The Founders at Home: The Building of America, 1735-1817
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MADISON LOST that argument. The Great Compromise passed on July 16, after a month’s increasingly testy deadlock, while the heat baked the delegates and the flies bit them. Madison accepted that at times principle has to yield to politics, that the Convention was “compelled to sacrifice theoretical propriety to the force of extraneous considerations.” In fact, he concluded with gracious patriotism after battling so heatedly, “the real wonder is, that so many difficulties should have been surmounted; and surmounted with a unanimity almost as unprecedented as it must have been unexpected.”72 The delegates “formed the design of a great confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them.”73 As to whether Americans should ratify the document, it was now or never. “The multiplied inducements at this moment to the local sacrifices necessary to keep the States together, can never be expected to coincide again.”74 Concluded Madison, “The only option . . . lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be, to embrace the lesser evil.”75
Still, he had misgivings. The small states could now gang up in the Senate to block essential legislation until congressmen from the big states made concessions to them in the House, meaning that “the minority could negative the will of the majority.” But his deepest anxiety was that now the critical division in the nation would not be the gap between the propertied and the propertyless but rather between the North and the South, with slavery the crucial “line of discrimination,” he said with unintended resonance.76 And while he claimed in Virginia’s Ratifying Convention to be amazed by Patrick Henry’s fear—entirely unwarranted, he said—that the Constitution could lead to the end of slavery, he himself worried about the arithmetic of “5 States on the South, 8 on the Northn. Side of this line,” a disproportion in the Senate likely only to worsen as new states joined the Union.77
The Constitution, after all, outlined a government that would safeguard persons and property. And what were slaves? In explaining in Federalist 54 the Convention’s compromise counting slaves as three-fifths of a person in reckoning the southern states’ population for apportionment of representatives and taxation, slave owner Madison set forth the southern view that slaves “partake of both these qualities; being considered by our laws, in some respects as persons, and in other respects as property.” In being deprived of his liberty and forced to work for a master who can sell and beat him, “the slave may appear to be degraded from the human rank, and classed with those irrational animals, which fall under the legal denomination of property.” But insofar as the law protects him from the violence of all others, and punishes him for violence he commits, he is “a member of the society” and “a moral person.” Reasonable enough then, writes Madison (in words it’s hard to transcribe), to adopt “the compromising expedient of the constitution . . . , which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the slave as divested of two fifths of the man.”78 None of the brooding over slavery’s evil that Washington and Jefferson committed to paper appears in Madison’s surviving writings.
HAVING GONE into the Convention seeking a strong central government supreme over fractious states—and assuring the delegates that there was “less danger of encroachment from the Genl. Govt. than from the State Govts.”—Madison, as a slave owner and representative of slave owners with particularly sordid interests as well as a lawmaker of wisdom and virtue, began to have second thoughts about federal power.79 With non-slave-owning northern states predominant in the Senate, he fretted, a government designed to protect property might someday threaten the South’s peculiar and crucially valuable property in slaves—property on which his own wealth rested. During the Convention, Madison had come to see that giving the central government supreme but strictly limited and enumerated powers over all citizens would serve the national purpose just as well as giving it a veto over state laws.80 Now he grasped more fully that such a plan would not only give the federal government its needed energy but would also protect the states from illegitimate encroachments—especially emancipation of the slaves, which in his view would be so illegitimate as to be almost unthinkable. As he began his slow shift from being a federalist in his era’s meaning of the term—a proponent of a strong federal government—to the states’-rights position that our era understands by federalism, he embraced the limited and enumerated powers idea all the more firmly.
