Gutzman – Madison and the Compound Republic

Kevin Gutzman

University of Virginia

The Philadelphia Society

Williamsburg Meeting

November 23, 1996

(Permission to quote this speech must be granted by the
Author)

"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.