by Ray Raphael
2.At http://www.jamesmadison.com/about.html (accessed January 10, 2012).
3.Farrand, Records of Federal Convention, 3:94.
4.A few other delegates took notes, sent letters, or offered later recollections, but none of these other records come close to the daily records of every debate that Madison kept. Also, the Convention’s secretary, Major William Jackson of Georgia, kept an official journal, but he recorded only motions and votes, not debates, and often made mistakes. All these, together with Madison’s voluminous notes, are compiled chronologically in Farrand, Records of Federal Convention, and in Charles C. Tansill, ed., Documents Illustrative of the Formation of the Union of the American States (Washington, DC: Government Printing Office, 1927). James H. Hutson has argued that Madison managed to record only five to ten percent of what was said in the Convention. James H. Hutson, “The Creation of the Constitution: The Integrity of the Documentary Record,” Texas Law Review 65:1 (November 1986): 1–39.
5.For Gouverneur Morris’s push to transform the presidency, see Raphael, Mr. President: How and Why the Founders Created a Chief Executive (New York: Knopf, 2012), 78–120 and 281–85.
6.Madison to William Cogswell, March 10, 1834, Farrand, Records of Federal Convention, 3:533.
7.Melanie Randolph Miller, An Incautious Man: The Life of Gouverneur Morris (Wilmington, DE: ISI Books, 2008), 63; Madison, Notes of Debates, September 7.
8.Madison to Jefferson, September 6, 1787, Madison, Papers, 10:163.
9.Madison to Jefferson, March 19, 1787, Madison to Randolph, April 7, 1787, and Madison to Washington, April 16, 1787, in Madison, Papers, 9:317–22, 368–71, 382–87.
10.Madison to Washington, April 16, 1787, in Madison, Papers 9:383–85.
11.Jay to Washington, January 7, 1787, and Knox to Washington, January 14, 1787, in Washington, Papers (CS), 4:502–4, 521–22; 5:163–66; Pauline Maier, Ratification: The People Debate the Constitution (New York: Simon & Schuster, 2010), 18–19, 26; Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Random House, 1996), 59. For meetings of the Virginia caucus, see George Mason to George Mason Jr., May 20, 1787, in Farrand, Records of Federal Convention, 3:23. For common use of the term “Madison’s Plan,” see the Wikipedia entry “Constitutional Convention,” heading “James Madison’s Blueprint,” http://en.wikipedia.org/wiki/Constitutional_Convention_(United;_sfStates)#James_Madison.27s_blueprint (accessed March 24, 2012).
12.Whereas his fellow Virginians did include Madison’s national veto of state legislation, they wisely refrained from the combative phrase “in all cases whatsoever”—the very words Parliament had used in the Declaratory Act of 1766, when it claimed the absolute right to tax Americans.
13.Before voting on the committee report, the Convention addressed the question of composition in the first house of Congress for its first session: exactly how many members should each state get? This matter was sent to committee, and once again Madison evidenced displeasure with the committee’s report, which he noted was not based on any firm principle. Seizing the moment, he offered “a proper ground of compromise” that would give small northern states even less of a voice in the Senate than they had in the House: “In the first branch the States should be represented according to their number of free inhabitants; and in the 2d. which had for one of its primary objects the guardianship of property, according to the whole number, including slaves.” This was hardly a “compromise,” for it would leave the small northern states at a greater disadvantage than any other proposal. Madison’s suggestion was not seriously considered (Madison, Notes of Debates, July 9).
