[In the following essay, Ketcham discusses Madison's changing position on which branch of the government should possess the ultimate power to review laws and interpret the Constitution.]

The problem which most concerned the framers of the Constitution in the summer of 1787 and which most vexed those who put the new government into operation in the succeeding years was that of final interpretation of the Constitution. As a leader in the drafting, ratification, and implementation of the Constitution, James Madison's view on the question of interpretation was of special interest. Furthermore, the particular nature of Madison's political theory made the matter of where the final decision rested of crucial importance. Madison's cardinal tenet was that unchecked power in human hands was liable to abuse, and hence that government was “least imperfect” which kept a check on all exercise of power and authority. But, Madison unlike many political philosophers, acted on the stage of history, and was required to take a stand, over and over again, on real problems which confronted a real government. And, the nature of government was such, as Madison recognized, that it did have to act and coerce, and in the long run must exercise power which in the moment of action was in effect unchecked. Now, the vital question is what did Madison say about the resolution of ultimate conflicts of power among the agencies and branches of government? Who was to have the final word when all was said and balanced?

In a government of law operating under a written constitution which prescribes the processes of government, the matter of interpretation is of the essence. Like the smart youngster who sees that the key to winning a game is to be quickest at making or changing the rules, the agency which gathered to itself the power of deciding upon the rules of governance, i.e., interpreting the constitution, had taken the most strategic and powerful place. Given Madison's phobia regarding arbitrary power, one would expect to find his position on interpretation of the Constitution very carefully considered, and hence indicative of a fundamental facet of his thought.

In the years between the opening of the Federal Convention of 1787 and Jefferson's election to the Presidency in 1800, Madison took a bewildering number of positions on the question of interpretation of the Constitution, which can only be dealt with fairly if Madison's conscious lack of decision at this time is taken into account. He said in 1789 that,

There is not one Government on the face of the earth … in which provision is made for a particular authority to determine the limits of the Constitutional division of power between the branches of the Government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent. If it cannot be determined in this way, there is no resource left but the will of the community, to be collected in some mode to be provided by the Constitution, or one dictated by the necessity of the case.¹

That the generalness and vagueness of this statement indicated a lack of decision on Madison's part, rather than a rapid changing of mind, will be shown in equivocations to be noted in the following paragraphs.

At various times during the Federal Convention Madison commented on the subject of judicial review. At one point he said bluntly that “a law violating a constitution established by the people themselves would be considered by the Judges as null and void.” At another he moved that “all acts before they become laws” should be submitted both to the executive and supreme judiciary departments “for vetos that would require two-thirds or three-quarters of Congress to override,” an idea similar to that in the original Virginia Plan calling for a Council of Revision with veto power over laws passed by Congress. On the other hand, he questioned “extending the jurisdiction of the [Supreme] Court” to cases of Constitutional interpretation not of a “Judiciary Nature” asserting that “The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.” On the very next day, Madison argued a specific clause prohibiting “retrospective” laws impairing contract obligation was unnecessary because of “the prohibition on ex post facto laws, which will oblige the Judges to declare such interferences [with contracts] null and void.” Finally, denying the need for special means of punishment for states interfering with interstate commerce, Madison declared that “the Supreme Court must be the source of redress” since his own plan for “a negative on the state laws … had been overruled.”²

In two further accounts, both written within a month or two of the adjournment of the Federal Convention, Madison again suggested contradictory positions on the question of interpretation of the Constitution. In a letter to Jefferson, Madison questioned whether “Judicial authority” would be sufficient to prevent states from enacting unconstitutional legislation since “a State which would violate the Legislative rights of the Union, would not be very ready to obey a Judicial decree in support of them. …” Whereupon, Madison returned to the need for a direct negative on state laws by the Union since … it is more convenient to prevent the passage of a law than to declare it void after it is passed. …”³ On the other hand, he argued somewhat vaguely in Federalist Paper “Thirty-Nine” that in questions of constitutional interpretation “Some such [impartial] tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments … is a position not likely to be combatted.”⁴ Madison's use of the word “tribunal” would seem to indicate that he felt a judicial body should be the interpreter, and that it must be a federal rather than a state court.

In a letter and speech one and two years later respectively, Madison deserted the idea that the courts should be the primary interpretative agencies. In a commentary on a constitution Jefferson had drafted for Virginia, Madison again urged that the courts be allowed to veto laws which the legislature could in turn override with a two-thirds vote, because the system of judicial review allowed the courts “by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper.”⁵ The following year Madison asserted in the House of Representatives that, “I acknowledge in the ordinary course of Government that the exposition of the laws and Constitution devolves upon the Judiciary, but I beg to know upon what principle can it be contended, that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments?” He then stated that “… I cannot imagine it will be less safe, that the exposition should issue from the Legislative authority than any other. …”⁶

Ten years late, in the face of the federally enacted Alien & Sedition Acts which Madison argued were unconstitutional in the famous Virginia Resolutions of 1799, he proclaimed the right of states through their legislatures to judge the constitutionality of acts of Congress. In justifying these Resolutions in a Report issued a year later, Madison not only reasserted the right of state legislatures to judge constitutionality, but completely reversed his stand taken in Congress ten years before that the branches of the federal government were co-equals in questions of interpretation. He wrote,

“However true, therefore, it may be that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other Departments of the [federal] Government; not in relation to the rights of the parties to the constitutional compact [i.e., the states], from which the judicial as well as the other departments hold their delegated trusts.”⁷

Thus, in little more than a dozen years, Madison took contradictory positions on at least three questions related to interpretation of the Constitution. First, he asserted judicial review would work, and that it wouldn't. Second, he claimed that the three federal departments were co-equal in interpreting the Constitution, and that the judiciary was pre-eminent. Third, he argued that the general government was the only logical agency of interpretation, and that the states had to be the final judges of the meaning of the Constitution.

After the Alien & Sedition crisis, except for a somewhat indefinite irritation at the ascendency the Supreme Court claimed over state courts at the time of the Cohens v. Virginia (1821) decision,⁸ Madison moved steadily in the direction of recognizing the pre-eminence of the Supreme Court in expounding the Constitution. In the veto of the Internal Improvements Act of 1817, he objected to the broad interpretations given to the “common defense and general welfare” clause of the taxing power, because such construction “… would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and State Governments. …”⁹ In a letter to Spencer Roane following that Judge's “Algernon Sidney” papers denying the supremacy of the federal courts over state courts, Madison made his position regarding federal supremacy crystal clear:

Were this trust [of interpreting the Constitution] to be vested in the States in their individual characters, the Constitution of the U. S. might become different in every State, and would be pretty sure to do so in some; the State Governments would not stand all in the same relation to the General Government, some retaining more, others less of sovereignty; and the vital principle of equality, which cements their Union [would] thus gradually be deprived of its virtue.¹⁰

These letters to Judge Roane are the only substantial references to Marshall in Madison's extant writings. At first glance, this seems strange when it is remembered that the two great Virginians were leaders of opposing parties on the state and national scene for fifty years. Furthermore, as a profound constitutional theorist, Madison might have been expected to comment extensively on Marshall's great decisions as Chief Justice. In general, the answer to the paradox is to be found in the deep political antipathy which separated them throughout most of their lives. From 1793 until 1821 they responded to each other in the manner of political foes, each almost automatically opposing and criticizing the other. Madison's attitude toward Marshall's Marbury v. Madison¹¹ decision was an example. He dismissed it as absurd and politically motivated, as did the whole Jeffersonian Party. As his response to Roane indicated, however, Madison's considered judgment carried him close to many of Marshall's nationalist decisions, a fact which Marshall recognized when he wrote to Joseph Story at the time of the nullification controversy that, “Mr. Madison is himself again. He avows the opinions of his best days, and must be pardoned for his oblique insinuation that some of the opinions of our Court are not approved.”¹²

