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

Was Madison an Original Thinker?

Gary Rosen, Commentary

Every academic field has its schemes of classification, and scholarship on the American founding is no different. As a result, James Madison, like the other leading figures of his generation, is often placed into one or another ideological box. It is said that he is a liberal or a republican, a nationalist or an advocate of statesí rights, a follower of the "court" party or of its "country" rival. There is no denying the usefulness of these labels, and I have gladly availed myself of them on many occasions. But taxonomies seldom do justice to individuals, and this is especially true when dealing with a thinker of Madisonís depth.

Madison was more than just a supremely capable politician and legislator. He was a self-consciously philosophical statesman, one who freely related the issues of his day to a wider theory of politics. More precisely, Madison was a profoundly original thinker with respect to the root idea of his political thought: the social compact. An attentive reader of Madisonís writings cannot help noticing his constant resort to the idea of the social compact. Its distinctive terms--notions like the state of nature and natural rights--flow through virtually every one of his discussions of political fundamentals, from his earliest days in the Continental Congress to his years of retirement at Montpelier.

But Madison was no mere follower of the philosophers who originally developed this idea. His writings constitute a serious meditation on the social compact and establish him as both a sophisticated student and a critic of the idea, especially as it relates to the Federal Convention of 1787 and the actual making of the Constitution. Madisonís distinctive view of the social compact is also of great use for making sense of the American political scene after the Constitution was established. In particular, it points to the abiding differences that separated Madison not only from Alexander Hamilton but also from his great friend Thomas Jefferson, the two men whose rivalry is usually thought to define the politics of the early republic.

In the modern political world, the social compact is a familiar idea, an almost intuitive explanation for what makes governments legitimate. Unfortunately, this familiarity often keeps us from recognizing just how radical the social compact was when first introduced in the 17th century in the writings of the English philosophers Thomas Hobbes and John Locke. For most of human history, those governments that have bothered to† justify themselves have pointed to the will of God or the extraordinary qualities of a particular class--or, more generally, just to an authoritative tradition of some sort. Under the social compact, by contrast, government was seen for the first time as the creation of the people as a whole; it was an instrument that they wielded to protect themselves and their most fundamental interests, or as Locke put it, their "life, liberty, and estate."

In America, the best-known formulation of this idea can be found, of course, in the Declaration of Independence. As Jefferson wrote, with unmistakable allusions to Locke,

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness --That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.

This is bold stuff, especially when considered in the context of its day. What it involves, above all, is a profound notion of human equality. It gives to everyone--to every member of society, in principle--a say in what the basic structure of government should look like. The original purpose of the idea, particularly in the writings of Locke, was to keep existing political institutions in line, to remind kings and aristocrats that they ignored the common weal--the rights and interests of the general public--at their own peril. The message was simple: serve the people or get replaced by the people. In Locke, this finds expression in what has been called the "right of revolution."

But Americaís situation was very different from that of 17th-century England. Rather than just needing to keep old institutions in line, the newly independent Americans needed to start from scratch, to build entirely new political institutions. And here was the rub. For it may have been "self-evident" that they had the right to make new governments, but it was far from self-evident just how they were to go about doing it. Who, exactly, was supposed to do the constitution-making?

It is with this problem that James Madison enters the picture. Madison, it should be recalled, was one of the youngest members of the founding generation. Still a budding revolutionary when Jefferson was writing the Declaration of Independence, he first appeared on the national scene in 1780, joining the Virginia delegation in the Continental Congress.

Within a year of his arrival, the states had ratified the Articles of Confederation, the first American constitution. The Confederation was a hopelessly ineffective national government, primarily as a result of its organizing principle, which was to treat all the states equally, almost as fully sovereign nations. Each state had just one vote in the Continental Congress, and unanimity was required for any change in the Articles themselves. As a result, Congressís authority was widely ignored by the state legislatures, and nowhere more so than in its efforts to requisition funds.

