by Myron Magnet
Nor did Madison like Hamilton’s idea of a funded debt, perpetually rolled over, never extinguished, and requiring taxation to service it. Such a market in government paper called into being a class of financiers and investors, dependent on the Treasury and prone to the corruption that Trenchard and Gordon and their American followers believed was an inherent tendency of a government-bond market. Madison shared that suspicion: “the stockjobbers will become the praetorian band of the Government,” he wrote Jefferson, “at once its tool and its tyrant.”19 For all his belief in the efficacy of constitutional checks and balances, he still deeply valued republican virtue—the polar opposite, he thought, of the stockjobbers’ worldview. And he also feared that the Treasury faction would gain enough political might to carry all before it.
After Jefferson returned from his four years in France in late 1789 and the two Piedmont neighbors began working together during Washington’s presidency, the friendship between Secretary of State Jefferson and Congressman Madison deepened, with Jefferson’s radical republicanism fanning Madison’s own republican flame. Madison remained an independent thinker, of course, and had no trouble pooh-poohing Jefferson’s wilder notions, including his airy dismissal of Madison’s hope that the Constitution would last: “No society can make a perpetual constitution, or even a perpetual law,” Jefferson scoffed.20 But John Randolph of Roanoke—the outrageous House Ways and Means chairman who thought himself the purest and indeed the only republican, and who slanderously accused his cousin Nancy of working as a Richmond whore before she married Gouverneur Morris and of killing a baby he alleged that she had had with a slave—nevertheless hit a truth in saying, “Madison was always some great man’s mistress—first Hamilton’s,—then Jefferson’s.”21
Without doubt, Madison craved Jefferson’s approval, and that passion deeply if subliminally tinged his worldview and shaped his career thereafter. As John Quincy Adams judged, “The mutual influence of these two mighty minds upon each other is a phenomenon, like the invisible and mysterious movements of the magnet in the physical world, and in which the sagacity of the future historian may discover the solution of much of our national history not otherwise easily accountable.”22
Not long after he left Princeton, Madison had warned his friend William Bradford against “the impertinent fops” who “breed in Towns and populous places, as naturally as flies do in the Shambles, because there they get food enough for their Vanity,” but this conventional trope, which the young man knew from literature not experience, began congealing into Jeffersonian rural sentimentality by the 1790s.23 “The life of the husbandman,” Madison declared in a 1792 article on republicanism, is the best life for “health, virtue, intelligence, and competency in the greatest number of citizens,” not to mention “liberty and safety” for all. The life of workers in the various “branches of manufacturing, and mechanical industry,” to the extent it differs from the yeoman’s life, is proportionally less “truly independent and happy.”24
How bad can it get? he asked in a subsequent article. Take the buckle makers of Britain, 20,000 of whom have lost their jobs and are “almost destitute of bread,” because the trendsetting Prince of Wales, a “wanton youth” acting on “a mere whim of the imagination,” has chosen to tie his shoes rather than buckle them. You don’t find such “servile dependence of one class of citizens on another class” among “American citizens, who live on their own soil,” exempt from “the mutability of fashion.”25
The bad faith in this pose jars. In 1792, Madison’s younger brothers managed the Montpelier plantation, along with their father, nearing seventy; the congressman had surely never set hand to plow. Jefferson, who as minister to France had had himself painted in 1786 in a daintily curled wig, striped silk waistcoat, and dandified ruffled shirt, with a matching expression of supercilious foppery worthy of any ancien régime aristocrat, did run his own plantation, using the most modern methods, some of his own invention.26 But sturdy yeomen? These hereditary landed grandees had their farming done for them by slaves. Their dependence on another class, though tyrannical rather than servile, was just as absolute as that of the buckle makers of Britain. They wanted the fiction of being republican husbandmen, “who provide at once their own food and their own raiment,” as Madison rhapsodized, in order to oppose their pretense of virtuous rootedness-in-the-soil to urban life’s foppery and fashion, phantom paper wealth, speculative bubbles, useless and precarious occupational diversity, debt, debauchery, and disease. No finance capitalism for them, no large-scale industry, no northern cosmopolitanism—in short, no Hamiltonianism.
THE LAST STRAW for Madison was Hamilton’s December 1790 proposal for a federally chartered bank, empowered to print money, sell stock, and make loans to the government and private entrepreneurs. The capstone of Hamilton’s financial edifice, the bank would leverage $2 million of precious metal into $10 million in currency, enough to galvanize the nation’s economy into full productive vigor. Madison, writing in his old Princeton friend Philip Freneau’s snarling National Gazette, thundered that such a measure would only “pamper . . . speculation,” “promote unnecessary . . . debt,” and “encrease . . . corruption”—all “in opposition to the republican spirit of the people.”27 Understandably scarred by the inflation of Revolutionary War paper currency, Madison, now the hardest of hard-money fundamentalists, didn’t understand how paper money—firmly anchored in specie and backed by reliable credit—could safely increase both the quantity and velocity of money, greatly enlarging the money supply. All the bank would accomplish, he mistakenly told Congress in February 1791, would be to banish precious metals to foreign lands and substitute another medium of exchange for them, without increasing the overall quantity.28
As this speech gathered steam, Madison moved beyond such backward-looking mercantilism and magnificently set forth his main point: that the Constitution did not give Congress the power to establish an incorporated bank. Hamilton, he said, was urging the legislators to charter the bank based on the power that Article I, Section 8 of the Constitution gives them “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers”—specific, limited powers that the section had just enumerated. But notice what “ductile” language Hamilton must use “to cover the stretch of power contained in the bill.” As the bill puts it, the bank “might be conceived to be conducive to the successful conducting of the finances; or might be conceived to tend to give facility to the obtaining of loans,” Madison quoted, adding emphasis oozing with incredulous contempt. So to begin with, the bank wasn’t even “necessary,” as the “necessary and proper” clause required; “at most it could be but convenient.”
Worse, Madison suggested, Hamilton’s reliance on a doctrine of implied powers instead of explicit ones courts disaster. “The doctrine of implication is always a tender one,” he warned. “Mark the reasoning” behind the bill: “To borrow money is made the end and the accumulation of capitals, implied as the means. The accumulation of capitals is then the end, and a bank implied as the means.” Such a chain of implication can lead to “a charter of incorporation, a monopoly, capital punishments, &c.,” until finally it takes in “every object of legislation, every object within the whole compass of political economy”—even down to incorporating, should Congress wish it, a fraud-ridden, government-corrupting “South-Sea company.” In that case, Madison cautioned, the “essential characteristic of the government, as composed of limited and enumerated powers, would be destroyed,” and Congress would bear “the guilt of usurpation.”29 We should not, he later wrote, “by arbitrary interpretations and insidious precedents . . . pervert the limited government of the Union, into a government of unlimited discretion, contrary to the will and subversive of the authority of the people.”30
HERE WE STAND at one of the fateful crossroads of American history. One great man proposes a brilliant innovation that another great man says the Constitution whose design team he led does not permit. What should have happened?
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bsp; Madison himself provides an ideal model. In the Constitutional Convention, he and Pennsylvanian James Wilson, his chief ally, had moved to give Congress power to build canals, but their colleagues rejected the plan as costly and unnecessary.31 Three decades later, on his last day as president—March 3, 1817—Madison vetoed a bill providing federal funds for canals and roads. “I am not unaware of the great importance of roads and canals,” his veto message remarked, with some understatement; nor did he doubt that spending federal money on them would yield “signal advantage to the general prosperity.” But the power to do so is not among the powers “specified and enumerated” in Article I, Section 8, and any reading of the “necessary and proper” clause, or the commerce clause, or the clause “to provide for the common defense and general welfare” that would justify Congress’s exercise of such power “would be contrary to the established and consistent rules of interpretation”—which, Madison explained at different epochs in his life, should stick to what those who had framed and ratified the text meant by it.32 “Such a view of the Constitution,” the veto message concluded, “would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them.” If legislators want to build roads and canals, let them frame a constitutional amendment asking the people for the requisite power.33 Couldn’t be clearer.
But even Madison didn’t always find the question so simple.
At other times, he willingly embraced the doctrine of implied powers himself. As early as 1781, remember, he had asserted Congress’s “implied right of coercion” of the states, by gunboats if need be, to make them provide their share of Revolutionary War supplies. And in his defense of the “necessary and proper” clause in Federalist 44 against those who thought it too elastic, he pointed out that the Constitution purposely didn’t follow the Articles of Confederation in prohibiting Congress from exercising “any power not expressly delegated” to it, because no legislative body can carry out its duties “without recurring more or less to the doctrine of construction or implication.” It would otherwise face “the alternative of betraying the public interest by doing nothing; or of violating the constitution by exercising powers indispensably necessary and proper; but at the same time, not expressly granted.” In words Hamilton later flung back at him, Madison concluded, “No axiom is more clearly established in law, or in reason, than that wherever the end is required the means are authorised; wherever a general power to do a thing is given, every particular power necessary for doing it, is included.”34 And even as recently as the debates over the Bill of Rights, Madison had dissuaded his colleagues from wording the Tenth Amendment so that it would reserve to the states and to the people powers not expressly delegated to the United States. Not even the Constitution, he argued, could foresee every eventuality, so some latitude was in order.35
He found he needed that flexibility when, as secretary of state, he opposed President Jefferson’s strict constructionism and embraced Hamilton’s broad-construction constitutional approach to justify the Louisiana Purchase. With the army Napoleon had sent to quell the slave revolt in Haiti destroyed, and the fleet he had readied to reinforce its planned occupation of New Orleans icebound in Holland, the French dictator concluded that he now had no geostrategic use for the Louisiana Territory and would be better off at least getting some money for it by selling it to the Americans. The flabbergasted American envoys in Paris, James Monroe and Robert Livingston, realized that Napoleon wasn’t joking about offering to sell only when Madison’s old friend François Barbé-Marbois solemnly assured them that the offer was serious—but that time was short.
Jefferson objected that the Constitution gave neither the president nor Congress power to pay $15 million to double the size of the United States, but Madison argued that the deal was too good to lose and that Congress’s treaty-making power implied a power to buy land, so Jefferson decided to shelve the constitutional amendment he had already drafted and “acquiesce with satisfaction” in Madison’s view. Madison confessed to Senator John Quincy Adams that the Constitution didn’t entirely authorize the transaction, but he expected that the “magnitude of the object” would excuse the stretch.36
In the case of Hamilton’s bank, what actually happened was this. After the House and Senate approved it by big majorities, President Washington, troubled by Madison’s opposition, asked him to prepare a veto message, just in case, and he asked Jefferson and Attorney General Edmund Randolph for their written opinions about the bank’s constitutionality.37 They echoed Madison’s objections, and Washington sent their memos to Hamilton for rebuttal.
In his extensive, forceful brief—which urged interpreting the Constitution “on principles of liberal construction” (liberal not in a partisan sense but in the sense of free, open-minded, unprejudiced, expansive rather than crabbed)—Hamilton argued that the “criterion of what is constitutional . . . is the end to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, & if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the constitution—it may safely be deemed to come within the compass of the national authority.” Moreover, Hamilton advised the practical-minded president, “All the provisions and operations of government must be presumed to contemplate things as they really are.”38 Washington received Hamilton’s brief on February 23, 1791, and signed the bill into law the next day, providing all the “energy in government” that Madison had once sought—and more—and supercharging American prosperity.
IN THE SUMMER of 1798, when President John Adams signed the Alien and Sedition Acts—for which Vice President Jefferson justly dubbed his administration “the reign of witches”—Madison had to ponder a starker constitutional question: What is the right response to federal measures so grossly unconstitutional that they trample liberty? As the Napoleonic Wars raged across the globe and the United States found itself locked in an undeclared but costly naval “Quasi-War” with France, U.S. diplomats sought peaceful relations, only to meet with demands for a £50,000 bribe from their French counterparts, code-named X, Y, and Z in their dispatch. When news of the XYZ Affair reached America in March 1798, with reports (slightly embellished) that the American envoys had indignantly replied, “Millions for defense, but not one cent for tribute,” sour national politics reached its climax of bitterness.
Adams’s and Hamilton’s Federalists tarred Madison’s and Jefferson’s Republicans as dupes or fifth columnists for clinging to their affection for France all through the Reign of Terror and the rise of Napoleon—and indeed X, Y, and Z’s dark hints of aid from “friends of France” in America, as the published diplomatic dispatches reported, fanned the spies-and-saboteurs hysteria that hatched the Alien and Sedition Acts.39 Republicans dismissed the Federalists as Francophobe “anglomen,” pageantry-loving “monocrats,” and plutocratic stockjobbers, who were using French misbehavior as an excuse to forge a British alliance and move toward a British-style monarchy or hereditary aristocracy, British-style political corruption, and a British-style standing army that would underpin a British-style “fiscal-military” state—all the liberty-killing “known instruments for bringing the many under the domination of the few,” Madison concluded.40
As the partisan press battle blazed with swollen-veined passion, Adams never employed the power the Alien Act gave the president to deport any noncitizen he deemed a national security threat, even though he believed that the country “swarmed” with “Spies in its own Bosom.”41 But the government did bring prosecutions under the Sedition Act, which criminalized “false, scandalous, and malicious writing” intended to bring the president or Congress “into contempt or disrepute, or to excite against them . . . the hatred of the good people of the United States.” Madison proposed a mordant July 4 toast: “The freedom of speech; May it strike its enemies dumb.” But joking aside, since the act forbade conspiring “with intent to oppose . . . measures of t
he government,” Madison and Jefferson, fearful that Federalist spies were opening their mail, worried about prosecution as they conspired in figuring out what to do.42 Indeed, an uncharacteristic six-month break in the correspondence between the author of the Declaration of Independence and the Father of the Constitution testifies to their anxiety; their friend and neighbor James Monroe even cautioned them against being seen together on the Piedmont lanes.43
Meanwhile, the government indicted bare-knuckled Republican journalist Benjamin Franklin Bache, Benjamin Franklin’s grandson, for seditious libel, though he died before trial, while Republican hack James Callender got a nine-month sentence, and Vermont Republican congressman Matthew Lyons got four months and a $1,000 fine, for volunteering, with some truth, that Adams had “an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” He won reelection from jail.44
THE PIEDMONT CONSPIRATORS responded by writing resolutions that two state legislatures passed. Jefferson drafted one for Kentucky, declaring that, because the Constitution was a pact among the states to delegate certain limited and enumerated powers to the federal government, the states might justly complain if the federal government exceeded those powers, as it did in the Alien and Sedition Acts, and might declare its action “void and of no force.” In fact, read Jefferson’s draft of the Kentucky Resolutions, “where powers have been assumed which have not been delegated, a nullification of the act is the rightful remedy.”45 The Kentucky legislature, however, dropped the word “nullification” from the resolution it finally passed, sticking to the slightly less incendiary “void and of no force” language.46
Madison too shied away from the extremism of nullification in his Virginia Resolutions, and though Jefferson slipped the phrase “utterly null, void, and of no force or effect” into one draft of them, the words never appeared in the final copy.47 The resolutions Madison wrote declared that the “unconstitutional” Alien Act “subverts the general principles of free government,” overturning the separation of powers by making the president both judge and jury in deciding whom to deport.