At the same time as he was doing battle with Mason, Madison received reports that Patrick Henry was taking jabs at the Constitution and stirring up the Assembly. Madison was certain that Mason was supplying the fodder for Henry’s attacks. This was precisely what Madison meant when he theorized that the people followed their favorite leaders unthinkingly and could not be trusted with power. As he put it to Edmund Randolph: “Had yourself, Col. Mason, R.H. L[ee]., Mr. Henry & a few others, seen the Constitution in the same light with those who subscribed to it, I have no doubt that Virginia would have been as zealous & unanimous as she is now divided on the subject.”23
Madison took his first stab at Mason in Federalist 38. He submitted that the relationship between the executive and the Senate was harmless. He reasoned, too, that a bill of rights was unnecessary because issues of rights had not arisen under the Articles of Confederation—not one of Madison’s most effective arguments. But Madison sidestepped Mason’s loudest complaint: the notion that out-of-state tax collectors would invade Virginia and that in matters of commercial treaties the South was destined to become the pawn of the North. Mason imagined legislation being passed that would somehow undercut Virginia’s tobacco trade with England. Oliver Ellsworth had ridiculed him on this very point in a widely (and anonymously) published essay that reached into Virginia.
So why did Madison fail to weigh in and take apart Mason’s argument? Did he think that sectional rivalry was all right to introduce behind the closed doors of the convention, but was too combustible an issue to bring up in public afterward? Or was he embarrassed that Virginians should have to acknowledge their selfish provincialism in refusing to accommodate the interests of other states? Whatever the case, “Publius” refused to touch this question.24
But Madison did not dodge the highly controversial three-fifths clause. In Federalist 54 he defended the computation of slave numbers in the apportionment of House seats. The timing was curious. Only two days before, a New York critic had pointed out that “three-fifths” existed solely to equalize the “loaves and fishes,” giving an artificial parity to North and South. It rewarded slave states for their “infecundity” and idleness. If southerners were given the privilege of counting each slave as three-fifths of a freeman, he reasoned, the northern states should be able to count “three-fifths of their live stock.”25
Whether or not Madison had access to this piece, he dismissed the charge that slaves were solely property. Instead, through the use of a legal fiction, he explained that the slave was of a “mixed character,” a person who was part property. He used the same expression in Federalist 39. Mixed character was, for Madison, the key to the whole federal system. The American Union was no longer “a confederacy of sovereign States” but a “consolidation of the States” predicated on the states’ assent. The House of Representatives derived its powers from the people; the Senate derived its powers from the states; and the executive derived its powers from “a very compound source,” reflecting “coequal bodies politic.” The government, Madison wrote, “appears to be of a mixed character, presenting at least as many federal as national features.” The Constitution had created a polity “neither wholly national nor wholly federal.” He was drawing upon the distinction Oliver Ellsworth had made: in certain matters the states rule; in others, the national government decides for all. The government’s “mixed character” was how it would preserve domestic peace. Madison had not embraced Ellsworth’s argument in Philadelphia, but it resonated with him now.
As to the mixed character embodied in the slave, Madison applied a different logic, readily admitting that slavery was an arbitrary and unnatural condition. Laws had “transformed the negroes into subjects of property,” he explained, before making the startling admission—startling for a Virginian—that their condition might be altered: “If the laws were to restore rights which have been taken away, the negroes could no longer be refused an equal share of representation with other inhabitants.” If slaves were potentially free, legal inhabitants of the United States, then the Constitution had to recognize such an outcome: one cannot treat exclusively as property the person who might one day possess all the rights of citizenship.
The implications of Madison’s legal thinking are substantial. Slaves could acquire legal identities similar to those of other inhabitants of the nation who were dependents: women, children, and aliens. (Not accidentally, it is called “emancipation” when a male child comes of age.) All of them lacked the full rights claimed by citizens. In Madison’s construction, the peculiar legal nature of slaves had led to an “expedient” compromise—the three-fifths rule. The slave, then, was a strange hybrid, “debased by servitude below the equal level of free inhabitants, which regards the slave as divested of two fifth of man.”
We should pause for a moment to consider how the logic worked, or didn’t work. After just having, in effect, scheduled the end of the overseas slave trade for the year 1808, twenty years after adoption of the Constitution, politicians might have seized upon the calculations of “Publius” and pressed for a future date at which to convey “free inhabitant” status to the remainder of those born into slavery. Whether he realized it or not, Madison had devised a constitutional basis for the emancipation of slaves. The way he wrote about slavery, race almost appeared irrelevant: civil law had transformed African Americans into a species of property, and natural law had nothing to do with their status.26
His intellectual argument sidestepped the reality on the ground, of course. The indebted southern planter was anxious about the fluctuating value of his crop, and about preserving a certain quality of life; the human drama of slavery was tied to his fears. If Madison’s “mixed character” thinking was a theoretical exercise, it was also divorced from the elaborate taxonomy of race that Jefferson had spelled out in Notes on Virginia.