For three years, Madison worked tirelessly to reform the Confederation, especially to win for it an independent source of revenue. But his proposals were rejected one after another, victims of the Articlesí requirement of unanimity. Late in 1783, having completed his term as a delegate (and, despite his youth, having quickly won a national reputation), he returned to Virginia, deeply troubled by the worsening national situation.

How, he wondered, would it be possible make a more effective national government? Any new government, he recognized, would have to be ratified by the people. But could the plan for a new government come from the people? Could they be counted on to know what the nation needed and what sort of institutions were required to achieve it?

Madison was very doubtful, in large part because of his own experience trying to add a few modest powers to the Articles of Confederation. When it came to the still grander project of an entirely new constitution, the people, he believed, were simply lacking in the necessary political know-how, or prudence.

Worse, according to Madison, the people were too indifferent to the welfare of the nation as a whole. Their most powerful political passions were tied to the sovereign claims of the individual state governments and to their own narrow economic interests. These passions gave rise to what Madison, in Federalist 10, famously called the problem of faction. Faction, as he saw it, was the primary obstacle to creating an adequate Constitution. If the nationís political situation was to be resolved, Madison came to believe, it would require extraordinary means. It would require, he concluded, a constitutional convention.

Today, we tend to view a constitutional convention as a rather matter-of-fact thing, the obvious solution to getting rid of one government and launching another. But such conventions were a political innovation of the highest order. They represent Americaís chief contribution, at least in practical terms, to the idea of the social compact. After all, actually bringing together all the people to make a government would be wildly impractical, an administrative impossibility. An alternative had to be found: a gathering of representatives specially empowered to express the peopleís will.

Like many other American statesmen of the day, Madison recognized these advantages. But he also came to see conventions as far more than a convenient substitute for the people as a whole. To his mind, they also provided an opportunity to circumvent the people, even if just temporarily. Indeed, Madison eventually concluded that constitutional conventions were a necessary device for allowing those like himself--those whom he called "the most enlightened and influential patriots"--to escape from the hold of democratic institutions. The example to follow, he suggests in Federalist 38, was that of ancient lawgivers like Solon and Lycurgus, men of "preeminent wisdom and approved integrity" who nonetheless were compelled to act outside the bounds of regular authority. Paradoxical as it may sound, Madison seems to have concluded that America would get a sound, republican Constitution only by means of an aristocratic coup of sorts.

In this regard, it is important to remember the somewhat irregular circumstances surrounding the Federal Convention of 1787. It was not the states themselves or the Continental Congress that issued the original request for delegates to meet in Philadelphia. Rather, the call came forth from a small gathering known as the Annapolis Convention, which took place in 1786 and which was supposed to be confined to recommending better ways for regulating commerce. But Madison, Alexander Hamilton, and the other notables who attended this small meeting decided to do more. As Madison later wrote, they "did not scruple to decline the limited task assigned to [them]." Instead of addressing the narrow question of commercial regulation, they called upon the states to send delegates to a still grander convention. This next, much more famous convention met in Philadelphia in the summer of 1787.

We often forget that the Federal Convention of 1787, like the Annapolis Convention before it, was assigned a limited purpose, and that the Constitution it produced was an unwelcome surprise to much of the nation. The delegates had been asked to figure out a way to strengthen the union, but it was assumed that they would preserve the basic form of the Articles of Confederation--that is, the principle that all the states were perfectly equal, and that each would have just one vote in deciding national policy.

Such a regime, however, was never really in the cards at Philadelphia. In the end, the delegates to the Federal Convention did not even pretend to be amending the Articles. They promulgated a brand-new Constitution and asked for it to be ratified not by the state legislatures, as the Articles required, but by the people themselves. Most scandalous of all, they proclaimed that the approval of just nine states, instead of the unanimity required by the Articles, would be sufficient to ratify the new Constitution. Two centuries later, we can no longer fully appreciate just how outrageous an assumption of authority this was, but many Americans were indignant at the time. As they saw it, a duly established national government had been discarded without a second thought.

