[In the following essay, Koch refutes the negative critical reputation accorded Madison throughout the nineteenth and early twentieth centuries and considers the concept of justice as the ultimate goal of Madison's political philosophy.]

Inadequate humanistic scholarship in America has done Madison a great disservice. I make this judgment sadly, and reserve from the generalization two recent works—the Hutchinson edition of the Papers of James Madison, now in progress, and Irving Brant's six-volume biography Madison. But it is difficult to escape the judgment that for over a century since his death, Madison has not received due recognition for his immense contributions to American history and thought.

Now, one reason we have been generally tendered an abstraction or a bitter caricature in place of the man has been partly the result of good intentions, partly accident, and only partly deliberate. Madison's early editors, for example, deleted a phrase from a youthful letter to William Bradford, his “old Nassovian Friend,” dressing down some Tory pamphleteers. Madison was fuming about authors who write with “all the rage of impotence”—and here the delicacy of his editors made them delete the completion of the metaphor, which read “when passion seems to commit a rape on the understanding and engenders a little peevish snarling offspring.” A less rational factor than such Victorian editing was American folk taste. Davy Crockett and Boone, frontier and flatboat mythology would come later; but even in Revolutionary days, Virginia leaders were meant to be tall—not only to be born to the saddle but to sit tall on it. Washington Irving's coinage of the phrase that Madison looked like a “withered little Applejohn”¹ established a caricature that kept him out of attractive books like Dixon Wector's The Hero in America and delayed the project of a memorial to him in the nation's capital to this very day.

On the more pompous level where historians and educators meet, one reflects on the irony of the fact that another attractive book which invariably appears these days on reading lists in American history courses of colleges and universities throughout the country, Richard Hofstadter's The American Political Tradition and the Men Who Made It, makes only the most perfunctory reference to Madison, in an opening chapter dutifully titled: “The Founding Fathers: An Age of Realism”—and those few references, I might add, support the kind of dogmatic selectivity that offers us a stuffy, conservative Mr. Madison, whose place in the history of freedom is nil.

Much of the trouble is traceable to Madison's fate with biographers in the nineteenth century. To make a long story short, let me simply mention that the big biography, William Cabell Rives' ponderous three volumes, made little impact although written by a man eminently qualified to deal with matters of domestic and foreign policy and who was himself a protégé of Jefferson and a neighbor and young friend of the Madisons. The narrative never reached beyond the point of the late 1790's, and the author died before he could complete the study. The second and third volumes were held up by the intervention of the Civil War; and since the first appeared on the eve of the war, and the other two in the wake of it, men were hardly in the mood during that tragic upheaval to wrestle with the intricate lessons of history and public policy that the slow-moving volumes contain. Curious fate! By the time men were able to read attentively again, it was Henry Adams, writing with marked animus against Madison, who offered a barbed portrait in his History of the United States—a portrait, incidentally, with no background or foreground, only the slice, as Adams saw it, of Madison's official conduct as Secretary of State and as President. Thus the nineteenth century closed without a single full-length portrait and without a significant intellectual study of the man whose quiet gaze (or was it reproachful?) continued to peer out of the schoolbook pictures, which invariably bore the caption “Father of the Constitution.”

And still the “pack of tricks” which Voltaire said was history played on. As part of the new social-scientific approach to history in America under the impetus of the Progressive movement and its passion for debunking the past, the “meaning” of the Constitution was viewed through economic determinist lenses, and Madison as its principal architect was seen in some murky way as the father of malign capitalism. I have no wish to enter upon the needlessly prolonged and myopic “Beard controversy” here. But to remove possible misinterpretation, let me say that the brilliance of Charles Beard's historical work, as a developing body of thought, should not, and I think cannot, be destroyed. After all, mind and spirit must not be counted as impedimenta in a profession like history! Nonetheless, progress—or advancing knowledge, even—brings about individual casualties. Beard's hypothesis, which soon became dogma, invited attention not to Madison, nor to his mind and complex political thought, nor to his subtle and elusive work as policy-maker and public servant, nor to his human traits and character, nor to his imperishable achievements—but rather to his supposed economic determinism, and to the Constitution as “an economic document,” born of and reflecting property relationships of a sort allegedly beneficial to a “conservative” minority arrayed against a victimized “radical democratic” majority. I should now add that the persistence of the Beardian interpretation helps to explain the odd omission of a serious treatment of Madison from the book on the American political tradition mentioned above, a book which in a sense may be seen only as a more recent retracing of the figure in the carpet. Perhaps these tricks of history also may explain the irony in the current connotation of Madison Avenue.

However, amends are being made. In one or two cases, we have the paradox suggested by Benjamin Franklin's story of the man with one handsome and one deformed leg: most people stare at the deformed leg only; but an occasional few make themselves only see the shapely one! It remains the case, even now, that the future American Plutarch who could write his most glorious pages on Madison (so an admiring friend of Madison's once claimed) has not stepped forward. But this perhaps concerns me less than the lack of understanding of Madison's significance as a political thinker, which except for certain well-cut grooves, still remains the rule. Thus it is often the subject of loud complaint by pundits on American thought that there is no formal political classic—except the Federalist papers—in the whole body of American literature! One student² indeed finds nothing original about American political thinking; it is all a colossal borrowing of John Locke's ideas made prescriptive in the “American ethos.” Another student who also began by lamenting the shocking absence of a single treatise on political philosophy in America, and who read very stern lessons to an amalgamated group known to him as “the Jeffersonian circle,” for being what he saw as vulgar pragmatists or dogmatists, untouched by the higher truth of metaphysics, has come to make a virtue out of the fancied impoverishment and salutes American thinkers for, so to speak, having no mind—for trusting to “know how,” to the intuitive instructions of the thick forests, the broad plains, and the non-ideological whisperings of pure experience.³

Following along these paths, it is sometimes said that nowhere in American political writing can one find “a searching discussion of the nature of justice”⁴—the Federalist papers not excepted. The Founding Fathers presumably were good at contriving technicalities, means, but throw no light on the “first and most enduring values of organized society: justice, the general welfare, liberty.”

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I have therefore decided to explore the reasons why I think justice is the comprehensive goal of Madison's political thought and policies. I will readily grant, at the very outset, however, that if you approach the sizable body of Madison's writings with the mechanical reflex of one scanning an index (if only there were a reliable index, I might add!) looking at “J” for Justice, you will not find many entries; and on that kind of check one may decide that Madison had next to nothing to contribute on this age-old and persisting ideal. All the more must I grant that if one calls for a classic treatise labelled “On the Nature of Justice,” the call will go unanswered.

