pp. 98-9.
Virginia, it is true, had managed to avoid the most objectionable
measures of the postwar years: paper money, postwar confiscations, and laws
preventing citizens (though not their British creditors) from suing for
recovery of debts. To Madison, however, the escape seemed narrow and
increasingly in doubt, nor was it any consolation to a man of continental
vision that the malady seemed national in scope. Throughout America, he was
beginning to conclude, the “multiplicity,” the “mutability,” and the
“injustice” of provincial laws were calling into question “the fundamental
principle of republican government, that the majority who rule in such
governments are the safest guardians both of public good and of private
rights.” The framers of the early revolutionary constitutions, he soon
observed, had thought that “a provision for the rights of persons” (that is,
for republican government) would “include of itself” protection for the rights
of property and for the other liberties that individuals had not surrendered to
the state. Every year, however, was producing rising doubts that this
assumption was correct. “What we once thought the calumny of the enemies of
republican governments,” he would tell the Constitutional Convention, “is
undoubtably true”: wherever “a majority are united by a common interest or
passion, the rights of the minority are in danger”; the rule of the majority
was not assuring a consistent preference for the well-considered interest of
the public as a whole.
pp. 104-5.
Madison had doubtless followed the reports of growing trouble in New
England as he traveled in September from Annapolis through Philadelphia to
Richmond. Reaching the Virginia capital, he had been greeted by alarming
letters from his correspondents in New York, and as the session lengthened, all
his information from the north prepared him for the worst. At this point, he
was taking his correspondents at their word. On November 1, repeating language
from a frightening report from Henry Lee, he told his father that the rebels
were “as numerous” as the supporters of the Massachusetts government “and more
decided in their measures. ... They profess to aim only at a reform of their
constitution and of certain abuses in the public administration, but an
abolition of debts public and private and a new division of property are
strongly suspected to be in contemplation.” On November 5, Washington reported
that a frantic letter from Henry Knox, who had just returned from Massachusetts
to New York, informed him that the rebels’ “creed is that the
property of the United States has been protected from confiscation of Britain
by the joint exertions of all and
therefore ought to be the common property
of all.” Knox suggested, Washington continued, that the Massachusetts
rebels could be joined by
discontented farmers from Rhode Island, Connecticut, and New Hampshire “so as
to constitue a bod of twelve or fifteen thousand desperate and unprincipled
men, ... chiefly of twelve or fifteen thousand desperate and unprincipled men,
... chiefly of the young and active part of the country.” Other correspondents
warned him that the Shayites might be leagued with the Vermonters and that
British agents were encouraging the insurrection. Madison was primed to credit
that as well.
pp. 135-7.
Inconsistencies and errors in the laws could be reduced by skillful
draftsmen. Steadiness and wisdom could be aided by a council of revision, which
would also give the weaker branches of the government a means to guard their
own preserves from legislative usurpations. Still, the legislature was to make
the laws; and given their insistence on a separation of the three great
branches, it was logical for Madison and Jefferson to look for steadiness and
wisdom mostly from a better constituted upper house. In classic theories of
mixed government, the second house was always thought of both as the essential
locus of these missing virtues and as the part of government that would protect
the few against the power of the many. Revolutionary thought had broken only partially
with these conventions. For republicans, of course, the few ere not to be
distinguished from the many by their birth, and they were not to be accorded
different legal rights. Even for republicans, however, it was common to assume
that every aggregate of individuals would naturally contain a few who could be
readily distinguished from the rest by their superior experience, their greater
property, their leisure, or their wisdom. This distinction was a heritage as
old as ancient Greece, and it was strongly reinforced for many revolutionary
thinkers by the circumstances of the middle 1780s. Thus for Madison and
Jefferson alike, the great desideratum was to constitute an upper house that
could impart the steadiness and wisdom missing from the early revolutionary
constitutions, but without infringing the equality of rights to which they were
committed. For Madison, at least, this wish was deepened by a growing
recognition that the rights of propertied minorities were just the rights that
were endangered most repeatedly by overbearing lower houses. It was here, in
fact, that his ideas diverged most clearly from his friend’s; and it was here,
as well, that he was least successful in resolving the increasing conflict of
his liberal with his majoritarian commitments.
As in 1784, Madison agreed with
Jefferson in recommending Maryland’s provision for the indirect election of the
upper house. (Virginia’s was directly chosen by the voters.) Whereas Jefferson,
however, now proposed to change Virginia’s three-year term for senators to two,
Madison proposed to lengthen it to four or five. Moreover, Caleb Wallace’s
request for recommendations on the suffrage prompted some additional
suggestions for ways to make the upper house distinctly different from the
lower and, in consequence, more capable of counterbalancing the will of the
majority with other qualities required by an enduring constitution. To restrict
the suffrage to the landholders, he wrote – which was the practice in Virginia
– would “in time” exclude too many from the franchise. “To extend it to all
citizens without regard to property, or even to all who possess a pittance, may
throw too much power into hands which will either abuse it themselves or sell
it to the rich who will abuse it.” Therefore, Madison proposed a “middle
course”: “narrow the right in the choice of the least popular and ... enlarge
it in that of the most popular branch of the legislature,” as was the practice
in North Carolina and New York. This solution, he admitted, might “offend the
sense of equality which re[i]gns in a free country” (and which he himself had
said in his Memorial was a fundamental feature of republics). Still, he saw “no
reason why the rights of property, which chiefly bears the burden of government
and is so much an object of legislation, should not be respected as well as
personal rights in the choice of rulers.”
When Madison elaborated his
ideas about a constitution for Kentucky., the Virginia struggle over an
assessment to support religion had not yet been resolved. The Jay-Gordoqui
crisis and the prospect of a federal convention lay ahead. Over the succeeding
months, as he prepared for this convention, Madison concerned himself initially
with the debilities of the Confederation, and it was this analysis that led him
to propose a sweeping reconstruction of the federal system. But once he had
concluded that the needs of the Confederation demanded its reordering as a
republic, all of his ideas about the constitutions of the states were relevant
to his proposals. All his discontents – and all the deeper discontents of many
of his colleagues – had to be considered.
In his proposals for Virginia
and Kentucky, Madison did not abandon any of his revolutionary maxims. He still
believed that power can corrupt, that governmental officers will always be
inclined to free themselves from their dependence on the people, and that the
“fidelity” of rulers to the ruled was the essential, first requirement for a
proper constitution. By “fidelity,” it seems apparent, much of what he had in
mind was the responsiveness and faithfulness of rulers to the body of the
people, not to any smaller part thereof. Thus, he thought Virginia’s freehold
franchise was too narrow. He insisted, too, on annual elections of the lower
house, on secret ballots, and on constitutional provisions for maintaining a
proportionality of representatives to population.
By itself, however, as the
states’ experience had shown, a prompt response by government to the majority’s
immediate demands was not the only quality to be desired. “Fidelity” meant
something more. In the circumstances of the middle 1780s, Madison was more and
more inclined to favour measures that would temper the majority’s demands with
wisdom, steadiness, and new protections for the rights of the propertied few
(who were the most conspicuous minority until the struggle for religious
freedom led to new ideas about this problem). Fearing the executive, as
revolutionaries always had, he pinned his hopes primarily on the part of
government that classic theories of the balanced constitution had
conventionally associated with stability and wisdom, favouring an upper house
that would be chosen indirectly or by freehold suffrage. A differential
suffrage, to be sure, accorded poorly with his dedication to equality as well
as private rights, which helps explain his great enthusiasm for a large
republic armed with the capacity to intervene when state majorities insisted on
injustice and thus to solve this problem in a different way. For just this
reason, though, the concept of a differential suffrage graphically suggests the
lengths to which he had been driven by the conflict of his two commitments and
his consciousness that this intrinsic tension would be troublesome however much
the size of the republic was enlarged. For years, he had been thinking of a
range of constitutional devices meant to reconcile his liberal and his
republican commitments, and most of his ideas were interwoven in the
resolutions of May 29. Under the Virginia Plan, one house would be elected by
the people. The second house would be elected by the first from persons
nominated by the states. The resolutions did not merely aim to make the powers
of the central government coequal with its duties. They proposed, as Madison
expressed it, “to perpetuate the Union and redeem the honour of the republican
name.”
pp. 181-4.
In modern commentaries on Madison’s special role at the convention,
nothing has been emphasised more properly or more consistently than his
determination to protect minorities against majority infringements of their
rights. His fear of unrestrained majorities stares out at modern democrats from
page after page of his account of the debates, and it is absolutely clear that
he was most especially concerned for properties minorities among the people:
creditors who had been cheated by Rhode Island’s legal-tender laws, who were
prevented from pursuing private suits for debt, or who were forced by
moratoriums on taxes to forgo the payments promised them on public obligations.
All such legislation, he believed, was morally repulsive, incompatible with
civilised society, inconsistent with the rights that Independence was intended
to secure, and thus increasingly subversive of the revolutionary faith. Holding
these convictions, Madison was not content to hope that an enlargement of the
sphere of republican government would render it less likely that a factional
majority would form. He also wanted to create a federal watchdog over local legislation
and to raise imposing obstacles to national majorities as well, so clearly so
that many modern analysts regard the Constitution as a system of redundant checks,
too often working to defeat all action.
Time and time again, in the
course of the proceedings, Madison spoke forcefully for measures that would
check majority desires. He opposed the popular election of the senate and, at
first, of the executive as well. Notes by King and Lansing quote him as
suggesting that [Mnemotechnique] “the senate ought to come
from and represent the wealth of the nation.” His own notes leave no doubt that
he desired, at minimum, an upper house that would be small enough and firm
enough and far enough removed from popular demands to “interpose against
tempestuous councils,” whether in the lower house or among the body of the people. “What he
wished,” he said, “was to give to the government that stability which was
everywhere called for and which the enemies of the republican from alledged to
be inconsistent with its nature.” To secure it, he was not afraid that
seven years would be too long a tenure for the senate. “His fear was that the
popular branch would still be too great an overmatch for it.” At one
conjuncture, he was even willing to support a nine-year term, although he would
have linked this with a perpetual ineligibility for reelection.
King and Lansing may not have
quoted Madison precisely. Some of his positions changed before the meeting
closed or as a consequence of later, more mature reflection. As he said much
later, the context of the meeting “made it natural” for the convention to be
more concerned for national vigour and for new restraints on popular legislation
“than was perhaps in strictures warranted by a proper distinction” between
temporary evils and problems “prematurely inherent in popular forms of
government.” “I was among those most anxious to rescue [the principle of
self-government] from the danger which seemed to threaten it,” he recollected,
“and with that view, was willing to give ... as much energy as would ensure the
requisite stability and efficacy. It is possible that in some instances this
consideration may have been allowed a weight greater than subsequent
reflections within the convention or the actual operation of the government
would sanction.” It sometimes happened also “that opinions as to a particular
modification or a particular power of the government had a conditional
reference to others which, combined therewith, would vary the character of the
whole.” A nine-year tenure for the senate was probably an illustration of this
final observation. Madison supported this extended term soon after the
convention had decided on election by the legislatures of the states and at the
peak of his concern that such a senate might be dangerously subservient to
state desires.
Still, Madison’s determination
to protect the propertied minority was not a temporary deviation from his
normal course. Neither was the thought that unrestrained majorities could
threaten both the rights of property and the community’s enduring interests,
which he did not identify with the majority’s immediate desires. To modern
democrats, in fact, some of his least attractive statements are the ones that
seem to have been motivated more by his concern about the distant future than
by his alarm about the current situation:
An increase of population will of necessity increase the proportion of
those who will labour under al the hardships of life and secretly sigh for a
more equal distribution of its blessings. These may in time outnumber those who
are placed above the feelings of indigence. ... No agrarian attempts have yet
been made in this country, but symptoms of a levelling spirit ... have
sufficiently appeared in a certain quarters to give warning of the future
danger.
The proper time to make provision for this danger, he believed, was now
– while ownership was so widespread that the majority was as attached to
property as to their other rights. Therefore, he was greatly tempted by the concept of a
freehold franchise. “Viewing the subject on its merits alone, the freeholders of the country would be the safest
depositories of republican liberty. In future times a great majority of the
people will not only be without landed but any other sort of property.” This
propertyless majority might then combine against the rights of property “or,
which is more probable, they will become the tools of opulence and ambition.”
This speech embarrassed Madison
when he reread it later in his life. It was the only one, in fact, on which he
later wrote two notes disclaiming his position at the meeting. “Men cannot be
justly bound,” he wrote, “by laws in [the] making of which they have no part.
Persons and property being both essential objects of government, the most that
either can claim is such a structure of it as will leave a reasonable security
for the other.”
As this later comment shows,
however, Madison was not embarrassed by his view that property deserved
protection, only by the thought that this concern had led him to neglect
another fundamental precept of the Revolution. Even in the aftermath of Shay’s
Rebellion, he had not in fact forgotten that “the rich may oppress the poor,”
that “property may oppress liberty.” At no point in his life did he believe that the protection of the rights
of property was more important than
the people’s right to rule. This was, indeed, the very point on which he may
have differed most profoundly from some others at the meeting. What he did believe, however – and believed throughout the rest of his
career – was that “in a just and a free government the rights both of property
and of persons ought to be effectually guarded,” that the former had been
gravely violated during the preceding years, and that transgressions of these
rights were likely to become more threatening as ownership decreased.
All of these considerations – and the last not least – were fundamental to his
thought about the purposes and necessary character of constitutional reform.
Passage after passage from the
records of the meeting strikes the reader once again with the intensity of
Madison’s revulsion from conditions in the states. Everywhere, he was
convinced, experience had shown that all effective power tended to be sucked
into “the legislative vortex,” that legislative power tended to be concentrated
in the lower house, and that the lower houses, when unchecked, were dangerous
custodians of private rights and public good. He plainly wanted multiple
impediments against a federal replication of this problem. Accordingly, when
urging that a legislative veto should be vested in a council of revision, he
observed that even the combined resistance of the president and judges might
prove insufficient to defeat the legislature’s tendency “to absorb all power.”
This was the real source of danger to the American constitutions,” he insisted,
that it “suggested the necessity of giving every defensive authority to the
other departments that was consistent with republican principles.” Again, when
he opposed the substitution of two-thirds for the three-fourths currently
required to override a presidential veto, he argued that experience had shown
that all the checks attempted in the states were insufficient to defeat
“legislative injustice and encroachments.” In August, he observed that the
convention planned to frustrate legislative usurpations by employing two
devices borrowed from the constitutions of the states: a senate modeled on the
Maryland provision for an indirect election, and a veto modeled on New York’s. “Separately,”
he argued, these devices “had been found insufficient.” Whether they would
prove effective when combined was still unclear, but he preferred to take
additional precautions. For example, near the close of the convention, in order
to avoid a legislative choice when there was no majority in the electoral
college, he moved to make the electoral decision final even if as few as a
third of the electors were agreed.
Here, however, it is crucial to revert again to Madison’s
original intentions and to call insistently for equal emphasis on the other
side of his distinctive role at the convention, which was evident, indeed, in
several of the passages just quoted. For, by focusing excessively on his
undoubted fear of unrestrained majorities, as well as by confusing his
determination to erect a “national” system with a wish for a consolidated one,
many studies leave a false impression of his overall position. But passage
after passage from the records of the Federal Convention also show that Madison
intended to restrain the legislature and the people only to the point that this
appeared consistent with republican commitments. Although he was convinced that
“the preservation of republican government” required effective checks on
instability and legislative usurpations, he was also certain that it “required
evidently at the same time that in devising [these], the genuine principles of
that form should be kept in view.” In emphasising his determination to restrain
majority excesses, we should never let outselves forget that it was popular
self-governance that he was working to preserve.
p. 204.
