Rakove begins his analysis by examining how Madison drew upon his experiences as a member of the Continental Congress and as a Virginia legislator to develop his key ideas. Madison sought to derive lessons of history from his reading and his own experience, but he also thought about politics in terms of what we now recognize as game theory. After discussing Madison’s approach to the challenge of constitutional change, Rakove emphasizes his strikingly modern understanding of legislative deliberation, which he treated as the defining problem of republican government. Rakove also addresses Madison’s deliberation about ways to protect the rights of individuals and political minorities from the rule of “factious majorities.” The book closes by tracing how Madison developed strategies for maintaining long-term constitutional stability and adjusting to the new realities of governance under the Constitution.
Engaging and accessible, A Politician Thinking offers new insight concerning a key constitutional thinker and the foundations of the American constitutional system. Having a more thorough understanding of how Madison solved the problems presented in the formation of that system, we better grasp a unique moment of political innovation.
|Publisher:||University of Oklahoma Press|
|Series:||The Julian J. Rothbaum Distinguished Lecture Series , #14|
|Sold by:||Barnes & Noble|
|File size:||1 MB|
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"HOW INDEED COULD IT BE OTHERWISE?"
Rethinking the Problem of Federalism
Seeing Like a State was the clever title that the political scientist James C. Scott gave to his critique of national development projects in the modern world. Scott details a history of massive, even bloodcurdling failures, like the collectivization of Soviet agriculture in the 1930s or Mao's Great Leap Forward in the 1950s. Thinking Like a Constitution might be an equivalent title for the great national development project to which Americans are attached — to the proposition that a modern republic could be permanently constructed out of devotion to a political constitution and a growing, if incomplete, commitment to human equality. Our dominant impulse is to treat the Constitution as a paradigm of national success. Of course, its history is not a register of one great achievement after another. After all, there was the problem of "the recent unpleasantness" that we call the Civil War, or the recurring argument, popular during the Progressive Era and again today, holding the Constitution responsible for our sometimes reactionary, sometimes intractable patterns of governance. Whether these examples are marks of constitutional failure or mere political paralysis is an open subject of debate. Yet in a broader perspective the challenge of asking how Americans developed the concept of a written constitution as supreme fundamental law remains a matter of global importance.
The idea of "thinking like a constitution" — that is, of asking what a project of building and maintaining a constitutional system entails — remains an apt way to analyze James Madison's foundational role in American history. To think like a constitution in the 1780s, when Americans had to rethink the political experiments of the mid-1770s, required at least four distinct exercises. The first involved asking how much power to vest in the national government, and how much to retain in the states. The second exercise was constitutional in a deeper sense of the term. Had the delegates to the Federal Convention made only modest additions to the authority of the central government, the existing structure of the Confederation, with its unicameral Congress, could have been left intact. But the more substantial the transfer of power became, the more important it was to think about the institutional aspects of a constitution — that is, about the distribution of duties and authority among the three departments of government. This was constitutionalism in the richest sense of the term, for it forced the framers at Philadelphia to rethink the essential traits of the republican constitutions Americans had adopted a decade earlier. Third, beyond the realm of institutions, a republican government depended on the flow of interests and opinions through the larger body politic, and thus on the ways in which public opinion would act and be acted upon. The swirl of those interests and opinions might prove especially important, Madison reasoned, to determining how the rights of citizens and persons were to be defined and protected. Fourth, once a new regime was established, thinking like a constitution ultimately led to asking how the framework of government it created would be maintained. From our vantage point, this problem is often reduced to the realm of constitutional law. But from the perspective of 1787, and for some time thereafter, the extent of this realm was either uncertain or contested. The greater problem was to promote a culture of constitutionalism more generally by convincing Americans that their constitutional commitments should transcend other merely political values and preferences.
Madison did not give equal attention to each of these aspects of constitutionalism at every moment. The problem of how much power the national government should possess was the first item on his agenda, a subject he began considering as soon as he joined the Continental Congress in March 1780. By then Madison had probably begun thinking about the proper structure of republican government, on the basis of his experience in the Virginia assembly and council of state. But his first sustained comment on the subject appeared in his detailed letter to Caleb Wallace in August 1785. The question of how one would maintain a constitution over time, by contrast, became important only after Madison had the direct experience of constitution making. Yet valuable evidence about his thought on this process appears in several Federalist essays as well as his private correspondence during the struggle over ratification. That concern became all the more important during the party conflicts of the 1790s, when Madison concluded that his former coauthor of The Federalist, Alexander Hamilton, was bent on undermining the fixed "landmarks" of constitutional governance. It grew even more urgent during the final years of his retirement, when the escalation of states'-rights thinking in the 1820s and 1830s threatened to subvert the essential principle of federal power that Madison had formulated back in the 1780s.
To think about Madison "thinking like a constitution," then, requires paying close attention to the sequence in which his ideas developed, and the ways in which one question opened into another. The best point of departure lies with his approach to federalism in the seven years following his entrance into the Continental Congress in 1780.
Fittingly, Madison's first public experience was to serve as a delegate from Orange County in the Fifth Provincial Convention, which wrote Virginia's new state constitution in the spring of 1776. Just turned twenty-five, he was a member of the committee that drafted the constitution and its accompanying declaration of rights. There is no evidence that Madison played an important role on this committee. Its dominant figure was George Mason, the owner of Gunston Hall, a wonderful red-brick Georgian house an inlet down the Potomac from the Mount Vernon home of his friend and ally George Washington. Recently and grievously widowed, Mason was twice Madison's age, the father of nine surviving children, and a self-educated but deeply learned man who commanded great respect throughout Virginia and palpably embodied the living type of the virtuous republican gentleman. Madison respected Mason deeply. As a junior delegate from Orange County, he was content to sit quietly in his first public office. There was, however, one issue on which silence proved impossible. That was religious liberty, the first public cause to which the young college graduate was most devoted. When the draft declaration of rights framed the protection of religious liberty on tolerationist grounds, Madison successfully proposed an amendment that broadened the article to recognize that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience."
Madison's experience of constitution making in 1776 mattered in another way. A decade later, thinking retrospectively — or, really, thinking like a historian — he realized how much the prevailing sentiments of the late colonial era had shaped the attitudes of the first American constitutionalists. Then, they had a natural impulse to think backward, to react against the excesses of the old colonial regime, and thus to worry more about the problem of cabining the authority of the executive than about how to nurture the proper conditions for deliberation in the legislatures that dominated the new republican governments. "The want of fidelity in the administration of power having been the grievance felt under most Governments, and by the American States themselves under the British Government," Madison observed in 1785, "it was natural for them to give too exclusive an attention to this primary attribute." It never occurred to them to imagine, he remarked in Federalist 48, that "the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate" might be matched by "the danger from legislative usurpations." The "compilers" of the Articles of Confederation had similarly been too impressed with the "enthusiastic virtue" of the state legislatures to recognize that a national government lacking the power of coercion would often see its recommendations go unenforced.
Madison thus vividly recalled what it was like to have been a constitution maker in the first flush of republican enthusiasm. To think critically about the merits of an existing constitution, one had to enter sympathetically into the political world from which that constitution had emerged. Lessons learned from experience could offset expectations expressed at an earlier time. More to the point, one could not assume that the favorable conditions operating at one moment could be replicated later. In fact, the conditions that had operated so powerfully in 1776, Madison explained at some length in Federalist 49, were likely to have been unique. "We are to recollect," he wrote, in one of those semicolon-laden eighteenth-century sentences that bears quoting in full,
that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation.
Thinking constitutionally could never be a simple matter of designing a government in the abstract. It would always reflect the political circumstances in which a society was immersed. The revolutionary enthusiasm of the mid-1770s had made it easier to reach consensus on the new governments, but it also discouraged the authors of the state constitutions and the Articles of Confederation from dealing with issues they should have anticipated.
Madison's own conception of constitutional change — which required balancing what was theoretically desirable with what was politically possible — was shaped by his complementary experiences as a member of the Continental Congress (March 1780–October 1783) and the Virginia House of Delegates (1784–86). The dominant issue during this period was the problem of federalism, that is, of the relationship between the federal union and its member states. Well into 1786, that concern was addressed almost exclusively to the specific powers that the Continental Congress would exercise, and not to the institutional structure of national governance or to the relation between the states as political communities and Congress. The agenda of constitutional reform was limited to matters of revenue and commerce. The basic strategy that its advocates favored was to adopt particular amendments to the Confederation, in the hope that their individual success would make it easier for Americans to think more favorably about the purposes of national governance. By 1786 this strategy was proving bankrupt, because the rule requiring all thirteen state legislatures to approve amendments to the Confederation thwarted every attempt at reform. Only then did Madison beginto rethink the issues of federalism more analytically, not merely as a problem of how much power the existing Congress should possess but as a reason for examining the nature of political authority within the states. How Madison thought about the latter set of questions was a function primarily of his experience in the Virginia legislature, reinforced by his observations of developments in other states. By the winter of 1787, Madison had concluded that the crisis of the union transcended the perceived "imbecility" of Congress. It was, more deeply, a crisis of republicanism itself, a crisis affecting the individual republics that constituted the American confederation.
