Constitutional Convention

Studies of the Constitutional Convention, both “empirical” and more “impressionistic,” almost always emphasize its multiplex divisions: small states vs. large, “pure” federalists against proponents of a large republic, planting states against commercial interests, south against north. There is no denying the necessity of close attention to these conflicts. The Convention was a battleground for disagreeing politicians and competing state and sectional concerns. It succeeded, as the textbooks say, because the clashing delegates discovered ways to compromise their sharpest disagreements. Analyses of its divisions have taught us much of what we know about the way in which the document emerged.[1]

For all its benefits, however, there are also ways in which a fascination with conflicting coalitions may have interfered with insight and imparted partial and misleading images of how the meeting worked. I do not merely mean that a repeated emphasis on conflicts and divisions can encourage a neglect of the cooperative dimensions of the meeting (though this, of course, has sometimes been the case).[2] I mean to call attention also to another sense in which we have repeatedly applied a static method of analysis to a dynamic situation and thereby missed a major aspect of the story.

This can happen even when the votes in the Convention are analyzed in series, showing that the coalition configurations shifted over time as compromises settled certain issues and new disputes arose.[3] It can happen even when the ideological positions of the delegates are called upon to help explain statistical results, along with the specific interests of their states.[4] The most sophisticated studies of conflicting coalitions still do not allow for the continual necessity of every state and every member to adjust to the dynamics of the process, one in which the general character of the emerging constitution might he changed with each new vote and every individual might be compelled to readjust repeatedly to a collective effort to resolve a common set of problems.[5]

James Madison was a Virginian. He had represented the Confederation’s largest state for years in the Confederation Congress, where the majority was often fiercely jealous of its claims. He was a southerner, a continentalist, and a defender of the west. He was a scholar, a republican, and an effective legislative politician.[6] All these facts are vital to a comprehension of his stands at the Convention. All of them together offer only an inadequate beginning toward an understanding of his course and contributions.

This is partly so, of course, because James Madison was too complex a thinker to be neatly typed, because he can be fitted only loosely into categories that could pull him several ways at once. But it is so, as well, because the Constitutional Convention forced his active mind into a fluid interchange with others, all of whom were struggling day by day to understand a changing plan, most of whom were listening to (as well as battling with) the other members. Long after the Convention had adjourned, Madison insisted that there were few delegates who did not change in the progress of the discussions the opinions on important points which they carried into the Convention, …few who, at the close of the Convention, were not ready to admit this change as the enlightening effect of the discussions.[7] This was plainly true of Madison himself, whose numbers of The Federalist were partly a confession of the things that he had learned. And yet our studies seldom make a full allowance for this kind of change.

The following discussion stresses Madison’s experience of the Convention. This seems to me to have at least two uses. First, by general agreement, no one came to the Convention with his thought more thoroughly in order than “the father of the Constitution.” If he was influenced by the meeting, changing his original opinions on several consequential points, others surely changed their minds as well. Madison’s experience may therefore help to highlight the dynamics of the joint endeavor, the process of deliberation. In addition, I believe there is a sense in which a “theory” of the Constitution started to emerge in course of the proceedings, a theory we might try to see as immanent in the decisions and debates. When Madison and Hamilton completed the construction of this theory, both accomplished this in part by sorting back in memory through every stage in the Convention’s work, comparing its decisions to the hopes with which they had begun, and building on the lessons they had learned. From this perspective, the Convention proved the most important episode in the Virginian’s lifelong education. His participation in the framing was the challenge he required in order to produce a democratic classic.

The Initial Contribution

Madison is often called “the father of the constitution” partly for his principal responsibility for the Virginia Plan. These fifteen resolutions, introduced by Edmund Randolph on May 29, as soon as the Convention had agreed upon its rules, captured the initiative for radical reform. Though they were greatly modified before the work was through, they set the meeting’s early course and served throughout the summer as the starting point for its deliberations. They succeeded so impressively in setting forth some general guidelines for the meeting that interpreters have sometimes overlooked the critical consensual parameters within which many of the arguments occurred.

The Virginia Plan did not propose to strengthen the existing federal system, though this is probably what a majority of states expected the Convention to propose. Instead, it offered to reconstitute the current, single-chamber central government on lines suggested by the constitutions of the states, and then to vest this national republic with the right “to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” To guarantee the central government’s supremacy wherever common measures were required, the reconstructed articles of union would be ratified by state conventions of the sovereign people, and federal powers would include authority to veto local legislation inconsistent with the federal charter or “to call forth the force of the Union against any member of the Union failing to fulfill its duty.” [8]

Several delegates were rudely jolted by the daring scope of these “preliminary propositions.” Few were thoroughly prepared for such a sweeping change. Yet Madison and his Virginia colleagues had correctly sensed, as other delegations trickled into town, that early sentiment was overwhelmingly opposed to patchwork efforts to repair the tottering Confederation. Nearly all the members of the Constitutional Convention believed that an effective central government required, at minimum, an independent source of revenues, authority to regulate the country’s trade, and power to compel obedience to its legitimate commands.[9] Nearly all agreed, as well, that powers that the colonies had stubbornly denied to England would have to be accompanied by firm securities against the possibility of their abuse. The first essential contribution of the Resolutions of May 29 was to suggest that this conundrum might be solved by trusting necessary powers to a well-constructed representative republic. They proposed a Revolutionary answer to the Revolutionary fear of grasping central power.

And before the hesitant could catch their breath, they found that the agenda for the meeting had been vastly broadened. The Virginia Plan not only sketched a radical solution to the problems of the union. It also drew the delegates inexorably into a reconsideration of the fundamental nature of republics, seizing here, as well, on an original consensus of the meeting. For although they recognized-and mostly shared-the people’s fierce commitment to a democratic Revolution, nearly all the delegates were as alarmed by popular abuses in the states as by the ineffectiveness of the Confederation Congress. Everywhere, as Elbridge Gerry phrased it, the country seemed to suffer from “an excess of democracy.”[10] The will of unrestrained majorities, as Madison preferred to say, had often proven inconsistent either with the rights of individuals or with the well-considered public good, and yet the authors of the early Revolutionary constitutions had underestimated dangers of this sort by trusting too much power to the lower houses of assembly, which were not effectively restrained by governmental branches less immediately responsive to majority demands.[11]

Sound republics, the Virginia Plan suggested, should be built upon two legislative houses: one elected by the people; the other chosen in a way that would remove its members from the whims of the majority and thus assure continuing protection for other public goods. The legislature should be balanced by a separate executive, and the judiciary should be independent of them both. Through almost four months of sometimes bitter quarrels, there was little serious dispute about these fundamental principles of governmental structure. Even members who resisted the creation of a national republic were determined not to replicate the errors they believed had been committed in the states. The second contribution of the Resolutions of May 29 was therefore to elicit and direct a general search for principles and structural devices that could guarantee a place for governmental energy and wisdom, as well as for responsiveness to popular demands. And this cooperative endeavor was as real a part of the proceedings as the contest of specific interests-as real and as responsible for its success.

Madison’s Preliminary Thinking

Madison was not, and never claimed to be, the author of Virginia’s Resolutions. The whole Virginia delegation caucused daily while the great Convention waited for a quorum, harmonizing their opinions and anticipating that the other states would be receptive to some propositions from their larger sister, which had taken the initiative in bringing a successful meeting into being. There are no surviving records from these talks, and the participants agreed that all of them would be as free as any other member to dissent from the proposals, which they prevailed upon their governor to introduce. Madison, however; was the man to whom Virginia politicians customarily deferred on federal issues. All the key provisions of the plan had been suggested in his pre-Convention writings. Contemporaries understood that it was principally his work, and there is nothing to suggest that any of its major points were inconsistent with his wishes.[12]

Madison arrived in Philadelphia the best prepared of all who gathered for the Federal Convention. Recognized since early in the decade as a leading advocate of federal reforms; he had initiated more specific preparations for the meeting sometime just before or shortly after the Annapolis Convention of September 1786. He made elaborate research notes on the histories and structures of other ancient and modern confederacies.[13] In letters to his friends, he analyzed the ills of the Confederation and elaborated a corrective.[14] Just before the Federal Convention met, he wrote a formal memorandum on the “Vices of the Political System of the United States,” which Randolph may have read before the speech with which he introduced his resolutions.[15] The evolution of the plan and Madison’s initial purposes and thinking can be confidently reconstructed from these sources:

They suggest–and it is seldom emphasized enough by modern scholars-that Madison began with an analysis of the relationship between the central government and states, though he was also much alarmed by what was happening within the thirteen “members” of the union. He began, moreover, with a basically conventional conception of the proper spheres of state and federal action. Close attention to this fact and to the course of his analysis are critical to better understanding of his purposes and contribution. Many of the most persistent misinterpretations of his conduct start when we discount his early concentration on the federal relationship and jump immediately to ways in which his plan would have enlarged the sphere of federal action or addressed his deep concern about conditions in the states. The Virginia Plan did certainly incorporate these other objects, which were not less dear to Madison than dominant interpretations would suggest. But the Virginian’s first and most important contribution to the framing did not lie in his objections to contemporary definitions of the proper business of the union or in radical suggestions for additions to its duties. It lay in his conclusion that the fundamental flaw of the Confederation was its irredeemably defective structure.[16]

As he thought his way toward the Convention, Madison concerned himself from the beginning less with the necessity of redistributing responsibilities between the central government and states than with the inability of the existing central government to do the tasks that everyone admitted were its proper business. “Positive” additions of authority were needed, his earliest reflections ran, so that the powers of the general government would reach all cases in which “uniformity is proper,” “as in trade, &c., &c.” [17] These additions, he was quick to see, held sweeping implications, which I shall come to shortly. But the striking fact about his earliest, brief comments on reform is that he gave so little space to positive additions of this sort and that he plainly said that such additions ought to be confined to instances where uniformity was needed.

