What does Hamilton 68 refer to

59 The Invention of “Democratic Representation” in the Federalist Papers Beatrice Brunhöber Alexander Hamilton, James Madison and John Jay make a forward-looking demand in the Federalist Papers: Representation must be democratic. This connection was considered a contradiction at the time. In it, however, the Federalist1 found the way out of the difficulties that dominated contemporary theory of democracy. Based on the Aristotelian idea of ​​pure democracy, they were considered to be unstable and - at least in a heterogeneous state - utopian. The question of how political self-determination in a pluralistic society is possible in the long term in a large ruling association is still relevant today. The Federalist gives an answer that is not only convincing in theory, but has also proven to be practical in the reality of the US Federal Constitution. 1. From representation as the opposition of democracy to representation as a condition for the possibility of popular sovereignty The invention of democratic representation2 in the Federalist Papers was a novelty in the years of its creation (1787/88 ).3 Until then, democracy and representation had been regarded as a pair of opposites. The reason for this lies in the meaning of the two terms. Representation has been seen in state theory4 since the Middle Ages5 as an instrument through which several people can act together within a ruling association. So it is about the question of how one or more empowered to act and make decisions for the group and how they 1 The Federalist Papers are commonly referred to as the "Federalist" in the USA. This was the title of the first book publication (McLean / McLean 1788). On the question of the coherence of the papers, see Brunhöber 2010: Chapter 2. III; affirmative Epstein 1984: 2; White 1987: passim; Potter 2002: 7 f .; negative Mason 1952: 625 ff. 2 See generally on democratic representation Böckenförde 2004: Rn. 12ff. 3 It is true that the developments in France and Great Britain were just as relevant for the history of the term. However, the French Revolutionary Constitution was not passed until 1791. And English parliamentarism cannot be characterized as democratic. 4 The term representation is used with its own meaning in most of the humanities. Cf. on this Hofmann 2003: 1 ff. 5 For the first time by Thomas von Aquin 1943: 20. Book 2, part 2, qu. 105, art. 1. In antiquity, the representative state organs that existed were not referred to as representation (Haller 1992: 790 ff., 813). For the history of the term see Hofmann 2003. 60 Actions and decisions can be attributed to the group members and the group.6 On the other hand, Aristotle used democracy to describe the form of government of the people's immediate self-determination, which, however, he considered extremely vulnerable to decay.7 most prominent Rousseau8, assuming that democracy and representation are incompatible9. But if - according to this definition - the delegation of legislative decisions and executive action in a democracy is excluded, this can only be practically realized in the smallest area and with great homogeneity of the population: Only then can everyone meet at short intervals and only then does it exist Chance of an agreement. In order to make the idea of ​​political self-determination also permanently practicable in a large ruling association with a heterogeneous population, Alexander Hamilton, James Madison and John Jay propose in the Federalist Papers in the course of the American Revolution, “a government wholly popular” and “the great principle of representation ”.10 In 1777, Hamilton called the form of government discovered as “representative democracy ”.11 However, the Federalist agreed on the term“ republic ”. This should make the difference to Aristotelian democracy clear. In the 39th Federalist article, Madison defines a republic as “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior . ”12 A republic is therefore a state in which all state authority comes from the people, but is exercised by elected representatives.13 These are determined in free, equal, general and regular elections. With this, however, the concept of the people has also changed significantly: It is no longer just the lowest class, but rather it designates the totality of free and equal individuals who the 6 Hofmann / Dreier 1989: 165 ff., 166. 7 Aristotle 2003 : Book VI, 1317b 19-48. 8 Rousseau 1966: Book III, chap. 15. 9 This has had an aftereffect to this day. See for example Schmitt 1970: 204 ff., 218, 243; Kelsen 1981: 26 ff .; Landshut 1968: 482ff .; Meyer 2005: 99 ff., 104. See also Leibholz 1967: 78 ff., 80 ff .; Graf von Kielmannsegg 1985: 9 ff. Against Duso 2006: 99. 10 Madison, 14th article, 84. - The following are quotations of the Federalist Papers without further information from Cooke 1961. The numbering follows the first book edition (McLean / McLean 1788) ; the deviating numbering in the newspaper publication is indicated in square brackets, if applicable. If the authorship is unclear, the other possible author is indicated in square brackets. 11 So with regard to the New York State Constitution of 1777 (Hamilton 1961: 254 ff., 255). Buchstein thinks that Hamilton invented this term (Buchstein 1997: 376 ff., 380). 12 Madison, 39th [38th] article, 251. The republic definition is similar to that of Kant (1968b: 341). 13 See Federalist Epstein 1984: 120 f .; von Bose 1989: 89ff. On the use of the terms democracy and republic at the time, see Adams 1973: 99 ff., 106 ff .; Dahl 2006: 152 ff., 156f. 61 Founding a society.14 Although the representatives have a free mandate, they are bound by the constitution.15 Hamilton names the separation of powers as a further essential element.16 Today we would refer to such a form of government as representative democracy. However, whether the Federalist theory is democratic is extremely debatable. The classification depends on the interpretation, which in the USA is of course characterized by extreme changes of direction.17 Three lines of interpretation can be distinguished, of which the first two do not classify the Federalist as democratic. The economist interpretation at the beginning of the 20th century emphasizes the influence of John Locke, albeit in an individualist interpretation, and sees the federalist's idea of ​​representation as a