James Madison and the Dilemmas of Democracy
What kind of government did the Father of the Constitution envision?
In the roster of famous last words—from Goethe’s “More light!” to Nathan Hale’s “I regret I have but one life to give for my country” to John Maynard Keynes’s debonair “I should have drunk more champagne”—surely the final utterance of James Madison deserves an honored place. Bedridden with rheumatism at 85, the fourth president had spent 19 years in retirement at Montpelier, the columned brick Virginia plantation house where he had grown up since age nine or ten; where, as a young legislator, he had pored over history and political philosophy to help frame his plan for the United States Constitution; and where, as a 46-year-old ex-congressman, he had brought his wife of three years to live with his parents on their 5,000 rich Piedmont acres. That final morning in 1836, Sukey, his wife’s longtime maid, had brought him his breakfast, as usual; another slave, his valet Paul Jennings, got ready to shave him, as he had done every second day for 16 years; his favorite niece, the widowed Nelly Willis, sat by him to keep him company, as the June sun filtered through the twin poplars in the backyard and warmed the book-filled sickroom. The old man, his intellect as sharp as his body was worn, tried to eat but could not swallow.
“What is the matter, Uncle James?” his niece asked.
“Nothing more than a change of mind, my dear,” the president replied. And then, writes Jennings in a memoir of Madison published just after the Civil War, “his head instantly dropped, and he ceased breathing as quietly as the snuff of a candle goes out.”
A change of mind! How utterly fitting a farewell for the most cerebral of the Founders, the nation’s great political theorist, whose biography is, more than any other president’s, the record of his thought. How fitting, too, for a man whose intellectual journey has sparked debate for two centuries. Was the Father of the Constitution consistent? Did he shift his views—and if so, why?
And thereby hangs a most interesting, and most human, tale.
The liberty that Madison, a true Enlightenment intellectual, most hotly defended as the Revolution loomed was freedom of thought, man’s God-given birthright and the engine of human progress. At Princeton, he had wholly embraced the Scottish Enlightenment ethic of President John Witherspoon, an Edinburgh-educated iconoclast (like Madison’s beloved schoolmaster Donald Robertson) who strove to “cherish a spirit of liberty, and free enquiry” in his scholars “and not only to permit, but even to encourage their right of private judgment.” With teenage bravado, Madison upped the free-enquiry stakes: he persuaded Witherspoon to let him try to do two years of work in one, “an indiscreet experiment of the minimum of sleep and the maximum of application, which the constitution would bear,” an older and wiser Madison ruefully judged. Though he graduated in two years rather than the usual three, he stayed on for another because the effort had left him too ill to travel home. Finally back at Montpelier in 1772, he wrote his college friend William Bradford that he couldn’t settle down to choose a career. His illness, recurring with epilepsy-like seizures at times of stress, “intimated to me not to expect a long or healthy life,” he said, so it seemed silly to learn skills “difficult in acquiring and useless in possessing after one has exchanged Time for Eternity.”
But his lassitude had vanished when he wrote Bradford with sharply focused indignation in early 1774, shortly after the Boston Tea Party. A handful of Baptist preachers languished in jail in the next county “for publishing their religious Sentiments which in the main are very orthodox,” he wrote his Philadelphia friend. Locked up for their opinions! “I have squabbled and scolded[,] abused and ridiculed so long about it, to so little purpose that I am without common patience. So I leave you to pity me and pray for Liberty of Conscience to revive among us.” After all, he asked, echoing Doctor Witherspoon’s thunderous denunciations of “lordly domination and sacredotal tyranny,” what can you expect when you have an established church that tells everyone to believe and pray alike? Had the Church of England been established in the northern as well as the southern colonies, “slavery and Subjection might and would have been gradually insinuated among us,” since, without a clash of opinions, “Union of Religious Sentiments begets a surprizing confidence” that breeds “mischievous Projects.”
Two months later, with the dissenting ministers still locked up, he was still fuming, and he expanded his criticism in another letter to Bradford, later George Washington’s attorney general. His fellow Virginians were harming themselves as well as the ministers. They should imitate Pennsylvanians, who have “long felt the good effects of their religious as well as Civil Liberty. Foreigners have been encouraged to settle amg. you. Industry and Virtue have been promoted by mutual emulation and mutual Inspection, Commerce and the Arts have flourished and I can not help attributing those continual exertions of Genius which appear among you to the inspiration of Liberty and that love of Fame and Knowledge which always accompany it.” Freedom of thought and belief, of unbounded, even iconoclastic speculation, of invention and innovation, make up an indivisible whole. “Religious bondage shackles and debilitates the mind and unfits it for every noble enterprize[,] every expanded prospect.” There is no progress without intellectual freedom.
That year, Madison found his vocation when he joined the Orange County Committee of Safety, which enforced the Continental Association’s ban on British trade. Two years later, elected to the Virginia convention that pushed Congress to declare American independence, the 25-year-old revolutionary politician made his first public splash on the question, not surprisingly, of religious freedom, the intellectual freedom that civil authorities most often have tried to crush. When the convention, which turned into Virginia’s official legislative assembly, drew up a Declaration of Rights, Madison objected to the article declaring that “all men shou’d enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience.” Toleration, he pointed out, implied that government had the authority to withhold or to grant freedom of conscience, whereas freedom of thought was “a natural and absolute right” not subject to any government control whatever. His suggested amendment, which would have disestablished the Anglican Church completely, proved too radical for the convention, but its members accepted his second draft, which expansively declared that religious belief and practice “can be directed only by reason and conviction, not by force or violence; and therefore, that all men are equally entitled to enjoy the free exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate.”
Almost a decade later in June 1785—when, because of the Articles of Confederation’s term limits, he had left the Continental Congress after four years of grueling toil and had rejoined the Virginia Assembly—Madison made clear that his musings on freedom of conscience had matured into a fully formed political theory. Patrick Henry and other legislators had proposed a tax to support teachers of the Christian religion; Madison responded with a ringing defense of intellectual freedom, “Memorial and Remonstrance Against Religious Assessments,” that swept the state—and swept their bill into oblivion.
