James Madison and the U.S. Constitution

Norman Gilliland:Welcome to University Place Presents. I’m Norman Gilliland. In addition to being the fourth president of the United States, James Madison has become known as the Father of the U.S. Constitution. What was Madison’s concept of democratic politics? How did he expect the checks and balances to work among the three branches of government? What was his approach to the relationship between religion and the government, and how viable is his model of the U.S. Constitution today? With me is Howard Schweber, professor of politics and political theory at the UW-Madison. Welcome to University Place Presents.

Howard Schweber:Oh, thank you for having me. – James Madison, my first thought was, I don’t know a lot about James Madison. It turns out, if you look even a little bit, he’s a hard guy to know. – He’s an extraordinarily difficult historical figure, which has driven both political science– political theorists and biographers crazy. It’s remarkable the range of theories you can find about him. And the reason is there are large areas about which we just don’t know anything. I’ll give you one really good example. There is no clear evidence as to whether he had any religious faith, a particular religious faith, was a deist like his very good friend, Jefferson, went through phases. I’ve read things that claim he was secretly a devout Catholic, which I find unpersuasive. But that’s just one example of the kind of biographical detail that, when we’re talking about an historical figure, it mentions Washington or Jefferson, you have a lot to say about that. In the case of this guy, you draw a blank. – And not just his personal religion, but his politics. – Well, one of the things about Madison, and you can phrase this one of two ways, if you don’t like his views, go read something else he wrote. They’ll be different. And there’s really sort of three explanations– different explanations that scholars have for that. And they fight about this. One is that sometimes he was writing what he actually believed, and sometimes he was writing for effect. So, the really famous example, everyone loves to cite The Federalist Papers.

Norman Gilliland:Yes. – But of course, he was keenly aware that he was writing his papers to be published in the New York newspaper to persuade the public. So there’s very good arguments that he wasn’t necessarily expressing what he actually believed in all cases, as opposed to what would sell. And there’s a lot of that. He was a politician, he was a– And various other documents that he wrote might or might not fit that description. The second theory is that he changed his mind a lot, and at different points in his life, he had different views. And I guess there’s a third theory that said, you know, he contained multitudes. He had held at the same time– As F. Scott Fitzgerald once said, “An intellectual is someone “who can maintain two opposing ideas at the same time and still function.” Theory three says Madison was a towering intellectual, which, in fact, he was, regardless of what you think of his variability. – So, possibly combination of all three of those. – Or a combination of all three, absolutely. – Which does make him very hard to pin down at any given time. I guess you know what he’s saying, but where he’ll be tomorrow… – Well, he’s a very rich source, and one of the really interesting things, you mentioned him being thought of as the Father of the Constitution. Historians dispute that. He lost as many arguments as he won about particular provisions. There are articles and books that argue that we shouldn’t think of him that way. And yet, and it’s striking, if you look at Supreme Court opinions nowadays, it doesn’t matter what the ideological stripe of the justice is, everybody quotes Madison. Sometimes we have justices on opposite sides of an issue quoting Madison at each other, and that’s not rare at all. So he’s a very rich source, and he’s one– he’s the well everyone wants to go back to. – Well, and he was living among intellectual giants, many of them. – Very much so. – Which meant that he, for one thing, he had to compromise anyway. And that must have accounted for a lot of his changes, don’t you think? – It may well have done. So, my own theory, for whatever it’s worth, I buy a version of theory two, which says there’s a sharp distinction between when Madison was speaking for himself and when he was engaged in politicking. He was brilliant at politicking. Those, the things he wrote and said in that context are not irrelevant or uninteresting, but they’re distinguishable. So I have a tendency to divide his work in statements in these two categories. – So, if he lost more arguments than he won, why would we call him the Father of the Constitution? – Really for three reasons. Again, it’s disputed whether we should, but I think for three reasons. One, first of all, he did win some arguments. Let’s not lose sight of the fact that the basic model of our national government, the need for a national government, which was the biggest point to begin with– – As opposed to multiple state–

Howard Schweber:As opposed to the Articles of Confederation, which combined multiple separate sovereign states, right. That shift, he had everything to do with persuading the nation that that was necessary. The basic model very much does draw on his Virginia Plan, even though there’s lots of specifics you can point to, you know, that didn’t come out quite the way he wanted. And then, thereafter, as president, in Congress, in a variety of roles, he played a key role, even if he didn’t win every debate, he was in every debate, and his voice was hugely influential. And you can even– I’ve never tried to make an entire theory of the Constitution solely on debates that Madison lost, but you probably could.