means of protecting the upper class.18 The so-called republicanism thesis turned against this in the 1960s. She works out the effect of classical republican ideas on the Federalist and sees his theory as an attempt to create an aristocracy shaped by the Aristotelian idea of ​​the mixed constitution.19 Since the 1980s, Locke's influence has been counteracting this again, but now with a focus on his social contract theory, emphasized.20 Only this direction of interpretation opens up the possibility of democratic interpretation. On the foil of the social contract, representation in the theory of the federalist can be understood democratically as a will-based relationship between the political institutions and the people. If one also takes greater account of the influence of Montesquieu's mixed constitution on the Federalist's theory of the division of powers than was previously the case, it can be shown that this idea, too, is freed from its classic-republican context. Unlike Aristotle, it no longer serves to prevent the decline inherent in every pure form of government, but rather to avoid concentrations of power that endanger freedom. For the federalist, representation is a condition of the possibility of popular sovereignty21. Representation first creates the people's self-determined ability to act in the long term. If man is a free being, he must also govern himself.22 So far, people have been largely determined by others.23 14 That is why Madison speaks of the “great body of the people” (Madison, 39th [38th] article, 251) . Detailed Brunhöber 2010: 4th chap. II. 1.a. General on this development Hofmann 2003: 322 ff. On the concept of the people, see Grawert 2004: Rn. 8 ff. 15 Hamilton, 78th [77th] article, 524. 16 Hamilton, 9th article, 51. 17 Detailed Brunhöber 2010: 1st chap. I. 18 About Beard 1998. 19 About Pocock 2003; differentiating Wood 1998. 20 About Pangle 1988. 21 This is how Böckenförde later formulates it in general (Böckenförde 1982: 301 ff., 302). For this and the following, see Brunhöber 2010: 4. Chap. II. 1.a .; III. 1.b. For the history of the development of the idea of ​​popular sovereignty in the American colonies of Great Britain see Wood 1998: 372 ff .; 532 ff .; Brunhöber 2010: Chapter 3 V. 2. 22 Cf. Madison, 39th [38th] article, 250; See also ders., 10th article, 58. This is what Kant will later support so impressively theoretically: From human freedom it follows for him that 62 It is now the special task of Americans to prove that human beings become political Is capable of self-determination.24 However, recourse to Aristotelian democracy was not enough to make this idea a reality. The ancient democracies seldom lasted long, due to external weakness and internal instability. In the eyes of the Federalist, however, both problems can be solved in a large ruling association, because this guarantees independence from other states and internal peace. The size, in turn, makes direct decisions by everyone practically impossible and therefore requires the transfer of decision-making power.25 The democratically designed representation procedure ensures that the decisions are nevertheless linked to the will of the people and that those who decide are responsible for their actions to the people. 26 Representation also releases citizens for economic activity and generally for the pursuit of selfish interests. Because with the representative organs, organs are available that take on the task of “governing” in a division of labor27.28 At the same time, the representation procedure ensures that political decisions are oriented towards the common good and thus contributes to internal stability. Representation also enables decision-making authority to be transferred to experts and thus ensures the people's ability to make decisions despite the complexity of political issues in a developed society.29 The people also only become capable of acting externally through representation. Because the people as a whole would not be capable of fast, continuous and discreet action, which is precisely what external and the right to self-determination are inherent in every constitution as an ideal. For him self-legislation is therefore a principle of reason. See Kant 1968a: 86 f. 23 Hamilton, 11th article, 72. 24 Hamilton, 11th article, 72 f. On this, Epstein 1984: 15 f. Here the Federalist turns against Hume, Locke's hope for a self-determined establishment of the Dismissed the government as unrealistic (Hume 1994: 189 ff., 190f.). 25 Madison [Hamilton], 52nd [51st] article, 355. Cf. also Hamilton, 76. [75th] article, 510. Representation is often reduced to this surrogate function by direct democratic theories (cf. e.g. Kelsen 1981: 26ff. ). In contrast, in the theory of the federalist, representation has other essential functions. 26 See Madison, 48th [47th] article, 337; Madison [Hamilton], 57th [56th] article, 384; Madison [Hamilton], 63rd [62nd] article, 424; Hamilton, 70th [69th] Article, 472, 476, 478; ders., 77th [76th] article, 520. On this Brunhöber 2010: 4th chap., II. 3.c .; Epstein 1984: 31. Kritisch Loewenstein 1972: 233 ff., 241. 27 Later, Sieyès most influential formulated the thesis that the modern society based on the division of labor necessarily entails representative rule (cf. Sieyès 1975: 197 ff., 225 ff .; 259 ff., 266 f.). 28 This is most evident in Hamilton, 76th [75th] article, 510. 29 In the House of Representatives, the people are involved in the representative decision as suddenly as possible. At the same time, the Senate, which is indirectly elected for a period of six years, is involved in the legislative process, which guarantees greater expertise and continuity. See in particular Madison [Hamilton], 62nd [61st] article, 415 ff .; Madison, 47th [46th] article, 333 f .; Jay, 64. [63.] Article, 432-63 often require defense policy.30 After all, only representation enables the sharing of power, which in turn prevents arbitrary rule. If the people exercised all state power themselves, there could be no mutually controlling powers from the outset. The core of the Federalist's deliberations is a redefinition of the idea of ​​representation. The American Revolution therefore by no means resulted in a mere reception of European principles, as is often assumed31, but renewed them from the ground up. This becomes particularly clear when designing the