Little space would do for Madison’s initial comments on additions to the union’s duties–partly, we shall see, because his thoughts were not extremely novel on this subject, but primarily because he was extremely eager to proceed to the essential point, which was that no additions to the positive responsibilities of the existing central government could possibly suffice. “However ample the federal powers may be made,” he wrote, “or however clearly their boundaries may be delineated on paper, they will be easily and continually baffled by the . . . states” unless accompanied by further changes rendering the general government “clearly paramount” to the state legislatures and capable of acting without their “intervention.”[18]

With the exception of the power over trade, Madison believed, the current Articles of Union granted Congress positive authority to do most of the things a general government should do–power even to require the states to raise the revenues it needed.[19] Nevertheless, the union was in peril of collapse, and the republican experiment itself in deadly danger. The fatal failing, then, was less a faulty definition of the objects of the union than the inability of the existing central government to execute its acts without cooperation from the states. State governments, he wrote, were necessary instruments of federal action, but they were not amenable to federal commands. They could “rejudge” and countermand congressional decisions, take conflicting actions of their own, or frustrate federal measures simply by neglecting to fulfill their legal obligations. The Confederation had the “form,” but lacked the “vital principles,” of a political constitution. It was a government on paper, but a league of sovereign states in structure and in operation.[20]

Probing for essentials and placing the American Confederation in historical perspective, Madison identified three fundamental ills: the inability of Congress to enforce decisions that were plainly in its province; the inability of the Confederation to achieve unanimous agreement on amendments favored by a huge majority of states; and consequent attempts by several of the individual republics to secure by separate legislation ends that called imperatively for common action.[21] How, he asked, could uniformity be actually secured within that relatively small but vitally important sphere where nearly everyone agreed that uniformity was needed? Not, he answered, simply by extending the responsibilities of Congress, which was unable to perform its present duties. Although new grants of power were required in order to perfect the definition of decisions that belonged in federal hands, the most complete authority would still prove “nominal” unless the general government was actually obeyed. Constitutional reform, to be effective, would require two further changes: the people, from whom all authority derived, would have to ratify the work of the Convention; and the general government would have to be empowered with a right to veto all state laws. The sovereign people were the only agency who could remake the state as well as the federal constitutions, commanding the submission of the local governments where general interests were involved. A federal negative on local legislation, formerly a power of the British crown, might make it possible for the confederation government to guard its limited preserve against encroachments by the states, as well as “to restrain the states from thwarting and molesting each other, and even from oppressing the minority within themselves by paper money and other unrighteous measures which favor the interest of the majority.[22]

Madison’s insistence on a federal right to veto all state laws has usually been taken as an indication of how far he wished to go toward a consolidation of authority of central hands.[23] This is a serious mistake. In context, the idea emerged precisely from the framer’s wish to find a constitutional device that would secure the general government’s supremacy within a system where the overwhelming burden of political responsibilities would still be carried by the states. It was an effort to create a “sovereign” central government by one who still assumed that there must be a sovereign somewhere, but who also still assumed that the United States was to remain a federation of republics, whose general government would be responsible for only certain, common duties. The problem, Madison believed, was to prevent the states from “baffling” federal measures and from “intervening in the federal sphere, which is all he meant when he insisted that effectual reform must make the states “subordinately useful.” [24] Far from thinking of the veto as an instrument of central aggrandizement, he would never have arrived at the idea if he had not thought so habitually in terms of separate state and federal duties, which he was trying not to intermix (though with imperfect mental tools). Thus, he carefully distinguished this “defensive power” from the “positive responsibilities the central government would have, and he insisted that he favored it because it struck him as the minimal “abridgement” of the local “sovereignties” consistent with a lasting union.[25]

My object here is not to palliate a bad idea or to deemphasize its central role in Madison’s preliminary thinking. But it is absolutely vital to distinguish Madison’s intentions from the way in which a universal federal veto might in fact have worked. This power might, in operation, have resulted in enormous central intermeddling in the business of the states. The great majority in the Convention thought it would. But whatever we might think about this question, it is critical to understand that this was not its purpose and would not have been, in Madison’s opinion, its effect. Thomas Jefferson saw this at once when he objected to the negative on grounds that the “patch” was not commensurate with the “hole.” Not more than one in every hundred local acts, he wrote, would concern the Confederation as a whole, “but this would give Congress a power they ought not to have over the 99″ in order to get at the one, “upon a presumption that they will not exercise the 99.” Madison was, indeed, presuming that the former royal prerogative would not be abused if placed in responsible hands–and this was not a wise presumption from his own perspective. But the federal negative, as he conceived it, was never meant to concentrate decision-making in the hands of federal officials. It was intended to create a legislative power rather comparable in operation to the modern workings of judicial review (complete, we might remark, with modern readings of the Fourteenth Amendment) [26] Grasping this will make it possible to recognize more clearly both how absolutely indispensable for the Convention were the insights Madison achieved before most delegates were even on the scene, and yet how different were his original proposals from the document he signed.

When the Convention opened, Madison had analyzed the federal problem with a critical acuity that proved unanswerable by the opponents of his plan.[27] That plan was the essential step toward the decision to completely reconstruct the federal system. Yet Madison’s analysis had overreached his great, though limited, ability to think his way to a solution of the problems he perceived. He had identified the problem as state “intervention” in the federal sphere, and he proposed to solve it by suggesting ways in which the states might be excluded from their current role in making federal decisions, compelled to execute the federal government’s commands, and blocked from taking independent actions that could damage other states or vital national interests. But because he thought of the Confederation as an instrument for doing what the states could not accomplish on their own, because he was determined to define a “middle ground” between state sovereignty and a consolidated national government,[28] it did not occur to him immediately that a reconstituted central government might never need to call upon the states at all. Thus, the pre-Convention letters advocated both the federal veto and a federal power to coerce delinquent states. They assumed that the reconstituted central government would still rely upon the states for requisitions and for other actions necessary to enforce its laws.[29] They demonstrate, in short, that Madison did not, as yet, consistently envision a regime that would derive entirely from and act exclusively upon the individual members of society. Though he was moving toward this thought-and moved the whole Convention in the same direction–the Virginia Plan proposed to place a great republic at the head of a confederation of republics. It was still a partly federal, and not a wholly national, solution–in this sense and in its major author’s wish to constitute a central government whose powers would be plenary, but also limited to matters that the states were individually incompetent to handle. When the Constitutional Convention opened, neither Madison nor anybody else possessed a well-developed concept of concurrent governments, neither one of which would actually be sovereign.[30]

Still, Madison’s peculiar genius carried him habitually to the relationships between political phenomena that others thought of as discrete. He was instinctively inclined to press relentlessly to basics, to grapple with complexity by slicing through the issues to the principles involved. These qualities were part of what contemporaries had in mind in praising him as a distinctive mixture of the scholar with the politician (or in condemning him as an impractical theorist). Because of them, the Resolutions of May 29–and the completed Constitution–were a good deal more than an attempt to solve the federal problem.

When Madison assessed the nation’s ills, he found two thoroughly entangled perils. He had long ago concluded that the union would disintegrate in time if it continually failed to meet its members’ expectations. Now, however, he was also deeply fearful that the Revolutionary enterprise itself could not survive a fragmentation of the general union. If the union should collapse or fragment into several confederations, every part would fear the others, each might be compelled to seek out foreign allies, and all would either lose their independence or would find themselves with standing military forces, powerful executives, swollen taxes, and persistent public debts. European intervention or a replication of conditions similar to those of Europe would entail the end of liberty itself. Of all the states and sections, none would lose their liberty more quickly than Virginia and the South.[31]

By 1787, Madison and many others thought that fragmentation of the union might be close at hand, and the Virginian feared that a collapse of the republican experiment could follow quite closely behind. The inability of the Confederation government to pay its debts, enforce its treaties, or relieve the economic difficulties of the post-war years contributed directly, he perceived, to arguments between the states and rising talk about a dissolution of the union. But the Confederation’s weaknesses contributed, as well, to growing doubts about the benefits of the republican experiment among an influential few and to the economic suffering that seemed to him the leading cause of popular abuses so severe as to endanger the commitment of even the “most orthodox republicans.” This twofold crisis of commitment–to the union and the Revolutionary state experiments in popular self-governance, which depended both upon the union and upon their own consistency with “justice”–demanded “every concession in favor of stable government not infringing fundamental principles as the only security against an opposite extreme of, our present situation.”[32]

Madison approached the Constitutional Convention literally intent on saving the republican Revolution. The terrified response of much of the American elite to Shays’ Rebellion, which had erupted shortly after the congressional collision over Jay’s negotiation with Gardoqui, had convinced him that a fragmentation of the union into sectional confederations was the least catastrophe that might result from failure to engage the growing crisis of commitment. His analysis persuaded him that strengthening the present Congress would at best delay, but not avert, this outcome. The states would still find ways to frustrate federal measures and encroach on federal rights. Their individual actions would continue to contribute to a rising, mutual ill will. Within the boundaries of each, inconsistent, factious legislation still would feed the insecurities and doubts that challenged even the majority’s commitment to the Revolutionary cause.[33]

Neither would a strengthening of the existing Congress be compatible with “fundamental principles;” and Madison was thoroughly in earnest when he said that he would make “concessions” only to the point at which “stability” and governmental vigor still appeared consistent with the Revolution.[34] Two specific new responsibilities, his early thinking ran, would have to be confided to the union: regulation of the country’s trade, and power to collect at least a portion of the necessary federal taxes. These additions, though, together with a federal “negative” on local legislation, would produce a general government whose “positive” authority would far surpass the British claims that had provoked the Revolution. As a Virginian, Madison refused to contemplate a change that would destroy his state’s capacity to “rejudge” federal measures unless the change included a transition to proportional representation, which would assure the Old Dominion power equal to its size and contributions. As a dedicated Revolutionary, he insisted that such powers could be trusted only to a representative republic.[35]

Revolutionary principles and a determination to preserve the Revolutionary order linked all of Madison’s ideas into a complex chain. Because he saw the crisis of the union as itself a crisis of the Revolution, his thinking flowed without a pause into consideration of the other ways that liberty was threatened and other ways that the commitment might be reinvigorated and secured. Once he had concluded that a federal veto was a necessary instrument of national supremacy, he saw immediately that the reintroduction of this power might permit the general government to intervene as guardian of private rights whenever these were threatened by majorities within the states. Acting as an umpire over the contentions of state factions (though without directing their decisions), the reconstructed central government might rescue democratic rule from its excesses and revivify the faith that popular self-government could be combined with justice. If Revolutionary principles proclaimed that such enormous powers were unsafe when trusted to a single-chamber Congress, Revolutionary precepts also ruled that the people could distribute power as they pleased–and were, in fact, the only agency that could reduce the powers of the states. A principled consideration of the crisis of the union argued, on the one hand, that liberty would not endure unless the central government was given powers that demanded its reordering as a republic. It suggested, on the other, that the general government, if thus transformed, could safely act to ease the economic suffering responsible for legislation inconsistent with morality and justice, could be given taxing powers equal to its needs, and thus could work in a variety of ways to reconcile the few who had already faltered while the body of the people were still firm in their republican convictions.[36]

Madison’s own faith in democratic rule had been severely tested, during years in the Virginia legislature, as he battled schemes for tax support for teachers of religion, struggled unsuccessfully to revise Virginia’s constitution, and became increasingly revolted by poorly drafted, inconsistent legislation, including measures (passed or threatened) which were meant to shield majorities from economic troubles by infringing private rights or by postponing taxes necessary for the state to keep its promises and meet its federal obligations. These experiences had carried him into the sharpest, deepest crisis of his long career–not just because he often lost these battles, but because such legislation forced a reconsideration of commitments he himself had undertaken early in the Revolution. In his words, the authors of the early Revolutionary constitutions had assumed–and so had he–that the majority of people are “the safest guardian both of public good and of private rights.”[37] “A provision for the rights of persons,” he recalled–for rule by a community of “independent equals”–was supposed to include of itself–protection for the rights of property and for the long-term, common good.[38] Experience had shown, however, that these early Revolutionary maxims were imperfect. “What we once thought the calumny of the enemies of republican government,” he would tell the Constitutional Convention, “is undoubtably true”: an interested majority can endanger natural liberties that governments are instituted to protect; the rule of the majority is not invariably consistent with society’s considered interests or with the rights of all its members.[39]

There could be no greater error, though, than to suggest that Madison’s republican convictions had not passed this test, or even that he thought that some of the ideals of 1776 would have to be severely compromised in order to preserve the others. If Madison was disillusioned, he was never disenchanted, and we need to emphasize both sides of his conclusion for a balanced understanding of his contributions. Others were inclined by the experiences of the 1780s to reject the early Revolutionary maxims altogether, to Madison’s profound alarm. He never did. He never came to think that any agency except the body of the people could be trusted with the public good. He never came to doubt that liberty defined as private rights (or “justice”) is ultimately inseparable from liberty defined as majority control. Nevertheless, his growing recognition of the difficulties always present in the effort to combine democracy with private rights, the will of the majority with long-range public needs, became increasingly apparent in his changing thoughts about reform of the Virginia constitution or about provisions for a new one for Kentucky.[40] Here, without abandoning his Revolutionary fear that governmental officers are always tempted to escape their duty to the people, he showed himself increasingly inclined to favor measures meant to temper the majority’s demands with wisdom and with new protections for the rights of the propertied few. He pinned his hopes particularly (and once again, conventionally) on an upper house that would be chosen indirectly or by freehold suffrage. This did not completely (or consistently) resolve the problems posed by his commitment to equality as well as private rights, which helps explain his fascination with enlargement of the size of the republic and his stubborn dedication to the deus ex machina of a federal veto on state laws. But he did insist increasingly on constitutional devices meant to counteract these tensions, and this insistence plainly found its way into the Resolutions of May 29. Under the Virginia Plan, the lower house would be elected by the people, the upper by the first from persons nominated by the states. These resolutions did not merely aim to make the powers of the central government coequal with its duties. They proposed, as Madison had put it early in the year, “to perpetuate the union and redeem the honor of the republican name.”[41]

First Successes, First Defeats

Between May 30 and June 13, the Constitutional Convention conducted a complete consideration of “Randolph’s Resolutions.” During these two weeks, a brilliant group of delegates from Pennsylvania and Virginia developed a compelling case for radical reform, building on, but moving rapidly beyond, the insights Madison had reached before the meeting. Distinguishing between a “national” government and one “merely federal,”[42] they argued that the central government could never prove effective if the states retained the power to ignore or countermand its acts, but that a federal power of coercion would entail a constant threat of war between the union and its members. The inescapable necessity, these “nationalists” maintained, was to abandon the unworkable idea of a government over governments, a sovereignty over sovereignties, and give the central government the means to act directly on the individual members of society. Revolutionary principles required, however, that a central government possessing the authority to reach the people’s lives and purses would have to represent its citizens immediately and fairly. Given the necessity for larger, more effective federal powers, the traditional equality between the states would have to be abandoned in order to preserve equality among the people and majority control.

Under the Virginia Plan, both houses of the legislature were to be apportioned according to the numbers of the free inhabitants or to the contributions of the states.[43] Madison regarded this provision as obviously “just,” by which he meant consistent with equality and standard rules of representation. He reasoned that the northern states would readily approve, because they had the larger population, while the southern states would be attracted by the rapid shift of population to the South and West.[44] He considered the provision absolutely necessary to persuade the larger states to part with portions of their power, and he was certain that the smaller states would be compelled to go along if all the large ones were agreed. He discovered, as we know, that members from the smallest states were adamant against the change, while many other delegates were dubious about a plan that promised to erect a stronger central government on greater popular control.

The first two weeks of the Convention seem most helpfully described as an initial exploration during which a complicated pattern of divisions rapidly emerged within a framework of evolving general understandings. Through these days, Madison was learning even as he guided and instructed. He had entered the Convention, we have seen, convinced that clearer definition of the central government’s responsibilities was not the most important task, and he refused to let the meeting be distracted by this issue. On May 31, South Carolina moved for an immediate enumeration of the legislative powers. Madison opposed the motion, not because he was opposed to an enumeration, but because he was determined that the delegates should focus, first, on structural and operational reform.[45] His early interventions in debates were aimed almost exclusively at heading off disputes on more specific matters until the meeting could define some common ground.[46] The Convention quickly fell in line with this approach, moving through the fifteen resolutions rapidly by simply passing over any that produced or threatened serious contentions.

The strategy was quite successful. The Virginia Plan was only a preliminary outline of a finished constitution. It did not specifically define which powers were beyond the competence of individual states. It embodied inconsistencies that Madison had carried with him to the meeting. It barely sketched some of the leading features of a sound republic-not even indicating, for example, whether the executive should be a council or a single man. But as his allies helped develop a persuasive case for radical reform, stressing that a “national” government would act consistently upon the people, Madison and the entire Convention could imagine more concretely how the central government might wield effective power without relying on or trying to coerce the states. The outline introduced at the beginning speedily assumed a more substantial shape, filling for the most part as the democratic nationalists desired. On May 31, with only two states voting no, the gathering approved the popular election of the lower house. James Wilson led a winning struggle for a single chief executive. It was soon apparent that a large majority of delegates approved the substitution of a complex and authoritative central government for the present, feeble, unicameral regime.

Intellectually outclassed by men like Madison and Wilson, lacking an alternative to the Virginia Plan, most members from the smaller states squirmed silently through the Convention’s early days. Yet as it grew more difficult to make the small decisions while the more important disagreements continued unresolved, opponents in the smaller states discovered partial allies in the individuals or delegations who were most concerned about excessive central power or who feared that the Virginia Plan allowed for more participation by the people than the people were equipped to make in national affairs. Though Randolph’s Resolutions weathered the Convention’s first examination fundamentally intact, the nationalists encountered mounting opposition and suffered two significant defeats.

The Virginia Plan provided for election of the senate by the lower house from persons nominated by the states. On June 7, over loud complaints from Madison and Wilson, majorities in every delegation defeated this proposal in favor of direct election by the states.[47] Madison was deeply disappointed. He had seen before the meeting opened that the states’ pernicious “intervention” in the federal sphere could be defeated partly by excluding them from their direct participation in the choice of federal officials. He had heard James Wilson say that he preferred “to derive not only both branches of the legislature from the people, without the intervention of the state legislatures, but the executive also, in order to make them as independent as possible of each other as well as of the states.”[48] Though Madison could not agree, as yet, to popular election of the other branches, sharing the majority’s opinion that this might render them unable to defend minorities or to resist the people’s whims, he decidedly concurred with Wilson that he wanted to avoid “too great an agency of the state governments in the general one.”[49] Fearing that selection of the senate by the states could build into the system just the flaw that was destroying the Confederation, he also saw that it must either reinforce demands for equal voting, which would be an “inadmissable” inequity, or else produce an upper house whose membership would be too large to give the government the “coolness,” “wisdom,” and “stability” expected from a senate.[50]

This defeat, however, was immediately followed by another, which was even more severe for the Virginian. On June 8, Madison supported a proposal to extend the federal negative to cover all state laws, which is what he had preferred from the beginning.[51] He would, in fact, appeal repeatedly for this provision through the weeks ahead, believing even at the close of the Convention that the veto was a better instrument than federal courts for overturning local legislation harmful to the union-and, of course, the only tool with which the federal government could intervene directly to protect minorities against majority transgressions of their rights.[52] From early in the meeting, Madison had pleaded with the other delegates to recognize that they were not assembled merely to repair the defects of the union. It was also necessary, he insisted, to provide more certainly “for the security of private rights and the steady dispensation of justice.” “Interferences with these,” he said, “were evils which had more perhaps than anything else produced this convention.”[53] The argument was powerfully effective. In the end, it won the war, for the Convention did propose a democratic remedy for democratic ills, both by designing an enlarged republic consciously intended to avoid the errors of the early Revolutionary constitutions and by placing prohibitions on the sorts of local legislation Madison especially condemned.[54] But while the great majority approved of the Virginian’s ends, they disapproved his means. He lost the battle to extend the veto, 7 states to 3, and the Convention later voted to dispense with it entirely, preferring to rely upon the federal courts to overturn state legislation inconsistent with the Constitution or with federal laws.[55]

The easy part was over. On June 9, New Jersey’s delegates demanded an immediate decision on apportioning the Congress, with William Paterson insisting that ten of the thirteen states would never ratify a plan that would subordinate them all to Massachusetts, Pennsylvania, and Virginia. On June 11, the Convention overwhelmingly approved proportional representation in the lower house (7-3-1). But this impressive victory for the initial resolutions was followed by a very close one on the senate, where Roger Sherman’s motion for equality was narrowly rejected, 6 to 5.[56] Two days later, the Committee of the Whole reported Randolph’s Resolutions to the House, but the Convention then immediately adjourned in order to permit the mounting opposition to develop an alternative proposal. And although the small-state/anti-nationalist alternative to the Virginia Plan, Paterson ‘s New Jersey Resolutions, was quickly and decisively rejected, even optimistic nationalists resigned themselves to a campaign that promised to extend throughout the summer.[57] John Dickinson suggested privately–and firmly–that Madison would fail entirely to secure the stronger government he wanted unless he would concede the smaller states an equal vote in one branch of the Congress.[58]

The Battle Over Representation

As the Convention entered on the great debate that culminated in the famous compromise between the big and little states, Madison resisted Dickinson’s suggestion with increasing stubbornness and passion. “He was much disposed,” he said, “to concur in any expedient not inconsistent with fundamental principles that would remove the difficulty concerning the rule of representation. But he could neither be convinced that the rule contended for was just, nor necessary for the safety of the small states against the large.”[59] “He admitted that every peculiar interest, whether in any class of citizens or any description of states, ought to be secured as far as possible.” He had even been considering a rule that would assure the North and South that each would dominate one house of Congress, for “wherever there is danger of attack, there ought to be given a constitutional power of defense.”[60] But the smaller states, he said, had no distinctive interests simply as a consequence of being small, no reason to expect a combination of the larger. Massachusetts, Pennsylvania, and Virginia were as different as could possibly be wished “by the most jealous citizen of the most jealous state. In point of manners, religion, and … staple productions, they were as dissimilar as any three other states in the union.”[61]

State equality, moreover, would infringe the “fundamental principles” of equity and majority control. To give “unequal portions of the people” equal voices in the upper house would give a small minority the power to defeat legitimate majority desires. It would enable them to use this power to extort concessions on a host of other matters. Madison insisted that an equal senate was “confessedly unjust.” It would exaggerate the North’s superiority of population and perhaps perpetuate a sectional imbalance that was tending otherwise toward equilibrium with every passing day. It would “infuse mortality into a Constitution which we wished to last forever,” for the upper house, on such a plan, would be no better than “another edition of [the Confederation] Congress,” “absolutely dependent on the states.” “I would compromise on this question if I could do it on correct principles,” Madison repeated, “but otherwise not. If the old fabric of the Confederation must be the groundwork of the new, we must fail.”[62]

Compromisers, nevertheless, were seizing the direction of the meeting. At the beginning of July, another motion for an equal senate deadlocked the Convention. Madison and Wilson were the only members to oppose appointment of a grand committee to resolve the impasse, sensing that the tide was turning irresistibly toward the construction of a bargain. And, indeed, it was. Selected by a ballot, the committee was composed exclusively of leading spokesmen for the smaller states and large-state men who had most clearly signaled their commitment to accommodation.[63]

Madison persisted stubbornly in trying to reverse the current. Two of his Virginia colleagues, Randolph and George Mason, thought that the committee’s compromise proposal held a valuable concession from the smaller states. In exchange for equal voting in the senate, opponents would accept proportional representation in the lower house and agree to bar the senate from amending or initiating money bills.[64] To Madison (or Wilson), though, this supposed “concession” was worse than none at all. It would prevent the senate from contributing consistency and coolness to a vital class of legislation, but it would not prevent minorities from blocking necessary measures or manipulating their position in the senate to compel majority concessions on a host of other things.[65]

Madison was clearer now than he had been when the Convention opened as to how to solve the problems he perceived. The Virginia Plan suggested, from the start, that an effective central government might be constructed partly by removing the state legislatures from their current, equal role in making federal decisions and by destroying their capacity to rejudge federal acts. But the Virginia Plan did not consistently project a system of concurrent state and general governments, each of which would rise entirely from and act consistently upon the individual members of society. Madison had entered the discussions willing to concede the states a very minor role in choosing federal officials, and he had entered them anticipating that the states would have a larger part in executing federal decisions. At the beginning of July, he still desired a federal negative on local legislation, which would operate directly on the states as states and even make the national government “a branch of the state legislatures.”[66] But while he still believed that there should be a power to prevent the states from taking independent actions inconsistent with their federal duties or with private rights, the concept of concurrent governments was clear enough by now that he no longer thought that state cooperation would be necessary for enforcement of federal laws. As early as May 31, he had dropped the clause providing for a federal power of coercion, and he had grown increasingly determined to exclude the states from any role in choosing federal officials. He had become a more consistent “nationalist” in this respect than he had been at the beginning of the meeting. Therefore, he denounced the earlier decision for election of the senate by the states and drew the line inflexibly on an equality of voting.

