Madison and Jefferson

by Nancy Isenberg;Andrew Burstein

  18. For the most complete discussion of why Federalist 10 was not an influential piece of political theory during the Constitutional Convention or the debates over ratification, but was elevated to its status as the “ur-text” only in the twentieth century, see Larry D. Kramer, “Madison’s Audience,” Harvard Law Review 112 (January 1999): 645–46, 657–58, 665–67, 670–71, 679.

  19. One Boston paper claimed that “the arguments which have been adduced in support of [the Constitution] are conclusive and unanswerable; while every objection … has been fully and entirely answered, by that incomparable writer, PUBLIUS, the author of the FEDERALIST.” Such blanket praise was purely partisan. A Philadelphia newspaper named “Publius,” among other defenders of the Constitution, as “full of profound political wisdom,” then dismissed the antifederalists for offering only “impudent assertions,” “scurrility,” and “seditious falsehood.” In response, an antifederalist used the same wording but reversed the praise, highlighting “Brutus” and other critics as “full of profound political wisdom”; it dismissed the “dry trash of Publius in 150 numbers.” See Massachusetts Centinel, May 7, 1788; Pennsylvania Mercury and Universal Advertiser, May 3, 1788; and Independent Gazetteer, May 9, 1788.

  20. See “Aristides, Remarks on the Proposed Plan of the Federal Government,” in John Kaminski and Gaspare J. Saladino, eds., The Documentary History of the Ratification of the Constitution (Madison, Wisc., 1984), 15:517; Kramer, “Madison’s Audience,” 665; Robin Brooks, “Alexander Hamilton, Melancton Smith, and the Ratification of the Constitution in New York,” William and Mary Quarterly 24 (July 1967): 349; Freeman’s Journal; or the North-American Intelligencer, December 12, 1787 (signed “SQUIB”); other essayists attacked “Publius” by assigning his “long winded publications” to paid “hirelings” and verbose lawyers hiding a weak case behind a smoke screen of words. See New-York Journal, February 4, 1788; and “Letter from a Gentleman in Dutchess County,” New-York Journal, February 14, 1788.

  21. See JM to Washington, November 18 and November 30, 1787; and JM to Randolph, December 2, 1787, PJM, 10:254, 283–84, 290.

  22. Washington sent Madison a copy of Mason’s “Objections.” See Washington to JM, October 10, 1787; JM to Washington, October 18, 1787, PJM, 10:189–91, 196–98; Cornell, Other Founders, 74–75.

  23. Washington to JM, October 10, 1787; Archibald Stuart to JM, October 21, 1787; JM to Randolph, January 10, 1788, PJM, 10:189–90, 202, 355. Stuart told Madison: “Mr. Henry has upon all Occasions however foreign to his subject attempted to give the Constitution a side blow.” Charles Tillinghast reported that Mason “means to sound the alarm through the southern states.” Madison received a letter from George Lee Turberville, a member of the Virginia House of Delegates, who echoed most of Mason’s objections, demonstrating their influence among elite Virginians. See Charles Tillinghast to Hugh Hughes, October 12, 1787; Washington to Henry Knox, October 15, 1787, in Kaminski and Saladino, eds., Documentary History of Ratification of Constitution, 8:54, 57; and Turberville to JM, December 11, 1787, PJM, 10:315–24. For a revealing analysis of the elements leading to the eventual falling-out of Mason and Washington, see Peter R. Henriques, “An Uneven Friendship: The Relationship between George Washington and George Mason,” Virginia Magazine of History and Biography 97 (April 1989): 185–204.

  24. In Federalist no. 38 Madison made mention of many of Mason’s objections, using some of the same language of his rival. He listed the “want of the bill of rights, the tendency toward monarchy or aristocracy, the Senate’s dangerous power of trying impeachments, and the lack of a council of state.” He also argued that another major complaint of Mason’s, a restriction on the importation of slaves, was an improvement over the Articles of Confederation, which had no such limitation. In no. 44 Madison dismissed Mason’s concern over the restriction placed on states in the collection of export duties; in no. 45 he refuted Mason’s charge that out-of-state tax collectors would oppress the people; in no. 46 he refuted Mason’s charge that the states would “dwindle into insignificance”; in no. 47 he rejected Mason’s fear that the government would produce an aristocracy; and in nos. 53, 55, 56, and 57 he argued against the notion that the House would have only, in Mason’s words, “a shadow of representation” and would lack the proper information to govern or to inspire confidence in the people; in his last essay, no. 63, Madison defended the Senate against the charge that it would possibly become a “tyrannical aristocracy.” Out of Mason’s twelve objections, Madison directly responded to eight. In addition to circulating his objections, Mason also wrote an anonymous newspaper essay in which he focused on the fear of New England revenue officers entering the homes of Virginians and dragging them off to court in another state. A friend sent Madison a copy of this essay. See Cooke, ed., Federalist, 244–47, 302, 312–31, 362–63, 372–83, 384–90; Mason’s “Objections to the Constitution of the Government” and his anonymous essay, “Cato Uticensis,” Virginia Independent Chronicle, October 17, 1787; and “Landholder IV,” written by Oliver Ellsworth, in Connecticut Courant, December 10, 1787, all in Kaminski and Saladino, eds., Documentary History of Ratification of Constitution, 8:41–45, 73–75; John Dawson to JM, October 19, 1787, PJM, 10:198–99, 230–31.

  25. “The Expositor, No. 1,” New-York Journal, February 7, 1788. Federalist no. 54 was published on February 9, 1788; see Cooke, ed., Federalist, 359.

  26. In these years, manumitters of slaves in Virginia rarely used the Enlightenment’s secular precepts of sympathy and justice to overturn the accepted notion that their slaves were born unfree. They tended instead to rely on their religious values to justify the humane action of releasing human property into the world and “recommending” them “to the publick” as people who could be counted on to contribute to society and not to cause trouble. It seems obvious that at this pregnant moment in history, the conversation was limited—too equivocal for the laws to advance far at all. “The Federalist No. 39”; “The Federalist No. 54,” in Cooke, ed., Federalist, 253–57, 367–69; Malick W. Ghachem, “The Slave’s Two Bodies: The Life of an American Legal Fiction,” William and Mary Quarterly 60 (October 2003): 811–15; Eva Sheppard Wolf, Race and Liberty in the New Nation: Emancipation in Virginia from the Revolution to Nat Turner’s Rebellion (Baton Rouge, La., 2006), 49–52.

  27. Peter S. Onuf, Jefferson’s Empire: The Language of American Nationhood (Charlottesville, Va., 2000), 147–51.

  28. Nos. 48 and 49, in Cooke, ed., Federalist, 333–35, 338–43. In Federalist no. 63, Madison offered his strongest statement on the subject of limiting the people’s capacity to restructure their government. He favored the “total exclusion of the people in their collective capacity from any share in” administration. See ibid., 428.

  29. Carrington to TJ, May 14, 1788, PTJ, 13:156–57; JM to TJ, August 10, 1788, RL, 1:548.

  30. JM to George Washington, February 20, 1788, JM to Eliza House Trist, March 25, 1788, PJM, 10:526, 11:5; on his attack of bilious fever, see JM to Alexander Hamilton, June 9, 1788; to Rufus King, June 9, 1788; to Tench Coxe, June 11, 1788, PJM, 11:101–2; Ketcham, 258.

  31. JM to TJ, December 9, 1787, and April 22, 1788, RL, 1:507–11, 534–35.

  32. TJ to William Carmichael, December 15, 1787; to Uriah Forrest, December 31, 1787; to Alexander Donald, February 7, 1788, PTJ, 12:475–79, 570–72; Daniel Carroll to JM, May 28, 1788, PJM, 11:64–66; Eric Robert Papenfuse, “Unleashing the ‘Wildness’: The Mobilization of Grassroots Antifederalism in Maryland,” Journal of the Early Republic 16 (Spring 1986): 92–95; “The Virginia State Ratifying Convention,” in Kaminski and Saladino, eds., Documentary History of Ratification of Constitution, 9:1088, 10:1223.

  33. To understand how the votes of the delegates could be accurately forecast a month before the convention, see the letter from David Henley to Samuel Henley, April 28, 1788, in which Henley compiled a record of 151 of 168 delegates, showing that 82 of 85 of the federalists voted as predicted. F. Claiborne Johnson, Jr., “Federalist
s, Doubtful, and Antifederalist: A Note on the Virginia Convention of 1788,” Virginia Magazine of History and Biography 96 (July 1988): 333–44; Archibald Stuart to John Breckinridge, June 19, 1788, in Kaminski and Saladino, eds., Documentary History of Ratification of Constitution, 10:1651 (Stuart wrote “suspended on a single hare,” but meant “hair”); JM to Ambrose Madison, June 24, 1788, PJM, 11:170–71.

  34. Monroe to TJ, July 12, 1788, PTJ, 13:351. Richard Henry Lee urged George Mason to try to win over Pendleton; see Lee to Mason, October 1, 1787; and Pendleton’s unanimous election as president, in Kaminski and Saladino, eds., Documentary History of Ratification of Constitution, 8:29, 9:897. Madison wrote Washington confidently that Pendleton viewed the Constitution “in its true light,” and that “his support will have great effect.” JM to Washington, October 18, 1787, PJM, 10:197. For praise of Henry’s eloquence, see Spencer Roane to Philip Aylett, June 26, 1788; on Henry’s harangues against Randolph and forced apology, see John Brown Cutting to TJ, July 24, 1788, in Kaminski and Saladino, eds., Documentary History of Ratification of Constitution, 10:1707, 1713.

  35. Mason, June 11, June 17; Henry, June 16, June 17, June 24, Virginia State Ratifying Convention, in Kaminski and Saladino, eds., Documentary History of Ratification of Constitution, 9:905, 1159, 1161, 10:1338, 1341, 1476–77, 1688–90; see also Robin L. Einhorn, “Patrick Henry’s Case against the Constitution: The Structural Problem with Slavery,” Journal of the Early Republic 22 (Winter 2002): 556–59, 563.

  36. Madison, June 20, June 24; Henry, June 20, Virginia State Ratifying Convention, in Kaminski and Saladino, eds., Documentary History of Ratification of Constitution, 10:1417, 1424, 1503; Einhorn, “Patrick Henry and Slavery,” 555–56.

  37. Randolph raised a pertinent national security question: Would not Virginia need the Union in order to survive? Seven years before, it was shown to be susceptible to military attack, and all the more vulnerable because of its huge slave population. Its white population was scattered. In this way, as they spoke to the convention, Randolph and Madison portrayed themselves as the realists. Randolph, June 6, June 7, June 9; Madison, June 7, Virginia State Ratifying Convention, in Kaminski and Saladino, eds., Documentary History of Ratification of Constitution, 9:973, 977–78, 983, 1016, 1028, 1086; 9:1033–34.

  38. Alan V. Briceland, “Virginia: The Cement of the Union,” in Patrick T. Conley and John P. Kaminski, eds., The Constitution and the States: The Role of the Original Thirteen in the Framing and Adoption of the Federal Constitution (Madison, Wisc., 1988), 218–21. Another month would pass before New York ratified.

  39. “Extract of a Letter from Richmond, June 18,” Pennsylvania Mercury, June 26, 1788.

  40. Henry, June 5, June 7, June 9, June 13, June 24; Mason, June 14, Mason and Henry, June 17, Virginia State Ratifying Convention, in Kaminski and Saladino, eds., Documentary History of Ratification of Constitution, 9:963, 1039, 1051, 10:1245, 1260–70, 1355, 1356–57, 1361, 1476–77; Monroe to TJ, July 12, 1788, PTJ, 13:352.

  41. JM to TJ, July 24–26, 1788, RL, 1:541–42.

  42. TJ to JM, July 31, 1788, RL, 1:543; William Howard Adams, The Paris Years of Thomas Jefferson (New Haven, Conn., 1997), 264–67.

