University of Virginia
The Philadelphia Society
November 23, 1996
(Permission to quote this speech must be granted by the
"Madison and the Compound Republic"
James Madison is widely known as the "Father of the Constitution," author of the Constitution and the Bill of Rights. In his old age, the prevailing account goes, he stood up to a heretical off-shoot of Southern constitutionalism, and it was fortunate that he, the "last of the Fathers," was still around to gainsay those who would have distorted and perverted the national institutional inheritance to their own destructive, sectional ends. Although his tenure as president of the United States was at best undistinguished, his reputation benefits in the same way as does that of Thomas Jefferson from the appellation "President," and most historians view Madison as his fellow Virginian and colleague's intellectual peer and theoretical superior.
This is only part of the Madison story. He was a major figure in the establishment of the constitutional regime of 1787, but Madison was also the single man most responsible for insuring that Virginia would one day leave that regime. A devoted American nationalist, Madison often knowingly worked backstage to make the United States more national - less federal - than his fellow Virginians were willing to endure. While he was one of the leading formulators of the doctrine of state sovereignty that would eventually provide Virginia a constitutional argument for the legitimacy of secession, he also threw his prestige behind the cause of impressing Americans outside Virginia with the illegitimacy of what Andrew Jackson called the "Virginia doctrine."
In his lifetime, James Madison was widely perceived as Jefferson's political and intellectual lieutenant. Despite his achievements in Congress and his eminent role in the movement culminating in the ratification of the constitution of 1787, Madison was remembered as a second-tier figure, at best, in the nineteenth century. In the wake of the War of 1861-5, attitudes toward Madison hardened. He and Jefferson were blamed by the Yankee-dominated historical profession for their part in laying the ideological groundwork of secession. Henry Adams published his nine-volume History of the United States during the Administrations of Jefferson and Madison in 1889-1891, and he argued that the Jeffersonian platform of hyper-limited federal government and international pacifism was simply impractical, and that the main fruit of the Virginia Dynasty had been the laying to rest of the Republican program of 1800.
After running against the author's great-grandfather on a platform of retrenchment and constitutional rectitude, Jefferson had decided to retain some of the basic structures of Hamiltonian government, such as the national bank; the foreign policy debacles of his mentor's and his own administrations convinced Madison he must resuscitate the bank and - in even more glaring contradiction of the Old Republican creed - declare war on England. For Henry Adams, this was all perfectly predictable, and his glee in recounting this tale is seldom concealed. Adams' account of the Jefferson and Madison presidencies remains the starting point for any serious study of the period more than a century on.
Clyde Wilson has observed that the historical profession tends to validate the latest political regime, and Adams' work, coming during the long ascendancy of the veterans of Lincoln's armies in American politics, certainly fits the bill. Jefferson's and Madison's "image[s] in the American mind," to borrow a phrase, were in a trough. Reassessment of Madison commenced with the advent of the New Deal.
Journalist Irving Brant's multi-volume biography propelled Madison into the front rank of historians' heroes. If George Washington speculated in Western lands, if Thomas Jefferson said things about slavery one would not now expect to hear in polite company and repeatedly expressed foreboding over the growing concentration of power in Washington (this in the 1810s and 1820s!), if Patrick Henry wore his Christianity a little too lightly, James Madison was everything a modern liberal could want in a Founder, in the "Father of the Constitution." First, his most famous essay in political theory, the tenth Federalist essay, could easily be harnessed to the naked interest-group politics of the New Deal and succeeding liberal coalitions. What did it matter if the events of the Ante Bellum era and the war of 1861-5 had completely disproven Publius' sanguine statements about the harmony that must follow on the creation of a continental confederation?
Secondly, Madison's record was full of changes of position. Not since the oracle at Delphi ceased to dispense its drug-besotted riddles had any source of wisdom been so opaque, and - contrary to expectations - the new Madisonians found this to be a good thing. In Madison's own day, accusations of apostasy had irked their recipient, but his modern heirs could put their man's tergiversations to good use. Madison could be enlisted in support of virtually any position! Issues regarding which Madison engaged in mid-course corrections include the utility of a bill of rights, the nature - federal or national - of the regime of 1787, the constitutionality of a national bank, the meaning of republicanism, the place of the courts in the federal scheme, and the desirability and constitutionality of a Bonus Bill in the 1810s, among many others. His inconsistency was the subject of partisan humor in his own day.
