The Genius of James Madison

Of all of the political thinkers in human history, few—perhaps none—so effectively have combined a sophisticated understanding of political philosophy with the practical skills of a politician as James Madison, the short, shy, scholarly Virginian known today as the Father of the Constitution. More than any other member of the founding generation, Madison grasped abstract principles of political theory—in some cases revising or challenging them with his own keen insights. And he successfully incorporated those principles and his improvements into the fundamental laws of the United States. Yet only now are most Americans coming to appreciate his legacy.

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Madison was born in 1751 on a Virginia plantation that he later named Montpelier after a French city he never visited.¹ He was one of ten siblings, so although he never fathered children of his own, he was surrounded in old age by plenty of nieces and nephews. He was given the education expected for the upper class—Latin, Greek, classical history, religion, and mathematics. But in a break with tradition, he attended college not at William and Mary in Williamsburg, but at the College of New Jersey—later Princeton—275 miles north. He was an attentive student but apparently not tediously so. Unlike his later friend, Thomas Jefferson, who was said to have kept at his books so intensely that it annoyed his friends, Madison gained a reputation for a ribald sense of humor.

He was attuned, however, to the controversies of the day, and among his earliest letters is a commentary on the subject that would always be closest to his heart: religious freedom. In 1774, he described to a classmate the persecution of Baptists by the Anglican establishment of Virginia. “That diabolical, hell-conceived principle of persecution rages,” he complained. “This vexes me the most of anything whatever.”² And he hinted at what would become a theme of his later political thought: Persecution was more likely in a country where a single sect enjoyed monopoly power. “Union of religious sentiments begets a surprising confidence,” he wrote. “If the Church of England had been the established and general religion in all the northern colonies as it has been among us here [in Virginia] . . . it is clear to me that [intellectual] slavery and subjection might and would have been gradually insinuated.”³ . . .

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This observation was not original with Madison—others, notably French intellectuals such as Voltaire and Montesquieu, had observed that Great Britain enjoyed less religious turmoil and greater freedom, largely as a result of the fact that a diversity of religions was allowed there. This created a kind of competition whereby different churches tended to counteract each other’s ambitions, reducing the tendency toward persecution. “If there were only one religion in England, there would be danger of tyranny,” wrote Voltaire in the 1730s. “If there were two, they would cut each others’ [sic] throats; but there are thirty, and they live happily together in peace.”⁴

One of Madison’s teachers at Princeton was the venerable Presbyterian clergyman John Witherspoon, and some biographers have ascribed Madison’s precocious understanding of individual liberty to Witherspoon’s teaching. Madison certainly learned much from him. Not only did he attend Witherspoon’s lectures on moral philosophy, but he stayed on for an extra year after graduation to study directly under Witherspoon, becoming one of America’s first graduate students. But it is difficult to point to any specific element of Madison’s thought that originated with Witherspoon rather than thinkers such as Edward Coke, William Blackstone, David Hume, and others whose ideas Madison studied at the time. For example, Witherspoon devoted some time in his lectures to the importance of separation of powers—a subject of obvious relevance to the future Father of the Constitution—but Blackstone, Montesquieu, and John Locke already had emphasized the importance of the separation of powers in their own writings.

Some historians detect in Madison’s thought a skepticism toward human perfectibility that they believe he learned from Witherspoon. According to Garrett Ward Sheldon, for example, Madison’s later statement that “if men were angels, no government would be necessary”⁵ expressed an insight he learned from Witherspoon: “that all human beings are sinful and depraved,” and that “the lingering selfishness and evil in human beings commends a governmental structure that divides power.”⁶ But Sheldon’s effort to categorize Madison as an essentially Christian thinker is exceedingly unpersuasive. It was a shibboleth of Whig liberalism for a century before Madison’s birth that man’s inclination to error, corruption, or bias renders him unfit for tyrannical rule over others. And Madison’s writings show no evidence of any particularly “Christian perspective on ethics, politics, law (jurisprudence), and psychology.”⁷ Indeed, Madison was among the least Christian of the founding fathers.⁸ He was less prone than any of his contemporaries to invoke religion in his public statements; even his second inaugural, delivered in the midst of a war, made no direct reference to God at all.

Sheldon is not alone in seeking to depict Madison as more of a religious conservative than he actually was. The last two decades have seen a flowering of Madison scholarship, some of which endeavors to portray him as more moderate and more palatable to contemporary conservatives than his longtime collaborator, Thomas Jefferson. But the reality is that Madison was in some ways more radical than Jefferson—particularly on the issue of separation of church and state, where, as biographer Ralph Ketcham puts it, “Madison took an extreme, absolute, undeviating position throughout his life.”⁹ Whereas Jefferson sought to protect religious freedom at the state level, Madison fought also to include a power to veto state laws that infringed on freedom of conscience in the federal Constitution.¹⁰ The “Memorial and Remonstrance against Religious Assessments” that he wrote in the 1780s asserted a view of separation of church and state more complete than virtually any of his contemporaries held.¹¹ As a twenty-five-year-old junior legislator, he insisted that the elder statesman George Mason—among the most respected statesmen of his day—rephrase his draft of the Virginia Declaration of Rights to protect religious freedom more strongly, something the conflict-averse Jefferson probably would not have done. And whereas Jefferson strove to maintain friendships with such political adversaries as John Adams, Madison was more partisan and despised Adams and other conservatives of his era for their political positions.

