Current Book Project:
Redeeming the Notes
A Reappraisal of Madison’s Notes of the Constitutional Convention
James Madison’s Notes of the Constitutional Convention have been the premier source for understanding the formation of the Constitution since they were published in 1840. Although some skeptics, including a few scholars, have questioned the accuracy and impartiality of the Notes, most scholars have deemed them a reasonably reliable set of records. Given the standards of eighteenth-century transcriptions and the special burdens under which Madison labored (since he was both an active participant and a scribe of the proceedings, his own speeches had to be recreated from memory after the fact), Madison’s more than 400-page account of the summer’s proceedings has long been considered a remarkable achievement. In 2015, however, a book was published that shattered the conventional wisdom about the Notes. Mary Sarah Bilder’s Madison’s Hand: Revising the Constitutional Convention contends that the Notes were not originally intended to be read by posterity. Instead, they were originally intended as Madison’s private diary, a diary he meant to share only with Thomas Jefferson. Consequently, Bilder claims that Madison never even attempted to write the Notes as a complete and impartial account. She further contends that Madison later revised pages to make them even more biased in his own favor and, as a consequence, even further detached from the actual events that summer. If she is correct, then the only existing set of records to offer a fairly complete account of the formation of the Constitution is in fact a fraud.
In light of the conclusions reached in Madison’s Hand, a new appraisal of the Notes is now needed. Most of the conclusions found in the 2015 book are not actually based on compelling evidence; indeed, in many cases conflicting evidence is ignored by the author; and in some cases, the evidence offered in support of the author’s thesis is actually a misrepresentation of the facts. Although the book is flawed in its scholarship and biased in its conclusions, Madison’s Hand is currently the only major work of scholarship to focus on Madison’s Notes as its primary subject. What is now needed is a balanced and thorough reappraisal of Madison’s Notes. Redeeming the Notes will demonstrate what has long been believed about Madison’s achievement: while by no means a perfect work or a verbatim account, his Notes of the Constitutional Convention are a reasonably reliable representation of the debates that led up to the formation of the Constitution.
One Woman’s Quest to Set the Record Straight
In a perfect world, James Madison’s record would need no defense. Called by his contemporaries, “The Father of the Constitution,” he did more to establish and defend America’s constitutional order than any other single person. He spearheaded the drive to convene the Convention of 1787 that would draft what would become the longest lasting written Constitution the world had ever known; he was one of the most active and adept speakers at that Convention; and he even wrote the best set of records we have of those debates. After the Constitution was ratified (and he was no insignificant advocate during its ratification), Madison proposed the series of amendments that would later be adopted as our Bill of Rights. As a coup de grace, the political writings and speeches he produced throughout his life have offered to the world the first and best theoretical exposition of the America’s constitutional tradition.
Unfortunately, the process of time and the accretions of some flawed scholarship have tarnished what would otherwise be an exemplary reputation. In some cases, important aspects of Madison’s thinking have simply been forgotten, because they have been overshadowed by later scholarly preoccupations. These preoccupations, while often genuinely a part of Madison’s political thought, are misleading when seen in isolation and when divorced from the whole context of his thinking. In other cases, Madison has been falsely accused of serious transgressions by scholars who write more like overzealous prosecutors than impartial seekers of the truth.
Defending Madison will not simply attempt to present the opposite picture of any faulty scholarship that has gone before it. Madison made some errors of judgment, and an open acknowledgment of them does not detract from his remarkable achievements. There is nothing to be gained by replacing calumny with hagiography; instead, the proposed book seeks to set the record straight: to portray the whole man, warts and all, and to explore the intricate and nuanced complexity of his thinking. It will attempt to correct where there have been errors and supplement where there have been half-truths. Six chapters will explode six myths about James Madison: whether the errors have been committed through misunderstanding, partial representations, or simply false accusations. These myths will be replaced by an authentic portrayal of James Madison: the man, his ideas, and his ideals.
