America’s Little Giant
Revisiting the father of the Constitution in an era newly threatened by factionalism
Dolley Payne Todd called her soon-to-be husband, just before she met him, “the great, little Madison.” She was about to turn 26, a widow who had lost her first husband and their baby son to yellow fever and had been left with their toddler son and a small amount of money. James Madison Jr. was 43, a congressman from Virginia temporarily frustrated by politics, and a gentleman by birth who would soon inherit more than 100 slaves and 4,000 acres. They met in 1794 in Philadelphia, America’s temporary capital while Washington, D.C., was being built.
In his estimation, she was “5 feet, 7 inches and three quarters, well proportioned, her features pleasing though not remarkable in form except her mouth which was beautiful in shape and expression.” He was three or four inches shorter, physically frail and prone to severe migraines, and deeply introverted. He asked her to marry him because, quite unexpectedly after failing in one previous attempt at courtship and becoming a bookish bachelor, he fell in love with her. She accepted his proposal because he was “the man who of all others I most admire.” The marriage, she wrote, would provide “everything that is soothing.”
Dolley Madison was the presidentress (as she was called after her husband was elected president in 1808) who made the role of first lady an influential and gracious position as one of the new capital’s most ebullient and popular hostesses. She founded a home for orphaned young girls while she and Madison lived in the White House, and as his widow and a beloved public figure, she was made an honorary member of Congress, among other tributes, and chosen to send the first personal telegraph message.
In James Madison’s public career, spanning four exceptionally productive decades, this private passion of his—what he called “the sentiments of my heart”—is the most visible evidence of the force that fueled him. As Noah Feldman, Frankfurter professor of law, writes in his excellent, authoritative, and lucid reassessment of Madison, “Dolley frequently expressed opinions and emotions that Madison hid from view.” He was known as a dispassionate man of reason, systematic and mild-mannered, who preferred the company of ideas and lacked the need for attention many politicians have. Yet his profound sense of purpose made him a statesman of enormous impact. He imagined the United States as a unified nation rather than a confederation of republics with diverging interests in agriculture and trade, and helped shape that country.
Madison is rightly known as the father of the United States Constitution. (Jack Rakove, Ph.D. ’75, the Stanford historian and political scientist whom Feldman acknowledges as “the master of Madison scholars,” called him “the Greatest Lawgiver of Modernity.”) From 1776, when he was only 25, until 1791, he was: the primary dreamer, designer, and drafter of the nation’s fundamental law; one of the chief publicists in getting it ratified; and its principal modifier as the proposer and drafter of the Bill of Rights. He embraced the First through Tenth Amendments to protect individuals from government infringement and stave off a second constitutional convention, which he feared would rip the northern and southern states apart. (Rakove wrote that Madison had the “capacity to think like a historian and predict like a social scientist.”) He is less well known and secondarily recognized for his accomplishments between the ages of 50 and 67, when he served as Thomas Jefferson’s secretary of state (1801 to 1809) and the country’s fourth (and first war-time) president (1809 to 1817).
Feldman’s important contribution is to present the chapters as lawgiver and statesman and what Madison did in the decade in between as “three distinct, contrasting public lives.” He was the genius behind the Constitution and the Bill of Rights. Then he was the partisan who invented the concept of a political faction in loyal opposition when he launched the Republican Party to challenge the Federalist Party. After it morphed into Jefferson’s and his Democratic-Republican Party, they led it to national power. Finally, he established America’s place in the world, as secretary of state and, during the War of 1812, as president. Feldman presents these chapters as a story of Madison’s intellectual, psychological, and political growth, starting with his college years at Princeton. (It was “the only institution on the continent where a diligent student could acquire the foundations of a truly excellent education,” Feldman advises, since Harvard and Yale were then “parochial in their teaching.”) This growth was reflected in a series of surprising and major about-faces in his thinking about the needs of the new nation. Nineteen years younger than George Washington, 16 years younger than John Adams, and eight years younger than Jefferson, who led the American Revolution, he was in the group sometimes identified as the “young men,” including Alexander Hamilton, six years younger, whom the Revolution made into leaders and who made the revolutionary era so creative.