principle of representation. It is removed from its hereditary-corporate context and turned democratically. Representation is no longer virtual - as in British theory - but up-to-date (see 2). Their legitimacy is no longer fed by the identity of the interests of the representatives and the represented, but rather from the fact that the representatives are appointed by means of an act of will by the represented. The decision of the representatives is no longer a reconstruction of a previously established common good, but rather the finding of a compromise that can always be changed (see 3). From the British theory of the mixed constitution, the Federalist adopts the idea that representation by powers ensures freedom (see 4). However, he also puts this corporatist idea on democratic feet. 2. From virtual identity representation to real representation representation The democratic turnaround becomes clear first of all with the representative mandate: It is changing from a paternalistic to a democratic mandate. The federalist leaves the British idea of ​​virtual identity representation behind and demands real representative representation.32 The representative is no longer a trustee, but an agent of the people. 30 Jay, 64th [63rd] article, 434; Madison [Hamilton], 63rd [62nd] article, 422 f .; Hamilton, 75th [74th] article, 505. 31 The assumption of the mere adoption of the European specifications is probably the reason why German constitutional theory, with regard to the concept of representation, focuses almost exclusively on continental Europe. Especially when analyzing parliamentary representation, the French theory is in the foreground, because Sieyès is considered to be her father. If the Anglo-Saxon region is taken into account, the investigation usually ends with the emergence of the idea of ​​national representation in the British Parliament. This means that North American developments do not come into focus at all. So also Dreier 1988: 450 ff., 464; Fraenkel 1991: 153 ff., 185. 32 For the conceptual distinction between representation and identity representation in general see Hofmann 2003: 322 ff., 374 ff. 64 Edmund Burke, the best-known representative of British theory, understands virtual representation to be the exercise of fiduciary rule natural representatives33: "Virtual representation is that in which there is a communion of interests and a sympathy in feelings and desires between those who act in the name of any description of people and the people in whose name they act, though the trustees are not actually chosen by them. ”34 The representatives do not have to be elected (by all). A selection process is required. However, the legitimacy of the representation does not result from the election as an act of empowerment. Rather, it follows from the natural hierarchical order, the “constitution” of society. In this, everyone has their natural place, from which the passive and active right to vote may follow. Representation is legitimate because and when it depicts the organic structure of society and there is an identity of interests between the representatives and the represented.35 According to this, representation cannot fail and therefore does not necessarily have to be controlled.36 At most, corruption and partisanship37 must be prevented to prevent the organic representation process from occurring 38 In contrast, representation in the British colonies in North America at the end of the 18th century had increasingly developed into a real delegation of will to representative representatives.39 The US Federal Constitution finally reproduces this factual change in legal terms. The change was a result of the colonial self-government structures: Here, decidedly elected MPs in town meetings and in the state lower houses.The struggle for independence sparked off the dispute over whether the Americans were represented in the British Parliament in such a way that it could raise taxes in the colonies. Against the Stamp and Sugar Act, the Americans were just campaigning with the slogan “No taxation without representation!” 40 They demanded actual representation by representatives they have elected. The British countered this with the idea of ​​virtual representation that the Americans were also re-presented in the British Parliament due to the natural order and the existing identity of interests.41 In contrast, the Federal Constitution of the United States consistently provides for general, free and equal elections for all representatives See Hofmann 2003: 458 ff. 34 Burke 1975: 293. 35 Ibid. 36 See Reid 1989: 48 f.37 The problem of partisanship was then called the problem of factions. The term is not used today in either English or German. For the history of the concept, see Beyme 1978: 677 ff., Esp. 687 ff. 38 Cf. Burke 1996: 658 f. 39 See on this and the following Brunhöber 2010: 3rd chap. III. 40 Slaughter 1984: 566 ff. 41 Cf. for example the speech by the British Joint Secretary of Treasury, Thomas Whately, in defense of the Sugar Act of 1765 (in: Morgan / Morgan 1962: 106 f.). 65 sentative organs (House of Representatives, Senate and President) and an uninterrupted chain of legitimation42 by the people.43 The Federalist provides the theoretical justification for this shift in the meaning of representation. Against the criticism of the lack of identity of interests between the population and the House of Representatives44, Hamilton argues that the condition for such a representation of interests would be the constitutional anchoring of a professional suffrage.45 However, voters should decide in general and free elections who they consider most suitable for their representation. From an empirical point of view, there is a tendency to vote for those candidates who share the same interests and in this respect appear more or less as natural representatives.46 However, according to Hamilton, legitimate representation does not follow from the identity of interests, but from the fact that the voters have their representatives at regular intervals authorize the decision. With Madison, the importance of free and universal choice to legitimate representation becomes even more apparent. The identity of interests no longer plays a role for him. Rather, in every form of government, those who best promote the common good should be empowered to exercise power. The special thing about a republic is that the people who are best suited for it are selected by the people themselves: “No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people. ”47 Freedom of choice should not be restricted by professional or property qualifications.48 Regular elections should ensure that officials will continue to exercise their power in the future in the interests of the general public.49 The identity of interests is therefore irrelevant.50 The A change in meaning is also evident in the understanding of the relationship between representatives and those represented. The relationship is no longer seen as a mere fiduciary relationship, as in the UK. Rather, the Federalist understands representation as a will-based contractual relationship. In the British constitutional theory of the time, representation could not be considered a relationship of will 42 General information Böckenförde 1991: 299. 