Posted by: Ray Brescia | November 15, 2018

Hamilton, Institutions, the Rule of Law, and Democracy

Given blatant voter suppression, questionable appointments to key administration and judicial posts, and dramatic gerrymandering, many fear the institutions of democracy itself are under threat.  At the same time, other institutions, like state attorneys general and non-profit organizations, are also attempting to serve as a counterweight to these abuses and to check them, seeking to invoke still other institutions—like the judiciary and the ballot box—to defend democracy and the rule of law.  But these battles expose some definitional tensions around what precisely is an institution, how do institutions function, and how can they serve to prop up or undermine democracy and the rule of law. In order to understand the role institutions can play in promoting democracy and the rule of law, we need both a vocabulary for a discussion about institutions as well as an appreciation for how they function.  I attempt to enter this conversation here.

The potential tension between institutions was not lost on the Framers.  Although often portrayed as a fierce federalist and defender of the power of a strong, centralized federal government, in Federalist 28, Alexander Hamilton argued that the federal and state governments should compete for the support of a critical institution – a constituency at the heart of the republic: the people.  And, for Hamilton, it is the people who would ultimately tip the balance of power between these other institutions:

Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make the use of the other as the instrument of redress.

As our institutions are under threat, and are being tested, it is appropriate to develop an appreciation for how institutions function in relation to each other and to broader society.  Nothing short of the fate of the Republic may be at stake.

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