The Three Lives of James Madison: Genius, Partisan, President

by Noah Feldman

Mr. Chairman, nothing has excited more admiration in the world than the manner in which free governments have been established in America; for it was the first instance, from the creation of the world to the American Revolution, that free inhabitants have been seen deliberating on a form of government, and selecting such of their citizens as possessed their confidence…to determine upon and give effect to

The creation of a new peacetime constitution would be, Madison was saying, a world historical event.

Madison had won. He still did not trust Henry, and told Hamilton that he felt “so uncharitable as to suspect that the ill will to the Constitution will produce every peaceable effort to disgrace and destroy it.”

Here in a nutshell was Madison’s vision of friendship within a constitutional republic. He and Monroe were friends who disagreed about ratification and ran against each other for office. But because they both sought the public good, they could (he insisted) still remain friends.

measure, a Pennsylvania congressman proposed further duties that were intended not to raise revenue but to protect domestic manufacturing from foreign competition.

For the speech on import duties, Madison relied on what had clearly been a careful reading of Adam Smith’s Wealth of Nations.

Madison was confident that the efficiency of the free market would lead to productivity “in a more certain and direct manner than the wisdom of the most enlightened legislature could point out.”

Madison wrote Washington’s address, which was presented to Congress on April 30, 1789. He then wrote the address that the House of Representatives made in response to Washington on May 5.

That was not all. Washington asked Madison to write a presidential reply to Madison’s congressional reply to the presidential address that Madison himself had written.

He did not wish to presume, he said, that every president would possess “the splendor of the character of the present chief magistrate,” Washington.

Madison then laid out his proposed amendments. First came a declaration that power was derived from the people, that government was instituted for their benefit, and that the people retained an inalienable right “to reform or change their government.”

The right of the people to keep and bear arms shall not be infringed; a well armed, and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

The language left little doubt that the right to bear arms meant neither more nor less than the right to serve in a well-regulated militia.

It authorized the right to serve in a militia while simultaneously guaranteeing that pacifists such as Quakers could not be made to serve.

Madison then protected against the quartering of soldiers in any house without the consent of the owner; against double jeopardy; against being compelled to be a witness against oneself; against any deprivation “of life, liberty, or property without due process of law”; and against anyone being “obliged to relinquish his property, where it may be necessary for public use, without a just compensation.” There would be no excessive bail, excessive fines, “nor cruel and unusual punishments inflicted.”

The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

This was the first time Madison—or possibly anyone—had ever made the argument that a written bill of rights would transform judges into protectors of fundamental liberties.

Today, the idea that judges are the guardians of constitutional rights is the foundation stone of liberal constitutional thought around the world.

Only Madison thought the state legislatures more dangerous than Congress, because only he had theorized that a nationally elected Congress would be less oppressive than a local legislative body.

Without Madison, the bill of rights would not have been enacted.120 He had delivered on his promise to his constituents. He had eliminated the remaining argument for the proposed second constitutional convention that he feared. And in the process, he had created what would eventually come to be the most influential list of basic rights and liberties in world history.

The ten amendments to the original Constitution were also amendments to Madison’s vision of a design that would protect minorities through nothing but its own ingenious structure.

Madison did not want the majority of U.S. debt to be held by foreign hands.

With this embrace of France on the grounds of gratitude, and outright dismissal of realpolitik, Jefferson intended to shape the foreign policy of the United States.

Madison was careful to say that the barrier to integration was white race prejudice, not African inferiority.

Jefferson’s return from revolutionary France occasions a debate with Madison over whether a society may justly bind future generations to debt or a constitution. Madison’s forceful “Yes” to both reflects not only the difference between the two friends, but also the closely related difference between their characters: Jefferson favors quick action and radical principles; Madison values slowness and caution.

Over the course of the past three years, he had, in essence, invented the Constitution.

had been the first person to theorize the vices of the confederation and the need for something new. He had brought delegates to Annapolis and then to Philadelphia, drafted the Virginia plan, and accepted compromise. He had justified the Constitution in the Federalist and led the fight for ratification. Finally, reversing his earlier position, he had drafted the bill of rights, which Congress had now sent to the states.

In terms of creativity and impact, these accomplishments were and remain unmatched in the history of constitutions. In the history of ideas and of st...

These amendments specified that the enumeration of rights in the Constitution “shall not be construed to deny or disparage others retained by the people,” and added that powers not delegated to the federal government nor prohibited to the states “are reserved to the states respectively, or to the people.”

The argument depended on the distinction between natural rights and those created by the laws of society. As a matter of natural right, Jefferson claimed, no child could be obligated to pay his father’s debts—only the laws of society could require that.

These were deep waters, but Madison did not hesitate to wade into them.

Majority rule was a convenience, not an immutable law of nature. To justify majority rule, one had to accept that everyone embraced the principle of majoritarianism. The only way to get to such a conclusion was by a heroic, fictional assumption of implied consent. Jefferson’s letter unsettled the assumption of consent—and thereby upset the apple cart of republicanism.

Madison had just participated in the most notable episode of self-conscious collective contract-making known to the modern world.

In writing and ratifying the Constitution, Americans had acted as though they actually did have the choice of consenting to the form of the new government. Having to an important degree dreamt up the entire process and participated centrally in it, Madison could not drop the idea of consent altogether.

“The spirit of philosophical legislation has not prevailed at all in some parts of America, and is by no means the fashion of this part, or of the present representative body.”

Madison believed that constitutional design was the single legitimate way to strengthen the national government. That was why he had devoted himself to the design, drafting, ratification, and amendment of the Constitution between 1786 and 1789.

noncommittal. He had been in France for a long time, he explained, and had “lost familiarity” with American affairs. What he knew of the assumption

Madison, Hamilton, and Jefferson all participated in drafting Washington’s address to Congress, delivered in writing on December 8, 1790, and setting forth his agenda for the new congressional term.101 Madison alone wrote the friendly reply from the House.102 Once again, as he had done in the first year of Washington’s presidency, Madison wrote brief replies from Washington to the House and Senate.

The true test of constitutionality lay in the practical effects of legislation. This was another way of saying that if a proposed law would destroy the core of republican government, it could not be constitutional.

The necessary and proper clause should be read narrowly, not broadly.

To Madison, Hamilton was gradually revealing his intention to subvert republican government.

Hamilton and the Federalists become, to Madison, enemies of the constitutional republic, bent on its subversion to monarchy and control by financial markets.

Madison was claiming that public opinion ensured the government’s stability and protected fundamental liberties. The written constitution would be of use in so far as the people treated it as a reference point and demanded that the existing government comply with it. Beyond that, no written document was necessary—and indeed Great Britain lacked a single formal, written constitution.

Besides pressing the idea of national unity, Washington wanted to say that “the established government…with the seeds of amendments engrafted in the Constitution” was “as near to perfection as any human institution ever approximated.”

Madison had delayed the process as long as he could, giving Hamilton the benefit of the doubt well after Jefferson and others had condemned his character.

Madison’s party was “the Republican party, as it may be termed.”100 It consisted of those who believed “in the doctrine that mankind are capable of governing themselves, and hating hereditary power as an insult to the reason and an outrage to the rights of man.”

Madison would be the leader of the Republicans in the House. He and Jefferson were entering a long winter of opposition—one that would last the better part of a decade.

As the instrument came from them, it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions.

The sitting vice president of the United States was proposing that the state legislatures should take action to block federal law from being enforced.

Madison had designed a form of government that operated on the individual citizen, not on the states. This had been, he well knew, his most brilliant and original accomplishment.