James Madison’s the Founding Father We Quote on the Constitution, but Which Madison Should We Cite?

Here we go again. The publication of Lynne Cheney’s new blockbuster biography of James Madison revives one of our most cherished founding myths: Madison was the “father” (assertive textbook version) or “chief architect” (modification for a more sophisticated audience) of the Constitution. The New York Times headline writers selected “American Architect” to announce Gordon Wood’s review of Cheney’s book. This honorific appellation calls forth Madison’s claim to fame and his tug on our hearts.

Much is at stake here. If Madison were truly the chief architect of the Constitution, what he said and wrote (in 1787) bears heavily on the meaning of that document. Through the informal doctrines of original intent and original meaning, so pervasive in our political culture, Madison’s views become scripture. Then, if we casually omit the key words “in 1787,” what he did, said, or wrote at any time in his career wind up guiding Constitutional interpretation. Madison conceived the Constitution. Madison believed thusly, so that’s what the Constitution says. Our public policy, to follow the Constitution, must follow James Madison. By applying this sloppy syllogism, pundits, politicians, and Supreme Court justices can redirect the course of the nation. It all starts with that initial premise: James Madison, American Architect.

Was Madison the (chief) architect of the Constitution? An architect lays out a plan that that will be put into effect. Even metaphorically, this does not describe James Madison’s relation to the United States Constitution.

In fact, Madison did not always get his way at the Federal Convention of 1787. By one tabulation, he offered an opinion on 71 motions but lost out on 40 of these.1 This is not to denigrate Madison in any way; perhaps we would have been better off if other framers had followed his advice more often. But if Madison had had his way, the edifice created by the Convention would look very different than it does.

Balance of powers. Madison is often given credit for the Constitution’s equilibrium, but separating powers and then achieving a balance among them was Montesquieu 101, common wisdom at the Convention. The question was what, exactly, would be the best balance, and James Madison’s vision was not actualized. He believed that the president should be advised not by a cabinet of his own choosing but by a separate and independent executive council. This council, not the Senate, should check presidential appointments. Members of the Supreme Court would join the president in a revisionary council empowered to veto acts of Congress, but Congress could override their veto by a three-quarters vote. Judges belonging to this council would review laws before, not after, they take effect and would not have to find constitutional irregularities to negate them. If impeached, the president would be tried by the Supreme Court, not the Senate. This is not the same system of checks and balances we encounter in civics texts and see in the everyday operations of our government.

Bicameral legislature. This was common practice in British political culture on both sides of the Atlantic. Madison’s implementation, though, would have differed from what we see in the Constitution. Senators would serve for nine years, not six, and the number of senators would be proportional to state populations. After six weeks of debating this last proposition, when delegates finally decided that representation in only one house would be proportional, Madison did not go along with this “Great Compromise,” as we call it today. With fellow Virginians and others from large states, he caucused to plot a new strategy for pushing proportional representation, and when that fell through, he grumbled.

The executive. Shortly before the convention, in a letter to George Washington, Madison jotted down his ideas for a new government. (Henry Knox and John Jay also sent Washington their ideas.) The alleged “architect” had much to say about a national legislature and a national judiciary, but very little to say about a national executive: “I have scarcely ventured as yet to form my opinion either of the manner in which it ought to be constituted or of the authorities with which it ought to be cloathed,” he confessed.2

During the Convention, he did not play a leading role in fashioning the executive branch. He fixed his gaze on an executive council but never came close to achieving majority support for that position. In his view, the president should not hold the exclusive authority to negotiate treaties. Because a president derived “so much power and importance from a state of war,” Madison contended, the Senate should be able to conclude a treaty of peace without his assent.3 Yes, Madison displayed great insight, but no, he did not prevail. Of course no framer got what he wanted, and that is precisely the point. It was give-and-take all the way, constitution-by-committee. That is not how chief architects generally work.State and federal powers.

Madison’s greatest achievement, many say, is his finely tuned plan for shared sovereignty, with states and the federal government each supreme in their separate spheres. Madison expressed such a view later, but in 1787 he showed a distinct preference for federal power. The national legislature, he wrote to Washington before the Convention, should be empowered to negate “in all cases whatsoever [his emphasis] … the legislative acts of the States, as heretofore exercised by the Kingly prerogative.” If a state law, in the opinion of Congress, ran counter to national interests, it must go; unconstitutionality would not be a requirement for dismissing it. “The right of coercion should be expressly declared,” he continued. Despite “the difficulty & awkwardness of operating by force on the collective will of a State,” armed federal intervention in state affairs must be permitted.4

