Ray Raphael
Here we go again. The publication of Lynne Cheney’s new
blockbuster biography of James Madison revives one of our most cherished
founding myths: Madison was the “father” (assertive textbook version) or “chief
architect” (modification for a more sophisticated audience) of the
Constitution. The New York Times
headline writers selected “American Architect” to announce Gordon Wood’s review
of Cheney’s book. This honorific appellation calls forth Madison’s claim to
fame and his tug on our hearts.
Much is at stake here. If Madison were truly the chief
architect of the Constitution, what he said and wrote (in 1787) bears heavily
on the meaning of that document. Through the imprecise doctrines of original intent
and original meaning, so pervasive in our political culture, Madison’s views
become scripture. Then, if we casually omit the key words “in 1787,” what he
did, said, or wrote at any time in
his career wind up guiding Constitutional interpretation. Madison conceived the
Constitution. Madison believed thusly, so that’s what the Constitution says.
Our public policy, to follow the Constitution, must follow James Madison. By
applying this sloppy syllogism, pundits, politicians, and Supreme Court
justices can redirect the course of the nation. It all starts with that initial
premise: James Madison, American Architect.
Was Madison the (chief) architect of the Constitution? An
architect lays out a plan that that will be put into effect. Even
metaphorically, this does not describe James Madison’s relation to the United
States Constitution.
In fact, Madison did not always get his way at the Federal
Convention of 1787. By one tabulation, he offered an opinion on 71 motions but
lost out on 40 of these.[1]
This is not to
denigrate Madison in any way; perhaps we would have been better off if other
framers had followed his advice more often. But if Madison had had his way, the edifice created by the Convention would look
very different than it does.
Balance of powers.
Madison is often given credit for the Constitution’s equilibrium, but
separating powers and then achieving a balance among them was Montesquieu 101,
common wisdom at the Convention. The question was what, exactly, would be the
best balance, and James Madison’s vision was not actualized. He believed that
the president should be advised not by a cabinet of his own choosing but by a
separate and independent executive council. This council, not the Senate,
should check presidential appointments. Members of the Supreme Court would join
the president in a revisionary council empowered to veto acts of Congress, but
Congress could override their veto by a three-quarters vote. Judges belonging
to this council would review laws before, not after, they take effect and would
not have to find constitutional irregularities to negate them. If impeached,
the president would be tried by the Supreme Court, not the Senate. This is not
the same system of checks and balances we encounter in civics texts and see in
the everyday operations of our government.
Bicameral legislature.
This was common practice in British political culture on both sides of the
Atlantic. Madison’s implementation, though, would have differed from what we
see in the Constitution. Senators would serve for nine years, not six, and the
number of senators would be proportional to state populations. After six weeks
of debating this last proposition, when delegates finally decided that
representation in only one house would be proportional, Madison did not go along
with this “Great Compromise,” as we call it today. With fellow Virginians and
others from large states, he caucused to plot a new strategy for pushing
proportional representation, and when that fell through, he grumbled.
The executive.
Shortly before the convention, in a letter to George Washington, Madison jotted
down his ideas for a new government. (Henry Knox and John Jay also sent
Washington their ideas.) The alleged “architect” had much to say about a
national legislature and a national judiciary, but very little to say about a national
executive: “I have scarcely ventured as yet to form my opinion either of the
manner in which it ought to be constituted or of the authorities with which it
ought to be cloathed,” he confessed.[2]
During the Convention, he did not play a leading role in fashioning the
executive branch. He fixed his gaze on an executive council but never came
close to achieving majority support for that position. In his view, the
president should not hold the exclusive authority to negotiate treaties.
Because a president derived “so much power and importance from a state of war,”
Madison contended, the Senate should be able to conclude a treaty of peace
without his assent.[3] Yes,
Madison displayed great insight, but no, he did not prevail. Of course no
framer got what he wanted, and that is precisely the point. It was
give-and-take all the way, constitution-by-committee. That is not how chief
architects generally work.