Madison’s Notes of the Constitutional Convention
When Historians Spurn their Benefactors
One of Madison’s most valuable contributions to students of the American Constitution is the set of Notes he drafted which chronicled the debates at the Constitutional Convention of 1787. From the time that they were published posthumously in 1840, Madison’s Notes became the gold standard for understanding how the Constitution was formed. There have always been detractors, however, who accused Madison of revising his Notes to serve his own political agenda. It was not until 2015 that an entire monograph was published alleging to show proof positive that Madison “doctored” his notes to serve his own political purposes. Mary Sarah Bilder’s book, Madison’s Hand: Revising the Constitutional Convention, accuses Madison of omitting important and relevant details, deliberately misrepresenting what he knew to be the historical record, and sometimes inserting speeches only because he wished them to have been spoken, not because he knew them to have been spoken, when constructing his Notes on the Constitutional Convention. In making her case against Madison, Bilder omits important and relevant details, misrepresents the historical record, and frequently speculates about scenarios that she might wish, but certainly cannot prove, to be true. What distinguishes the respective accusations is that the charges directed against the author of Madison’s Hand can be proven by comparing the words in the book to the historical record. Bilder, on the other hand, is never able to prove her allegations against Madison’s Notes in the same way.
This chapter, “When Historians Spurn their Benefactors,” will expose the faulty scholarship purporting to prove that Madison’s Notes were later doctored by him. In its place, it will reestablish what most scholars have believed since the Notes were first published: while they are imperfect and by no means an exact transcript of the debates, they are an invaluable summary of the shifting positions that each delegate expressed about the various parts of the emerging Constitution. Madison’s Notes were written for the reasons he gave: to leave posterity with “an authentic exhibition of the objects, the opinions & the reasonings from which the new System of Govt was to receive its peculiar structure & organization,” and all the available evidence suggests that every alteration Madison made to his Notes was made for the purpose of rendering them more complete and accurate.
Madison’s Antislavery Constitution
While only rarely singled out, James Madison has been implicated with the rest of the Framers of the Constitution in the generic accusation, first voiced by William Lloyd Garrison, that the Constitution they constructed was “a covenant with death and an agreement with Hell.” According to this narrative, the Framers were indifferent or worse to the evils of slavery, and they sought important protections for the South’s peculiar institution in the Constitution in order to ensure slavery’s permanence in the new nation. One recent book has even denied that Madison ever spoke out against the slave trade at the Convention, in spite of the forceful denunciations found in his records of the debates, claiming instead that those speeches were later interpolations inserted only after he saw which way the wind was blowing. The scholarly trend of condemning the Founders for their positions on slavery has become so commonplace that Alan Gibson has dubbed the cohort “the prosecutors” (which in turn has provoked a reactionary brand of “vindicator” scholarship).
There is no such thing as a uniform theory—“The Framers’ intentions”—when it comes to interpreting the Constitution’s approach to slavery; each delegate was unique, and on no single subject was there more fundamental disagreement within the Convention than on the subject of slavery. A thorough and close examination of Madison’s unique approach to the Constitution, however—including provisions he wanted to see in the plan but failed to achieve, the arguments he employed to defend certain clauses of the Constitution, and his occasionally singular interpretation of the Constitution’s slavery provisions—demonstrates that he intended the Constitution to be read in a far more antislavery way than has hitherto been appreciated. Madison was by no means an abolitionist, if the term is understood to mean that class of activists who pursued abolition at any cost and for whom that goal was their first priority. But Madison was a shrewd political thinker, and his unique interpretative approach to the Constitution demonstrates that he intended it to be a vehicle for the ultimate extinction of slavery.