Norman Gilliland:[chuckles] Uh-huh. And he was around long enough ’til, I think, what, 1836? – 1836, he was around for a very long time. He survived– I mean, think of someone who was an adult, a relatively young adult, but an adult at the time of the American Revolution, and then saw the War of 1812 and then saw, you know, the diplomatic skirmishes that followed that and saw the emergence of the party system, saw the decline of one party and the emergence of a new one, saw fundamental transformations in the national political system that he had helped design. It was an extraordinarily long life, and an extraordinarily eventful one. And he, all along, kept chronicling what was happening and making comments. And there’s just a lot, there’s a lot to look at. – And during all that time, he saw the stability, the viability of the Constitution. – He was not always sanguine about that. But, yes, he saw that it was stable, and by the end, he was quite comfortable that, you know, it wasn’t going anywhere. – If it was such a great document, how did he feel about amending it? – Well, that’s complicated. And there, we really do have, I think, some changes over time. So, the first generation of constitutional leaders, Madison, Jefferson, all of those guys, initially, there was a real split among the one– I’m talking now in the year 1787 until the 1790s, middle 1790s. There was a real split between people who thought of the Constitution as a kind of fixed document in a legalistic sense, with a set of rules and a degree of precision, and people who saw it as a broad statement of principles. And the more people saw it as a broad statement of principles, the more inclined they were to say, “We should be free to change this whenever we feel like it,” and expected to. It’s very clear that the adoption of the Constitution in 1797– in 1787, pardon me, its ratification in 1791, almost no one thought that was the end of the story, and certainly not Madison. Madison absolutely thought of this as an experiment that would be adjusted along the way as they went. And he wasn’t alone. Adams wrote an essay saying something very, very similar to this. Jefferson certainly felt that way. So, initially, in particular, Madison was not only open to amendment, he presumed that there would be changes made as the experiment went forward. And that’s very much the language he used. This is an experiment, we’re doing something new. It’s never been tried before. In all the particular details, the experiment of large-scale representative republics had never been tried before, and he was quite sure there would need to be adjustments as they went forward to keep it working. – So he wasn’t what we would call today an originalist when it came to the Constitution. – That wasn’t really a concept until much, much later. That gets us into a whole different discussion, perhaps for a different show. But it’s an interesting, I mean, since you bring it up, one of the fascinating points about Madison, and one of the areas which he does seem to have changed his views, is what did he think was the appropriate source to look to if you wanted to figure out what the Constitution was supposed to mean? – Really good question. – And there’s a really interesting answer or a two-part answer. At one point, he writes, you know, “The meaning is not fixed by those of us “who wrote this thing in Congress. “It was fixed by the ratifying conventions in the states. “It’s the people of the states in their ratifying convention, “what they understood this thing to mean, that tells us what the Constitution is about.” And you could use that to support a kind of what’s called public meaning originalism theory, if you want to.

Norman Gilliland:Sounds complicated. – A little bit. But then there’s the bank controversy. And if you don’t mind, I’ll go into that right now because it’s so fascinating and so revealing about him as a thinker. Madison, initially, as a member of Congress, vigorously opposed the idea of a national bank, spoke against it, and as president in 1815, vetoed the National Bank Bill. – Would that mean also like a national currency of some kind? – No, national currency doesn’t come until a century later.

Norman Gilliland:Mm-hmm. – Almost a century later, 1890s. – So how is this national bank going to function? – So a national bank is a single, federally-run entity that has the ability to incur debts on behalf of the United States and pay debts on behalf of the United States. And it does the incurring debts part by issuing bonds. And this is the bond market that drives so much of our economy and so much of our economic thinking. And because it’s a national bank, when debts come due, it has the authority to collect them from the state. So one of the really major, major forces, and Madison was all over this, behind adopting a constitution and a stronger national government was getting– because, was the fact that the states were not paying their war debts after the Revolution. And the ability to incur debt reliably, this was Hamilton’s big concern, but Madison also shared this concern deeply. The ability of the United States to issue bonds, incur debt, and be trusted to pay them off, so it could participate in global commerce, was huge. What Madison didn’t like and Hamilton did was the idea of a single, centralized national bank under the control of the executive branch to carry this out. So, in 1815, he vetoes, as president– It’s one of only seven vetoes that he issued, the national bank. One year later, it comes back, and this time, he signs it. – What’s the difference? – And he’s accused of flip-flopping. They didn’t have the term then, but it’s really very obvious. “Sir, you’ve changed your mind without explanation.” And he answers the question, and he answers it again ten years later in something that he writes privately, and both times, he’s entirely consistent. He says, “Look, nothing changed. I still believe, as a matter of,” as he put it, “abstract constitutional theory, “that this is wrong, but the people disagree with me. “There’s been a national election, “which this was a huge issue. “The pro-bank side won. “Congress came back and said, ‘Yeah, we still want this bank.’ “And as president, it is not my place to stand– “to impose my view, my personal understanding of the Constitution against the people.” And that’s sort of what we call popular constitutionalism. That is the idea that the people in any given generation have the authority to redefine the meaning of the Constitution. So there’s one great example where you can look into Madison’s thinking and find more than one answer to a profound and fundamental question, and maybe a change in development in his views. – And does play into the states’…

Howard Schweber:Very much. – …autonomy.

Howard Schweber:Very much, which is one of his points of consistency. So, before we get into particular topics, let me say three or four things about which Madison was absolutely consistent. Number one, he was very much a nationalist. So, I mean, he wrote so many things, but I like to start with, in 1787, he wrote an essay called “The Vices of the Political System of the United States.” It was an essay explaining why we needed to abandon the Articles of Confederation and have a national constitution. And it’s a strongly nationalist document. He says one of the great errors is the myth that states are sovereign.

Norman Gilliland:Wow. – Our big problem is that states are unjust. They pass unjust laws, they ignore their own laws, they ignore federal laws. They get in the way of the federal government. This long litany. It’s an interesting parallel to the Declaration of Independence, which was a litany of complaints against the king. This is a litany of complaints against the states. – Talking about, actually, the states of the United States in this case. – Absolutely, this is 1787. We’re past– Revolution is long over. We’re under the Articles of Confederation. And he’s saying, “This isn’t working ’cause you can’t trust the states.” And that was consistent even when, for example, in response to John Adams’ Alien and Sedition Acts, he authored– And this is one of those public documents. You have to ask, how much does it reflect his own thinking? But without getting into that, certainly in that situation, he thought the federal government had overstepped, and he was never slow to call out the federal government when he thought it had overstepped. But he never abandoned his notion that the fundamental legitimacy of the Constitution was based on a national people acting nationally, not as a treaty of sovereign states banding together, as had been the case in, for example, the end of the Declaration of Independence, the language of the last paragraph. So that was one point of consistency. A second point of consistency was his fear of capture. His great fear was majoritarian tyranny, the majority oppressing the minority. And he had a very specific model of that in mind, situations in which the government could be captured by a majority and brought under its control. And so, I won’t say all, but a great number of the structural innovations, separation of powers, checks and balances, federalism, the vertical and horizontal checks. – Representative government. – Absolutely. Were designed to– We should come back to that because that was a hugely innovative point. Were designed to prevent this danger of capture which came out of his experiences with religion in his youth. And I know we’ll come back to that in just a minute. But the third thing I think is, and I think it’s terribly important to emphasize, and on this again, I think Madison was really completely consistent, despite all the changes and despite all the fears, was a vision of rights, individual rights that, in his view, and I think in the view of most people at the time, the function of the government was in large part to secure rights.

