Featured Article – What Madison Wrought

A close look at what a recent biography of the fourth president gets right—and wrong.

After two centuries of being perceived as Thomas Jefferson’s junior sidekick, James Madison has in recent years leapt to the forefront of scholarly concern. Beginning with Drew McCoy’s superb 1989 account of Madison’s retirement years, The Last of the Fathers: James Madison and the Republican Legacy, several historians and political scientists have offered interesting reassessments of Madison.

Why that should be is an interesting question. Jefferson’s reputation has declined substantially as first Conor Cruise O’Brien highlighted his bloodcurdling statements about the violence of the French Revolution and then Annette Gordon-Reed persuaded most students of the subject that he had fathered children by Sally Hemings (even before DNA evidence buttressed that conclusion). Another possibility: Perhaps Jefferson’s support of limited government no longer appeals in the age of $4 trillion budgets, and his case for freedom of conscience has lost its allure in the age of “Bake the Cake!”

So why hasn’t Madison’s star fallen alongside Jefferson’s? No, Madison did not wax poetic about the necessity of bloodletting in pursuit of Robespierre’s aims, and no, there is no persuasive evidence that Madison fathered any children with slaves, but Madison has been rightly understood as Jefferson’s closest political ally—besides his very best friend. Where the actions of the one offend today’s sensibilities, the actions of the other are seldom far behind.

Yet there are distinctions that may account for the Madison vogue. Primary among them is the difference between the two men’s casts of mind.

Jefferson, as Madison said, tended to express impressions of the moment in bold colors. He enunciated stark principles, often heedless of the consequences. He resisted the idea that the ideal must be accommodated to the real. He would willingly sacrifice much in service of some dear project. He repeatedly sneered at the idea that our forefathers may have known more than we, and he certainly denied that we could not come to know more than they. A brilliant legislative craftsman, he addressed the particular, not the general. Madison has been described as in many ways opposite of Jefferson, yin to his yang.

Jefferson’s wide-ranging genius touched on many fields of human endeavor. Arguably still America’s foremost classical architect, a pioneering ethnohistorian, a skilled legislative draftsman, author of arguably the most important 18th-century American book, creator of the University of Virginia, winner of a long-running scientific dispute with Europe’s leading biologist, author of the Declaration of Independence, and much more besides, Jefferson is a difficult biographical subject because the associated subject matter is so astoundingly variegated.

Not so the younger man. James Madison’s career was devoted to the creation and implementation of the American republican constitutional system. His famous writings were on that subject. His political achievements centered on that effort. His wife is famous for having helped him with that.

Like Jefferson and several other Founding Fathers, Madison has in the past several decades been the subject of a fabulously funded project to publish his surviving papers. The lure of the resulting volumes, which greatly facilitate the research necessary to writing on Madison, must help account for the publication of books, scholarly as well as popular, on Madison in recent years.

The latest substantial Madison biography is Noah Feldman’s The Three Lives of James Madison, published last year by Random House. Feldman, a professor at Harvard Law School, divides his story into three parts, or “lives”: that of “the” author of the Constitution, that of the father of the Jeffersonian Republican Party, and that of the fourth president. His quite lengthy tome provides a workmanlike, highly detailed account of Madison’s life and career based almost exclusively on the primary materials. One has the feeling that Feldman decided before writing the book what its title would be and worked his materials to make them fit the title.

The best illustration of this comes in the first part of the book, “Constitution.” Here we see the boy born into a wealthy, prominent family of Piedmont Virginia slaveowners and educated to be whatever he wants to be. Feldman rejects Lynne Cheney’s contention that Madison suffered from epilepsy from infancy. He follows Madison through his college years at—somewhat oddly for a Virginia blueblood—the school we now know as Princeton. At last, Feldman has Madison step onto the political stage at the Virginia Convention in 1776.

Feldman falls into the common trap of ascribing to Madison more responsibility for the U.S. Constitution than is appropriate, often referring to it as ‘Madison’s constitution’ even though Madison himself always rightly rejected anything like sole credit for the federal charter.

Providentially, perhaps, Madison’s first public office was in the body that wrote the first written constitution adopted by the people’s representatives in world history: the Virginia constitution of 1776. Oddly, Feldman makes little of the form of that document, focusing instead on what I regard as Madison’s foremost achievement in a lifetime of significant achievements: having the phrase “free exercise of religion” substituted for a committee draft’s “toleration” in the Virginia Declaration of Rights. That phrase would be used by Madison again, of course.

Elsewhere quick to say Madison could or should have done more to limit slavery, Feldman misses Madison’s omission to do so at this point. Not his intervention regarding the religion section at the Declaration’s tail, but his acquiescence in writing slaves out of Virginia society at the document’s head was Madison’s “first public act as a member of an elected body.” When Robert Carter Nicholas moved to change section 1 to say that government was only responsible for protecting people’s rights “when they enter[ed] into a state of society,” Madison went along.

Feldman thereafter falls into the common trap of ascribing to Madison more responsibility for the U.S. Constitution than is appropriate. Within years of his death, yes, Madison was being called “the father of the Constitution,” but he always rightly rejected anything like sole credit for the federal charter. The Constitution had, he said, been the work of many men. Feldman, on the other hand, here and through the rest of the book refers to the Constitution as Madison’s.

False modesty does not account for Madison’s denial of sole authorship. As Forrest McDonald noted more than 30 years ago, Madison was on the losing side on the majority of votes taken in the Philadelphia Convention. What came out of Philadelphia bore only an attenuated resemblance to the Virginia Plan (for which Feldman again assigns Madison sole credit).

The Virginia Plan included numerous elements that the Philadelphia Convention ultimately rejected. Among other things, it called for a bicameral legislature in which both houses were apportioned by population, the lower house was elected by the people, and the upper house was elected by the lower house; for a legislative veto over state laws; for a general legislative authority; and for a national judiciary with power to hear all significant cases. Other than the lower house elected by the people, all of these proposals were rejected. Madison insisted over and over again on population apportionment of both houses, repeatedly warning small-state delegates that refusal of this provision would lead the large states to break up the union, and still he lost. He also insisted repeatedly on the legislative veto power over all state laws, which was rejected the final time in the last week of the convention by a unanimous vote of the states.

So unhappy was Madison with that last result that he told his friend Jefferson it meant the Constitution would fail within a few years even if ratified. The federal veto, he confided, had been his “favorite” proposal. Somehow, Feldman concludes from all of this that the Philadelphia Convention’s product was “Madison’s constitution.” He refers to it that way through the rest of the book. Not the first author to find Madison’s essential though limited role in crafting the Constitution inadequate to his purposes, Feldman probably will not be the last.

Feldman describes Madison’s role in writing The Federalist without mentioning the scholarly consensus that the Publius essays had no discernible effect on the ratification campaign’s outcome. His account of the Virginia ratification convention is equally noteworthy for magnifying his Madison’s contribution. He does mention Madison’s assertion that not one American people but rather “the people as composing thirteen sovereignties” were ratifying the Constitution. Besides Madison’s and Governor Edmund Randolph’s vehement rejections of Patrick Henry’s forecasts that something akin to McCulloch v. Maryland (1819) would come soon after implementation of the Constitution, Virginia Federalists’ ratification convention statements about the nature of ratification would have the most important later implications.

In the next section, “Party,” Feldman recounts the story of Madison’s role in the political struggle of the 1790s. While in the first section he assigns Madison excessive credit, he here gives him too much blame. At one point, he blames Madison for initiating what he seems to consider the harmful or undesirable tradition of constitutionalizing political arguments. (Attentive readers will note that Feldman begins the book with a dedication to former Supreme Court associate justice David H. Souter—and that legal realism, critical legal studies, and other such fads have reverberated in the halls of Harvard Law School for several decades.)

Feldman thinks that the disjunct between Madison’s Confederation Congress and Philadelphia Convention nationalism, on one hand, and his Jeffersonian, states’-rights posture against Hamilton’s legislative and foreign-policy program beginning in 1790 must have been political—and that Madison’s invocation of the Constitution in favor of his views must have been disingenuous.

This ignores the ground on which the “thirteen sovereignties” had been persuaded to adopt their federal constitution in 1787-90. Yes, Madison wanted a more national constitution than the Philadelphia Convention produced, but it produced a federal one despite him. He sold it as ultimately federal, not national, in the Richmond Convention. As he and other Federalists assured their fellow delegates in Richmond, the Constitution was going to mean what they understood it to mean when they ratified it. Far from disingenuous in the 1790s, then, Madison would have been disingenuous if he had persuaded the people to adopt a constitution giving Congress only the enumerated powers and then behaved as if it had given Congress more. When Alexander Hamilton took the latter path in the 1790s, Madison opposed him to the hilt.