Madison’s Guide to Constitutional Interpretation
There is No “James Madison Problem”
Many scholars have been puzzled when trying to reconcile Madison’s supposedly nationalistic stance prior to and within the Constitutional Convention with his later insistence on limited government and his defense of state prerogatives in the 1790s. Gordon Wood has gone so far as to bestow an honorific on the befuddlement, which he dubs “The James Madison Problem.” Some have tried to resolve the puzzle by explaining why Madison’s position changed so radically; others have argued that the puzzle only arises because Madison’s earlier position has been exaggerated and misunderstood. There is some merit, because there is some truth, to both of these approaches, yet there is another facet of Madison’s thinking that also resolves the apparent puzzle, and it deserves to be highlighted with greater clarity. Madison believed that the Constitution was the product of majority will; and, as such, the only authentic interpretation of the Constitution was the one that corresponded to the way the American people understood it when it was ratified. Madison was always faithful to what believed to be the authentic interpretation of the Constitution, even when that interpretation contradicted what he had originally wanted to see in the Constitution while it was still under debate.
The first part of the chapter will make the case that Madison’s apparent contradictions between the 1780s and 1790s can best be explained by his deeper commitment to defending the Constitution as the most authentic expression of popular will. It will then examine more closely Madison’s explicit approach to constitutional interpretation: both by examining what he said about interpreting the Constitution and also by examining the process by which he did interpret certain passages within the Constitution. The final part of the chapter will be the most original. It will reexamine the “Council of Revision” that Madison had initially tried to incorporate into the Constitution, whereby a certain number of judges would have joined the president in exercising a qualified veto power over congressional bills before they were passed into law.
Madison had originally favored the Council because he thought it would improve federal legislation. Later, however, he came to believe that the Council might have obviated some of the structural flaws in the Constitution: namely, those arising from a judiciary that had been given too much authority over the other branches and which had exercised too much latitude when interpreting the Constitution’s meaning. In short, Madison believed that the Council might have been an opportunity for the Court to exercise judicial review prior to the passage of legislation; that it could have been used instead of a power to void law after its passage; and, most important, that any judicial rejection of legislation could be overturned by a supermajority in Congress. This constitutional alternative would have codified two essential principles for Madison: (1) that each branch of government has a role to play in interpreting the Constitution; and (2) that unelected judges should not exercise final authority over the representative branch. Given the controversies over judicial review and the politicization of the courts that have become endemic since the dawn of the twentieth century, Madison’s criticism and regrets deserve closer scrutiny today.
James Madison’s Constitution: In Order to Establish of Justice
Charles Beard has cast a long shadow on the scholarship of America’s Founding. Even though his most radical claims have been debunked, many historians today still have a difficult time transcending the reductionist paradigm of equating all politics with the pursuit of economic interests. Hence Woody Holton has recently argued that the repeated cries for justice uttered by the Founding generation had no meaning beyond the protection of class interests, and particularly the interests of the wealthy class. And whereas Gordon Wood has faithfully portrayed the Founders’ arguments about justice, and he does justice to their sincerity, he is careful to treat these claims as specific to a particular time, place, and, especially, a particularly elitist class of men. It is rare for scholars to take James Madison’s claims of justice seriously, and none have yet attempted a systematic examination of the meaning of the word for Madison and the doggedness with which he, personally, pursued justice as a political goal.
Madison never wrote a treatise on justice, comparable to Book V of Aristotle’s Nicomachean Ethics, so there is no one place to discover his comprehensive views on the subject. Instead, his understanding of justice must be inferred from his individual judgments about particular issues. Nonetheless, by examining those cases and drawing those inferences, it becomes clear that Madison’s interpretation of justice, when viewed as an end of government, was remarkably robust and complex. And far from being confined to securing economic interests generally—and far less was it narrowly confined to protecting a specific economic class—the meaning of justice for Madison was roughly consonant with the classical meaning of justice which is found in Aristotle and elsewhere. A lecture based on this paper, which was delivered as part of the 2015 Constitution Day celebration for the James Madison Program at Princeton, can be seen here.