Here, I am reminded of an odd bit of my own experience. When I first read Plato's Republic as a college student, I was mightily confused. The Republic has never yet been displaced as the seminal philosophical treatise on the nature of justice—its subtitle helping the literal-minded to see this well. Yet I recall my sense of having been horribly cheated, for where was the promised discussion? To be sure, in the introductory books Plato introduced Cephalus, the old man, who proposed that justice be considered giving each man his due; but he was summarily dispatched by Socrates who queried, “Yes, but what is his due?” At this hint of trouble, Cephalus made polite noises, inviting his guests to remain, dine, etc., and withdrew to propitiate the gods. Then Plato introduced Thrasymachus and followers, the angry young men of Athens, who with equal promptness pronounced that justice was merely “the interest of the stronger”—the parent theory of what goes by the name of “might makes right.” Socrates clearly disapproved, although he said little except that even a band of thieves required some sense of internal loyalty and justice to be a successful band of thieves. At length Socrates was smoked out (just as he wanted to be) and proceeded to construct for his listeners the famous outline of the Republic, the society—perhaps only to be seen in the stars and the sky—that would be created when (or if) a philosopher became king. Rubbing the slate clean, Socrates, speaking for the philosopher-king, divided society into three classes: king or ruler; auxiliaries; and workers, or producers. To each was assigned a special virtue; wisdom for the King, courage for the guardians, temperance or moderation for the producers. And justice? That, says Socrates, is the result, the proper functioning of the three classes. Justice is that which makes the harmony of the whole state; it is the organizing principle of the state but not otherwise describable than in terms of the principle that each class (presumably also each member of the class) is busily doing what it or he ought to be doing. It was only on my second and successive readings that I saw what Plato meant by justice and learned that his implied concept of a just state was one where people were rigidly yoked to a pre-formed function, and each class was subservient to “the good of the whole” as decreed by the philososopher-king—and then I knew it could not be mine.

Let us return now to Madison and his thought on justice. We have seen that Madison attached peculiar significance to his doctrine of religious liberty. The core of that doctrine is that there should be no connection between government and religion, and that to the extent that a political order can maintain this ideal, it is—to that extent—a free society, and as free, good. It is also true that there is a vital connection made in Madison's theory between religious liberty and his more general theory of political liberty. Two elements should be noted. One element in Madison's notion of religious liberty has to do with a person's beliefs, with his personal conscience—the element that Madison, in the language drawn from social compact and natural rights theory, calls “unalienable.” If one prefers, it might be stated as the view that man's reason and conscience come from the hands of God. But there is a second element that is clearly social and belongs to civil society. It is the element that states that political arrangements should be so ordered as to recognize, to the greatest extent possible, the unalienable rights of conscience. The recognition of the unalienability of man's right to think and choose and judge is at the heart of his theory that there must not be cognizance of religion by government.

Thus Madison's notion of religious liberty contains the claim that the government should treat each person as a person (not merely a means), that each person's claim to this fundamental moral concern on the part of government is equal. It is an equal claim, without preference to what his religious beliefs are or what the convictions of his conscience are. These equal claims are in full force as prohibitions on the power of government unless and until they ride roughshod over the beliefs of others or create injuries to others or generally violate the rules of order, disturbing the public peace. The second element of religious liberty, demanding equal treatment under government, even equal treatment for disturbances ruled in advance to be punishable, moves beyond the purely personal right and embraces the relationships that should exist among persons if a free society is to exist. The concern with persons on the grounds of equality with respect to their moral and political existence is the essence of justice. From this point of view a just society is based on the consent of the people, the persons who comprise that society. And a society is more just to the extent that it promotes the conditions toward equal treatment while recognizing the different needs and characteristics and abilities of people who, while alike in being the object of equal concern, are diverse in an infinitude of other ways.

For Madison, what we today call a democratic government and he called a republican form of government, is the best form men can devise to realize the ideal of justice. In these terms, the problems of justice are the most basic problems with which the founding fathers were preoccupied—as Madison himself suggested when he defined his political contribution in terms of his devotion to “the cause of liberty.”

When we see justice in these terms, we are able to account for the misunderstanding that there is no philosophy of justice in the American Enlightenment, and in Madison. For the misunderstanding arises from the presupposition that only formal and overt analysis of the concept in general moral and historical terms constitutes an inquiry into the nature of justice. Neither Madison nor other Enlightened statesmen of the day were “uninterested in theory”; they were not rebels against theory, nor devotees of an untutored involvement in experience. They were inquiring into what the term “government based on consent” really might mean, apart from its honorific status in formal political treatises. They were searching, so to speak, for an operational definition of consent, of justice, of freedom—and they put their thought to elaborating the durable and workable political means which would create a government of laws, not of men, under conditions of greater freedom and self-fulfillment than had been attained in the brightest eras of human history.

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This approach to the great questions of politics was typically an Enlightenment enterprise, an experiment on Baconian lines, where the purpose of systematic reflection was to improve the condition of man by new inventions. The American state constitutions were such experiments, carefully formulated by theoretical discussions and plans in advance, and sharpened under the live debate and adjudication of competing, but rationally defended, interests—both inside and outside the legislative chambers. But the greatest of these experiments was indeed the Federal Constitution. Madison knew this to the hilt. He once told Edward Coles that the work of reporting the debates in the Convention—in addition to his heavy responsibilities in debate, committee, and outside discussion with other members—nearly killed him. We know, of course, that he lived a half century after that, outliving all other members of the Convention. No doubt the reward of virtue! But even in his will, Madison, providing for the publication of his Notes on the debates in the Federal Convention, continued to believe that something worth all one could give was represented in them. He wrote:

Considering the peculiarity and magnitude of the occasion which produced the convention at Philadelphia in 1787, the Characters who composed it, the Constitution which resulted from their deliberation, its effects during a trial of so many years on the prosperity of the people living under it, and the interest it has inspired among the friends of free Government, it is not an unreasonable inference that a careful and extended report of the proceedings and discussions of that body, which were with closed doors, by a member who was constant in his attendance, will be particularly gratifying to the people of the United States, and to all who take an interest in the progress of political science and the cause of true liberty.⁵

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Madison was often called the master-builder of this new model of free government. But Madison himself did not accept the sweeping compliment that was often tendered to him as “the father of the Constitution.” He had written crisply on this very matter to an admirer:

You give me a credit to which I have no claim, in calling me “the writer of the Constitution of the United States.” This was not, like the fabled Goddess of Wisdom, the offspring of a single brain. It ought to be regarded as the work of many heads & many hands.⁶

Indeed, many of the members of the Convention possessed political genius and played their part in the shaping of the instrument. But Madison outdistanced all the other delegates by his initial preparation and by his sustained and ubiquitous efforts in the Convention. He came to the Convention after an intensive scholarly preparation. We have seen that he had read carefully on the subject of government, and that his attendance in Princeton at the lectures of President John Witherspoon and his very close association with him in a friendly tutorial relationship, had made the ideas of the Scottish common sense philosophers, and of their prime philosophical challenger, David Hume, familiar intellectual territory for him. Years before the Convention, he had initiated a campaign to bolster up the impotent Confederation by obtaining for Congress a general and permanent power to regulate the commerce of the United States, knowing that nothing short of drafting a new constitution would suffice. In 1786 he joined with Alexander Hamilton in like-minded co-operation in the Annapolis Convention, although their political views would diverge sharply when the Convention actually came about. They managed to extract from that sparsely attended deputation a radical measure couched in deliberately mild terms—an address to Congress and the States, written by Hamilton, recommending the calling of another convention, with more power vested in the deputies, to devise provisions “to render the constitution of the federal government adequate to the exigencies of the Union.”

In the highly interesting intervening period between Annapolis in the fall of 1786, and the Federal Convention in Philadelphia, Madison found the time, despite his pressing political activities, to re-educate himself in the literature of political history and ancient and distinctly modern political thought. Through the friendship of Jefferson, Madison deliberately procured for himself a kind of five-foot shelf of books on the history of natural law, political history, economics, and science, ancient and modern confederacies, and the social philosophy of the Enlightenment, including the Baconian-inspired thirty-seven-volume set of the Encyclopédie Methodique, the up-to-date summa of knowledge. The two principal directors of the Encyclopédie, Denis Diderot and Jean d'Alembert, and many of its contributing philosophes, were devotees of the scientific humanism of Francis Bacon, and no reader could miss the pervasive evidence in that great work of Bacon's distinctive faith in the power of science and technology to advance and improve the daily lot of man. It is noteworthy that Bacon's Advancement of Learning served as the acknowledged model for the Encyclopédie.

Two influential papers of Madison's justify his time spent with books before the Federal Convention opened. The first was a set of analytical notes on ancient and modern confederacies,⁷ in which Madison briefly described and commented on salient features of the organization of each—such as the conditions of representation for member states or cities, the stipulations regarding financial levies or taxes, the scope and specific powers of the general authority, and the range of autonomous government retained by the member states. Madison was obviously interested in two questions: in virtue of exactly what had the confederated powers flourished, and what “vices” of their constitutions had enfeebled them or caused them either to dissolve or to be overthrown? These questions he put to “history,” in order to prepare himself to conceive an improved “constitution” for a modern confederacy, one that would not be subject to the “vices” he had pinpointed in the confederacies of the past. He was also pondering how to enhance features of organization that had proven to be valuable, or that seemed to Madison promising, from the point of view of republican ideals. One should note that Madison's principal sources of information and critical comment in these notes were the two outstanding compilations of the French Enlightenment: the Encyclopédie; and even more extensively, the thirteen-volume Code de L'Humanité, a recently published work on “universal, natural, civil and political law,”⁸ which Madison had requested Jefferson to purchase for him in Paris in April 1785.

The upshot of Madison's diagnosis of the Lycian, Amphictyonic, Achaean, Helvetic, Belgic, and Germanic confederacies reverted usually to the theme that the decisive fault lay in one or another form of insufficient power in the general authority over the member states, or in the unjust treatment of the less powerful by the more powerful members of the confederacy. Both harmony (internal peace) and the power to produce that harmony and survive as a defensive unit against hostile external forces are basic criteria in the appraisal of ancient and modern confederacies. Not only Madison's scholarly sources, but assuredly Madison himself, may be read to mean that these criteria bear upon future attempts as well. They are, in short, the universal generalizations for successful patterns of confederation.

The second paper of Madison's came just a month before the Constitutional Convention opened. It was a trenchant critique, based upon his own (fully authoritative!) experience, of the “Vices of the Political System of the United States.”⁹ Although Madison had no need to pause for annotation in this brief review of the inadequacies of harmony and energy under the governance of the Articles of Confederation, his analysis of events and “vices” bore evidence of the clarity induced by his prior study and reflection on the lessons of political history. Without doubt, this paper is the more consequential one, since it contained many of Madison's seminal political ideas on a federal republic, including his distinctive emphasis on the value of an extensive republic.¹⁰ While the first paper on the ancient and modern confederacies might be considered Madison's necessary worksheets, the second, on the weakness of the confederacy in the United States, had the creative vigor and coherence of a master.

The two papers together—the worksheets and the position paper—testify to Madison's formal preparation for the coming Convention. Yet, the real source of his strength, as he was about to enter the Convention, lay in the decade and more of his political experience in the affairs of Virginia and the Continent. Madison had become wise the hard way, in his role as a “representative” and as a legislative draftsman wrestling with the multitudinous aspects of politics in an era of revolutionary upheaval and new-made independence. In his dozen years of political activity from '75 to '87, Madison had acquired an enviable reputation for sagacity as a political leader because of his efforts to promote liberal legislation in Virginia and to forward a continentalist outlook in place of the more habitual, shortsighted, and narrow state loyalties.

When Madison arrived early with the Virginia delegation to the Constitutional Convention (they were the first to settle in, better prepared than any other for the protracted struggle of wits), he masterminded the “Virginia Plan” which Governor Randolph presented. This constitutional sketch proposed not a “stronger” Confederacy, as is so often misleadingly said, but a federated Republic with effective powers to govern the people directly, without depending upon the permissions and refusals of thirteen sovereign, independent states in matters claimed for the general authority. Madison's theory of an improved and viable, modern federalism was his unique contribution to the republic defined in the Constitution, and one he found it necessary to expound again and again.

Madison was entirely convinced that the American political system, with its innovations, created an emergent new level in political science—by which he meant political knowledge of a testable kind. He had this in mind when he asserted, as he often did, that that government was best which was least imperfect; and that “The compound Government of the United States is without a model, and to be explained by itself, not by similitudes or analogies.”¹¹

It was a Republic, yet not like other republics; a federal republic, but not like other confederacies; a national government, although not purely national; a large, a very extensive republic, intended for future growth, quite unlike other large states in the past that had been despotisms.¹²

The federal constitution had been created by men who knew “the power of reason” and understood “the lessons of experience.” Step by step, in a gruelling four months that followed upon more than a decade of political experimentation, the men who framed the Constitution devised a system that combined, as Madison said, the theoretic freedom of a small community, with the practical advantages of a great one. All previous governments, he thought, had been unacceptable in terms of justice, for they tended either to despotism or to anarchy. The American version of federalism lifted the threat of both of these systems of human bondage. The concurrent system, the state governments, which prevented the federal government from becoming despotic, and the federal government, which made the supreme law of the land in the functions entrusted to it, kept the states from that fatal insubordination that spelled anarchy and kept them from that fatal dwarfing that spelled consolidation.

After the pressures of the Federal Convention came the rush deadlines of the essays for Madison's share of the Federalist. In the case of the Federalist, hailed throughout the world as the undisputed “classic” of American political theory, one sometimes wonders whether Mark Twain's definition is in force. “A classic,” the master asserted, “is something that everybody wants to have read and nobody wants to read.” At any rate, there seems to be very little evidence that the academicians and the critics have probed the pages of the “classic” they applaud. For the prevailing “treatment” concentrates on a few papers only—in Madison's case almost entirely on the “Tenth” Federalist. This preoccupation has had consequences that bear on our interpretation.

It encourages an unnatural emphasis upon property interests. It is a fact that this kind of dominant preoccupation permitted Charles Beard to construct an ideological justification for his interpretation of the whole framing (in the pejorative sense, often!) of the Constitution. Before going further, must we bother to say that the economic interpretation of history is a misleading and false description of Madison's aims in his constitutional masterplan? For one certainly should not have to choose between “abstract” generalizations, purely moral concerns, and real concrete economic interests! Was Madison subserving property? Or was he attempting to provide more equal opportunity for all interests to gain a hearing at the bar of a just legal system? The clue to this as his overriding interest is derivable from the thought underlying Madison's strong views on religious liberty. There, it will be recalled, Madison repeatedly stressed the multiple and diverse sects, indicating that each had a claim to be considered by just public policy. All sects would profit by religious freedom in the sense that none need fear annihilation at the hands of an overextended and presumptuous religious monopoly or establishment. The fact is, as Gaillard Hunt pointed out, Madison often quoted approvingly Voltaire's aphorism: “If one religion only were allowed in England, the government would possibly become arbitrary; if there were but two, the people would cut each other's throats; but as there are such a multitude, they all live happy and in peace.”¹³ (It is worth notice that this statement of Voltaire's comes from his article on “Tolerance” in the Philosophical Dictionary, another of the books which Jefferson purchased for Madison in Paris.) Multiplicity of interests as the road to tolerance, and beyond to freedom, is the principle Madison develops in his philosophy of an extensive republic.

For Madison the great virtue of a republic is to provide that liberty which permits factions to breathe and to provide those internal and external limits on destructive license, which encourage reasonable compromise of the multiple conflicting interests. He not only recognizes diversity but welcomes it, and provides for the kind of order that emerges from compromise and reciprocal controls. He is much concerned on all important questions with what he prudently calls “requisite power” and energy in government, but he invariably joins these necessary means with their proper ends—liberty, justice, and the rights of the people.

Fortunately, we need not rest on inference from other contexts. I refer to Madison's Federalist “51,” which is, from first to last, an essay on the character of federalism as a just political system. It opens with the question: how can we maintain the Constitution's provisions for a limited government, of separated powers—how maintain them in practice, since practice is notoriously capable of twisting and changing the constitutional system? “Number 51” provides Madison's answer on what to rely on, and his proposal is “by so contriving the interior structure of the government that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”¹⁴

The first principle is the preservation of liberty. For this object, separate and distinct powers of government are specified in the Constitution. A concentration of the several powers of government in the same department, the same hands, sets up a tyranny, not a limited constitutional government under which liberty may be preserved.

The best security against a “gradual concentration” of power in the same department consists in providing each limited department of government with fortification against attack. The strategy, as Madison says, is that “ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” It is then that he remarks, in a classic passage: “It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”¹⁵ This admirably compressed statement is normally used to tip off more or less literary explications of the inherent weakness, viciousness, etc., of human nature, and Madison's “pessimism” or “realism” about human beings. All very well, save that it sends us on a false chase and we lose the quarry. For what Madison immediately adds is that “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions.”

In short, the realism about human nature applies equally to the whole people, the majority of the people, any minority faction, and any select groups of short-term or long-term officials of government (representatives in Congress, for example, and members of the judiciary). Since the trail of the human serpent is upon us all—governors and governed alike—justice will not come by way of simple resort to “the people,” nor by way of simple majority rule, nor by simple elite rule, nor by simple one-man or dictatorship rule. Needless to say, it will never come by way of military rule. The only policy to overcome the partial and self-regarding impulses that may lead any and all of us astray is that of “supplying, by opposite and rival interests, the defect of better motives”—a policy, says Madison, “that might be traced through the whole system of human affairs, private as well as public.”¹⁶ This clearly is a universal generalization about human conduct whether in the home, the church, the school, the marketplace, or the highest places of government. “Divide and rule” Madison once phrased it—check and balance so that “the private interest of every individual may be a sentinel over the public rights.” These are “the inventions of prudence,” and they operate to promote the public rights.¹⁷

How do these general observations about the nature of government and the nature of the men who are the governed apply to the American federal system? Madison points out that “the compound republic of America” provides “a double security … to the rights of the people. The different governments (federal and state) will control each other, at the same time that each will be controlled by itself.” A federal republic is in this sense more likely to be a just government (protecting the public rights) than is a single republic, as a double rope walk over a mountain chasm is likely to be more reliable than a single rope. (Yet, true, both remain to some irreducible extent precarious, for the chasm is always there and the foot may slide.) Madison underlines the importance in a republic of guarding against oppression from both quarters—not only from the rulers over the ruled, but “from one part of the society against the injustice of the other part.”¹⁸

A free society, as he has amply shown in all his preceding writings, is composed of a multitude of interests, an undetermined number of factions, “in different classes of citizens.” Danger of oppression exists when the majority, united by a common interest, negate the rights of a minority. There is majority tyranny (thus he anticipated the precise problem that Tocqueville half a century later, would make central to the democratic civilization). A republic alone need worry about majority tyranny, since other forms (aristocratic or monarchial, despotic or paternalistic) do not derive from and clear the way for majority rule and thus their problems are typically the tyranny of the minority, not the majority. Since the minority is the vulnerable sector in a majoritarian society, there are only two methods of preventing majority tyranny. One method is to create a will in the community independent of the majority—but this may deliver majority and all but a handful of the original minority alike into the hands of exploitative, independent rulers. Madison is not tempted by this alternative.

The second and remaining remedy is to comprehend in the society “so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.” He does not promise, note, an absolute or surefire remedy; the precarious gulf yawns below; but this systematic and strongly fibered bridge may do it. And this second method is exemplified in the federal republic of the United States. All authority there derives from and depends on the society; but the society is not a totalitarian mass, but a multiverse. It is “broken into so many parts interests and class of citizens, that the rights of individuals or of the minority will be in little danger from interested combinations of the majority.” Equal liberty is incompatible with simple majoritarian democracy! If men seriously ask for equality and seriously care about liberty they will see that it takes them to a free government where “the security for civil rights must be the same as that of religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects.”¹⁹

Moreover, the degree of security in both cases will depend on the number of interests and sects—the more, the more just the society is likely to be. Thus, a populous society richly diversified, and covering a big extent of country is likely to be governable as a free, federal republic more than any small state league is. Only then does Madison make his statement, summing up his plea for the protection of public rights through an extensive federal republic: “Justice is the end of government. It is the end of civil society. It ever has and ever will be pursued until it is obtained, or until liberty be lost in the pursuit.”²⁰

In a brief, brilliant passage Madison then compares the state of nature, where even the stronger individuals agree to enter government, thus yielding some of their natural strength, but gaining greater security for themselves as also for the naturally weak; so in an unjust society where majority factions prey upon minority rights, the resulting anarchy will in time make those very factions sue for the conditions of a just society. What he has in mind is suggested by the final comparison between Rhode Island, if left to herself, outside the federal republic, and the “extended republic of the United States.” The former would suffer from such oppression by the local majorities that the cry for reform by means of a just and more equal system would soon come from within the majority sector itself; while the extensive Republic with all its “great variety of interests, parties and sects” could not form a coalition of a majority of the whole society unless it did so on the principles “of justice and the general good.” It is clear that a coalition of the majority for justice and the general good is possible and desirable; but on the minimal rule used by prudence, precautions are taken to protect each of the diverse interests in a nonpreferential system of equal concern and justice. “The larger society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.”²¹

5

In concentrating on Federalist “51” instead of “10,” I have not dealt with another important phase of the Federalist papers. Although they are normally treated as a unity, there is in fact a split personality within the Federalist papers.²² What is involved here is the perception of a serious theoretical conflict between two substantially different views of the federal system. One view looks to the unity and energy the system establishes. This is the Hamiltonian position. The other view looks to the extensive republic which is achieved by the unique complex of diverse interests which, under the proposed system, recognize majority rights while protecting the rights of the minority. This is the Madisonian position, which conjoins liberty and justice to “the requisite powers” of government. I have elaborated these points elsewhere, where I tried to indicate certain difficulties in Hamilton's theory and personality which raise substantial problems about the direction and magnitude of his contribution.²³ All I need indicate now is that he did not believe in or support any serious measures designed to promote the sovereignty of the people, and that his central concern was the strength and energy of the national government. For this reason, alone, if no other, we can see the distinctive quality of Madison's contribution. He actively worked in and undertook leadership in the Convention, while Hamilton retired from the battle when his elitist views met no favor. Hamilton then joined with Madison on the Federalist papers because he saw the Constitution as the only attainable instrument to push towards a stronger national government, and not primarily because it promoted a more just liberal order.

The idea of a federal republic was the distinctive creation and development of Madison. In the work that followed upon the convention, and in the writing of the Federalist, Madison redoubled his service to the cause of the Constitution. One cannot emphasize too strongly the importance of the debates in the Virginia Convention of 1788, for the survival of the plan for a just yet free society. One must take account of them to indicate Madison's role in history. The massed brilliance of the Virginia delegation to the Constitutional Convention, exceeding that of any other state, made the acceptance or rejection by Virginia of crucial importance. If the Constitution had been condemned by the state that had initiated the call for a Convention (and moved by Madison), and that had sent, with other illustrious men, George Washington to preside over its deliberations, Governor Edmund Randolph to head the delegation, James Madison to create the initial major plan and untie the Gordian knots put to the Convention by the tangle of conflicting interests—if condemned by the state that had pioneered its cause and that enjoyed an inevitable prominence from its great size, wealth, and illustrious past, the Constitution would have collapsed as a live plan, no matter how many states had ratified, no matter even if New York had ratified—an assumption so unlikely that it must be entertained for courteous reasons only.

In the Virginia Convention, Madison of course led the Federalist group, and Patrick Henry the anti-Federalists. Pitted against the unmatchable oratory of Henry, Madison had the handicap of a weak voice and the self-restraint to refuse those emotive appeals that often carry the day.

Two interesting contemporary estimates of Madison's role in achieving ratification in Virginia were made by men who were by no means always to be found in his political corner. The first is John Marshall's remark that if eloquence include the art of “persuasion by conviction, Mr. Madison was the most eloquent man I ever heard.”²⁴ A more circumstantial (and more vivid) account unexpectedly occurs in the course of the eulogy pronounced on Madison by his neighbor and longtime family friend, James Barbour, former Governor of Virginia, United States Senator, and a Whig who was a close associate of John Quincy Adams.²⁵

“In striking contrast to Henry,” he wrote, Madison was “modest even to bashfulness”; instead of “the strong and melodious voice of Henry, his was inconveniently feeble, so that when he rose to speak, the members, lest they should lose a word, were accustomed to gather around him. He used little or no gesture; his style of speaking was pure and simple, and without ornament. Yet, modestly confiding in his own vast resources, and strong in the conviction of the righteousness of his cause, day after day, for six weeks, he continued to wrestle successfully with his gigantic opponent. To his [Henry's] eloquence he opposed a calm appeal to the understanding, sustained by references to the experience of the past, and more especially that furnished by the free states of antiquity … furnishing, now, beacons by which we should profit, demonstrating with the clearness of a sunbeam, the necessity of a change in the federal Government. … These efforts were the more successful on account of his high character for disinterested ends, awarded him alike by friend and foe—I mean political foe, for private he had none; so that his words fell upon his audience like the response of an ancient oracle—adored for its truth and wisdom. In fine, the good genius of his country was in him personified. …” To this tribute, Barbour added another piece of significant comment: “The conflict between these giants and their auxiliaries was enacted before an audience to which every quarter of the Union had contributed some of its most distinguished citizens; and was so full of interest that, to enjoy it, industry gave up its pursuits and dissipation forbore its indulgences.”²⁶ Apparently, the “oracle” was listened to by a thronged audience of spectators and the give-and-take of ideas about the Constitution was brought home to the People on the spot.

6

At this point, it may be useful to summarize and comment briefly on the significance of Madison's efforts to frame a constitution. First, we have seen that justice is that ideal of the political order which is concerned with the distribution of rights to persons on the basis of their equality before the law, both in its formulation and its application. Furthermore, it is an ideal that in practice is approximated more or less, so that one discriminates among states, or between periods within a given state, by the degree to which the ideal is realized.

Second, what is specifically American is the continuous attempt to frame constitutions which are guided by this ideal of justice. Where much of political philosophy has been concerned with developing and arguing about the implications of this ideal, the American experience was one marked by the concern with framing operating instruments of government to realize it. This continuous concern to realize consent by the people is illustrated not only by the provisions of the various state constitutions, conceived and referred to as “experiments,” but also by the debates and discussions about those constitutions. What is specifically novel, “without analogy” to previous history, are two elements in the framing of the Federal Constitution. One element is the degree to which previous history of governments and their constitutions were critically reviewed and appraised. The other element was the mechanism by which this appraisal was subject to consent or dissent by the means of a specially constituted assembly convened to consider framing a constitution, and followed by the debates on ratifying the proferred constitution. Here we see an intellectual component involving careful discussion, and criticism of historical examples and institutional recommendations by way of constitutional provisions. These are disciplined intellectual exercises, guided by explicit problems and concerns, and constitute a necessary element of any experimental theory.

Third, Madison played a leading and commanding role in every phase of the experimental process. He made it his business to study systematically the history of all governments, the general laws that might be said to frame a constitution for those governments, and the philosophical inquiries on just government. He learned by experience in his specific political work as a member of the Virginia Assembly and the Continental Congress. He was indefatigable and resourceful in drafting and discussing proposals. All this explains his effort to retain the most detailed record of the debates in the Convention, because of his awareness of the historical uniqueness and importance of the process and content of the deliberations.

Fourth, there was Madison's strategy. It involved judgment on what he should be silent about—and not actively propose. He was trying to concretize what he felt could be achieved for a more just state than previously existed and the most just state that could be made acceptable under his appraisal of what the complex conditions permitted. On the positive side, this involved the fundamental notion of the Federal idea which rested both the state and federal governments on the consent of the people, rather than making the federal government a creature of the states.

But on the negative side was the failure to advance full suffrage. In this I include the failure of equal suffrage to those who may not have had the property qualifications; the rejection of persons on account of race or color; and the rejection of persons on account of sex. This last qualification of sex even Jefferson ignored in the most advanced thinking of that day. The point is that there are degrees of justice and that the most just under given conditions may be insufficient and inadequate under other conditions. So that when we talk of the “undemocratic” features of the Constitution, we must never forget that most of those criticisms are explicitly made for the discriminations of the first two kinds and almost never made about the last kind! In effect, I am reverting to what I have called Madison's attitude of strategic compromise. One cannot get everything at once. We are involved in appraising what is do-able on the one hand, and the set of priorities on the other hand. Now, we ought to appraise a reform program in terms of whether the reform moves to more just conditions than existed prior to the institution of the reform and whether it selects more important rather than less important issues.

Finally, on all of these grounds, we must judge Madison achieved greatness. We see that he was, in truth, the master-builder of the Constitution. Unfortunately, the glacial title “Father of the Constitution” functions more often as a thought-stopper than as a crystallization of the imaginative and manifold measures and thought Madison took in forwarding his master-plan for a just political order.

Today, when men prefer to talk about myths rather than moral and political principles, when “puncturing a myth” is taken as the badge of the skilled intellectual toreador, the work of Madison in framing the Constitution is often approached with a singular lack of understanding. Certainly the contemporary mind falls short of the insight manifested by a forgotten Whig senator, in a forgotten speech—I refer to the speech made by Asher Robbins of Rhode Island as he rose on February 18, 1837 to advocate passage of the resolution to purchase and publish Madison's papers. A half-century had passed since the formation of the Constitution and the Senator, who had been a college tutor after his graduation from Yale, had subsequently studied and practiced law, and had already served in the U.S. Senate for a dozen years. In this speech, Senator Robbins developed a powerful comparison between the work of James Madison and Francis Bacon's epoch-making treatise, the Novum Organum. He spoke then as a man of some learning, but unmistakably also as a man of conviction.

Bacon, he asserted, “produced that revolution in analytics, which has occasioned the immense superiority of the moderns over the ancients in the knowledge of Nature, and in the improvement of the condition of human life—the fruit of that knowledge.” With Bacon, he added, it was a mere theory, although a theory he fondly cherished, and confidently believed would be prolific of the most magnificent results. “And rightly so, for this [Novum] Organum has been the beacon-light of mankind to guide him to true philosophy, and to the improvement of his physical condition.” Just so, he said, would Madison's notes on the Federal Convention become the “beacon-light to guide man to the true science of free government, and to the improvement of his political condition”—the science of free government. He observed that it was the most difficult of all the sciences, but far and away “the most important to mankind; of all, the slowest in growth, the latest in maturity.” Robbins envisaged the exceptional difficulties of creating a free government, and then commented that this science, unlike others, could not create a perfect model applicable everywhere. The model of a free government, he pointed out, “though the principles are the same everywhere, the form varies as the circumstances vary, of the people by whom it is established; to which circumstances it must always be adjusted and made to conform.” Looking back to the origin of the American constitutional system, he judged that the fact that the difficulties were overcome at all appeared to him “little less than a prodigy.”

Most effective was the climax of his speech. “Here were a people” he continued, “spread and spreading over a vast territory, stretching and to stretch almost from the rising to the setting sun—this scattered and countless multitude were to be ruled in freedom as one people and by the popular will—that will was to be uncontrolled in itself, and controlling everything. Such an achievement the most enlightened friends of freedom and human rights, in all countries, and in all ages, had deemed to be morally and physically impossible. Besides, here were thirteen States, and all the other States to be formed out of that vast territory, without being destroyed as States, to be so combined as to form, in the general aspect, but one simple government, with all the unity and energy … for all the purposes of peace and war. Such an achievement, often before, and under much more favorable circumstances, because upon a much more limited scale, had been attempted, but never before accomplished; as is but too well attested by the histories and the destinies of all the confederacies that before … existed on the earth.” In sum, Senator Robbins located the novelty of the American model of free government in its federalism—its divided sovereignty—a principle “unexplored and unknown before … our confederate and national republic.” He paid tribute to Madison for his theory of Federalism and for the commanding role he played in engineering this system from idea to reality.²⁷

7

Here again, as in the case of the First Amendment, we are not simply dealing with dead history or an abstract formula. On the contrary, the issues of federalism today are very much alive, not only here, in these United States, but in the world. Its vitality in this country is evidenced by the “great debate” now current on the fiscal aspects of federalism, the best way to meet the needs of states and local governments while Federal revenues rise. Let me briefly outline this issue, since it gives reality to the claim of the current vitality of the Federalist idea.

Under our federal system, state and local governments have the responsibility for providing their citizens with many of the most important ingredients of civilized life. Citizens of the United States depend on their state and local governments for the education of their children, the safety of their water, the protection of their persons and property from fire and crime, and many other essential services. Improvement in the quality of these services—especially health and education—is an important part of what we mean by a “rising standard of living.”

However, state and local governments by themselves do not have the resources necessary to meet the demands placed on them for improving and expanding these essential public services.

In the past, the national need for state-local services in excess of state-local resources has been met by federal grants-in-aid for particular purposes. These specific federal grants have been of considerable help in relieving state-local fiscal burdens. Nevertheless, the states have long been pressing for a more general and far-reaching solution to their resource needs—the transfer to them from the federal government of major revenue sources. Such transfers would help solve the basic difficulties the states have in meeting the needs of their citizens in areas of clear state-local responsibility, without transferring control of these areas or decisions on spending priorities to the federal government.

Though sympathetic to state-local fiscal problems, the federal government up to now has found its own responsibilities for defense, foreign affairs, and other functions too heavy to permit turning major revenue sources over to the states for general purposes. Once the pressure for increased expenditures on account of Vietnam has abated, it would seem that other expenditures in areas of federal responsibility will not rise as rapidly as federal revenues at present tax rates. This prospect provides the opportunity for a more general and permanent solution to the state-local fiscal crisis than has been possible up to now.

Seen in this light, the idea of federalism still remains a principle of shared sovereignty, responsive and responsible to the needs and will of the people in whom ultimate sovereignty resides. As a careful student of this subject, Governor Nelson Rockefeller said in his Godkin Lectures, The Future of Federalism:

The Federal idea, like the whole American experience, is a political adventure. It is no static thing, no dead definition, no dogmatic proclamation. Old as it is in our history, its secret strength is that it forever summons a free people to learn and try the new.

It requires us, I believe, to imitate its authors in only one respect: to be, like them, unchained to the past and unfearful of the future, to be—in our time as they were in theirs—political pioneers.²⁸

I have nothing further to add, except that when Madison pioneered our course for a just society he wore no blindfold over his eyes!

Notes

1. Interestingly enough, the reference to Madison as a little Applejohn is not necessarily a slight. As the Oxford Dictionary states, this variety of apple “is said to keep about two years and is at perfection when it is shrivelled and withered” (italics mine).

2. See Louis Hartz, The Liberal Tradition in America (New York, 1955).

3. Daniel Boorstin. The earlier position is developed in his The Lost World of Thomas Jefferson (New York, 1948). The later position is sketched in The Genius of American Politics (New York, 1953), and is maintained in The Americans: The Colonial Experience (New York, 1958). In The Americans the author wrote: “The appeal to self-evidence did not displace more academic and more dogmatic modes of thinking among all Americans, but American life nourished it until it became a prevailing mode. It was not the system of a few great American Thinkers, but the mood of Americans thinking. It rested on two sentiments. The first was a belief that the reasons men give for their positions are much less important than the actions themselves, that it is better to act well for wrong or unknown reasons than to treasure a systematized ‘truth’ with ambiguous conclusions, that deep reflection does not necessarily produce the most effective system. The second was a belief that the novelties of experience must be freely admitted into men's thought. Why strain the New World through the philosophical sieves of the Old? If philosophy denied the innuendos of experience, the philosophy—not the experience—must be rejected. Therefore, a man's mind was wholesome not when it possessed the most refined implements for dissecting and ordering all knowledge, but when it was most sensitive to the unpredicted whisperings of environment. It was less important that the mind be elegantly furnished than that it be open and unencumbered” (pp. 151-52).

   This far from clear passage sets up, by the author's recommended technique of “innuendos,” a false dichotomy throughout, which does a disservice both to European and to American thought (and thinkers). A mind well furnished need not be “elegantly” (i.e., superficially, ostentatiously, merely fashionably) furnished. On the other hand, while Americans certainly did not need to “strain the New World through the philosophical sieves of the Old,” why need they be held to “a philosophy of the unexpected” (p. 151)—whatever that is—and why should they be held to basing that philosophy on sentiments that made more of actions than it did of reasons?

4. Benjamin F. Wright (ed.), The Federalist by Alexander Hamilton, James Madison, and John Jay (Cambridge, Mass., 1961), Introduction, pp. 19-20.

5. [Gaillard] Hunt, The Writings of James Madison [(New York: 1900-10)], IX, 549.

6. Letter to William Cogswell, March 10, 1834, Hunt, The Writings of James Madison, IX, 533.

7. “Of Ancient and Modern Confederacies,” in Hunt, The Writings of James Madison, II, 369-90. The editor's footnote observes: “This memorandum is written on small sheets of paper, which, put together, formed a compact little book, suited to be carried in the pocket. There are 39 pages, and it would seem Madison intended extending it, for an extra page is headed ‘Gryson Confederacy.’”

8. The editor, Fortunatio Bartolomeo de Felice (1723-89) was an Italian philosopher and mathematician, who himself was one of the panel of scholars and men of letters who contributed to the work, and who printed it on his own press in Yverdon in 1778.

9. Madison's “Observations” (April 1787) on the “Vices of the Political System of the U. States” is printed in Hunt, The Writings of James Madison, II, 361-69. This indispensable set of notes was destined to bear fruit in Madison's maturing political thought. He used these materials effectively in the debates; in the Constitutional Convention and gave them finely finished development in three interesting Federalist papers: Number 18, on the Greek Confederacies; Number 19, on certain medieval and modern confederacies; and Number 20 on the Netherlands Confederacy. It is unbelievable (but true) that historians and scholars continued, in the first sixty years of the twentieth century to contest that these papers were Madison's work, that they cared to offer a semblance of reasonable argument for Hamilton as their author, for the indubitable proof of Madison's authorship lay so easily to hand. His sketch of the vices of the ancient and modern confederacies, published in the 1901 Hunt edition of Madison's writings, should have cut the ground from any reasonable doubter. The historical data, the organization, features and flaws of the various confederacies, the flow of critical comment, the parallel phraseology and the entire drift of thought left no ground whatsoever for honest doubt. Yet these papers were commonly attributed to Hamilton and Madison as joint authors until Douglass Adair made a strong favorable case for Madison's authorship in his excellent article, “The Authorship of the Disputed Federalist Papers,” William and Mary Quarterly, Third Series, Vol. I, Nos. 2 and 3 (April and July 1944), 97-122, 235-64, especially pp. 104-105, 116-17, 249-50. Even after that there were Hamiltonian diehards and timorous historians who continued to attribute the papers to both men.