  43. JM to TJ, October 17, 1788, RL, 1:563.

  44. TJ to Hopkinson, May 8, 1788, PTJ, 13:145.

  45. Lafayette to Washington, January 1, 1788, PGW-CS, 6:5–6; Douglas Southall Freeman, George Washington: A Biography (New York, 1948–57), vol. 6, chap. 6. Lafayette’s critique of the Constitution was, almost verbatim, the same as Jefferson’s.

  46. John E. Ferling, The First of Men: A Life of George Washington (Knoxville, Tenn., 1988), 314–15; Peter Shaw, The Character of John Adams (Chapel Hill, N.C., 1976); Joseph J. Ellis, Passionate Sage: The Character and Legacy of John Adams (New York, 1993); Stanley Elkins and Eric McKitrick, The Age of Federalism (New York, 1993), 532–37.

  47. Smith to TJ, February 15, 1789, PTJ, 14:559–60.

  48. History has made it appear that the election of the first president and First Congress was trouble-free. Like Smith, Madison was aware of the constitutional intricacy though he explained the problem to Jefferson in simpler terms: “The votes were unanimous with respect to General Washington … in each of the States. The secondary votes were given, among the federal members chiefly to Mr. J. Adams, one or two being thrown away in order to prevent a possible competition for the Presidency.” To “throw away” votes could not have sounded ideal to Jefferson, who had not wanted an open-ended presidency without term limits. JM to TJ, March 29, 1789, RL, 1:606.

  49. Richard R. Beeman, The Old Dominion and the New Nation, 1788–1801 (Lexington, Ky., 1972), 22–24.

  50. Herald of Freedom [Boston], December 22, 1788, published in New York and elsewhere. The letter itself was dated November 8.

  51. Beeman, The Old Dominion and the New Nation, 24–27; Roger H. Brown, Redeeming the Republic: Federalists, Taxation, and the Origins of the Constitution (Baltimore, 1993), 208–10; Robert A. Rutland, The Presidency of James Madison (Lawrence, Kan., 1990), 71.

  52. Virginia Gazette [Winchester], April 2, 1789, in Lampi Collection of American Electoral Returns, 1788–25, American Antiquarian Society, Worcester, Mass.; TJ to JM, February 5, 1787, RL, 1:465.

  53. JM to TJ, March 29, 1789, RL, 1:606–7.

  54. On the renovation of City Hall/Federal Hall, see Agnes Addison Gilchrist, “John McComb, Sr. and Jr., in New York, 1784–1799,” Journal of the Society of Architectural Historians 31 (March 1972): 14; John P. Kaminski, George Clinton: Yeoman Politician of the New Republic (Madison, Wisc., 1993).

  55. “Address of the President to Congress,” April 30, 1789; “Address of the House of Representatives to the President,” May 5, 1789, PJM, 12:120–24, 132–33; on historiographical issues and attribution of the first inaugural address, see also PGW-PS, 2:152ff.

  56. JM to TJ, March 29, 1789 RL, 1:606–7; Andrew Burstein, “Jefferson’s Madison versus Jefferson’s Monroe,” Presidential Studies Quarterly 28 (Spring 1998): 394–408.

  57. JM to TJ, May 9, 1789, RL, 1:608–9.

  58. Madison cleverly illustrated the absurdity of titles: “One of the most impotent sovereigns in Europe has a title as high as human invention can devise … ‘High Mightiness.’ ” To carry on this way seemed to him “to border on impiety.” May 13, 1789, 1st Cong, 1st sess., Annals of Congress (New York, 1857), 1:67.

  59. JM to TJ, May 23, 1789; TJ to JM, July 29, 1789, RL, 1:613, 627; Randolph to JM, September 26, 1789, PJM, 12:421.

  60. “Removal Power of the President,” May 19, 1789, PJM, 12:170–71.