14.Neither defeat was total, despite Madison’s disappointment. One house of Congress still would have proportional representation, and the Convention soon would make the supremacy of the national government over state governments explicit. On August 6 the five-man Committee of Detail, in its expanded version of the working draft, inserted some important new delineations of state and national powers. First, it stated that all treaties and acts of Congress “shall be the supreme law of the several States, and of their citizens and inhabitants; and the judges in the several States shall be bound thereby in their decisions; any thing in the Constitutions or laws of the several States to the contrary notwithstanding.” Next, it required congressional approval for state legislation in a list of key areas: “No State, without the consent of the Legislature of the United States, shall emit bills of credit, or make any thing but specie a tender in payment of debts; nor lay imposts or duties on imports; nor keep troops or ships of war in time of peace; nor enter into any agreement or compact with another State, or with any foreign power.” Madison did not serve on that committee, but James Wilson, who also supported a federal veto of state laws, was on the committee, and the draft containing these clauses is in his handwriting. Wilson undoubtedly pushed their cause to the furthest extent he deemed possible. For Wilson’s draft of these measures in the Committee of Detail report, see Farrand, Records of Federal Convention, 2:169.
15.On August 22, the day before Pinckney and Madison pushed to reconsider the issue, Virginia delegate James McClurg wrote to Madison: “I have still some hope that I shall hear from you of the reinstatement of the Negative—as it is certainly the only mean by which the several Legislatures can be restrain’d from disturbing the order & harmony of the whole, & the Governmt. render’d properly national, & one. I should suppose that some of its former opponents must by this time have seen the necessity of advocating it, if they wish to support their own principles” (McClurg to Madison, August 22, 1787, Madison, Papers, 10:154). We do not know when he read McClurg’s letter, but Madison was certainly thinking along the same lines.
16.Madison to Washington, April 16, 1787, Madison, Papers, 9:384–85.
17.Immediately, Gouverneur Morris seized on the idea of requiring three-quarters rather than two-thirds for an override. Morris had favored an absolute veto but was rejected; now, he saw a chance to strengthen the executive by making an override next to impossible. Morris prevailed, evidently with Madison’s approval. Later, in the last week of the Convention, Madison opposed returning to two-thirds, but he was outvoted.
18.Madison, Notes of Debates, September 7. An executive council was pushed vociferously by George Mason and supported by luminaries Franklin, Wilson, Dickinson, and Madison, yet it still failed, possibly because delegates were in a hurry to be done with their business.
19.Madison, Notes of Debates, September 7 and 8. Madison’s motion to require a simple majority for treaties of peace initially passed without dissent, but the next day the Convention reversed that decision. His motion to permit the Senate, without the president, to conclude treaties of peace lost by three states to eight.
20.Madison, Notes of Debates, September 8.
21.Madison to Jefferson, September 6, 1787, Madison, Papers, 10:163–64; Jack N. Rakove, James Madison and the Creation of the American Republic (Glenview, IL.: Scott Foresman/Little, Brown, 1990), 68.
22.Madison to Jefferson, October 24, 1787, Madison, Papers, 10:207–14. A national negative, Madison continued, was necessary not only to grant “the whole” a check over “its parts,” but also “to secure individuals agst. encroachments on their rights.” Individual rights would be “more secure under the Guardianship of the General Government than under the State Governments,” because oppressive majorities were less likely to coalesce on a national scale. Precisely because there was “such an infinitude of legislative expedients” that could produce “injustice” in state and local jurisdictions, state law needed to be “controuled by some provision which reaches all cases whatsoever”—again, those strong words. Abusive state legislation was in fact one of the proximate causes of the Federal Convention: “The mutability of the laws of the States is found to be a serious evil. The injustice of them has been so frequent and so flagrant as to alarm the most stedfast friends of Republicanism. I am persuaded I do not err in saying that the evils issuing from these sources c
ontributed more to that uneasiness which produced the Convention, and prepared the public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confederation to its immediate objects.” Without a sweeping national veto over state legislation, even in matters of seemingly local concern, states would be able to “oppress the weaker party within their respective jurisdictions.” The absence of a national negative was a serious flaw in the Constitution and perhaps a fatal one, he concluded. Madison had offered a similar argument at the Convention on June 6.
23.The balance of powers is emphasized in The Federalist Nos. 47–51, shared sovereignty in The Federalist Nos. 39 and 45–46.
24.Madison to Washington, April 16, 1787, in Madison, Papers 9:383.
25.“Vices of the Political System of the United States,” an unpublished essay penned in April 1787 (Madison, Papers, 9:355–57); Madison, Notes of Debates, June 6; Madison to Jefferson, October 24, 1787 (Madison, Papers, 10:212–14). For the version of this argument in his letter to Jefferson, see note 22 above.
26.For the full results, see http://www.ourdocuments.gov/content.php?flash=true&page=vote. For the process and the announcement of the results, see “The National Archives Announces Results of ‘The People’s Vote,’” American Historical Association, January 2004 “Perspectives,” http://www.historians.org/perspectives/issues/2004/0401/0401new7.cfm (accessed April 11, 2012).
27.Newspaper reprints: DHRC, 19:542–43, 547. Publication of the second volume of The Federalist: DHRC, 18:83–85, 20:1116–18. Most commentators today assume that because Madison’s argument is so clever, other Federalist leaders must have used it and the public must have bought into it. Gordon Wood, in his seminal The Creation of the American Republic, 1776–1787 (1969; repr., Chapel Hill: University of North Carolina Press, 1998), assigns the argument to “the Federalists” (502) or “several Federalists and Madison in particular” (504), but other than Madison, he cites only one obscure work as using this argument. For the obscurity of Wood’s citation, see DHRC, 18:326–31.
28.Maier, Ratification, 270–71.
29.J. Allen Smith, The Spirit of American Government (New York: Macmillan, 1907), 42–43, 205–6; Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1913), 153–61. See in particular the discussion by Douglass Adair, “The Tenth Federalist Revisited,” William and Mary Quarterly, 3rd ser., 8:1 (January 1951); 48–67, conveniently reprinted as chapter 3 of Douglass Adair, Fame and the Founding Fathers: Essays of Douglass Adair, ed. Trevor Colbourn (New York: Norton for the Institute of Early American History and Culture, 1974; repr., Indianapolis, IN: Liberty Fund, 1998). In that essay, Adair also analyzes the neglect of The Federalist No. 10 through the nineteenth century.
30.For Supreme Court citations of The Federalist, see Ira C. Lupu, “The Most-Cited Federalist Papers,” Constitutional Commentary 15 (1998): 403–10; W.B. Allen with Kevin A. Cloonan, The Federalist Papers: A Commentary—The Baton Rouge Lectures (New York: Peter Lang, 2000), 399–429; Melvyn R. Durchslag, “The Supreme Court and the Federalist Papers: Is There Less Here Than Meets the Eye?” William & Mary Bill of Rights Journal 14 (2005); 316–49. Justice William O. Douglas’s concurring opinion in Gibson v. Florida Legislative Investigation Committee (1963) reveals the obvious appeal of The Federalist No. 51 for late-twentieth-century Americans: “Madison too knew that tolerance for all ideas across the spectrum was the only true guarantee of freedom of the mind: ‘Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects.’”
31.The resolutions passed the House of Delegates by a vote of 100 to 63 and the Virginia Senate by 14 to 3. Madison’s political ally Thomas Jefferson, in a similar but more strongly worded set of resolutions he submitted to the Kentucky legislature, proclaimed that a state could declare an unconstitutional act of Congress “void and of no force.” The Virginia and Kentucky Resolutions, though, were not endorsed by other states. For the background of Madison’s resolutions, including his communications with Jefferson, see the editorial note in Madison, Papers, 17:185–88. The text of the Virginia Resolutions follows on pages 188–91. Early in 1800 Madison issued a detailed report to the House of Delegates explaining and defending the controversial Virginia Resolutions, which had come under attack from other states. Again in this “vindication,” his positions differed considerably from those he had espoused at the Federal Convention. In 1787, he had argued against the weaknesses of the Articles of Confederation, but in 1800 he referred to the Articles and the Constitution in the same breath as “the two great federal charters,” and he used the “original” compact to elucidate the meaning of the “existing” one. At issue was the term “general welfare,” which he noted was used in both documents. Because nobody thought “general welfare” implied an open-ended mandate for Congress under the Articles of Confederation, he argued, the appearance of that phrase in the Constitution must be viewed in the same light. If the sovereignty of the United States were extended “to all cases of the ‘general welfare,’ that is to say, to all cases whatsoever,” the states would be consolidated “into one sovereignty,” and that in turn would lead to “monarchy” (emphasis in the original). Earlier, Madison insisted on national supremacy in all cases; now he demonstrated what a dangerous concept that was. “The Report of 1800,” in Madison, Papers, 17:313–16. The 1787 quotation is from Madison to Washington, April 16, 1787, Madison, Papers, 9:383.
32.Annals of Congress, 1:178–79; David P. Currie, The Constitution in Congress: The Federalist Period, 1789–1801 (Chicago: University of Chicago Press, 1997), 71.
33.Annals of Congress, 1:183; Currie, Constitution in Congress, 70. Even at the Federal Convention, at least one framer wondered whether lighthouses would be covered under the commerce clause. On September 4, James McHenry of Maryland mused, “Upon looking over the constitution it does not appear that the national legislature can erect light houses or clean out or preserve the navigation of harbours. This expence ought to be borne by commerce-of course by the general treasury into which all the revenue of commerce must come.” Farrand, Records, 2:504.
34.Annals of Congress, 1:1115, 1145–46; Currie, Constitution in Congress, 19–20. Madison also supported the appointment of a congressional committee to investigate an executive officer, although that did not appear in the Constitution’s list of powers granted to Congress. Annals of Congress, 1:1515; Currie, Constitution in Congress, 20–21.
35.Madison’s speeches in the House of Representatives, February 2 and 8, Annals of Congress, 2:1944–52, 2008–12. In the first session of Congress, when Madison presented amendments that would evolve into the Bill of Rights (see chapter 7), he took a more charitable stance toward “implications.” One of his proposals set forth the principle of enumerated powers—“The powers not delegated by this constitution, nor prohibited by it to the States, are reserved to the States respectively”—but that statement was not clear enough for South Carolina representative Thomas Tudor Tucker, who moved to insert the key word “expressly” before “delegated” (see chapter 4). Madison opposed the explicit limitation. “It was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia” Annals of Congress, 1:453, 790 June 8 and August 18, 1789; also in Veit et al., Bill of Rights, 14 and 197. See above, chapter 4. Elbridge Gerry, at the Federal Convention, assumed that the commerce clause did permit granting charters to corporations. On Se
ptember 15 he listed his reasons for not signing the Constitution, among which was this: “The Power given respectg. Commerce will enable the Legislature to create corporations and monopolies.” (This is from Rufus King’s notes, reprinted in Farrand, Records of Federal Convention, 2:635. Madison’s rendition reads, “Under the power over commerce, monopolies may be established.”) Admittedly, the convention was winding down, but even so, Madison makes no record of any attempt that he made to counter this claim, either on the floor or as a footnote to his notes. Further, when Madison gathered the amendments proposed by state ratification conventions while preparing his own list, he certainly noted that most of the states proposing amendments sought to prevent Congress from granting monopolies or giving any “exclusive advantages of commerce” to a single company; apparently, they thought something on the order of a national bank would be permitted under the commerce clause unless the Constitution were amended. This is not to suggest that Madison’s view was mistaken, but only that the view he expressed in 1791 was not the assumed interpretation at the time of the Constitution’s drafting and ratification.
36.For Madison’s transformation, see Gordon Wood, “Is There a James Madison Problem?” in David Womersely, ed., Liberty and American Experience in the Eighteenth Century (Indianapolis: Liberty Fund, 2006), 425–47, reprinted in Gordon S. Wood, Revolutionary Characters: What Made the Founders Different (New York: Penguin Press, 2006), 141–72. For visions of nationalism, see Max M. Edling, A Revolution in Favor of Government (New York: Oxford University Press, 2003).