43 Cf. Art. I, § 2, cl. 1, 2; § 3, cl. 1, Art. II, § 1, cl. 2 USConst. The American federal suffrage was the most egalitarian of its time (Potter 2002: 115). Detailed Brunhöber 2010: 4th chap. II. 1.a. 44 See, for example, Brutus 1981: 369; Smith 1981: 157 ff. 45 Hamilton, 35th [33rd] article, 219ff. 46 Wood interprets Hamilton's remarks as transferring the idea of ​​virtual representation to interest group representation (Wood 1969: 51 ff.) For this, however, the mere identity of interests would have sufficed for legitimate representation. This contradicts the fact that the free act of authorization in Hamilton is supposed to guarantee the representation of all social concerns by the representatives (cf. Hamilton, 35th [33rd] article, 222 et seq.). Brunhöber 2010: Chapter 4. II. 2.b. 47 Madison [Hamilton], 57th [56th] article, 385. 48 Ibid .; Madison [Hamilton], 52nd [51st] article, 355. 49 Madison [Hamilton], 57th [56th] article, 385 f.50 See for the whole Brunhöber 2010, 4th chapter. II. 2.b. 66 be thought, because the will of the individual was not free, but solely the result of his social position. Only the idea of ​​the social contract opens up the possibility of granting people free will.51 In doing so, the Federalist mainly relies on the considerations of John Locke52.53 According to this, people are not born into a given social order. Rather, the existing system of rule is thought of as an act of will54: People voluntarily join forces in a unit and transfer their power.55 From this it follows for Hamilton that political representation - comparable to representation under civil law - is the voluntary empowerment of representatives within the framework of the Power of attorney to act and decide for the proxy.56 The constitution corresponds to the power of attorney: it lays down the guidelines for action and if they are exceeded, the act is not binding.57 This also gave rise to the idea of ​​a supreme court with the power to enforce unconstitutional state acts for 58 Madison also describes the representatives as representatives of the people.59 And in his definition of the republic mentioned at the beginning, it becomes clear that representation is a mandatic power of attorney. The state power that lies with the people is exercised for a limited time by officials elected by the people.60 At the same time, the federalist maintains the idea of ​​trusteeship, as developed by Burke, but also by Locke.61 In contrast to Burke, however, the relationship of trust follows from the deliberate transfer of state power and not from the hereditary-corporate identity of interests. While with Locke the breach of trust only entails the right to dissolve the government62, the federalist integrates trust into the system: it has to be constantly updated in regular elections 51 Cf. Hofmann 2003: 385. 52 Locke 1964: 11th chap. § 142. 53 Cf. Madison [Hamilton], 51st [50th] article, 352; Madison, 43rd [42nd] article, 295; ders., 44. [43.] Article, 301. The social contract theory was so common at the time of the US constitutional debate that the Federalist took it for granted (Dietze 1957/58: 21 et seq. 24; ders. 1957: 307 et seq ., 311 ff.). On the social contract theory of the Federalist see Rosen 1999: 26 ff .; Potter 2002: 30 ff. Locke's influence on the Federalist is, however, controversial (see I above; on this Brunhöber 2010: 1. Chapter I., 3. Chapter I. 4.). 54 Cf. Hamilton 1961: 45 ff., 47. See Epstein 1984: 11 ff. 55 And not as with Hobbes uno actu, but through a social and a power contract (cf. Madison 1978: 179 ff). 56 Hamilton, 78th [77th] article, 524. 57 Ibid. 58 Ibid. On this, Brunhöber 2010: Chapter 4. II. 5. 59 Madison, 46th [47th] article, 315. 60 See above I. Madison, 39th [38th] article, 251; See also the same, Article 14, 84. 61 Cf. Madison, Article 46. [45th] Article, 315; Madison [Hamilton], 57th [56th] article, 385; Madison [Hamilton], 62nd [61st] article, 418; Hamilton, 66th [65th] article, 451; ders., 68th [67th] article, 458; ders., 70th [69th] article, 476, 478; ders., 71st [70th] article, 482. On this by Bose 1989: 120f. 62 Cf. Locke 1964: Chapter 19. § 222, § 232. 67.63 This does not reduce the relationship of representation to representation under civil law in the sense of a legal attribution context.64 Rather, the federalist also demands material representation, which he ensures through the responsibility of the representatives for their decisions. Therefore, the decisions must be clearly customizable and must be accompanied by the public.65 Against this background, assumptions that were previously accepted in the analysis of the term “representation” become questionable. In American development, it is precisely not possible to prove that the idea of ​​representation of the people developed out of the representation of the estates.66 Rather, the representation idea in North America takes the democratic turn with the abandonment of the representation of identity on which the representation of the estates is based. It is transformed into a representative representation, which has its origin in the prince representation.67 In the case of identity representation, the representatives, based on their class identity, decide almost naturally in the interests of the represented. On the other hand, the following applies to the representative representation: The representative representatives decide on behalf of the represented. The feedback to their will results in the case of the prince from his position in office and in the case of the representative of the people from the regular (re) election, but not from coinciding interests. This is particularly important for the question of what representation should achieve. Should a parliament represent all interests, social groups, etc. as far as possible? Or should it rather decide and act on behalf of the people, but independently? If you want the latter with the Federalist, then it is not so important that the representatives come from all classes and interest groups. They can certainly be recruited from a political elite. Much more important are mechanisms for linking their decision to public opinion. The Federalist sees this as guaranteed through regular elections at short intervals and a public decision-making process. 