During the Convention, on three different occasions, Madison tried to grant the federal government this absolute “negative” (what we now call a veto) over all state legislation. “As the greatest danger is that of disunion of the States, it is necessary to guard agat. it by sufficient powers to the Common Govt.” – but the one power he thought necessary to prevent disunion, the federal veto, was repeatedly and definitively rejected.5 Eleven days before the Convention adjourned, Madison complained to Thomas Jefferson, in Paris at the time, that because his proposal for a federal negative of state legislation had been turned down, “the plan should it be adopted will neither effectually answer its national object nor prevent … local mischiefs.”6 This one flaw could prove fatal, he feared. After the Convention, once all was said and done, he wrote again to Jefferson:

A check on the States appears to me necessary 1. to prevent encroachments on the General authority. 2. to prevent instability and injustice in the legislation of the States. Without such a check in the whole over the parts, our system involves the evil of imperia in imperio. If a compleat supremacy some where is not necessary in every Society, a controuling power at least is so, by which the general authority may be defended against encroachments of the subordinate authorities.

Without a sweeping national veto, even in matters of seemingly local concern, states would be able to “oppress the weaker party within their respective jurisdictions,” he concluded.7 The Constitution, too weak, had fallen short. In the words of Jack Rakove, Madison “viewed all the decisions that had diluted his system not as necessary compromises but as fundamental errors in judgment.”8 Strict construction of the Constitution. Today, we attribute to Madison the notion that Constitutional powers of the federal government were “few and defined,” as he stated in Federalist No. 45 to assuage fears of federal overreach during the ratification debates. But while Madison talked the talk, he did not always walk the walk. After the Constitution had been ratified, as a representative from Virginia to the First Federal Congress, he behaved as many loose constructionists do, approving matters he liked even if these are not covered within specific provisions of the Constitution:

•On April 20, 1789, two men asked Congress to support a private scientific expedition to Baffin’s Bay that would investigate the magnetic north pole. Despite the Constitution’s silence on such matters, Madison was willing to endorse the measure. If “there is a probability of improving the science of navigation, I see no reason against it.” At the Federal Convention, on August 18, Madison had proposed that Congress be empowered “to encourage by premiums & provisions, the advancement of useful knowledge and discoveries,” but his proposition had not been adopted. That defeat did not matter to Madison now. Congress still had the authority to “provide for the common Defence and general Welfare of the United States,” and those broad powers would have to suffice. It was a very loose construction.9

• The following day, Madison spoke in support of a six-cents-per-ton duty on commercial vessels, which he argued would be “necessary for the support of light-houses, hospitals for disabled seamen, and other establishments incident to commerce.” At the Federal Convention, on September 15, he had stated that an “object for tonnage Duties” was to provide for “support of Seamen etc.” and that this federal disability program would be covered under Congress’s power “to regulate commerce.” It was an expansive interpretation of the often contested “commerce clause” (Article I, Section 8, Clause 3), a view we usually associate with Hamilton, the broad constructionist, not Madison, the soon-to-be strict constructionist.10

•In 1790, when Congress established the first federal census to apportion representation among the states, Madison suggested that the census take advantage of “the present opportunity” to gather valuable information that went well beyond “the bare enumeration of the inhabitants,” its express purpose as stated in the Constitution. If the census provided a “description of the several classes [occupations] into which the community is divided,” he said, that information would prove “extremely useful, when we come to pass laws, affecting any particular description of people.”11 It was a good measure, he felt, and that was reason enough to pass it. Stretching the census past its specified constitutional function did not trouble him nearly so much as it seems to trouble Michele Bachmann and other strict constructionists today.

Madison saw nothing inconsistent in his actions. At the Federal Convention on August 20, he had not only endorsed what we know today as the “elastic” clause, but he had also tried to clarify and strengthen it by adding the words in italics: “And to make all laws and establish all offices necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this Constitution, in the Government of the U. S. or any department or officer thereof.”12 While Madison’s addition never made the final cut, the rest of the clause engendered no debate and was passed “nem. con” – without dissent. The framers, including Madison, understood there needed to be limits, but these must be reasonably interpreted. They refused to declare unfalteringly for “strict” or for “broad” construction because either choice, unmodified, would have been untenable. Without enumerating powers, the Constitution would permit the indefinite expansion of federal authority, yet without the flexibility inherent in implied powers, the government they were creating would quickly become inoperative.