State and federal
powers. Madison’s greatest achievement, many say, is his finely tuned plan
for shared sovereignty, with states and the federal government each supreme in
their separate spheres. Madison expressed such a view later, but in 1787 he
showed a distinct preference for federal power. The national legislature, he wrote to Washington before the Convention,
should be empowered to negate “in
all cases whatsoever [his emphasis] … the legislative acts of the States,
as heretofore exercised by the Kingly prerogative.” If a state law, in the
opinion of Congress, ran counter to national interests, it must go;
unconstitutionality would not be a requirement for dismissing it. “The right of
coercion should be expressly declared,” he continued. Despite “the difficulty
& awkwardness of operating by force on the collective will of a State,”
armed federal intervention in state affairs must be permitted.[4]
During the Convention, on three different occasions, Madison tried to grant the federal government
this absolute “negative” (what we now call a veto) over all state legislation. “As
the greatest danger is that of disunion of the States, it is necessary to guard
agat. it by sufficient powers to the Common Govt.” – but the one power he
thought necessary to prevent disunion, the federal veto, was repeatedly and
definitively rejected.[5]
Eleven days before the
Convention adjourned, Madison complained to Thomas Jefferson, in Paris at the
time, that because his proposal for a federal negative of state legislation had
been turned down, “the plan should it be adopted will neither effectually
answer its national object nor prevent … local mischiefs.”[6]
This one flaw could prove fatal, he feared. After the Convention, once
all was said and done, he wrote again to
Jefferson:
A check on the States appears to me necessary 1. to prevent encroachments
on the General authority. 2. to prevent instability and injustice in the
legislation of the States. Without such a check in the whole over the parts,
our system involves the evil of imperia in imperio. If a compleat supremacy
some where is not necessary in every Society, a controuling power at least is
so, by which the general authority may be defended against encroachments of the
subordinate authorities.
Without a sweeping national
veto, even in matters of seemingly local concern, states would be able to
“oppress the weaker party within their respective jurisdictions,” he concluded.[7] The
Constitution, too weak, had fallen short. In the words of Jack Rakove, Madison
“viewed all the decisions that had diluted his system not as necessary
compromises but as fundamental errors in judgment.”[8]
Strict construction of the Constitution. Today, we attribute to Madison the notion
that Constitutional powers of the federal government were “few and defined,” as
he stated in Federalist No. 45 to
assuage fears of federal overreach during the ratification debates. But while
Madison talked the talk, he did not always walk the walk. After the
Constitution had been ratified, as a representative from Virginia to the First
Federal Congress, he behaved as many loose constructionists do, approving
matters he liked even if these are not covered within specific provisions of
the Constitution:
*On April 20, 1789, two men asked Congress to support a private
scientific expedition to Baffin’s Bay that would investigate the magnetic north
pole. Despite the Constitution’s silence on such matters, Madison was willing
to endorse the measure. If “there
is a probability of improving the science of navigation, I see no reason
against it.” At the Federal Convention, on August 18, Madison had proposed that
Congress be empowered “to encourage by
premiums & provisions, the advancement of useful knowledge and
discoveries,” but his proposition had not been adopted. That defeat did not
matter to Madison now. Congress still had the authority to “provide for the
common Defence and general Welfare of the United States,” and those broad
powers would have to suffice. It was a very loose construction.[9]
*The following day, Madison spoke
in support of a six-cents-per-ton duty on commercial vessels, which he argued
would be “necessary for the support of light-houses, hospitals for disabled
seamen, and other establishments incident to commerce.” At the Federal
Convention, on September 15, he had stated that an “object for tonnage Duties”
was to provide for “support of Seamen etc.” and that this federal disability
program would be covered under Congress’s power “to regulate commerce.” It was
an expansive interpretation of the often contested “commerce clause” (Article
I, Section 8, Clause 3), a view we usually associate with Hamilton, the broad
constructionist, not Madison, the soon-to-be strict constructionist.[10]
*In 1790, when Congress
established the first federal census to apportion representation among the
states, Madison suggested that the census take advantage of “the present
opportunity” to gather valuable information that went well beyond “the bare
enumeration of the inhabitants,” its express purpose as stated in the
Constitution. If the census provided a “description of the several classes
[occupations] into which the community is divided,” he said, that information
would prove “extremely useful, when we come to pass laws, affecting any
particular description of people.”[11]
It was a good measure, he felt, and that was reason enough to pass it.
