Friday, March 30, 2018


Sandy Levinson

I have just finished reading Harvard Prof. Noah Feldman's remarkable book on James Madison.  It deserves a wide readership.  It is extremely well-written and full of insights.  As the title suggests, it focuses on three facets of Madison's career, his role as one of at the chief designers of the U.S. Constitution (the "genius"); an important originator of the American party system (the "partisan"); and then America's first war-time president.  The first part is likely to be least surprising to most con law buffs, though it certainly tells the story very well.  Madison may have been the "father of the Constitution," but he was a distinctly disappointed parent, given that at that stage of his life he, like Hamilton, really disdained the states and wished an even more "consolidated" government than the one achieved in Philadelphia.  And, importantly (and correctly), he despised the allocation of voting power in the United States Senate.  Where the book really shines, at least for me, was in the second two-thirds of the book.

Feldman convincingly demonstrates that Madison did not simply disagree with Hamilton (his erstwhile close friend and co-author of The Federalist), but, in an almost Schmittian way, identified him as an "enemy" of the Constitution who had to be organized against and defeated.  This is distinctly different from Madison's views toward many others, including Edmund Randolph and James Monroe, with whom he disagreed but always in a spirit of fraternity and the belief that friends could differ but still remain cordial to one another because, after all, they were properly motivated by devotion to the common good (as envisioned by Madison).  As Feldman argues, the kinds of "polarization" we see today is baked into Madison's theory of the necessity for political parties, for if one defends the necessity to organize a political party as based on the fact that one's opponents are a "faction," defined by commitment to private interests rather than the common good, then the only proper response is political warfare.  So we immediately get, among other things, the Federalist Midnight Judges and then the Jeffersonian purge of most of those judges.

Steven Levitsky and Daniel Ziblatt in their important (albeit flawed) book on How Democracies Die emphasize the necessity for toleration of one's opponents and a willingness to engage in "forbearance" with regard to the complex plurality of contending groups in American polities.  It is not that Madison was always rigid; he certainly engaged in more than enough forbearance of slavery (being a slaveowner himself), and he ultimately was willing to accept the dreadful compromise regarding the Senate rather than risk failure of the Philadelphia project.  But he defined Hamilton as different.  Feldman makes the brilliant point that the difference between the two is that Madison put his primary reliance on formal structures of constitutions (though not on "parchment barriers" devoted to rights), whereas Hamilton believed that what was most crucial was developing an alliance between the propertied and the state, so that the former would have incentives to support the latter.  Thus the importance, say, of the Bank of the U.S. and assumption of state debts.

Feldman also does an exceptional job of delineating Madison's "republican" approach to foreign policy, which gave priority to economic challenges such as embargoes or 'non-intercourse" acts, as against military warfare.  That strategy obviously failed with regard to the UK, which generated the fiasco of the War of 1812.  Feldman is surprisingly generous in his account of Madison as a wartime president, though he emphasizes also that the cabinet was full of incompetents, and Madison himself obviously had no military experience or particular acumen as commander-in-chief.  The War itself was wholly unnecessary, caused in part by the sheer fact that it was impossible to get real-time information about what was going on in Europe so that the US could make decisions based on genuine facts.

The book is not truly a "biography."  Instead, it is a study of these three aspects of Madison.  But that doesn't make it any less fascinating or, obviously, less worth reading.  It throws immense light on the Founding period, but it is also not difficult to draw some extrapolations with regard to our own era.  (Indeed, from my perspective, Feldman is too admiring of the Constitution, whereas I would place more emphasis on our need to learn from Madison's "audacity" in leading what Michael Karman called a "coup" against what Madison and his colleagues believed was an "imbecilic" government created by the Articles of Confederation.  One might suspect that Madison would be astonished at the "veneration" attached to the Constitution.)  It's a hefty book (628 pp. before the footnotes), but one keeps turning the pages to find out what happens next.      

There is no point in opening this up for comments unless one has actually read the book.

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