Madison also viewed the Constitution as more protective of individual liberty than many of his contemporaries did. For example, he insisted that the First Amendment protected freedoms of speech and religion far more broadly than did the British common law. Most lawyers of his day believed that the Amendment went no further than enshrining the British rule against “prior restraints,” which allowed people to publish their views without first seeking government permission but left them liable to punishment afterward. Madison, by contrast, argued that it prohibited any form of punishment for expression¹²—a view still not wholly accepted by American lawyers. He also argued that the appointment of chaplains in the military or in Congress violated the Establishment Clause—again, a far stronger position than that endorsed by most lawyers today.¹³ Whatever his failings—particularly on the subject of slavery—Madison was in no sense a political moderate, still less a conservative.

Whereas Jefferson is widely regarded as the most radical of the founders, Madison was in some respects more radical. The two were political partners and friends for half a century; Jefferson considered Madison “the greatest man in the world,”¹⁴ and Madison regarded Jefferson as a “genius.”¹⁵ Yet, the two differed in important ways, and sometimes Madison took the more liberty-oriented view. Jefferson—a far better writer and a man of wide-ranging curiosity—was a more poetic personality, prone to speculation and brainstorming. Madison’s intellect was more focused on political subjects, and his wry realism toward the weaknesses of his fellow man sometimes led him to dampen Jefferson’s more enthusiastic outbursts. In 1832, six years after Jefferson’s death, he conveyed to a friend a sentiment that is equally enlightening about them both: “Allowances ought to be made for a habit in Mr. Jefferson as in others of great genius, of expressing in strong and round terms, impressions of the moment.”¹⁶ Madison certainly never did that.

Throughout their lives, Madison recognized and amplified Jefferson’s best qualities and helped moderate his worst. Perhaps the best example of their mutuality came in 1789, when Jefferson, serving as ambassador to France, wrote to his friend—who had just been elected to the first Congress—that “the earth belongs in usufruct to the living,” and therefore contemporary generations have no right to impose laws on future generations.¹⁷ “By the law of nature, one generation is to another as one independent nation to another.”¹⁸ Shouldn’t the Constitution be torn up every generation?—and with it, the national debt? Jefferson offered the idea only as an inspiration, and asked Madison to “turn [the] subject in your mind . . . and develop it with that perspicuity and cogent logic which is so peculiarly yours.”¹⁹

Madison replied that it was a “great” idea, “and suggests many interesting reflections to legislators,”²⁰ but was fraught with too many complications to be applied literally. First, if the Constitution were erased every generation, it would “become too mutable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to the most rational government in the most enlightened age.”²¹ Also, if the laws had a definite expiration date, it would be easy for debtors and criminals to game the system by timing loans or crimes to coincide with the nullification of the laws. And there was a countervailing moral consideration: It might be wrong to saddle one’s children with crushing debt, but many debts are “incurred for purposes which interest the unborn,” such as defending a country from invasion. Because posterity benefits from such expenditures, it is just to expect future generations to pay.

Most fundamentally, Jefferson’s suggestion seemed rooted in the common objection to the Lockean theory of social compact: that it is unjust to expect future generations to obey laws they had no hand in making. Locke had answered this objection by asserting the theory of tacit consent: that by not rebelling against the political institutions they find existing when they’re born, today’s citizens have tacitly consented to the legitimacy of those institutions. Madison embraced this admittedly imperfect answer. “It seems less impracticable to remedy, by wise plans of government, the dangerous operation of this [tacit consent] doctrine, than to find a remedy for the difficulties inseparable from the [idea that each generation should write its laws anew].”²²

The exchange is typical of Madison’s relationship with Jefferson.²³ Where the latter was drawn to revolutionary principles, boldly expressed in powerful language, Madison was keenly specific, attuned to the practical difficulties of applying ideals to real life. Yet his view was no less idealistic, nor more conservative. On the contrary, his recognition of the “salutary” effect of the “prejudices . . . which antiquity inspires” was in service of his focus on individual freedom. His reference to antiquity might seem at first to conflict with his statement in “Federalist No. 14,” that it was “the glory of the people of America,” that they had “not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense.” Future generations, he wrote, would celebrate the “manly spirit” with which the founding fathers had adopted “numerous innovations” into their governments. But Madison’s theme was consistent. Conscious always that culture and social mores were critical aspects of any nation’s ultimate protection for freedom, Madison was attuned—more, it appears, than Jefferson—to the need to inculcate in the people a reverence for individual rights, so as to counteract the dangers of democratic government.