63 Buchstein overlooks this difference (1997: 376 ff., 392). 64 But this is Buchein's interpretation (1997: 376 ff.). 65 See Madison, 48th [47th] article, 337; Madison [Hamilton], 57th [56th] article, 384; Madison [Hamilton], 63rd [62nd] article, 424; Hamilton, 70th [69th] Article, 472, 476, 478; ders., 77th [76th] article, 520. For more detailed information, Brunhöber 2010: 4th chap. II. 3.c. 66 For example Scheuner 1968: 386 ff., 394 f. Cf. also Stern 1984: 946 ff. 67 In general already Hofmann 2003: 406 ff. Detailed on this Brunhöber 2010: 4th chap. II. 3.a. 68 3. The decision of the representatives: From the common good as a substance to the common good as a process The democratic turnaround is also evident in the decision of the representatives. Political decisions are about the search for the common good. In contrast to the British theory of the time, the Federalist thought of the common good no longer as something substantial, but rather as the result of a transformation process that could be discovered over and over again. In principle, all citizens should be involved in this. At the same time, the democratic delegation of decision-making power leads to the rationalization of political decisions. Burke still assumed that the common good was previously determined by the organic, hereditary-corporate "constitution" of society. It therefore requires suitable representatives who are able to recognize this common good and understand it in their decisions. He finds it in the dignitaries who naturally represent society in political decisions in parliament due to their position in the ruling class.68 In contrast, the federalist regards the common good as “permanent and aggregate interests of the community”, as the permanent and aggregate interests of society.69 The common good is therefore an aggregate, that is, another manifestation of the totality of particular interests. It can only be found by balancing the conflicting interests in the political process.70 Firstly, there is a lack of impartial decision-makers in political decisions due to the general concern.71 Secondly, one cannot hope for consistently sensible statesmen72 because human cognitive faculties are fallible there is a lack of an authority that could determine which knowledge is correct and that even the most sensible of them cannot make a neutral decision because of their own concern.73 But the federalist does not reduce the common good to a mathematical calculation, 74 such as Thomas Paine75 or Jeremy Bentham76. Rather, it is about the regulation of interests in a conscious evaluation process77 by the political representatives.78 The result is also not a coincidental 68 Cf. Burke 1996: 64 ff .; ders. 1975: 241 ff. See Hofmann 2003: 457 ff. 69 Madison, 10th article, 57. For the translation of community see Adams / Adams 1994: lxxxix. 70 Madison, 10th article, 59. Cf. also ders., 51. [50th] article, 351, 353. On this Gebhardt 1968: 75 ff., 84 ff. 71 Locke argues similarly (1964: Chapter 7 § 87 ). See Epstein 1984: 83; White 1987: 28.72 Madison, 10th Article, 60; ders., 49th [48th] article, 340. This implicitly also rejects Rousseau’s idea of ​​the “grand législateur” (cf. Rousseau 1966: 2nd book, 7th chapter). 73 Madison, 10th article, 58. See also Hamilton, 1st article, 5; Madison, 37th [36th] article, 232 f .; Hamilton, 65th [64th] article, 444. 74 So but Zehnpfennig 1999: 1 ff., 26. 75 Paine 1995: 433 ff., 568; see Sternberger 1971: 59ff. 76 Bentham 1907: chap. 1, IV .; For example White 1987: 120. 77 As here Gebhard 1968: 75ff., 85. 78 Madison, 10th article, 59. 69 Result of the action of the interest groups.79 Rather, it is a result of a discussion, which through expanded, repeated and public debates as well as a balancing constitutional architecture is achieved in a representative decision-making process. In this way, the Federalist seeks to ensure the (relative) reasonableness of decisions and to prevent the prevalence of opinions that conflict with individual rights or the common good.80 Madison argues in the 10th Federalist Article that representation leads to a refinement and expansion of public opinion : "The effect of the [delegation of government] is [...] to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens [...]." 81 So representation plays a role in the rationalization of the positions introduced a crucial role. First of all, it should guarantee the (free and general) selection of the best.82 However, the representation process should ensure sensible decisions. The representative decision-making process firstly leads to a refinement of opinions 83, because the unmediated special concerns of the citizens must be brought into a public communication process. In this way, the individual interests are bundled and aligned with the common good, because they can only survive in public discourse if they can be generalized.84 The prerequisite is a free decision by the representatives.85 This becomes institutional86 through the free mandate86 and through that due to the size of the domain Existing distance to the voters is factually secured87. Second, the Federalist expects a stream of rationalization through the expansion of the discussion base (enlarge). The size ensures an expanded input, whereby particular concerns lose their importance and different coalitions of interests are formed again and again88.89 In addition, the specific 79 This is against the pluralistic interpretation here (see e.g. Pitkin 1967: 195 ff .; Landi 1976: 73 ff., 104). 