As everyone now knows, since 2021, Republican legislators in several dozen states have banned or attempted to ban consideration of so-called “divisive concepts” regarding race and gender within public university classrooms. Foes of what Pen America rightly labels these “educational gag orders” have hoisted the flag of academic freedom, declaring that these enactments violate the autonomy teachers require if they are to educate rather than indoctrinate.
This past session, Florida’s assembly effectively countered by prohibiting not just the consideration of certain controversial ideas but any “curriculum that teaches identity politics.” This sweeping imperative arguably spells the death of Critical Race Theory, feminist studies, and indeed any inquiry, to quote S.B. 266, that dares to ask whether “systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States.”
However urgent the cause, to focus only on these instructional bans is to overlook the GOP’s contemporaneous mandates about what students in state universities shall be taught in the classroom. Of special note is the right’s recent infatuation with “The Federalist Papers,” which were published in 1787 and 1788 under the name of Publius and in support of the new nation’s proposed constitution. Since 2021, for example, South Carolina has required all undergraduates at its public universities to complete at least three credit hours in American history and government, which must include “a minimum of five essays in their entirety from the Federalist Papers as selected by an instructor.” This same imperative, either verbatim or slightly modified, has now been proposed or approved in several other states, including North Carolina, Ohio, and of course Florida.
Today’s Republican Party knows all too well that its extremist stance on many issues is unsupported by a majority of the American people. Think, for example, of its recent defeats in elections that turned on the issue of abortion. It is not difficult to understand, therefore, why the GOP might want to compel students to study a series of essays that appears to endorse its counter-majoritarian agenda. However, were these legislators in fact to read “The Federalist Papers” before ordering others to do so, they might come to understand why Publius would condemn their ongoing efforts to disenfranchise their opponents but also why any government propelled to power by such antidemocratic means must be overthrown.
What Republicans Most Fear
What the Republican Party most fears today is majoritarian democracy. Should the people’s will be done, polls indicate, the GOP is likely to lose on issues of gun control, free community college, reproductive rights, government responsibility for healthcare, paid family leave, LGBTQ+ rights, and more. Even more alarming, fidelity to an unvarnished principle of majority rule within competitive electoral districts would have the effect of ousting many Republican incumbents from office, perhaps not always but often enough to render the party an ineffectual minority. This prospect grows still more dire as the Republican base embraces ever loonier conspiracy theories; as rural, white, and predominantly Christian voters comprise an ever-smaller percentage of the overall electorate; and as the more moderate suburban voters the Party must attract in general elections are repelled by radical right extremism.
Since Donald Trump lost the last presidential election, the GOP’s solution to this dilemma has become apparent to all who choose to see. If the Republican Party cannot be assured of success in hijacking elections, as it failed to do in 2020, it will rig the electorate. No longer willing to rely exclusively on the tried and true method of gerrymandering to secure safe districts for its incumbents, the GOP is now engaged in the most aggressive suppression of voting rights since the Jim Crow era. As documented by the Brennan Center, among others, these tactics include adopting stricter voter ID requirements, eliminating automatic or same-day registration, purging voter rolls, downsizing vote-by-mail and absentee balloting, shortening early voting periods, removing ballot drop boxes, and even denying food and water to those waiting in line at polling sites.
The principal aim of these strategies is to reduce turnout among traditionally Democratic constituencies, including urban, poorer, nonwhite, and younger voters. Their cumulative design is to preserve a hollow shell of electoral legitimacy but under conditions that systematically stack the deck against identifiable groups of voters: “We can be especially proud of the City of Milwaukee,” a Republican member of the Wisconsin Elections Commission recently crowed, because it tallied “37,000 less votes than cast in the 2018 election with the major reduction happening in the overwhelming Black and Hispanic areas.” That this drop-off is a cause for celebration rather than consternation will shock only those who fail to understand that the adoption of facially neutral but operationally racist voting regulations is no longer optional but essential to the ongoing viability of the GOP.
To defend these antidemocratic rollbacks, Republicans have hit on an ingenious but altogether cynical strategy: Citing massive electoral fraud, for which there is no significant empirical evidence, GOP officials insist that their aim is to protect against massive conspiracies, orchestrated by the Democratic Party and/or secretive cabals, to defraud “the people” of their right to free and fair elections. This falsehood is buttressed but also obfuscated by an appeal to the “culture wars,” which represents the defrauded as aggrieved victims of coastal elites who, when their masks are torn off, are revealed to be radical leftists if not card-carrying Marxists hellbent on imposing their WOKE agenda. Thus do Republican bigwigs enrich themselves, as well as the plutocratic donors and corporate interests they serve, by manipulating a base to which they pay verbal homage but secretly scorn.
