SOURCE: Matthews, Richard K. “Property: Rights and Possessions, Democracy and Despair.” In If Men Were Angels: James Madison and the Heartless Empire of Reason, pp. 117-72. Lawrence: University Press of Kansas, 1995.

[In the following essay, Matthews examines Madison's 1792 essay “Property,” claiming that his views on the institution of private property were complex and insightful.]

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.¹

—Madison

While Federalist “10” on the control of factions and Federalist “54” on slavery contain some of the basic propositions of Madison's theory of property, his 1792 National Gazette essay “Property” presents his fullest and most far-reaching insights into this institution. In its dynamic logic and internal tension, “Property” represents the quintessential Madison.² The essay demonstrates the richness of Madison's concept of property as well as the temporal, and ultimately destructive, dimensions of the institution. These aspects Madison comprehended. He hoped to forestall their consequences through political and social institutions, even though he knew that on this problem time stood against him.

Madison opened this essay differentiating between the “particular” and the “larger and juster” meanings of property. Undoubtedly referring to Blackstone, Madison explained that “in its particular application [property] means ‘that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.’” When he explained property's juster meaning, Madison affixed a significant qualification to it: property “embraces every thing to which a man may attach a value and have a right and which leaves to every one else the like advantage.”³ Madison's “particular” definition, linked with his latter qualification, resembled that of John Locke, who had explained how, through the rational use of labor, individuals developed the prepolitical, natural right to appropriate and exclude others from the common earth. Wrote Locke:

Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. It being by him removed from the common state Nature placed it in, hath by this labour something annexed to it, that excludes the common right of other Men. For this Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joyned to, at least where there is enough, and as good left in common for others.⁴

Locke's explicit qualification of “at least where there is enough, and as good left in common for others” Madison repeated at least three additional times in his “Property” chapter. The limitation remains absolutely critical. It attached a notion of fairness to the emerging conceptions of market property by inserting the natural right guarantee of equal opportunity for all rational men.⁵ While Locke's seventeenth-century readers had vast expanses of the globe yet to conquer and subdue, by the second quarter of the nineteenth century Madison already projected the closing of the frontier, the collapse of equal opportunity, and the beginning of the end. The promise of leaving to everyone else the like advantage could not withstand the achievements of Homo oeconomicus inside market concepts of morality and property. Nevertheless, these apparently innocent-looking limitations on human appropriation in Locke and Madison contain the potential of a radical critique of the very institution of property that they originally helped to justify. Locke would not live to see the necessity of this. Madison lived in dread of it.

Madison continued cataloging his bifurcated conception of rights, placing “land, or merchandize, or money” in the first category. In the “juster” category, he listed “his opinions and the free communication of them”; “his religious opinions, and in the profession and practice dictated by them”; “the safety and liberty of his person”; and last, recalling Federalist “10,” he noted an individual property right “in the free use of his faculties and free choice of the objects on which to employ them.” The inventory completed, Madison reunited the hierarchy inside property with a single, striking sentence: “In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”⁶ Property, at least at some moments, comprised both “things” and “rights.” Although both concepts involved the ideal of justice, the latter category—at least in rhetoric—rested on a higher, “juster,” plane than the former. Madison, therefore, continued his search for justice in matters of political economy, an exercise that would eventually cause him deep concern given the inevitable development of the market.

Before completing the discussion of his “Property” essay it makes sense to build on Madison's distinction between property as “things” and as “rights” by first retracing his thoughts on this dichotomy. The historic path reflected the classic Madison. He started by protecting religious rights. Forced by political circumstances he moved to protect property as things; and then he shifted back again to property as rights when the issue of a free press and an enlightened citizenry became crucial to balancing the Federalist administration.