For his part, Madison did not mince words in Philadelphia when it came to whether the delegates should respect the limits imposed on them by the Confederation and the state governments. As he put it:

We ought to consider what [is] right & necessary in itself for the attainment of a proper Government. A plan adjusted to this idea will recommend itself. . . . All the most enlightened and respectable citizens will be its advocates. Should we fall short of the necessary and proper point, this influential class of citizens will be turned against the plan, and little support in opposition to them can be gained to it from the unreflecting multitude.

Madison was uninterested, in short, not only in the formal instructions that had been given to the delegates but in the immediate views of the American people themselves. This "unreflecting multitude," as he called them, would simply follow the opinions of the countryís leading men.

Nor did Madison change his mind in the wake of the Federal Convention. While the ratification debate was going on in 1788, he received a letter from his fellow Virginian Edmund Randolph, who had refused to sign the Constitution as a delegate in Philadelphia. Randolph was sympathetic to the calls that were then being heard for a second constitutional convention, one that would be more open about its aims and more fully informed by popular opinion. Madison would have none of it, and did not hesitate to repeat his candid view of the peopleís limits: "Whatever respect may be due to the rights of private judgment, and no man feels more of it than I do, there can be no doubt that there are subjects to which the bulk of mankind are unequal, and on which they must and will be governed by those with whom they happen to have acquaintance and confidence. The proposed Constitution is of this description."

By setting out Madisonís doubts about popular constitution-making, I do not mean to paint him as some kind of anti-democratic ogre. Throughout his long career he was a firm and principled believer in the cause of popular government. Indeed, just a week after sharing his impolitic views with Edmund Randolph, he published Federalist 39, where he proudly insisted that the new Constitution was, as he put it, "strictly republican," that is, that its day-to-day operations would reflect the will of the people. "It is evident," he wrote, "that no other form would be reconcileable with the genius of the people of America; with the fundamental principles of the revolution; or with that honorable determination, which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government."

There is no reason to consider this statement any less sincere than Madisonís somewhat shocking remarks to the members of the Federal Convention and to Randolph, or to think that he saw himself as anything but a "votary of freedom." But what Madison understood is that the Declaration of Independence, like the social-compact theory on which it was based, needed some amending. The people, it turned out, required a good deal of help in creating a Constitution that would be adequate to their needs. As he saw it, the essential lesson of 1787 was that popular sovereignty had to be limited if it was not to destroy the possibility of stable, moderate self-government.*

As I suggested at the outset, Madisonís insights into the social compact are not just of interest when it comes to the founding itself. As it turns out, Madisonís distinctively American compact also adds a new dimension to our understanding of the politics of the early republic, especially the crucial period of the 1790ís.

In most accounts of this period, Madison is treated as a secondary figure. Once the Constitution was established, we are told, he simply faded into the partisan background, adding little of originality to the bitter dispute between Federalists and Republicans. As Morton J. Frisch puts it, during these years, "Madisonís thought moves between the boundaries drawn by Hamilton and Jefferson. He was between them. He was a consummate trimmer." I believe this view is mistaken, and that it overlooks the principled differences that Madison had not only with Hamilton but also, if to a lesser extent, with Jefferson. These differences, moreover, have much to do with Madisonís peculiar understanding of the social compact.

For Madison, as I have suggested, the Federal Convention was able to do its work because of two opposing sorts of political claims. On the one hand, and in keeping with the orthodox view of the social compact, there was the peopleís natural right to create a government that would better serve their needs. On the other hand, and more unique to Madison, there was the idea that, in order to pull off this task, the people very much needed the help of aristocratically-minded gentlemen.

