James Madison: Philosopher and Practitioner of Liberal Democracy -  A Symposium

James Madison's "Sagacious, Powerful,
and Combining Mind"

Robert Goldwin, American Enterprise Institute

Making a constitution calls for a combination of political thought at its loftiest and most innovative, and political action at its most challenging and courageous.  Rare are the occasions in the life of any nation that offer political leaders the opportunity to formulate in memorable phrases a reconstruction of political society designed to fulfill the highest aspirations of the people.  But that is what the project of writing a constitution demands.  And the political action that follows, the task of implementing the constitution, making the written words become the instrument of reconstituting and governing the nation, can be even more daunting.  What complicates the task are two troublesome facts:  the first, that making  a new constitution is almost always initiated in an unsettled time of turmoil and disruption of national life, and the other, that the introduction of the new constitution often intensifies the difficulties.

And yet, even so, nations all over the world, again and again, despite the difficulties and despite the evidence that many new constitutions end in failure, undertake the project for one powerful reason--high hopes that a new beginning will provide some or all of what is lacking in the national life, be it order, stability, national security, domestic tranquility, personal freedom, political equality, legal justice, economic prosperity, or several or all of these.  High hopes for better times--that is the reason why nations decide to seek a new constitution despite the dangers and the difficulties that constitution-making begets.

Why did the Americans decide to revise the Articles of Confederation in 1787?  The Articles were not a true constitution but a self-described treaty of alliance among the states.  Under the Articles, the Continental Congress was unable to raise revenue, and the United States was unable to make foreign loans because their credit was so bad; they were too weak to deal effectively with the Spanish, then blocking shipping on the Mississippi, or to stand up to the British, then restricting American exports; and they were unable to rectify this inherent weakness because the Articles could be amended only by unanimous consent of the states and there were too many regional conflicts among them to achieve unanimity on any important issue. 

This was the situation in 1787.   Justifying the high hopes of the constitution-makers, two years later the picture was radically improved.  By 1789 they had made considerable progress in reconstituting the United States, and in fact most Americans and their leaders thought the task was completed.  But not James Madison.

As I hope to show, Madison was the consummate constitution-maker, outstanding primarily because of his extraordinary combination of theoretical powers and practical political skills.   His ability to combine the philosophical and practical aspects of constitution-making and to join seemingly opposing tendencies into a coherent whole, is what made him ultimately so successful, unsurpassed by any of the hundreds of constitution-makers in other nations who have followed in his path in the centuries since.  But his unusual powers of analysis did not necessarily smooth the way for him.  He often saw problems that he felt compelled to consider but that his fellow politicians could not see.  They therefore could not agree with his efforts to resolve what they considered phantom issues.

The story of Madison’s leading role in the Constitutional Convention is well known, and I will not tell it again here.  I have a less well-known story to tell, of his exploits on behalf of the Constitution subsequent to the Constitutional Convention.

When  the Convention completed its business in September of 1787, the finished document was carried from Philadelphia to New York to the Continental Congress; there, after the briefest possible deliberation, just one week of wrangling, the Congress complied with the recommendation of the Convention delegates that the Constitution be submitted to popularly elected conventions in the several states for ratification.  And thus commenced a political process that started off with rapid and overwhelming victories in several small states and ended with the narrowest possible victories, over determined opponents, in the major states of Massachusetts, New York, and Virginia.  There were altogether 580 delegates in those three state ratifying conventions;  the Constitution would have been defeated if just 18 of those 580 delegates had changed their votes.  It was that close.  If there had been a direct nationwide popular vote, up or down on ratification, the Constitution would probably have been defeated.  But despite the bitter and widespread opposition and persistent efforts to amend the Constitution prior to ratification, it was ratified as originally written, without being altered in any way, with one proviso:  many states ratified "in full confidence" that amendments would be considered by Congress.

Following ratification, congressional elections were held for representatives; state legislatures chose senators and presidential electors; George Washington, the unanimous choice of the electors, was inaugurated as president; and soon after the First Congress convened and commenced the business of legislating for the new government.  Support for the Constitution was growing, although there remained a vigorous opposition with prestigious leadership and a sizable following in several important states.  Federalists, those who had supported ratification of the Constitution, had a five-to-one majority in the House of Representatives over the Anti-Federalists, those who had sought either to deny ratification or to amend the Constitution prior to ratification.   In the Senate the Federalist majority was even greater, ten-to-one.  Contemplating this scene, one would think it safe to declare the process of constitution-making successfully complete.  That certainly was the opinion of just about every Federalist member of Congress--except, as I have said, Madison.