Yes, Madison led the way in creating the American tradition of arguing against opponents’ measures on constitutional grounds. That is what constitutions are for.

Feldman also stumbles in chronicling the Alien and Sedition Acts Crisis. His chapter on this topic begins by saying that Madison’s Virginia Report of 1800 is “known as the ‘Principles of ’98,’” which may seem a tad counterintuitive. In fact, the term “Principles of ’98” refers to the understanding of the Constitution laid out in the Virginia and Kentucky Resolutions of 1798, the Kentucky Resolutions of 1799, and the Virginia Report of 1800.

As Feldman tells the story,

Jefferson’s Kentucky Resolutions offered a new theory of the relationship between the states and the federal government under the constitution. The Constitution was a “compact” between “co-states,” Jefferson asserted. Consequently, each of the parties to the compact had “an equal right to judge for itself” whether the Constitution had been violated. . . . Jefferson was denying that Congress, the president, or the Supreme Court had the last word on the meaning of the Constitution. . . . Congress was “not a party, but merely a creature of the compact.” It was therefore subject to the “final judgment” of the states.

This is indeed what the Kentucky Resolutions of 1798, drafted secretly by Vice President Jefferson and adopted by that state’s legislature as its official position, said. However, there was nothing new about it: as noted above, Virginia Federalists had said the same thing in the Virginia Ratification Convention in 1788. This was the understanding on which Virginia had agreed to the Constitution. In light of the fact that the states under Article V retain authority to amend the Constitution to correct Federal Government behavior they disapprove, it would seem uncontroversial. (How the federal government could have been a party to the constitution that created it, Feldman does not say.)

Virginia too adopted resolutions laying out this understanding of its status under the Constitution in 1798, these secretly drafted by Madison. Feldman notes that Jefferson’s statement that federal policies violating the Constitution were “of no force or effect” was deleted from the Virginia Resolutions prior to their adoption, and he says this made them less strident, even revolutionary, than the Jefferson/Kentucky Resolutions. Perhaps he is unaware that removal of that language was agreed by House of Delegates Republicans on the ground that, as future Virginia governor and U.S. secretary of war James Barbour explained, calling such policies “unconstitutional” already meant they were “of no force or effect,” and so the language was redundant. Less strident? Not as their sponsor, John Taylor of Caroline, understood them.

Feldman goes on to note that seven states objected to the Virginia and Kentucky Resolutions. He omits that Tennessee and Georgia adopted exactly the resolutions of support Virginia and Kentucky had asked their sister states to adopt, and that South Carolina’s Republican state government would have done so had it received them before the last day of that year’s legislative session. How do we explain these omissions and errors? Perhaps by noting that a Madison more levelheaded than Jefferson is what Feldman said he would give us.

The last third of the book, “War,” puts a positive face on Madison’s embarrassing foreign policy stewardship and notably poor performance as a war president. Madison made utterly inapt appointments to the positions of secretary of war and secretary of the navy, took the country to war absolutely unprepared for conflict with Great Britain, chose a totally amateur strategy for the war’s first campaign season, and did nothing about the fact that one of his war secretaries ignored repeated instructions to fortify the District of Columbia. If the burning of the Capitol, the White House, and the other significant government buildings did not summarize Madison’s war record, perhaps the Bladensburg “Races”— the notorious flight of American forces during a battle outside Washington—did. Alternatively, perhaps the U.S. government’s woeful situation five years into Madison’s presidency is best symbolized by the image of James Monroe, then the secretary of war, who had joined the Continental Army in 1776, hopping on a horse one day in 1814 and riding out into the countryside alone to find out where the approaching British Army was.

The standard apology says that at least Madison did not clamp down on dissent the way that Abraham Lincoln and Woodrow Wilson later would. Feldman offers this up. Faint praise indeed.

Feldman breezes through Madison’s retirement years, omitting fascinating material about his performance as constitutional sage. As the book has 628 pages of text, one cannot fault him much for that. In his endnotes, however, he does level a potent blast at Mary Sarah Bilder’s argument that Madison significantly doctored his notes of the Philadelphia Convention. I suppose that debate will continue.