80 The Federalist identifies this problem in the series of Hume (1994: 33 ff., 34) as the problem of the influence of factions (Madison, 10th article, 57). 81 Madison, 10th article, 62. 82 The Federalist describes the best as virtuous. The so-called republicanism thesis sees the use of this term as an after-effect of classical ideas of virtue (e.g. Pocock 2003: 506ff.). However, the Federalist does not want to base the stability of self-government solely on the virtues of the representatives. Rather, he relies on the separation of powers. Detailed Brunhöber 2010: 4th chap. III. 3.a. (2). 83 Madison is using Hume's system of multilevel government here. However, with him the various representative organs are not hierarchical, but largely uniform. Adair 1974: 93 ff., 106. 84 Cf. Madison, 10th article, 64. Cf. Epstein 1984: 100; Haller 1992: 135 ff. 85 Madison, 10th article, 62. Cf. also Hamilton, 70th [69th], article, 475. 86 The Federalist takes the free mandate for granted. Detailed Brunhöber 2010: 4th chap. II. 3.b. 87 Cf. Gregg 1997: 57. 88 Cf. Diamond 1992a: 17 ff., 33 f. 89 Madison, 10th article, 62. 70 design of the decision-making process increases the discourse horizon because it is repeated due to the separation of powers, conducted from different perspectives and by representatives with different foundations.90 Thirdly, the representation process ensures a "reflection loop" 91: By transferring political decision-making power, the represented subjects their will to the possibility of reconsidering. The representatives have the task of putting political issues on the agenda and developing positions on them so that the representatives can also form an opinion. If the views differ, the representatives decide first. If the representatives are later convinced by the public communication, they can let this decision stand. Otherwise they can elect other representatives and thus cause a change of direction.92 At the end of this procedure there is a provisional, generally recognized, as far as possible consideration of all points of view, rationalized by the procedure.93 This result remains remarkably a plural (interests of the community) .94 The idea of ​​a substantial common good is thus completely abandoned.95 4. Securing freedom through the sharing of power as a representative purpose: From the mixed constitution to the separation of powers The idea of ​​the division of powers is also being redefined in the Federalist. It is true that the Federalist ties in with the idea of ​​the mixed constitution of British constitutional theory, especially in the interpretation of Montesquieu, 90 Cf. Madison, 10th article, 62 f .; Madison [Hamilton], 57th [56th] article, 388. 91 Buchstein 1997: 376 ff., 396. 92 Cf. Madison, 63rd article, 425; Hamilton, 71. [70.] Article, 482. As here Haller 1992: 121. These considerations by the Federalist are sometimes interpreted quite differently to the effect that the aim is to prevent interventionist legislation (e.g. Pitkin 1967: 195 ff .; Lazare 1996: 5 ; Möllers 2008: 31). For details on this, Brunhöber 2010: Chapter 4. III. 3.b. 93 In the end, there is no truth of reason as in Sieyès 1975: 239 ff., 251, who proceeds from a similar filtering process. Because Madison knows that the decision of the representative assembly can also turn out to be hostile to the common good under certain circumstances (cf. Madison, 10th article, 62). 94 Madison, 10th article, 57. 95 In contrast, Zehnpfennig 1999: 1 ff., 12 thinks that remnants of a substantial common good remain. Likewise: Dahl 2006: 152 ff., 159 f. 71 cited.96 However, he abandons the pre-eminence of the ruling class and therefore describes his state idea as an unmixed republic97. As with Montesquieu, in the Federalist the primary purpose of power-sharing is to secure individual freedom.98 The separation of powers serves only secondarily to control the rulers in their individual desire for power Their behavior are responsible, which in turn is brought about in particular through regular elections.100 The Federalist, however, reverses Montesquieu's argument about the separation of powers. For Montesquieu, power distribution is the result of the ruling class structure of society.101 All social forces should be involved in the political order by combining democratic (many), aristocratic (few) and monarchical (one) constitutional elements. According to this, the functions of the state (legislative, executive, judicial) must be distributed among different instances. In them the social corporations people (many), hereditary nobility (a few) and hereditary monarch (one) are to be represented in such a way that they can defend themselves against the assumptions of authority and encroachments on freedom of the other.102 The separation of powers thus prevents one corporation from unjustified the freedoms of the other restricts. In the case of the Federalist, conversely, the principle of power-sharing implies the need for representation in power. Every undivided rule, regardless of the form of government103, leads to arbitrariness, since it lacks control of tendencies that are hostile to the common good and negate individual rights.104 Their influence can be limited primarily by delegating political decisions and expanding the sphere of rule. Subordinately, however, power concentrations must be prevented through separation of powers and checks and balances, as well as the establishment of a balance of power105 (balanced government ).106 This in turn requires the transfer of state tasks to various organs, 96 Proximity to the corporate mixed constitutional theory Montesquieus is often overlooked. In my opinion, the Republicanism thesis in particular emphasizes Harrington's influence too strongly. Brunhöber 2010: 1. Chap. I. 2. Madison calls Montesquieu his oracle on questions of the separation of powers (Madison, 47th [46th] article, 324). 97 Madison, Article 14, 84. That is why Riklin also considers the Federalist to be an opponent of the mixed constitution - albeit a “spurious” one (Riklin 2006: 382ff.). 98 Montesquieu 1992: Book XI, 4th chapter, 6th chapter. On this: Riklin 2006: 275 f., 279 ff. For the Federalist's concept of freedom, see Brunhöber 2010: 4th chap. II. 4.b. 99 See Madison [Hamilton], 57th [56th] article, 384. In detail Brunhöber 2010: 4th chap. III. 2. On the other hand, for example: Diamond 1992b: 58 ff .; Buchstein 1997: 376 ff. 100 in detail Brunhöber 2010: 4th chap. II. 3.c. 101 Montesquieu 1992: Book XI, Chapter 6. 