To the severe annoyance and bafflement of his colleagues, this man, who had opposed vigorously every effort by critics of the Constitution to amend it in any way prior to ratification, now proposed that the House take up the matter of amendments without delay.  This motion threatened to impede the work of Congress on such urgent matters as impost and tonnage laws, the bill for registering and clearing vessels, the bill establishing a land office for the disposal of vacant lands in the Western Territory, and especially the judiciary bill.  As one congressman complained, without the judiciary, "not a single part of the revenue system can operate, no breach of your laws can be punished, illicit trade cannot be prevented."  For what purpose was Madison proposing to delay such urgent legislation?   His fellow members of Congress saw no good reason to deliberate amendments, now, in the first weeks of the first session of the First Congress, before there was any experience of functioning under the new Constitution, before there could be any evidence of a need to amend it in any particular.

Why did Madison insist on this seemingly disruptive course of action?  The answer is not simple or short, but it provides insight into the character of Madison as constitution-maker par excellence.  To begin the answer we must go back a bit in the sequence of events, to the time right after the conclusion of the Constitutional Convention, when the state conventions were first beginning to gather for the ratification process.

At that time, just a few weeks after the Constitution had been forwarded to the states, Madison wrote a long letter--seventeen hand-written pages--to his good friend , Thomas Jefferson, then serving as the minister representing the United States in Paris, giving him a first-hand report of the work of the Convention, enclosing a copy of the Constitution, and explaining some of its key features.  In all of that lengthy letter Madison mentioned just once, and that just in passing, the subject of a bill of rights.  "Col. Mason," he wrote, "left Philada. in an exceeding ill humour . . . with a fixed disposition to prevent the adoption of the plan if possible.  He considers the want of a Bill of Rights as a fatal objection."

Jefferson, in his reply, praised many of the features of the new Constitution.  He said he liked the organization of the government into executive, legislative, and judiciary; he approved giving Congress the power to levy taxes; and he said he was "captivated by the compromise of the opposite claims of the great and little states."  But then came the transition:  "I will now add what I do not like"--

The omission of a bill of rights providing clearly . . . for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land.

Jefferson concluded in that forceful and quotable style for which he is renowned,

Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.

Given the slowness of international correspondence in those days, by the time Madison replied to Jefferson’s letter a bill of rights had become a major issue in ratifying conventions in major states, and was no longer a matter that could be slighted.  In his reply, Madison predicted that "a constitutional declaration of the most essential rights" would probably be added to the Constitution, although, he said, there were many who thought such an addition unnecessary.

He then added, "My own opinion has always been in favor of a bill of rights," an assertion deeply puzzling, given his record of stubborn opposition to a bill of rights in the Constitutional Convention and throughout the ratification battles, but less puzzling when we consider the rest of the sentence and its sequel:

My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration.  At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others.  I have favored it because I have supposed it might be of use, and if properly executed could not be of disservice.

This surely is not an enthusiastic endorsement of a bill of rights; it was the faintest of faint praise, but consistent with the way Madison almost always spoke of bills of rights, whether in public speeches or private letters.  Even in his speech to the House of Representatives moving the adoption of the amendments that became the Bill of Rights, he avoided praising the proposed new provisions for their intrinsic worth, advocating them instead primarily for the effect they would have on others who thought them important or useful and reassuring.  And as in this passage in the letter to Jefferson, he consistently used qualifications such as "if properly executed," and conditionals, such as "it might be of use," and double negatives, such as "could not be of disservice."  In all of Madison’s advocacy of a bill of rights, I know of only one exception (which you will hear about shortly) in which Madison spoke approvingly of a bill of rights without his usual equivocations and qualifications.

Madison’s reservations about a bill of rights should not be understood as indicating a lack of devotion to "the great rights of mankind," to use his phrase. He was as firm in his devotion to private rights as was Jefferson.  He disdained reliance on a bill of rights because he thought it was ineffective.  He argued that a bill of rights could be effective in restraining a monarch bent on oppression, but was not useful in a republic where the majority rules.  Simply stated, he was concerned that when a majority in a republic turns oppressive, a bill of rights would be a paper barrier, too weak to control the all-powerful majority bent on depriving groups or individuals of their rights.