  61. JM to Trist, May 21, 1789, PJM, 12:175–76.

  62. Ames to G. R. Minot, May 3, 1789, cited in Brant, 3:249.

  63. Henrietta had married Richard Nicholls Colden, whom she met when he was stationed in the Isle of Man as an officer in the Royal Highlanders. Two of Richard’s uncles, Cadwallader and David, were prominent New York Loyalists, whose land was confiscated during the Revolution. Both of Henrietta’s sons, Alexander and Cadwallader, were born in New York early in the war. Her husband died in 1777, after which she returned to England. There she petitioned the government for a stipend, compensation for losses as the wife of a Loyalist. She was well versed in her family’s finances and kept in touch with her husband’s family in America. Returning in 1785, she was listed as head of household in the south ward of New York City in the first U.S. census in 1790. She was also one of the few women to purchase stock in the Ohio Land Company. See JM to TJ, May 23, 1789, RL, 1:612–13; JM to Henry Lee, June 21, 1789, PJM, 12:251; Henrietta Maria Colden to TJ, November 25, 1790, TJ to Henrietta Maria Colden, January 20, 1790, TJP, 18:70–71, 578; on Madison’s fascination with Henrietta Colden, see Samuel Mitchill to his wife, January 3, 1802, in “Dr. Mitchill’s Letters from Washington: 1801–1813,” Harper’s New Monthly Magazine 58 (1879): 743; Edward Purple, Genealogical Notes of the Colden Family in America (New York, 1873), 13; “Letter of David Colden, Loyalist, 1873,” American Historical Rev
iew 25 (October 1919): 76–86; Mary Beth Norton, “Eighteenth-Century American Women in Peace and War: The Case of Loyalists,” William and Mary Quarterly 33 (July 1976): 390–91; for notice of her arrival in New York City, see Independent Journal, July 23, 1785; Heads of Families at the First Census of the United States Taken in the Year 1790 (Washington, D.C., 1908), 132; Anne Hollingsworth Wharton, Salons Colonial and Republican (Philadelphia, 1900), 40, 63–64; Edwin G. Burrows and Mike Wallace, Gotham: A History of New York City to 1898 (New York, 1999), 301.

  64. Randolph to JM, May 19 and August 18, 1789; Washington to JM, ca. September 23, 1789, PJM, 12:168, 345, 420.

  65. JM to TJ, May 27, 1789, 1:614.

  66. TJ to JM, July 22–23, 1789, RL, 1:625–27; Adams, Paris Years of Thomas Jefferson, 288–93; Malone, 2:222–28.

  67. TJ to JM, May 11, July 22–23, July 29, and August 28, 1789, RL, 1:610, 625–32; Monroe to JM, July 19, 1789, PJM, 12:296–97.

  68. On Madison’s reservations, see Paul Finkelman, “James Madison and the Bill of Rights: A Reluctant Paternity,” Supreme Court Review (1990): 302, 307–8, 318–19, 326–27.

  69. TJ to JM, December 20, 1787, and July 31, 1788; JM to TJ, October 17, 1788, RL, 1:512–13, 545–46, 564–66.

  70. TJ to JM, March 15, 1789, RL, 1:587–88; and see Madison’s speech on June 8, when he introduced his proposed amendments. He argued: “If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights … Beside this security, there is a great probability that such a declaration in the federal system will be inforced; because the state legislatures will jealously and closely watch the operations of this government, and be able to resist with more effect every assumption of power than any other power can do.” See “Amendments to the Constitution,” June 1789, PJM, 12:206–7.

  71. For Madison’s campaign pledges, see JM to George Eve, January 2, 1789, JM to Thomas Mann Randolph, January 13, 1789, and “To the Residents of Spotsylvania County,” January 27, 1789, PJM, 11:404–5, 416–17, 428–29; 12:57. Joseph Jones wrote to Madison after seeing his proposed amendments: “They are calculated to secure the personal rights of the people so far as declarations on paper can effect the purpose, leaving unimpaired the great Power of the government—they are of such a nature as to be generally acceptable and of course more likely to obtain the assent of Congress.” See Jones to JM, June 24, 1789, PJM, 12:258–59; also JM to Edmund Randolph, June 15, 1789, ibid., 219; on the proposed second convention, see Richard Labunski, James Madison and the Struggle for a Bill of Rights (New York, 2006), 129–32.