In the First Federal Congress, Madison toed this line with precision. When he proposed constitutional amendments that would later evolve into the Bill of Rights, he included a clear statement of the principle of enumerated powers: “The powers not delegated by this constitution, nor prohibited by it to the States, are reserved to the States respectively.” That statement, though, was not enough for South Carolina representative Thomas Tudor Tucker, who moved to insert the key word “expressly” before “delegated.” This would keep any so-called implied powers from ever sneaking in.13

Madison opposed the explicit limitation. “It was impossible to confine a Government to the exercise of express powers,” he argued. “There must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia.” In fact, Madison had purposely removed the word “expressly” from the amendment that Massachusetts had first proposed, “All Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.”14

In a roll call vote, Congress followed Madison’s lead and rejected Tucker’s motion, seventeen to thirty-two. Federal powers did not need to be “expressly” stipulated, Madison suggested and the First Federal Congress expressly affirmed.15

Two years later, during the National Bank controversy, Madison adjusted his stance. He opposed Hamilton’s bank on its merits, but he also argued against it on constitutional principles. When Washington asked him to draft a veto message in case the president decided to take that route, here is what Madison wrote: “I object to the Bill because it is an essential principle of the Government that powers not delegated by the Constitution cannot be rightfully exercised; because the power proposed by the bill to be received is not expressly delegated; and because I cannot satisfy myself that it results from any express power by fair and safe rules of implication.” For Madison, as for so many others since, “delegated” was upgraded to “expressly delegated.” True, he still entertained the possibility of implication, but that standard was difficult to define and even more difficult to meet.16

By 1798, piqued by the Alien and Sedition Acts, Madison had swayed yet farther from his preference for expansive federal powers. The states, he argued in the Virginia Resolutions, had the right to “interpose” between the federal government and the people. This is how Madison comes down to us in the standard telling of history: a strict constructionist averse to federal authority. That he did not embrace such “Madisonian” views in 1787 is acknowledged sometimes within academic circles but barely at all in textbooks, popular histories, or most significantly, political dialogue. It should not surprise us when public figures modify prior positions to address new contingencies, and we err if we ignore basic chronology and fail to take such adjustments into account.17

Why does any of this matter? Viewing Madison as the architect of the Constitution has political overtones. Madison’s ideological evolution, from his expansive nationalism in 1787 to his advocacy of strict construction and states’ rights in the 1790s, can be and is manipulated into a distorted view of the Constitution’s meaning. If the alleged architect of the Constitution said the powers of the federal government are limited to those that are “expressly delegated” in the Constitution and states have the right to “interpose” between the people and the federal government, enemies of federal power backdate these words, implicitly but erroneously, to 1787. Once there, they become proof positive that the Constitution favored the states. Madison-the-Architect said so.

This unwarranted notion has penetrated to the core of our public discourse. It informs constitutional jurisprudence at the highest levels and affects national policy. In their dissent to the 2012 Affordable Care Act decision, Justices Scalia, Kennedy, Thomas, and Alito complained that the “power to tax and spend for the general welfare” has unfortunately come to extend “beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers.”18 The words within parentheses speak volumes. “What Madison thought it meant,” in this context, stands for “what the founders thought it meant” and finally “what the Constitution really means.” On this view, Madison supposedly favored a strictly limited government, so that is what the document must prescribe. However misguided, Madison-the-Architect mythology is embedded within the default logic of constitutional reasoning, and it tilts that reasoning subtly yet significantly toward the right.

1 Melanie Randolph Miller, An Incautious Man: The Life of Gouverneur Morris (Wilmington, DE: ISI Books, 2008), 63.

2 Madison to Washington, April 16, 1787, Robert A. Rutland et al., eds., The Papers of James Madison (Chicago and Charlottesville, 1962–), Congressional Series, 9:384-385.

3 Madison, Notes of Debates in the Federal Convention of 1787, September 7.

4 Madison to Washington, April 16, 1787, Madison, Papers 9:383-85.

5 Madison, Notes of Debates, August 23.

6 Madison to Jefferson, September 6, 1787, Madison, Papers, 10:163-64.

7 Madison to Jefferson, October 24, 1787, Madison, Papers, 10:207-14.

8 Jack N. Rakove, James Madison and the Creation of the American Republic (Glenview, Illinois: Scott Foresman/Little, Brown, 1990), 68.

9 Annals of Congress 1:178-79; David P. Currie, The Constitution in Congress: The Federalist Period, 1789-1801(Chicago: University of Chicago Press, 1997), 71.

10 Annals of Congress 1:183; Currie, The Constitution in Congress, 70.

11 Annals of Congress 1:1115, 1145-46 (January 25 and February 2, 1790); Currie, The Constitution in Congress, 19-20.

12 Madison, Notes of Debates, August 20.

13 Annals of Congress, 1:453, 790 (June 8 and August 18, 1789).

14 Annals of Congress, 1:790 (August 18, 1789).

15 Annals of Congress, 1:797 (August 21, 1789).

16 Madison to Washington, February 21, 1791, W.W. Abbot and Dorothy Twohig, eds., The Papers of George Washington (Charlottesville, 1983–), Presidential Series, 7:395.

17 Virginia Resolutions, Avalon Project, Yale Law School, http://avalon.law.yale.edu/18th_century/virres.asp

18 Supreme Court of the United States, National Federation of Independent Businesses v. Sebelius, Secretary of Health and Human Services (2012), Scalia, Kennedy, Thomas, and Alito, JJ., dissenting, 3. URL:http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf