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.

  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.