Claiming in his Autobiography that he held “very early and strong impressions in favor of Liberty both Civil and Religious,” Madison vigorously protested the “persecution” of several local dissenting Baptist preachers; he “spared no exertion to save them from imprisonment and to promote their release.” His brief, autobiographic account of this episode collapsed years and events to reach Madison's ultimate, but never achieved, goal of “a complete establishment of the Rights of Conscience, without any distinction of sects or individuals.”⁷

Three additional letters to his friend William Bradford confirm the impact of these acts of religious intolerance on Madison. Late in 1773 he told Bradford he wanted to know about Pennsylvania's “Origin & fundamental principals of Legislation; particularly the extent of your religious Toleration.”⁸ He continued the discussion a month later with a note of militancy in his voice as he linked property with liberty in comments on the Boston Tea Party: “Political Contests are necessary sometimes as well as military to afford exercise and practise and to instruct in the Art of defending Liberty and property.” Noting the inherent advantages in the culture of Pennsylvania's religious diversity, Madison argued that religious uniformity in Virginia established the preconditions where “slavery and Subjection might and would have been gradually insinuated among us.” A lack of pluralism “begets a surprizing confidence and Ecclesiastical Establishments tend to great ignorance and Corruption all of which facilitate the Execution of mischievous Projects.”

Try as he might to change the subject in his letter, Madison returned to the intolerance of Virginia, complaining,

I want again to breathe your free Air. I expect it will mend my Constitution & confirm my principles. I have indeed as good an Atmosphere at home as the Climate will allow: but have nothing to brag of as to the State and Liberty of my Country. Poverty and Luxury prevail among all sorts: Pride ignorance and Knavery among the Priesthood and Vice and Wickedness among the Laity. This is bad enough But It is not the worst I have to tell you. That diabolical Hell conceived principle of persecution rages among some and to their eternal Infamy the Clergy can furnish their Quota of Imps for such business. This vexes me the most of any thing whatever. There are at this [time?] in the adjacent County not less than 5 or 6 well meaning men in close Goal for publishing their religious Sentiments which in the main are very orthodox.⁹

He closed this letter imploring Bradford “to pity me and pray for Liberty of Conscience.”¹⁰ Confronted with the harsh reality of a uniformity of religious thought aggravated by a climate of intolerance, Madison consistently advocated a more radical notion of freedom of conscience, rather than simple religious freedom.

A political culture of toleration had wide-ranging implications for civil society. “You are happy in dwelling in a Land where those inestimable privileges are fully enjoyed and [the] public has long felt the good effects of their religious as well as Civil Liberty,” he told Bradford. Consequently, he continued, “foreigners have been encouraged to settle amg. you. Industry and Virtue have been promoted by mutual emulation and mutual Inspection, Commerce and the Arts have flourished and I can not help attributing those continual exertions of Gen[i]us which appear among you to the inspiration of Liberty and that love of Fame and Knowledge which always accompany it.” Madison closed this passage demonstrating complete acceptance of liberalism's commitment to Enlightenment reasoning: “Religious bondage shackles and debilitates the mind and unfits it for every noble enterprize every expanded prospect.”¹¹

Madison's first opportunity to institutionalize his plea for toleration occurred when he was a 1776 delegate to Virginia's Revolutionary convention. As a member of the committee charged with preparing a Declaration of Rights, Madison followed the lead of George Mason except on the issue of religious toleration, where he tried to amend Mason's phrase “fullest Toleration in the Exercise of Religion” with his more sweeping “free exercise of Religion.”¹² When his initial amendment to Mason's version failed, he qualified the universal nature of the unlimited grant with the provision “unless the preservation of equal liberty and the existence of the State are manifestly endangered.”¹³ In its final form, this language was dropped by the convention and, for the most part, they accepted Madison's earlier wording. However, not until 1785, after he had failed in attempts to implement the religious freedom clauses of the Declaration of Rights in 1776 and to pass Thomas Jefferson's religious freedom legislation in 1779, did Madison gain passage of a bill guaranteeing religious freedom.