Norman Gilliland:Yes, we’ve seen that in the writings of the Founding Fathers. – Over and over and over, right? So, on the one hand, of course, government had to be constrained. A too powerful, too concentrated government, a captured government, captured by a majority interest, for example, could be a threat to rights, but too little government was equally a threat to freedom. And it wasn’t Hamilton’s argument, we need a strong central government so it can raise big armies and make lots of money. For Madison, it was about liberty. We need, and this was part of his innovation. We need a vast, powerful, centralized republic in order for people to be free. And those points, as each of those is very complicated. But they were core to his political theory and remained that way. – Well, if you look at an outside threat, and there were plenty of those in the 1780s, then a centralized, a larger government that’s centralized is going to be a better defense than a series of states. – Well, it wasn’t that, actually. – It wasn’t? – Interestingly enough. So, if you don’t mind, let’s dig into the religion and government topic because, really, a lot of his thinking came out of that. When Madison was a young man, he was a bit of a prodigy. He chose to go to college at the age of 18 to what was then called the College of New Jersey, we now call it Princeton, rather than the likely place, which was William and Mary, for the scion of an upper class Virginia family. And the reason was because, at William and Mary, religion played too big a role. There were courses on, required courses on Anglican theology. Virginia had an established state religion. – Anglicanism. – Anglicanism, absolutely. And Madison didn’t like that. At Princeton, he encountered straight down the line enlightenment thinking, Scottish common sense philosophy, for people who happen to be familiar with that. If you look at the curriculum of Princeton at that time, there are no courses on religion or religious thought or religious law or anything of that sort. And he didn’t study any of that stuff. And that’s how he wanted it. So, right from the get-go, I mean, if we think of college as the beginning of an adult’s intellectual development. – Intellectual life. – Exactly. Right from the get-go, he approached religion at arm’s length. And that became stronger when he was 22 years old and had an experience of visiting Baptist ministers locked in prison in Virginia.

Norman Gilliland:Because they were conflicting with– – The Anglican establishment, right. So the Anglicans had all kinds of dirty tricks. They would do things like pass a law saying everyone had to serve in the militia or else pay a fine, and then go and collect that fine from Quakers. And they passed the law as a money-raising measure knowing Quakers wouldn’t do it. They imprisoned Baptist ministers for preaching what, in their view, was heterodox doctrines. It was, by our standards, quite an oppressive religious establishment. And Madison was horrified. He was horrified by the intolerance. And he spoke of religious leaders as imps in the old sense of demons, instruments of evil. And that notion, which was only part of his view of religion. It’s much more complicated. But one of the elements of his views of religion all along was that it was dangerous because its leading figures, its clergy, could take advantage of their position, if they were in the majority, to oppress others. Let me read a short quotation, because it’s striking how many different elements of his thought it contains on this one point. If you don’t mind. So this is in 1788. He’s speaking before the Virginia Ratifying Convention that’s looking at the U.S. Constitution and deciding– which he has helped write– and deciding whether to adopt it. And he’s speaking about religious liberty. And he says, “It arises from that multiplicity of sects, “which pervades America, “and which is the best and only security for religious liberty “in any society. “A particular state might concur in one religious project. “But the United States abound in such a variety of sects, that it is a strong security against religious persecution.”

Norman Gilliland:That’s a good way to look at it. – Well, there are four themes there, four major, major themes that resonate throughout his political philosophy, and not just on the question of religion. One is, of course, the danger of capture, which we’ve already mentioned. So one of the reasons– – Which is majority control. – Right. So one of the reasons he favored a large republic, as he says here, is that, in Virginia, the Anglicans can take over, but they can never take over the entire United States. – Right. – So the threat to freedom is smallness, the idea of small, homogenous republics that the ancient writers had thought were the best security of liberty is a threat in a pluralistic society. And his experience of Virginia taught him that. The second thing is why he was so opposed to the idea of states as sovereigns, because he thought states were places that were oppressive. And again, drawing on his experience of Virginia, which, by the way, continued for years and years after. He was disgusted by what he saw in Virginia politics, not least his interactions with the nefarious Patrick Henry.