The federal government’s powers, he explained in Federalist 45, “are few and defined,” largely confined to “war, peace, negociation, and foreign commerce,” while state powers will concern most issues that have to do with “the lives, liberties and properties of the people; and the internal order, improvement and prosperity of the state.”81 In the same speech in the Virginia Ratifying Convention in which he assured Patrick Henry that the federal government had no power to emancipate the slaves, he also assured the state’s foremost law professor, George Wythe, that “the powers granted by the proposed constitution, are the gift of the people,” and “every power not granted thereby, remains with the people, and at their will.”82 The tension between the states and the federal government would form yet another mechanism of checks and balances, another safeguard of rights and property. As Delaware’s John Dickinson explained it to the Constitutional Convention: “Let our government be like that of the solar system. Let the general government be like the sun and the states the planets, repelled yet attracted, and the whole moving regularly and harmoniously in their several orbits.”83
Like so many delegates, Madison loved this image from the Newtonian “planetary system” and echoed it, describing the federal government as “the great pervading principle that must controul the centrifugal tendency of the States; which without it, will continually fly out of their proper orbits and destroy the order & harmony of the political System.”84 That image had sunk deep into the eighteenth-century imagination, which often thought in terms of opposed forces, centrifugal against centripetal, creating a dynamic harmony, a music of the spheres, which, as Madison’s favorite author, Joseph Addison of Spectator fame, put it in 1712, has “no real voice nor sound,” as medieval men believed, but vibrates only in “reason’s ear.”85 As early as the 1730s, Alexander Pope, whom every educated eighteenth-century English speaker read, had anticipated Madison in describing how “jarring int’rests of themselves create / Th’acording music of a well-mix’d State.”86
As Madison explained, “This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.”87 Modern readers will think of Adam Smith, whose analysis of how each individual’s pursuit of his private, selfish interest adds up to the public interest Madison had read by the time of the Constitutional Convention; other Founders might have thought of Bernard Mandeville’s famous 1714 Fable of the Bees, which similarly showed how “Private Vices” can add up to “Publick Benefits,” as people send money coursing through the economy to gratify such passions as vanity or pride, gluttony or lust, just as Madison, wearing his psychologist’s hat, set ambition to counteract ambition in Federalist 51, making the baser, sometimes immoral, human energies of passions and interests, rather than wisdom, virtue, or reason, power the machinery of government and society.
The only problem in such a dynamic equilibrium, a balance of opposed forces, is that, under the extreme tension that binds it, things can slip out of whack. Pope described the consequences thus:
And if each system in gradation roll,
Alike essential to th’ amazing whole;
The least confusion but in one, not all
That system only, but the whole must fall.
Let Earth unbalanc’d from her orbit fly,
Planets and Suns run lawless thro’ the sky,
Let ruling Angels from their spheres be hurl’d,
Madison certainly shared the anxiety that things could “fly out of their proper orbits and destroy the order & harmony of the political System.” And in his view, that happened soon enough.
10
James Madison: Practice
THE NEW GOVERNMENT that James Madison had done so much to design hummed into motion smoothly—though with a bump for Madison himself. Patrick Henry, doubting his fellow Virginian’s ratifying-convention assurances on slavery and loath to cede state power to the central government, made sure that the thirty-seven-year-old federalist didn’t become one of the state’s senators, declaring his election would produce “rivulets of blood throughout the land.” He tried to keep Madison from being elected congressman, too, by gerrymandering his district to make him run against his friend James Monroe on Monroe’s home turf. Despite his distaste for politicking, Madison campaigned gamely, debating Monroe for hours in the snow and getting a frostbitten nose on the frigid ride home.1 He won, 1,308 to 972—and bore his frostbite battle scar for life.2
Heading to New York for the start of the first Congress under the Constitution, Madison stopped for a week at Mount Vernon, where he drafted president-elect Washington’s Inaugural Address—to which, as Congress’s de facto leader for its first two years, he wrote the legislature’s ceremonial reply.3 He helped the new president choose cabinet secretaries and other officials, remained his closest advisor until those appointees took over, and fired up the new government machinery on April 8, 1789, by proposing import duties to fuel its operations—an independent revenue source that the Confederation Congress had never possessed. On April 30, he marched with the president to his inauguration as one of five congressional escorts.4
Madison’s chief goal in the new government’s first year was shepherding the Bill of Rights through Congress. He had at first strongly opposed such amendments, arguing that the Constitution, by its precise enumeration of the federal government’s strictly limited powers, makes clear that any power not on that short list remains off-limits. A bill of rights would reverse the emphasis, he feared, opening the way to an enlargement of federal prerogative and a shrinking of the powers reserved to the states and the people. “If an enumeration be made of our rights,” he at first argued in the June 1788 Virginia Ratifying Convention, “will it not be implied, that every thing omitted, is given to the general government?”5
But the ratifying convention changed his mind. Under the new Constitution, he knew, Americans didn’t have rulers; they had public servants. Yet since many of his republican compatriots remained stuck in the pre-Revolutionary view of rights as something to be wrested from rulers, he saw he couldn’t muster a majority in favor of the Constitution without vowing that he and his fellow federalists would promptly pursue a bill of rights.6 “As an honest man, I feel my self bound by this consideration,” he wrote.7