In 1785, with a new legislature in place, Madison moved to kill the General Assessment Bill through his anonymous authorship of the famous “Memorial and Remonstrance.”¹⁴ This petition, distributed by Madison's ally George Mason, had been designed to secure public support against “A Bill establishing a provision for Teachers of the Christian Religion.” With church attendance on the decline and the establishment of religion an idea no longer supported by most Virginians, that Madison maintained secrecy surrounding his authorship of the document until 1826 remains something of a puzzle. Perhaps it can be explained by his preference to stay out of the public eye and work quietly and effectively behind the scenes. Whatever his reasons, “Memorial and Remonstrance” presented Madison's early views of social contact theory, his already mature views on religious toleration, and his encouragement of the practical value of diversity.

In explaining the grounds for the remonstrance, Madison claimed as “a fundamental and undeniable truth,” Article 16 of the Virginia Declaration of Rights: “that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.” He proceeded to declare this right natural and “unalienable.” Madison explained his reasoning based on his conception of the social contract. Man's “duty” to the creator, “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe.” Given this conception of civil society, Madison explicitly claimed “that in matters of Religion, no mans right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.”¹⁵

Having established his first postulate, Madison proceeded to deduce fourteen additional propositions. “Exempt from the authority of the Society at large,” he argued, meant religion “still less can … be subject to that of the Legislative Body.” “Free Government” required both a separation of power and that no governmental department “overleap the great Barrier which defends the rights of the people.”¹⁶ Foreshadowing themes he would resuscitate in his National Gazette essays, where he once more became alarmed at threats posed by an overly powerful administration, Madison instructed his petitioners that “it is proper to take alarm at the first experiment on our liberties.” In fact, he declared “this prudent jealousy to be the first duty of Citizens.”¹⁷ The establishment bill not only violated the natural right of religious freedom, but also “violates that equality which ought to be the basis of every law.” According to the Virginia Declaration of Rights, “men are by nature equally free and independent.” Since humans enter “into Society on equal conditions” and relinquish and retain the same natural rights, the bill violated natural “equality by subjecting some to peculiar burdens” and “granting to others peculiar exemptions.”¹⁸

Wanting to cover every conceivable counterargument, Madison first claimed that neither Christianity nor civil society needed the support of the other to survive; in fact, both flourished best in the air of freedom. He then speculated on the negative impact of attracting people to Virginia, and of forcing Virginians to flee, if the government failed to protect “every Citizen in the enjoyment of his Religion with the same equal hand which protects his person and property.”¹⁹ Madison openly worried about the consequences for general order if citizens were forced, for reasons of conscience, to ignore the law.

He brought the petition to closure with all the forensic skill of a twentieth-century lawyer. He started his summation by asserting that “a measure of such singular magnitude and delicacy ought not be imposed, without the clearest evidence that it is called for by a majority of citizens”; and then he proceeded to demonstrate how difficult that would be to determine. In his final proposition, however, it appears evident that even if the majority position could be determined by equating it with the “voice either of the Representatives or of the Counties,” Madison would still reject this governmental decision because it could not be considered the genuine will of the citizens. Although he does not explicitly say so, his logic appeared to dictate, nevertheless, that a majority of citizens did have the legitimate power to alienate others' religious rights, at least in 1785. By the time of the Constitutional Convention, Madison would specifically reject this idea as well. But in his “Memorial and Remonstrance” he denied the notion of state power tampering with “the equal right of every citizen to the free exercise of Religion.” A “gift of nature,” religious freedom cannot be given up without the expressed, direct consent of the people, nor through any legislative voice:

Either then, we must say, that the Will of the Legislature is the only measure of their authority; and that in the plentitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: Either we must say, that they may controul the freedom of the press, may abolish the Trial by Jury, may swallow up the Executive and Judiciary Powers of the State; nay that they may despoil us of our very right of suffrage, and erect themselves into an independent and hereditary Assembly or, we must say, that they have no authority to enact into law the Bill under consideration. We the Subscribers say, that the General Assembly of this Commonwealth have no such authority: And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance.²⁰

Madison's memorial was not the only petition to circulate around the state, nor did it secure the most signatures. Altogether, more than ten thousand signatures were attached to the various petitions.²¹ Still, Madison's memorial remains historically significant: it presented a clear expression of the political climate of Virginia and indicated Madison's full development as an Enlightenment thinker. Perhaps more significantly, the memorial signaled Madison's early appreciation of the emerging and ultimate political power of public opinion, a tactic he would employ successfully against the opponents of the Constitution in the late 1780s and against the Federalist-controlled executive branch throughout much of the 1790s.