“All men are by nature equally free and independent,” he wrote, quoting the Virginia Declaration of Rights, which in turn paraphrased Locke. They voluntarily give up their liberty of aggression upon entering society, to ensure mutual safety and to secure from invasion the rights and freedoms they have retained. These rights and freedoms—which belong to us not because society or government bestows them but because they are the “gift of nature”—are “unalienable,” none more so than freedom of thought, “because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.” Since on entering society, no man surrenders more rights than any other man, we who glory in our freedom “to profess and to observe the Religion which we believe to be of divine origin . . . cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us”—even, Madison implies, if they believe in no religion.
Even under free, popularly elected governments, man’s God-given rights remain off-limits to state interference. Yes, the “will of the majority” ultimately rules, “but it is also true that the majority may trespass on the rights of the minority,” and such a trespass on fundamental rights is as illegitimate as the arbitrary will of an absolute monarch. Any rulers who “overleap the great Barrier which defends the rights of the people”—even popularly elected rulers carrying out the will of the majority—“exceed the commission from which they derive their authority, and are Tyrants,” differing from “the Inquisition . . . only in degree.” A democratic tyranny may seem a contradiction in terms, but it can be all too real.
Lovers of freedom must crush such despotism before it has “strengthened itself by exercise, and entangled the question in precedents.” So the assembly’s bill allowing the state to meddle in matters of conscience and to tax citizens, whatever their beliefs, to pay state-approved teachers of Christianity puts the most basic choice before us. “Either then, we must say that the Will of the Legislature is the only measure of their authority; and . . . they may sweep away all our fundamental rights; or that they are bound to leave this particular right untouched and sacred.” If we let the legislature overturn a single natural, fundamental right—as if individuals exist for the state rather than the state for individuals and the protection of their rights; as if government rather than God or nature is the source of our rights—then our popularly elected rulers “may controul the freedom of the press, may abolish Trial by Jury, may swallow up the Executive and Judiciary powers of the State,” and even “despoil us of our right of suffrage, and erect themselves into an independent and hereditary Assembly.” Virginia’s growing numbers of Baptists, Methodists, and other Dissenters, who painfully remembered having to support the established Anglican clergy before its tacit disestablishment in 1776 and wanted no further government interference in religion, devoured Madison’s “Remonstrance,” flooded the assembly with passionate petitions, and killed the bill.
As a practical matter, Madison’s view that government should never dream of “making laws for the human mind,” because there are areas of human freedom where government may not tread, made him a firmer believer in the separation of church and state even than Jefferson. He rejected as “an old error, that without some sort of alliance or coalition between Govt. and Religion neither can be duly supported.” On the contrary, “a due distinction . . . between what is due to Caesar and what is due to God best promotes the discharge of both obligations,” he wrote. “A mutual independence is found most friendly to practical religion, to social harmony, and to political prosperity.” When church and state collude, history shows, the result is “pride and indolence in the Clergy” and “superstition, bigotry, and persecution” in the society.
He came to think it wrong for Congress and the military to appoint tax-funded chaplains; it smacked too much of a religious establishment and discriminated against Catholics or Quakers, who, he thought, would never be appointed to such posts. Congressmen so inclined could hire their own clergymen out of their own pockets. As president, though he had planned to follow Jefferson in never proclaiming days of thanksgiving or fasting, when Congress pushed him to change course, “I was always careful to make the Proclamations absolutely indiscriminate, and merely recommendatory,” he recalled, simply designating “a day on which all who thought proper might unite in consecrating it to religious purposes, according to their own faith and forms.”
Beyond showing him that majority rule could turn tyrannical, Madison’s early political career proved an education in popular government’s shortcomings at all levels: individual, state, and national. In his bid for reelection to the assembly in 1777, he wouldn’t lay out the usual free drinks and food that voters expected, thinking the custom “inconsistent with the purity of moral and republican principles” that he was “anxious to promote by his example,” he later wrote. The voters, short on the requisite republican purity, viewed his behavior “as the effect of pride or parsimony” and voted him down as a prig. Both as a professional politician and as the framer of a government, he never again made the mistake of expecting ordinary people to be prodigies of virtue.
As consolation for Madison’s loss, Governor Patrick Henry got him named to his eight-man Council of Advisors, where, on his first workday in January 1778, he helped deal with a letter from George Washington that sounded what became a keynote of his next decade in politics. Freezing and hungry that dire winter in Valley Forge, with no supplies coming in, “this Army must inevitably . . . [s]tarve, dissolve, or disperse,” the general wrote two days before Christmas. “Sir this is not an exaggerated picture.” The governor and council managed to send meat and salt, “good rum,” and sugar northward, and Madison had his first taste of the desperate, hand-to-mouth difficulty of getting self-governing citizens to pay taxes and getting states to cooperate with the national government, even with survival at stake.
Elected to the Continental Congress two years later, Madison vividly wrote a week after taking his seat in Philadelphia in March 1780 of the “alarm and distress” prevailing there to Jefferson, his close friend ever since his Piedmont neighbor had succeeded Patrick Henry as governor and so had begun working hand-in-glove with Madison on Virginia’s Council of Advisors. Problem piled upon problem: “Our army threatened with an immediate alternative of disbanding or living on free quarter; the public treasury empty; public credit exhausted; . . . Congress complaining of the extortion of the people; the people of the improvidence of Congress, and the army of both; our affairs requiring the most mature & systematic measures, and the urgency of occasions admitting only of temporizing expedients, and those expedients generating new difficulties”—and that’s just for starters. His colleagues were lightweights, often wrong, but even when right unable to get the separate states to back their plans without constant second-guessing that bred universal distrust.