Norman Gilliland:[chuckles] Yes. More about him later. – More about him later. This is also the beginning of one of the things which Madison is most famous, and I’m sure some of some of our viewers already catch this, the theory of factions. So in Federalist 10, which is probably his most famous writing, he explains why a large extended republic is a good idea. The Anti-Federalists are running around saying, “This won’t work. We have to be separate sovereign states.” Every ancient writer, the Athenians, the Romans, French writers of an earlier period say you have to be a small, homogenous republic in order to be free. And his counterargument is this argument of factions. No, no, the way to be free is to have lots of interests and lots of identities forming ever-shifting factions so that no one can ever take over. And that’s the model he got from religion. He, as a young man– – From his own experience. – From his own experience. As a young man, he got the idea that a multiplicity of religious sects prevents any one from taking over, and he extended that to his entire model of democratic governance, which is remarkable. And the last thing goes to his theory of religious liberty, which I’ll say some more about in a moment, but it very much started with a fear, the fear of religious oppression by an empowered religious faction, to use the word he would use later. – He was not entirely alone with this. I mean, Thomas Jefferson famously also– – Jefferson was overtly against religion. He produced a new version– – Of religion period, not its dominance. – He produced a new version of the Bible with all the miracles taken out. [Norman chuckles] He spoke about the teaching of the Christian Bible as lies and falsehoods, something or other. Madison’s view is much more complicated. Let me break it down this way. There are two fundamental principles that define Madison’s view of religion and politics. And, again, they echo throughout everything else that he talked about. One is a kind of dualism. Religion could be a force for good, or it could be a force for evil. And you had to preserve the good and guard against the evil. It could be a force for good because there’s a wonderful line where he says, “Well, “those of us who are philosophers and statesmen, “we don’t need religion, “but the regular people probably do, and it’s good for them to have it.” More importantly, he recognized how important it was to individuals, to their lives, to the meaning of their lives. How terrible it was to be subject to somebody else’s religious teachings. So in his famous Remonstrance Against Public Assessments in Virginia, he writes this stirring, to this day one of the primary secularist documents in our canon, that says, “To collect even three pennies from someone “in taxes to support a religious faith in which he does not believe is tyranny.” And he says, you know, you think all you’re doing is promoting Christianity, but don’t you realize, if you elevate Christianity above other religions, you will equally open the door to elevating particular sects of Christianity, again, Anglicans, Baptists, against others, right? This way lies tyranny. It’s that capture model tied very directly to a rule against any public direct support for churches, that we now know of as separation of church and state under the Establishment Clause. So that’s the negative side. The other part of the negative side, the other way religion is dangerous, is not only that religious authorities, if they’re a majority, might try to oppress other religions, but if religion gets into politics, it can be dangerous. So, back to the theory of factions. Remember his idea is that, as long as you have multiple groups and multiple identities and they’re flexible, they form alliances, then you’re fine. But if religion gets into politics, you get permanent oppositions. These aren’t things people can compromise over. These aren’t interests that can be negotiated. Religiously-driven politics turns politics into combat, enemies instead of opponents.

Norman Gilliland:Absolutisms. – Absolutisms. So that was the negative side. So the negative side was we have to keep religion out of politics for fear of capture, and we have to keep– and the oppression that can follow from that. And we have to keep religion out of politics for fear of absolutism. The positive side was that religion can be a force for good, and more than just a force for social good. It can be terribly important in people’s lives, and we have to protect that too. And that’s the flip side of the dualism. We have to keep religion out of politics, and we have to keep the state out of religion. And he has wonderful lines where he explains, you know, anytime the state gets involved in promoting a church, the church doesn’t flourish. It becomes corrupt, it becomes addicted to power, it becomes involved in secular activities and sacrifices its religious principles in order to maintain its positions of powers, its clergy become– He uses some fairly harsh words, actually, but he says, centuries of European experience tells us that it is bad to have religion in our politics, and it is bad to have our state in our religion. And that dual vision of religious-state relations comes from his dual vision of religion as potentially beneficial, but also as potentially dangerous. And that’s my final point on this, which is that it’s a special case. And that’s really the key thing. For Madison, religion is a special case that has to be treated differently from any other kind of viewpoint or speech or attitude. And there are all kinds of ways to show this, but here’s a really simple one. There’s no other place– There’s no place, excuse me, where Madison says that, in connection to any other kind of belief or philosophy, the state should stay out of it and not express preferences. Only in the context of religion, because it’s only there that he sees that danger. – He is concerned about capture.

Howard Schweber:Yes. – The majority somehow taking control. So how does he feel about representative government? – So we now have– Now we come to his theory of democracy. And this was, it’s sometimes called the new science of politics. And it was novel. In one of The Federalist Papers, he says, the one thing that the ancients didn’t understand about representation was the complete exclusion of the people in their collective capacity from the act of governing. He was the absolute opponent of what we would now call plebiscitary, or direct democracy. You had to have representation. And the reasons why are interesting. So, there are two we’re concerned about. First of all, the concerns are the same, fear of capture, fear of majoritarian dominance, fear of small states which are prone to capture and dominance. Right? The need for a large state with lots of factions, lots of interests, all the things we’ve just finished talking about. But that’s not enough. Those are structural. Those are structural elements. We can think of them in political theory terms as liberal elements. I don’t mean in the modern sense of supporting the New Deal. I mean in the historical sense, focusing on public-private divide and individual rights and the ideals, and structuring government to preserve liberties. But he was also a republican, again, not the party of Richard Nixon. Small “r,” the political theory of republicanism. And he believed powerfully in the idea that you had to have virtuous leaders. Indeed, he saw elections as a mechanism whereby the people would elect– I mean, the word “elect” means choosing.

Norman Gilliland:Choose, yes. – Right? It’s not random, it’s not that everyone is equal. You find those who are the elect, a term with resonance throughout ancient history. That the people would be wise enough to choose the best and most public spirited among them, and that those individuals would then govern for the common good, never for their own interests or for the interest of their faction. – How sweet. – Well, right? It gets even more adorable, if I can use that term. Now, keep in mind, we have the benefit of very long hindsight. But he thought the House of Representatives would be the house that would have the national good as its only goal. And it would be in the Senate that we’d see states competing. The members of the House of Representatives would have the more elevated universal understanding of the nation as a whole and represent the whole of the national people while senators spoke for their states, which is not exactly how most political scientists see those two bodies today. – The idea being that, again, protecting the smaller states from the larger in this whole capture by the majority concept. The idea being that if each state, no matter how large, how small, had two senators, that would level out the competition, you might say. – That is an element. He did not originally, initially like that idea. That was one of his compromises. Madison’s– It’s very interesting. We talk a lot about small states and big states, and back then, people did. But Madison, interestingly, writes about other things, too. He says, you know, the divisions among the states are not nearly as profound as the divisions between urban and rural and rich and poor and slave-owning and free and agrarian.