A few months later, he had persuaded himself that this pragmatic position was principled. “My own opinion has always been in favor of a bill of rights,” he disingenuously wrote Jefferson—as long as no one could mistakenly believe that these are the only rights the central government can’t infringe, thus emboldening federal authorities to usurp powers that the Constitution doesn’t explicitly confer. Not of course that such “parchment barriers” as a bill of rights would prevent “overbearing majorities” from violating individual rights: “Wherever there is an interest and power to do wrong, wrong will generally be done,” Madison dryly observed. But a bill of rights could beneficially shape the nation’s political culture. “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.”8
What’s more, warily attentive to his constituents ever since his 1777 electoral defeat, he had made promises about a bill of rights in his January 1789 congressional campaign that he felt duty bound to honor. “Antifederal partizans” had warned Baptists in his district that he “had ceased to be a friend to the rights of Conscience.” However incredible, the rumor gained traction, so he responded with public letters pledging support for a bill of rights, “particularly the rights of Conscience in its fullest latitude.”9 By the time he proposed the Bill of Rights on June 8, 1789, he told his fellow congressmen that he wished they had made it “the first business we entered upon; it would stifle the voice of complaint, and make friends of many who doubted [the Constitution’s] merits.”10
Only one disappointment tempered his pleasure in the result. He wanted the Bill of Rights to include an amendment protecting citizens against state violations of “the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases,” which in his view would be the “most valuable amendment on the whole list”; but his fellow congressmen wouldn’t cede so much of the states’ powers in the name of individual rights.11 He graciously acquiesced, “as a friend to what is attainable.”12 It would not be until after the Civil War that the Fourteenth Amendment extended the Bill of Rights to ban infringements of constitutional rights by the states—though the Supreme Court’s Slaughter-House Cases decision narrowed that protection in 1873.13
CONGRESS SUBMITTED the Bill of Rights to the states on September 25, 1789, and long before the states had finished ratifying the ten amendments during 1791 and ’92, Treasury secretary Alexander Hamilton had seized the initiative of the new government from Madison with his sweeping plan for repairing the nation’s ruined finances at the start of 1790, igniting a smoldering feud with the Virginia congressman that ended in an explosive battle over what the Constitution meant. In his January Report on Public Credit to Congress, Hamilton had proposed restructuring the nation’s $76 million of war debts by calling them in and replacing them with interest-bearing long-term notes backed by specially designated tax revenues, so that investors would be certain they would be repaid and would receive their interest like clockwork, making them willing to lend to the U.S. government once again.
But they would have confidence in the full faith and credit of the government, Hamilton grasped, only if they saw that the existing federal and state promissory notes were worth their face value. So in exchanging the old jumble of debt for new securities, the federal Treasury would have to treat all bondholders alike—whether they were soldiers who had received the government notes as their pay or investors who had bought them up at discounts from cash-strapped veterans or suppliers. And to be sure the state debts would get paid, the Treasury would have to shoulder them itself. Seven years earlier, Madison, in consultation with Hamilton, had proposed to Congress a financial plan that included exactly such a federal assumption of state debts, and, just as Hamilton was now urging, he had also pleaded with the states not to discriminate among different classes of creditors.14
But now Madison turned against these ideas and against his Federalist Papers collaborator, and in his much later fragment of autobiography, he took pains to claim that he hadn’t understood back in the 1780s “the magnitude of the evil” of leaving soldiers who had sacrificed so much with only pennies on the dollar, while the “stockjobbers” who had bought their government promissory notes at predatory discounts raked in the lion’s share of the money originally owed the battle-scarred veterans.15 As for federal assumption of state debts, Virginia and some other states had already paid their debts, so in helping to pay the debts of the remaining states with their taxes, Virginians would in effect be paying for the war twice—though their state in fact had discharged its own debt also for pennies on the dollar. Accordingly, Madison blocked Hamilton’s plan in Congress all through the winter and spring of 1790.
Still, as one of the few Founders who had never been a lawyer, a soldier, or a foreign envoy, Madison was a practical, professional politician—indeed from this moment even a political party leader—and he was willing to make a deal. Over a famous Madeira-fueled dinner at Jefferson�
�s rented house on Maiden Lane in late June, Madison agreed to get two of his Virginia allies to vote for the funding plan, in exchange for Hamilton’s pledge to persuade some Pennsylvania congressmen to vote for building the nation’s permanent capital on the Potomac. By August, Congress had passed both measures.16
Nevertheless, Madison’s resistance to Hamilton’s plan ran deeper than such horse trading could reach. Uneasy about northern power now that the Great Compromise had dashed his dreams of a best-and-brightest senatorial faculty club and assured northern dominance of that body, he had no wish to boost northern economic might further, as Hamilton’s plan would do, since northern states had the most debts for the federal government to pay off, and speculators in depreciated government paper were mostly northerners.17 Some of those speculators, he learned to his disgust, were “members of Congress, who did not shrink from the practice of purchasing thro’ Brokers the certificates at little price,” knowing they would then vote “to transmute them into the value of the precious metals.”18 Such sharp practice differed little from the notorious corruption of those legislators whom John Trenchard and Thomas Gordon had famously lashed in Cato’s Letters for shielding the perpetrators of the South Sea Bubble while speculating in the company’s stock.