With inflation exploding, Congress took exactly the wrong course. Thinking that inflation sprang only from too much paper money chasing too few goods, Congress called in its paper currency, devalued it 40 to one, and vowed to print no more. But as Madison saw, the real problem was that no one believed Congress could ever make the paper it emitted worth anything, so inflation barreled on: Madison’s expenses for his first six months in Philadelphia came to $21,000 for room and board for himself and $6,034 more for his three horses, $2,459 for liquor and mixers, $1,776 for laundry, and $1,020 for barbering. The 29-year-old congressman, still getting an allowance from his rich planter father, was also “a pensioner on the favor of Haym Salomon, a Jew Broker,” who refused to charge interest on loans to the “necessitous Delegate.” By May 1781, 1,000 Continental dollars equaled one gold dollar.
Perhaps worse, “the situation of Congress has undergone a total change,” Madison wrote Jefferson after the currency reform. “Whilst they exercised the indefinite power of emitting money on the credit of their constituents, they had the whole wealth and resources of the continent within their command, and could go on with their affairs independently and as they pleased.” With the money presses stopped, “they are now as dependent on the States as the King of England is on Parliament. They can neither enlist, pay nor feed a single soldier, nor execute any other purpose,” unless the state legislatures vote them money the states themselves have printed. Otherwise, “every thing must . . . come to a total stop.”
To solve the economic meltdown and the larger military-supply problem it exacerbated, Madison saw, America had to inspire confidence by showing it could win its revolution—which for most of 1780 seemed far-fetched—and it needed to borrow hard currency from abroad. Since France was both its chief foreign lender and main military ally, Madison saw the French alliance as a strategic sine qua non. Moreover, he liked the French, whose diplomats began wooing him soon after his arrival in Philadelphia with glittering dinners at their lavish legation, which “Mr. Mutterson,” as a French nobleman called him, attended weekly. Unlike some of his fellow Founders, Madison had never traveled abroad (and never did), had never before lived in a big city, and found these hyper-refined blossoms of the ancien régime fascinating—too fascinating for his own and his country’s good, as it turned out.
The French diplomats, for their part, quickly saw his value. Madison joined Congress when the bitter feud between two of America’s secret commissioners to France raged most fiercely, with Commissioner Arthur Lee accurately accusing Commissioner Silas Deane of harboring British spies in his office and colluding with French agents to profiteer (with the connivance of fellow diplomat Benjamin Franklin), while Deane falsely accused Lee of double-crossing America’s French ally by seeking a separate peace with Britain. The feud split Congress for the first time into two factions, one pro-French and pro-Franklin, the other anti. By late 1780, Madison had emerged as deputy leader of the pro-French party, and the French minister in Philadelphia, the Chevalier de la Luzerne, and his secretary, François Barbé-Marbois, lobbied him with indefatigable suavity.
They had their own national interest to advance, and they used Madison to further the geostrategic vision of the Count of Vergennes, their foreign minister. France aimed to humiliate, weaken, and impoverish Britain, its longtime adversary, through a costly war that would end by splitting off a precious chunk of its empire; but it wanted the independent United States that emerged to be weak, hemmed in by irritating and predatory foreign powers, and dependent on Versailles for protection and trade. John Adams, who had arrived in France in 1780 as an American peace commissioner, sniffed out these intentions and wrote Congress that France meant to “Keep us weak. Make us feel our obligations. Impress our minds with a sense of gratitude.” By July 1780, the wily Vergennes had fathomed the undiplomatic Adams’s increasingly anti-French views, declared he would deal with him no further, and told Franklin to inform Congress.
To counter the John Adams–Arthur Lee Francophobes, Ambassador Luzerne, mainly by playing Madison like a violin, inveigled Congress to instruct the American peace commissioners in June 1781 to keep no secrets from “the ministers of our generous ally the King of France; to undertake nothing in the negotiations for peace or truce without their knowledge or concurrence; . . . and ultimately govern yourself by their advice and concurrence.” The next June, Madison and Barbé-Marbois took this message to the American public, collaborating on a letter to the Pennsylvania Packet, supposedly from “a gentleman in office” in Philadelphia. They extolled “the happy alliance which unites us to France,” from which “we have every year received new benefits, . . . without being able to make any other return than barren acknowledgments,” and they suggested that America should at least repay that debt “with an unlimited confidence and constant communication of every thing which relates to our mutual interests.”
But once George Washington, with the French navy’s backing, ended the fighting on American soil with his victory at Yorktown in October 1781, America’s need of France ebbed. Moreover, the new chief U.S. peace commissioner, John Jay, had reached exactly John Adams’s conclusions about French duplicity and sent proof of it to Congress in an intercepted letter from Madison’s friend Barbé-Marbois to Vergennes. The letter, which reached Philadelphia just before Christmas 1782, showed that France planned to oppose key U.S. aims in the peace negotiations: prompt recognition of America’s independence and expansive territorial claims, plus the right to fish where Americans had always fished. Jay decided simply to ignore Congress’s instructions to defer to the French, and, unknown to Vergennes, he hammered out a peace treaty with Britain, infinitely more beneficial to the newly independent United States than the aghast French foreign minister ever dreamed.
Madison was scarcely less aghast. He had incredulously dismissed the authentic Barbé-Marbois letter as a forgery and feared, as Jay negotiated, that America was “more in danger of being seduced by Britain than sacrificed by France.” When he saw the treaty’s text, he couldn’t help applauding the “extremely liberal” terms Jay had brilliantly won from Britain, but he was scandalized not only that Jay had acted without consulting Vergennes but also that he had agreed with Britain on an article setting the U.S.-Florida border that remained entirely secret from the French. Unless Congress revealed that article, Madison exploded, “all confidence with France is at an end which in the event of a renewal of the war, must be dreadful as in that of peace it may be dishonorable.” And squirming under Luzerne and Barbé-Marbois’ dark mutterings that Vergennes might not complain of Jay’s conduct but he “felt and remembered,” Madison urged not just disclosure but abject apology.
