Finally, under the rubric of his fourth proposed amendment, Madison wrote the following words: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” This eventually, after some editing in the Senate, became the Second Amendment in the Bill of Rights, and its meaning has provoked more controversy in our own time than it did in 1789.36
Madison was responding to recommended amendments from five states, calling for the prohibition of a permanent standing army on the grounds that it had historically proven to be an enduring threat to republican values. It is clear that Madison’s intention in drafting his proposed amendment was to assure those skeptical souls that the defense of the United States would depend on state militias rather than a professional, federal army. In Madison’s formulation, the right to bear arms was not inherent but derivative, depending on service in the militia. The recent Supreme Court decision (Heller v. District of Columbia, 2008) that found the right to bear arms an inherent and nearly unlimited right is clearly at odds with Madison’s original intentions.37
During the debates in the House, several delegates, mostly from southern states, accused Madison of cherry-picking from the recommended amendments of the state ratifying conventions so as to minimize rather than maximize the restraints on federal power. Aedanus Burke of South Carolina described Madison’s proposed amendments as “whip-syllabub,” a popular dessert of the day that was “frothy and full of wind, formed only to please the palate.” Burke, who was apparently enjoying a metaphoric epiphany, also characterized the proposed amendments as “a tub thrown out to the whale,” a tactic used by sailors trying to divert a whale from attacking their ship.38
Thomas Tudor Tucker, also of South Carolina, wanted to know why Madison had failed to include the amendment, proposed by all the states that had recommended amendments, to regard all federal taxes as voluntary requirements in the initial solicitation. Most critics seemed to be saying that Madison’s proposed amendments did not accurately reflect the deepest concerns of their constituents about the enhanced powers of the federal government but instead were gestures of appeasement toward what were, in fact, the diminished powers of the states. And, in truth, that was precisely what Madison intended: namely, to make the fewest concessions possible to the opposition in order to ensure the greatest level of support for the new government.39
The most basic of Madison’s intentions in drafting and defending the Bill of Rights, then, were neither constitutional nor philosophical, but political. He had no sense that he was writing what has now become enshrined as the semi-sacred creedal statement of America’s core political values. As he explained to Jefferson on several occasions, he really did not think the Constitution needed a bill of rights.
What he called “the nauseus business of amendments” was primarily intended to win over those disaffected and reluctant Americans by identifying in specific ways the constitutional constraints on federal power. He was always very clear about that: “It is to be wished that the discontented part of our fellow Citizens could be reconciled to the Government they have opposed, and by means as little unacceptable to those who approve the Constitution in its present form. The amendments proposed in the H. of Rep. had this two-fold object in view.”40
He did not regard himself as a political philosopher but rather as a political strategist attempting to secure the success of a quite daring project that he, Hamilton, Jay, and Washington had launched against great odds three years earlier. Over the ensuing decades and centuries, to be sure, the Bill of Rights has ascended to an elevated region in the American imagination. But in its own time, and in Madison’s mind, it was only an essential epilogue that concluded a brilliant campaign to adjust the meaning of the American Revolution to a national scale.
It makes sense to end the story in the summer of 1789. By then the Constitution had been ratified, Washington was ensconced as the first president, the Bill of Rights was on the way to ratification, and the framework for a truly national government was in place. Only a few years earlier, no one could have predicted this outcome or the chain of events that led to it. But there it was. The American Revolution now meant not just independence but nationhood. And though a majority of the American populace was either opposed or indifferent to this remarkable transition, the institutions necessary to make it happen were now established, and the American citizenry were beginning to grow into the nation-size house constructed for them. It would take at least a full generation before they felt comfortable living there and had arranged the political furniture to their satisfaction.41
All the men who had led the movement toward nationhood, with one major exception, were centrally involved in the effort to implement and institutionalize that vision in the following decade. Washington’s role was paramount, for he made the American presidency a powerful office that combined the symbolic authority of an elected monarch with the substantive role of prime minister responsible for overseeing domestic and foreign policy. No one other than Washington could have done this so seamlessly and successfully, although he would spend both presidential terms wishing he was back at Mount Vernon.