   Some of these were finally instructed by the elaborate apparatus of the statistical study “Inference In An Authorship Problem: A Comparative Study of Discrimination Methods Applied to the Authorship of the Federalist papers,” by Frederick Mosteller and David L. Wallace, a study presented as a paper at the statistical meetings in Minneapolis, September 9, 1962, and widely noticed in the American press thereafter. This study, as the newspaper headlines confidently disclosed, “settled” the matter. “Disputed Federalist Papers Are Laid to Madison” was the caption employed by the New York Times, September 10, 1962: subtitle “Computer Downgrades Role of Hamilton as Author of Several Essays.” Actually, the study provides statistically high odds for Madison's authorship of the three papers (18, 19, 20) here under review, but its main conclusion concerns the twelve disputed papers, 49 to 58 and 62 to 63. The authors continue to refer to Numbers 18 to 20 as “joint papers” although they note the statistical edge in favor of Madison's authorship and promise “an investigation” of the writing of Number 20 (p. 12).

   Actually, Madison's own statements about his and Hamilton's authorship have been so remarkably borne out by the scholarship referred to that his statement about these three so-called “joint” papers is perhaps the truest index of all. He stated that he had incorporated in them some little material gathered by Hamilton. In a note he made in his own copy of the Federalist, which is now in the Rare Book Division of the Library of Congress, Madison scrupulously acknowledged that a small part of the material for Numbers 18, 19, and 20 had been prepared by Alexander Hamilton.

   Corroboration from the ranks of contemporary Hamiltonian scholars was provided by Broadus Mitchell in his biography of Alexander Hamilton (Alexander Hamilton, I (Youth to Maturity, 1755-1788) [New York, 1957]), where he judged these three papers to belong “to Madison (mostly)” (p. 420).

   Sustaining Madison's claim to the authorship of Numbers 18, 19, and 20, Benjamin F. Wright, in his recent scholarly edition of the Federalist, attributed these papers to him. But the other major scholarly edition of the Federalist of recent vintage, by Jacob E. Cooke, formerly an assistant editor of The Hamilton Papers, attributes them to “James Madison (With the Assistance of Alexander Hamilton).” (Cooke, The Federalist [Middletown, Conn., 1961], pp. 110, 117, 124.) Thus the gap between contending scholarly champions has been virtually closed; the small crack that remains is entirely a matter of semantic preference, since Madison himself, while definitely asserting that he was the author of these papers, correctly acknowledged using some noted material of Hamilton's.

10. Madison here states succinctly the theme which was soon to be given classic foundation in his famous Tenth Federalist paper, concluding with this generalization: “The Society becomes broken into a greater variety of interests, of pursuits, of passions, which check each other, whilst those who may feel a common sentiment have less opportunity of communication and concert. It may be inferred that the inconvenience of popular States contrary to the prevailing Theory, are in proportion not to the extent, but to the narrowness of their limits” (p. 368).

11. An “Outline” of the relationship between state governments and the general government, showing the “awful consequences” of a final dissolution of the Union, September 1829, Hunt, The Writings of James Madison, IX, 351. Madison stated that it was a fundamental error to suppose the State Governments were parties to the Constitutional compact—the Constitution was created “by the people composing the respective States” (p. 352).

    It is not clear whether Madison's “Outline” was intended to rehearse arguments for newspaper publication (to quell the rising tide of states' rights argument), or for a contemplated letter to an individual, who in turn might have been expected to give Madison's views wider circulation. The imprecatory style Madison employed lends support to the former hypothesis. The “Outline” concludes:

    The happy union of these States is a wonder; their Constitution a miracle; their example the hope of liberty throughout the world. Woe to the ambition that would meditate the destruction of either!

    (p. 357)

12. Patrick Henry, with deadly aim, spoofed the series of distinctions and negations by which Madison sought to suggest the radical newness of the American Federal system. He rose in the Virginia Ratifying Convention to dispose of Madison's arguments: “We may be amused if we please, by a treatise of political anatomy. In the brain it is national: the stamina are federal—some limbs are federal, others national. The senators are voted for by the state legislatures, so far it is federal. Individuals choose the members of the first branch; here it is national. It is federal in its conferring general powers; but national in retaining them. It is not to be supported by the states—the pockets of individuals are to be searched for its maintenance. What signifies it to me, that you have the most curious anatomical description of it in its creation. To all the common purpose of legislation, it is a great consolidation of government.” (Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Washington, D.C., 1836], II, 178-80.) Even in his late years, Madison counterposed to this type of argument his unruffled belief that “A Government like ours has so many safety-valves giving vent to overheated passions, that it carries within itself a relief against the infirmities from which the best of human Institutions cannot be exempt.” (Letter to Lafayette, November 25, 1820, Hunt, The Writings of James Madison, IX, p. 36.) More pointedly, he consistently maintained that “those who deny the possibility of a political system, with a divided sovereignty like that of the U. S. must chuse between a government purely consolidated, & an association of Governments purely federal.” (Madison's “Notes on Nullification,” Hunt, The Writings of James Madison, IX, 605.)

13. Gaillard Hunt, “James Madison and Religious Liberty,” American Historical Association Report, 1901, I, 170.

14. Wright, ed., The Federalist, p. 355. This and subsequent quotations in this chapter from The Federalist are from the text in Wright's 1961 edition.

15. Ibid., p. 356.

16. Ibid.

17. Ibid.

18. Ibid., p. 357.

19. Ibid., p. 358.

20. Ibid.

21. Ibid., p. 359.

22. Alpheus T. Mason, “The Federalist—A Split Personality,” American Historical Review, LVII, No. 3 (April 1952), 625-43. See also a discussion of Madison's political outlook in A. Koch, Power, Morals, and the Founding Fathers (Ithaca, N.Y., 1961), 106-21, where comparison with Hamilton's is made.

23. Ibid., pp. 50-60.

24. [Irving] Brant, James Madison [(New York, 1961)], VI (Commander-in-Chief), 528.

25. James Barbour, Eulogium Upon the Life and Character of James Madison (Printed by Gales and Seaton, Washington, D.C., 1836).

26. Ibid., p. 16.

27. Senator Robbins advocated the passage of the Senate resolution to purchase the Madison manuscripts from Mrs. Madison, with a supporting speech from which the excerpts cited above constitute a small part. The speech is printed in full in the Introduction to Henry D. Gilpin's edition of The Papers of James Madison (Washington, D.C., 1840) I, xviii-xxiv.

28. Nelson A. Rockefeller, The Future of Federalism (Cambridge, Mass., 1962), pp. 27-28.