He was dead wrong but utterly sincere, and he remained sincere and wrong about France for the rest of his political career, with unhappy consequences for his nation. But his original premise—the indispensability of French economic and military support in the dark days of the Revolution—was sound, and the affection he formed for America’s French allies ran deep. One of his vividest memories was the 1784 visit he made with Barbé-Marbois and the Marquis de Lafayette to the Oneida Indians near present-day Rome, New York, a six-day wilderness ride west from Albany and the farthest that Madison ever ventured from home in his life. Barbé-Marbois volunteered as chef and whipped up “delicious” soups over the campfire, especially welcome in the freezing, wet autumn; Lafayette was “as amiable a man as his vanity will admit”; the servants enjoyed the Indians’ custom, which had amazed Europeans ever since they first penetrated the Mohawk Valley in the seventeenth century, of temporarily marrying their girls to visitors for the duration of their stay. Nevertheless, Barbé-Marbois sniffed, “These children of nature are not at all what the writers of Europe say, who have never seen them.”
But the French alliance solved only part of the economic and military-supply problems that Madison faced daily in Philadelphia. The larger solution, he saw, had to address a deeper political problem. Under British oppression, American colonists had focused on the free, self-determination part of “free self-government”; under a national emergency needing a concerted national effort, it was time to stress the government part of that formula—a formula Madison knew was almost an oxymoron, with irresolvable tension at its heart, since, as he later quipped, “an advisory Govt is a contradiction in terms.” The politics of the 1780s taught him that “liberty may be endangered by the abuses of liberty, as well as by the abuses of power.” As he rhetorically phrased the issue, “Can any government be established, that will answer any purpose whatever, unless force be provided for executing its laws?”
To win the war, therefore, Americans would have “to give greater authority and vigor to our public councils.” Just days after the Articles of Confederation became law in March 1781, Madison proposed an amendment giving Congress “a general and implied power” to force the states “to abide by [Congress’s] determinations.” As he explained to Jefferson, “The necessity of arming Congress with coercive powers arises from the shameful deficiency of some of the States which are most capable of yielding their apportioned supplies.” All it would take to jolt the needed food, matériel, and cash out of them is “a small detachment” of soldiers or “two or three vessels of force employed against their trade.” But he changed his mind about the amendment: as he explained to Jefferson, he believed that Congress already had “an implied right of coercion,” which if push came to shove “will probably be acquiesced it.” Therefore, it made no sense to give balky states the chance to deny preemptively that such government power legitimately existed.
Congress also needed the power to tax, Madison saw, and after the fighting ended at Yorktown, he, Alexander Hamilton, and other congressmen worked out a financial plan that, at his instigation, would have had the federal government assume responsibility for the states’ war debts and would not discriminate among the various classes of public creditors, positions he repudiated when his and Hamilton’s close alliance later turned to enmity. Congress approved a watered-down tax but not Madison’s proposals to assume state debts and treat creditors equally a few months before the Treaty of Paris, signed in September 1783, brought the Revolution formally to a close.
Back in the Virginia Assembly in 1784 after his congressional term ended, Madison relearned firsthand just how little the state legislatures cared about the national interest, strengthening his wish for “greater authority and vigor” in the federal government than the Articles of Confederation provided. He tried and failed to get the assembly to let British creditors sue Virginia debtors in the state’s courts as the peace treaty required, so that Britain would ship all its troops home, as it had agreed. Moreover, he grumbled, other states wouldn’t pay contributions due to the central government or join in an embargo to counter British trade restrictions. And the central government itself seemed ready to pit one region against another; John Jay, now foreign secretary, was negotiating with Spain to swap America’s right to navigate the lower Mississippi for 25 years in exchange for commercial agreements that would most benefit Northeasterners—a scheme that outraged pioneers flooding into the southwestern frontier. Jay reasonably but impoliticly thought that, as U.S. population growth over 25 years would swallow up the lower Mississippi without the need for a war it couldn’t presently win, it made sense to “forbear to use, what we know it is not in our power to use,” in exchange for “a valuable consideration”—but not, he finally realized, if that deal would be “disagreeable to one half of the nation.” As Madison realized much sooner—since he and Jefferson had first discussed the river’s crucial importance in 1779—Jay’s negotiations, soon broken off, could only make Southerners and Westerners feel “sold by their Atlantic brethren” and “absolved from every federal tie.”
Madison also saw how willing the popularly elected legislatures were to harm a minority to please the majority, above all in their “general rage for paper money.” Backed by little or nothing in most states, “this fictitious money” inevitably depreciated, and the resulting price inflation aided debtors by decreasing the real value of the sum they owed, while “[c]reditors paid the expence of the farce.” Since debtors are many and creditors few, the “clamor for [paper money] is now universal,” Madison wrote Jefferson in 1786, and state legislators opposed to printing it—and in effect transferring wealth from creditors to debtors by government fiat—were likely to get turned out of office or, if not, “will require all their firmness to withstand the popular torrent,” as he himself found when he kept Virginia from joining the paper stampede. Paper currency had sparked a beggar-my-neighbor race to the bottom, as states passed laws allowing their citizens to use paper money to pay off creditors in other states where such currency was legal tender.
In the same letter, Madison told Jefferson that all these problems made him support a meeting of deputies from the various states scheduled for September 1786 in Annapolis, a meeting “many Gentlemen both within & without Congs. wish to make . . . subservient to a Plenipotentiary Convention for amending the Confederation.” That would be a wonderful outcome, Madison wrote, “yet I despair so much of its accomplishment at the present crisis.” As it happened, only five states sent delegates; but two of them were Madison and Hamilton, and out of their determination came the next year’s Constitutional Convention.
Despite his profession of despair, all through the spring and summer of 1786 leading up to the Annapolis meeting, Madison crammed for constitution-making by ravening through a “literary cargo” of books that Jefferson, then U.S. minister in Paris, had sent him by the hundreds from Europe—histories of confederations from ancient Greece to modern Switzerland, in French and Latin as well as English, works of political theory from the Enlightenment and earlier, Diderot’s great Encyclopédie—all in the faith that “the past should enlighten us on the future: knowledge of history is no more than anticipated experience,” Madison wrote. “When we see the same faults followed regularly by the same misfortunes, we may reasonably think that if we could have known the first we might have avoided the others.”
