MADISONIAN CONSTITUTION

Constitutional scholars often describe the original Constitution of 1787 and its first ten amendments as Madisonian, and they have two good reasons to do so. First, james madison was arguably the central historical actor in every phase of the political movement that led to the adoption of the Constitution, from the calling of the federal constitutional convention of 1787 to the ratification of the bill of rights in 1791. His preparations for the federal convention shaped its basic agenda and its politics. Even though several of the proposals he most favored were rejected, the completed Constitution still carried the marks of his substantial influence. Second, scholars typically rely on Madison's political writings—especially his most celebrated contributions to the federalist—as the most authoritative statements of the underlying theory of politics and government that the Constitution embodied.

If Madison did play the critical role that historians ascribe to him, the reason was not only that experience and intellect suited him to do so, but also that he consciously made the task of promoting the project of constitutional reform his own cause. During his service in the continental congress (1780–1783), Madison was deeply involved in the effort to ratify and then amend the articles of confederation, and he pursued the same ends as a member of the Virginia assembly from 1784 to 1786. Though Madison initially worried that the assembly's decision to invite other states to a conference to consider national problems of commerce might backfire, he went to the Annapolis Convention in September 1786 convinced that a radical step was necessary to break the impasse over reforming the Confederation. When it became evident that the meeting was too poorly attended to propose anything of substance, Madison joined the other commissioners in issuing a call for a general convention to meet in Philadelphia in May 1787. He then returned to Virginia to make sure that the assembly took the lead in inviting the other states to appoint delegates for the new convention.

Madison prepared for the convention by reflecting on both the history of other confederations and his own political experiences. These reflections supported one critical conclusion: Any federal union that relied, as did the Confederation, on the voluntary compliance of its member states with national decisions must always prove defective. Instead, the national government needed to be empowered to act directly upon the people, by enacting, executing, and adjudicating its own laws. This conclusion led to two others. First, the convention would need to think seriously about the proper composition of the three essential departments of government—legislative, executive, and judicial. Second, because a well-constructed legislature was bicameral, the rules of apportioning representation in both houses of a future Congress would become a source of controversy. Here Madison was intent on establishing that seats in both houses should be apportioned on the basis of population and perhaps wealth.

The deeper impetus for the solutions Madison wished the convention to adopt reflected his diagnosis of the problems of legislative misrule and popular politics in the individual states. Madison believed that the great source of instability in American government lay in the tendency of the state legislatures to act impulsively and unwisely, especially by enacting laws that violated the due rights of minorities and individuals. The legislature, and especially its lower house, was the branch of government most likely to encroach upon the legitimate powers of the other departments. The great challenge of designing the institutions of republican government was thus to protect the two weaker departments, the executive and judiciary, against legislative domination. But the problem was not merely an institutional one. For when legislatures overstepped their bounds or acted unjustly, Madison reasoned, they were likely to be acting in response to the improper desires of their constituents, or more to the point, the popular majorities whom they represented. To bring stability to republican government, Madison believed, required finding ways to insulate elected representatives from the passions and interests that swayed the electorate.

In drafting the virginia plan just before the Constitutional Convention assembled in May 1787, Madison converted this general diagnosis into a program of reform. Over the next four months, however, he met defeat on most of the crucial proposals that he supported most strongly. The rule of representation adopted for the U.S. senate, giving each state an equal vote, Madison thought fundamentally unjust. The Senate would also be elected by the state legislatures, which Madison regarded as nests of political demagoguery. To protect the executive and judiciary against legislative domination, Madison had proposed uniting these two weaker branches into a council of revision armed with a limited veto power over Congress; instead the Constitution gave the veto to the President alone. To correct the vices of state legislation, Madison proposed giving Congress a veto over all state laws; instead, the Constitution envisioned limited judicial review of state legislation by a federal judiciary that Madison feared would be too weak to carry out this task.

The completed Constitution was thus far less Madisonian than Madison would have wished. Yet it is equally true that both the debates at Philadelphia and the document they produced were deeply influenced by Madison's diagnosis of what he called the "vices of the political system of the United States." No other delegate played a more important role in framing the convention's agenda, steering its deliberations, or elevating the tenor of its debates. And even if the Constitution disappointed his expectations, Madison's criticisms of the defects of the Confederation were the foundation on which the new plan of government rested.