For Madison, it was the careful combination of these two sets of claims that had made the Constitution possible. His differences with Jefferson and Hamilton, I would contend, stem in part from his belief that each of them represented a dangerous reversion to one side of this founding equation, and that each, in his way, was a threat to the countryís new, and still fragile, constitutional order.†††

Jefferson, of course, represented the popular side of the equation. Like Madison he wanted the people to take a proprietary interest in their Constitution, to see the government under which they lived as a thing of their own making, dependent on their jealous vigilance.

But Jefferson saw no need to qualify the version of the social compact that he had described so eloquently in the Declaration of Independence. If the people were the true source of all just political authority, he reasoned, and if government was the instrument by which they achieved their ends, there should be some regular opportunity for them to review their political institutions, free from the obstacles of everyday politics and the influence of their often corrupt representatives.

As a practical matter, this led Jefferson to propose a number of schemes in the course of his career under which the people could reconsider not just particular policies but the very form of their government. The most radical of these proposals is contained in a famous letter that Jefferson wrote to Madison toward the end of 1789, as Jefferson was preparing to return to the United States after four years as ambassador to France. With the early events of the French Revolution fresh in his mind, Jefferson asked, "Whether one generation of men has a right to bind another?" His answer was a resounding no: "no such obligation can be so transmitted."

In fact, Jefferson concluded that all public measures, including constitutions, naturally expired with the passing of the generation responsible for them, a period of some 19 years by his own actuarial calculations. Thus, the Constitution that Madison and the others had just labored with such difficulty to establish would lose all legitimacy, he suggested, by 1808 at the latest. "If it be enforced longer," he wrote, "it is an act of force, and not of right." Nor, Jefferson hastened to add, was the hypothetical possibility of repeal or the existence of popular self-government an adequate substitute. However well contrived a form of government, it inevitably created impediments to the expression of the true "will of the majority." The only way to ensure that constitutions and laws were not an imposition--an "act of force"--was to require the people to start anew at some regular interval.

Popular sovereignty also formed the theoretical backdrop of Jeffersonís various proposals over the years for maintaining the limits and boundaries of established constitutions. In his Notes on the State of Virginia (1787), for example, he argued that disputes over the separation of powers should not be left to officeholders themselves to decide or resolve. Rather, such "breaches" should be "corrected," he believed, by the sovereign people, acting through specially chosen conventions.

Later, in his well-known Kentucky Resolutions, Jefferson again resorted to first principles, this time against the Congress and President who had seen fit to pass the Alien and Sedition Acts of 1798. If the federal government was going to pass such plainly unconstitutional measures, he argued, the states, as original parties to the social compact, possessed a "natural right" to declare these acts "void and of no force." Indeed, as Jefferson had written in an early draft of the resolutions, "Every state has a natural right in cases not within the compact . . . to nullify of their own authority all assumptions of power by others within their limits"--a line of reasoning adopted years later by John C. Calhoun and his followers in advocating the cause of nullification.

A final instance of Jeffersonís faith in popular sovereignty can be seen in his response, toward the end of his life, to the most controversial rulings of the Supreme Court under Chief Justice John Marshall. Outraged by the decisions in the landmark cases of McCulloch v. Maryland (1819) and Cohens v. Virginia (1821), Jefferson concluded that Marshall was bent on giving unlimited powers to the national government, thereby completing the assault on the Constitution launched by Hamilton in the 1790ís. His remedy for such overreaching was familiar. The authority to resolve disputes between the federal government and the states should be taken away from the Supreme Court, he told his correspondents, and placed in the safe hands of the sovereign people, acting, once more, through conventions. The popular will would take the place of judicial review.

In all of these cases, Madison made roughly the same reply to his friend and fellow Virginian. First, of course, he was quick to congratulate Jefferson on his brilliance and sound general principles. "Like everything from the same pen," Madison observed in Federalist 49, the constitutional scheme described in Jeffersonís Notes "marks a turn of thinking original, comprehensive, and accurate; and is the more worthy of attention, as it equally displays a fervent attachment to republican government, and an enlightened view of the dangerous propensities against which it ought to be guarded."