Most men have a hard enough time learning from their own experience; the theoretical Madison, much to his credit, paid close attention to realities and consequences and repeatedly adjusted his theories to the lessons of experience, both personal and historical. In his second-floor library looking west to Montpelier’s spectacular panorama of the Blue Ridge Mountains 20 miles away, the zealous student absorbed over 2,000 years of experience of why past confederations had failed. All this he summarized in a handwritten booklet—the library’s floor still bears his ink splatters—that he consulted in debates at the Constitutional Convention and mined freely for three Federalist papers. His reading reinforced what his congressional experience had already suggested: confederacies fail when they lack a strong central authority. So he undertook the “political experiment” of the Constitutional Convention with the aim of “combining the requisite stability and energy in government with the inviolable attention due to liberty, and to the republican form.”
Before the Convention opened on May 25, 1787, in the Pennsylvania statehouse where, 11 years earlier, eight of the current 55 delegates had signed the Declaration of Independence, Madison prepared feverishly. In December 1786, he convinced George Washington that his “name could not be spared from the Deputation to the Meeting” as “a proof of the light in which he regards” its importance; as for the rest of the assembly, Madison wrote Jefferson, “the names of the members will satisfy you that the states have been serious in this business.” The list of governors, judges, congressmen, and war heroes, Jefferson wrote John Adams, read like “an assembly of demi-gods.” In April 1787, Madison drew up a brilliantly lucid analysis of the “Vices of the Political System of the United States,” in which he worked out fully the constitutional theory that guided him in the months ahead.
On May 3, Madison arrived in Philadelphia, and a week or so later, when the other six Virginia delegates had settled in, he led them in adopting an outline of an entirely new government, which Governor Edmond Randolph, young, tall, handsome, and eloquent, presented to the Convention on May 29, four days after it had begun. The “Virginia Plan,” which Madison almost certainly wrote, served the delegates as a blueprint during the nearly four months of debate that followed—debate that Madison, seated in the front row opposite presiding officer George Washington’s thronelike chair, tirelessly transcribed “with a labor and exactness beyond comprehension,” as Jefferson judged, never missing a day and scarcely even an hour. In his “researches into the History of the most distinguished Confederacies,” Madison explained, he had yearned to know “the principles, the reasons, & the anticipations, which prevailed in the formation of them,” and now he wanted to make sure that posterity would have the “materials for the History of a Constitution on which would be staked the happiness of a people great even in its infancy, and possibly the cause of Liberty throughout the world.”
The drama that followed is part of American legend: everyone knows how the delegates locked themselves into their 40-foot-square room with its 20-foot ceiling and swore themselves to secrecy, so that they could debate freely and air even their most unformed ideas without public ridicule; how they kept the windows locked all through the sweltering Philadelphia summer, so that eavesdroppers couldn’t overhear their deliberations; how, in Benjamin Franklin’s calming phrase, they came “to consult, not to contend, with each other” in a spirit, said Madison, of “mutual deference and concession,” compromising even up to Roger Sherman’s Great Compromise of July 11; how the aged Franklin, who wafted in every day in his Paris-made sedan chair, unique in Philadelphia, pronounced at the end that he had wondered if the sunburst painted on the back of Washington’s chair represented dawn or dusk: “But now I have the happiness to know it is a rising and not a setting sun.” Summed up Madison, “There never was an assembly of men, charged with a great & arduous trust, who were more pure in their motives, or more exclusively or anxiously devoted to the object committed to them, than were the members of the Federal Convention of 1787.” And given “the natural diversity of human opinions on all new and complicated subjects,” he wrote, “it is impossible to consider the degree of concord which ultimately prevailed as less than a miracle.”
After persuading the Annapolis Convention to call for the Constitutional Convention (with Hamilton) and conjuring up the Virginia Plan that became the assembly’s road map, Madison further earned his title “Father of the Constitution” by taking a leading role in the debates, writing 29 of the 85 Federalist papers urging the Constitution’s ratification (and those 29 the most profound in the collection and classics of political thought) and pushing a balky and fractious Virginia Ratifying Convention, with Patrick Henry and George Mason forcefully leading the opposition, to approve the new government by a cliffhanging 89 to 79 vote in June 1788.
And out of all these writings and speeches, what theory of government emerges—and how much of that political theory grew out of Madison’s experience of the Convention itself?
The Virginia Plan, which outlined a federal government with an executive, a judiciary, and a bicameral legislature and sketched procedures for ratifying and amending the Constitution as well as admitting new states to the Union, proposed that the legislature assume all of the old Congress’s current powers, plus the authority “to legislate in all cases to which the separate States are incompetent, . . . to negative all laws passed by the several States, contravening . . . the articles of Union, and to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof.” Strong stuff, this using force against citizens. It was one of Madison’s key ideas, and it rested, as all political theories must, on a psychological theory—a view of human nature—that he luminously set forth in Federalist 51.
“What is government itself but the greatest of all reflections on human nature?” he asked. “If men were angels, no government would be necessary.” But they are not. In spite of that Lockean social contract they have made, men, under the power of their passions and their interests, sometimes break their pledge not to invade one another’s rights and property (and note that from the American Revolution’s first slogan, “Liberty, property and no stamps!” to the Continental Congress’s 1774 declaration of the colonists’ rights to “Life, liberty and property,” the Founders took the Lockean view that the protection of property is a key governmental charge). “What is the meaning of government?” Madison asked. “An institution to make people do their duty. A government leaving it to a man to do his duty, or not, as he pleases, would be a new species of government, or rather no government at all.”
