by Ray Raphael
The Virginia Plan reflected Madison’s lack of clarity. It stated that “a National Executive” should be chosen by the national legislature, receive a fixed salary, and serve only one term, but it did not specify whether there would be one chief executive or several, how long he or they would serve, or what his or their powers would be, except in the broadest possible terms: “Besides a general authority to execute the National laws, it ought to enjoy the Executive rights vested in Congress by the Confederation.”
On June 1, when the Convention first considered these questions, some delegates wanted a single executive, but others thought executive authority should be shared. Only when the Convention appeared at an impasse did Madison join the discussion, suggesting that delegates “fix the extent of the Executive authority”—in other words, define what he or they should do. Madison’s “definition” of executive authority, however, clarified nothing. The executive or executives, he moved, should have “power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers as may from time to time be delegated by the national Legislature.”
Three days later, on June 4, the Convention decided on a single chief executive, not several. But should this official have the power to “negative” acts of the legislature? Some thought yes, others thought no, and Madison suggested a middle ground: the executive could veto laws (to use a later term), but “a proper proportion of each branch” could “overrule the objections of the Executive.” The idea wasn’t new—it had first appeared in New York’s 1777 constitution, which Madison had studied with care—and it struck a chord with the delegates. The Convention set the “proper proportion” at two-thirds (the New York formula), later changed it to three-quarters, and finally returned it to two-thirds, but the basic idea of an executive veto with a possibility of legislative override made it into the final Constitution and is often credited to Madison.
Even so, Madison’s version of the veto differed markedly from the one that prevailed. In his mind, the chief executive should not exercise “revisionary” powers by himself but with “a convenient number of the National Judiciary”—again, an adaptation of New York’s constitution. James Wilson joined Madison in this matter, yet despite strong arguments from two of the best minds of the Convention, when “the question for joining the Judges to the Executive in the revisionary business” came to a vote on June 6, their side lost out, three states to seven.
Madison did not consider this matter settled. Over six weeks later, on July 21, he and Wilson brought it once again to the Convention’s floor. “This proposition had been before made and failed,” Wilson admitted, “but he was so confirmed by reflection in the opinion of its utility, that he thought it incumbent on him to make another effort.” Adding to the sense of gravity, Madison said he “considered the object of the motion as of great importance to the meditated Constitution.” At issue was a great point of law—should judges have a say in legislation before cases involving that legislation come before them? It was also a question of balance—should two branches of government be aligned against a third? And a question of power—would judicial participation in the veto strengthen or weaken the executive? It was one of the great philosophical debates of the Convention, with the balance of power in the new government at stake. Despite speaking powerfully on behalf of a joint executive-judicial revisionary council, Madison did not get his way. The vote was closer this time, but on a matter that seriously affected governmental operations, the so-called Father of the Constitution lost yet again.
Characteristically, Madison refused to concede. On August 15, he raised the issue a third time, but now in a new form. Instead of a joint executive-judicial revisionary council, in which the president could be outvoted, the president and the Supreme Court would each have to approve any act of Congress. If either vetoed the bill, it would take a two-thirds vote in each house of Congress to override that veto; if both cast vetoes, the override threshold would rise to three-quarters. It was an ingenious scheme, but it went nowhere. Delegates still were wary of “any interference of the Judges in the Legislative business,” as Charles Pinckney put it. True, they would have to evaluate laws after the fact when infractions came before the Court, but to do so beforehand, Pinckney observed, would “involve them in parties, and give a previous tincture to their opinions.” Elbridge Gerry added dismissively, “This motion comes to the same thing with what had been already negatived,” referring to the votes on June 6 and July 21. Madison’s motion failed handily, three states to eight.17
On September 4, less than two weeks before the Convention would adjourn, the Committee of Eleven, charged with suggesting solutions to unresolved issues, revamped the executive department (see chapter 3). Though he served on that committee, Madison disagreed with some of its suggestions. Before, the Senate had held the power of appointments, but now the president would, pending the Senate’s approval. Madison did not think a legislative body should concern itself with appointments, and when the issue came to the floor of the Convention, he favored transferring that authority to a separate executive council, again invoking a feature of New York’s constitution. Only three states, though, agreed even to consider such a council.18
The Committee of Eleven report also moved treaty-making authority from the Senate to the president, although two-thirds of the Senate was required for ratification. Here, Madison took issue with the need for a supermajority. Shouldn’t there be an exception for treaties concluding peace, he posited, “allowing these to be made with less difficulty than other treaties”? Pushing this theme one step farther, he moved that the Senate, with a two-thirds vote, could conclude a treaty of peace without the consent of the president. “The President,” he argued, “would necessarily derive so much power and importance from a state of war that he might be tempted, if authorised, to impede a treaty of peace.” It was a novel argument and perhaps a good one, but most delegates were not willing to undercut the chief executive’s authority. Madison lost out on both counts.19
Madison also differed with the Committee of Eleven on the manner of impeachment. Perhaps to offset the Senate’s partial loss of appointive and treaty-making powers, the committee gave that body the power to try all impeachments. Madison thought this made the president “improperly dependent” on Congress, but his suggestion that the Supreme Court try impeachments lost handily, two states to nine.20
Madison’s views on the presidency cannot be neatly classified. Some appear to favor a strong executive, others seem geared to keep executive power in check. Yet this much is clear: he did not take the lead in fashioning the broad outlines of the office, nor did many of his particular ideas take hold. The Father of the Presidency he was not.
On September 17, the last day of the Convention, Benjamin Franklin, Alexander Hamilton, and Gouverneur Morris urged their fellow delegates to endorse the proposed Constitution, even if they disagreed with some of its provisions (see chapter 3). Franklin’s modesty was memorable: “I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.”
Madison, however, said nothing on that final day. Although he signed the Constitution, he was deeply disappointed with the Convention’s outcome. Eleven days before the Convention adjourned, he sent a letter to Thomas Jefferson complaining that “the plan should it be adopted will neither effectually answer its national object nor prevent the local mischiefs which every where excite disgusts agst the state governments.” Madison remained more attached to his nationalist views than Franklin was to his own defeated positions. In the words of constitutional historian and Madison scholar
Jack N. Rakove, Madison “viewed all the decisions that had diluted his system not as necessary compromises but as fundamental errors in judgment.”21
Weeks later, after Congress had referred the proposed new plan to the states, Madison complained again to Jefferson about the rejection of the national veto. He opened by claiming that the veto had been rejected by “a bare majority” at the Convention, although this was not true. (The final vote, on July 17, resulted in a solid three-to-seven defeat; the “bare majority” referred to a five-to-six vote on August 23 that merely would have referred the issue to committee.) In methodical fashion, citing lessons from ancient confederacies, recent struggles of the United Netherlands and the German Empire, and “our own experience both during the war and since the peace,” he argued that without a central authority capable of nullifying local law, there would always be “a continual struggle between the head and inferior members” of government. Even though Madison could no longer affect the outcome of the Convention, he continued his argument for 2,583 words—comparable in length to essays he would soon publish in The Federalist.22
While Madison complained in private, in public he put on a different face. Although the proposed national government created by the Constitution turned out weaker than he wanted it to be, at least the Constitution provided for a national government, and that was a vast improvement over the Articles of Confederation. The Constitution needed to be ratified at all costs, and Madison would do whatever he could to make that happen.
Late in the fall of 1788, Alexander Hamilton invited Madison to contribute to a series of essays titled The Federalist, now often called The Federalist Papers (see chapter 6). Four weeks after penning his long letter to Jefferson, Madison published his first contribution to The Federalist. Today, we know Madison for the arguments he made in the twenty-six essays that he contributed to The Federalist, not for his unsuccessful attempts to create a stronger national government at the Federal Convention. We see him as the spokesman for the “federal principle” (his emphasis) and the balance of powers within the national government. In The Federalist No. 39, which many scholars treat as a definitive exposition and defense of America’s unique federal system, Madison explained that the new plan was “neither a national nor a federal Constitution, but a composition of both.” The House of Representatives was purely national in character, because people elected individuals to represent them in the national government without any interposition by the states. The Senate, by contrast, was federal in character, not national, because senators were chosen by state legislatures to represent the states, not the people, and each state had an equal say. This, in large measure, was what made the system so balanced, he boasted. Ironically, he was able to make such a claim only because he had failed to secure proportional representation in both houses of Congress at the Convention in Philadelphia the previous summer.23
Under the “federalist principle,” powers were distributed between state and national governments, each supreme “within its own sphere.” Even though balancing state and national authority was always central to Madison’s philosophy, his weighting of those two spheres changed with time. At the Federal Convention, he gave preference to the national government, but in The Federalist he assuaged readers’ fears of centralization by giving states the nod. In The Federalist No. 39, he noted that the jurisdiction of the national government “extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.” Congress would have no more say over state and municipal matters than the states had over national policy. In The Federalist No. 45, Madison spoke more strongly yet for the residual rights of states: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce…. The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.”
Although this tidy separation worked well for his purpose, it masked Madison’s earlier view of what would be best for the nation, which he succinctly expressed in his defeated motion on June 8 at the Federal Convention: “the National Legislature shd. have authority to negative all laws which they shd. judge to be improper.” All laws, by any interpretation, would include even those within the “sphere” supposedly reserved to the states. Imagine for the moment that Madison’s motion had prevailed and then, in his essays for The Federalist, he had justified the national veto in the language he used when writing to Washington: “A negative in all cases whatsoever on the legislative acts of the States, as heretofore exercised by the Kingly prerogative, appears to me to be absolutely necessary.” The prospect of such a “Kingly prerogative,” unchecked and ever expansive, would likely have undone the framers’ work. The so-called Father of the Constitution would have killed his own child.24
Madison’s most famous argument in The Federalist, put forth in The Federalist Nos. 10, 14, and 51, stated that individual rights were safer under a large or extended republic than under a small one. According to traditional wisdom, voiced most influentially by Montesquieu in his The Spirit of the Laws, republican governments worked best in small, self-contained states with homogeneous populations, whereas in large nations, where rulers were distanced from the people, republicanism inevitably broke down. Madison turned this argument on its head, transforming what most theorists viewed as a disease of republican government—factionalism—into a cure. In an extensive country, he insisted, a multiplicity of interests and factions can cancel one another out, making it more difficult for any single faction to form a majority and commandeer the government for its own purposes. “It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained,” he concluded in The Federalist No. 51, “that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government.”
Today, we know this argument by reading The Federalist, but Madison had expressed it at least three previous times: immediately before the Federal Convention, during the Convention’s proceedings, and in a letter to Thomas Jefferson dated October 24, 1787, five weeks after the Convention’s end. The first two versions of his argument, however, included an element lacking from the argument’s recapitulation in The Federalist: the need for a national veto to suppress state laws produced by factions. Because the new Constitution failed to provide that mechanism, Madison was forced to soften his argument. The lighter, gentler version of the argument survives in The Federalist, eclipsing the strident, harsher one.25
Many, perhaps most, educated Americans have been instructed by teachers to read either The Federalist No. 10 or 51, and apparently the diligent ones did. In 2004, when the National Archives, National History Day, and U.S. News & World Report asked the public to vote on which of one hundred documents were the most influential in American history, “Federalist Papers No. 10 & No. 51” came in twentieth, just below the Marshall Plan and the 1965 Voting Rights Act, but narrowly edging out the United Nations Charter, the 1783 Treaty of Paris, in which Britain recognized American independence, and Thomas Edison’s patent application for the lightbulb.26
Although Madison’s clever thesis intrigues us today, it attracted little notice at the time. In The Federalist No. 11, published two days later, Alexander Hamilton promoted the commercial benefits of the proposed Constitution, and apparently that practical argument resonated better than Madison’s theoretical one; Hamilton’s essay was reprinted in six newspapers outside New York State, Madison’s in only one. The Federalist No. 51 was not picked up by any newspaper outside New York City, and by the time it appeared in the second bound volume of The Federalist on May 28, 1788, eight states had already ratified the Constitution, only one shy o
f the number required to place it in effect, and delegates to the ratification conventions in the remaining states had already been selected (see chapter 6). If people of those times had been asked to list the most influential essays penned during the ratification debates, The Federalist Nos. 10 and 51 would not have made the grade.27
Circulation aside, other Federalist leaders did not use or cite Madison’s argument. In debates at the states’ ratifying conventions, when the Constitution’s opponents argued that republican government could work only for small self-contained states, Federalists responded by pointing to the proposed system of representation, to the manageable size of Congress, to the deficiencies of confederacies, and so on—but they did not incorporate Madison’s thoughts on offsetting factions.28
Not until the twentieth century did Madison’s argument receive particular attention. The Federalist No. 10 entered public debate in 1913 when progressive historians cited Madison’s denunciation of debtor relief: “a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project.” This single passage, with its provocative wording, seemed to support their controversial and much-publicized economic interpretation of the Constitution, which held that most framers owned government securities and wanted to kill measures that would devalue them. Whether or not readers understood or embraced Madison’s argument, they did take note.29
Decades later, with the promotion of pluralism in midcentury and the attention to diversity in the decades following, Madison’s thinking on counteracting factions finally took hold. The Supreme Court cited The Federalist No. 10 only once before 1974, although by then its judicial opinions had referenced other Federalist essays more than two hundred times. Justices rarely cited The Federalist No. 51 before 1960, but after that they cited it more than any of the other eighty-four Federalist essays. Times had changed, and by reading history backwards, modern commentators attributed Madison’s creative argument not only to him but also to “the Founding Fathers” (from Justice Byron White’s Storer v. Brown ruling) or to “the Framers” (from Justice Clarence Thomas’s 2007 dissent in Nixon v. Shrink Missouri Government PAC). The popular notion that Madison was somehow the framer helped justify this unwarranted leap.30