In The Federalist, which should be required reading for all college undergraduates – in my ideal alternate universe, even a requirement to graduate from high school -- James Madison, John Jay, and Alexander Hamilton wrote what remains the most eloquent and powerful defense of the US Constitution and its foundational principles. No document written since that time can get within even Hubble-telescope range of Madison’s, Jay’s, and Hamilton’s argument. A full account of why this is true would require the writing of another Federalist. But with regard to one issue – Madison’s argument (written under his Federalist pseudonym of "Publius") about the size and geographical extent of republics in Federalist #10 – we are privileged to observe the unfolding of a living laboratory validating Madison’s prescience. For the State of Kansas has become a giant Petri dish for breeding the pathogens that arise from the combination of two antigens Madison warned against: extreme cultural uniformity and equally extreme religious zeal. In that regard, contemporary Kansas is a cautionary tale for the entire Nation.
First consider Madison’s argument in Federalist #10. The Constitution that had been ratified by the States (though still pending in NC and RI) more or less at the same time as the publication of The Federalist, explicitly stated in Article IV, clause 1, that the The United States [i.e., the Federal government] shall guarantee to every State in this Union a Republican Form of Government … When we read this now, our reaction is usually to say “Yes, and the sun rose in the east this morning and Donald Trump's campaign theme song should be 'We Shall Overcomb'”. But in the late 18th century, this was a distinctly controversial position. For the conventional wisdom of that day, especially as articulated by the great French political philosopher Montesquieu (and, Gary Wills argues, David Hume), held that republics were notoriously volatile and unstable, at least for large states, because the heterogeneity of interests, cultures, and populations induced instabilities in republics that were populous and broad in geographical extent. So – the conventional wisdom concluded – the republican form of government was suitable only for states that were geographically small and sparsely populated. But in Federalist #10, Madison stood the conventional wisdom on its head. First, unlike a democracy, which is governed directly by the people, a republic is governed by elected representatives. Secondly,
[t]he other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. 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. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. … The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. (boldface added) What the conventional wisdom saw as a vice for large republics Madison saw as a virtue.
I say the State of Kansas is a “cautionary tale” because what has happened since Gov. Sam Brownback initiated his “experiment” in austerity is an instance of both boldfaced texts combining to the detriment the “a part of the Confederacy” – in this case, the State of Kansas. What we see in Kansas are the results of joining a passionately held religious ideology with concrete, discrete, specific public policies – with no politically decisive opposition to either from the people as a whole. With no credible opposition, the voters, the legislature, and the governor combine to form an Unholy Trinity: a de facto experiment in government-by-theocracy. (This is not to imply that literally no one in Kansas disagrees with those policies, but it is to assert that such opposition as there is has not been politically or legislatively decisive.) In that sense, Kansas is a living laboratory of the first boldfaced text. Furthermore, the religious dimensions map one-on-one to the particular policies in a way that illustrates the second boldfaced passage. In recent State legislation, we can easily trace the lineaments of the religious right’s theology transposed to the key of public policy. To wit:
o Recent legislation restricting the types of items, even particular types of foods, that those on public assistance may purchase reflects conservative hostility, not so much to poverty, as toward the poor: the traditional extreme conservative perversion of II Thess. 3:10.
o Conservative evangelical / fundamentalist suspicion of education and hostility to the teaching of critical thought is embodied in a recently passed, and breathtakingly draconian, law that makes public-school teachers criminally prosecutable for teaching materials that local school authorities deem “unsuitable”.
o Speaking of education, the Brownback Administration, ever since assuming office, has fought a guerrilla war against the Kansas courts because of the Administration's austere and uneven funding of public schools, which violates the equalization of spending for education across school districts mandated by the Kansas constitution. Brownback’s solution was a bill to revoke the power of the State supreme court to appoint chief judges, and to transfer this power to much more compliant, because much more politically beholden, district judges, an action that is equally unconstitutional, given that the Kansas constitution gives the state supreme court “general administrative authority over all courts in this state.”
o Perhaps most egregious of all, Brownback has recently demonstrated a fine contempt for separation of Church and State by explicitly – and in his capacity as Governor, not as a private citizen – advocating for State-wide days of religious “awakening” and “restoration”.
o In a by-now-legendary incident that retrospectively assumes the character of a straw in the wind, in 2011 Brownback’s aides requested that a high school discipline a young woman who sent an immature but harmless and non-threatening tweet to a friend about Brownback, whose opinion of the “abridgement” clause is apparently as low as his opinion of the “free exercise” clause is high.
So what is the “take-away”? There are three, I think. First, as a friend of mine, a senior professor at the University of Washington School of Law, always tells each class he teaches on the First Amendment on the first day: “The First Amendment is always under attack … Never take it for granted”. Exact words. Secondly, take all threats to the First Amendment seriously, even those that emanate from the most arrant fools, whack-jobs, and propeller-beanie wearers. Similar remarks apply vis a vis separation of powers.
Thirdly, hoist a brew and thank your deity of choice for James Madison. As Hamlet (Act I, Sc. 2) said of his (Hamlet's) late father: "He was a man, take him for all in all, [we] shall not look upon his like again.”.
James R. Cowles