integrate the ideas of liberty and fairness? Or liberty and compassion? What specific policies would contain good compromises between these competing passions and interests?

  5. Susan Craig says:

    What I am trying to figure out is the inclination of utopians is that they can legislate a change in human nature. It strikes me as absurd as trying to legislate gravity out of existence because I don’t want the pain caused when I fall down.

  6. Roger Jett says:

    In “Federalist Paper 10″, Madison lifts the veil to reveal what fearful impact “the reality of faction” has on any system were liberty receives value. Liberty requires breath, but Madison points out succinctly that the same air that gives us breath fuels the fire of factionalism. Professor Knipprath has been succinct also as he has expounded insightfully upon the issues raised. Madison in this writing, loaded the bases for our team and you sir have drilled it out of the park. I wonder to if “anyone in D.C. is listening?”.

  7. Kay says:

    This Paper #10 was by far the most exciting, probably because I see so much happening today mirrored in Madison’s reasoning. What were the particular factions existing in the time of the Constitution, and which Madison may have had in mind?
    “Liberty is to faction, what air is to fire,” seems to say there will always be issues of passionate viewpoint. Republican virtue would hopefully rise to the top if, a big if, office holders possess virtue. For those whose mantra is equality in every way, didn’t they ever tell their children that sometimes life is not fair? Also, what came to mind after reading: “But the most common and durable source of factions has been the various and unequal distribution of property,” was the parable Christ told about the talents and how some capitalized on their talent, and how one of them did nothing with it. To me, that exemplifies human nature and spirit…how they move and work in their own domains. Governments can try to “equalize” everyone and our possessions, but as in the Soviet’s days, a greyness, dampness will occur over the people.
    Thank you again for the Professor Knipprath’s commentary and all the bloggers, who are adding day by day to my meager understanding!

  8. Maggie says:

    @ Kay….you said it perfectly when you stated “To me, that exemplifies human nature and spirit…how they move and work in their own domains.” It makes me think of “No Child Left Behind”. We educate all of our children in this country, but not all people have the same capacity for learning. We now spend more time trying to prop up those people who, sometimes, just aren’t going to get it while neglecting those who could be our future leaders. The brilliant minds of our youth are being held back to the lowest common denominator in the classroom. Sure, I think that those that are falling behind may benefit from extra help but not to the detriment of the rest of the class. The same goes for the business world. We can’t expect EVERYONE to be a great success…..we don’t all have what it takes. Trying to change that is a waste of time, effort and expenditures.

  9. Ron Meier says:

    This struck me most: “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. We well know that neither moral nor religious motives can be relied on as an adequate control.”

    This is what happens when one party controls both houses of Congress and the Presidency, which is what we have in 2010. The faction includes the executive and legislative branches, which are controlled by one party. In spite of the opposition of the majority of citizens, the majority faction controlling two branches of government was able to pass the health care law, which was based solely on ideological passion and not on what was best for the public good.

  10. Andy Sparks says:

    Professor Knipprath, thank you for the excellent essay on the Federalist 10 written by the foremost political mind of the founding generation. I find it interesting and appropriate that you reference the passage from the NW Ordinance (which was devised by the government under the Articles by the way) and relate it to George Washington’s farewell address. Realization of the comparison is evident given that James Madison initially wrote and Alexander Hamilton revised Washington’s farewell address. While the two primary authors of the Federalist essays eventually diverged on how government should be run under the Constitution, they are remarkably consistent on the reasons necessitating the Constitution at its inception.

  11. Susan Craig says:

    From readings I’m doing it appears that the Articles weren’t all that ineffective. Where it ran into difficulty was in the unanimous requirement for amendment and raising of revenue. I would like to know the reasoning behind Rhode Island’s obstructionist votes during this period. Each time amendments were brought forward under the Articles of Confederation Rhode Island was the lone state not to ratify and as there was a unanimous requirement they all went down to defeat.

  12. Susan Craig says:

    They also were the lone State to initially not send delegates to the Constitutional Convention.

  13. Quillhill says:

    Is the recent and current path of our federal government proving the Anti-Federalists correct?

  14. As usual, the quality of the comments is so impressive. A “thank you” also for the gracious responses to the blog post.
    Federalist 10 is in the top handful of the papers in insight and importance. It combines political theory with a clear-eyed view of political reality and how institutions work, as historical experience tells those who only have the will to listen.
    I was intrigued by Susan wrote, a point that probably will come up again in future discussions. Adoption of the Constitution was probably not as essential at that time as Publius makes it out to be. The main drawback of the Articles was, indeed, the difficulty of amendment. There were serious efforts to amend the Articles at least into 1786, and discussions even into 1787. The earlier efforts focused on getting Congress some independent revenue-raising power, at least as to import duties ( that the King had had under his sovereign prerogative for a long time). Some focused on getting some kind of military power to force recalcitrant states to pay their obligations. Later efforts focused on finance, as well, but just as significantly, on a power to regulate foreign and interstate commerce. That would have superseded the Congress’s limited ability under the Articles only to arbitrate commercial disputes upon demand by the states.
    As to “Rogue’s Island,” as it was often known, there are two broad explanations, one high-toned, the other not so much. R.I. had a long democratic (for the time) tradition, with a royal charter that basically remained the state’s constitution into the 1840s (when a mildly violent “civil war” addressed the desire for reform) and protected civil liberties and voting rights. The state distrusted the federal government as an invitation to tyranny, exactly the kind of concern Fed 10 tries to assuage.
    The less honorable interpretation is that R.I. was a strong “debtor” state that had engaged in all kinds of chicanery regarding its public and private debts. Moreover, it was a state that had acquired quite a reputation for sharp commercial dealings. It relied on heavily on fishing and international commerce (including the slave trade), including smuggling. If a strong central government emerged, the state’s inflationary loose money policies, as well as its independent commercial course would be subject to control. The state had all those characteristics that Fed. 10 assigns to the most turbulent of small democratic states (“A rage for paper money, etc.”).
    Its convention voted 34-32 in 1790, after years during which no convention had been permitted to meet because the Constitution had lost in a popular advisory vote. The convention was called because the Bill of Rights had been proposed and because of threatened sanctions from other states (from taxing R.I. products as imports from a foreign country to using military force to quarantine or invade the place). “It’s not the size of the dog in the fight, but the size of the fight in the dog.”

  15. Everybody… thank you for your input. What I got from this reading is that we have been straying from the bed rock principles of human nature for some time now.It has us all caught up in a make believe world to some extent.Examples that come to mind,…the trophy generation children are being indoctrinated with this idea…..teachers not marking papers with red ink because some will “feel” bad, of course this was never the original intention of red ink. Raising children taught me many things ,among them was that each child was different an individual, they all had my love and attention but they all needed guidence in different area .Government needs to be there but mostly needs to get out of the way of the people,we can handle our own lives and resent intrusion , manipulation and trying to make us all something that someone else fancies is always a bad idea.,We are what we are and our founders understood the condition of man quiet well.

  16. Susan Craig says:

    Thank you, Prof. Knipprath (how do you pronounce that?). As a history fan it has been a head scratcher for me. I’ll wager things were quite lively in RI for a while.

  17. It’s been exciting to see so many blog participants today! A big thank you to those who are with us every day, and an enthusiastic welcome to some of our newer folks! Each of you brings a unique and valuable perspective to these pieces. The larger the group we hear from, the more complete and “whole” our understanding becomes!

    I was fascinated by the descriptions of factions in human nature, with faction defined as a group, majority or minority, united by a common passion or interest “adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Knowing we can’t control the cause of these factions, the founders set out to control the effects.

    Madison argues that a republic is more effective than a democracy in controlling the effects of factions. I would bet that most citizens today cannot explain the difference between a republic and a democracy. Federalist No. 10 not only explains the difference, but outlines the reasons why a Republic is more effective than a Democracy in representing the broad interests of the community and Nation.

    I loved this sentence: “A rage for paper money, for an abolition of debts, for an equal distribution of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it.”

    Madison saw “an equal distribution of property” as “improper and wicked.” There is a moral case to be made for allowing the spirit of free enterprise to reign in our society. Men possess different abilities, and their “diverse faculties” produce different classes of property owners. A republic balances the interests of these different classes.

    Finally, towards the end of Federalist No. 10, a sentence that made me smile: “In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried.” It is interesting to see that over 200 years ago, they still had problems with “dirty tricks,” in campaigns!

    Thank you again to everyone for your insights today!!

    Cathy Gillespie

  18. Brilliant. Brilliant. Brilliant. Mesmerizing. I agree with Professor Knipprath words, “Federalist No. 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying.”

    Well said, Professor Knipprath and your essay today is quite brilliant, too, and thought provoking, as well. I thank you for your devotion to “Constituting America” and for all of your esteemed guidance.

    I thank all of you who have blogged with us today and for your stimulating dialogue.

    There is so much wonder, scope, knowledge, perspective and vision in this paper that I do not even know where to begin. I do believe I may have to meditate upon it before I can give it the respect it deserves.

    What am I learning is the difference between a democracy and a republic and through these papers, and this paper in particular, I am getting a clear vision about why we are a republic. Passions, individual perspectives and political factions breathe life into liberty but they must be channeled and curbed. The answers to this challenge lie in our representative form of government.

    To quote James Madison:

    “Liberty is to faction, what air is to fire, an aliment, without which it instantly expires”

    I am sharpening my insights regarding Republican virtues. These virtues deserve to be studied in school and taught in the home. We, as citizens, would be wise to delve into the psyche of the Revolutionary patriots, imbue their sense of virtue and wear their armor of valor. Ah, to breath the air they breathed, to feel the electricity they felt – the enlightment, the courage, the inspiration, the determination.

    Knowledge is power. How fabulous that we are on this journey, this path of understanding – for if we do not know what we have, we will not know what is being taken away. Spread the word. Let’s get as many Americans to join us as we discover the thesis of our great land – to preserve it we must observe it.

    God Bless,

    Janine Turner
    May 11, 2010

  19. Carolyn Merritt says:

    I found #10 to be an exciting read. It was like reading the blueprint for today’s political atmosphere. In his first paragraph where he states “…that the public good is disregarded in the conflicts of rival parties; and that measures are too often divided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and over-bearing party.” This brings to my mind the current steamrolling of health care, bailouts, etc., without regard for the majority of citizens’ voicing their opposition.

  20. Joe Drum says:

    Wow, these are the kind of insights I was hoping to find when I came to this site. Thanks Janine and Cathy and can we hear more from Professor Knipprath?


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