James Madison’s Congress: In Pursuit of Prudence
Asked to explain just one part of James Madison’s political thought, most people would say that he sought to prevent majority faction (perhaps adding that he sought to do so through extending the sphere of republican government). Madison encouraged numerous constitutional devices to stymie the tyranny of the majority: by multiplying the number of competing interests in a large republic he would make majority faction less likely; by instituting checks between the separate branches of government he hoped to make ambition counteract ambition by tying the interest of the man to the constitutional rights of the place; and when all other safeguards in the federal Constitution failed, he even expected state governments to “interpose” their authority against the encroachments of Congress. These elaborate political contrivances of checks and balances—these “inventions of prudence”—are an essential part of Madison’s thinking about politics, but seen in isolation they become misleading. Taken alone, James Madison becomes “the father of government gridlock”—the mastermind behind obstructing legislation rather than crafting good legislation.
There is another side to Madison’s thinking about the legislative process, however, whereby his “inventions of prudence” yields … prudent legislation. In Madison’s ideal legislature, each of the two branches contributes unique qualities that the other one cannot contribute because it does not possess the requisite qualifications. Madison found it unlikely that all of the attributes of practical wisdom could found in a single legislator, especially in a large commercial republic; therefore, he hoped to design the two legislative bodies in such a way that each would contribute half of the necessary equation. The Lower House would collectively contribute particular knowledge about the needs of each part of the country and fidelity to the interests of the majority. The Upper House, by contrast, would contribute wisdom, foresight, and at times the necessary fortitude to withstand the popular tide. Each House would possess its own virtues and its own limitations, and political prudence could be achieved only by combining the advantages of both. A reminder of Madison’s vision for prudent legislation is a welcom corrective in today’s climate of deliberate obstructionism.
James Madison’s Continuing Relevance
When is a Republic No Longer a Republic?
Perhaps the greatest misperception about James Madison is that he is no longer relevant today. Indeed, many of the individual slurs directed against him—that he was indifferent to the evils of slavery or that he sought only to protect the property of the wealthy—are part of a larger narrative that seeks to discredit the integrity and wisdom of the generation that founded the country. The final chapter will explore the sort of advice Madison might have for our current generation. In particular, it will look closer at the conditions that Madison deemed requisite for popular forms of government.
Today, advocates for greater democracy generally favor measures that are designed to break down barriers to suffrage and create easier access to the polls. They want to overturn any disqualifications for voting; institute same-day voter registration; ban voter-ID requirements; and broaden access to the polls through ever-expanding early voting and mail-in ballot schemes. Madison was certainly in favor of a broad basis for suffrage, especially toward the end of his life, but he might wonder whether today’s defenders of democracy were straining at gnats while swallowing camels.
In the first place, Madison might be concerned that Congress was becoming increasingly less representative at the same time that it was becoming increasingly more unbounded in the exercise of its power. When Antifederalists charged that a single representative for every 30,000 people was insufficiently representative, Madison answered that the ratio was safe because federal powers were so limited. Madison believed as well as any Antifederalist that the power to interfere with individual rights—the lives, liberty and property of citizens—should primarily be exercised by state legislators, because federal districts were too large for congressmen to represent the particular interests of their constituents adequately. Even Madison, the chief advocate for the extended sphere of republican governments, believed that that sphere had its outer limits. Now that congressional districts are more than twenty times the size that they were in Madison’s day, Americans might want to reexamine the question that Madison’s initial defense implied: when does a republican form of government cease to be truly republican through sheer size?
In the second place, Madison was always insistent that political questions be decided by the only branch of government that was truly representative of the people: i.e., the legislature. Even in his own day he deplored instances in which he believed the executive or judicial branches were appropriating powers that the Constitution had reserved for the legislature. Today, however, the president routinely exercises war powers and treaty-making powers, as well as issuing executive orders that have the force of laws; executive agencies adopt regulations that likewise have the force of laws; and courts formulate decisions that have the force of laws.
Given all of these circumstances—the gargantuan size of congressional districts, the powers that have been shifted from state to federal control, and the legislative powers that are exercised by the president, executive bureaucracies, and the courts—it may be that the modern decline in voter participation has less to do with easy access to the polls and much more to do with the very rational perception among potential voters that their individual vote no longer makes much difference in matters of public policy. This chapter will not attempt to give the quintessential Madisonian answer to today’s problems, but it will attempt to clarify a very Madisonian question: At what point is a republic no longer a republic?