Hamilton became the first secretary of the treasury. Washington had initially offered the job to Robert Morris, who declined in order to serve in the Senate. Hamilton proceeded to implement a comprehensive financial plan closely modeled on what Morris had attempted as the superintendent of finance: namely, a national bank, federal assumption of all state debts, and a long-range plan to retire the national debt and restore American credit internationally. In part because he came at the start, he is generally regarded as the greatest secretary of the treasury in American history. By the time he came under the fatal gaze of Aaron Burr on the plains of Weehawken in 1804, however, his commanding presence within the Federalist Party was in decline, as was the party itself.
Washington so respected Jay that he offered him any post he wished in the new government. Jay turned down the opportunity to become the first secretary of state—Jefferson then got that job—in favor of an appointment as the first chief justice of the Supreme Court. But his major contribution was in foreign policy, where he negotiated an agreement that avoided war with Great Britain in a landmark treaty that bore his name. He later went on to serve as governor of New York, where his foremost achievement was a law putting slavery on the road to extinction in what had begun to call itself the Empire State.
Madison was the exception. In the early months of Washington’s presidency, Madison continued to serve as his closest confidant and liaison in Congress. But for reasons that have baffled historians ever since, by 1791 Madison had switched sides and joined with Jefferson to lead the opposition against Hamilton’s financial plan as well as the entire domestic and foreign policy agenda of the Federalist Party. The former champion of an ultranationalist vision now embraced a Virginia-writ-large conception of the union. This conversion process culminated in Madison’s Virginia Resolutions (1798), where he articulated a states-rights interpretation of the Constitution, essentially making the same arguments that Patrick Henry had made and Madison had opposed at the Virginia convention, and that later became the position of the Confederacy in 1861.
It was one of the most breathtaking turnarounds in American political history, and the easiest way to explain it is to observe that, upon Jefferson’s return from France, Madison chose to harness all his formidable powers of argument to the political agenda of his mentor and hero. That is surely part of the explanation but hardly the whole. One would need to explore Madison’s sudden realization that Hamilton’s financial plan favored the commercial North over the agrarian South and his sense of loyalty to his constituents in Virginia. But that is another Madison and, as they say, another story.42
Looking back at this story with all the advantages of hindsight, certain features that were invisible or blurry at
the start become clearer for all to see at the end.43
First, while Washington was an invaluable trophy without whom the Constitutional Convention never could have succeeded, he was also more than that. His assessment of America’s prospects in his Circular Letter of 1783 was the clearest argument for a national government as the essential prerequisite for harnessing America’s nearly infinite potential. Both Jay and Hamilton had glimpsed the outlines of the same vision somewhat earlier, but Washington’s substantive and not just symbolic role in making the case for a federal government capable of securing the energies released by the American Revolution was crucial, in part because his vision turned out to be right, in part because no one could deliver the message with greater credibility. He was the Foundingest Father of them all because of his central role in winning both independence and American nationhood.
Second, the brand of leadership exhibited by the four most committed nationalists came to them naturally, because it represented a repetition of the roles they had all played just a few years earlier in winning American independence. In both instances they were prepared to make an all-or-nothing wager on behalf of a cause that appeared highly problematic at the time. In 1776 they were risking their lives. In 1787 they were risking their reputations and their place in American history. They were accustomed to winning such wagers, and in both instances their confidence was buoyed by the belief that they knew where history was headed. Indeed, they all regarded nationhood as the second chapter in the same larger story about American destiny in a script that had been written by what both Washington and Jay called providence. Although hagiographic depictions of the founders as quasi-divine creatures with supernatural powers of mind and heart are no longer credible, the quartet of unbridled nationalists central to this story all believed that, while they themselves were not gods, the gods were on their side.
Third, the success that these mere men enjoyed in imposing their more expansive definition of the American Revolution was the beneficiary of history in another, more time-bound sense of that term. While modern-day critics of the founders and the constitutional settlement they brokered often deliver their critical judgments from our present perspective, and the politically correct posture it permits, the more historically correct conclusion is to begin with the recognition that the founders inhabited a premodern world that cannot be understood, much less judged, in modern terms.
More specifically, the founders occupied a transitional moment in the history of Western civilization that was postaristocratic and predemocratic. On the one hand, this meant that politics in America was open to a whole class of talented men—women were still unimaginable as public figures—who would have languished in obscurity throughout Europe because they lacked the proper bloodlines and inherited wealth. Hamilton is the best example of this egalitarian ethos, and even Washington would never have risen beyond the rank of major in the British army. The presentistic tendency to contrast egalitarian assumptions at that time and now, and then to find the founding generation hopelessly elitist, is deeply flawed historically. Measured against the political and social standards of their own time, the founding generation was the beneficiary of an American society that offered greater access to latent talent than any other society in the world.
On the other hand, on the predemocratic side of the historical equation, political leadership in this premodern world remained blissfully oblivious to democratic mythology about the uncommon wisdom of the common man or the superior virtue of that mysterious congregation called “the people.” Hamilton and Madison were the most outspoken critics of any democratic perspective that assumed that the majority of the American citizenry could be expected to behave virtuously or to subordinate their own personal agendas to some larger definition of the public interest. These were not merely theoretical conclusions but hard-earned lessons learned by Hamilton while serving in the Continental Army and by Madison while serving in the Confederation Congress. Both believed that any government based on unadulterated democratic assumptions would be founded on a seductive illusion that had been exposed as such during the war and then in the state governments under the Articles.
Perhaps the best way to describe their achievement, then, is to argue that they maximized the historical possibilities of their transitory moment. They were comfortable and unembarrassed in their role as a political elite, in part because their leadership role depended on their revolutionary credentials, which they had earned, not on bloodlines that they had inherited. They were unapologetic in their skepticism about unfettered democracy, because that skepticism was rooted in their recent experiences as soldiers and statesmen, and no democratic mythology had yet emerged to place them on the defensive.
They straddled an aristocratic world that was dying and a democratic world that was just emerging, theoretically an awkward posture that they managed to make into a graceful synthesis they called a republic. The Constitution they created and bequeathed to us was necessarily a product of that bimodal moment and mentality, and most of the men featured in this story would be astonished to learn that it abides, with amendments, over two centuries later. It has endured not because it embodies timeless truths that the founders fathomed as tongues of fire danced over their heads, but because it manages to combine the two time-bound truths of its own time: namely, that any legitimate government must rest on a popular foundation, and that popular majorities cannot be trusted to act responsibly, a paradox that has aged remarkably well.
Not their hubris but their humility has made the lasting difference. They knew they did not have all the answers, and any political elite that thought it did was surely destined to find itself languishing on the trash heap of history, as the French philosophes and then the Marxist ideologues eventually discovered. Their genius was to answer the political challenges of their own moment decisively, meaning that the confederation must be replaced by the nation, but also to provide a political platform wide enough to allow for considerable latitude within which future generations could make their own decisions. Like wise parents, they allowed their children, which is to say us, to maximize our own moments for ourselves within the capacious republican framework they designed. Which was precisely what Lincoln did in 1863 at Gettysburg, acting in their name.
The last word must belong to Jefferson, even though he had the good fortune to be safely ensconced in Paris during the summer of 1787, had no role in making the Constitution happen, and went to his maker believing that federal authority over domestic policy was a betrayal of the American Revolution rather than a rescue. Jefferson also had the good fortune to live into the third decade of the nineteenth century and therefore to be asked countless times what he thought his remarkable generation had wrought. And because he also happened to be the most lyrical prose stylist of the era, his eulogy needs to be noticed:
Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country…. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered…institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him as a boy as civilized society to remain ever under the regime of their barbarous ancestors.44
Jefferson spoke for all the most prominent members of the revolutionary generation in urging posterity not to regard their political prescriptions as sacred script. It is richly ironic that one of the few original intentions they all shared was opposition to any judicial doctrine of “original intent.” To be sure, they all wished to be remembered, but they did not want to be embalmed.
APPENDIX A: THE ARTICLES OF CONFEDERATION AND PERPETUAL UNION
~1777~
To all
to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.
Whereas the Delegates of the United States of America, in Congress assembled, did, on the 15th day of November, in the Year of Our Lord One thousand Seven Hundred and Seventy seven, and in the Second Year of the Independence of America, agree to certain articles of Confederation and perpetual Union between the States of New-hampshire, Massachusetts-bay, Rhodeisland and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia in the words following, viz. “Articles of Confederation and perpetual Union between the states of New-hampshire, Massachusetts-bay, Rhode island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia”.
Article I.
The Stile of this Confederacy shall be “The United States of America.”
Article II.
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
Article III.
The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.
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