Stretching the census past its specified constitutional function did not
trouble him nearly so much as it seems to trouble Michele Bachmann and other
strict constructionists today.
Madison saw nothing inconsistent in his actions. At the
Federal Convention on August 20, he had not only endorsed what we know today as
the “elastic” clause, but he had also tried to clarify and strengthen it by
adding the words in italics: “And to make
all laws and establish all offices
necessary and proper for carrying into execution the foregoing powers, and all
other powers vested, by this Constitution, in the Government of the U. S. or
any department or officer thereof.”[12]
While Madison’s addition never made the final cut, the rest of the clause
engendered no debate and was passed “nem. con” – without dissent. The framers,
including Madison, understood there needed to be limits, but these must be
reasonably interpreted. They refused to declare unfalteringly for “strict” or
for “broad” construction because either choice, unmodified, would have been
untenable. Without enumerating powers, the Constitution would permit the
indefinite expansion of federal authority, yet without the flexibility inherent
in implied powers, the government they were creating would quickly become
inoperative.
In the First Federal Congress, Madison toed this line with precision. When he proposed
constitutional amendments that would later evolve into the Bill of Rights, he
included a clear statement of the principle of enumerated powers: “The powers
not delegated by this constitution, nor prohibited by it to the States, are
reserved to the States respectively.” That statement, though, was not enough
for South Carolina representative Thomas Tudor Tucker, who moved to insert the
key word “expressly” before “delegated.” This would keep any so-called implied
powers from ever sneaking in.[13]
Madison opposed the explicit limitation. “It was impossible to confine a Government to the
exercise of express powers,” he argued. “There must necessarily be admitted
powers by implication, unless the Constitution descended to recount every
minutia.” In fact, Madison had purposely removed
the word “expressly” from the amendment that Massachusetts had first proposed,
“All Powers not expressly delegated by the aforesaid Constitution are reserved
to the several States to be by them exercised.”[14]
In a roll call vote, Congress followed Madison’s lead and rejected Tucker’s
motion, seventeen to thirty-two. Federal powers did not need to be “expressly”
stipulated, Madison suggested and the First Federal Congress expressly affirmed.[15]
Two years later,
during the National Bank controversy, Madison adjusted his stance. He opposed
Hamilton’s bank on its merits, but he also argued against it on constitutional
principles. When Washington asked him to draft a veto message in case the
president decided to take that route, here is what Madison wrote: “I
object to the Bill because it is an essential principle of the Government that
powers not delegated by the Constitution cannot be rightfully exercised; because
the power proposed by the bill to be received is not expressly delegated; and
because I cannot satisfy myself that it results from any express power by fair
and safe rules of implication.” For Madison, as for so many others since,
“delegated” was upgraded to “expressly delegated.” True, he still entertained
the possibility of implication, but that standard was difficult to define and
even more difficult to meet.[16]
By 1798, piqued by the Alien and Sedition Acts, Madison had
swayed yet farther from his preference for expansive federal powers. The
states, he argued in the Virginia Resolutions, had the right to “interpose”
between the federal government and the people. This is how Madison comes down
to us in the standard telling of history: a strict constructionist averse to
federal authority. That he did not embrace such “Madisonian” views in 1787 is
acknowledged sometimes within academic circles but barely at all in textbooks,
popular histories, or most significantly, political dialogue. It should not surprise
us when public figures modify prior positions to address new contingencies, and
we err if we ignore basic chronology and fail to take such adjustments into
account.[17]
Why does any of this matter?
Viewing Madison as the architect of the Constitution has
political overtones. Madison’s ideological evolution, from his expansive
nationalism in 1787 to his advocacy of strict construction and states’ rights
in the 1790s, can be and is manipulated into a distorted view of the
Constitution’s meaning. If the alleged architect of the Constitution said the
powers of the
federal government are limited to those that are “expressly delegated” in the
Constitution and states have the right to “interpose” between the people and
the federal government, enemies of federal power backdate these words,
implicitly but erroneously, to 1787. Once there, they become proof positive
that the Constitution favored the states. Madison-the-Architect said so.
This unwarranted notion has penetrated to the core of our public
discourse. It informs constitutional jurisprudence at the highest levels and
affects national policy. In their dissent to the 2012 Affordable Care Act
decision, Justices Scalia, Kennedy, Thomas, and Alito complained that the
“power to tax and spend for the general welfare” has unfortunately come to
extend “beyond (what Madison thought it meant) taxing and spending for
those aspects of the general welfare that were within the Federal Government’s
enumerated powers.”[18] The words
within parentheses speak volumes. “What Madison thought it meant,” in this
context, stands for “what the founders thought it meant” and finally “what the
Constitution really means.” On this view, Madison supposedly favored a strictly
limited government, so that is what the document must prescribe. However
misguided, Madison-the-Architect mythology is embedded within the default logic
of constitutional reasoning, and it tilts that reasoning subtly yet
significantly toward the right.
***
Ray Raphael’s latest book is Constitutional Myths: What We Get Wrong and How to Get It Right
(The New Press, 2013).
X-posted at History News Network.
[1] Melanie
Randolph Miller, An Incautious Man: The Life of Gouverneur Morris
(Wilmington, DE: ISI Books, 2008), 63.
[2] Madison
to Washington, April 16, 1787, Robert A. Rutland et al., eds., The Papers of James Madison (Chicago and
Charlottesville, 1962–), Congressional Series, 9:384-385.
[3] Madison,
Notes of Debates in the Federal
Convention of 1787, September 7.
[4] Madison
to Washington, April 16, 1787, Madison, Papers
9:383-85.
[5] Madison,
Notes of Debates, August 23.
[6] Madison
to Jefferson, September 6, 1787, Madison, Papers,
10:163-64.
[7] Madison
to Jefferson, October 24, 1787, Madison, Papers,
10:207-14.
[8] Jack N.
Rakove, James Madison and the Creation of
the American Republic (Glenview, Illinois: Scott Foresman/Little, Brown,
1990), 68.
[9] Annals of Congress 1:178-79; David P.
Currie, The Constitution in Congress: The
Federalist Period, 1789-1801 (Chicago: University of Chicago Press, 1997),
71.
[10] Annals of Congress 1:183; Currie, The Constitution in Congress, 70.
[11] Annals of Congress 1:1115, 1145-46
(January 25 and February 2, 1790); Currie, The
Constitution in Congress, 19-20.
[12]
Madison, Notes of Debates, August 20.
[13] Annals of Congress, 1:453, 790 (June 8
and August 18, 1789).
[14] Annals of Congress, 1:790 (August 18,
1789).
[15] Annals of Congress, 1:797 (August 21,
1789).
[16] Madison
to Washington, February 21, 1791, W.W. Abbot and Dorothy Twohig, eds., The Papers of George Washington
(Charlottesville, 1983–), Presidential
Series, 7:395.
[17]
Virginia Resolutions, Avalon Project, Yale Law School, http://avalon.law.yale.edu/18th_century/virres.asp
[18] Supreme
Court of the United States, National
Federation of Independent Businesses v. Sebelius, Secretary of Health and Human
Services (2012), Scalia, Kennedy, Thomas, and Alito, JJ., dissenting, 3. URL:
http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf