by Ray Raphael
Madison also took careful and detailed notes, without which we would know little about what transpired in the secret sessions. Whether or not he was the “father” of the Constitution, he was certainly its scribe.4
After the Convention, Madison campaigned for ratification. He coauthored The Federalist essays (see chapter 6), and in his initial contribution, The Federalist No. 10, he presented an innovative argument for a republican form of government for a large nation such as the United States. Previously, people believed that republics only worked in small realms, but Madison reasoned that an extended republic, such as that promised by the proposed Constitution, could neutralize parochial interests, prevent any one leader or group from tyrannizing others, and afford greater protections for liberty and property. Finally, once the Constitution was ratified, it was James Madison who presented a series of amendments that evolved into what we now call the Bill of Rights (see chapter 7).
Deeply committed to constitutionalism, Madison worked tirelessly to establish written rules for a government that would both secure the nation and protect the rights of its people.
But …
In truth, nobody can be called the Father of the Constitution. Not George Washington, who presided over the proceedings and whose popularity influenced eventual passage, nor Alexander Hamilton, who shaped the Constitution’s execution during Washington’s first administration. Not Gouverneur Morris, who insisted on scrapping the Articles of Confederation at the outset of the Convention, who spoke more often and offered more motions than anybody else, who engineered the transformation of the presidency, and who polished the final draft. Not John Adams, who did not attend the Federal Convention but did write extensively about constitutions and was principal draftsman of the Massachusetts Constitution of 1780, one of the models the framers looked to. Not the French philosopher Montesquieu, whose influential writings helped form the philosophical basis of the document. Not South Carolina’s Pierce Butler or Delaware’s George Read or New Jersey’s Jonathan Dayton or any of the other delegates who enshrined their states’ interests in the final document (see chapter 3). And not James Madison.5
Our nation’s governing plan resulted from an amazing collaboration, and anything that belies this fact, such as labeling one person the “father,” undermines the essence of the enterprise. Madison understood this better than we do today. In later years, when the mythology of his authorship was beginning to take hold, he warned off a friend: “You give me a credit to which I have no claim, in calling me ‘The writer of the Constitution of the U.S.’ This was not like the fabled Goddess of Wisdom, the offspring of a single brain. It ought to be regarded as the work of many heads and many hands.”6
Madison did not always get his way at the Convention. By one tabulation, he offered an opinion on seventy-one motions but lost out on forty of these. If Madison had had his way, the Constitution would look very different than it does. Senators would serve for nine years, not just six. The president would be advised not by his own cabinet but by an independent council. This council, not the Senate, would check presidential appointments. If impeached, the president would be tried by the Supreme Court, not the Senate. Members of the Supreme Court would join the president in a revisionary council empowered to veto acts of Congress, but Congress could override their veto by a three-quarters vote. The president would not hold the exclusive authority to negotiate treaties; because a president derived “so much power and importance from a state of war,” Madison contended, the Senate should be able to conclude a treaty of peace without his assent.7
Whereas every framer suffered defeat on many matters, and whereas Madison conceded the point in most of his losing battles, he stood firm on two issues critical to his overall vision: proportional representation in both houses of Congress and congressional veto power over all state legislation. Near the close of the Convention, when he realized he would not prevail on these points, he complained to Thomas Jefferson that the new Constitution, if adopted, would not “effectively answer its national object.” The framers fell short, he believed, because they would not heed his advice.8
On a strictly pragmatic level, it is just as well they didn’t. Never would state populations have accepted an absolute federal veto, nor would small states have ceded to proportional representation in both houses of Congress. Had Madison prevailed, he might have doomed the entire enterprise—but he did not prevail, so we do have a Constitution. That document does not bear the exclusive stamp of Madison’s DNA, nor can its paternity be assigned to him.
The Full Story
In the spring of 1787 James Madison gave considerable thought to the forthcoming meeting in Philadelphia. Whereas some delegates, following the instructions they received from their states, sought only to make adjustments to the Articles of Confederation, Madison had grander designs. The whole plan of government needed to be overhauled, he believed. In letters to his friend Thomas Jefferson (in France at the time), Edmund Randolph (who, as Virginia’s governor, would be the leader of Madison’s delegation), and George Washington (who would undoubtedly be chosen president of the Convention), he presented “some outlines of a new system.”9
The “individual independence of the States” must cease, he believed. Whereas “local authorities” could continue to exist “wherever they can be subordinately useful,” state and local bodies must respect “a due supremacy of the national authority.” This meant that a national government must operate on individual citizens “without the intervention of the State legislatures.” Because a citizen of a small state like Delaware should have the same say in the national government as one from the most populous state, Virginia, representation in all branches had to be strictly according to population. The special privilege of small states under the Articles of Confederation must cease, and “the lesser States must in every event yield to the predominant will.”
Next, the newly constituted national government “should be armed with positive and compleat authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports & imports, the fixing the terms and forms of naturalization, &c &c.” Madison was not alone in this view; almost all delegates favored these extensions of authority.
But Madison went one step further: “Over and above this positive power, a negative in all cases whatsoever [Madison’s emphasis] on the legislative acts of the States, as heretofore exercised by the Kingly prerogative, appears to me to be absolutely necessary, and to be the least possible encroachment on the State jurisdictions. Without this defensive power, every positive power that can be given on paper will be evaded & defeated.” For Madison, this federal veto was key to the success of any new plan. If the national government could negate state laws, states would not be able to issue paper money or trample on the rights of creditors. “There has not been any moment since the peace at which the representatives of the union would have given an assent to paper money or any other measure of a kindred nature,” he stated confidently (see chapter 2).
But what if states resisted national authority? “The right of coercion should be expressly declared,” Madison wrote. The federal veto would keep states from acting independently, he hoped, and if not, commercial regulations might bring errant states to bay. Yet in case nothing else worked, and despite “the difficulty & awkwardness of operating by force on the collective will of a State,” armed intervention must be permitted.10
Would the Convention agree with Madison?
The Virginia delegation did, but Madison’s leadership within that elite group is often overstated. Arriving in Philadelphia before delegates from the other states, the Virginians worked together to draw up a preliminary draft for a new form of government. Madison was the junior member in a group that included luminaries George Washington, Governor Edmund Randolph, George Mason (who had played a large hand in drafting Virginia’s Constitution of 1776), and George Wythe (the most respected jurist in the state, and perhaps the nation, and a legal mentor to Thomas J
efferson, future chief justice John Marshall, and virtually every legal scholar in Virginia). Whereas the Virginia Plan emerging from this cadre’s deliberations embraced ideas that Madison embraced, it does not follow that the delegation simply rubber-stamped his suggestions. The structure proposed by the Virginia Plan—a strong national government composed of three separate branches, including a bicameral legislature—was not novel. Henry Knox and John Jay had proposed similar outlines for a new government to George Washington five months earlier, four months before Madison did. Washington copied the suggestions from Madison, Knox, and Jay, and carried them to Philadelphia, where he likely shared them with the Virginia caucus. Other members no doubt chimed in as well. What emerged from that caucus was not “Madison’s Plan,” as it is sometimes called.11
Within the caucus, Madison’s view prevailed. According to the Virginia Plan, Congress could “negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof.”12
On May 31 the Convention affirmed that provision, and on June 8 Charles Pinckney moved to strengthen it. Why limit a veto to laws “contravening in the opinion of the National Legislature the articles of Union”? What if some state passed a law that was highly destructive but did not expressly contradict the “articles of Union”? Congress, on its own authority, should decide whether a state law was proper and in the interests of the nation as a whole, Pinckney argued, and he moved “that the National Legislature shd. have authority to negative all laws which they shd. judge to be improper.” This “universality of the power,” he argued, was “indispensably necessary” to keep states “in due subordination to the nation.” Madison seconded Pinckney’s motion while noting that states had demonstrated a “constant tendency … to encroach on the federal authority; to violate national Treaties; to infringe the rights & interests of each other; to oppress the weaker party within their respective jurisdictions.” To prevent such abuses of state power, the national government’s “negative” over the states “must extend to all cases.” The national government, he concluded, was like the sun, and the states were its planets. “This prerogative of the General Govt. is the great pervading principle that must controul the centrifugal tendency of the States; which, without it, will continually fly out of their proper orbits and destroy the order & harmony of the political System.”
Elbridge Gerry objected. Although he conceded that a national veto over state legislation would be useful in some cases—“to authorize a negative to paper money and similar measures,” for instance—its unrestricted use was unjustified. States were “ignorant of each other’s interests,” he insisted, and the internal matters of any state should not be regulated by lawmakers from other states.
In the end the question was decided more by politics than by reason. Delaware’s Gunning Bedford Jr. galvanized the opposition by appealing to fears of large-state overreach. “Delaware would have about 1/90 for its share in the General Councils, whilst Pa. & Va. would posses 1/3 of the whole,” he observed. “Will not these large States crush the small ones whenever they stand in the way of their ambitious or interested views. This shews the impossibility of adopting such a system as that on the table, or any other founded on a change in the principle of representation.” The Pinckney-Madison motion to strengthen the national veto failed, with only the three largest states, Virginia, Pennsylvania, and Massachusetts, voting for it. Yet as of that moment, the working draft still allowed Congress to veto state laws it deemed incompatible with “the articles of Union.”
From mid-June to mid-July the battle between small states and large states over representation in Congress dominated the proceedings, and James Madison was a strong advocate for the large-state position. On July 2 a deadlocked Convention sent the matter to a committee composed of one delegate from each state, and three days later that committee reported to the full Convention a three-part compromise: the lower house would be apportioned by population; in the upper house “each state shall have an equal vote”; and “all bills for raising and appropriating money” must originate in the lower house and not be “altered or amended” by the upper house (see chapter 3).
Madison rejected the compromise. He insisted that its money bill provision was meaningless because a member of the Senate could always persuade some like-minded member in the House to initiate a money bill or amendment, and once a bill was introduced it still required Senate approval. This “left in force all the objections which had prevailed agst. allowing each State an equal voice.” There were only two choices, he argued: “The Convention was reduced to the alternative of either departing from justice in order to conciliate the smaller States, and the minority of the people of the U. S., or of displeasing these by justly gratifying the larger States and the majority of the people.” In the classic logic of a noncompromiser, Madison created a stark dichotomy and then ruled out the opposition’s choice.13
On July 16, despite Madison’s objections, the Convention approved by a razor-thin margin the Great Compromise that gave small states an equal say in the Senate. Would Madison finally accept defeat? On a motion by Edmund Randolph, the Convention adjourned to allow delegates from the large states to caucus and perhaps suggest a new course (see chapter 3). In his notes, Madison described that meeting in regretful, dismissive terms: “The time was wasted in vague conversation on the subject, without any specific proposition or agreement.” Some delegates, he reported, wanted “the side comprising the principal States, and a majority of the people of America” to propose a new “scheme of Government,” whereas others “seemed inclined to yield to the smaller States” in the interests of unity. Madison clearly was discontented with the meeting’s failure to unite behind his position. He had wanted both proportional representation in each house of Congress and a federal government that would serve as a unifying force. Philosophically, he believed these two major goals were of a piece, but politically he failed to see that they worked at cross-purposes. Proportional representation in both branches of Congress was too divisive an issue.
Lacking the support to continue resistance, Madison and other disgruntled proponents of proportional representation reluctantly turned to other matters—but Madison did not move far. The following afternoon he defended once again the national veto of state legislation: “The necessity of a general Govt. proceeds from the propensity of the States to pursue their particular interests in opposition to the general interest. This propensity will continue to disturb the system, unless effectually controuled. Nothing short of a negative on their laws will controul it. They can pass laws which will accomplish their injurious objects before they can be repealed by the Genl. Legislre. or be set aside by the National Tribunals.” Strangely, to buttress his argument, he cited admiringly the example of the British Crown: “A power of negativing the improper laws of the States is at once the most mild & certain means of preserving the harmony of the system. Its utility is sufficiently displayed in the British System. Nothing could maintain the harmony & subordination of the various parts of the empire, but the prerogative by which the Crown, stifles in the birth every Act of every part tending to discord or encroachment.”
Americans, though, had rebelled in the 1760s and ’70s against this “British System” and its harsh methods of preserving “harmony & subordination.” Madison’s argument had a dangerously Tory ring that would not play well out-of-doors, and Gouverneur Morris called him on his tone-deafness. “The proposal of it would disgust all the States,” he predicted. Others argued that an explicit national veto was impractical because communication was slow and Congress did not sit year-round. The veto clause was stricken from the working draft of the Constitution.14
In two days, July 16 and 17, James Madison watched two of his most cherished features go down to defeat, but even so, he fought on. On August 23, perhaps after consulting with Madison, Charles Pinc
kney proposed a new version of the veto clause. He moved that Congress have the authority “to negative all laws passed by the several States interfering in the opinion of the Legislature with the general interests and harmony of the Union; provided that two thirds of the members of each House assent to the same.” Pinckney and Madison reasoned that requiring a supermajority would make the veto measure more palatable to small states and slave states fearful of domination by Congress. Cleverly, though, they also strengthened the national negative by lowering the hurdle. Congress could veto any measure that ran counter to “the general interests and harmony of the Union,” not just one that directly contradicted the “articles of Union.”15
Knowing the measure still faced an uphill battle, Madison made a tactical move. With delegates wearied by continued debates, the best chance of adding any new provision at this point was to send the issue to committee, so he proposed that a committee work out the “modification.” But even that suggestion stirred opposition. Although Wilson called the national veto “the key-stone wanted to compleat the wide arch of Government,” Hugh Williamson called it “unnecessary” and John Rutledge declared, “If nothing else, this alone would damn and ought to damn the Constitution.” No state would “ever agree to be bound hand & foot in this manner.” By a vote of five states to six, the Convention refused to reconsider a national veto over all state laws, even in committee. The issue was finally resolved, and not to Madison’s satisfaction.
When Madison wrote to Washington before the Convention, he had much to say about the national legislature and the national judiciary, but very little to say about a national executive: “I have scarcely ventured as yet to form my opinion either of the manner in which it ought to be constituted or of the authorities with which it ought to be cloathed,” he confessed.16