Having contributed to the defeat of the act to support all teachers of Christianity in the mid-1780s, Madison seized the moment to pass Thomas Jefferson's Act for Establishing Religious Freedom. With Jefferson in France serving as the American minister, Madison skillfully negotiated the political currents of the Virginia legislature and the act passed with minor changes. When Madison informed Jefferson of the bill's passage, he pridefully noted how he “flattered himself” that as a result “this Country [had] extinguished for ever the ambitious hope of making laws for the human mind.”²² This collaborative effort may be one of Jefferson and Madison's finest achievements. A testimonial to the liberal ideals of free discourse, reason, and toleration, it contained language of civil, natural, and irrevocable rights.

The final section of the act specified that the present assembly had “no power to restrain the acts of succeeding assemblies” and that it could not legally declare any “act to be irrevocable” for all time. Nevertheless, this notion of equal sovereignty across time could not restrain them from declaring that any future legislative act that repealed religious freedom would always “be an infringement of natural right.”²³ This last point has significance: while Jefferson always accepted both ideas of the fundamental equality of legislative bodies and the risks associated with future government's violating natural right, part of Madison's emerging legacy was that he constructed a national political system specifically designed to impede any simple, democratic repeal, or amendment, of the founding constitutional document.

Religious freedom secured in Virginia, Madison directed his attention to other matters, especially the problems facing the Confederation government. Because the Madison seesaw at this moment appeared to have too much weight on the side of rights and liberty, he shelved his concern with religious freedom and concentrated on strengthening the central government and controlling the state governments. In time, and for pragmatic reasons that had little to do with religion, Madison returned to push for specific legislation to protect religious freedom. In the second half of the 1780s, however, he thought geographic and sociological circumstances alone could protect religious freedom. In fact, freedom for citizens no longer remained Madison's principal concern: he wanted to control factions as a threat to governmental equilibrium and social balance.

As his political experience grew, Madison became less enchanted by the thought of mere legal protection for rights against hostile majorities. “The greater number of citizens and extent of territory,” he explained in Federalist “10,” constituted the “circumstance principally” responsible for controlling the violence of factions. This, of course, would include religious factions: “A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source.”²⁴ Madison wanted to protect the government from the destabilizing influence of religious sects.²⁵ In Federalist “51,” still concerned with excessive liberty in the states and among the people, Madison argued that pluralism and diversity contributed to social stability:

The society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.

Madison noted how the benefits of balancing sect against sect were further increased in “a proper federal system” since it would enlarge the geographic space of the polity. “It is no less certain than it is important,” he concluded, “that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government.”²⁶ Writing in the National Gazette in 1792, Madison reasserted this argument of the virtue of pluralism. This time he clarified it by ridiculing the notion that an increase in “different interests and parties” was inevitably a good thing and ought to be encouraged. From Madison's worldview, everything existed as a matter of balance and proportion: neither space nor interests, good things if used wisely by the legislator, were infinitely expandable—both had limits beyond which they too would become counterproductive.²⁷