In Madison’s view, the basic purpose of the Constitution was to create a national republican government with representatives carrying out the will of the people by law, not force. Officials would do that by devising domestic and foreign policies and enacting them into law, and by collecting taxes to carry them out. The basic risk of this form of republicanism was that the majority—no matter how virtuous, self-restrained, or God-fearing—would violate the rights of minorities. Madison’s first solution was “enlargement.” He favored a nation large enough that the interests and factions within it would be less likely to overlap and, if they did, it would not be easy for them to come together and form a dangerous majority. His second solution was checks and balances. He foresaw factions, whether political, economic, religious, or otherwise, checking each other. He envisioned branches of government expressly designed to balance as well as check each other, so the government did not set up “an interest adverse to that of the whole society.” In Federalist No. 51, Madison wrote: “Ambition must be made to counteract ambition,” with the Constitution giving “those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of others.” Part of his design was to attract outstanding and ambitious people into government. As Feldman writes, his goal was “to eliminate the need for political parties.”
It was an idealistic vision, which some other founders regarded as naive. Hamilton wrote that “Patricians were frequently demagogues” who could stir factions into a national majority, because an “influential demagogue will give an impulse to the whole.” Hamilton was neither patrician nor demagogue, but as the secretary of the treasury in Washington’s new Federalist government, he found meaning in the Constitution that Madison hadn’t intended it to hold. For Hamilton, a strong national economy was as essential to the new country as an effective national government. He convinced Congress to charter a national bank and to support a permanent national debt, which Madison viewed (Feldman’s words) “as a blatantly unconstitutional attempt to shift power from the people to the capitalists.” Hamilton prevailed, becoming the most influential person in the nation’s founding who never served as president, and “their brutal struggle over the meaning of the Constitution and the future of the United States gave birth to American partisanship.”
When Jefferson became president in 1801 and made Madison his secretary of state, Madison (Feldman again) “undertook a sixteen-year odyssey to establish America’s place in a world shaped by the long war between Great Britain and France.” Initially, his goal was to use power in the form of economic sanctions to secure shipping to Europe—“and to do so without an army or navy that could potentially subvert the republic from within.” But sanctions did not work well enough and as president, “Madison gambled on decisive action. Overcoming his republican aversion to military action,” Feldman writes, “he asked Congress to declare the War of 1812” and “when the British turned the tables and tried to invade the United States, the constitutional republic was strong enough to defend itself.”
But barely. The British easily overran the nation’s capital, burning the White House to ruins. They then set their sights on Baltimore, the country’s third largest city and the last stronghold preventing them from marching up and down the coast. The battle for Baltimore lasted three nights and days. Francis Scott Key, a lawyer and poet from Maryland, witnessed the bombardment of the city’s Ft. McHenry. In “the dawn’s early light,” when he noticed a U.S. flag flying over the fort, signaling its survival, he started a poem called “The Defence of Fort M’Henry.” It got printed in handbills and newspapers and was set to the tune of a popular song. A century-plus later, it became the national anthem.
Madison gave his final message to Congress in December 1816—America’s fortieth year as a nation. It was the Constitution’s twenty-fifth year of providing for what he called “a government which watches over the purity of elections, freedom of speech and of the press, [and] the trial by jury.” The speech was about the Constitution because, in Feldman’s assessment, “Constitutional freedom was the central core of Madison’s legacy.” After designing the Constitution “to preserve liberty,” Feldman writes, Madison had “created the Republican Party to defend constitutional liberty against subversion by the Federalists,” and had maintained it “even during the war he prosecuted.” He “truly believed that the Constitution would produce domestic tranquility and friendship, then spread those same values of peace globally, creating a world of free peoples coexisting peacefully and ruling themselves under their own free constitutions.” But he never extended that freedom to slaves. He maintained until his death (in 1836, when he was 85) his “lifelong contradictory views of the enslaved people on whose labor he depended,” Feldman explains. He thought of them as human beings and wanted to be seen as treating his slaves well. But he considered them property and said it was morally permissible to own and use them.
In his preface, Feldman writes, “Above all, I hope to use Madison’s creativity, commitment, and political flexibility to shed light on the birth, development, and survival of America’s distinctive form of constitutional government.” In a TED talk last summer, he set out how he thinks Madison’s constitutionalism equips the United States to survive its current acute partisanship and extreme polarization. At the heart of this mechanism is free speech under the First Amendment: if you are out of power, which about 60 percent of Americans think they are today, you have the right to say that the government is terrible and discuss how to fix it. Along with free speech comes free association: the First Amendment also protects “the right of the people peaceably to assemble,” in organizations formed to help fix America’s problems, including the make-up of the government. Just as important, Feldman went on, is the separation of powers. If the president doesn’t follow the rules of the Constitution, federal judges have the authority to make him. He doesn’t rule as an autocrat because he can only propose laws, not pass them. The president needs Congress to enact his policies, but Congress must look to the center of the political spectrum to decide whether a policy is acceptable. The center holds the power because elections for the whole House of Representatives come every two years. Feldman’s last line, elongated for emphasis, was: “It’s going to be okay.”