As for the substance of Jeffersonís proposals, Madison was less forgiving. There was, to begin with, the question of practicality. As he gently suggested in response to Jeffersonís letter from France, a prohibition on laws with a term of more than 19 years would prevent the present generation from making certain necessary exertions "for the benefit of posterity," like paying off the national debt. Moreover, if ordinary laws lapsed at stated times, "violent struggles" would ensue over the fundamentals of property relations, leading at best to an arbitrariness incompatible with "steady industry" and at worst to anarchy. Nor were the practical difficulties any less severe with regard to Jeffersonís favorite mechanism for consulting the popular sovereign. "To refer every point of disagreement [over the Constitution] to the people in Conventions," Madison objected to Jefferson in an 1823 letter, "would be a process too tardy, too troublesome, and too expensive."

But Madisonís most serious response to Jeffersonís schemes was that the Constitution itself simply could not withstand such regular recourse to the sovereign authority of the people. If the Constitution was to last--and to keep republicanism from degenerating into majority capriciousness or oppression--it would have to stand at some distance from the immediate wishes of the people, retaining "that share of prejudice in its favor which is a salutary aid to the most rational government." As he wrote in Federalist 49, in a reply to Jefferson worth quoting at length,

As every appeal to the people would carry an implication of some defect in the government, frequent appeals would in great measure deprive the government of that veneration, which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself is timid and cautious, when left alone; and acquires firmness and confidence, in proportion to the number with which it is associated. When the examples, which fortify opinion, are antient as well as numerous, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws, would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage, to have the prejudices of the community on its side.

The almost pietistic terms used by Madison in these passages--"prejudice," "veneration," "reverence"--have been seen by those who sympathize with Jefferson as recommending an attitude of quiet respect, if not outright submission, on the part of the people. His tone is unmistakably that of a traditionalist, of someone anxious to preserve established institutions. But it is important not to exaggerate how far he goes here in rejecting the claims and capacities of the people.

In a regime based explicitly on the peopleís transhistorical right to alter or abolish constitutions, Madison suggests, the fact that previous generations have not felt the need to avail themselves of this right should carry some weight. In this light, the past can be seen as something of an extended referendum on constitutional arrangements. "Antient" examples fortify opinion not because they represent the superior wisdom or inspiration of founders but because they multiply the number of people who have held that opinion. For Madison, constitutional "veneration" was not meant to be a wholly irrational attachment. Rather, it would be a consequence of constitutional success over time, insulating the regime from precipitous change but not from all critical scrutiny. Thus, it was only a "salutary aid," a not "superfluous advantage." The performance of a regime, its "rationality" in terms of its declared ends, was what ultimately decided its fate under the social compact.

More to the point perhaps, and as Madison emphasized throughout The Federalist, the essential prerogatives of the people were already firmly enshrined in the Constitution. He did not subscribe to Jeffersonís dire pronouncements about the inevitable corruption of the public councils and the impossibility of designing a form of government that would reliably reflect the will of the majority. A "well constituted" government, as he called it, could provide for a proper institutional dependence of its officers on the people and, failing that, for an orderly process of amendment on those "great and extraordinary occasions" when it was warranted.

Given such formal arrangements, a spirited people, taught to regard government as their own creation, would be vigilant enough to see that their rights and interests were attended to. As Madison declared in exasperation to his Anti-Federalist critics (and by extension to Jefferson), "What are we to say to the men who profess the most flaming zeal for Republican Government yet boldly impeach the fundamental principle of it; who pretend to be champions of the right and the capacity of the people to chuse their own rulers, yet maintain that they will prefer those only who will immediately and infallibly betray the trust committed to them?" This was the paradox at the heart of Anti-Federalist thought, and it applied with special force to Jeffersonís most radical proposals. If, as he suggested, the people lacked the character and intellect necessary for maintaining a republican constitution, how could they be expected to model their constitutions anew in every generation?†

Madison expected the people to exert their rightful influence, but he wanted them to do so through their elected representatives, and in the last resort, through the amendment power set out in the Constitution itself. What he feared, and saw as antithetical to the actual experience of the American founding, was any effort to reproduce in all its breadth the awesome popular authority--the sovereign authority--described by the social compact. In Madisonís view, Jefferson not only overestimated the abilities of the people, but he failed to appreciate just how difficult it had been to create a single sound Constitution, much less an ongoing series of them.