The starting point for Congressman Madison's thinking about federalism was the ratification of the Articles of Confederation. In March 1780, Maryland remained the one state still withholding its ratification until it was assured that a national domain would be created west of the Appalachians. Maryland directed its animus against its neighbor Virginia, with its vast claims on both sides of the Ohio River. Anxious to see the Confederation completed, Madison actively urged his constituents to cede claims to distant territory they could never govern on republican principles. Yet as a Virginia delegate he was equally responsible for defending the conditions his legislature imposed on its cession. Madison thus illustrated the dual nature of a delegate's responsibilities: to be both an acting member of the national government and a representative of one's provincial constituents. In the first capacity, his goal was to elevate his constituents' sentiments, to encourage them to understand the difficulties under which Congress labored. Foremost among these was the inadequate compliance of the states with the measures Congress expected them to implement. In his second capacity, Madison faced the perennial challenge of all representatives: to convince one's colleagues within a deliberative body that the concerns of one's constituents were as pressing as those of their own.
His prior two years of service on the eight-member Virginia council of state had brought Madison into direct contact with the array of pressing duties that the states had to carry out. Moving to Congress merely shifted the perspective from which Madison viewed these concerns. Just before he took his seat, Congress had radically devalued its currency by a ratio of 40:1 while giving thestates new logistical duties under a system requiring them to raise fixed quantities of particular resources. In his first extant letter back to Governor Thomas Jefferson, Madison worried about this situation, with Congress "recommending plans to the several states for execution and the states separately rejudging the expediency of such plans, whereby the same distrust of concurrent exertions that has damped the ardor of patriotic individuals, must produce the same effect among the States themselves."
Madison's intuition about how states might view each other's "concurrent exertions" would become a critical component of his reassessment of federalism in 1787. But this letter also captured the underlying principle of American federalism that had operated ever since the First Continental Congress of 1774. In this understanding, Congress held broad authority over essential matters of national security, exercising powers over war and diplomacy that were also recognizable badges of international sovereignty. But Congress lacked two other markers of sovereignty that any true nation-state must possess. It could not act directly upon the American population through the ordinary processes of law. In dealings with its member states, Congress would instead enact resolutions, recommendations, and requisitions, and the states in turn would do their best to implement those decisions, employing the statutory power that Congress lacked. The other critical component of the "internal police" of the states, the authority to tax, remained with them as well. Hence the financial stability of national governance depended on the willingness and capacity of the states to levy the taxes that Congress asked each to raise.
This was not, however, a system conceived to treat the states as sovereign judges of the measures Congress adopted, deciding which to implement, which to ignore. The premise of this first version of American federalism was that the states would do what Congress asked them to do, but under the legal means their legislatures deemed most appropriate within their boundaries. This system rested on the basic presumption that the states would possess far better knowledge than Congress could ever acquire about the most effective way to implement national measures. True, "Each state retains its sovereignty," as Article II of the Confederation affirmed, but so, too, Article XIII added, "EveryState shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them."
On the whole, the states did struggle as best they could to meet their responsibilities. To oversimplify a complex story — and generalize about a history that has never been completely written — the American war effort lurched from one year to the next with issues of inflation, depreciation, and logistics never adequately resolved, and with both Congress and the states overwhelmed by the dimensions of the struggle. Yet when Madison took up national office in 1780 the temptation to worry about disparities among the states in their responses to the crisis of supply was difficult to resist. Since late 1778, the British had focused their military effort on the southern states, the soft underbelly of the union, while northern states were effectively isolated from serious combat. In this situation, Madison's worry that the states might individually "rejudge" the urgency of congressional requisitions became more urgent, especially after the British invaded Virginia early in 1781.
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Table of Contents
Foreword, by Carl B. Albert,
Introduction: Thinking about Madison's Mind,
1. "How Indeed Could It Be Otherwise?": Rethinking the Problem of Federalism,
2. "The Principal Task of Modern Legislation": The Locus of Republican Governance,
3. "Wherever the Real Power Lies": Public Opinion and the Protection of Rights,
4. "The Experiments Are of Too Ticklish a Nature to Be Unnecessarily Multiplied": The,
Problem of Thinking Like a Constitution,
Epilogue: "I May Be Thought to Have Outlived Myself",