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Madison’s partnership with Jefferson began in 1776, when Jefferson returned to Virginia after drafting the Declaration of Independence in Philadelphia. Jefferson was eager to delve into the work of creating the state’s new laws and began an immense project of revising and codifying Virginia’s statutes. He drafted bills to modernize the criminal law, create a modest system of public education, and end the government-backed religious establishment in Virginia. A few months later, Jefferson was made governor—a position he found excruciating. The new state constitution curtailed the governor’s powers—requiring that he govern in concert with a Council of State—a handicap at a time when Virginia was being invaded by British armies. The Council often could not get a quorum or respond to military emergencies in time. The upside was that Madison was appointed to the council, and the two immediately felt a kinship.

They began trying to get Jefferson’s legislative reforms enacted—a task that would consume nearly a decade. The most significant of these was Jefferson’s Bill for Establishing Religious Freedom, which announced that “Almighty god hath created the mind free” and that it was “sinful and tyrannical” to tax people to support religious beliefs they did not hold.²⁴ These phrases were dear to Madison’s heart, and in the coming years it would fall to him to oversee the adoption of the statute by the legislature. His principal antagonist in this effort—as would be again when he fought for ratification of the federal Constitution—was the state’s folk hero, the orator Patrick Henry.

Henry was everything Madison was not: brash, uncouth, intellectually lazy, scatterbrained, demagogic, and conservative. He had come to prominence in the colony as an advocate of religious liberty in the 1760s, but he did not believe in disestablishing the Anglican church, primarily because he thought that without taxpayer subsidies, churches would be unable to operate schools and care for the needy. When Henry proposed a Bill for Religious Assessments in 1785 to subsidize “the general diffusion of Christian knowledge,” on account of its “natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society,” Madison responded by drawing up a petition, called the Memorial and Remonstrance against Religious Assessments, which denounced the idea and eloquently made the case for separation of church and state. “Religion is wholly exempt from [the government’s] cognizance,” he asserted.²⁵ Henry’s proposed tax was a small one, but Madison argued, “it is proper to take alarm at the first experiment on our liberties.” If the government could grant a monopoly to one church, it could “establish with the same ease any other particular sect. . . . [T]he same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever.”²⁶

What was remarkable about this was that it went far beyond the older principle of “religious toleration” derived from English common law. British intellectuals boasted that under the toleration doctrine, religious dissenters faced less risk of persecution and censorship than in any other nation. That was true, but it was not enough for Madison, who perceived more clearly than many contemporaries the gulf between a government’s mere allowance of religious practices and a man’s right to his own conscience. That is why he had urged George Mason to eliminate the word “toleration” from his proposed state constitution and substitute the word “liberty,” to emphasize that religious freedom was not a privilege given to citizens by the government but a natural right the government had no legitimate authority to override. Nor, Madison believed, did it have any right to tax citizens to support religious institutions.

The Memorial and Remonstrance did not persuade Virginians generally, however, and only by clever legislative maneuvering did Madison defeat Henry’s assessment bill. Henry then proved equally adroit in resisting Jefferson’s Religious Freedom Bill. Not until 1786, by which time Jefferson had left for France, did Madison manage to get it approved. Throughout the process, Henry proved such an irritant that at one point Jefferson wrote to his friend, “What we have to do I think is devoutly to pray for [Henry’s] death.”²⁷ But Madison’s main conflict with Henry would come a year later, over the nature of the federal union.

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Elected to the Continental Congress in 1780, Madison was forced every day to deal with the weaknesses of the new Articles of Confederation and, particularly, the recalcitrance of states that refused to provide the tax money needed to maintain the country’s defenses. Less than a year after joining the Continental Congress, he proposed amending the Articles to empower Congress to penalize states that failed to comply. That and similar efforts were defeated, and he returned to the Virginia legislature in 1784 convinced that a new system was necessary. Two years later, he attended a convention in Annapolis, Maryland, the purpose of which was to amend the Articles. It failed, but the members agreed to a public statement urging Congress to try again. When that was approved, he immediately embarked on a course of study to prepare himself for the Constitutional Convention held in Philadelphia in May 1787.

Madison already was an exceptionally well-educated politician, and his research made him perhaps the world’s leading expert on constitutional design. He prepared a memorandum on ancient and modern confederacies that contrasted the strengths and weaknesses of the Lycian and Amphictyonic confederacies of ancient Greece as well as the contemporary Belgic league. Madison’s writings and speeches were bolstered by references to the Polish, Swiss, and British constitutions.²⁸ In another memo, titled Vices of the Political System of the U. States,²⁹ he listed problems attributable to the Articles of Confederation—everything from the failure of states to support the national treasury, or to respect international treaties, to the absence of any protection against states changing their own laws too frequently.