In the constitutional arguments that attended the controversy over the tariff during the 1820's and particularly in the great debates over nullification between 1828 and 1833, Madison over and over again reaffirmed his position that the general government had to be supreme over the states on questions of Constitutional interpretation. Perhaps the most famous testimonial was the letter to Edward Everett published in the North American Review for October, 1830, in which Madison not only asserted federal supremacy, but added that in expounding the Constitution, “the judiciary has been hitherto sustained by the predominant sense of the nation.”¹³ In a letter to Jefferson during the attempts by Congress to stretch the Constitution to cover various internal improvement schemes, Madison wrote that “… the great temptation of ‘utility’ … is the most dangerous snare for Constitutional orthodoxy; and I am not sure that the Judiciary branch of the Government is not a safer expositor of the powers of Congress than Congress will be when backed, and even pushed on by their constituents …”¹⁴ In 1834, Madison gave final summary to his position on the question of Constitutional interpretation:

As the Legislative, Executive and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it. …

But notwithstanding this abstract view of the co-ordinate and independent right of the three departments to expound the Constitution, the Judicial department most familiarizes itself to the public attention as the expositor, by the order of is functions in relation to the other departments. …

… it may always be expected that the judicial bench, when happily filled, will most engage the respect and reliance of the public as the surest expositor of the Constitution, as well in questions within its cognizance concerning the boundaries between the several departments of the Government as in those between the Union and its members.¹⁵

Thus, the Father of the Constitution came to a final decision on the great question which was surely the most perplexing one he faced in fifty years of experience with his “progeny.” The contradictions of his positions before 1800 have been noted by frequent critics,¹⁶ and were the source of considerable embarrassment to Madison through the years of his retirement.¹⁷ It is not possible to blink these contradictions away. It is possible, and highly reasonable, however, to understand them sympathetically in the overall framework of Madison's political thought.

The crux of the matter was Madison's fear of arbitrary power—or even the power of making a final decision. The fear of final power is inherent in the concept of separation of powers, the basic intent of which is to prevent any agency of government from becoming strong enough to endanger public liberty. As Madison enunciated the theory many times, the three departments of the federal government were co-equal in their rights and privileges and each had the obligation of defining its own powers. Furthermore, the division of powers between the federal and state governments was a genuine division of sovereignty, with each level of government independent of the other in the spheres prescribed by the Constitution. The scheme would be an ideal protector of freedom—if it was consistent with the nature of government. The hard fact is that governments have to make decisions leading to action which are bitterly opposed by some factions of the community. And, the definition and division of powers in the Constitution cannot possibly be specific enough to prevent appeals by opposing groups to conflicting expositions of the Constitution in support of their interests. Indeed, it has been observed throughout American history that the dominant faction has usually favored broad construction of the Constitution while the minority has usually resorted to strict construction. Hence, the nature of the case demands that for practical purposes, some single agency must have a final right of interpretation which other agencies are obliged to accept, if government is to function.

There are many possible reasons for Madison's failure to speak and act in harmony with this logic between 1787 and 1800. Professor Crosskey has claimed Madison was deliberately and diabolically trying to obscure the power granted the Congress by the 1787 Convention. Others have asserted that it was a matter of “strategic obfuscation,” as T. V. Smith would put it—Madison was, with wise intention, trying to protect the people's liberty by changing sides whenever the weight of authority became too great in any one place. Both of these suppositions seem too calculated to fit the circumstances.

In the first place, it should be remembered that the Constitution was brand new, and Madison was exceedingly conscious of the need to be cautious and tentative in its early use since all sorts of precedents would be set, that would reverberate and persist for many years to come. Furthermore, Madison was fully alert to the importance of the question of interpretation, and he also must have been aware that it was the crux of the power struggle of which he was so wary. In this light, it seems probable that Madison simply had not made up his mind at this time, both because he did not want to set hasty precedents, and because he was highly sensitive to abuses which followed from locating ultimate power. It should be remembered further that Madison was an active politician during these years, and no doubt found that the exigencies of political warfare required occasional shifting on the question of Constitutional interpretation. Hence, he argued the right of the Congress to interpret the Constitution, asserted the need for “national tribunals” to make such decisions, and proclaimed the states' duty to define and resist unconstitutional acts. It would have been no serious blot on Madison's reputation if he had just admitted that in these early years, for the reasons suggested, he had undergone some reversals of position because he had not in all honesty decided firmly what the answer to the interpretation question should be.

This is especially true in the light of Madison's firm and reasonable stand during the years of his retirement. The sage of Montpelier, to the great consternation of the nullifiers and secessionists, denounced the absurdity and anarchy of state definition of the Constitution, and eventually came to understand the primacy of the judicial participation in questions of interpretation, a position to which he might have come sooner but for the presence of the Federalist John Marshall at the head of the Supreme Court. Finally, it is greatly to Madison's credit that even in the heat of political battle, at such times as the Alien & Sedition crisis and the controversy over Marshall's Cohens v. Virginia decision, he was much more wary of extreme and anarchistic localism than was Jefferson. Undoubtedly Madison's firm Constitutionalism and realistic view of the necessities of power served as stabilizers in the otherwise capricious Jeffersonian ship of state.

Lest the essence of the matter be overlooked, however, it is necessary to remember a final standard of consistency which dominated Madison's mind amid his vacillations on the specific question of judicial review. Imbued with the ideas of the Enlightenment and an authentic heir to the spirit of the American frontier, he was, like Jefferson, devoted above everything else to human liberty. If the pursuit of freedom required occasional amendments in doctrines of interpretation, that would be small price to pay, in Madison's view. He shifted his position in the course of a genuine and steadfast search for the most reliable protector of liberty, which in the long run he decided was the doctrine of judicial review as interpreted by the Supreme Court of the United States. This concept of Madison's makes much of the controversy over whether or not the Supreme Court is an institution of democracy seem irrelevant. If democracy means just majority rule, then the review of acts of Congress by an appointed Supreme Court is manifestly undemocratic. But this kind of simplistic majoritarian reasoning is so obviously out of step with American political practice (the electoral college, the Presidential veto, state legislature elections, and both the representation and customs of the Senate itself, for a few examples) that it scarcely merits debate. Suffice to say that Madison, along with the mainstream of American political thinking from Jefferson and Marshall to Holmes and Hughes, disdained elective despotism and sought instead to maximize human freedom through the use of subtlities and complexities to protect mankind in some measure from government by men.

Indeed Madison's relationship to the interpretation question illustrates a kind of practical wisdom which often accompanies vacillation. He was both a Federalist and a Republican. He made significant contributions to the new nation in both capacities. Out of this ambivalence grew his considered opinion in support of judicial review. The fact that this was contradictory is not as important as the fact that all the various possibilities for interpretation of the Constitution were explored in the face of reality, and a cautious final judgment made. For this exploration and judgment the nation is indebted to James Madison.

Notes

1. The Writings of James Madison, 5, 404 (Hunt ed. 1904) (Speech in the House of Representatives, June 17, 1789).

2. id., 4, 44, 208, 314, 319, 443 (Speeches on motions on July 23, August 27, August 28, and September 12, 1787).

3. id., 5, 27 (Letter to Jefferson, October 24, 1787).

4. The Federalist No. 39, at 238 (Lodge ed. 1892) (Madison).

5. The Writings of James Madison, 5, 294 (Hunt ed. 1904) (The Commentary was sent to John Brown of Kentucky in October, 1788).

6. id., 5, 403 (Speech in the House of Representatives, June 17, 1789).

7. id., 6, 352 (“Report on the Resolutions,” 1799).