102 Montesquieu 1992: Book XI, Chapter 6. 103 Buchstein overlooks this 1997: 376 ff., 394 f. 104 Madison, 46th [47th] article, 324. 105 See Madison, 49th [48th] article, 341. 106 Madison speaks of secondary aids (Madison [ Hamilton], 63rd [62nd] article, 425). 72 Representation, if at the same time the principle of popular sovereignty is to be adhered to107. For if the people exercised all state power directly, power could not be distributed. The federalist therefore demands that, although all state authority emanates from the people, it is exercised by various representative organs, each of which is to be involved in the state functions to be separated108. An example of this is that the House of Representatives (many) and the Senate (a few) 110 participate equally in the legislation, as well as the President (one) through his right of veto111. The mutual control of the state organs was ensured in Montesquieu by the fact that they were based in the corporations and were thus endowed with their own will.112 In order to establish a balance of power, the federalist also requires that each organ has its own foundation113 and its own will114 . But since he gives up the concept of the society of the ruling class and demands popular sovereignty115, he can only achieve this through the internal constitutional structure116. The different foundations and wills are generated by different electoral modes and constituencies.117 The respective independent will is secured by the fact that, in principle, no body should depend on another with regard to composition, term of office and remuneration.118 In addition, mutual control is strengthened by the fact that the personal ambitions of office-holders for power place restrictions on one another by giving them the appropriate powers.119 Finally, the horizontal 107 That is why Madison is now calling for an unmixed republic (Madison, Article 14, 84). 108 Madison [Hamilton], 51st [50th] article, 348; Hamilton, Article 9, 91. The US Constitution also provides for it (cf. Art. I, § 1; Art. II, § 1, cl. 1; Art. III, § 2, cl. 1 USConst. ). 109 See Madison, 47th [48th] article, 332; ders., 48th [47th] article; ders., 49th [48th] article; Hamilton, 69th [68th] article; ders., 71st [70th] article. 110 On this Madison [Hamilton], 63rd [62nd] article, 425. 111 On this Hamilton, 73. [72nd] article, 494. 112 Montesquieu 1992: Book XI, 6th chapter. 113 Madison [Hamilton], 55th [54th] article, 377. 114 Madison [Hamilton], 51st [50th] article, 348. 115 That is why Madison is currently calling for an unmixed republic (Madison, 14th article, 84). 116 Madison [Hamilton], 51st [50th] article, 347. However, the constitution is not an automatic clockwork (for example Arendt 1963: 241) that determines the political actors. These are namely "masters" of the constitution insofar as they can change it (Art. V USConst.). On this, Brunhöber 2010: Chapter 4. III. 2. 117 Madison [Hamilton], 55th [54th] article, 377; Hamilton, 60th [59th] article, 405th House of Representatives, Senate and President are elected at different times, in different constituencies and according to different voting rights (cf. Art. I, § 1, cl. 1; § 3, cl. 2 ; Art. II, § 1, cl. 2 USConst.). Different requirements also apply to the right to stand as a candidate (cf. Art. I, § 2, cl. 2; § 3, cl. 3; Art. II, § 1, cl. 5 USConst.). 118 Madison [Hamilton], 51st [50th] article, 348f. 119 Madison [Hamilton], 51st [50th] article, 349. See also Hamilton, 73. [72nd] article, 494. Cf. on the parallel argument of Montesquieu 1992: Book XI, Chapter 4. In doing so, private interests (so Beard 1998: 14 ff.) Or lobby interests (so Dahl 2006: 25 ff.) Should not be used, but only the political power striving of the officials. Detailed Brunhöber 2010: 4th chap. III. 2. As here Epstein 1984: 137 ff .; Pangle 1988: 109 f .; White 1987: 159 ff. 73 through the vertical division of power between the Union and the individual states, i.e. through the federal structure.120 The first thought that the separation of powers in the sense of the separation of functions prevents the abuse of power is now common knowledge. The second thought of the Federalist, however, with its source, the mixed constitution, has disappeared in the continental European constitutional theory: Concentrations of power can also be prevented by the fact that different organs, each with their own substructure, are involved in the state functions. In this way, the entanglement of powers does not appear as the opposite of the separation of powers, but as a complement to it. 5. Conclusion The Federalist's version of democratic representation is a largely convincing system that has proven itself in practice, through which uniform, democratic decisions are made possible not in spite of, but because of, pluralism. However, two points of criticism must be addressed121: the lack of basic rights and the question of a basic consensus as a prerequisite for democratic representation. The objection that in the theory of the Federalist the representatives are not bound by standardized and enforceable basic rights is almost obvious from today's point of view. However, this lack is due to the system. In connection with Locke's theory of social contracts, the Federalist assumed pre-state and inalienable fundamental rights, which he did not consider to be in need of standardization.122 Instead, encroachments on freedom should be prevented by the constitutional structure, above all through the separation of powers. However, the Americans quickly learned that this was not enough, and in 1791 they passed the Bill of Rights. In the following years, case law also enforced the enforceability of fundamental rights. One thought of the Federalist played a decisive role in this: the constitution was the framework for action by the representatives authorized by the people, compliance with which must be checked by an independent judiciary.123 One could also criticize the fact that democratic representation actually requires a certain basic consensus, so that majority decisions in general can be recognized. However, if one does not require a substantial, for example ethnic, identity, but allows the general willingness to submit the objects and results of political decisions to open communication124, the Federalist could rightly assume that this condition would be met. 120 Cf. Madison [Hamilton ], 51st [50th] article, 350f. See Buchstein 1997: 376 ff., 394f. 121 In detail Brunhöber 2010: Chapter 5. I., III. 122 Cf. in particular Hamilton, 84th article, 578. 