Publius to the Rescue?
Given this context, how are we to understand the eagerness of Republican state legislators to mandate study of “The Federalist Papers” and, of greater importance, what might our students take away from that inquiry? The first of these questions is difficult to answer because there is little evidence that Republicans have given this question much thought, let alone cracked the cover on the collection of essays penned by James Madison, Alexander Hamilton, and John Jay. Perhaps they have some vague inkling that the Federalist Society, which presided over the Republican Party’s capture of the federal judiciary, finds its inspiration in Publius. Or perhaps they have some ill-formed intuition that Publius’s arguments provide the foundation for the originalist arguments frequently trotted out to oppose extension of the Bill of Rights to groups otherwise denied its protections. Or perhaps they are merely doing as they have been told by the Manhattan Institute and other right-wing foundations.
For the sake of argument, though, let us give Republican state legislators the benefit of the doubt and, however improbably, assume that they know what they are doing when they mandate inclusion of “The Federalist Papers” in the general education curriculum of public universities. Let us assume, more specifically, that they are persuaded that Publius will offer some measure of justification for their counter-majoritarian stratagems, which they hope may then rub off on students. In this, they are not altogether wrong, for “The Federalist Papers” do insist on the need to curb the majoritarian dangers inherent within a polity based on the principle of popular sovereignty, whether expressed at the polls or in the streets.
Famously, in “Federalist #10,” Madison contends that the principal source of disturbance within all political orders is what he calls “faction,” which he defines as “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Within specifically republican polities, should a faction be composed of “less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.” Should a faction encompass a majority, however, the ballot box will not suffice to check its intemperate passions, and so other means must be adopted to render it “unable to concert and carry into effect schemes of oppression.”
The constitution whose ratification Publius defends incorporates a host of measures to accomplish this counter-majoritarian end. They include, to name but a few, the distribution of political power among three branches of government, which affords the judiciary and the executive opportunities to check the House of Representatives; the U.S. Senate whose members prior to adoption of the Seventeenth Amendment were elected not by popular vote but by state legislators; the lifetime tenure granted to Supreme Court justices, which immunizes them from the shifting tides of popular opinion; the electoral college, which enables voters in smaller and chiefly rural states to exercise far greater power in the selection of presidents than their numbers would otherwise allow; and, according to Publius, the sheer size of the American republic, which renders it far more difficult for majorities to unite for nefarious purposes.
For contemporary Republicans, however, the problem with “The Federalist Papers” is that Publius gives the game away. Here too the urtext is #10: “The most common and durable source of factions,” Madison insists, “has been the various and unequal distribution of property.” The foremost purpose of government, he proceeds, is to protect the property of those who have much from the grasping hands of those who have little or none: “Those who hold, and those who are without property, have ever formed distinct interests in society … The regulation of these various and interfering interests forms the principal task of modern Legislation.” In sum, while it may be true that “the latent causes of faction are sown in the nature of man,” in practice it is the ownership of private property and the gross inequalities it engenders that trouble all regimes and, still more so, republics in which the middling and lower classes are granted the political means to seize what is not theirs.
To illustrate, Madison asks: “Is a law proposed concerning private debt? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party or, in other words, the most powerful faction must be expected to prevail.” In a republic, only the Constitution’s counter-majoritarian mechanisms can thwart this faction’s adherents from adopting leveling schemes aimed at shedding liabilities they freely assumed.
Should a majority become frustrated in defeat, Publius acknowledges, there is always the danger that its members will take up arms (as had been demonstrated by the recent debtors’ uprising dubbed Shay’s Rebellion). Should this come to pass, as it occasionally does when the routine operation of property laws fails to secure widespread acquiescence, troops must be called in to protect the interests of besieged elites. To deny this harsh reality, “Federalist #28” insists, is to forget that “seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body” and that, when these sores burst, there can “be no remedy but force.”