After the Constitution was published, Madison agreed to contribute to the series of essays that alexander hamilton planned to publish to support its ratification. Madison's first essay, the tenth Federalist, appeared on November 22, 1787. Its importance was largely neglected by nineteenth-century commentators. But in his influential work, An Economic Interpretation of the Constitution (1913), charles a. beard treated Federalist No. 10 as the paradigmatic statement of the political theory of the Constitution, and a host of later commentators who rejected most of Beard's reading of this text have nevertheless echoed the same judgment. Several of Madison's other essays for The Federalist—notably his discussion of federalism in Nos. 39, 45, and 46, and of the separation of powers in Nos. 47–51—have attained nearly the same status.

Federalist No. 10 is a critical document because it disputes the conventional wisdom which then held that stable republican governments could safely exist only in compact, relatively homogeneous societies. This posed a formidable objection to the Constitution, because Americans could never approve a national government that did not take a suitably republican form. Federalist No. 10 turned this conventional wisdom on its head. The greatest danger to liberty arose when self-interested factions seized control of government, Madison argued, and this was far more likely to happen in small, homogeneous societies than in extended, diverse polities. Creating an extended national republic of diverse interests would reduce this danger, Madison concluded, and it might have the further benefit of enabling a superior class of lawmakers to gain election to Congress, where they could legislate more wisely than their counterparts in the states.

Federalist No. 10 explained why a national republican government was possible, but it did not describe how its institutions would be constructed or how they would operate. These were the subjects to which Madison turned in later essays. In Federalist No. 39, he patiently explained why the new government could only be described as a complicated amalgam of national, federal, and republican features—neither a confederation of fully sovereign states nor a consolidated unitary nation-state. The succeeding essays then provided a case-by-case defense of the particular powers that the proposed Constitution delegated to Congress. In Federalist Nos. 45–46, Madison further suggested that the states would retain significant political advantages over the national government. All of these essays sought to demonstrate that creating an effective national government would still leave the states in possession of their essential powers and even their political influence.

It was in Federalist Nos. 47–51, however, that the second fundamental element of the Madisonian theory of the Constitution became apparent. Here Madison set out to counter two other axioms of contemporary constitutional theory. One held that the best way to protect each of the three branches of government from encroachments by the others was to keep them rigidly separated in their powers and personnel; the other held that the greatest danger to this institutional separation of powers arose from the executive.

Madison countered these positions in several ways. He argued, first, that the theory of rigid separation was rarely followed in either British or American practice, and that indeed some mixture of powers across the branches might prove a better way of preserving the essential separation than an adherence to their rigid separation. Second, in republican governments the real danger to separation came from the "impetuous vortex" of the legislature, which could deploy its rulemaking authority and its superior political influence to overwhelm the other branches. From this it followed, third, that the people could not be expected to rally to the support of the threatened departments; it was far more likely that their passions and interests would inspire the legislature to overstep its bounds. The only security for protecting each branch within its proper sphere, Madison concluded in Federalist No. 51, was to give each branch of government some means of defense (the veto for the President, judicial review of legislation for the judiciary, the power of the purse for Congress), but also to encourage alliances between the weaker institutions against the stronger. Read carefully, Federalist No. 51 is really a defense of the potential alliance between the President and Senate against the danger from the U.S. house of representatives. But its general principle extends further. Rather than rely on a rigid theory of separation, a truly Madisonian constitution would strive to fashion pragmatic mechanisms for preventing any one branch of government from gaining lasting supremacy over the others.

Madison ended Federalist No. 51 with a restatement of the argument of Federalist No. 10, and this provides a revealing clue to his own understanding of the Constitution. If the extended republic worked as the latter essay had earlier predicted, Madison concluded, the actual danger that Congress would dominate the other branches might be mitigated, for the diversity of interests in the larger society should work to discourage the wrong kinds of majorities from forming to pursue their vicious ends. This restatement confirms that Madison himself believed that the benefits of the extended republic would lay the essential foundation of a truly Madisonian constitution.

Jack N. Rakove
(2000)

Bibliography

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