If Jefferson erred on the side of the people, Hamilton, by contrast, was too ready to accommodate the claims of the aristocratic few. As we have seen, the great innovation of Madisonís social compact was to assign a key role to those whom he called "the most enlightened and influential patriots." These were the men--including, of course, Madison and Hamilton themselves--who essentially did for the people what they were incapable of doing for themselves: they made a constitution.

But what would happen to this division between the many and the few once the Constitution was established? Would the aristocratic gentlemen who dominated the Federal Convention dominate the new government as well, and would they exercise the same degree of latitude?

The dispute between Hamilton and Madison that emerged in the early 1790ís is usually thought to hinge on the question of how the Constitution's enumerated powers should be interpreted. The standard view is that Hamilton, while promoting his ambitious financial program, sought to exploit every possible implication of these powers, while Madison insisted on a stricter, more literal reading. I would suggest that the issue is better understood if framed in a broader way. Ultimately, the difference between Madison and Hamilton concerned not the degree to which the Constitutionís enumerated powers should limit the government but whether they should at all.

Here we must stop for a moment to consider where Hamilton stood on these matters. In his view of constitutional interpretation, we see, I think, two distinct stages. The first coincides with his promotion of the bank bill in 1791. Hamilton did not pretend that the power of incorporation--the specific power needed to form a national bank--was among those listed in the Constitution. Instead he classed it among "implied" as opposed to "express" powers. It was an "instrument," he argued, for carrying into effect powers that were indisputably granted to the national government.

In saying this, Hamilton relied on a particular interpretation of the Constitutionís "necessary and proper" clause, which gives Congress the power "to make all laws which shall be necessary and proper for carrying into execution" those powers that have been explicitly enumerated. As Hamilton saw it, the word "necessary" was not to be understood in a restrictive way; it simply required that the power in question be, as he put it, "useful" or "conducive to" one of the powers plainly set out in the Constitution.

Hamilton soon recognized, however, that the broad construction of specified powers would only take him so far. It might be enough to provide constitutional cover for the bank of the United States, but it would not give him the authority he needed to implement his wider agenda. A few months after the debate over the bank bill, we thus see a second stage in Hamiltonís approach to constitutional interpretation. Here the key text is his famous "Report on Manufactures."

On this occasion, the question was whether Congress had the authority to establish bounties for encouraging particular industries--again, a power not found in the Constitution. In proposing a national bank, Hamilton had turned to the "necessary and proper" clause for constitutional support. This time he took a different and more radical tack. Invoking the Constitutionís references to promoting the countryís "general welfare," he declared that Congress had the authority not just to decide what powers where available to it, but, indeed, what the very purposes of the national government should be. The proper scope of national legislation, he insisted, was something that should be left to the "discretion" of the legislature, acting in accord with its own idea of what constituted "the general welfare."

Whatever Madisonís final opinion of Hamilton's motives, he initially treated the constitutional doctrines of the Secretary of the Treasury and his allies as mistaken rather than sinister. On the question of how to interpret the Constitution, Madison agreed that a narrow literalism would render the government inoperable. The "necessary and proper" clause was intended to give Congress a certain latitude--but, he argued, only in performing functions that had been clearly granted to it. Without such a rule of construction the government would lose what he called its "essential characteristic": its possession of only "limited and enumerated powers."