Madison showed up early in Philadelphia, determined to seize the opportunity to create law for a new nation and to get it right. Along with the other Virginia delegates, he prepared the Virginia Plan—a series of resolutions that he hoped would quickly commit the convention to a broad outline of his own design. And in general terms, the final result does resemble Madison’s scheme: He proposed a separation of powers with two branches of the legislature, with authority to legislate in all cases where state legislatures lacked power; to penalize states that failed to comply with federal demands; and to guarantee a republican form of government in every state. But many of his initial hopes were disappointed: He wanted members of the Senate to be chosen by the House of Representatives, and for Congress to have veto power over state laws. The final Constitution was the result of months of debate and bargaining, and when he was later deemed “father of the Constitution,” he demurred; the Constitution, he said, was “not . . . the offspring of a single brain” but “the work of many heads and many hands.”³⁰

Madison did prove to be the most active member of the convention. Aside from participating in virtually every significant debate, he also kept the most detailed record of its proceedings, having chosen a special seat up front where he could take down in shorthand the remarks of each speaker. But his leadership was far from unchallenged. Indeed, he was defeated on many major issues, most notably on the design of the Congress. He believed it should answer to the people of the United States rather than the state governments. Accordingly, he opposed the efforts—led by delegates from smaller states—to ensure that every state would have equal congressional representation regardless of population. When Roger Sherman and Oliver Ellsworth offered the “Connecticut Compromise”—by which the House of Representatives would be elected by the people, and the Senate would be chosen by state governments—he voted no. But the Compromise passed. This loss, plus the lack of an express veto over state laws, briefly led Madison to conclude that the Philadelphia convention had been a failure.³¹

The concern over state representation was more than a mere showdown over the power of small versus large states. It manifested what Madison considered the primary flaw at the heart of the Articles of Confederation—an error responsible in some way for nearly all of the Articles’ other failings: The Articles were authorized not by the people, but by the states—and they empowered Congress to pass laws that applied only to states, not citizens. “From this defect two evils result,” he wrote in his “Vices” memorandum. First, it was not always clear which was supreme: state law or the commands of the Congress. Second:

As far as the union of the states is to be regarded as a league of sovereign powers, and not as a political constitution by virtue of which they are become one sovereign power, so far it seems to follow from the doctrine of compacts, that a breach of any of the Articles of Confederation by any of the parties to it absolves the other parties from their respective obligations, and gives them a right if they choose to exert it, of dissolving the union altogether.³²

In other words, the Articles of Confederation worked like a treaty rather than a law, and that implied that the states were sovereigns. Yet that idea was dangerous. It threatened national breakup, and it was inconsistent with other crucial gains of the Revolution. The American people had declared independence together and were in the process of creating a government for a single, united nation that would still respect state autonomy. Only a federal system that derived its legitimacy from the American people, instead of from what Madison called “the dependent derivative authority of the states,”³³ could accomplish that goal. As Madison’s colleague Alexander Hamilton put the point in The Federalist a few months later, the Articles gave Congress power only to exercise “a general discretionary superintendence” over the states and did not enable Congress to pass actual laws.³⁴ The new Constitution would have to empower the federal government to legislate like a real government—and that meant it would have to be approved by the people of the United States, not by state legislatures.

That did not mean, of course, eradicating all state authority and creating a single, unified government—although Hamilton suggested that option at the convention. Rather, Madison and his colleagues devised a solution so clever that it has been aptly compared to the splitting of the atom.³⁵ The American people would be asked to divide their sovereign authority, delegating most of it to states to govern ordinary day-to-day affairs, but delegating a specified list of powers to the federal government—powers relating to national and international subjects. This divided-sovereignty system would prove to be the most ingenious of the Constitution’s innovations. And Madison was resolute that it was the only acceptable cure for the flaws in the American political scheme.

After the convention finished its work, and he was elected to a special ratification convention to persuade Virginians to approve the document, he found himself once more opposed to Patrick Henry. In a passionate and disorganized speech, Henry immediately assailed the idea of divided sovereignty. “Who authorized [the convention delegates] to speak the language of, We, the People, instead of We, the States,?” he demanded, summoning all of his impressive rhetorical skill. “States are the characteristics, and the soul of a confederation. If the States be not the agents of this compact, it must be one great consolidated National Government.”³⁶ Invoking the nightmare of a national authority that would erase state borders and enslave the American people, Henry’s words proved so powerful that one observer is said to have checked his wrists to ensure he was not already in chains.³⁷