Yet once a free people gives government the power to use force as the Framers were doing through the Constitution, a further problem arises. Men must administer that government, men with the same human nature as everyone else, often with its worst defects in abundance. What motives, after all, drive men to seek elective office? “1. ambition 2. personal interest. 3. public good. Unhappily the two first are proved by experience to be most prevalent.” Such men often have “interested views, contrary to the interest, and views, of their Constituents,” whom they easily hoodwink by masking their “base and selfish measures . . . by pretexts of public good and apparent expediency.” Since “power is of an encroaching nature,” Madison warned, “all men having power ought to be distrusted to a certain degree.” You can argue that “honesty is the best policy” or that considerations of reputation and religion ought to make officials behave virtuously, but experience shows that they don’t—and they especially don’t in large groups like legislatures, where “passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”
“In framing a government of men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.” And here famed political theorist Baron de Montesquieu’s mechanism of checks and balances does its work, with power divided into many hands, and each branch of the federal government limiting and policing the power of all the others—very different from the old, unicameral Congress, which wielded executive as well as legislative authority. “Each department should have a will of its own,” Madison wrote, its officers as independent as possible from the other branches for their appointment and their salaries. To Montesquieu’s well-known theory, which Federalist 47 brilliantly parsed, Madison added a psychological wrinkle. Yes, politicians are ambitious, so the new Constitution will take advantage of what eighteenth-century psychology saw as the most fundamental of the passions. “Ambition must be made to counteract ambition,” he wrote. “The interest of the man must be connected to the constitutional rights of the place.” By splitting the legislature into two independent branches elected differently, by ensuring that judges are independent by giving them lifetime tenure, and by arming the executive with a veto, the Constitution’s “constant aim is to divide and arrange the power of the several offices in such a manner that each may be a check on the other; that the private interest of every individual, may be a centinel over the public rights,” for every elected official will be dependent for his continued employment not on other officials but on the citizens who elected him.
Those citizens have interests and passions of their own, however; and despite the supreme value Madison placed on free, popular government, he knew from all his political experience that when a majority succumbs to such impulses, even free governments can wield power tyrannically. “As air is to fire,” freedom nourishes the interests and passions that can overwhelm reason and justice—even intellectual freedom, so precious to Madison. “As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed,” which in turn—because man’s “opinions and his passions will have a reciprocal influence on each other”—will nurture a multiplicity of passions: a “zeal for different opinions concerning religion, concerning government,” for example, or “an attachment to different leaders ambitiously contending for pre-eminence and power.” As for the interests, a “distinction of property results from the very protection which a free Government gives to unequal faculties of acquiring it. There will be rich and poor; creditors and debtors; a landed interest, a monied interest, a mercantile interest.” Such differences, “sown in the nature of man,” inevitably will give rise to factions, which Madison defined as “a number of citizens . . . 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.”
Once a faction amounts to a majority, tyranny threatens, as Madison explained in his greatest Federalist essay, No. 10. “The most common and durable source of factions, has been the various and unequal division of property,” he argued. “Those who hold, and those who are without property, have ever formed distinct interests in society.” How does such factionalism breed oppression? “The apportionment of taxes on the various descriptions of property, is an act which seems to require the most exact impartiality, yet there is perhaps no legislative act in which greater opportunity and temptation are given to a predominant party, to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.” The poorer majority can wield a host of similar “improper or wicked” means to use state power unjustly to expropriate the richer minority of their property—which government exists to protect, not invade—including a rage “for paper money” (which, by debasing the currency, expropriates by inflation), “for an abolition of debts” (as Virginia tried to do by barring British creditors from suing debtors in its courts and as Shays’s Rebellion tried to accomplish by stopping mortgage foreclosures in Massachusetts just before the Constitutional Convention began), and even “for an equal division of property.”
The great challenge of constitution-making for a free people, Madison argued, is to “secure the public good, and private rights against the danger of such a faction” while preserving “the spirit and the form of popular government.” His solution entirely contradicted conventional wisdom, again derived from Montesquieu. The French philosopher had declared that democracies had to be small in area, so that citizens could gather for face-to-face deliberation—a view that caused some thoughtful Founders to oppose the Constitution on the grounds that a strong popular government over America was bound to decline into tyranny because of the country’s broad expanse.
On the contrary, Madison argued: history shows that small “democracies have ever been spectacles of turbulence and contention; . . . incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths.” That’s because the smaller the society, the fewer the interests it contains, and the easier for one of them to form a majority. The smallest democracies are the worst of all: only consider “the notorious factions and oppressions which take place in corporate towns limited as the opportunities are”—a reality that anyone will acknowledge who considers how today’s city councillors are generally more corrupt than congressmen, congressmen more corrupt than senators, and senators (probably) more corrupt than presidents. And, Madison would say, just look at the individual state governments.
The Constitution, by contrast, provides Americans with a form of government that has “no model on the face of the globe”—an extended republic. Its rationale is Madison’s great contribution to political theory and practice. Unlike a pure democracy, a republic delegates power to “a small number of citizens elected by the rest,” and the selection process aims to produce representatives “whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations.” Since it’s easy for a handful of representatives to gather from great distances for lawmaking sessions, such a government can embrace a very large territory, which yields a further advantage. “Extend the sphere,” Madison argued, “and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.” A multiplicity of competing interests—like the multiplicity of sects that kept Virginia from imposing a religious tax early in Madison’s political career—prevents a single interest from predominating. “We behold,” Madison triumphantly concluded, “a republican remedy for the diseases most incident to republican government.”
For all Madison’s worry that it was in man’s nature for passion and interest to overwhelm his reason and virtue—that man was a reasoning rather than a reasonable creature, given more to rationalizing than to rationality—he nevertheless believed that, while “there is a degree of depravity in mankind which requires . . . circumspection and distrust: So there are other qualities in human nature, which justify . . . esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.” If “there is not sufficient virtue among men for self-government,” he wrote in Federalist 55, then only “the chains of despotism can restrain them from destroying and devouring each other.”
That’s why he set such store by the Senate, which he idealistically envisioned as the “great anchor of the Government”—a “temperate and respectable body” of “enlightened citizens” who would “watch & check” the representatives, lest they err “from fickleness or passion” or even “betray their trust.” It would defend “the people against their own temporary errors and delusions” and against “the artful misrepresentations of interested men,” demagogues seducing citizens to “measures which they themselves will afterwards be the most ready to lament and condemn,” he wrote in Federalist 63. “What bitter anguish would not the people of Athens have often escaped, if their government had contained so provident a safeguard against the tyranny of their own passions. Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens, the hemlock on one day, and statues on the next.”