For Jefferson, differences were dictated by nature. He never strayed from this judgment. But Jefferson’s logic was also a series of psychological justifications. He regarded the original crime of capture, kidnapping, and enslavement as experiences indelibly imprinted on the African American and comparable, in this way, to skin pigmentation. The memory of abuse, he allowed himself to think, made it dangerous for manumission to occur without a complete separation of the races. Jefferson saw slavery as the suspension of a state of war—race war—that would break out at some point after mass emancipation.27
While both Virginians’ formulations were fairly abstract, Jefferson’s was framed by emotions he assumed were felt by both whites and blacks. Madison’s dispassionate Federalist 54 saw slave status as something arbitrary and temporary. His “mixed character” designation for slaves could hardly have been comforting to southerners who read his essay, and were asked to accept the idea that only a legal fiction separated slaves from freemen. While Madison appears to have drawn up his argument for hypothetical purposes, we must recall that in the midst of the Revolution, he had been prepared to grant freedom to the slaves who served in the Virginia militia.
Madison read Notes on Virginia while engaged in writing his Federalist essays. Overlooking his friend’s racial theories, he drew on Jefferson’s words in an unrelated context to point to the danger of legislative tyranny. Naming the U.S. minister to France in the text of Federalist 48, Madison wrote: “The authority in support of [Virginia’s state constitution] is Mr. Jefferson, who besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it.” Madison’s point: The constitution-writing Governor Jefferson had understood—though Ambassador Jefferson apparently did not—that “173 despots would surely be as oppressive as one.” Instead of criticizing Jefferson, Madison let Jefferson’s language in Notes criticize Jefferson and the many other Virginians who, in 1787–88, reflexively warned about tyranny from the top down.
Madison opened Federalist 49 with a second reference to the author of “that valuable work,” Notes on Virginia. This time it was to register disapproval of Jefferson’s proposal
for constitutional revision. Jefferson favored the calling of a popular convention at times when two of the three branches of Virginia’s state government agreed that fundamental change was needed. Madison allowed that there was “great force in this reasoning,” but he still had “insuperable objections” to it. If a constitution could be altered too easily, he said, it would become a mere tool of party politics. Regular conventions introduced “the danger of disturbing the public tranquility by interesting too strongly the public passions.” Once again it was Madison’s conviction that the people should be kept at bay.28
Madison was engaged in a virtual debate with his friend Jefferson, though not a virulent one. Curiously he did not reveal his authorship of The Federalist to Jefferson until the summer of 1788, a considerable time after he began writing the essays, and a month after Virginia’s ratifying convention had ended. Edward Carrington, a Virginia delegate to Congress, had already let Jefferson in on the more or less open secret of “Publius’s” identity, forwarding him copies of The Federalist. But Madison appeared in no hurry to acknowledge his views to Jefferson at this crucial moment.29
Since quitting Philadelphia, Madison had been living in New York. He finally headed back to Virginia in March 1788. He was not looking forward to his state’s ratifying convention, telling Washington it would inevitably involve “very laborious and irksome discussions.” In order to secure a seat at the Richmond gathering, he felt compelled for the first time in his life to give a lengthy political speech to the voters of Orange on Election Day. He spoke in the open air, on a windy day, aiming to dispel some of what he described to Jefferson as “absurd and groundless prejudices” circulating in central Virginia. He was elected as a delegate by a comfortable margin.
In Richmond Madison found himself battling more than antifederalists Patrick Henry and George Mason. Just as an intense debate opened, he became seriously ill and missed several days of the convention. While recovering, he had to listen in silence; each time he tried to raise his voice, he was barely audible.30
Aware that the vote on the Constitution would be close in his native state, he identified three factions right away: those, like himself, who unconditionally supported the new plan of government; those who would approve if it accepted amendments; and Henry’s coalition, which sought to derail the proceedings. Madison placed Randolph and Mason in the middle group, unaware that the embittered Mason was moving closer to Henry’s position.31
Jefferson told one of his correspondents in December 1787 that he expected Madison to be the “main pillar” of defense at the ratifying convention, but he also questioned whether Madison would be able to “bear the weight.” He predicted that Virginia would reject the Constitution—and he would not be at all alarmed if that were the result. Madison would have been deeply troubled if he had known that Jefferson was devising a solution to the likely impasse that flew in the face of all that he hoped to accomplish.
Jefferson was not just expressing his disappointment with aspects of the Constitution; he was putting pressure on Madison directly. He submitted critical letters to a Maryland antifederalist and a Virginian, both of whom were then in London. These individuals were meant to take charge of circulating the letters, while keeping Jefferson’s name out of the newspapers. To the Virginian, Alexander Donald, a tobacco broker whom Jefferson had known since youth, he was the more direct: “I wish with all my soul that the nine first [ratifying] Conventions may accept the new Constitution, because this will secure to us the good it contains, which I think great and important. But I equally wish that the four latest conventions, whichever they be, may refuse to accede to it till a declaration of rights be annexed.” He knew that Maryland and Virginia both might reject the Constitution, and he deliberately targeted them because that was where his influence was greatest. He hoped to prompt a supplementary second convention. This strategy placed Jefferson closer to the middle group of Madison’s three-way valuation: the group that sought amendments. But he was also unknowingly close to Henry in his comfort with a second convention.
Several months later, as Jefferson’s disruptive letter was making the rounds, one flustered Marylander wrote to Madison and asked incredulously: “Can this possibly be Jefferson?” At the Virginia Ratifying Convention, Patrick Henry invoked Jefferson’s name with perverse pleasure: “This illustrious citizen advised you to reject this government till it be amended.” He was claiming that the two of them occupied common ground, and it certainly looked that way. Henry’s words pained Madison, whose only recourse was to counter by saying that Jefferson’s position was being misconstrued. But Madison did not delude himself: Jefferson was secretly working against him.32
“A Good Canvas”
The Virginia Ratifying Convention lasted from June 2 to June 25, 1788. Both sides already knew how most of the delegates would vote, and few changed their opinions even after three weeks of grueling debate. A handful of undecideds kept the others in suspense, knowing their votes could decide the fate of the Constitution. As a Madison supporter put it, all was “suspended upon a single hair.” An increasingly skeptical Madison did not surrender his doubts until nearly the end of the convention.33
The gathering was a grand opera of strong personalities. By unanimous decision, Edmund Pendleton reprised his role of a dozen years earlier as convention president. His health was impaired and he stood on crutches, but he showed, in the words of moderate antifederalist James Monroe, “as much zeal to carry [the convention], as if he had been a young man.” Henry, always entertaining, quickly grabbed the spotlight, sometimes speaking for hours at a time. But Pendleton’s influence was equal to that of Henry, given the length to which the competing sides went to gain his support. As president of the Virginia Convention in 1776, he had led the state to declare its independence from Great Britain. Now the grand old man was to preside over the adoption of a brand-new form of government.
Ordinarily a harmonizer, Governor Edmund Randolph found himself a man misunderstood. Though he had turned down the Constitution in Philadelphia, he changed his mind over the intervening months and was calling for ratification, agreeing with Madison that amendments could wait. His turnabout meant he had to fend off brutal swipes from the voluble Henry. At one point Henry went so far that the convention demanded he apologize for his rudeness.34
Henry assumed the role of master of ceremonies at the convention, dictating the order of debate in spite of the will of the majority of delegates. They wanted to discuss the Constitution clause by clause, but he somehow outmaneuvered them all, identifying topics of interest as he saw fit and spelling out every possible danger he believed to be lurking in the language of the document. Mason and Henry proved a formidable tag team. Their themes were these: the federal government threatened Virginia’s status as the most powerful state in the Union; the state’s economic welfare would be seriously jeopardized as the North gained in population and secured control in Congress; and slavery, the source of Virginia’s tremendous wealth, lay politically unprotected. Henry assured the delegates that Virginia could refuse to ratify and the other states would still welcome her back into the Union with open arms. But first she had to make her point and vote no. Monroe spoke relatively little, and any influence he had only underscored Henry’s importance.
Of the subjects taken up, slavery proved the most contentious. Mason repeated what he had said during the Constitutional Convention: that the new government failed to provide for “domestic safety” if there was no explicit protection for Virginians’ slave property. Henry called up the by-now-ingrained fear of slave insurrections—the direct result, he believed, of Virginia’s loss of authority over its own militia (because the president, as commander in chief, could conscript all militias). Congress, if it wished, could draft every slave into the military and liberate them at the end of their service. If troop quotas were determined by population, and Virginia had over 200,000 slaves, Congress might say: “Every black man must fight.” For that matter, a northern-controlled Congress migh
t tax slavery out of existence.35
Mason and Henry both ignored the fact that the Constitution protected slavery on the strength of the three-fifths clause, the fugitive slave clause, and the slave trade clause. Their rationale was that none of this mattered if the North should have its way. At length Madison rose to reject their conspiratorial view. He argued that the central government had no power to order emancipation, and that Congress would never “alienate the affections of five-thirteenths of the Union” by stripping southerners of their property. “Such an idea never entered into any American breast,” he said indignantly, “nor do I believe it ever will.” Madison was doing his best to make Henry and Mason sound like fear-mongers. Yet Mason struck a chord in his insistence that northerners could never understand slavery; and Henry roused the crowd with his refusal to trust “any man on earth” with his rights. Virginians were hearing that their sovereignty was in jeopardy.36
To Randolph and Madison, the antifederalists sounded arrogant, insular, and isolationist, their posturing unproductive, even foolish. Madison reminded the convention how “notoriously feeble” America was under the Articles of Confederation. Its deranged finances, its dubious reputation with foreign nations, and its troubled military defenses during the Revolution made a strong federal system absolutely essential. He reminded the delegates of General Washington’s incontrovertible statement at the end of the Revolution, when he publicly voiced his disapproval of the Confederation as he lay down his arms. It was most probably Madison’s tribute to Washington’s resolute character that prompted Henry, the very next day, to embarrass Madison by bringing up Jefferson’s criticism of the Constitution.37
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