In any form of government, the greatest danger to private rights lies wherever the greatest power is.  In the American governments the real power is the majority and the real danger comes, he argued, "not from acts of Government contrary to the sense" of the majority, "but from acts in which the Government is the mere instrument" of the majority of the people.  "This," Madison wrote, "is a truth of great importance, but not yet sufficiently attended to."  The truth we must attend to is that decisions and policies arrived at democratically, with majority support, can nevertheless be oppressive, and very likely will be so unless precautions are taken to safeguard the rights of the minority and of individuals.

We know that in all  "civilized societies" there will be many differences of interest, that the populace is not homogenous, and this leads to Madison’s dominant concern, that a majority with a common interest or common passion will, under majority rule, become oppressive.  He made the argument in very simple terms:

If two individuals are under the bias of interest or enmity agst. a third, the rights of the latter could never be safely referred to the majority of the three.  Will two thousand individuals be less apt to oppress one thousand, or two hundred thousand one hundred thousand?

As we know from his discussion of faction in Federalist  No. 10, Madison considered the possibility of an oppressive majority to be the greatest danger in a political society such as ours. The most important steps to be taken in fashioning a constitution are to head off the formation of bad majorities, majorities contrary to the rights and interests of the minority and of the society as a whole. 

A multiplicity of interests--"rich and poor, creditors and debtors, a landed interest, a mercantile interest, a manufacturing interest"--as Madison listed them, and an extended territory, including regions dissimilar enough to have greatly varied regional interests, would make it as unlikely as possible that a persistent majority could be formed united by some malevolent interest or passion.  In short, a properly conceived constitution, by promoting a great diversity of interests, and by designing structural arrangements such as representative legislatures instead of direct democracy, and a federal system that makes it possible to have one nation over an extended territory with a numerous and diversified citizenry, provides powerful security for private rights.  That is what Alexander Hamilton meant, and Madison and other Federalists agreed, when he wrote "that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS."

But we who have lived through the disastrous history of the 20th Century have good reason to doubt that diversity is enough, in itself, to secure private rights.  Bloody factional violence from Northern Ireland, through Eastern Europe, on to the Middle East and into the 21st Century in Borneo, forces us to conclude that differences of race, religion, language, or nationality might provide some assurance against formation of an oppressive majority only under certain circumstances, and without those circumstances are more likely to lead to discord and violent oppression.  Surely Madison was as aware as we are of the dangers as well as the benefits of diversity, and hence safeguarding circumstances were a major part of his constitutional thinking.

When Madison told Jefferson that he did not favor adding a bill of rights to the Constitution for "any other reason than that it is anxiously desired by others," it seemed a shallow reason for taking such a profound step.  But when he delivered his speech to the House proposing the amendments that became the Bill of Rights, surely one of the most consequential orations in American political history, he emphasized that same reason.  As for the provisions themselves, the very provisions that many now consider the most important and revered articles in the Constitution, he spoke of them  in his usual faint-praise style, assuring his Federalist colleagues, who were resisting getting into the amending business, that these amendments were harmless, that they changed nothing in the Constitution. If they reassured others who were still not comfortable with the increased new powers of the new government, why not grasp the opportunity to win their allegiance.  There is something to gain, he argued, and nothing to lose.

As was so often the case with Madison, behind this façade of clever politics was the pursuit of a new idea, an addition to the solution to his most profound problem, the bad majority.  What was this new idea?  It is necessary in a republic, he had argued in Federalist No. 51,

to guard one part of the society against the injustice of the other part. . . .  If a majority be united by a common interest, the rights of the minority will be insecure.  There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority--that is, [independent] of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.  The first method prevails in all governments possessing an hereditary or self-appointed authority. 

Madison disposed of the first method, with its hereditary or self-appointed authority, as obviously inappropriate for a republic, and turned his attention to the second method, relying on "the multiplicity of interests" for "the security for civil rights."  But there is reason to think that Madison held on to the first method--"creating a will in the community independent of the majority"--until he had found in his own mind a republican version of it, without a heredity monarch or self-appointed dictator, and powerful enough to restrain an oppressive majority. 

With the first method in mind--a will in the community independent of the majority--consider this description of the power of a properly drawn bill of rights in the Constitution:

The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.