The many contributions of this famous essay, Federalist no. 10, are so well known that they should not require
elaborate discussion. On the authority of Montesquieu, opponents of the
Constitution endlessly repeated that republican self-government was
inappropriate for politics of great extent. Madison’s inversion of this
powerful convention was the most impressive answer to the most profound
objection to the Constitution. Drawing silently on David Hume, but mostly on
the lessons of the last ten years, he argued that the truth about a people’s
government was nearly the reverse of what some “theoretic politicians” had
supposed: popular regimes were likely to be stablest, longest-lived, and freest
from a factious spirit in direct proportion to their size. To make this
argument complete, he carefully distinguished modern representative republics
from the classical democracies that Montesquieu had used as archetypes of
popular regimes. And in the character of the United States, he found materials
to challenge suppositions that had been embedded in the theory of the mixed
republic since the days of ancient Greece. From Aristotle forward, advocates of mixed or
balanced governments had focused on the need to counterpoise the wishes and to blend the virtues of the many and the few. Madison was still
determined to secure the virutes that this long tradition had associated with
these “natural” social groups; his condemnation of majority injustices still
emphasised the danger to minorities (especially to properties minorities)
whenever overbearing power rested with the many. But in America, as he
conceived it, people did not naturally divide into two social groups; and in
the cultural and regional variety of the United States, he saw a prospect that
the multiplicity of social differences would control their tendency to do so.
The classic conflict of the many and the few could be contained in the United
States without confiding portions of political authority to officers who would
be independent of majority control.
p. 249-50.
Writing in The Federalist, he
had again affirmed the warning. “Nothing short of a Constitution finally
adequate to the national defence and the preservation of the Union can save
America from as many standing armies” as there are states or separate
confederacies, he had insisted, “and from such a progressive augmentation of
these establishments in each as will render them ... burdensome to the
properties and ominous to the liberties of the people.” Without the general
union, liberty would everywhere be “crushed between standing armies and
perpetual taxes.” The revolutionary order would collapse.
Henry “tells us the affairs of
our country are not alarming,” Madison complained. In fact, however, both the
federal and state conventions had assembled in the midst of an immediate crisis
of American union, and the Union was the necessary shield for the republican
experiment that Henry wanted to preserve. Nor was even this the sum of current
dangers. The nation also faced a second crisis, which Henry failed to recognise
in his repeated condemnations of “the tyranny of rulers.” In republics, Madison suggested, “turbulence, violence, and abuse of power
by the majority trampling on the rights of the minority ... have, more
frequently than any other cause, produced despotism.” In the United States
– even in Virginia – it was not the acts of unresponsive rulers, but the
follies and transgressions of the sympathetic representatives of state
majorities that tempted growing numbers of the people to abandon their
revolutionary convictions. “The only possible remedy for those evils,” he
protested, the only one consistent with “preserving and protecting the
principles of republicanism, will be found in that very system which is now
exclaimed against as the parent of oppression.”
With these words the framer
introduced the train of reasoning that had produced another of his crucial
contributions to the Founding. In every state the lower houses had struggled to
protect their citizens from the economic difficulties of the middle 1780s. Many of their
measures – paper money, laws suspending private suits for debt, postponements
of taxation, or continued confiscations of the property of former loyalists –
had interfered with private contracts, endangered people’s right to hold their
property secure, or robbed the states of the resources necessary to fulfill
their individual and federal obligations.
Essentially unchecked by the
other parts of government, the lower houses had ignored state bills of rights
and sacrificed the long-term interests of the whole community to more immediate
considerations. As this happened, Madison believed, a disenchantment with
democracy was threatening to spread through growing numbers of the people, who
might eventually prefer a despotism or hereditary rule to governments unable to
secure their happiness or even to protect their fundamental rights. The crisis
of confederation government, as he conceived it, was compounded by a crisis of
republican convictions, and the Constitution was the only instrument that promised
an escape from all the interlocking dangers with which liberty was faced.
Madison assumed a very special
place among the founders – more special, I would argue, even than is commonly
believed – because he personally bridged so much of the abyss between the
revolutionary tribunes such as Henry and the aspiring consuls such as Hamilton,
with whom he formed a brief and less than wholly comfortable alliance. He fully
shared with higher-flying Federalists not only the determination to invigorate
the Union, but also the
emotional revulsion from the populistic politics facilitated by the early
revolutionary constitutions – from conditions Elbridge Gerry called “an excess
of democracy.” Madison believed, as Hamilton [had], that revolutionary
governments were so responsive to the
wishes of unhampered, temporary state majorities that they dangered the
unalienable rights that Independence was intended to protect. He agreed with
other Federalists as well that just, enduring governments demanded
qualities not found in popular assemblies: protection for the propertied
minority (and others); the wisdom to discern the long-term general good; and
power to defend both against more partial, more immediate considerations.
pp. 313-4.
Supporters of the secretary’s plan were stunned by Madison’s proposal,
much as most historians have been. Elias Boudinot immediately replied that the
Virginian’s motion did more credit to his heart than to his head. For
government to overturn the former owners’ free decisions to assign their notes
was hardly justice by his definition, besides which it was doubtful that the
records would permit the government to discover who the original creditors
were. As other moved to Madison’s support, a host of one-time allies
strengthened Boudinot’s complaint. Theodore Sedgwick pointed out that the Virginia’s plan would “strip one
class of citizens, who have acquired property by the known and established
rules of law, under the specious pretense of doing justice to another” – and at
a cost of [$1.6 million] more per year than Hamilton’s proposal. Over
the succeeding days, Wadsworth, Laurence, Boudinot, and Ames repeatedly
attacked his motion, objecting first to its unworkability and devastating
consequences for the nation’s public credit, but insisting too that it was
wholly inconsistent with good faith. Assignability, they argued, had been part
of the initial contract. Proceeding on that basis, secondary holders had
assumed a risk, employed no fraud, and given value for certificates received.
Madison could only say that
this was not “an ordinary case in law,” but one that had to be decided “on the
great and fundamental principles of justice,” to which the heart was truly the
best guide. The government was fundamentally responsible for the predicament of
its disbanding soldiers, and Madison could not “admit that American ought to
erect the monuments of her gratitude, not to shoe who saved her liberties, but
to those who had enriched themselves in her funds,” “The injustice” had been
“flagrant” and “enormous,” making its “redress a great national object.” “A
government ought to redress the wrongs sustained by its default.”
Still, the critics made a
devastating case – so telling, for that matter, that historians have been as
skeptical about the framer’s motives as most of his contemporaries were. Although
the transfer of the debt had started early in the 1780s, Madison had never
hinted that he would support discrimination. For him to do so, many thought,
was a “perfidious desertion” of his principles of public conduct, marking him
as an “apostate” from the maxims he had long supported. And, indeed, these
critics made a point that we should understand in all its force and depth.
Opponents of his plan did not just say that it was costly, probably unworkable,
and deeply threatening to the republic’s credibility with foreign and domestic
lenders. They saw it as a form of thievery, as more dishonest than the measure
Madison opposed. And there is no denying that in point of
simple fact, discrimination would have been as bald a governmental interference
in existing private contracts as any of the local legislation Madison had
frequently condemned. It would, quite literally, have taken property from some
and given it to others. It would have been more redistributive in its intent
and operation than Rhode Island’s law requiring creditors to take repayment in
the state’s inflated paper. But for these very reasons, I would think, it seems plausible that Madison
was acting from expediency alone: that this was really a manoeuver to recoup
his damaged standing in Virginia, to defeat assumption, or to curry favour with
the rabble out of doors. Something deeper was at work; and if we hope to grasp it, we are best
advised to take him at his word and put
his reasoning in context. Only thus can we recover his assumptions.
Madison’s contemporary papers
throw no light on his decision to support discrimination. They do not even show
that he had made this choice before returning to New York. But this is quite
consistent with his late-life recollections. Here, he wrote that his decision
to support discrimination grew from “the enormous gain of the [secondary]
holders, particularly out of soldiers’ certificates, and [from] the sacrifice
of these, to whom the public faith had not been fulfilled.” In 1783, when he
condemned the concept of discrimination, “the case of this class of creditors
was less in view. ... Until, indeed, the subject came close to view and the
sacrifice of the soldiers was brought home to reflection, he had not
sufficiently scanned and felt the magnitude of the evil.” Therefore, he did not
propose discrimination in November 1789, when he replied to Hamilton’s request
for his advice on managing the debt. Instead, the thought “grew rapidly on him
on his return to Congress as the subject unfolded itself and the outrageous
speculation on the floating paper pressed on the attention.” Even congressmen
did not restrain themselves from purchasing certificates through brokers at the
same time that their actions were transmuting those certificates “into the
value of the precious metals.”
p. 357.
