“These “factions”– a term Madison defined [in Federalist 10] as “a number of citizens, whether amounting to a majority or minority of the whole [populace], 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”–can breach the limits that the Constitution places on their power and enact laws that deprive people of their private property, abridge religious freedom, or implement other “improper or wicked project[s].” When this happens-when either a small faction uses government to harm the majority, or where the majority uses government to harm the minority-the rights of individuals are placed at risk, just as they were before the establishment of government. Such a society is governed not by law, but by the unaccountable will of the majority. Madison rejected the notion that “the interest of the majority is the political standard of right and wrong,” because unless it was “qualified by every moral ingredient,” that notion would be “only reestablishing under another name and a more specious form, force as a measure of right.” After all, “it would be in the interest of the majority in the community to despoil and enslave the minority.”
Timothy Sandefur, The Conscience of the Constitution
Now comes a manifestation of Madison’s foresight, 227 years into his future, in the form of Clifton Wilmeng’s Community Rights Amendment –
“That right shall include, without limitation . . .the power to enact local laws establishing, defining, altering, or eliminating the rights, powers, and duties of for-profit business entities, operating or seeking to operate in the community[.]”
On this Memorial Day, consider whether the sort of totalitarianism described in the Community Rights Amendment – packaged in various authoritarian political systems through the years – is exactly what they fought against.