Madison’s rigidity on this important issue was not as inconsistent as it may appear with his conviction that the future of humanity might be determined by the Philadelphia Convention, or even with his reputation as a skillful parliamentary tactician. The Virginian was as dedicated to a thoroughly republican regime as to a lasting federal union, and nearly all of his concerns seemed vitally affected by this issue. An equal senate violated democratic principles, endangered the “perpetuation” of union, and threatened the essential interests of Virginia and the South. Moreover, Madison was not the weak-kneed politician of the myth. He knew that legislative victories occasionally called for a successful game of “chicken.” He believed, not only that the smaller states would blink, but also that the larger ones might have to stare them down in order to complete a plan that would be ratified by states that were essential to its ultimate adoption.[66]

It had been said, said the Virginian, that the union should continue “partly federal” in structure, and that an equally apportioned senate might embody and protect its federal features.[67] “If there was any solidity in this distinction”, he was ready to abide by it. But Madison had changed his views sufficiently since the beginning of the meeting that he now saw no solidity in this distinction. As modified by the Convention to this point, the plan he was supporting would operate in every instance “on the people individually.” “The practicability of making laws, with coercive sanctions, for the states as political bodies, had been exploded on all hands.”[68]

Madison was willing, he had said, to violate proportionality so far as to concede each state at least a single member in the senate.[69] He was willing to consider other measures that might temper members’ fears for the specific interests of their states.[70] If this was not enough, however, he believed that the Convention was compelled to choose between “departing from justice in order to conciliate the smaller states and the minority of the people of the U.S. or displeasing these by justly gratifying the larger states and the majority of the people.” For himself, he had no doubts about the proper option. “It was in vain to purchase concord in the Convention on terms which would perpetuate discord among their constituents.” The Convention, he insisted, should “pursue a plan which would bear the test of examination” on its merits. It should put aside the fear “that the people of the small states would obstinately refuse to accede to a government founded on just principles and promising them substantial protection.” “If the principal states, comprehending a majority of the people of the U.S., should concur in a just and judicious plan, he had the firmest hopes that all the other states would by degrees accede.”[71]

Madison opposed the Connecticut Compromise to the end. And when the large states caucused in the aftermath of their defeat, he was undoubtedly among the number who, “supposing that no good government could or would be built on that foundation, . . . would have concurred in a firm opposition to the smaller states and in a separate recommendation, if eventually necessary.” Few large-state delegates, however, were willing to continue with this game. “The time was wasted,” Madison complained, “in vague conversation on the subject.” All the members from the larger states returned to the Convention, and the smaller states were satisfied from that point on that there would be no effort to reverse the critical decision.[72]

The Character of Madison’s Commitments

For Madison, the bargain of July 16 was a tremendous blow. Along with the excision of the federal negative, it was unquestionably the major reason why he wrote, at the conclusion of the meeting, “I hazard an opinion . . . that the plan… will neither effectually answer its national object nor prevent the local mischiefs which everywhere excite disgusts.”[73] His discontent was so profound and had so many sources that many able analysts have followed Irving Brant, his principal biographer, in seeing it as possibly the most important watershed in his career. The small-state triumph, they have said, initiated a retreat from an expansive view of federal powers which originated in the second half of the Convention and culminated in the strict-constructionist and states’-rights stance of the Virginia Resolutions of 1798.[74] I know that there appears to be substantial evidence for this opinion. I nevertheless believe that it is off the mark. It opens with a misinterpretation of Madison’s position in the years before the meeting and ends in a misunderstanding of the 1790s.[75] More relevant to present purposes, however, it produces a mistaken, very partial comprehension of his role and contributions during both halves of the Constitutional Convention.

Madison did certainly initiate and help to lead a “nationalist” offensive at the Philadelphia Convention. He entered the deliberations seeking national supremacy wherever national interests were involved, Influenced by his allies in the battle with the smaller states, he came to be increasingly convinced that such authority demanded the complete exclusion of the local legislatures from a role in choosing federal officials or executing federal commands. Like Wilson, he opposed the critical decisions on the senate both because they seemed unfair to Pennsylvania or Virginia and because he knew that they were consciously intended, by many on the other side, to build “state agency” into a “partly federal” system. No one said more clearly that the ruling of July 16 required that everyone adjust to a decision that the new regime would not be wholly “national” in structure. No one found this harder to accept.

Later in his life, however, Madison repeatedly objected to the supposition that “the term national,” as applied “in the early stage of the Convention … was equivalent to unlimited or consolidated.” It was used, he wrote, in order to distinguish the emerging system from the current “federal government,” which rested on the states instead of on the people.[76] During his retirement the framer also had occasion to deny that the Virginia Plan’s initial, vague description of the reach of national powers was ever “meant to be inserted in … the text of the Constitution.” A definition or enumeration of these powers, he insisted, “was to be the task of the Convention.” “If there could be any doubt that this was intended and so understood by the Convention, it would be answered by the course of the proceedings.”[77]

Madison was quite correct in issuing these warnings. There was never any serious division at the Constitutional Convention over whether, as opposed to when, the members should attempt a clearer definition of the legislative powers.[78] Like Madison himself, the overpowering majority of members intended, from the first, “to draw a line of demarcation which would give to the general government every power requisite for general purposes, and leave to the states every, power which might be most beneficially administered by them.[79] For all the framer’s warnings, though, both errors have persisted, and thus we often find it said that in the early phase of the Convention, Madison was willing to pursue consolidation nearly to the point of turning states into the counties of a single great republic, reversing his position only when defeated on the senate. This has been suggested even though the speeches always cited to support

this view also say in passing that he sought a “mixed” regime, that he intended to “preserve the State rights, as carefully as the trials by jury.”[80] It has been suggested even in the face of his determination, when the meeting finally attempted an enumeration, to leave as little as he could to implication.[81] Phrases lifted from their qualifying context are combined with Madison’s insistence on the federal negative, a proper emphasis on his determination to exclude the states from federal decisions, and an excessive fascination with his argument for an extension of the sphere to build a case that simply overrides his early and repeated statements that he meant to find a “middle ground” between state sovereignty and a consolidated system. Yet Madison was always a determined “nationalist” only in his view of how the new regime should work and be constructed, not in his opinion of the work it ought to do. It is impossible to place him at a single point on any single spectrum of opinion. On the matter of state agency within the federal structure, the Virginian was a radical extremist, standing at the end of one specific spectrum. On the matter of the quantum of responsibilities that should be placed in federal hands, he stood much closer to the middle of a different spread. And in his conscientious dedication to a government that would accord entirely with republican ideals, he stood far over toward an opposite extreme from many of his closest allies in the battle with the smaller states. From, first to last, he was a “nationalist” who thought that too much power, placed in hands too distant from the people, might endanger Revolutionary ends. And not until we place an equal emphasis on all of his commitments can we hope to reach a balanced understanding of the whole of his distinctive contribution to the framing.[82]

Madison’s positions did significantly change as a result of the decision of July 16. But they did not become less “national” than they had been before the compromise occurred. The Virginian came to Philadelphia determined to create a general government whose powers would extend effectively to all those great and national matters that the states were individually incompetent to handle–those and nothing more. Through the second half of the Convention, he remained intent on this objective. He continued to support a federal negative on all state legislation.[83] Unlike other southerners, he favored power to impose a federal tax on exports.[84] He opposed insertion of provisions requiring more than a majority of Congress for the passage of commercial legislation or limiting the Senate’s part in making money bills.[85] Near the close of the Convention, he moved to place additional specifics on the list of the enumerated powers. I cannot, indeed, identify a single power that he wanted to withhold from Congress after the Great Compromise but would have favored if the outcome had been different. He did not reverse his course or change his mind in any fundamental way about the business that the general government should do. He still intended, as he always had, to make that government supreme within its proper sphere.[86]

But while the compromise did not significantly change the framer’s vision of the proper reach of federal powers, it did immediately affect his views about the way in which this power should be shared among the different branches of reconstructed system.[87] At the start of the Convention, Madison had plainly seen the senate as the branch best suited to control the passions of the people, to secure a place for wisdom and stability in the enlarged republic, and to guard against the mutability, injustices, and multiplicity of laws which he identified as major weaknesses of democratic rule.[88] At this time, the role that he envisioned for the upper house contrasted sharply with his evident uncertainty about the character and powers of a national executive. His pre-Convention letters all suggest that he had formed no clear ideas about the latter subject. The Virginia Plan suggested little more than that a separate executive should be created, and Madison’s own notes recorded him as entering the earliest deliberations on this branch only to suggest that a decision on the powers of the office should precede a choice between a council and a single man. Rufus King and William Pierce, however, wrote that Madison expressed a fear that great executive authority could end in an “elective monarchy,” recommending the construction of a council whose advice could be ignored only at the peril of its head.[89] This was the provision of Virginia’s constitution, and it seems entirely likely that Madison agreed with his Virginia colleagues, too, on legislative choice of the executive and on a clause that would exclude its chief from serving two successive terms.[90]

The decision of July 16 struck Madison as inconsistent with majority control, a barrier to the pursuit of general interests, and a potential peril to the South. By this time, moreover, he was forcefully impressed by Wilson’s argument that a responsible executive could only be secured by concentrating the executive authority in the hands of a single man, who must be independent of the legislature for his office.[91] Together, these considerations moved him steadily toward strengthening this branch at the expense of the improperly constructed senate. As early as July 18, he favored an attempt to shift the power to appoint the federal judiciary from the senate to the head of the executive, acting with concurrence of a portion of the upper house. Three days later, he was frank about his reasons:

The principle of [the great] compromise … required … that there should be a concurrence of two authorities, in one of which the people, in the other the states, should be represented. The executive magistrate would be considered as a national official, acting for and equally sympathizing with every part of the United States. If the second branch alone should have this power, the judges might be appointed by a minority of the people, [though they would act directly on the people rather than the states]. As it would, moreover, throw the appointments entirely into the hands of the Northern states, a perpetual ground of jealousy and discontent would be furnished to the Southern states.[92]