“The boasted equilibrium” of Britain’s constitution, he maintained in
“British Government,” was not a consequence of institutional arrangements but
of popular opinion in that country – in so far as Britain really had (or had
historically possessed) a governmental equilibrium at all. Madison reminded
those who were inclined to praise the British system or to imitate the policies
of British statesmen of the Lockean foundations of the Revolution. “As a man is said to have a right to his property, he may be equally said
to have a property in his rights”: in his
opinions and their free communication; in the practice and profession of his
faith; in “the free use of his faculties
and free choice of the objects on which to employ them”; and, in short, in “everything to which a man may attach a value ... and
which leaves to everyone else the like advantage.” Government was
“instituted to protect property of every sort,” not merely property defined as
one’s material possessions. No
government was worth admiring which did not “impartially secure to every man
whatever is his own.” And judged by these criteria, he made it clear, neither
the British government nor British economic practices were worthy “pattern[s]”
for Americans to follow. However well these guarded individuals’ material
possessions, the British system also violated a myriad of ways “the property
which individuals have in their opinions, their religion, their persons, and their faculties.” Through
its mercantilist economic system and its grinding and invasive taxes, the
British system even violated “that sacred property which Heaven, in
decreeing man to earn his bread by the sweat of his brow, kindly reserved to
him in [also permitting] the small repose that could be spared from the supply
of his necessities” for leisure and relief from his fatigues.
p. 366.
From the progressive era to our own, polemicists and scholars have
disputed the intentions of the founders; and as modern scholarship has put him
in his place as first among the framers of the Constitution, first among the
writers and tacticians who secured its ratification, first among the
congressmen who put a working federal government into effect, and first (once
Jefferson’s imposing shadow was removed) in organising the resistance that
eventually became the nation’s oldest political party, Madison has naturally
become a major focus for these disputations. Despite two hundred years of
change, Americans prefer to stress the continuity of their political regime and
thus to look back to the years surrounding the adoption of the Constitution for
the principles behind it. There are still political advantages in an appeal to
the authority of Madison or Jefferson or other “Founding Fathers,” still a
strong temptation to enlist them in a cause. And there is still an inclination,
as there was in Charles Beard’s day, to blame them for the evils thought to be
endemic in the system. Indeed, as modern social critics have increasingly
associated the “empowerment” of disadvantaged groups with how we understand and
write about the past, as some of them have set about deliberately to
reconstruct this understanding from the point of view of people who were once
ignored, the inclination to condemn the founders may have risen to the point
that it is stronger now than during Beard’s own time. Progressives blasted the
creators of a system that protected property at the expense of other rights and
seemed to stand between the people and reform. Modern critics add that it
protected slavery, permitted the extermination of the natives, and excluded
women from political participation.
p. 368.
The Madison who speaks to us today through modern secondary studies is
in largest part a creature of our own interpretive conventions. It is not James
Madison we hear, but through thick earmuffs, a dramatic, distant character who
echoes back imperfectly the fears or aspirations of a later time. The eighteenth-century gentlemen whose
most particular contempt was saved for the projectors, jobbers, and promoters
of his day speaks powerfully, to one time, as the theorist of bourgeois
counterrevolution. To another, he appears the spokesman (villanious or
admirable, according to the writer’s own convictions) for the modern
“commercial” republic, which is pretty much what he profoundly hoped America
would not become. The man who thought
he was devoting his career to vindicating liberty – by which he meant a system based entirely on the
people and responsive to their well-considered will – is summarised as having meant that ordinary people ought to have as small a part in governing as democratic
notions would permit, so that the propertied might long protect themselves
against the prospect of redistribution. The constant champion of charters and the
ablest advocate that the United States has ever seen of an extended, but
compound, republic is recast as a New Dealer who retreated from and then
dissembled his original desire to centralise the system. The living figure who
attempted desperately to get around a
choice between two partially conflicting conceptions of human freedom, who
tried to set a standard of disinterested public service, and who urged
affectionate consideration for the interests of the other citizens who were
embarked in the collective effort, is represented as a theorist who moved the
nation from its classical republican to modern liberal foundations and assured
it that a calm pursuit by everyone of their particular self-interests would
suffice for modern times – if only, by mechanical contrivances, ambition could
be made to counteract ambition.
pp. 371-3.
