Constitutional Myths
Page 13
Fast-forward a decade, from the winter of 1787–88, when Madison penned his Federalist essays, to December 21, 1798. The political climate was far different, and many Americans were uneasy with recent extensions of federal authority. The government had formed a national army in anticipation of a full-scale war with France, and when some Americans opposed that move, Congress enacted the Alien and Sedition Acts to suppress dissent. James Madison, an early proponent of federal supremacy, now questioned Congress’s authority to take such actions. In a series of dramatic resolutions he presented to the Virginia House of Delegates, he declared that when Congress exercised powers not granted to it under the Constitution, any state, as a contractual party to the original agreement, had the right to step in. The Virginia Resolutions, as they are now called, declared:
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.
Madison had come full circle. In 1787, if some delegate to the Federal Convention had moved that a state legislature could “interpose” its authority between its citizens and the execution of a national law and declare it “no further valid,” he would have declared such a motion destructive to the entire project.31
Madison’s striking transformation did not proceed along a linear path. Whereas he had argued during the ratification debates that federal powers would be “few and defined,” when he traveled to New York to serve in the first House of Representatives he took a broader view. On April 20, 1789, ten days before George Washington’s presidential inauguration, two men asked Congress to support a private scientific expedition to Baffin’s Bay to investigate the magnetic north pole. Despite the Constitution’s silence on such matters, Madison was willing to endorse the measure:
Well aware as I am that public bodies are liable to be assailed by visionary projectors, I nevertheless wish to ascertain the probability of the magnetic theory. If there is any considerable probability that the projected voyage would be successful, or throw any valuable light on the discovery of longitude, it certainly comports with the honor and dignity of Government to give it their countenance and support…. I am also well aware that the deranged situation of our treasury would not warrant us in spending considerable sums in visionary pursuits; but if an inconsiderable sum will answer on this occasion, and there is a probability of improving the science of navigation, I see no reason against it.
Support for scientific investigations was not included in the framers’ carefully honed list of congressional powers in Article I, Section 8. At the Federal Convention, on August 18, Madison had suggested adding to that list the power “to encourage by premiums & provisions, the advancement of useful knowledge and discoveries,” but his proposal had been sent to committee and was never reported out. That defeat did not matter to Madison now. Congress still had the authority to “provide for the common Defence and general Welfare of the United States,” and those general words would have to suffice.32
The next day, Madison spoke in support of a six-cents-per-ton duty on commercial vessels, which he argued would be “necessary for the support of light-houses, hospitals for disabled seamen, and other establishments incident to commerce.” At the Federal Convention, on September 15, he had stated that an “object for tonnage Duties” was to provide for “support of Seamen etc.” and that this would be covered under Congress’s power “to regulate commerce.” It was an expansive interpretation of the often contested “commerce clause” (Article I, Section 8, Clause 3), a view we usually associate with Hamilton, the broad constructionist, not Madison, the soon-to-be strict constructionist (see chapter 4).33
In 1790, when Congress established the first federal census to apportion representation among the states, Madison suggested that it take advantage of “the present opportunity” to gather valuable information that went well beyond “the bare enumeration of the inhabitants,” the express purpose of the census as stated in the Constitution. If the census provided a “description of the several classes [occupations] into which the community is divided,” he said, that information would prove “extremely useful, when we come to pass laws, affecting any particular description of people.” It was a good measure, he felt, and that was reason enough to pass it. Stretching the census past its specified constitutional function did not trouble him.34
Despite his writings in The Federalist, Madison, as a lawmaker, did not turn into a strict constructionist until his break with Hamilton over the national bank, early in 1791. Madison was no great fan of national banks, with their “concentration of wealth and influence,” and he feared that such an institution in America would threaten republican government, as the Bank of England had corrupted politics in the former mother country. Leading the opposition to Hamilton’s bill in the House of Representatives, Madison based his argument on constitutional grounds. “Is the power of establishing an incorporated Bank among the powers vested by the Constitution in the Legislature of the United States?” he asked rhetorically. It was not in the Preamble, which “only states the objects of the Confederation” and does not “designate the express powers by which those objects are to be obtained.” (Note the reference to the Union as a “Confederation,” a curious retreat from his nationalism at the Federal Convention.) Nor was it to be found in any of the eighteen clauses in Article 1, Section 8, he argued. True, granting a charter was a means to forming a bank, a bank was a means to accumulating capital, and accumulating capital was a means to borrowing money, a power that was granted to Congress in the second clause of Article I, Section 8. But “if implications, thus remote and thus multiplied, can be linked together, a chain may be formed that will reach every object of legislation, every object within the whole compass of political economy.” Nor could the “necessary and proper” catchall justify the bank, he concluded. “The proposed bank could not even be called necessary to the Government; at most it could be but convenient.” The expedition to Baffin’s Bay, federal support for disabled seamen, and questioning people about their “class” in the census were no more “necessary to the Government” than a national bank, but Madison had not dismissed those nonenumerated measures on that account. Something deeper was at stake.35
The debate over the national bank, although argued on constitutional grounds, reflected diverging visions of nationalism. At the Federal Convention and during the ratification debates, Madison and Hamilton had both considered themselves “nationalists,” but for very different reasons. Hamilton had wanted to create a strong nation-state, a commercial powerhouse capable of exerting international influence through a military force financed by national credit and national taxation. To achieve these goals, he argued, the constitutional powers granted to the national government should be interpreted in the broadest possible manner. By contrast, Madison envisioned a more self-sufficient nation not reliant on international commerce, an expensive military, or a large federal infrastructure. While Hamilton envisioned the United States as a growing empire, Madison hoped to create an exemplary republic. In his mind, the national government should be strengthened to achieve justice, not conquest; it needed power to neutralize parochial parties and to adjudicate quarrels between them. Although both visions seemed “nationalist” in the political climate of the late 1780s, the differences became painfully evident in the 1790s. Starting with the debate over the national bank, Madison’s strict construction of the Constitution became the centerpiece of his resistance to Hamilton’s version of nationalism.36
This confusion has been exploited and placed in the service of ideology. Madison’s line in The Federalist No. 45—“The powers delegated by the proposed Constitution to the federal government are few and defined”—is among the most quoted sentences by a founder on the Internet today, with close to half a million entries turning up on a Google search. By contrast, his dramatic one-line advocacy of national supremacy in 1787—“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”—yields only ninety-three. True, the first comes from the much-publicized The Federalist and the second from a little-known source, but Google demonstrates that obscurity doesn’t preclude popularity. In 1794, during a little-known debate in Congress over a motion to provide relief for refugees from the revolution in San Domingo, Madison said this: “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” That quotation, according to Google, is repeated over half a million times on the Internet. Conveniently, writers who prefer a minimal role for the federal government cite things Madison said years after the writing of the Constitution to demonstrate that document’s meaning, while they ignore his attempts before and during the framing of the Constitution to expand its powers.37
For over two centuries Americans have cherry-picked statements made by various founders, but because Madison was allegedly the Constitution’s “primary author” and the best single authority on its meaning, the stakes are higher in his case. What Madison says must be so, no matter when he said it. This assumption has played favorably to opponents of federal authority. Select a half dozen of Madison’s quotations favoring states’ rights or strict limitations on powers of the national government. Did Madison make any of these pronouncements in 1787? Good luck finding any from that magical year.
Now compare those quotations with any statements he did make during the summer of 1787. Did he at that time promote the rights of states or suggest strict limits on the powers of the federal government? Or did he wish to grant greater powers to the federal government and place tighter reins on the states?
A close look at the record will answer these questions. Even after the broader issues of proportional representation in the Senate and a national veto of state laws had been decided against him, Madison argued for specific expansions of national authority and contractions of state authority. The powers of the national legislature were first enumerated in the Committee of Detail report on August 6, and delegates spent the remainder of that month combing over the report. During these debates, when the nuts and bolts of the Constitution were being determined, Madison had much to say on several matters pertaining to the powers granted to the national government and the states.
•August 16: He argued unsuccessfully to allow Congress to tax exports.
•August 18: He suggested granting nine additional powers to Congress. The national legislature, he said, should be empowered to “establish an University,” to “encourage by premiums & provisions, the advancement of useful knowledge and discoveries,” to “exercise exclusively Legislative authority at the Seat of the General Government,” and in order to provide an infrastructure for westward expansion, to “grant charters of incorporation in cases where the public good may require them, and the authority of a single State may be incompetent.” His list was referred to committee but never reported out.
•August 18 and 23: He argued that the national government, not the states, should regulate, control, and discipline the militia, including the appointment of top officers. “The regulation of the Militia,” he said, “did not seem in its nature to be divisible between two distinct authorities. If the States would trust the Genl. Govt. with a power over the public treasure, they would from the same consideration of necessity grant it the direction of the public force.”
•August 20: He tried to clarify and expand what we now call the “elastic” clause—“And to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this Constitution, in the Government of the U. S. or any department or officer thereof”—by adding “and establish all offices” after the word “laws.”
•August 28: He argued for three new restrictions on state governments: prohibiting state legislatures from laying embargoes, ensuring that new states would not pass laws interfering with private contracts, and making an absolute prohibition against state duties and imposts.
•August 29: To strengthen the clause requiring each state to give “full faith and credit” to the laws of every other state, he proposed that Congress be “authorized to provide for the execution of Judgments in other States” so it could take an active role in preserving the union (emphasis in original).
•September 4: The Committee of Eleven, to which Madison belonged, greatly expanded the first power granted to Congress by the Committee of Detail. The original said, “The Legislature shall have power to lay and collect taxes duties imposts & excises,” after which Madison’s committee inserted, “to pay the debts and provide for the common defence & general welfare, of the U. S.” In later years, the words “general welfare,” like the term “necessary and proper” in the elastic clause, would place Madison and other strict constructionists in a defensive posture, but during the Convention he had a hand in framing both of these clauses. Each one was necessary to ensure that the national government possessed sufficient powers to do its job.
•September 14: He revived two of his suggestions from August 18: granting Congress the power to grant charters of incorporation and establish a nondenominational university. Both motions were rejected.38
In presenting these arguments, Madison produced sound bites you are not likely to find on Internet blogs. Consider this gem from the August 23 debate over organizing the militia: “The Discipline of the Militia is evidently a National concern, and ought to be provided for in the National Constitution” (emphases in original). Unsurprisingly, this appeal to place state militias under national control has been bypassed by states’ rights advocates, gun rights enthusiasts, and the modern-day militia movement.
Or this one-liner that distills Madison’s perspective at the Federal Convention: “As the greatest danger is that of disunion of the States, it is necessary to guard agat. it by sufficient powers to the Common Govt.” We might expect to see this quotation often, but instead we find the words that immediately follow: “the greatest danger to liberty is from large standing armies.”39
Even in this tighter game, Madison often did not get his way. On some occasions, he faced opposition even from such fellow nationalists as Gouverneur Morris, who argued that Madison’s suggestions were not necessary, might alienate the public, and could endanger ratification. On every contested issue, Madison’s voice was but one of many. He was not the sole protagonist.
In the end, the notion that the Constitution had an identifiable father, and that that man was James Madison, is not some innocent metaphor, as its proponents might contend, but a dangerous error with two interpretative consequences. First, by downgrading the collaborative process, it shelters us from disputed issues at the Federal Convention and the political jockeying that resolved them. The idea that we should pay attention to James Madison over all the rest of the Convention’s delegates is an unwarranted shortcut, an unfortunate habit that belittles t
he complex process of constitution writing the framers conducted and the multilayered meanings of the document they produced.
And second, because of Madison’s political and ideological evolution, the father metaphor leads to a distorted view of the Constitution’s meaning. It turns the framer who most soured on the Constitution because it wasn’t sufficiently “national” into the perfect standard-bearer for anti-national ideologies. If the author of the Constitution said the powers of the federal government are “few and defined” and those of the states are “numerous and indefinite,” enemies of legitimate federal constitutional power see these words, taken at face value, as proof positive that the Constitution favored the states.
This unwarranted notion has penetrated to the core of our public discourse. It informs constitutional jurisprudence at the highest levels and affects national policy. The “power to tax and spend for the general welfare,” Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito complained in their dissent in the 2012 Affordable Care Act decision, has unfortunately come to extend “beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers.” The words within parentheses speak volumes. “What Madison thought it meant,” in this context, stands for “what the founders thought it meant” and finally “what the Constitution really means.” Because Madison supposedly wanted a strictly limited government, that is what the document must prescribe. However misguided, Madison-the-Father mythology is embedded within the default logic of constitutional reasoning.40