He recommended a Senate “so small, that a sensible degree of the praise or blame of public measures may be the portion of each individual,” and he thought senatorial terms should be long—nine years, he first suggested, before settling on six—so that each member’s “pride and consequence . . . may be sensibly incorporated with the reputation and prosperity of the community,” again mobilizing personal ambition in the public service. Long terms would also give senators “an oppy. of acquiring a competent knowledge of the public interests” and the chance to plan and carry out “a succession of well chosen and well connected measures, which have a gradual and perhaps unobserved operation,” unlike congressmen, whose two-year terms allow them to see only “one or two links in a chain of measures, on which the general welfare may essentially depend.” Without such a “stable institution,” there will be “mutability in the public councils” that will unsettle both commerce and foreign affairs. “What prudent merchant will hazard his fortunes in any new branch of commerce, when he knows not but that his plans may be rendered unlawful before they can be executed?” Madison asked in Federalist 62.
In addition, Madison saw the Senate as the principal guardian of “the rights of property,” which should “be respected as well as personal rights in the choice of Rulers” because it “chiefly bears the burden of government & is so much an object of Legislation.” Since propertyless Americans will in time outnumber the Americans with land, capital, slaves, factories, ships, warehouses, and so on, the propertyless, he feared, “will either combine under the influence of their common situation: in which case, the rights of property and public liberty, will not be secure in their hands,” or else they will become the bought and paid-for “tools of opulence & ambition.” A safeguard, he thought, would be to make the right to vote for congressmen as wide as possible, while narrowing the right to vote for senators to the propertied. “Give all power to property, and the indigent will be oppressed. Give it to the latter and the effect may be transposed. Give a defensive share to each and each will be secure,” he concluded.
Shortly before the Convention opened, Madison wrote Washington outlining his plans for a new government, which included his precious federal veto “in all cases whatsoever on the legislative acts of the States,” to ensure federal supremacy. But in the same letter, it’s clear he had begun formulating a different way of achieving the same goal. He told the general that he had been meditating “some middle ground” between complete “independence of the States” and “a consolidation of the whole into a simple republic,” which would rest on “an equality of suffrage,” so that every citizen’s vote “in the national Councils” would be of equal weight. No longer, as under the Articles of Confederation’s system of voting by states, would a citizen of little Delaware have more weight than a Pennsylvanian. As the Convention debates unfolded, the notion of a “middle ground” grew upon him, and he withdrew the Virginia Plan’s call for a national veto over state laws and federal force to make states comply with national measures, which, he conceded, “would look more like a declaration of war.” He came to see that the supremacy clause, declaring the Constitution and federal laws the supreme law of the land, which every judge in the nation would have to enforce, would serve just as well to establish federal preeminence. The national government, he explained to Jefferson, “instead of operating on the States, should operate without their intervention on the individuals composing them” with “every power requisite for general purposes,” leaving to the states “every power which might be most beneficially administered by them.”
His three key points—the extended republic as a shield against democracy-destroying faction, the Senate as the concentrated distillate of the nation’s wisdom and virtue, and the federal government as supreme—required, in Madison’s view, an equal principle of representation, whether by population or tax contribution. By definition, representatives in an extended republic—senators as well as congressmen—ought “to bear a proportion to the votes which their constituents, if convened, would respectively have.” Both for its legitimacy and its supremacy, the federal government must derive “all its powers directly or indirectly from the great body of the people, . . . not from an inconsiderable proportion, or a favored class of it.” Proportional representation was equally necessary to allow the Senate to draw on the whole pool of the country’s talent for disinterested guardians of the national interest.
Little wonder, then, that Madison vehemently opposed the Constitutional Convention’s Great Compromise, put forth on June 11 by Connecticut delegate Roger Sherman, “an old Puritan, honest as an angel,” in John Adams’s phrase, a cobbler’s son who in Thomas Jefferson’s estimation “never said a foolish thing in his life.” The small states had declared that they wouldn’t accept proportional representation in place of the equal representation they already enjoyed under the Articles of Confederation; they’d sooner erase all state boundaries, said Delaware’s George Read derisively, or redraw them, according to David Brearley of New Jersey, so “that a new partition of the whole be made in thirteen equal parts.” To Sherman’s suggestion that the large states meet them halfway by adopting proportional representation in the House and representation by states in the Senate, Madison objected in speech after speech.
The new government, he pointed out, was not designed to act on the states, as the Confederation Congress did. There was not “a single instance in which the Genl. Govt. was not to operate on the people individually,” in both its lawmaking and tax-collecting capacities. On what principle of legitimacy, then, could representation by state rest? Would not a constitution that contained that principle, even in part, fail to cure the Articles of Confederation’s chief defect: that it created something more like a league or “a treaty of amity of commerce and of alliance” than a nation? Wouldn’t it create once again “a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals”—which every political philosopher has argued is “a solecism in theory,” while “in practice, it is subversive of the order and ends of civil polity,” and bound to fail because of its “want of proper powers,” as all historical experience, which is “the oracle of truth,” tells us in “unequivocal” terms that “ought to be conclusive and sacred”?
Madison lost that argument. The Great Compromise passed on July 16, after a month’s increasingly testy deadlock, while the heat baked the delegates and the flies bit them mercilessly. Madison accepted that at times principle has to yield to politics, that the Convention was “compelled to sacrifice theoretical propriety to the force of extraneous considerations.” Even so, he concluded with gracious patriotism after battling so heatedly, “the real wonder is, that so many difficulties should have been surmounted; and surmounted with a unanimity almost as unprecedented as it must have been unexpected.” The delegates “formed the design of a great confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them.” As to whether Americans should ratify the document, it’s now or never. “The multiplied inducements at this moment to the local sacrifices necessary to keep the States together, can never be expected to coincide again.” Concluded Madison, “The only option . . . lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be, to embrace the lesser evil.”