Is this, however, really a lesson that the Republican Party now wants our students to learn? Today, one in seven Americans has student loans; the average federal loan debt per borrower is just under $38,000; the largest number of borrowers are aged 25 to 34; and most borrowers will require up to two decades to pay off this debt, thereby sapping their ability to purchase homes and pay for childcare. Is it prudent to remind our students that their government has been designed to thwart their capacity to adopt laws that mandate “an abolition of debts,” thereby relieving them of this tax on their futures? Is it wise to teach white working-class students, let alone their Black and Hispanic counterparts, that the state will sometimes resort to violence so that the rich, including the financiers who profit from securitized debt, can accumulate still more? Do those who routinely castigate their opponents as socialists truly want to mandate that public university students master a text that offers something akin to a Marxist exposé of class domination? To pose these questions is enough to demonstrate the folly of the GOP’s recent spate of curricular meddling.
Why the Radical Right Must be Rejected
There remains a still more fundamental reason why Republicans should now bar Publius from the classroom. Publius may not be a radical democrat, but nor was he a closeted authoritarian. No matter how attenuated his commitment to majoritarian democracy, Publius never renounced the fundamental principles that informed the new nation’s founding and that were most perfectly articulated in the Declaration of Independence. These include, first, the precept that no government can claim legitimacy unless its power is grounded in consent of the governed; second, that the people must therefore stand as ultimate sovereign; third, that the people’s will must be determined by majority rule; and, finally, that all elections must be predicated on the egalitarian principle of one-person/one vote. These tenets are constitutive of any republic worthy of the name, and, absent their realization, a government may wield the sword but can never lay claim to rightful authority and hence its citizens’ compliance.
True, the Constitution defended in “The Federalist Papers” effectively denied enslaved Blacks and women suffrage because neither qualified as persons. But the Declaration’s essential principles, which represented a radical break from England’s formal incorporation of class divisions into Parliament’s two houses, established the possibility of eventually demanding inclusion of those excluded when the nation’s charter was first ratified. Realization of that emancipatory possibility, no matter how often and how systematically it is betrayed today, is what animated adoption of the Fifteenth Amendment in 1870 and, half a century later, the Nineteenth as well. Publius might recoil at these extensions of the right to vote, but he has only himself to blame for advancing the universalizable principles on behalf of which the Revolution was fought.
The radical right’s relentless drive to impede the right to vote, especially among constituencies it finds suspect, degrades the majoritarian imperative that Publius identified as “the fundamental principle of free government.” Still more egregious are the plots not to suppress the vote but to sabotage electoral results. Consider, for example, the right’s recent embrace of the far-fetched “independent state legislature theory” as a justification for overriding local election officials if the totals they announce are not to the state assembly’s liking. Here, moving beyond exploitation of the problematic counter-majoritarian provisions already embedded in the Constitution, Republicans manufacture perfidious new ways to subvert republican self-governance for the sake of partisan self-preservation. In their quest to perfect the conditions of minoritarian rule, they flout what Publius said must be so: “It is essential to such a government [a republic] that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it.”
Be Careful What You Ask for
To the machinations of today’s GOP, Publius provides the correct response: Because “the people” are the “natural guardians of the constitution,” they always retain their right to rebel against those who contravene their will. So wrote Hamilton, no champion of democracy, in “Federalist #28”: “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense, which is paramount to all positive forms of government.” Should the people choose to employ their “natural strength” to modify or even abolish a government created as a trust held in their name, the state’s rulers may sometimes resort to arms but they can never affirm a just title to do so. To quote Hamilton again, in the final analysis, all political power “ought to flow immediately from that pure original fountain of all legitimate authority” that is “THE CONSENT OF THE PEOPLE.”
Sometimes, would-be authoritarians do not adequately grasp what is and is not in their own best interests. Should right-wing Republicans in fact read what they now assign to others, perhaps they will realize why they are well-advised to ban “The Federalist Papers” from public university curricula, for these essays espouse certain concepts that are most certainly divisive. Specifically, Publius teaches why the GOP’s current efforts to ensure the structural conditions necessary to its perpetual rule subvert the core convictions of the Republic they claim to defend. So, too, Publius explains why those who violate these maxims are in fact usurpers who deserve the fate appropriately meted out to all tyrants.
History will prove deliciously ironic should those who routinely castigate their opponents as socialists unwittingly advance the end Marx and Engels anticipated for the ruling class: “Above all else,” predicted the “Communist Manifesto,” that entrenched oligarchy produces “its own grave diggers.”
Timothy V. Kaufman-Osborn is the Baker Ferguson Professor of Politics and Leadership Emeritus at Whitman College. He is the author of multiple articles on academic governance as well as “The Autocratic Academy: Reenvisioning Rule within America’s Universities” (Duke University Press, 2023).
Header image by Nathan Dumlao on Unsplash.