The patient and bookish Madison did not try to compete with such theatrics. According to the secretary taking notes, “he spoke so low” that he “could not be heard distinctly.”³⁸ Wearing his habitual all-black suit, he stood with one hand in his pocket and answered point by point. The federal government would, indeed, derive its authority from the people of the United States, though not in a single national vote. “This government is not completely consolidated,” he explained. “Who are parties to it? The people—but not the people as composing one great body—but the people as composing thirteen sovereignties. . . . Should all the states adopt it, it will then be a government established by the thirteen states of America, not through the intervention of the legislatures, but by the people at large.”³⁹ This “partly federal, partly national” system would preserve state power where appropriate but provide for national authority where necessary.⁴⁰

At a time when opponents of the Constitution, such as Henry, appeared to be making a fetish of “state’s rights,” Madison maintained that the federal government was justified in barring states from violating the rights of individuals. Thus in “Federalist No. 45”—which he wrote (under a pseudonym) while he was dueling with Henry in Virginia—Madison put concerns about state authority into proper perspective:

Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the . . . States . . . might enjoy a certain extent of power, and be arrayed with certain dignities? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape?

Madison’s answer was an emphatic no:

[T]he public good, the real welfare of the great body of the people, is the supreme object to be pursued; and . . . no form of government whatever has any other value than as it may be fitted for the attainment of this object. . . . As far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.⁴¹

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The long-term implications of Madison’s view of state authority were made clear in a letter he dashed off to Hamilton during the debates over ratification: “The Constitution,” he wrote, “requires an adoption in toto, and for ever.”⁴² The union of the states was permanent, and only a constitutional amendment or a revolution could justify a state leaving. A breakup of the union would remain Madison’s nightmare scenario for the rest of his life. What he could not have known was that fifty years later, his own name and that of Jefferson would be invoked by southern leaders who thought their writings justified secession.

The resulting controversy had its roots in the Alien and Sedition Acts of 1798, federal laws that restricted free speech rights and gave President John Adams power to jail dissidents and arbitrarily expel foreigners from the country. Jefferson, now vice president, felt unable to oppose the laws openly, but Madison persuaded him to work behind the scenes to draft resolutions to be passed by the Virginia and Kentucky legislatures. Jefferson’s Kentucky Resolutions, written anonymously, asserted that “every state has a natural right . . . to nullify of their own authority all [unconstitutional] assumptions of power” by Congress.⁴³ He further argued—contrary to Madison’s statements during the ratification debate—that the Constitution was a “compact” to which “each state acceded as a state,” so that every state “has an equal right to judge for itself” whether Congress had exceeded its powers.⁴⁴

Madison cringed when he read those words. “Have you ever considered thoroughly the distinction between the power of the state and that of the [state] legislature, on questions relating to the federal [Constitution?],” he asked Jefferson. “On the supposition that the former is clearly the ultimate judge of infractions [of the Constitution], it does not follow that the latter is the legitimate organ [to act in response], especially as a [state ratification] convention was the organ by which the compact was made.”⁴⁵ For a state legislature to claim authority to pass laws deeming federal statutes unenforceable was antithetical to the idea that the Constitution was law, not a treaty. Madison’s own Virginia Resolutions, therefore, were worded more cautiously, referring only to a state’s authority to declare that in its opinion, a federal law was unconstitutional—and making no claim of power to bar enforcement of that law.

Jefferson made no reply, but three decades later, when South Carolina Senator John C. Calhoun dusted off the Kentucky and Virginia Resolutions as precedent for his theory of nullification and secession, Madison was mortified. He sought to refute Calhoun and exonerate himself and Jefferson from the charge of having set a precedent for such ideas.

Calhoun announced his theory in 1831—five years after Jefferson’s death—in response to a tariff that southern radicals viewed as unfairly benefiting northern manufacturing interests. They thought the tariff unconstitutional, and Calhoun’s Fort Hill Address gave them a theoretical justification for deeming it unlawful. The Constitution, Calhoun argued, was “a compact, to which each State is a party,” not a government deriving its powers “from all of the people forming one aggregate political community.” And because states are “parties” to the Constitution, they “have a right to judge of its infractions” just as sovereign nations in a treaty may. Thus, “in case of a deliberate, palpable, and dangerous exercise of power not delegated, they have the right, in the last resort, to use the language of the Virginia Resolutions, ‘to interpose for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them.’”⁴⁶