Still, he had misgivings, the least of which was that the small states could now gang up in the Senate to “extort measures by making them a condition of their assent to other necessary measures” or even that “the minority could negative the will of the majority.” His real anxiety was that the critical division in the nation would now be the gap not between the propertied and the propertyless “but between the N. & Southn. States. The institution of slavery & its consequences formed the line of discrimination,” he said with unintended resonance. And while he claimed to be “struck with surprise” when he heard Patrick Henry “express himself with alarm” in the Virginia Ratifying Convention that the Constitution could lead to “the emancipation of the slaves,” even as he assured the wily antifederalist orator that “there is no power to warrant it, in that paper,” he himself worried about the arithmetic of “5 States on the South, 8 on the Northn. Side of this line,” a disproportion in the Senate likely only to worsen as new states joined the Union.
The Constitution, after all, outlined a government that would safeguard persons and property. And what were slaves? In explaining in Federalist 54 the Convention’s compromise counting slaves as three-fifths of a person in reckoning the Southern states’ population for apportionment of representatives and taxation, slave-owner Madison set forth the Southern view that slaves “partake of both these qualities; being considered by our laws, in some respects as persons, and in other respects as property.” In being deprived of his liberty and forced to work for a master who can sell and beat him, “the slave may appear to be degraded from the human rank, and classed with those irrational animals, which fall under the legal denomination of property.” But insofar as the law protects him from the violence of all others and punishes him for violence he commits, he is “a member of the society” and “a moral person.” Reasonable enough, then, writes Madison (in words I find my hand shaking as I transcribe them), to adopt “the compromising expedient of the constitution . . . , which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the slave as divested of two fifths of the man.”
Having gone into the Convention seeking a strong central government supreme over fractious states—and assuring the delegates that there was “less danger of encroachment from the Genl. Govt. than from the State Govts.”—Madison, as a slave-owner and representative of slave-owners with particularly sordid “interests” as well as a lawmaker of wisdom and virtue, began to have second thoughts about federal power. With non-slave-owning northern states predominant in the Senate, he fretted, a government designed to protect property might someday threaten the South’s peculiar and crucially valuable property in slaves—property on which his own wealth rested. During the Convention, Madison had come to see that giving the central government “jurisdiction . . . limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any,” would have the same effect as giving it the power “to legislate in all cases to which the separate States are incompetent.” Now he saw that such a plan would cut the other way, too, not only giving the federal government its needed energy but also protecting the states from illegitimate encroachments, of which emancipation of the slaves would be, in his view, so illegitimate as to be (almost) unthinkable. As he began his slow shift from being a federalist in his era’s meaning of the term—a proponent of a strong federal government—to the states’-rights position that our era understands the word to mean, he embraced the limited- and enumerated-powers idea all the more firmly.
The federal government’s powers, he explained in Federalist 45, “are few and defined,” largely confined to “war, peace, negociation, and foreign commerce,” while state powers will concern most issues that have to do with “the lives, liberties and properties of the people; and the internal order, improvement and prosperity of the state.” In the same speech at the Virginia Ratifying Convention in which he assured Patrick Henry that the federal government had no power to emancipate the slaves, he also assured the state’s foremost law professor, George Wythe, that “the powers granted by the proposed constitution, are the gift of the people,” and “every power not granted thereby, remains with the people, and at their will.” The states and the federal government would form yet another system of checks and balances, another safeguard of rights and property. As Delaware’s John Dickinson explained it to the Constitutional Convention: “Let our government be like that of the solar system. Let the general government be like the sun and the states the planets, repelled yet attracted, and the whole moving regularly and harmoniously in their several orbits.”
Like so many delegates, Madison loved this image from the Newtonian “planetary system” and echoed it, describing the federal government as “the great pervading principle that must controul the centrifugal tendency of the States; which without it, will continually fly out of their proper orbits and destroy the order & harmony of the political System.” That image had sunk deep into the eighteenth-century imagination, which often thought in terms of opposed forces, centrifugal against centripetal, creating a dynamic harmony, a music of the spheres, which, as Madison’s favorite author, Joseph Addison of Spectator fame, put it in 1712, has “no real voice nor sound,” as medieval men believed, but vibrates only “[i]n reason’s ear.” As early as the 1730s, the great poet Alexander Pope, whom every educated eighteenth-century English-speaker read, had anticipated Madison in describing how “jarring int’rests of themselves create / Th’acording music of a well-mix’d State.”
As Madison explained, “This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.” Modern readers will think of Adam Smith, whose analysis of how each individual’s pursuit of his private, selfish interest adds up to the public interest Madison had read by the time of the Constitutional Convention; other Founders might have thought of Bernard Mandeville’s notorious 1714 Fable of the Bees, which similarly showed how “Private Vices” can add up to “Publick Benefits,” as people send money coursing through the economy to gratify such passions as vanity or pride, gluttony or lust, just as Madison, wearing his psychologist’s hat, set ambition to counteract ambition in Federalist 51, making the baser, sometimes immoral, human energies of passions and interests, rather than wisdom, virtue, or reason, power the machinery of government and society.
The only problem in such a dynamic equilibrium, a balance of opposed forces, is that, under the extreme tension that binds it, things can slip out of whack. Pope described the consequences thus:
And if each system in gradation roll,
Alike essential to th’ amazing whole;
The least confusion but in one, not all
That system only, but the whole must fall.
Let Earth unbalanc’d from her orbit fly,
Planets and Suns run lawless thro’ the sky,
Let ruling Angels from their spheres be hurl’d,
Being on being wreck’d, and world on world.
Madison certainly shared the anxiety that things could “fly out of their proper orbits and destroy the order & harmony of the political System.” And as he saw it, it happened soon enough.
This is the first of two essays exploring Madison’s thought and importance in American history; in the next issue, Magnet will look at Madison as prime mover of the Bill of Rights, secretary of state, and wartime president.
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