What must be considered among the most striking omissions in the entire debates during the drafting of the Constitution is the virtual absence of any discussion of a bill of rights.²⁸ This omission became of concern to Madison only when ratification seemed in doubt. When rumors filled the air of a second convention to remedy the failure to include a bill of rights, Madison took action. During the ratification debates in Virginia, Madison tried to persuade his audience that a bill of rights was not necessary: “Is a bill of rights a security for religion? Would the bill of rights, in this state, exempt the people from paying for support of one particular sect … ? If there were a majority of one sect, a bill of rights would be a poor protection for liberty.” Madison considered bills of rights as “paper” or “parchment barriers” that could do little to restrain a determined majority. In place of paper, Madison believed “freedom arises from that multiplicity of sects which pervades America, and which is the best and only security for religious liberty in any society.” While the multiplicity of sects would restrain majorities, Madison maintained that an additional bulwark against violations—although itself a kind of paper barrier—resided in the fact that the central government had no specific power to touch religion: “There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation.”²⁹ Alexander Hamilton would soon teach Madison (and Jefferson) a hard lesson about the value of this type of parchment barrier when the question of the constitutionality of the bank had finally been resolved.

Madison's commitment to the free exercise of religion never wavered, although it reached its apex in his “Memorial and Remonstrance.”³⁰ Once he felt the proper environment had been secured in Virginia following the passage of an Act for Religious Freedom, he never again expended as much energy on this issue. Madison's next contribution to the issue of rights came with the creation of the Constitution. To this specific end must be linked his shrewd maneuvering to secure ratification and head off a second convention by becoming the reluctant champion of the Bill of Rights.

After Jefferson had had several weeks to reflect on the proposed Constitution, from France he reacted unequivocally to its failure to include an explicit bill of rights:

But I own it astonishes me to find such a change wrought in the opinions of our countrymen since I left them, as that three-fourths of them should be contented to live under a system which leaves to their governors the power of taking from them the trial by jury in civil cases, freedom of religion, freedom of the press, freedom of commerce, the habeas corpus laws, and the yoking them with a standing army. This is a degeneracy in the principles of liberty to which I had given four centuries instead of four years.³¹

Jefferson wrote to several influential Americans suggesting that he hoped the document would not be ratified in its present form; from Paris, he lobbied for the attachment of a bill of rights; and he even urged Madison to poll the citizens on the proposed Constitution and then try again. “A bill of rights,” Jefferson told Madison, “is what the people are entitled to against every government on earth … and what no just government should refuse, or rest on influence.” He concluded his letter by suggesting two options: adoption and then immediate amendment, or convening a second convention after “canvassing” the people. Not overly optimistic about either the prospects for ratification or the strength of the new government, Madison must have felt chagrined by Jefferson's “hope [that] you will not be discouraged from other trials, if the present one should fail of it's full effect.”³²

Jefferson's call for a second convention arrived from France, where he continued to act as America's minister. The convention never materialized. Madison however, heeded the implicit warning. While he adamantly maintained, and from his perspective appropriately, that a specific bill of rights remained unnecessary because the Constitution itself was a bill of rights, Madison astutely if slowly shifted his position to favor and champion the addition of one. To ensure that this movement for a bill of rights did not get out of hand, he would play the lead role in its drafting and ratification. Having his private doubts about the Constitution's power to control the states, the last thing Madison wanted was to watch the document emasculated by amendments or the convening of a second constitutional convention.

Given Madison's earlier legislative efforts on behalf of a Virginia Declaration of Rights, why in 1787 did he seem, at best, indifferent to the need for a bill of rights in the proposed Constitution? How could Madison have perceived the Constitution itself as a bill of rights? To answer these questions requires a discussion of the condition of property from the Revolution through the creation of the Constitution, a brief retelling of the tale of Shays's rebellion, and a look at Madison's understanding of the Constitution as an instrument of limited power as well as a protector of property rights.

Madison's concrete experiences in state and national assemblies had convinced him that reason often failed to persuade others to act correctly; that short-run economic self-interest was an especially powerful motivating factor, particularly for those in a politically superior, but economically inferior, position. When the spirit of either revolution or democracy filled the air, the institution of property—especially in the form of “things,” rather than rights—became vulnerable. And in Madison's mind, this threat ultimately involved more than property: property rested at the heart of justice. Of course, his own land holdings and status in Virginia depended on the continued sanctity of the institution of property, but this could be said of all the founders.