Norman Gilliland:There’s a pattern, isn’t there? He saw very clearly that the lines of cleavage in the United States would not be defined by state boundaries, even though those were also real, because states have economic interests and so on. But that this problem of faction that he was describing was one that would cut across political bounds and barriers. Part of the thing that he was worried about, part of the thing that he thought a large state would prevent us from falling into was highly partisan national parties. – A large overall state? – No. Like the Democratic and Republican parties, like the two that we have now. Those are fixed national factions. – Right. – That was precisely what he thought we could not have. The whole argument was that these would be shifting factions. So, at one time, you’d vote with people who shared your manner of making money. You’re agrarian, or you’re in manufacturing because that was your interest. At another time, you’d join in with the people who are from your state. At another occasion, you’d vote with people who shared your social attitudes. These factions would shift. Remember, there were no political parties at the time that he was first designing this system and writing these arguments, and the notion was not that they were coming. The notion was that we wouldn’t need them. You can see this really clearly if you look at the original rules for the selection of the vice-president. And of course, the 12th Amendment changed that because Jefferson said, “No, I’m not gonna have “someone from the other side as my vice president. I want someone from my party.” Parties really emerged in 1800, and you can say that, from that point forward, we’re no longer really playing the Madisonian game. But that’s jumping ahead just a little bit. So back to the theory of democracy. It’s got sort of three elements, I think, or maybe four. One, rule by virtuous elites. Two, answerable and accountable to the people at large. – Via election? – Via election. Three, structured through a complicated system. And in retrospect, it looks like a machine, like a complicated machine. And that was appropriate for its age. To channel and split and divide interests, right? The famous setting ambition to counter ambition in Federalist 51 to describe separation of powers and the different roles of the branches of government, and the shared roles vertically between the federal government and the states, as well as the constraints that followed from– that were imposed, pardon me, in those directions. All of the above, all of those three things together, would create conditions in which you would avoid falling into permanent factions or religious politics or majoritarian tyranny or any of the other ills that, through his years of study of the subject, he had decided were the dangers that threatened republics. – And Madison was around long enough to see that that wasn’t really going to be the case? – Madison absolutely was around long enough to see that that particular vision wasn’t still the case. But now, we have to get a little bit more into the details. So he was around long enough, for example, to see his vision of national supremacy challenged by the nullification crisis, when states declared we have the ability to disavow our obligations under the Constitution to federal government, and he rejected that wholeheartedly. The context of that involved something I haven’t mentioned yet, which is slavery. And Madison on slavery is not quite as clear a case as some of the others. He was– We can class him as generally Southern and generally pro-slavery. He owned slaves. Not the way John Marshall did or George Washington did or Thomas Jefferson did, not to that extent. – Mm-hmm. – But certainly, he was no abolitionist. – And he freed one at one point, but that was to, I guess, to avoid some kind of a slave revolt. But when he died, unlike some of the others, did not free any. – Right, right. So, you know, there’s no question, if we are ever gonna categorize him, on which side of that great divide he fell. It was the wrong one. On the other hand, it didn’t drive his thinking. Or at least, again, historians will debate this. I should mention, I recently edited a book, and each chapter is by a different historian or political theorist about James Madison’s thought. And there’s a chapter on slavery, and it’s a tricky and difficult chapter written by Paul Finkelman, a great scholar. And, you know, the best conclusion is that, and I’ll use this term, he was on the wrong side. I have no hesitation in taking that position. At least partly because he was a Virginian and felt a deep tie to his state and his region. At least partly because, well, he didn’t write very much about this, but it certainly seems like he thought there was nothing wrong with the institution, per se. He certainly seems to have accepted it.

Norman Gilliland:Biblical precedence. – Well, of course. Of course there are biblical precedents, yes. Quite a lot. Although, again, his relation to religion is not clear. So, again, we get a double layer of ambiguity. And partly because he viewed it as the kind of dangerous conflict and disagreement that could threaten the Union and needed to be managed. So he was much more concerned about slavery, for better or worse, for worse. Let’s be blunt. – From a practical standpoint. – From a practical politics standpoint of, how can this conflict be managed in a way that will not threaten the stability of our Union? And he tried to arrive at a position quite different from that arrived at by, for example, Calhoun. So there’s a really interesting argument where Calhoun, who starts off–