"Mark the reasoning on which the validity of the [bank] bill depends," said Madison on the floor of the House of Representatives. "To borrow money is made the end and the accumulation of capital, implied as the means. The accumulation of capital is then the end, and a bank implied as the means. The bank is then the end, and a charter of incorporation . . . implied as the means. . . . If implications, thus remote and multiplied, can be linked together," he continued, "a chain may be formed that will reach every object of legislation, every object within the whole compass of political economy."

Moreover, Madison believed that this sort of activism in constitutional interpretation would confirm the worst fears of the Constitution's opponents. After all, advocates of the new government had initially argued that there was no need for a bill of rights, because, as Madison reminded the members of Congress, "powers not given [by the Constitution] were [said to be] retained" by the people, and "those given were not to be extended by remote implications." As Madison emphasized, this was certainly the belief that had prevailed in the state ratifying conventions, held just three years earlier. In fact, the idea of enumerated and strictly delegated federal powers was the foundation of what would become the ninth and tenth amendments, which Congress itself had recently proposed for ratification. Now, Madison argued, the Congress was giving serious thought to overthrowing these common understandings.

Drawing a parallel to the Federal Convention of 1787--and here we see the broader principles at stake--Madison suggested that the bank bill was an attempt to extend the process of constitution-making beyond its legitimate term. "With all this evidence of the sense in which the constitution was understood and adopted," he observed to his colleagues, "will it not be said, if the [bank] bill should pass, that [the Constitutionís] adoption was brought by one set of arguments, and that it is now administered under the influence of another set." "This reproach will have the keener sting," he said, "because it is applicable to so many individuals [who have been] concerned in both the adoption [of the Constitution] and [now in its] administration."

At this point, during his effort to defeat the bank bill, Madison was not prepared to say that Hamiltonís principles represented an actual conspiracy against the Constitution--but he would soon be ready to make this grave charge.

The precipitating event for Madison was Hamilton's outright endorsement, in his "Report on Manufactures," of the view that some vague notion of the "general welfare" was the only meaningful constraint on national power. As Madison bitterly noted at the time, "The federal Gov[ernmen]t has been hitherto limited to . . . Specified powers [even] by the greatest Champions for Latitude in expounding those powers. If not only the means, but the objects are unlimited, the parchment had better be thrown into the fire at once."

With this, finally, Madison had had enough. To him, Hamiltonís intentions were now clear: the Secretary of the Treasury wanted something like an ongoing constitutional convention, a government in which the outstanding few could pursue the public good as they saw fit. Though Madison himself could be blamed in part for the precedent that had inspired Hamilton, he never showed the same aristocratic inclination. For Madison, the Federal Convention had been a unique event, not an example of how the nation should be governed. The people, he knew, were not up to the task of founding, but once given a sound Constitution, he believed, they were certainly capable of self-government.

Today, it is important to recognize just how much we take Madisonís reconceived and Americanized social compact for granted. Madison knew that the social compact of Hobbes and Locke and of Jeffersonís Declaration of Independence could no longer be treated as a thought-experiment. Its basic principles were so widely accepted by the time of the American revolution that they had become a template for practical politics, not least for the creation of new governments.

Of course, when the people of America broke away from Great Britain, they did not exactly think of themselves as occupying a state of nature. But they did expect to make governments much as natural men would. Because the American people were incapable of doing this on their own, we have Founding Fathers. Because they nonetheless were able to retain their sovereign pride, we have American patriotism. Madisonís great achievement was to explain how these disparate elements could come together, and to play no small part in seeing that they did.


* This effort to "amend" the Declaration of Independence was not merely figurative. In Federalist 40, while defending the latitude assumed by the Federal Convention, Madison quoted the Declaration for support--but his excerpt contained a telling omission, included here in brackets. It was the right of the people, he wrote, to "abolish or alter their governments [and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form] as to them shall seem most likely to effect their Safety and Happiness." Madisonís abridgement, unnoted in the text, represents a subtle but unmistakable challenge to the prudential claims of the people.†




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