James Madison: A Life Reconsidered (19 page)

WHEN JOHN QUINCY ADAMS
called Madison “the father of the Constitution,” he was not only paying tribute to what Madison accomplished in Philadelphia but also recognizing his achievements in the months afterward.
¹
Crucial as Madison was to the creation of the Constitution, he was at least equally important to seeing that it went into effect.

But before he could begin his efforts on behalf of ratification, he had to reconcile himself to what he thought of as the Constitution’s great flaw: it failed to do enough to control what he called “the unwise and wicked proceedings” of the states.
²
The Constitution did place some restrictions—states could not coin money, for example, pass ex post facto laws, or engage in war—but Madison did not think this was enough. He had seen states pass laws that made it impossible for creditors to collect what was owed to them and that violated international treaties. He had seen them try to legislate religious belief and refuse to pay requisitions even when it meant that soldiers in the field went hungry. He had also seen that respect neither for the general good, nor for reputation, nor for religion had the power to prevent the actions of
self-interested majorities in the states. Thus his conviction that a national veto was necessary—and his doubt that a constitution without it would work.

Madison stayed in Philadelphia for several days after the convention, finishing up his notes and trying to figure out his way forward. His delay in getting to New York, where Congress was meeting, prompted one of his fellow Virginians to write to hurry him along. In case Madison was taking his time in getting back to New York because he supposed that the Virginia delegation was doing fine without him, Edward Carrington wrote, he should be aware that all was not well, particularly in the case of Richard Henry Lee, who had pretty clearly been in touch with convention dissenters. Having made history for proposing in Congress in 1776 that the colonies “are, and of right ought to be, free and independent states,” Lee was a powerful politician whose opposition to the Constitution could not be discounted. Tall and thin, he possessed noted oratorical powers, which he enhanced with sweeping gestures made all the more dramatic by a black silk handkerchief he kept over his left hand. It covered the results of a long-ago hunting accident in which he had lost four fingers.
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The realization that the Constitution could be in trouble might have helped Madison put his doubts aside. Perhaps during the postconvention days in Philadelphia, he also visited with Benjamin Franklin, who had been eloquent about his own misgivings. On the last day of the convention, Franklin had said that despite what seemed to him the Constitution’s faults, he supported it: “For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does. . . . Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.” Madison came around to a similar view. While not glossing over his disappointment, he told Jefferson that given “the natural diversity of human opinions on
all new and complicated subjects, it is impossible to consider the degree of concord which ultimately prevailed as less than a miracle.” He advised another friend that it was a mistake to compare the document produced by the convention with an ideal theory, “which each individual may frame in his own mind.” The proper comparison was “with the system which it is meant to take the place of.” Whatever its failings, the Constitution was superior to the Articles of Confederation. It would provide “some anchor for the fluctuations which threaten shipwreck to our liberty.”
⁴

Madison arrived in New York, moved into Mrs. Elsworth’s boardinghouse, and soon found himself countering efforts by Richard Henry Lee to amend the document created in Philadelphia. Some of the changes Lee proposed were structural, including a senate in which representation was according to population. Madison had fought for proportional representation in the Senate but realized that any amendment would throw the ratification process into chaos. “There will be two plans,” he said. Some states would likely consider the document proposed by the convention, others the Constitution as amended by Congress, and nine states had to ratify exactly the same document in order for the Constitution to go into effect.
⁵

Lee also proposed a declaration of rights to include freedom of the press and freedom of religion, a suggestion that seemed almost a surprise to Madison. Such a declaration was not necessary, he explained. The proposed constitution based all power in the people, who then granted certain enumerated powers to the government. They had not given over their rights in those enumerated powers and thus did not need the Constitution to guarantee them. The delegates to the Philadelphia convention, who had been part of creating the Constitution, seem for the most part to have grasped this. Only in the last days of the convention did George Mason, growing increasingly hostile, bring the subject up.
⁶
During the ratification process, it would become very clear, however, that this theoretical understanding was not widely shared. Suggestions in ratifying conventions for amending the Constitution to include various rights would present to Madison one of his greatest
challenges, particularly since opponents to the Constitution figured out early the chaos that amendments could cause.

Lee did not have the votes to pass his amendments, but Madison and his allies viewed their very existence as a threat. Word of them would spread, and delegates from various state conventions might well pick and choose, resulting in the confusion that pro-Constitution forces dreaded. Thus proponents of the document agreed that in exchange for expunging Lee’s proposed amendments from the congressional journal, they would send the document to the states without making a recommendation that they ratify it.

The Federalists, as pro-Constitution forces were beginning to call themselves, did take advantage of the agreement of all states present and voting to the compromise by inserting the word “unanimously” in the resolution. Lee understood what they were doing—hoping that the population at large would think that “unanimously” applied not merely to the sending of the Constitution but to “unanimous approbation” for the document itself. When George Washington learned from Madison what the Federalists had done, he pronounced himself “pleased”: “This apparent unanimity will have its effect. Not everyone has opportunities to peep behind the curtain; and as the multitude often judge from externals, the appearance of unanimity in that body, on this occasion, will be of great importance.”
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Washington was not so much of a statesman that he failed to appreciate a skillful political maneuver. He had, after all, presided over a similar one at the Constitutional Convention.

•   •   •

ON OCTOBER 11, 1787,
Madison, writing from New York, told his brother Ambrose that the Constitution was being favorably received in the middle and northern states, but a week later his assessment changed. “Newspapers here begin to teem with vehement and virulent calumniations of the proposed government,” he wrote to Washington. He worried about the effect on the public—and he was not alone. On October 27 a concerned citizen calling himself Publius struck back by defending the Constitution in the New York
Independent Journal.
The ratification
of the Constitution, he wrote, would decide “whether societies of men are really capable or not of establishing good government from ref[l]ection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.” Publius, in reality Alexander Hamilton, promised a series of articles that would demonstrate to his fellow New Yorkers that the very survival of the Union depended on ratification.
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Hamilton’s doubts about the Constitution ran even deeper than Madison’s, but he had concluded that a failure to ratify it would bring chaos, and he invited Madison to join him in persuading New Yorkers in its favor. He had already drawn his friend William Duer into the project, as well as John Jay, whose experience in foreign affairs Hamilton probably thought would be useful. Madison might have had some doubts about that, given the mischief that Jay’s efforts to negotiate away the Mississippi had caused; nonetheless, he agreed to become part of the writing team. New Yorkers were not the only ones for whom the case for the Constitution needed to be made. Support in Virginia was waning. “All my informations from Richmond concur in representing the enthusiasm in favor of the new Constitution as subsiding and giving place to a spirit of criticism,” Madison wrote to Washington.
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Hamilton was fortunate that Madison signed on. While Duer’s writing was “intelligent and sprightly,” as Madison described it, he was not asked, after submitting a few essays, to write others, and what he did produce was never made a part of what became known as
The Federalist
. As for Jay, he soon became too ill to write and would author only five of the eighty-five essays. Madison wrote knowledgeably. He had, after all, attended every day of the Philadelphia convention, while Hamilton, after his fiery speech, had been absent for more than a month. Madison also wrote quickly, which the publication schedule demanded. “Whilst the printer was putting into type parts of a number,” Madison later recalled, “the following parts were under the pen.”
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Madison and Jay assumed the Publius pseudonym (for Publius Valerius Publicola, one of the founders of the Roman Republic), which meant that Madison’s finest work would again appear before the public
anonymously. But it was customary for writers who had a political point to make to use classical names, and there was additional reason in this case to keep the identities of the authors secret. The people of New York, to whom the essays were addressed, were unlikely to yield to the arguments of a Virginian, nor were Virginians going to find a New Yorker’s opinions persuasive.

As Madison set to work on
The Federalist,
he did tell a few people, in confidence, of his participation, including George Washington, who he hoped would help him get the essays printed in Virginia, and Governor Edmund Randolph, whom Madison was gently trying to bring around to the Federalist side. Randolph needed a lot of tending. He had come up with a scheme for the Virginia Assembly to propose amendments to the Constitution and then get them approved or rejected by other state legislatures before Virginia’s ratifying convention met. Randolph thought this was a way to avoid having different states ratify the Constitution with different amendments. When Madison failed to comment on his proposal, the Virginia governor was hurt—even though by now he had abandoned the project. “Why would you not give me your opinion as to the scheme I proposed[?],” he asked Madison. “I am now convinced of the impropriety of the idea, but I wish to open to you without reserve the innermost thoughts of my soul and was desirous of hearing something from you on this head.” Madison patiently explained that many legislatures would have already provided for their state’s ratifying convention and adjourned before Virginia could send out possible amendments. In his next letter to Randolph he enclosed two of the
Federalist
essays and in a gesture of openness let him in on the secret: “I am in myself for a few numbers.”
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One person whom Madison conspicuously did not tell about his essays was Thomas Jefferson. For years he had written frankly to Jefferson about his political views, and he had shared personal details about the failure of his romance with Kitty Floyd, but during the time he was immersed in writing
The Federalist
and for six months afterward, Madison wrote not a word to his friend about the task he had taken on. After four of his
Federalist
essays had been published, he sent Jefferson fifty
trees as well as other plants, including rhododendrons, and promised he would try to find opossums and Virginia redbirds to ship to him. He also described at length the progress of ratification across the country (every state but Rhode Island had agreed to a ratifying convention) and in Virginia (“Mr. Henry is the great adversary who will render the event precarious”). But he told Jefferson nothing about
The Federalist
.
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Jefferson had a habit of opining from a distance that might have caused Madison to think twice about involving him. Early in 1787, at the height of concern about Shays’s Rebellion and amid worries that insurrection would spread, Jefferson had airily written from Paris, “I hold it that a little rebellion now and then is a good thing and as necessary in the political world as storms in the physical.” It was a statement that must have struck Madison, who thought that stability in government was paramount, as singularly imprudent. More recently, Jefferson had pronounced on the national veto, writing, “
Prima facie
I do not like it.” Madison, who had thought long and deeply about the veto, had explained to Jefferson that he thought it necessary not only to ensure national unity but also to guard private rights. Nonetheless, Jefferson denounced it: “It fails in an essential character that the hole and the patch should be commensurate. But this proposes to mend a small hole by covering the whole garment.”
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To Madison, who didn’t view the vices of the states as a small matter, Jefferson’s words must have carried a sting, particularly since he received them when his disappointment at having failed to secure the veto was fresh.

On October 24, after the convention was over, Madison sent Jefferson a letter describing the new plan of government and defending at length the negative on state laws that he had advocated but failed to secure. When Jefferson wrote back, however, he seemed oblivious to Madison’s explanation. His primary complaint now was about something the Constitution lacked. “A bill of rights is what the people are entitled to against every government on earth, general or particular,” Jefferson proclaimed, “and what no just government should refuse or rest on inference.”
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Madison was extremely good at separating the wheat from the chaff in Jefferson’s thinking, and his friend’s conviction
might have spurred his thinking about the importance of a bill of rights for gaining popular support for the Constitution. But even as he took Jefferson’s observation on board, Madison must have been irritated at the implication that he was not concerned with protecting rights. It was in order to defend them in the states that he had fought for a national veto—the instrument that Jefferson had so summarily dismissed.