The elderly Madison blanched and fired off a series of long letters and essays to friends across the country disavowing the nullification theory—particularly its basic premise that the Constitution essentially was a treaty among sovereign states. The Constitution, he insisted “was formed, not by the governments of the component states,” but by the people—that is, by “the same authority which formed the state constitutions.” Because the federal Constitution derived its legitimacy “from the same source as the constitutions of the states,” it consequently had as much legitimacy as a state’s own constitution, and its sovereign power “within its prescribed sphere” was just as authoritative “as the constitutions of the states are within their respective spheres.” In other words, the Constitution was as much a law as anything a state might legislate. And that also meant that the Constitution “cannot be altered or annulled at the will of the states individually, as the constitution of a state may be.”⁴⁷ Madison thought it was “truly astonishing” that Calhoun would argue that the Constitution—which had been ratified and followed as the nation’s fundamental law for decades—“is yet no Constitution, but a treaty, a league, or at most a confederacy among nations, as independent and sovereign, in relation to each other, as before the charter which calls itself a Constitution was formed.”⁴⁸ State legislatures were free to denounce an unjust law, of course, but the constitutionality of laws must be decided by the Supreme Court, not by each state acting on its own. And if that failed, then “the final resort within the purview of the Constitution lies in an amendment.”⁴⁹

Although such debates might seem abstract, Madison was alert to the enormous practical consequences of Calhoun’s theory. After his death, a brief note was found among his papers reiterating the importance of this principle and slyly portraying Calhoun as a demonic messenger whose ideas portended doom for the nation: The advice “deepest in my convictions” that Madison would leave to future generations “is that the union of the states be cherished and perpetuated. Let the open enemy to it be regarded as a Pandora with her box opened; and the disguised one, as the Serpent creeping with his deadly wiles into paradise.”⁵⁰ His warning would prove prescient; thirty years later, southern leaders would use Calhoun’s theory to justify secession and Civil War.

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Madison’s metaphor of the United States as “paradise” was ill-chosen in one major respect: Americans at the time engaged in the barbaric practice of slavery. And although Madison, like most of his contemporaries, loathed slavery, he was less willing than some of them to take any public stand against it.

He owned at least 118 human beings when he came of age, but he wrote to a friend that he wished “to depend as little as possible on the labor of slaves,”⁵¹ and in 1785 he supported a bill Jefferson wrote that sought to implement gradual abolition.⁵² At the Constitutional Convention, he denounced slavery as irrational and unjust: “We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man.”⁵³ Political freedom depended on equality among citizens, but history showed that factions and interest groups always jostled for power and would even enslave their innocent rivals. This proved “republican theory . . . fallacious” in the absence of checks and balances.⁵⁴ Toward the end of the convention, when delegates clashed over a clause that entitled Congress to ban the slave trade, Madison remained quiet, except to say that he “thought it wrong to admit in the Constitution the idea that there could be property in men.”⁵⁵ The final document would, indeed, avoid using the words “slave” or “slavery” and refer instead to enslaved people as “persons bound to service.”

Among the most intriguing insights into Madison’s cognitive dissonance on the slavery question can be found in what historian William Lee Miller calls “the peculiar Federalist Paper,”⁵⁶ No. 54, which explains and supports the infamous clause whereby slaves were counted as three-fifths of a person for purposes of Congressional apportionment. The peculiarity of No.54 comes from the fact that unlike the other essays, it appears largely in the form of a monologue by a fictional character. The Federalist was written for New York newspapers, and in this essay, Madison, a Virginian, is pretending to be the New Yorker “Publius.” Yet because his readers are unsympathetic to slavery, Madison accomplishes his task by imagining in print how a southerner “might” justify the three-fifths provision. In other words, this Federalist paper presents us with a southerner (Madison) pretending to be a northerner (Publius) pretending to be a southerner (the unnamed narrator of the essay).

The article begins by acknowledging the immorality of slavery—an institution that “only under the pretext [of] the laws” has “transformed” human beings into property. “If the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the [country’s] other inhabitants.” Yet the Constitution was designed to allow states “the right of choosing” how their congressional representation should work, which meant that the federal government should remain agnostic regarding “the policy of particular states towards their own inhabitants.” Thus Publius—admitting that “the case of slaves” is “in truth a peculiar one”—concludes that the Constitution’s authors were forced into a “compromising expedient” between counting slaves as persons entitled to representation (which antislavery forces did not want, as it would increase the power of the masters) or as property entitled to no representation (which proslavery forces would not abide, as it would deprive them of congressional influence). Madison admitted from behind his double disguise that this justification for the three-fifths expedient “may appear to be a little strained,” but “on the whole” it was the best bargain the convention could have struck.⁵⁷

“The most revealing aspect of this paper,” Miller concludes, “is this distancing rhetorical device.”⁵⁸ It indicates how Madison, who in private was clear-eyed about evils of slavery, laid aside his personal scruples in public debate in order to achieve what he believed was the best option within reach.

Yet as time wore on, Madison’s political realism increasingly diverged from the demands of justice. Once in Congress, he took few meaningful steps toward limiting or ending slavery. In 1791, when a Virginia Quaker sent him an antislavery petition that he wanted Madison to introduce on the floor, Madison declined. It would “giv[e] a public wound” to “an interest” in which his constituents “set so great a value” and “likely do harm rather than good.”⁵⁹ “A general emancipation,” he thought, “ought to be 1. gradual, 2. equitable and satisfactory to the individuals immediately concerned, 3. consistent with the existing and durable prejudices of the nation.”⁶⁰ But these conditions—particularly the third—simply were not attainable, and never would be unless those in leadership positions took open stands to change those prejudices. Madison, who could not have failed to know this, was unwilling to take that step.

On the contrary, by 1821, he was willing to write a private memorandum about slavery that is as shocking in its moral deafness as his earlier comments are in their candor. Written in the wake of the Missouri Compromise, the peculiar parable “Jonathan Bull and Mary Bull”⁶¹ portrays a wealthy married couple: John, representing the North, and Mary, representing the South. Mary is born with a birth defect: her left arm is stained black on account of “a certain African dye.” Although John knew of the disorder when he married her, he slowly becomes disgusted at his wife’s appearance and gets so “wrought up” that he at last “[breaks] out into the grossest taunts on [Mary] for her misfortune.” When he demands that she “either tear off the skin from the flesh or cut off the limb,” Mary is “stunned.” She responds in an indignant speech in which she reminds him that “the fatal African dye” also had affected him once, but he had been fortunate enough to remove it “by certain abrasions.” And now “you abuse me as if I had brought the misfortune on myself.”

The story ends with a reconciliation and “increased affection and confidence between the parties.” It suggests no solution to the problem of slavery. Instead, it portrays slavery as a sort of disease suffered by whites—a “misfortune” for which Mary is blameless and which she has no power to cure—not as the unconscionable oppression of black Americans. Today, Madison’s tale teaches a different lesson than its author intended; it is one of the earliest examples of the self-pitying tendency of southern slaveowners who in the mid-19th century came to view themselves not as tyrants but as persecuted victims.

Thomas Jefferson has been criticized of late for hypocrisy on the issue of slavery; Madison deserves even greater condemnation on this score. As the keenest political thinker of the era, he should have recognized that gradual and peaceful eradication of slavery had no chance unless leaders of national prestige—such as himself—immediately took a public stand against “the existing and durable prejudices of the nation.” But unlike Jefferson—who more than once risked his reputation by publicly denouncing slavery—Madison undertook no significant public effort against it.⁶² In the 1830s especially, retired, venerated, and commanding a large audience for his writings, he could have done so. Instead, as he had throughout his career, he stayed publicly silent about what he privately knew was a great evil.

* * *

If divided sovereignty was his greatest achievement as a constitutionalist, Madison’s most important contribution as a political theorist was his argument that republican government was more likely to succeed in a large country than a small one. Montesquieu, the most celebrated political theorist in that era, had argued the opposite: Republicanism required a small society where citizens could know one another; for a large nation, monarchy was necessary.

Drawing on his earlier observations about the balance of power among churches, Madison replied that a larger society would actually make a republic safer for individual citizens, because it would encompass more private-interest groups (“factions”) who, in their efforts to exploit government power to their own advantage, would tend to cancel each other out, leaving individuals free to pursue happiness. In “the extended republic of the United States,” a “great variety of interests, parties and sects” would prevent “a coalition of the majority of the whole society” from coming together in ways that might harm the minority or the individual.⁶³ Smaller republics, he argued, were actually more prone to oppression and bullying than large ones, because

the smaller the number of individuals composing a majority [of the whole society], and the smaller the [location] within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority . . . will have a common motive to invade the rights of other citizens . . . [and] more difficult for [them] . . . to act in unison with each other.⁶⁴

There was always a risk of oppression in any form of government, of course, because factions would seek to benefit themselves at the expense of their rivals. This problem typically had been seen as justifying monarchy, because the king stood outside the realm of rivalry between factions and could use his authority to restrict their excesses. But Madison considered this cure “worse than the disease,” because it eradicated liberty and because the king was just as likely to participate in factional conflict or even to oppress all factions for his own benefit.⁶⁵ The only other solution was a constitution of limited powers, with a system of checks and balances by which “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.”⁶⁶ This was “a republican remedy for the diseases most incident to republican government”⁶⁷—and a direct refutation of Montesquieu’s parochialism.

Madison consistently recognized that the essential goal of the Constitution was not to expand democratic authority or give voice to the “will of the people”—an idea he regarded skeptically⁶⁸—but to establish a political system that would enable the majority to accomplish its legitimate goals while protecting minorities against oppression. It might seem strange, then, that Madison initially was opposed to adding a bill of rights. But he worried that such a list of rights would amount only to empty promises. “I have seen the [Virginia] bill of rights violated in every instance where it has been opposed to a popular current,” he told Jefferson when pressed on the matter. The real benefit in the Constitution lay in its system of dividing and checking government authority, not in merely articulating rights. “Wherever the real power in a government lies, there is the danger of oppression.” In the United States:

The real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of government contrary to the sense of its constituents, but from acts in which the government is the mere instrument of the major number of the constituents.”