Similarly, on August 23, he argued that the chief executive should have a role in making treaties, as “the Senate represented the states alone.[93]

Despite the rulings on the senate, Madison remained committed to an upper house that could effectively restrain the lower.[94] He did not become a leading advocate of great executive vigor. He moved to make it possible to make a peace without executive consent.[95] On September 7, he supported Mason’s motion to revive an executive council.[96] Nevertheless, as he attempted to adjust his thinking to the ruling that the government would still be “partly federal” in structure, Madison was plainly more inclined to transfer more responsibilities to truly “national” hands, as well as to imagine the executive as a completely equal, fully countervailing branch. His early reservations were diminished, too, by his concern 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, and it “suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.”[97]

Passage after passage from the records of the Federal Convention strikes the reader once again with the intensity of Madison’s revulsion at 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 popular assemblies, when unchecked, were dangerous custodians of private rights and public good. He plainly wanted multiple impediments against a federal replication of this problem. Thus, near the conclusion of proceedings, he opposed the substitution of 2/3 for 3/4 as the majority required to override a presidential veto. The purpose of the veto, he explained, was to protect the president against encroachments on his powers and to make it possible for the executive “to prevent popular or factious injustice.” Experience had shown, he argued, that all the checks attempted in the states were insufficient to defeat “legislative injustice and encroachments.”[98]

Here, however, it is crucial to revert again to Madison’s original intentions and to call insistently for equal emphasis upon the other side of his distinctive role at the Convention. For, by focusing excessively on the Virginian’s fear of popular 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 also show that he intended to restrain the legislature and the people only insofar as this appeared to be consistent with republican commitments. Madison’s concern about a gradual revival of hereditary privilege was absolutely literal in nature. He was bent upon perpetuation of the union because he was convinced that the republican experiments that had been started in the states could not endure without this shield. And he continued to define “republics,” more than commonly is seen, in early Revolutionary terms. “Liberty,” as he conceived it, did require additional securities for private rights. But “liberty,” in the Virginian’s usage, also denoted governments that would remain responsive to, not merely governments elected by, the body of the people. Thus, the same considerations that committed him to an effective general government committed him, as well, against excessive concentration of authority in hands too distant from the people or imperfectly familiar with their needs.

At the beginning of the Constitutional Convention, Madison insisted on the popular election of the lower house, and this was not exclusively because he wanted to prevent the states from making national decisions. If the lower house were chosen by the states and other branches built on that-a second option in his pre-Convention letters–”the people,” he observed, “would be lost sight of altogether and the necessary sympathy between them and their rulers and officers too little felt.” He was an advocate, he said, “of refining the popular appointments by successive filtrations,” that is of indirect elections, “but thought it could be pushed too far.” In order to be durable and stable, the central government, he now insisted, would have to “rest on the solid foundation of the people themselves.”[99] Early in July, in line with this position, the Virginian moved to double the membership of the lower house, concerned that 65 would be too few to win the people’s confidence or “to bring with them all the local information which would be frequently wanted.”[100] On September 8, he seconded another motion to enlarge the lower house.[101] And he was adamant throughout the meeting on submission of the Constitution directly to the people.

These motions and remarks are worthy of renewed attention, the more so when we recollect that Madison and the majority of the Convention reasoned from assumptions that are not immediately apparent from a twentieth-century perspective. One of those assumptions was that in a national republic, as in all the states, the lower house would have the leading role in writing legislation. On domestic matters in particular, the House of Representatives would be the sails, the other parts the anchors, of the ship of state. The lower house would be the branch with which the people would especially identify, the branch they would instinctively support in any confrontation with the others.

Multiple securities against encroachments by the lower house were necessary, Madison believed, in part because he never doubted that the House of Representatives would be responsive to the people. Enlargement of the size of the republic could not possibly, in every case, prevent a factional majority from forming; nor would it prevent the people’s representatives from advocating the majority’s desires.[102] But checks and balances were necessary, too, because majority excess had never seemed to Madison the only danger to republics–not even in the Revolutionary states. Popular abuses, at this moment, were undoubtedly his principal concern, yet he did not forget that rulers can betray the people, that power can corrupt, that legislators may prefer their personal ambitions to the people’s needs, and that elected representatives might someday try to free themselves from their dependence on the people in order to pursue distinctive interests of their own.[103]

The Constitutional Convention was not the proper time or place for Madison to emphasize his fierce allegiance to early Revolutionary maxims. He was in the midst of other former congressmen who knew his ways of thought and often saw him as a bit too doctrinaire. In order to secure the governmental vigor he desired, he was compelled to form a temporary bond with men with whom he differed hugely on other fundamentals.[104] For all of this, however, Madison reiterated time and time again–first in pre-Convention, private letters, then in several of his speeches–that he was willing to concede no more to governmental vigor and stability than Revolutionary precepts would permit. He opened the Convention with a plan that was as conscientiously republican as national, and he was conscientiously concerned throughout to see that the emerging system would remain consistent with both goals.

Two episodes, I think, especially illuminate the special combination of republican with national concerns that Madison imparted to the meeting. In the first, he stood with other Southerners, as he had done so often in the Continental Congress, as a dedicated spokesman for the West. As it became apparent that the smaller, Northern states would win their battle for an equal senate, Madison’s Virginia colleagues pushed insistently for constitutional provisions for a periodic census and for clauses guaranteeing quick admission of and equal treatment for new Western states, which everyone assumed would help the South reverse the North’s initial domination of the Congress. Madison, moreover, had a very special interest in issues of this sort, for his conception of an integrated nation was Western more than Southern in its flavor. The best security for the essential interests of the planting states, as he conceived it, would be found in the agrarian majority that would preponderate in nearly every region, would constitute the bedrock of a sound republican society, and would be steadily renewed by Western growth.[105]

Many Eastern delegates were thoroughly appalled when they envisioned an eventual predomination by the South and West, none of them more vocally than Gouverneur Morris. On July 11, Morris urged the gathering to leave the legislature free to apportion representation on a standard that would take account of wealth as well as numbers, warning that a flood of poorer western states could ruin the more developed east. Madison “was not a little surprised to hear this implicit confidence [in representatives] urged by a member who on all occasions had inculcated so strongly the political depravity of men and the necessity of checking one vice and interest by opposing to them another vice and interest.” While Morris, he remarked, “recommended this implicit confidence to the Southern states in the Northern majority, he was still more zealous in exhorting all to a jealousy of a Western majority. To reconcile the gentleman with himself it must be imagined that he determined the human character by the points of the compass.” “All men having power” Madison insisted, “ought to be distrusted to a certain degree.”[106]

Madison, contemporaries said, was notable for his remarkably good temper. He never lost control. He answered his opponents as a friend responds in private to another friend’s mistakes. But Madison demolished Morris with a stinging wit that he would not have loosed on others because he was disgusted by the Pennsylvanian’s jaundiced view of human nature and had had his fill of this urbane aristocrat’s unhidden anti-democratic inclinations. Madison’s revulsion from popular misrule was every bit as deep as any other member’s, but so were his convictions that the people had sufficient virtue to sustain a totally elective system and that a people’s government demands abiding vigilance against the irrepressible ambitions of even democratic rulers.

Several times in course of the Convention, Madison condemned implicit confidence in rulers. Though he was willing to impose the most elaborate restraints on the immediate desires of popular majorities, he nevertheless assumed that, once these checks had been applied, the product of successive distillations of the people’s will must still reflect the wishes of the greater number. And although he feared that unrestrained majorities could undermine democracy itself, he was determined that the government would always be responsive to the body of the people. The constitutional machinery of checks and balances was meant, from his perspective, as an added guarantee against majority abuses, but it was also an auxiliary assurance that elected representatives could not pursue distinctive interests of their own. “In all cases where the representatives of the people will have a personal interest distinct from that of their constituents,” he argued, “there was the same reason for being jealous of them as for relying on them with full confidence when they had a common interest.”[107] Popular election was the first and most important bond between the rulers and the ruled, but the Convention also needed to be sure that rulers, once elected, could never free themselves from their dependence on the people or from the community of interests with the people that elections were supposed to forge.[108]

A second incident, I think, was even more revealing of this other, deeply Revolutionary side of Madison’s distinctive role at the Convention. Of all his speeches, I believe, the most impassioned was his final, eloquent appeal against John Lansing’s motion to restore equality of voting in the lower house. Madison entreated the gentlemen representing the small states to renounce a principle which was confessedly unjust, which could never be admitted, and if admitted must infuse mortality into a Constitution which we wished to last forever. He prayed them to ponder well the consequences of suffering the Confederacy to go to pieces… Let each state depend on itself for its security, and let apprehensions arise of danger from distant powers or from neighboring states, and the languishing condition of all the states, large as well as small, would soon be transformed into vigorous and high-toned governments…. The same causes which have rendered the Old World the theatre of incessant wars and have banished liberty from the face of it would soon produce the same effects here. [The smaller states would] quickly introduce some regular military force against sudden danger from their powerful neighbors. The example … would soon become universal. [Great powers would be granted to executives.] A standing military force, with an overgrown executive, will not long be safe companions to liberty. The means of defense against foreign danger have always been the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war whenever a revolt was apprehended. Throughout all Europe the armies kept up under the pretext of defending have en-slaved the people.[109]

This was not a new idea for Madison, nor did the higher-flying nationalists in the Convention miss the implications of the thought that standing armies and a vigorous executive were incompatible with freedom. It is seldom noted, but a fact, that Alexander Hamilton was on his feet immediately to second Madison’s appeal against equality of voting, but also to remark that “no government could give us tranquility and happiness at home which did not possess sufficient stability and strength to make us respectable abroad.[110]

James Madison had come to Philadelphia in May a dedicated Revolutionary statesman who believed that liberty depended on the continental union and that neither would endure unless the general government was reconstructed as a great republic, so that it could safely be entrusted with authority to rule. In order to preserve the union and to foster an environment in which the Revolutionary enterprise could prosper, he insisted on a new regime with power to fulfill the general government’s financial obligations, to enforce its laws, and to create the proper economic context for a healthy public life. Positive additions to its powers were essential, he believed, in order to persuade the Spanish to reopen the Mississippi River, to retaliate against the British for their crippling navigation laws, and thus to alter the conditions that engendered economic legislation which endangered both the union and the Revolutionary faith that justice could be realized most fully in republics. Defensive powers were required, as well, in order to permit the general government to guard itself against encroachments by the states and to protect the people from their rashness. From first, to last, however, Madison assumed that powers would be granted by the people only to perform the common business of the nation, that the great republic ought to be constructed so as to assure that its elected rulers could not develop independent interests of their own, and that excessive governmental vigor was as incompatible with Revolutionary purposes as any of the state abuses he condemned. Madison intended to invigorate the union so that it would not be necessary for the states to tone their governments so high as to endanger their republican regimes. But neither did he plan to tone the central government so high that it would reproduce the European evils he was trying to avoid.

The Constitutional Convention debated an enormous range of issues–many more than can be handled even in an essay of excessive length. On a spectrum that would take account of all those issues, Madison stood in between the fearful foes of radical departures from the early Revolutionary order and men who sympathized more fully with his centralizing means than with his Revolutionary ends. This moderation calls for more attention than it often gets, and it is not to be confused with easy pliability or lack of passion. The Constitution would have been a different document (if any Constitution had emerged) if Madison had not contributed republican as well as unionist commitments to its framing. And Madison might never have defended it in quite the terms he did if he had not, throughout the summer, stood so often in between, affected more than the Convention’s records may immediately reveal by what he heard from both extremes.