Norman Gilliland:John C. Calhoun. – I’m sorry, John C. Calhoun. Who starts off as a staunch nationalist and a staunch proponent of federal power to do things like improvements, to build canals and then later railroads, but changes his tune. And he concludes that, if the federal government can build a canal, that if the federal government can build a railroad, it can abolish slavery. That a strong federal government is a threat to slavery, and therefore, must be opposed. And that makes Calhoun become the staunch– a very staunch states’ rights, anti-nationalist, later generation Anti-Federalist, if you like, that he is. Madison never went there. So there’s that. Madison did, as I mentioned before, support the bank. – Right. A strong national bank. – He continually supported a strong national government, a strong, centralized national government. His theory of democracy settled on those three things. You know, we need a strong national government to preserve our liberties, but it must be structured in a way that will balance factions against the other to prevent captures. And all of this will work so long as we elect, use elections to ensure that virtuous elites are the people in charge. And if you ask, aren’t those in tension? They are. He thought we needed both. – He would have thought, I’m guessing, being that he was a politician, certainly a very capable one, I’m guessing that Madison would have thought, guess what? They’re not all virtuous elites. – No. And he knew that– Well, he knew that already. He knew that at the state level, he’d seen that everywhere. One of his arguments for a large republic, which again, in retrospect, is kind of charming, is that, with a large republic, you have a bigger pool. So among that bigger pool– – Just great candidates. – Statistically, you’ll find more very virtuous individuals, enough to fill the houses of Congress. But he always, I mean, you can say he’s talking out of both sides of his mouth. I prefer to think it’s an all-of-the-above strategy. You need both. You need virtuous leaders to the extent that you can get them. And you need mechanisms like checks and balances and separation of powers because you know you are not always going to get them. – How virtuous did he think Patrick Henry was? – Not even a little bit. [both laugh] So we’re kind of delving into state politics here. Patrick Henry was… Gosh, I don’t want to, I don’t want to cause a controversy with big Patrick Henry fans out there. Let me put it this way. Madison and the other Federalists thought of Patrick Henry as corrupt, venal, manipulative, dishonest. – Perhaps nasty tempered. – Perhaps nasty tempered. It’s a matter of historical record that Patrick Henry engineered a gerrymander to try and ensure that Virginia would not ratify the Constitution. It failed, but he certainly made a serious attempt at it. And Patrick Henry was a key player. He was the most important, by the way. Patrick Henry was a dominant figure in Virginia state politics. This isn’t just two guys having a beef. This is the dominant figure in Virginia state politics versus a Virginian who is a dominant figure in national politics. And it was Patrick Henry who was pushing religious assessments and religious establishment. And that was one of the issues on which Madison was pushing back. – What was the then Madison’s relationship with Jefferson, his predecessor? – Oh, closest, closest of friends. There’s at least one biographer who suggests it was a kind of parental thing, because Jefferson was a few years older. I don’t know, eight years older, I believe. I don’t think that’s right. But they were– Their correspondence is extraordinary. One of the places I like to look if I want to think, what was Madison really thinking in a given period of time, as opposed to what was he saying for political reasons, is to his correspondence with Jefferson. And in many of the themes– So, in 1783, I believe, Jefferson is working on designing a constitution for Virginia, and Madison sends him a series of comments about the proposed draft, the proposed model, and critical comments. And they raise all of these points that I’m talking about, in some ways much more clearly than you’d find those points raised in, say, The Federalist Papers, where, A, there are three different authors, B, they cover a lot of different topics and bop around, and C, you know, we, I think, quote The Federalist Papers more than we read them, at least a lot of the time. – Well, there’s what, 85 of them? – There are a lot of them. But if you sit down and read one all the way through, it’s a polemic, it’s an editorial, you know. – He’s essentially trying to sell the Constitution. – Well, he is. And each one is about a very specific Anti-Federalist argument, you know. “You say X? “Why, you’re so wrong about that! “I will now speak for 14 paragraphs on why that one thing is wrong.” His speeches at the ratifying conventions, his letters to Jefferson, and particularly some things he wrote later in life, around 1820 or so, called the Detached Memoranda, which were memos he wrote pretty much to himself. They were never intended to be published. They were just notes of his thoughts. And to me, at least, and as I say, this is a debate, but to me, that is where, if you want to find the mind of Madison… – The real Madison. – …that’s where to look. If you want to find Madison’s contribution to American politics, then you look elsewhere. – Not too much of a diversion, I hope, but he had a kind of a father-son relationship with George Washington, didn’t he? – Yes, he was a key adviser to Washington. He idolized the man. He was, of course, in the government. He ended up joining with Jefferson, becoming the opposition to Hamilton. I think there’s a play about this with some really good songs. – So I hear. [chuckles] – That’s what I hear. You know, Washington– When Washington retires, Madison joins with Jefferson, becomes part of the Democratic-Republican Party. Parties emerge. Madison puts aside his aversion to parties and joins in. Their great enemy for a while is Adams. Having once been allies, you know, all of them. They were all a band of, to borrow the phrase, a band of brothers. And then there’s this very, very deep split, particularly between Jefferson and Adams, but Madison as well. And then, you know, after about… After Jefferson becomes president and a few years after, they all kind of go their own– Madison goes his own way. He becomes– He serves in Congress, he becomes president. He becomes– He was always his own man. But it ceases to be useful to think of him as part of a group, him and Jefferson. Him and the memory of Washington, him and certainly not Adams. He establishes his own path very much and quite often diverges from things that Jefferson wants. A point of unity between the two is the opposition to the Alien and Sedition Acts. And it’s interesting to read. So let’s take that as an example. In the early 1790s… Interestingly, the Alien Act is the same one that courts are reviewing today. It’s that very same law. – Dusted that off, yeah. – It didn’t go away. But the other half of the act, the Sedition Act, had to do with free speech. And it said, basically, the federal government could put people in prison for speaking against the government. Madison hated this idea. As I mentioned at the outset, Madison was a staunch believer in rights. Madison, let us not forget, wanted to have rights in the Constitution that would apply to the states. He lost that argument. When the decision was made to have a Bill of Rights, he was insistent that all the rights, particularly the rights that we now think of as the First Amendment. I say that because originally they were in three different amendments, but they were all consolidated. But particularly the rights in the First Amendment, Madison felt strongly had to apply to the states. We should preclude state religious establishment, we should preclude restrictions on freedom of religious expression, and especially we should prevent restrictions on free speech. Again, he lost that argument. It was not until the 20th century, the 1920s for speech, the 1940s for religion, that these rights are applied to the states, was met with the states. But Madison was absolutely– And it goes back to his experiences in Virginia, was absolutely staunch in his insistence that this should be protected. So, when Adams and his Federalist administration start using the federal government to threaten free speech, I mean, from Madison’s perspective, this is the greatest disaster imaginable. The whole argument. – True anathema. – A true anathema, because the whole argument for having this big national government with so many factors that this would not happen. So he writes, and Jefferson writes, the two of them write the Kentucky and Virginia Resolutions. They’re very different, if you read the two resolutions. Madison’s is much more about free speech. And he tosses in there a bit that’s been referred to ever since about free states forming a compact to form a nation and this is not what they intended. Now, two things about that. One, these failed. These two resolutions were calls on other states to join them and overthrow this effort by the Federalists. No other state joined. These were failed political efforts. That may not be important, but we tend to teach them in school, I think, as though, you know, these two things are published and everything changed. Not quite. And two, going back to one of our themes, I think this is very clearly Madison writing in his public political voice and saying the things he thinks will play well in Virginia. But whether they are or not, it’s certainly the case that it’s a point where he begins to have, I would say, more suspicion about the dangers that can come from the national government, whereas previously he was almost entirely concerned with the dangers to liberty that would come from the states. – On the subject of checks and balances. – Absolutely. – Relationship between the federal government and the states. – And separation of powers. – And separation of powers in particular. How did he feel about John Marshall, who, as the first U.S. Supreme Court Chief Justice, went so far to establish the power of the Supreme Court? – So, there’s two different pieces to that. One is Marshall and the power of the court. And then one is the way Marshall used the power of the court to enhance the power of the federal government. Let’s back up. So, we have today a system of judicial review. And without getting either complicated or contentious, we generally think of the Supreme Court as what is called an apex constitutional court. It is the court that has… Again, there’s a long history, and much of it is contentious, but I think most people agree, and certainly Chief Justice Roberts thinks, just to choose somebody who might be involved in the conversation, that the U.S. Supreme Court has the final say on interpreting the Constitution when there are disputes over its meaning. That was never contentious with respect to the states. So you can go all the way back to cases from the 1790s, long before Marshall, for the very first court, the Jay Court saying that, because under the Constitution, federal law is supreme and the Constitution is the supreme law of the land, federal law, the supreme law, and treaties are the supreme law of the land. If the Supreme Court finds that a state is violating those laws, it can say so and strike down its actions. That part was never contentious. The part that was… debatable is, what was the thought about the role of the Supreme Court visa vis the other two branches of the federal government? Again, our modern understanding is that, on the question of interpreting the meaning of the Constitution, the Supreme Court is supreme. If Congress passes a law and the Supreme Court says, “This is unconstitutional,” that law is valid– is invalid, pardon me. And the same goes for an action by the president.