123 Hamilton, 78. [77th] article, 524, 527. 124 Cf. for example Habermas 1990: 147 ff. 74 of his time. This was ensured by the experiences of self-government, the united struggle for independence and the common basic attitude shaped by the liberal revolutionary principles126. On the positive side, the Federalist theory makes democratic representation conceivable without a state, people or nation and without an objectively established common good. The federalist manages to strike a middle ground between the two poles of representation theory. On the one hand, the creation of unity is not overrated. The individual is not only part of the whole, but remains the starting point for political decision-making. On the other hand, it is not overlooked that unity must be achieved. The many individuals would be unable to act if there was a lack of resources to bring the many voices together to make a decision. Means is not the hope that everyone (virtuously) subordinates their individual interests to the common good. This would require the greatest possible degree of uniformity, such as a substantially homogeneous people, even before the decision is made. The importance that the Federalist attaches to the decision-making process shows how important public debate is, as is the bundling, articulation and pre-structuring of the many interests by parties, associations, non-governmental organizations and citizens' groups. However, this decision-making process must be legally (constitutionally) stipulated in such a way that all individuals actually have an equal opportunity to raise their concerns and have them taken into account. This also serves to ensure that only those with democratic legitimacy make decisions. The Federalist recognizes that otherwise the existing power imbalances would repeat themselves. This insight reveals the blind spot from which theories that rely on the self-control of the free play of forces or networks127 suffer. The Federalist wants to prevent the mere reproduction of the social balance of power by ensuring that everyone jointly determines the decision-making process (in the constitution). He is interested in a procedure in which as many concerns as possible are taken into account, that the input is expanded and the discussion is conducted several times from different perspectives. Diversity is incorporated into the democratic decision-making process in such a way that it ultimately contributes to the existence of the ruling association. And the Federalist's idea that the common good can only be found in the most diverse political discussion possible and that there remains a plurality of interests, offers an important starting point for the further development of democracy. It is true that the Federalist still holds on to a common good with positive meaning, which the decision-making process is supposed to approach by reaching a consensus. This was later incorporated into Habermas' discourse theory.128 Here we need to look further. 125 Cf. for example Hamilton, 84th article, 580. 126 Cf. Hamilton, 11th article, 72 f. 127 Cf. for a (non-representative) selection on governance theories, see Mayntz 2006: 11 ff .; Kooiman 2006: 149 ff .; on network theories, for example, Slaughter 2004: 261 ff .; Ladeur 2005: 89 ff .; critical Möllers 2005: 285 ff. 128 Habermas 2006: 161 and 600 ff. 75 ken: With the postmodern philosophy129 it could be taken into account that the well-being of all cannot only be achieved in practice, but also theoretically.130 For that which is necessary in the decision-making process Generalization makes the exclusion inevitable: In every general there is the non-recognition of the particular, because the emphasis on what is always identical has to exclude the non-identical, the other.131 Here, the principle of universality could be replaced by the principle of the (disregarded) Completely different (alterity) could be opposed.132 Also - as it is already laid out in the idea of ​​the expansion of communication in the theory of the Federalist - the impulses of the many different, due to their differences, could be ascribed a more positive role than the Enlightenment has done so far. 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And there was the Roman Republic, a huge empire that was more of an aristocratic republic, was shaken by civil wars and finally removed from popular rule with principality and empire. The post-ancient republics were mostly under the aegis of the nobility, but in any case they could only gain a foothold in a very small area. The American experiment was indeed a big risk, as it was the first time to combine popular sovereignty, popular rule and large-scale state and to distill a functional political order from it. The authors of the Federalist Papers explain the means by which this can be achieved. The science of politics has developed instruments that open up entirely new political possibilities: the separation of powers, control of the legislature, an independent judiciary and, above all, the principle of representation.2 Citizens no longer have to meet in person to exercise their civil rights. Rather, they entrust the power to pass laws to elected representatives who have to act in the interests of the common good. In this way, democracy can also be realized in the large-scale state. And the constitution, which regulates all this and federally consolidates the Union of States, which is threatened by collapse, is the result of a free decision by the citizens - not imposed by an authority, not thrown together by the coincidences of the course of the world. The emphasis on the founding of the United States of America, which the authors of the papers so eloquently express, has saved itself over time. It is the basis of the "american creed", that civil religion in which the beginning of the republic 1 Cf. Hamilton, Federalist No. 1: 53, in: A. Hamilton, J. Madison, J. Jay, The Federalist Papers, translated, Introduced and annotated by Barbara Zehnpfennig, Munich 2007. (All following quotations refer to this edition.) 2 Cf. Hamilton, Federalist No. 9: 89.