Madison, Corporations, and the National Security State by Scott Horton

[Jefferson23]

* Below is an excerpt of Madison's essay via Daily Kos, as Harpers is by subscription only.

April 18, 4:18 PM, 2011

In Citizens United, Justice Anthony Kennedy musters James Madison in support of a decision striking down congressional efforts to limit corporate electioneering. Whatever the merits of the opinion itself, Kennedy confused his Founding Fathers. In a Liberty and Power lecture (PDF) delivered at the University of Alabama Law School on Thursday, I take a look at Madison’s attitude towards corporations and the potentially corrupting influence they might have on the political process, relying on a significant essay by Madison that Harper’s Magazine uncovered and published in March 1914.

http://www.harpers.org/archive/2011/04/hbc-90008058

James Madison, Corporations, and the National Security State
Prepared remarks by Scott Horton, Liberty and Power Lecture, University of
Alabama Law School, Tuscaloosa, AL, April 14, 2011

James Madison stood between 5'3" and 5'4" tall and weighed barely more than
one hundred pounds. He was the most diminutive of the American presidents.
He had no skills as a military leader, and he frankly acknowledged his inability
to rouse crowds with his political oratory. Yet he was a giant among presidents.

Our constitutional system was largely his creation; he supplied the detail
and the mechanics where others furnished broad visions. I want to spend a few
minutes with you looking at the problems that face us today through the eyes
of James Madison. In the process, I want to focus on corporations and the growing
role they play in our nation's political life. The emergence of the corporate
world is one of the things that divides our times from the age of Madison, but
it is also something he anticipated.

Let us start with the question of corporations and political campaigns. When
the Supreme Court handed down its controversial decision in Citizens United,1
striking down a provision of the McCain-Feingold Act restricting the corporate
funding of independent political advertisements, there was a rush to discuss the
case in terms of original intent--what would the Founding Fathers have
thought of this decision vesting corporations with constitutional rights? Attention
focused almost immediately on James Madison--he was not only the "Father
of the Constitution," but also the key architect of the Bill of Rights.


In fact, at a key point in his opinion, Justice Anthony Kennedy actually quotes
Madison to support the holding. "Factions will necessarily form in our Republic,"
Madison writes in Federalist No. 10, "but the remedy of destroying the
liberty of some factions is worse than disease. Factions should be checked by
permitting them all to speak and by entrusting the people to judge what is true
and what is false."

in full: http://www.harpers.org/media/image/blogs/misc/madisoncorporationsnss2.pdf


Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments" an essay probably written sometime between 1817 and 1832, first published as "Aspects of Monopoly One Hundred Years Ago" in 1914 by Harper's Magazine

http://www.dailykos.com/story/2010/10/17/911156/-Founding-Fathers-and-the-Constitution

[cspanlovr]

1. Thank you for posting this. It was a good read.

[Jefferson23]

4. You're very welcome. Trying to understand Kennedy on his

reliance of Madison to justify his decision is quite revealing.

This end passage by Horton, who would doubt Madison's shock at the state of our affairs today? Well, I guess
we can exclude Kennedy from that group, considering his horrific decision.

*

Madison and the Super-Sized Government

There is also no doubt that James Madison, confronted with the relationship
between government and the world of business corporations today, would be
shocked by it. His first shock would certainly be over the size of the government
itself, its property, regulatory scope, employees and social programs, the
enormous defense establishment. Consider that in the first administration in
which he served, the attorney general, Edmund Randolph, thought he had a
part-time job and continued his private law practice. There was no "Justice Department."
Today with 112,000 employees and a budget of $27.8 billion, it is
the world’s largest law firm--but it’s still only a small-time player among the
nation’s bureaucracies.

The second shock would be over a government that routinely outsources its
functions to corporations with little effective oversight of the process. Government
spending on private contractors continues to grow exponentially, consuming
an ever-increasing share of the total federal budget: in 2000, it was $201.3
billion; in 2005, it had grown to $377.5 billion; by 2007, it was $439.5 billion.16
We have no current numbers for 2010, but don’t be surprised if the total approaches
a half trillion dollars, half of all discretionary outlays by the U.S.Government.

There is a naïve but widely held assumption that when the government
outsources to corporations, this somehow automatically means that
the money is spent more efficiently and that the growth of the state is held in
check. Actually this process has clouded the more fundamental question,
which is whether the government spending reflected in these contracts is necessary
in the first place, and whether the money, as expended, brings corresponding
benefit to the people.

And to this we should add the Madisonian query: cui bono--who profits by
this? Are these contracts a form of corruption in which the wealth of the state
is privatized into the hands of a circle of cronies close to those who hold power,
the matter that marks neoliberal kleptocracies from Russia to Egypt? Likely
the problem is not so severe as that. These raw numbers nevertheless show us,
I suspect, that corporations are extremely effective in selling the government
services it doesn’t need in the first place, and often at prices that are not
competitive in the marketplace. There is something fundamentally wrong about
the relationship between corporations and the federal government.

[freshwest]

2. Thanks for this.

[bemildred]

3. I do find Kennedy's use of Madison to support the CU decision particularly dishonest. nt