Norman Gilliland:Yes. – That wasn’t exactly the model Madison had in mind, although there were people who did. James Wilson comes to mind. But Madison didn’t really enthusiastically embrace that structural model where the court would be superior over the other two branches on questions of law. So one model is each branch is superior in a certain area. – Right. – The executive is supreme or superior on questions of discretion. What will be done and not done in carrying out programs and activities and enforcing laws. The legislature is supreme in deciding what will the laws be. And the Supreme Court is supreme in interpreting those laws and interpreting the Constitution. And each limits the other in this way. That wasn’t really Madison’s vision. Other people at the time of the founding were what we now call departmentalists. They believed each branch should be empowered to determine the meaning of the Constitution for itself. So, if you ask, what are the powers of Congress under article one, section eight, which is the section that lists, it’s a long list of powers that Congress has, John Marshall’s answer was, Congress gets to decide that, in a case called McCulloch v. Maryland. And courts have essentially nothing to say about it. Madison didn’t like that. And the same, by extension, would apply to each branch. Madison didn’t like that model either. – So what did he want for the Supreme Court? – Well, he wanted the courts to stand between the government and the people.

Norman Gilliland:Hmm. – So you have to go back to Montesquieu, which is one of the writers Madison loved more than any other. And not only Montesquieu, but this is a writer Madison was deeply, deeply enamored of. And Montesquieu, following on earlier writings, had a theory that what we’re talking about is really the meaning of the word law.

Norman Gilliland:[chuckles] That’s pretty basic. – Well, and yet not necessarily easy. So from Montesquieu, a law is a rule that applies– has to be a rule that applies generally and equally to everyone. If it doesn’t apply generally and equally to everyone, it’s not a law, it’s an edict, it’s an order, it’s arbitrary power. It’s a king saying, “This is so because I say so.” It’s any number of things. – Selective. – It’s selective, it’s not a law. And a republic should be ruled by law. So the legislature can make only general rules. The executive carries out those rules in individual cases, and the court stands between the executive and the individuals to protect those individuals against the exercise of that operation in order to preserve the generality of the law, prevent arbitrary rule, and preserve rights. So, where then in all of that is this kind of apex Constitutional court function to determine whether laws are constitutional in the first place? And the answer is, Madison wanted a fourth branch.

