James Madison and Disobedience in the Public Interest

James Madison’s most radical proposal in The Federalist No. 51 was grounded in personal experience, even though he didn’t say so. Madison used a magisterial writing style, like all the authors who wrote the various Federalist Papers under the pen name Publius. He did not cite specific occurrences; only generalities such as “experience has taught mankind”. But his views were shaped by years in the rough and tumble of Colonial politics.

In the Federalist No. 51, Madison states the need for checks and balances in the proposed Constitution “to control the abuses of government”. He calls for checks and balances not only among the Legislative, Executive and Judicial branches, and between the two chambers of the legislature, but also among the offices within each branch and even among individuals working in those offices:

Where did Madison get the radical idea that an individual employed in a subordinate office of the government should serve as a sentinel over the public rights, rather than merely obeying his superiors? He had seen it happen.

Madison was elected to the Continental Congress in 1779, during the nascent nation’s first whistleblower scandal. Ten members of the Continental Navy had signed a complaint to the Marine Committee of the Congress accusing the commander of the Navy, Commodore Esek Hopkins, of misdeeds that included treating prisoners “in the most inhuman and barbarous manner.” Congress investigated, suspended Hopkins from command, and later dismissed him from the service of the United States. Hopkins retaliated against the whistleblowers. He sued them for libel in a Rhode Island court, although only two of the ten were found in Rhode Island and brought to trial. Congress helped the whistleblowers. It voted to send them attested copies of all its records related to the Esek Hopkins investigation, for use in their defense. On May 22, 1779, Congress voted to reimburse the whistleblowers for the cost of their legal defense. Ten months later, Congress appointed James Madison to its Board of Admiralty, so he was doubtless fully informed about the recently concluded Navy whistleblower scandal.

After the revolution was won and the Constitution was adopted, Madison and the other members of the First United States Congress wrestled with the particulars of empowering individual government employees to be “sentinel over the public rights”. Workers who disobey their superiors might be opposing an abuse of power or implementing an innovation that the hierarchy will not. But disobedient workers might harm the public out of ignorance or selfishness, and the public cannot hold officials accountable for performance if the officials do not have power over their workforce.

On the side of empowering workers, the First U.S. Congress required even some low-level government employees to be nominated by the President and confirmed by the Senate; for example, clerks who recorded receipt of registration certificates from ships importing goods, Thus, these workers did not owe their jobs to any one official, and were responsible to the government as a whole rather than a single political patron. But on the side of giving political officials more control, Madison supported legislation that allowed the President to unilaterally fire the Secretary of Foreign Affairs (precursor to the Secretary of State) which set a precedent that gave the President more control over the “subordinate offices” of government.

As government grew it became impractical to require lower-level employees to be nominated and confirmed, so laws were passed empowering the President and department heads to hire employees unilaterally. That resulted in a spoils system in which government workers were hired and fired based on loyalty to the party in power. The resulting corruption and incompetence led to a series of laws requiring appointment and dismissal of government employees by “merit” principles such as competitive examinations. These protections were gradually strengthened and applied to more government workers, until the Carter Administration. President Carter’s Civil Service Reform Act of 1978 ended the Civil Service Commission as an independent agency. It also converted the top grades of civil servants to a Senior Executive Service whose members have less protection against retaliation by their political appointee superiors. (This history is described in detail by Schroth.)

The most recent incarnation of this issue is the proposal to move many federal employees to a new “Schedule F” that would have no protection against being fired for dissent. It is couched as a remedy to shadow government obstructing the policies of elected Presidents, but it would prevent government employees from fulfilling the role Madison assigned them as “sentinel over the public rights”.