Thus, a bill of rights probably would do no good.⁶⁹

However, he changed his mind on the issue, reasoning that a bill of rights could be designed in a way that would do no harm, and it might at least have a healthy effect on social mores.⁷⁰ Thus he drafted a set of constitutional amendments and fought to get them passed. (His principal opponent in that effort again was Patrick Henry, who hoped that by blocking the amendment effort, he could get a second shot at having the Constitution rewritten.)⁷¹ Yet he never wavered in his belief that the Constitution’s most meaningful protections for freedom lay not in the amendments but in the architecture. It was not a perfect system, of course, and he recognized that there always would be cases in which factions would exploit politics for private gain, or even delude the oppressed into thinking their own mistreatment justified. Late in life, he lamented to Jefferson that the Constitution could never entirely eliminate factional abuses, but he still thought it better than any alternative yet devised. “The will of the nation being omnipotent for right, is so for wrong also,” he wrote. “The will of the nation being in the majority, the minority must submit to that danger of oppression as an evil infinitely less than the danger . . . from a will independent of [the nation].”⁷²

* * *

James Madison’s terms as president were less successful than his service in the state and federal legislatures. Yet he presided over one of the most important and traumatic incidents in the country’s early life: the War of 1812, which resulted in little more than stalemate with Britain but which had at least two important consequences. First, military victories on the Great Lakes and at New Orleans inspired the nation with a sense of strength that seemed to vindicate the nation’s independence. Second, Madison’s administration prosecuted the war without any significant infringement on civil liberties. Whatever military blunders occurred—and the burning of the White House on account of poor military leadership is at least partly attributable to Madison’s feebleness as commander in chief⁷³—the nation celebrated the fact that there had been no treason trials, no censorship, and no effort to arrest the many outspoken opponents of the war. To this day, no other wartime administration can boast a similar record. “The war was just in its origin and necessary and noble in its objects,” the president told his audience at his second inauguration in March 1813, and “we can reflect with a proud satisfaction that in carrying it on no principle of justice or honor, no usage of civilized nations, no precept of courtesy or humanity, have been infringed.”⁷⁴ It is for this reason, as historian Gordon Wood has observed, that more cities are named after James Madison than after any other president.⁷⁵

Yet when he left office in 1817, Madison was far from retiring.⁷⁶ Despite lifelong illness—probably epilepsy—he lived longer than any other founding father and devoted much of his later life to political and philanthropic work. In addition to his indefatigable writing against advocates of nullification, he took an active role helping organize Jefferson’s University of Virginia, prepared for publication his notes on the Constitutional Convention—which he had kept confidential while the other delegates lived—and, most remarkably, served as a delegate to the 1829 Virginia Constitutional Convention.

Madison’s death was characteristically calm and reflective. On June 28, 1836, his slave Paul Jennings brought him breakfast as his niece Nelly Willis sat beside him. After taking a bite, Madison stopped, and Nelly asked him what was wrong. “Nothing but a change of mind, my dear,” he answered—and promptly died.

Although Madison always has been celebrated for his work on the Constitution, the true scope of his achievements has never been fully appreciated, and his political career has long been overshadowed by that of his collaborator, Jefferson. As late as 2000, a student seeking information about Madison was more or less confined to Irving Brant’s six-volume biography, published in the 1940s; to Ralph Ketcham’s James Madison: A Biography (1971); or Robert Rutland’s James Madison: The Founding Father (1987). Virtually no single-volume collection of Madison’s writings was available.⁷⁷ Brant’s biography is deeply flawed. An outspoken New Dealer, he devoted his energies to proving that Madison had a similarly expansive notion of the scope of federal power when he helped write the Constitution and that his clear and emphatic statements to the contrary later in life were proof of a “split personality.” In other words, Madison abandoned his principles under Jefferson’s influence. Beginning around 2000, however, a stream of new biographies, anthologies, and analyses of Madison’s thought have appeared, amounting to a renaissance of Madison scholarship,⁷⁸ which among other things has refuted the “two Madisons” theory.⁷⁹

This is a welcome and overdue development. America’s founding fathers were a team of brilliant, devoted men who shared a belief in individual liberty and who sought—however imperfectly—to found a government that would protect individual rights not just against the obvious forms of oppression they had known as subjects of the British monarch, but also against the dangers of mob rule that had doomed previous democratic governments. More than any of his colleagues, James Madison forged the tools and marshaled the principles to accomplish that task—and this achievement justifies the appellation he was too modest to accept: Father of the Constitution.

About Timothy Sandefur

Timothy Sandefur holds the Duncan Chair in Constitutional Government at the Goldwater Institute and is a contributing editor of The Objective Standard.

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