8. Cohens v. Virginia, 19 U. S. (6 Wheat.) 264 (1821). In two letters to the Virginia Judge Spencer Roane on September 2, 1819, and May 6, 1821, Madison spoke disparagingly of two of Marshall's most strongly federalist decisions, Cohens v. Virginia, supra, and McCulloch v. Maryland, 17 U. S. (4 Wheat.) 316 (1819). In neither letter did Madison take firm issue with the doctrines laid down. Rather, he confined himself to criticizing Marshall for his blunt pronouncements and neglect of legal technicalities, which Madison felt were inappropriate for a federal judge. The impression is one of Madison, the Jeffersonian politician, trying to be kind to one of the pillars of the Party in Virginia who was on the firing line in opposition to Marshall, but yet Madison the Constitutional theorist secretly sympathizing with the tenets Marshall was upholding. See The Writings of James Madison, 8, 447 (Hunt ed. 1904); id., 9, 55.

9. The Writings of James Madison, 8, 386 (Hunt ed. 1904) (“Veto Message,” March 3, 1817).

10. id., 9, 66 (Letter to Spencer Roane, June 29, 1821).

11. Marbury v. Madison, 5 U. S. (1 Cranch) 137 (1803).

12. Marshall continued his letter: “[Madison] is attacked by our Enquirer, who has arrayed his report of 1799 [opposing the Alien & Sedition Acts] against his letter. I never thought that report could be completely defended; but Mr. Madison has placed it upon its best ground, that the language is incautious, but is intended to refer to that ultimate right which all admit, to resist despotism, a right not exercised under a constitution, but in opposition to it.” Beveridge, The Life of John Marshall, 4, 557 (1916) (Marshall to Story, October 15, 1830).

13. The Writings of James Madison, 9, 383, 397 (Hunt ed. 1904).

14. Letters and Other Writings of James Madison, 3, 483 (Congress ed. 1884) (Letter to Jefferson, February 17, 1825).

15. id., 4, 349 (Letter, 1834).

16. In recent years the most severe of these critics has been William Winslow Crosskey. Crosskey's thesis, that the Constitution never intended the Supreme Court to have the power to nullify acts of Congress, depends for its validation on the complete destruction of Madison's reliability, both as a recorder of the Federal Convention and as an honest statesman in putting the Federal Government in operation. On the first of these points, the many insinuations Crosskey makes that Madison deliberately falsified his Convention Notes, amount to no more than suggesting possible alternative hypotheses in places, none of which have any tangible evidence in their support, and most of which are far from the most plausible alternative. The imputation of dishonesty and inconsistency in Madison's career rests largely on the equivocations on judicial review, outlined in this study. Although the inconsistencies cannot be denied, it does not follow that Madison was therefore dishonest or deliberately obfuscating the issues involved. Crosskey, Politics and the Constitution in the History of the United States (1953). For more detailed criticisms of Professor Crosskey's work see, Fairman, The Supreme Court and the Constitutional Limitations on State Governmental Authority, U. Chi. L. Rev., 21, 40 (1953); Brown, The First Republicans, 176-186 (appendix) (1954); Brown, Politics and Mr. Crosskey's Constitution, Syracuse L. Rev., 7, 261 (1955).

17. Unfortunately, I think, Madison made a series of efforts to prove the consistency in his views on the powers of the Supreme Court. In 1831, for example, he wrote “With respect to the supremacy of the Judicial power on questions occurring in the course of its functions, concerning the boundary of Jurisdiction between the U. S. and individual States, my opinion in favor of it was as the 41 No. of the Federalist shews [Madison must have meant the 39th Paper which was quoted above, since the 41st doesn't mention the Supreme Court]; and I have never ceased to think that this supremacy was a vital principle of the Constitution. …” The Writings of James Madison, 9, 476 (Hunt ed. 1904). This claim simply cannot be supported in the face of the evidence cited in this study. It would have been more fitting if Madison had merely admitted his reversals on this subject, and chalked it up to the human frailty he understood and excused so readily in his fellow creatures.