As the Convention ended, Madison and many others were exhausted by the work, conscious that the Constitution had been shaped by their disputes, and temporarily depressed by their defeats. Madison was very much aware that the completed document did not propose as radical a cure for current ailments as the plan he had originally intended. Rejection of the federal negative in favor of specific limitations on the states had robbed the central government of its capacity to intervene if state majorities should find new ways to threaten private rights. Without the veto, he believed, the general government would also have imperfect tools with which to guard itself against encroachments or to keep the states from harming one another. The constitution of the senate was a serious departure from the national and democratic maxims he preferred.[111]

Preferred, that is to say, until his willingness to undertake a systematic effort to defend the Constitution led him to review the course of the Convention and to think again about the sentiments expressed by “allies” such as Morris or “opponents” such as Dickinson and Sherman (as well as by the Anti-federalists whom he was now compelled to answer). For as he wrote in The Federalist, Madison implicitly confessed that his opponents in the battle with the smaller states had been more nearly right than he had then admitted. He still could not defend the equal voting in the Senate as anything except a necessary evil. But borrowing from Dickinson, from Sherman, and from other small-state men, he did defend the “partly federal” features of the system as a valuable, additional assurance–and in light of what he knew about the views of other influential framers, perhaps a necessary one–that nationalizing changes would not go too far.[112]

Scholars know a truth about a major writing project (or about a process of deliberation) that they might apply more fully to the making of the Constitution. Insights come when we exchange ideas with others, and conclusions change again as we attempt to put them onto paper. The most extraordinary minds are not so very different from our own. Madison’s was changed considerably by his experience at the Convention. It was changed again as he attempted to encompass and explain what the Convention had accomplished, for there was little of the propagandist in his makeup. The more he thought and wrote about the finished Constitution, the more he managed to convince himself, as well as others, that the Constitutional Convention had indeed prepared a viable corrective for the nation’s ills–in fact, the best solution to the central riddle of a liberal republic that human ingenuity had ever yet advanced. The Constitution did specifically forbid the types of local legislation that had challenged even Madison’s conviction that democracy could be combined with justice. In this way–and in the structure of the central government itself–the document did promise to perpetuate the union and redeem the Revolutionary faith. Internal checks and balances, together with the size of the compound republic, offered every safeguard for minorities consistent with a totally elective system. The role and powers of the states would serve–together with the people’s vigilance, of course–as an effective, final check on the ambitions of the national rulers. It was a fragile settlement, no doubt, and not the one he had originally intended. But there was also little vanity in this Virginian’s makeup. As he decided that the Constitution might be wiser than the plan he had concocted in his closet, Madison was making a commitment, too, to keep a careful watch on policies or constitutional constructions that might overturn it. The “father of the Constitution” did not have to travel quite so far as it is sometimes thought in order to become co-author of the Jeffersonian persuasion.

Books by Lance Banning, and more on the Constitution, may be found in The Imaginative Conservative BookstoreReprinted with the gracious permission of The Political Science Reviewer, Fall 1987.

*This essay was written during tenure of a fellowship at the National Humanities Center. I am deeply grateful for the center’s support. The article is a companion to two previous discussions of Madison and the Convention, from which I have taken an occasional point or phrase while trying to avoid excessive duplication: “The Constitutional Convention,” in The Constitution: A History of its Framing and Ratification, ed. Leonard W. Levy and Dennis J. Mahoney (New York, 1987), 112-31; and  “The Practicable Sphere of a Republic: James Madison, the Constitutional Convention, and the Emergence of Revolutionary Federalism,” in Beyond Confederation: Origins of the Constitution and American National Identity, ed. Richard Beeman et al. (Chapel Hill, N.C., 1987), 162-87. I plan to bring the three together in James Madison and the Founding (forthcoming, Cornell University Press).

Notes:

1. The most comprehensive scholarly studies of the framing are Charles Warren, The Making of the Constitution (Boston, 1928) and Clinton Rossiter, 1787: The Grand Convention (New York, 1966). Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention, May to September 1787 (Boston, 1966), is a more popular account. Among shorter studies, the best and most instructive on the multiplexity of the Convention’s divisions is Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, Kans., 1985), chaps. 6-8.

2. This seems to me a weakness of John P. Roche, “The Founding Fathers: A Reform Caucus in Action,” American Political Science Review, 55 (1961), 799-816, which sees no over-arching principles” at work in the Convention, and of Merrill Jensen, The Making of the Constitution (Princeton, 1964), which suggests a sharper ideological polarization than was present.

3. As in Calvin C. Jillson, “Constitution-Making: Alignment and Realignment in the Federal Convention of 1787,” American Political Science Review, 75 (1981), 598-612, an article that supersedes all coalitional analyses that do not consider changes over time.

4. As in Calvin C. Jillson and Cecil L. Eubanks, “The Political Structure of Constitution Making: The Federal Convention of 1787,” American Journal of Political Science, 28 (1984), 435-58. This article, however, suggests that either differences of principle or differences of interest account for coalitional configurations at specific points in the Convention. I believe that both were always constantly at work.

5. Helpful for its insistence on the collective mission of the Convention and for its realization that the process of compromise was more than a matter of trucking and bargaining is Herbert J. Storing, “The Constitutional Convention: Toward a More Perfect Union,” in American Political Thought: The Philosophic Dimension of American Statesmanship, ed. Morton J. Frisch and Richard G. Stevens (New York, 1971), 51-68. Storing’s points and approach, however, are different from my own.

6. There are three excellent biographies of nicely varied length: Irving Brant, James Madison, 6 vols. (Indianapolis, Ind., 1941-1961); Ralph Ketcham, James Madison: A Biography (New York, 1971); and Harold S. Schultz, James Madison (New York, 1970).

7. Max Farrand, ed., The Records of the Federal Convention of 1787, rev. ed., 4 vols. (New Haven, Conn., 1937), 3:455. See also, ibid., 497, 517, 521, 537. I have expanded abbreviations and modernized spelling and punctuation throughout the essay. Unless otherwise indicated, quotations are from Madison’s notes of the debates. Farrand’s collection is hereafter cited as RFC.

8. RFC, 1:20-22.

9. The weaker New Jersey Plan nevertheless included a provision for coercion of delinquent states and powers to regulate trade and to impose a stamp tax, postal duties, and an impost (ibid., 242-45). A large majority of states had ratified amendments to the Articles approving an impost and a partial federal authority to regulate trade.

10. RFC, 1:48.

11. “Vices of the Political System of the United States” and other sources cited in notes 13-15 below. The indispensable discussion of discontent with the early Revolutionary constitutions is Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill, N.C., 1969).

12. For the preparation of the Virginia Plan see RFC, 1:18; 3:23, 409, 525, and passim. The Virginia Plan provided for rotation of members of the lower house but not the senate; Madison’s pre-Convention letters recommended the reverse. Madison had suggested placing a veto on legislation in an executive council of revision; the plan would have associated the judiciary with the executive in this power. Other differences will be discussed below, but I can find no evidence that Madison disapproved of any of the resolutions or that the plan either advanced significantly beyond or (except in the matter of a federal negative on local legislation) retreated significantly from his pre-caucus desires.

13. “Notes on Ancient and Modern Confederacies,” in The Papers of James Madison, ed. William T. Hutchinson, Robert A. Rutland, et al (Chicago and Charlottesville, Va., 19624 9:3-24: The editors of this collection, hereafter cited as PJM, date these notes to spring 1786. Madison recalled writing them after his appointment to the Federal Convention: In either case, they seem certainly-and importantly-to have been his first step toward a systematic analysis of current ills.

14. Letters to Thomas Jefferson (March 19, 1787), Edmund Randolph (April 8, 1787)

and George Washington (April 16, 1787), in ibid., 9:318-19,368-71, 382-85.

15. Ibid., 345-58. In estimating Madison’s initial influence on the Convention it is useful to bear in mind that this memorandum, which was a polished piece of writing, may have been read by several members. It is headed by a note that a copy was made by Daniel Carroll, a Maryland delegate, and sent by permission to Charles Carroll of Carrollton.

16. Close attention to the progression of Madison’s thinking is important because it helps redress an excessive and misleading emphasis upon the ideas that received their most famous elaboration in Federalist No. 10. As will be seen below, I do not deny the critical importance for Madison of the problem of majority faction and the concept of the extended republic. I think it worth remarking, though, that an analysis of his course at the Convention can be pressed quite far with relatively little reference to these ideas. The present essay maybe usefully contrasted on these lines with Jack N. Rakove, “The Great Compromise: Ideas, Interests, and the Politics of Constitution Making,” William and Mary Quarterly, 3rd ser., 44 (1987), 424-57. Though Rakove criticizes The Creation of the American Republic for its relative neglect of federal problems, I do not believe the insight has been pressed as far as it might go.

17. To Jefferson, PJM, 9:318; to Randolph, ibid., 370.

18. To Jefferson, ibid., 318.

19. Revenue requisitions are “a law to the states,” as state acts are laws to individuals. Speech in the Confederation Congress, Feb. 21, 1783, ibid., 6:271.

20. “Vices of the Political System,” ibid., 9:351.

21. Madison was particularly concerned with the need for federal action to counter Britain’s navigation laws and with the confusions and hostilities resulting from separate and conflicting state attempts to do so. For the centrality of this concern in his original decision to support a sweeping federal reform see Banning, “James Madison and the Nationalists, 1780-1783,” William and Mary Quarterly, 3rd ser., 40 (1983), 252-54, and especially Drew R. McCoy, The Elusive Republic: Political Economy in Jeffersonian America (Chapel Hill, N.C., 1980), chap. 3.

22. To Jefferson, March 19, PJM, 9:318. See also, to Randolph, April 8, ibid., 369.

23. See, especially, Charles F. Hobson; “The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government,” William and Mary Quarterly, 3rd ser., 36 (1979), 215-35.

24. This reference in the letter to Randolph (PJM, 9;369) is frequently cited and misunderstood.

25. Ibid., 370. Compare to Washington, ibid., 383: “the negative is the least possible encroachment on the state jurisdictions.” The distinction between “positive” powers and “this defensive power” begins in the letter to Jefferson, ibid., 318.

26. Jefferson to Madison, June 20, 1787, ibid., 10:64. “The great desideratum which has not yet been found for republican governments,” Madison wrote to Washington (ibid., 384), “seems to be some disinterested and dispassionate umpire in disputes between different passions and interests in the state. The majority who alone have the right of decision have frequently an interest, real or supposed, in abusing it. In monarchies the sovereign is more neutral to the interests and views of different parties, but, unfortunately, he too often forms interests of his own repugnant to those of the whole. Might not the national prerogative here suggested be found sufficiently disinterested for the decision of local questions of policy, whilst it would itself be sufficiently restrained from the pursuit of interests adverse to those of the whole society?”

27. The unanswerability of Madison’s analysis became most striking in the brief debate preceding the Convention’s decision to adhere to the Virginia Plan in preference to New Jersey Resolutions. As Rakove remarks (“The Great Compromise,” 441-47), Madison s opponents did not even try to counter the insistence on the insufficiency of a purely federal system, focusing instead on practical and legal obstacles to a more fundamental reform. See RFC, 1:241-333.