Norman Gilliland:Really? – It’s called the Council of Revision, and he didn’t invent it. In 1777, New York adopted one of these things. It was a council, in the case of New York, of a governor and the judges of the high court. Madison wanted it to be the president and justices of the Supreme Court. And they would form a council that would review all laws and strike them down, not if they violated the Constitution, if they were just unwise. He was just a council of wise– And I don’t know how else to put this. A council of the wise to review laws and strike them down if they violated the Constitution, or if they were just a bad idea. So going back to what we were talking about representation, right? Part of Madison’s thing is governance by virtuous elites. This is that, this is very, very much that. Why is that different from courts? Because it’s not strictly legal. It’s not limited to legal concerns or legal arguments. This goes right back to what we talked about at the very beginning of this discussion. How did people view the Constitution? Was it a legal list of rules or a philosophical statement? For Madison, it was much more political and philosophical. Therefore, it wasn’t the point to have lawyers or judges interpreting it. It was the point to have wise, virtuous republican thinkers. – Sounds much more flexible. – Very much more flexible. There’s a great debate in the early Supreme Court, the first Supreme Courts leading up to Marshall, about which of these models really ought to apply. And Marshall does two things. He says, number one, the Supreme Court has final total authority to interpret the supreme– the Constitution, even vis vis the other departments, but only on strictly and narrowly legal grounds. Marshall strengthens the court’s authority, but narrows its scope. Madison’s model and in the model of separation of powers, you can see how that works. And in other cases, Marshall does the same thing for the other branches. There’s a great troika. So McCulloch v. Maryland, Marshall writes the opinion that essentially says Congress has general powers, and the limits of those powers are up to Congress. Congress has the powers that it says that it has. [Norman laughs] It’s almost– I’m exaggerating very slightly, but there are some specific restrictions, and those courts can come in and impose. And besides, Congress can exercise these powers all at once, but the executive has various things to say about how this is carried out. – I was going to say that, if Congress can dictate what its powers are, why couldn’t the executive dictate what its powers are? – Oh, because there’s nothing like article one, section eight for the executive. – Uh-huh. – This was not a general theory about all governing powers. It was very specific. So, that Council of Revision is one of the arguments, as I’m sure we all recognize, that Madison didn’t win. We didn’t have one of those. [Norman chuckles] What we had instead was two things, a reviewing court and a presidential veto. – Yeah, right, the veto, as we know, can be very powerful. – That was an alternative– That was an alternative device. So Congress has the power to define what its powers are under article one, section eight, ’cause that’s how that section is written. The president may have the power to define his powers as long as they are executive. But the president can’t infringe on the powers given to Congress. He can’t exercise legislative powers. Back to Montesquieu. The legislature makes general rules. The executive imposes rules in individual instances and individual cases and policies. Those are very distinct areas. So there’s a great debate that can help illustrate the point, I think, and it’s a debate that started in the very first Congress of 1789 and is ongoing to this day in the U.S. Supreme Court at the moment with the Trump administration, but before this, with other administrations. What is the power of the president to dismiss the head of an agency, or a member of the Federal Reserve, or the Secretary of State? – That’s debated in the first Congress? – The very first Congress. And the reason is, not that any of those other offices existed, but in the very first Congress, three offices are created: the Secretary of War, the Secretary of Treasury, and the Foreign Secretary. It’s the beginning of the cabinet. Today, by the way, no one argues that the president doesn’t have control over the cabinet. The cabinet serves the president. Of course, he has to be able to choose them. Of course, they have to be people who support it. No one debates that. But of course, we debate about this massive federal bureaucracy that didn’t exist, nor did anything like it exist in the time that we’re talking about. But even back then… We talked about the Constitution being amendable. The Constitution specifies that high officers of the federal government are appointed by the president with the ratification of the Senate. The review of the Senate. It says nothing about how they’re fired. – Interesting. – Madison called this an oversight. Oops, we forgot. – Seems like one to me. – The Constitution declares pretty specifically who can declare war. Congress, only Congress can declare war, right? It doesn’t say who can declare the end of a war. Oops. One of the ways you can really tell that the early drafters were expecting further amendments is they left so many basic questions unanswered. So, in the first Congress in 1789, there’s a huge debate. What is the relationship between the president and, at that time, members of the cabinet. Never mind the agencies that would come up in the 20th century. And Madison’s view, interestingly, is close to what we now call the unitary executive. His argument was the president must have control of the cabinet and everything that it does. – Okay. – Because that way, the president is accountable for what they do. You don’t want a situation where the president can say, “Hey, I didn’t do this. “Secretary of State did this. Not my problem.” – The buck stops there. – The buck stops over there. – Mm-hmm. – So, for Madison, this went back to representation and accountability and elections and all the things we’ve just talked about. It was not primarily about separation of powers. There were at least three other models that were proposed. One said, no, no, no, no, no. If a person can only be ratified, can only be appointed with the advice and consent of the Senate, they can only be dismissed with the advice of the consent of the Senate, and to say otherwise would interfere with Congress’s powers. Separation of powers. The president can’t have that authority. – There’s some balance there that way. – Maybe. Another version said, no, Congress can make the rules any way they want. If these people can only be approved with the advice and consent of the Senate, the Senate can put conditions on that advice and say, “We approve so-and-so, so long as we can get rid of him later.” And still another model said, no, the president must never have control over the members of the cabinet, or he could become tyrannical and Congress would lose the power of the purse, especially the Secretary of the Treasury. If the Secretary of the Treasury answers to the president, at the time, Washington is what we’re talking about, Washington will have the ability to effectively supplant Congress’s power of the purse. All four of these views were out there. In 1789, none of them won. The three offices I mentioned, Secretary of Treasury, Foreign Secretary, and Secretary of War, were designed differently in terms of whether the president could or could not dismiss people at will. And for the next 200 years, we’ve continued to fight on this question, these two big questions of separation of powers. Where does the court stand with respect to the other two branches of the federal government? And where does the president stand with respect to the entirety of the executive branch? – Plenty of room for interpretation, it would seem, over the years, and what’s sometimes called a brilliantly vague U.S. Constitution. Howard Schweber, it’s fascinating running through some of these ideas as filtered through the thinking of James Madison.

Howard Schweber:Thank you so much. It’s a wonderful– You know, there’s an old line. The past is a foreign– is another country. James Madison’s mind is another country. And it’s a wonderful place to visit. – Constantly changing weather. – The weather is variable. [Norman chuckles] – I’m Norman Gilliland, and I hope you’ll join me next time around for University Place Presents.