In his retirement, Old Man Madison was called upon by both sides in the Nullification Controversy to throw his support behind their arguments, and he spent his last years "explaining" the meaning of the Virginia and Kentucky Resolutions of 1798. Frequently, his position on the question where ultimate authority lay within the federal system would change within the same letter, the same paragraph, even the same sentence. The capstone of this strain of correspondence is an 1836 document entitled "Notes on Nullification," in which Madison considered every possible argument against South Carolina's doctrine - and accepted them all! Reading such gems of insight as that sovereignty is divided in the federal system, therefore the states must obey the federal government, one speculates that age may have affected the old man's mental acuity.... Yet, historians have accepted his arguments. The Madison of the 1830s has proven more useful than that of 1798.
In 1948, the most influential article on the Virginia and Kentucky Resolutions appeared in The William & Mary Quarterly, the foremost journal in the field. Entitled "The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties," the article was a partisan attempt to say that the Republicans of '98 had been advocates of state rights only when certain types of issues were involved. A cursory reading of either Madison's or, especially, Jefferson's formulation of the "Principles of '98" shows that the issues to which they extended were limited in no way , but included the entire residuum of sovereignty. How can eminent historians have been so wrong? The answer is two-pronged. First, the article was published in 1948. Immediately preceding the article, the editors included an extraordinary editorial note. They were proud to be able to run this article because its readers would "discover that Jefferson and Madison in advancing their theory of States' Rights were not defending the abstract authority of the states as an end in itself, but as a practical means to protect the civil rights of living persons - 'the liberty, safety, and happiness' of individual men and women to use Jefferson's words - just as President Truman now proposes to use Federal authority to that end." Secondly, one of Madison's most notable "tactical adjustments" had been his campaign, as a retired former president, to becloud the events of 1798 by denying they had meant what they plainly had meant. If partisans of Virginia's Senator Harry Byrd could draw on the Jeffersonian pronouncements of 1798, Truman supporters could recall Madison's of the 1830s.
My aim thus far has been to explain the reasons for the esteem in which the name "Madison" - virtually uniquely among the names of the Southern Patriots - is held by historians. Having explained the Madison-friendly historiography in as great detail as time allows, I turn to the main issue: Madison's relationship to "the compound republic."
Schoolboys are taught that the United States Constitution sprang full-grown from Madison's brain, to be perfected only by the later addition of the federal Bill of Rights (whose origin, the tale goes, was similar). University of Virginia historian William Lee Miller refers to "Jimmy Madison's Research Project" in describing the months Madison spent preparing for the Philadelphia Convention. This is a heroic tale, we are told, and the hero's is the tale: Madison had studied the history of confederations ancient and modern, and the result was the United States Constitution. Accepting this account requires accepting at least two assumptions: (1) that Madison's constitutional plan grew out of his "research project;" and (2) that the United States Constitution is congruent to Madison's proposal. As it happens, both are erroneous.
When Miller quotes one of the authors of that 1948 article calling Madison "one of the ... best-read" men in America, one sees another reason for the appeal of the Madison myth, of the myth of the constitutional research project, to historians: if it were true, the U.S. Constitution would be a glorious monograph. There is no evidence, though, that "Jimmy Madison's Research Project" affected even his own views on constitutionalism; the constitutional blueprint proposed by the Virginians at the Philadelphia Convention, believed to have been largely the work of Delegate Madison, was nearly identical to a draft Kentucky constitution he had written two years earlier. His research, like that of many historians, merely buttressed his preconceived predilections.
A more important ground for objecting to the myth of Madison as preeminent Framer (leaving aside the fact that George Washington's presence was absolutely essential to the Convention's success) is that the constitution proposed on September 17, 1787 bears little resemblance to Virginia's (Madison's) original proposal. Madison was on the losing side in the majority of cases in Philadelphia, and he objected to several arrangements incorporated into the new document. Two stood out above all others in his mind, though. First, Madison had proposed that the new general legislature be entirely national, yet, at the insistence of the small states, it had been made half-federal. The states were to have equal representation in the Senate, whose members were to be chosen by state legislatures. Madison, whose "research project" had left him convinced that the states should be maintained only insofar as they could be "subordinately useful," confided to his friend Jefferson in a letter of October 24, 1787 that the federal structure of the Senate doomed the new blueprint to failure within a few years. M.E. Bradford explored the implications of Madison's stubborn opposition to the so-called Great Compromise in a penetrating article, and it seems to me he was exactly right: had it not been for cooler heads, Madison might easily have killed the project of writing a new constitution in Philadelphia that summer by insisting on a purely national legislature. It was precisely his bookishness, his imprudence, his devotion to the abstract idea of a "national" legislature that stood in Madison's way.