28. To Randolph, PJM, 9:369. The same phrase reappears in the letter to Washington, ibid., 383.

29. Indeed, the letters to Randolph and Washington both suggested selection of the lower house “by the legislatures or the people at large.” The letter to Washington (ibid., 385) advocated the coercive power and then immediately conceded “the difficulty and awkwardness of operating by force on the collective will of a state.” Madison hoped the use of force might be “precluded” by means of the federal negative. “Or perhaps some defined objects of [internal] taxation might be submitted, along with commerce, to the general authority.” The obvious presumption here is that the general government will still resort to requisitions.

30. Wood remarks this, p. 525. See also Michael P. Zuckert, “Federalism and the Founding: Toward a Reinterpretation of the Constitutional Convention”, Review of Politics, 48 (1986), 166-210. Written independently of the essays cited on the title page, Zuckert’s article makes several similar observations about the partly “federal” character of Madison’s initial wishes.

31. This paraphrases The Federalist No. 41 and Madison’s speech in the Convention on June 29, which will be discussed below. But Madison’s association of Virginia’s vulnerability, collapse of the Confederation, and an end of republican liberty was apparent as early as Feb. 21, 1783 (PJM, 6:272) and well developed by the time of his speech in the Virginia legislature in Nov., 1785 (ibid., 8:431-32). I have argued that this was a central theme of Madison’s concerns throughout the founding in “Virginia: Nation, State, and Section,” a paper read at the conference on “Ratifying the Constitution: Ideas and Interests in the Several American States,” National Humanities Center, May 1987, (forthcoming in Ratifying the Constitution: Ideas and Interests in the Several American States, ed. Michael Lienesch and Michael Gillispie (Princeton University Press, 1988). See also Madison’s candid references to the South’s special vulnerability in the speeches of Aug. 29 and Aug 16, RFC, 2:452, 306-7.

32. To Jefferson, PJM, 9:318. Compare, to Randolph, ibid., 371: “Unless the union be organized efficiently and on republican principles, innovations of a much more objectionable form may be obtruded.” See also, to Jefferson, March 18, 1786 (ibid., 8:502): “Most of our political evils”-paper money, indulgences for debtors, etc.-”may be traced up to our commercial ones, as most of our moral may to our political.”

33. To Randolph, April 8, ibid., 9:371. Madison’s concern about the growth of counter-Revolutionary sentiments, especially among New Englanders, pervades this volume. But see, particularly, to Washington, Feb. 21, 1787 (ibid., 286): American leaning toward monarchy “will of course abandon an unattainable object whenever a prospect opens of rendering the republican form competent to its purposes. Those who remain attached to the latter form must soon perceive that it cannot be preserved at all” unless its current ills are overcome. Compare, to Edmund Pendleton, ibid., 294-95; to Randolph, ibid., 299.

34. To Jefferson, March 19, ibid., 318.

35. The letters to Jefferson, Randolph, and Washington all insist on both of these points.

36. The thought that an extension of the sphere of republican government might become a republican remedy for republican ills thus emerged originally as a corollary and defense of the idea of a federal negative, which was to be the instrument for defeating majority abuses in the states. Excellent on this and several other points is John Zvesper, “The Madisonian Systems,” Western Political Quarterly, 37 (1984), 236- 56.

37. “Vices of the Political System,” PJM, 9:354.

38. “Observation on Jefferson’s Draft of a Constitution for Virginia,” 1788, ibid., 11:287-88.

39. Rufus King’s notes on the debates, RFC, 1:108. See also “Vices,” PJM, 9:353-54.

40. To Caleb Wallace, Aug. 23, 1785, PJM, 8:350-57; “Observations on Jefferson’s Draft,” ibid., 11:281-94.

41. To Pendleton, Feb. 24, ibid., 9:295. My italics.

42. These distinctions originated in the Convention on May 30 in remarks by Gouverneur Morris and George Mason. See RFC, 1:34.

43. Madison believed that population was the fairest test of wealth and was responsible for including in the congressional recommendations of 1783 an amendment that would have based federal requisitions on population (counting slaves as 3/5 of whites) instead of on the value of lands. The Virginians knew that their proposals would revive the ancient arguments between the North and South over methods of assessing lands and counting slaves. Little guesswork is involved in suggesting that the phrasing of the resolution was intended to demand proportional representation while postponing the inevitable battles over what “proportional” would mean. Note also the additional suggestion that requisitions were still assumed to be required.

44. See the pre-Convention letters to Jefferson, Randolph, and Washington. For the pervasive current agreement that the weight of population was shifting rapidly into the South and West (and for the special role of this assumption in Madison’s own thinking), see Drew R. McCoy, “James Madison and Visions of American Nationality in the Confederation Period: A Regional Perspective,” in Beyond Confederation: Origins of the Constitution and American National Identity, ed. Richard Beeman et al. (Chapel Hill, N.C., 1987), 226-58.

45. RFC, 1:53. Butler had asked Randolph to explain the extent of the meaning of resolution 6, and Randolph “disclaimed any intention to give indefinite powers to the national legislature.” Madison “said he had brought with him into the Convention a strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the national legislature, but had also brought doubts concerning its practicability. His wishes remained unaltered, but his doubts had become stronger. What his opinion might ultimately be he could not yet tell. But he should shrink from nothing which should be found essential.”The phrase I have italicized bears stressing, together with the tactical objective of the moment, since many analysts emphasize Madison’s doubts and interpret him as an opponent of enumeration. Later in the meeting, as will be discussed below, Madison proved the Convention’s leading advocate of strict, though full, enumeration.

46. There are several indications that this was Madison’s approach and that the speech just cited should be put into this context. Consider, for example, the maneuvers of May 30 (ibid., 35-37).

47. Nearly everyone agreed that the selection of the senate by the lower house might give the lower chamber an overweening influence, while few were willing to entrust election of the upper directly to the people, as Wilson recommended. Doubting that the people were equipped to make a fit selection or insisting that a senate chosen in this way would prove unable to defend minorities against majority demands, many members saw election by the local legislatures simply as a lesser evil. Many others, though, including several delegates from larger states, were forcefully impressed by the insistence of John Dickinson and Roger Sherman that selection by the local legislatures could collect the sense of states as states, assure a federal harmony, and offer firm securities against potential national usurpations. See, particularly, the speeches of Dickinson, Sherman, and George Mason on June 6 and 7, ibid., 133, 136- 37, 155, together with Dickinson ‘s “Letters of Fabius,” ibid., 3:304.

48. June 1, ibid., 1:69.

49. June 6, ibid., 134.

50. June 7, ibid., 151-52, 154.

51. Ibid., 164. Here, again, Madison called the negative “the mildest expedient ” necessary to defend national supremacy, prevent disputes between the states, and protect “the weaker party” from majority oppressions.

52. See, for example, his speech of July 17, ibid., 2:27-28. For his position at the end of the Convention and his fullest explanation of the federal veto see Madison to Jefferson, Oct. 24, PJM, 10:205-20.

53. June 6, RFC, 1:134. See also the speech of June 19, ibid., 318.

54. Madison’s own record of the June 6 speech has him referring to enlargement of the sphere as “the only defense against the inconveniences of democracy consistent with the democratic form of government” (ibid., 134-35). He usually referred to “republican” rather than “democratic” forms of government, but a rigorous distinction between these terms was not especially common until he made it a strategy of The Federalist.

55. Madison recorded Randolph and Mason voting against extension of the negative on June 8 (ibid., 168). I think it certain that the two eventual non-signers were responsible for the limitation of the power in the resolutions of May 29.

56. Ibid., 200-2.

57. Less than three full days of arguments comparing the two plans, including Hamilton’s day-long speech of June 18 and Madison’s remarkable summation on the following morning, were needed before the Convention voted 7-3-1 to adhere to Randolph’s Resolutions.

58. June 15, RFC, 1:242.

59. June 28, ibid., 446.

60. June 30, ibid., 486-87.

61. June 28, ibid., 447.

62. This paragraph is an amalgam of the speeches of June 29, June 30, and July 14. Quotations are at ibid., 1:464, 476, 490; 2:9-10.

63. July 2, ibid., 510-16.

64.The Convention’s subsequent decision to permit the senate to amend money bills, together with the North-South compromise permitting a majority to make commercial regulations, were undoubtedly the leading sources of Mason’s and Randolph’s decisions not to sign. I have discussed this matter at length in “Virginia: Nation, State, and Section.”

65. See especially the speech of July 5, RFC, 1:527.

66. June 28, ibid., 447.

67. Most recently by Oliver Ellsworth, who was putting the Connecticut position in the language of an ultimatum (ibid., 468).

68. July 14, ibid., 2:8-9. This was Madison’s final plea before the vote that carried the famous compromise on July 16.

69. Earlier on July 14; ibid., 5.

70. Speech of July 14, ibid., 8. Here Madison suggested that if the government was to be partly national and partly federal, the proper compromise would have the states vote equally in cases where the central government would act on states and proportionally in cases where it would act on the people.

71. July 5, ibid., 1:527-29.

72. July 17, ibid., 2:19-20. On July 10, Randolph had communicated to Madison a plan intended to conciliate the small states by granting an equal vote in the senate on certain specific matters and by incorporating other provisions that would give all the states additional assurances for the protection of their specific interests (ibid., 3:55-56). Madison suggested in the speech of July 14 that some such arrangement might be proper if the Convention was bent on a partly national, partly federal system. Madison’s position to this point, together with the language of his record of the large-state caucus, is the basis for my guess that he preferred to return to the Convention and confront the small states with an ultimatum demanding an alternative compromise along these lines.

73. To Jefferson, Sept. 6, PJM, 10:163-64.

74. Brant, James Madison, 3: The Nationalist, chaps. 1-12, is the fullest and most influential study of the Virginian’s course at the Convention. There and in his condensation of the larger study, The Fourth President: A Life of James Madison (Indianapolis, 1970), 170-74, Brant maintains that the Connecticut Compromise “affected at once his attitude toward federal powers,” determining him to favor an enumeration over a broad grant of legislative authority and initiating the reversal that would mark the 1790s. Ketcham, 215, endorses this interpretation, which is certainly the dominant opinion: “Madison’s nationalism … reached its peak during the weeks when it seemed likely representation would be according to population”; after the large-state caucus, he “became more cautious about the powers granted to the general government.”

75. For more on this see my articles “James Madison and the Nationalists” and “The

Hamiltonian Madison: A Reconsideration,” Virginia Magazine of History and Biography, 92 (1984), 3-28.

76. Madison to Andrew Stevenson, March 25, 1826, RFC, 3:473-74. See also Madison to N.P. Trist, Dec. 1831, in The Writings of James Madison, ed. Gaillard Hunt, 9 vols. (New York, 1900-1910), 9:474-75.

77. Madison to Robert S. Garnett, Feb. 11, 1824, Writings of James Madison, 9:176-77; Madison to John Tyler, 1833, in RFC, 3:526-29.

78. Several major studies of the meeting suggest that the Convention saw a substantive division over whether there should be a broad grant of legislative powers or an enumeration (e.g. Jensen, 48, 66-67, 72-73, 80; McDonald, 238, 267). Others are ambiguous, but might be read this way (Warren, 163-64, 314-15, 388-89, 548-49; Rossiter, 208-9, 250). Despite Madison’s late-life statements and his and Randolph’s statements of May 31, the usual assumption is that the Virginia Plan envisioned a broad grant, but that the Committee of Detail decided on an enumeration. A separate article would be required to demonstrate persuasively that the Convention never considered a broad grant rather than an enumeration, but divided only over whether to postpone a definition of the specific scope of national powers to a later point. The reader, however, should carefully examine the proceedings of May 31, (RFC, 1:53-54, 56, 60, 61) and July 16-17 (ibid., 2:17, 25-27). It should also be noted that when the Committee of Detail advanced an enumeration, no one asked why it had done so.

79. To Jefferson, Oct. 24, 1787, PJM, 10:208.

80. June 29, June 30, RFC, 1:463, 490. Two speeches are repeatedly quoted by authors wishing to suggest that Madison “shared Hamilton’s quest for a unitary central government” (Roche, 28). Both should be read more carefully and placed in their proper context. On June 21, William Samuel Johnson admitted that Madison and Wilson, unlike Hamilton, “wished to leave the states in possession of a considerable, though a subordinate, jurisdiction.” He challenged these nationalists, however, to explain how “the individuality of the states” could be preserved and rendered safe if the states were not to be able to defend themselves with “a distinct and equal vote” (ibid., 355). Madison answered that the histories of all confederations showed that state encroachments on the general government were actually the greater danger. But suppose, he said, for purposes of argument, “that indefinite power should be given to the general legislature and the states reduced to corporations dependent on the general legislature; why should it follow that the general government would take from the states any branch of their power as far as its operation was beneficial and its continuance desirable to the people?” The national legislators would be representatives of the people. Insofar as the general government could practicably “extend its care to all the minute objects … of the local jurisdictions,” its powers would not be improper or the people less free. Insofar as it could not attend to these, the general government itself would wish to maintain the subordinate governments. “Supposing therefore a tendency in the general government to absorb the state governments, no fatal consequence could result” (ibid., 356-58). In context, it is clear that Madison was not advocating an unlimited central government, which he plainly thought impracticable, but suggesting that fulfillment of even the deepest fears of his opponents would prove less “fatal” to liberty than a continuation of the “independence” of the states. (For just how “fatal” he thought the latter would prove, the speech of June 29, which will be discussed below, may profitably be read in close conjunction with this one.) Also frequently quoted are remarks in the long speech of June 28: “The two extremes before us are a perfect separation [or independence] and a perfect incorporation of the 13 states … In the first case the smaller states would have everything to fear from the larger. In the last they would have nothing to fear. The true policy of the small states therefore lies in promoting those principles and that form of government which will most approximate the states to the condition of counties” (ibid., 1:449). Again, Madison was advocating neither of the extremes he mentions. He was suggesting that the small states mistook their own interests in insisting on a “federal” system and attempting to turn their fears to his own advantage.

81. On August 18, Madison moved to refer a long list of additional grants of enumerated powers to the Committee of Detail. On Sept. 14, Benjamin Franklin wished to add a congressional power to cut canals, and Madison urged extending this to permit congressional creation of corporations. These actions have also commonly been seen as powerful evidence of the great reach of his nationalism at the Convention. I believe that, carefully considered, they are in fact among the clearest indications of its limits.The powers he proposed to add in August were far from extensive. Several of them-power over a seat of national government, to dispose of western lands, to organize western governments, and so forth-were so obviously required that I believe his motion makes it clear that he wished to leave as little to implication as possible. His motion of Sept. 14 may be understood in similar terms. In moving for a power of incorporation, he had internal improvements and perhaps another national bank primarily in mind. Suggestively, King argued that the grant was unnecessary; probably hinting that it was already implicit. Similarly, Gouverneur Morris suggested that the power to create a university, another of Madison’s desires, would be covered by the power over a seat of government. See ibid., 2:324-25, 615. These maneuvers may profitably be considered in conjunction with Madison’s remark in Federalist No. 41, 270, that every omission from the Constitution of grants of necessary powers would have become a ground for “necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.” See also Federalist No. 42, 280. Citations are to The Federalist, ed. Jacob E. Cooke (Middletown, Conn., 1961).

82. It should be clearly said, since I do not desire to burn a straw man, that Brant, Ketcham, and many other students of Madison and the Convention do insist on his republican contributions. Besides works already cited see Martin Diamond, “Democracy and The Federalist: A Reconsideration of the Framers’ Intent,” American Political Science Review, 53 (1959), 52-68; Robert J. Morgan, “Madison’ s Analysis of the Sources of Political Authority,” American Political Science Review, 75 (1981), 613-25; Neal Riemer, “The Republicanism of James Madison,” Political Science Quarterly 69 (1954), 45-64; and Riemer, James Madison: Creating the American Constitution (Washington, 1986). Of all authorities, however, only Riemer and Zuckert approach a proper emphasis upon the limits of his nationalism, and neither detects the changes of mind that Madison experienced in course of the Convention.

83. July 17, Sept. 12, RFC, 2:27-28, 589.

84. Aug. 16, Aug. 21, ibid., 306-7, 361. The former speech includes: “The Southern States, being most in danger and most needing naval protection, could the less complain if the burden should be somewhat heaviest on them … Time will equalize the situation of the states in this matter.”

85. Aug. 29, Aug. 8, Aug. 13, ibid., 451-52, 224, 276-77. The speech of Aug. 29 is one of the most revealing for Madison’s differences from many other southerners in his judgment of who would control the new regime and in his vision of sectional integration, which will be discussed below.

86. This is the sense in which I think that Madison was quite correct to say that “Candor discovers no ground for the charge that the Resolutions [of May 29] contemplated a government … more national than that in which they terminated.” See Madison to Tyler, 1833, ibid., 3:529.

87. This accords with Schultz, 67-68, 73-74.

88. His most important speeches on the uses of a senate came on June 7 (RFC, 1:151- 52) and June 29 (ibid., 42’1-23). See also June 12 (ibid., 218): “What we wished was to give to the government that stability which was everywhere called for and which the enemies of the republican form alleged to be inconsistent with its nature.” Once the Convention decided on election of the senate by the state legislatures, Madison supported a term of up to 9 years, though he would have combined this with ineligibility for reelection (ibid., 423).

89. Ibid., 66-67, 70, 74.

90. Though King and Pierce agree that Madison favored a single executive with a council whose advice would not be absolutely binding, their accounts are hopelessly contradictory on other points. Pierce says he was against ineligibility for a second term (ibid., 74). King says he urged “7 years and an exclusion for ever after-or during good behavior” (ibid., 71). A good-behavior term hardly seems consistent with King’s own account of Madison’s fear of an elective monarch or with other things we know about Madison’s positions, but it seems entirely possible that Madison voted with his colleagues against executive reeligibility during the Convention’s early days. On June 4, he opposed a motion by Wilson and Hamilton to make the executive veto absolute, then seconded Wilson’s motion to associate the judiciary in the veto power. On June 5, he agreed with Wilson that a legislative appointment of the judges was a bad idea, but preferred appointment by the senate rather than the executive.

91. See Madison’s speech of July 19, ibid., 2:56-57, where he favored popular election over legislative choice. Wilson had consistently condemned provisions in the Resolutions of May 29 which made the lower house responsible for the election of the other branches. He was certainly the meeting’s foremost advocate of independently derived and fully countervailing branches. No other member, I believe, influenced Madison more.

92. July 21, ibid., 80-81.

93. Ibid., 392.

94. At the end of the Convention, he still called the senate “the great anchor of the government” (to Jefferson, Oct. 24, PJM, 10:209). The decisions for a six-year term, per capita voting, and federal payment of salaries all contributed to his conviction that the senators might still impart the principles he wanted from this body.

95. Sept. 7, RFC, 2:540. Madison’s intentions were transparent here, and the defeat of the motion initiated a suggestive series of maneuvers. War, he reasoned, was a certain and familiar instrument of magisterial ambition, and the convention followed him so far as to adopt a motion exempting treaties of peace from the requirement that 2/3 of the senate would be necessary to conclude a treaty. Two Southerners, however, quickly moved a clause providing that a 2/3 vote should still be necessary whenever territory was involved. Doubtless recollecting his determined wartime efforts to protect Virginia’s Western claims (and with the Jay-Gardoqui battle surely also in his mind), Madison confessed that it had been too easy to make treaties despite the current nine-state rule, joined with the majority to overturn his proposition, and followed with an unsuccessful motion that a quorum of the senate should consist of two-thirds of all its members (ibid., 547-49). Madison, as I suggest at greater length in “Virginia: Nation, State, and Section,” was not less dedicated to Virginia’s interests than his two non-signing colleagues; he simply calculated these a different way.

96. Ibid., 542.

97. July 21, ibid., 74.

98. Sept. 12, ibid., 586-87.

99. May 31, ibi., 1:49-50.

100. July 10, ibid., 568.

101. Ibid., 2:553.

102. Hamilton grasped this point immediately when he first heard Madison’s great speech in the Convention on enlarging the sphere. “The assembly, when chosen, will meet in one room if they are drawn from half the globe,” he jotted, and “paper money is capable of giving a general impulse,” that is, of creating a majority faction among the people and thus in the national legislature (ibid., 1:146). The argument of Federalist No. 10 collapses if representatives are not assumed to reflect the multiplicity of interests among the people. The clearest statement of Madison’s assumption that they would reflect the people’s wishes may be Federalist No. 46, 318-19.

103. See “Vices of the Political System,” PJM, 9:354.

104. I have discussed these differences at greater length in the essays previously cited. I would add that Madison is sometimes easily misjudged unless we realize that he consistently assumed that his republican credentials were so obvious that there was little need for him to flaunt them. A revealing episode occurred in the Convention on July 17, when Dr. James McClurg, in order to object to the executive reeligibility, moved a tenure during good behavior. Randolph had appointed McClurg as Patrick Henry’s substitute in Virginia’s delegation at Madison’s particular suggestion, and Madison rushed in immediately to save the novice’s face. He was not, he said, “apprehensive of being thought to favor any step toward monarchy” when he suggested that a “respect for the mover” entitled the motion to a fair hearing “until a less objectionable expedient should be applied for guarding against a dangerous union of the legislative and executive departments” (RFC, 2:33-35.)

105. See his speech of Aug. 29, ibid., 451-52, and, more broadly, McCoy, “James Madison and Visions of American Nationality.”

106. RFC, 1:584.

107. Aug. 10, ibid., 2:250.

108. For these points see also the speeches of July 26 (ibid., 2:123-24) and Aug. 7 (ibid., 2:203-4). In the first, Madison opposed a landed-property qualification for legislators because it was politic as well as just that the interests and rights of every class should be duly represented and understood in the public councils.” In the second, which embarrassed him as he grew older, he praised a freehold suffrage for the franchise; but he particularly opposed suggestions that the suffrage should be left to the legislature to determine. “A gradual abridgement of this right has been the mode in which aristocracies have been built upon the ruins of popular forms.”

109. June 29, ibid., 464-65.

110. Ibid., 467. On Sept. 14, ibid., 617, Madison supported a clause intended to “discountenance’ armies in time of peace, as these were “allowed on all hands to be an evil.

111. To Jefferson, Oct. 24, PJM, 10,207-16.

112. See especially The Federalist, Nos. 39, 45, 62.

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