Another view, arguably more realistic, is that this moment in American history is gravely testing both the elasticity and strength of Madison’s constitutionalism. No voting expert believes in the purity of American elections these days. Digital elections are vulnerable to hacking from near and far. Even when they are not hacked, elections seem unfairly rigged as a result of the heavy sway of big money. Voter fraud is negligible in the United States, but, in the past two decades, Republicans have made it much harder to vote in much of the country: 33 states enforce voter ID laws, 18 of them requiring photo IDs, which are designed to reduce the number of minority voters and clearly do. And the obsolete Electoral College has twice in the past 20 years awarded the presidency to the loser of the popular vote. No expert on freedom of speech or of the press believes they are serving American democracy as well as they must, thanks to attacks from the president and, more menacingly, assaults from bots and Web brigades. The latter engage in reverse censorship by weaponizing free speech—drowning out real speech with floods of propaganda and sabotaging real journalism with fake news. No expert in law or political science believes the separation of powers is working as it was meant to. Congress rarely checks the president or serves the needs of the American people.
Feldman’s TED talk began with a neat summary of the Madison-Hamilton feud as the birth of partisanship in American politics and moved quickly to how the Constitution provided a mechanism for resolving that divide and many subsequent ones in American history. His book explains comprehensively how he thinks that happened. Using the constitutionality of the national bank as an exemplary case, and almost as an aside, Feldman observes that “Madison’s legacy included recognition that the Constitution could evolve—and that its framers’ original intention did not always control its meaning.” (Mary Sarah Bilder, J.D. ’90, Ph.D. ’00, winner of the Bancroft Prize for Madison’s Hand: Revising the Constitutional Convention, wrote about the Constitution, “In 1787, the framers were struggling to save the United States from division, potential invasion, and collapse. No one had the luxury of even imagining that each and every word possessed an invariable, sacred meaning.”) Madison had been certain the document he shaped didn’t give Congress power to charter a bank, but after 20 years, when each branch of the government had recognized the bank’s validity, he accepted it as constitutional.
Yet behind Feldman’s observation is the knowledge and acknowledgment that Madison arrived at that moment of assent only after decades of brutally partisan disagreement. During them, in Feldman’s words, he set out “to destroy his enemies using the tools of faction.” Madison constitutionalized this disagreement by charging that his enemies were “violating the core principles of the republic” and vice-versa. From the vantage point of 200 years after Madison’s triumphant retirement as president, the constitutional system he had a giant role in shaping absorbed the hyperbole of his era and managed its fallout. Everything appears to have turned out okay.
In the presidential election of 1800, however, electors from the 16 states gave 73 votes each to Thomas Jefferson, the Democratic-Republican candidate, and to Aaron Burr, the party’s candidate for vice-president. Federalists in the House of Representatives refused to let Jefferson become president. Passion plainly crushed reason. The constitutional system was in a grim crisis. It was serendipity, not principle, that led to Jefferson’s election on the thirty-sixth ballot, and then to 24 years of Republican rule, and ultimately to the Era of Good Feelings. “Madison’s constitutional machine was working,” Feldman declares about Jefferson’s election. But barely.
When we sing the national anthem these days, we end with a declaration: “Oh say does that star-spangled banner yet wave/O’er the land of the free and the home of the brave.” Francis Scott Key ended that stanza with a question mark. His poem about the British siege of Baltimore reﬂected uncertainty about the outcome and about the continuing freedom of the country. That overlooked question mark is a reminder about this era’s bitter uncertainty as well and about the far-reaching divisions among Americans. The national anthem is caught up in that turmoil and in vitriol about whether it’s more patriotic to kneel or stand during the anthem.
Feldman’s optimistic book is consummately well researched and well written. In many ways, it’s eye-opening and inspiring. Yet despite the author’s intention, in the current political climate the book reads like a warning about the sometimes-steep price of passion and prejudice—not like a TED talk about the once-reassuring reliability of reason.
Contributing editor and legal journalist Lincoln Caplan ’72, J.D. ’76, who is a senior research scholar at Yale Law School, wrote “The Justice Gap,” about civil legal services, in the November-December 2017 issue.
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