Secondly, and in Madison's view more importantly, the Philadelphia Convention killed Madison's proposal for a federal veto over all state laws. Madison had great faith in the idea of an expanded republic; partial legislation might be adopted by a state legislature, he believed, but it would be far less likely to survive the consideration of the "elevated" general legislature. The failure of his proposal for a federal veto, he told an unsympathetic Jefferson, was the second reason he expected a swift collapse of the new federal system.
Madison's serenity about the constitution's prospects in Federalist 10, written shortly after his doleful letter to Jefferson, must therefore be seen as instrumental and insincere. Where he had privately decried the recapitulation of the old Imperial problem of imperium in imperio, of one sovereignty within another, he publicly proclaimed that the new constitution would reconcile the states' different interests. The failure of this prediction to come true, of course, was evident to one and all by the time of Madison's death.
That failure would not have been so significant had Madison not succeeded in Philadelphia on another score: his opposition to fellow Virginia Delegate George Mason's proposal that a two-thirds majority be requisite to the adoption of commercial regulations. In our own day, with the NAFTA and GATT controversies, we have been reminded of the potentially contentious nature of trade arguments. In Madison's day, such disputes were even more contentious, even more acrimonious. Especially after Henry Clay's "American System" speech of 1824, in which the Kentuckian frankly admitted that his program was an intersectional transfer of wealth, tariff arguments were potentially violent. When Mason predicted in Philadelphia that the requirement of a bare majority for the enactment of tariff legislation would lead to Northern exploitation of the South of the kind Clay later made famous, Madison immediately issued a long declamation on the impossibility of such a turn of events.
The issue of a super-majority requirement did not die with the close of the Philadelphia Convention, for Mason was destined to be among the delegates to the Virginia Ratification Convention in June, 1788, the decisive contest over the ratification of the new constitution, where he would insist again that the power to regulate trade would be turned to sectional ends by the Northern majority. Madison's role there, like much else in has career, has been misunderstood.
Mason had left Philadelphia in a very sour humor, and Madison predicted in his correspondence that the author of the Virginia Constitution of 1776 and of the Virginia Declaration of Rights of 1776 would spare no effort in his campaign to block ratification. He was right. Federalists around the country spread rumors that Mason was mentally unbalanced, explaining that his decision not to sign had been a result of irrationality. In addition, Madison was at the center of a circle of men who discussed the idea that Virginia's other leading anti-Federalist, Patrick Henry, wanted to divide the union into three regional confederacies. Mason too, they held, was loathe to see his prominent place in an independent Virginia dwindle into insignificance with the delegation of many of the General Assembly's powers to a new general government.
The most surprising thing about these rumors is not that they should have been spread by Madison and his co-conspirators, but that tales of selfish localists anxious to preserve their own power and plotting to break up the union have been accepted by many in the historical profession. This phenomenon is difficult to explain without reference to the "Whiggish" view of history, the tendency to view all past events - such as the ratification of the constitution - as part of the ineluctable progress of freedom, equality, peace, brotherhood, etc. Madison, for one, knew perfectly well that George Mason had solid reasons for opposing the federal constitution, including the absence of a Bill of Rights, the continuation of the international slave trade, and the trade regulation issue. He also knew, as do historians, that Mason had made a practice of refusing proffers of public office (and historians know that he, like Henry (and unlike Madison), would refuse to serve as a senator in the first federal Congress). Similarly, the evidence for Patrick Henry's desire to break up the union of American states consists of the fact that the men who questioned Mason's sanity questioned Henry's unionism.
One of the reasons Madison had conspired to convene the Philadelphia Convention in the first place was that Patrick Henry and the Virginia General Assembly had often thwarted Madison's and his friend Jefferson's various schemes for social, legal, and political reform in Virginia. Henry's dominance had led Madison and his fellows to misrepresent their aim as mere amendment of the Articles of Confederation, and their perfidy helps explain the tension between Federalists and their opponents in the Richmond Convention. Part of the argument in Federalist 10, you will recall, was that the "extension of the sphere" would entail the creation of far larger legislative districts, and only men of the "better sort" would be elected in such districts; the sub-text was that people more like Madison and less like the Henryites would serve in the new Congress. The contracts clause, the legal tender clause, and other provisions of the federal constitution were specifically aimed at policy preferences held by Henry and Henry's followers.
Once his attitudes concerning Henry and the Southside Virginia interest in the House of Delegates are called to mind, it becomes clearer why Madison had been so distraught over the decision to give the state legislatures the power to choose senators. Henry could expect to choose Virginia's senators, even to be one of them himself. Recognition of Henry's prospects for high office casts Madison's and others' propaganda about Henry's worries over his own authority into a different light: it can be seen as of a piece with the other baseless charges against him.
Henry, for his part, recognized where the divisions lay. When Governor Edmund Randolph referred to the common folk of Virginia as "the herd," Henry ostentatiously announced that he was in Richmond to speak for them. Madison and other Federalists called this "demagoguery," despite the fact that Henry manifestly was the most popular man in Virginia (after Washington) and the fact that Madison had written that the new federal legislature would be "more elevated;" once again, historians have generally accepted the Federalists' characterization.
What about the other prong of Madison's and the Federalist clique's campaign to vilify anti-Federalism: the claim that Henry wanted to break up the union? Patrick Henry, the Virginian who had led the charge for war with Mother England, who had informed his fellow delegates to the Continental Congress that he was no longer a Virginian, but an American, who could expect to receive no less than a seat in the United States Senate from the General Assembly.... Many historians have accepted that argument, too. The proof of that pudding lay in the eating, for it was Henry who broke up the post-Richmond Convention caucus of disaffected anti-Federalists. He refused to lead them into opposition, instead calling on them to give the federal government a fair chance. Henry's behavior on that summer evening in 1788 stands in stark contrast to Madison's behavior ten years later.
In the Richmond Convention, Madison repeatedly vowed that the new government would have only the authority that was explicitly delegated by the states. (The same political imperative that drove him to this pledge led Madison to refuse to publish his notes of the Philadelphia Convention, which were full of evidence verifying rumors of his nationalism, in his lifetime.) Madison responded to anti-Federalist arguments about the dangers of federal trial courts by promising that the new federal government would first try to make do without any inferior courts. He agreed to recommend a series of substantive amendments to the federal constitution, including Mason's beloved super-majority requirement for commercial regulations and a requirement that direct taxation be undertaken only after requisitions on the state governments had been ignored. The constitution was ratified, but a clear majority of the delegates favored the proposed amendments. Making the rounds among the wavering anti-Federalists with promises about subsequent amendments, Madison wrote a friend with an account of this series of events, assuring him that such promises were not binding, anyway.
Virginia's first United States senators wrote several letters to Henry in which they complained that Madison's twelve proposed amendments to the constitution, eleven of which ultimately became the first ten and the twenty-seventh amendments, contained nothing of substance. The federal government, from their point of view, would remain essentially unaccountable and far too powerful even if they were adopted. Among their other complaints was that Representative Madison had taken the lead in the adoption of the Judiciary Act of 1789, the provisions of which included establishment of inferior federal courts of precisely the type he had promised the federal government would first try to do without.
Within a year of its establishment, the federal government undertook to enforce a tariff policy whose effects, as Mason had predicted (and as Madison had denied), clearly would be sectional. There was talk among Virginia Federalists of Mason's and Henry's having been "prophets," and the idea was popular that, as in his insistence in Philadelphia on abstract principle over moderation and prudence in regard to apportionment of the Senate, Madison had been shown to be too great a philosophe, too bookish, too much "the best-read" man in regard to the commerce power. Over the course of three-quarters of a century, issues related to the sectional effect of tariffs would drive a wedge between two great sections of the union. Madison's Judiciary Act of 1789, specifically Section 25 of that act, would give the federal government, through the federal courts, power to define its own authority even against state supreme courts. Finally, the "Principles of '98," understood, to Madison's chagrin, as Virginians had always understood them, would give the heirs of Virginia's political tradition a way out.
In other words, the so-called "Father of the Constitution" had planted all the seeds that made continued coexistence between North and South under the constitution of 1787 seem both impossible and unnecessary to the Southerners who succeeded him. He could have listened to the wisdom of the leading men of his state, but he chose first to denigrate them, then to ignore them, and, once his own cohort had died off, to distort their and his own record. He could have heeded the considered wishes of his political community, but he chose to ignore them - and to hide the evidence of his heterodoxy. The federal arrangement Virginians were willing to accept - separate federal and state spheres, a true "compound republic" - was not precisely the subordination of the states to the center Madison wanted, so he opted to present the Old Dominion a fait accompli. The constitutional arrangement of 1788 was mourned by Madison while both he and it still lived. He saw the end coming. I think he knew why.