Madison was not, of course, a democrat by current definitions of that
word. His concept of the people usually excluded large proportions of the
population. In addition, he decidedly did not believe that the
immediate and unelightened inclinations of majorities of people should be put
into effect without resistance. But this was not because he valued
order and protection for the rights of property above all else, although he was
in fact quite deeply dedicated to protecting both these things. It was because he knew that every kind of right could be endangered by
majorities of people, especially
when heated passions were involved. He may have been, for modern tastes,
markedly conservative defender of republican self-government. This is quite
apparent if we weigh him on a modern scale. But we should not forget that what
he was committed to conserving were the most profoundly revolutionary
institutions and convictions of his time.
Madison’s commitment to the
people’s rule may not have been as eloquent, as unreserved, or as incautious as
Jefferson’s or Thomas Paine’s or that of some of his opponents in the
ratification struggle (who, however, were resisting a proposal that would place
substantial federal powers, for the first time, in the hands of the immediate
representatives of the voters). His was not the sort of democratic faith
attractive to the radical imagination, in his own time or in ours. For all of his,
however, Madison was very much a democrat by eighteenth-century standards – and
even by some tests that many of the most self-righteous modern democrats would
fail. Like
Jefferson, who used this term, while Madison did not, he clearly hoped that
“natural aristocrats” would rule, not any Dick or Jane who might as well be
chosen by blind chance. (Most founders were “elitists” in this sense.) But “natural
aristocracy,” the two Virginians thought, should rest exclusively on merit and
the people’s recognition, not on wealth, or birth, or formal educational
attainments. Moreover, the “aristocrats” who led should never, as they saw it,
cease attending to the people’s needs and will. [Fart sound] Madison was
certainly as firm if not as eloquent a spokesman for political equality as
either Jefferson or Paine, and this does not exhaust the senses in which he was
thoroughly entitled to this label. However much he feared an unrestrained,
self-interested, and passionate majority of people, Madison would also adamant
that once the proper checks had been imposed and passing passions had been
cooled, the will of the majority must rule. Our century has blamed him for his
fears or praised him for his wisdom. It could just as justifiably have asked if
he was really hopelessly romantic. For, in truth, how many of our own
contemporaries share his faith that the majority of ordinary people can and
should be trusted once their will has been matured – even with constructing or
remodeling the fundamental law? How many modern democrats believe, with
Madison, that fundamental liberties of both the private and
the public sort
are safer with the people than they are with an elite of federal
officers and judges?
Americans (whatever others may
believe) prefer to see themselves as a pragmatic people: realistic and
contemptuous of speculative theory. The Constitutional Convention has been
celebrated by admirers for its practical solution to the problems of its day.
It has been blamed by others for its heartless bargaining among a set of men
who reasoned more from their experience and current needs than from the noblest
aspirations of their theory. Similarly, Madison has seemed to some a realistic
hero of the Founding: the sober man of prudence who detoxified the democratic
Revolution. To others, he has seemed the coldly realistic champion of property
and private rights who led the way to the emasculation of the democratic
promise. His contemporaries often saw him in completely different terms: as an
imperial, infatuated stickler for the merely theoretic; as a man of honest
heart and probably unrivaled knowledge who, for all his brilliance, had too
little understanding of the world.
p. 472n77.
See the discussion of his “Memmorial and Remonstrance against Religious
Assessments” in Chapter 3. Consider also his essay “Property” (National Gazette, Marcy 27, 1972, P-JM
14:266-68), which seems to me consistent with the intensively analysed
passage from Federalist 10:58. Here,
as in the later essay, Madison took great care to make it clear that “the first object of government” is to protect “the diversity in the faculties of men from which the rights of property
originate,” not simply to protect property more
narrowly defined.
Banning, Lance. The Sacred Fire of Liberty: James Madison and the Founding
of the Federal Republic (NY: Ithaca, 1998) Cornell University Press. Paragraphs
pertaining to Property according to the index.