That is what Madison wrote to Jefferson in answer to his own question, "What use . . . can a bill of rights serve in popular Governments?"  At this climactic moment in his exchange of views with Jefferson, at a late date, months after all of The Federalist  Papers had been published, but before his momentous speech in Congress proposing the amendments, he finally overcame his misgivings, persuading himself that a bill of rights could serve a useful function as part of the Constitution.  To the best of my knowledge, this sentence is the only statement by Madison, in public speeches or private correspondence, in which he spoke favorably of a bill of rights without any reservations.  And in this sentence we see that he is describing a force independent of the majority, "incorporated with the national sentiment," with the power to "counteract the impulses of interest and passion."  And this explains why it was so important to Madison to pay attention to what others so "anxiously desired."

What Madison saw, what convinced him that the process of constitution-making was not yet complete, was a problem his congressional colleagues were not alert to.  They all knew that there continued to be some opposition to the Constitution, and that it took the form of demands for amendments that dealt with private rights.  But there were also demands for amendments that would reduce the powers of the federal government, not only the powers of Congress but also executive and judicial powers.  Two states, New York and Virginia, had already petitioned the Congress to convene a new convention to amend the Constitution.  But the congressional Federalists were confident in their overwhelming majorities in both houses and saw no reason to pay serious attention to the demands of the minority.  They thought Madison was wrong to be proposing amendments to appease them.  That was good sensible political thinking, but in Madison’s mind this was not a matter of ordinary politics; it was constitution-building.  Madison saw that there was a constitutional problem that was not in the document itself but was nevertheless of major importance.  That problem was that the Constitution did not command the allegiance of the people to the necessary extent.  The Anti-Federalist opposition that had been so formidable during the ratifying process was still alive and still seeking to make major revisions, to reduce many of the powers of Congress and return them to the states, to shrink the federal judiciary, to weaken the executive powers, and also to add protections for private rights.  The Federalists in Congress were inclined to deal with these facts by ignoring them because if they came to a vote they would be defeated.

Madison’s own analysis was that the followers of the Anti-Federalist leaders could be won away and converted to become enthusiastic adherents of the Constitution.  He rightly judged that the greatest concerns of the followers were the protections of rights, and that if he presented his own carefully constructed bill of rights, at the same time blocking all of the proposed Anti-Federalist amendments, he could leave the Anti-Federalist leaders bereft of followers.  His judgment turned out to be right. Once his speech was delivered and published widely, the movement for calling a second convention to revise the Constitution was dead and never revived.

Madison had a related, even more important, motive than defeating the Anti-Federalists.  That was his realization that constitutional politics differed from ordinary politics in one decisive respect: in constitutional politics a majority is not enough.  The Constitution needs the allegiance of the whole community, the great mass of the people, in order to be effective, especially to do what he considered the most important task, restraining an oppressive majority.  He had found the answer to the question that had oppressed him throughout: Can an oppressive majority be restrained in a political system ruled by the majority?  The answer is, yes, it  can be restrained by a constitution that has the allegiance of practically everybody, the whole people.  If the majority says, who says we can’t do that?  The answer is, we the whole people say you can’t do that.

The first words of the Bill of Rights express this clearly: "Congress shall make no law" to do this or that.  The meaning is clear.  Even if a majority of the people, represented by a majority in Congress, make a law consistent with their "impulses of interest and passion" but contrary to the Constitution’s "fundamental maxims of free government," we the people, the whole people, superior to the majority, to any majority, pronounce judgment and say, no, you can’t do that.  And so we see that what seemed to be a trivial reason for adding the bill of rights amendments, that others anxiously desired them, was Madison’s most profound reason, to win the support of the whole people to the Constitution, as the final step in solving the problem of the oppressive majority.

There is a passage in Edmund Burke’s great work on the French Revolution that I think describes succinctly the task that James Madison undertook and the qualities that enabled him to perform  so successfully as a founder of free government:

To make a government requires no great prudence.  Settle the seat of power, teach obedience, and the work is done.  To give freedom is still more easy.   It is not necessary to guide; it only requires to let go the rein.  But to form a  free government--that is, to temper together these opposite elements of liberty and restraint in one consistent work--requires much thought, deep reflection, a sagacious, powerful, and combining mind.

With Burke’s help, this concludes my tribute to James Madison and his combining mind on the occasion of the 250th anniversary of his birth.

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