During the Revolutionary War, New York Tories lost their estates while Whig landlords did not. “Natural rights” arguments even in America would go only so far in restraining political desires.³³ Throughout a three-year period, the legislature of every state violated individual property rights, although conditions in Rhode Island and especially Massachusetts were the most offensive.³⁴ Madison, in particular, seemed alarmed at the economic conditions in the states, where nearly one-third of the white males had incurred debts that they had little realistic prospects of repaying; and with the high turnover rate among representatives who had close ties to the demos, the political conditions appeared equally bleak. While taxes, stay laws, and inflation had been used by virtually every legislative body to confiscate property, Madison found them offensive, threatening, and unjust. As Drew McCoy stated it, “By wantonly disregarding the rules of property and justice that raised men from savagery to civilized order, these laws threatened to bring republican government in America into profound disrepute.”³⁵ Still, it appears that the specter of popular rebellion raised by Henry Knox frightened some of the founders the most.

The significance of the Massachusetts taxpayers' revolt, which historians have dubbed Shays's Rebellion, “can scarcely be overrated,” writes Forrest McDonald. What Daniel Shays and the citizens of Massachusetts actually did seems unimportant; what matters is what George Washington, James Madison, and others believed were the intentions of the Shaysites. For this information, they relied on Henry Knox's imaginative report to Washington. Acting as superintendent of war under the Confederation, Knox constructed a fabricated but frightening account of the rebellion that circulated throughout the East. Knox claimed that Shays's forces were composed of between twelve and fifteen thousand men whose intentions included capturing Boston, looting the Bank of Massachusetts, gaining additional supporters, and marching south and in the process redistributing property.³⁶

The impact of Shays's uprising on Madison can be found in his correspondence from the fall of 1786 through at least the following spring. To Washington, Madison noted that Knox's “gloomy” report was “less so than the colours in which I had it thro' another channel.”³⁷ In February he seemed relieved that “information from Massts. gives hopes that the mutiny or as the Legislature there now style it, the Rebellion is nearly extinct.”³⁸ Even as late as 1821, Madison still vividly described the impact of the rebellion on him: “The necessity of such a Constitution was enforced by the gross and disreputable inequalities which had been prominent in the internal administrations of most of the States. Nor was the recent & alarming insurrection headed by Shays, in Massachusetts without a very sensible effect on the pub[lic] mind.”³⁹

Throughout the revolutionary years prior to the Philadelphia convention, the colonists had expropriated millions of dollars. The men of real property and standing, therefore, had every reason to fear that the demos might rise and assert their illegitimate but nonetheless real power and redistribute property either by force or by law.⁴⁰ If the republic hoped to survive, Madison, in concert with other propertied patriots, had to find a way to put a lid on the increasing political pressure exerted by the small and nonpropertied interests.⁴¹

“The men of Philadelphia were,” writes J. R. Pole, “without exception, men of property.”⁴² United by this overarching interest in protecting the institution of property, these property owners were able to resolve particular conflicts by bargaining. This uniformity of economic thinking helps explain the remarkable harmony among the members of the Constitutional Convention. Although Madison willingly invoked divine intervention to explain the absence of factions at Philadelphia, he offered his more enlightened readers a few logical reasons in Federalist “37”: first, “the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities—the disease most incident to deliberative bodies and most apt to contaminate their proceedings”; and second, “that all the deputations composing the convention were either satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good.”⁴³ Madison's secular explanations seem crucial: they capture the truth. All men of property, the conventioneers had, for all intents and purposes, “the same opinions, the same passions, and the same interests”—the same ideology—when it came to the ultimate issue concerning the institution of property, viz. how to protect it against political redistribution. To a person, they opined that the institution of property must be made invulnerable; they felt passionately about this issue, and they fervently believed that it remained in the objective best interests of the nation as well as each of her citizens.⁴⁴

These men of diverse property holdings and different economic interests would have conflicting, particular property interests; they would disagree with each other and espouse mutually exclusive opinions on the best form and optimum structure for the new government.⁴⁵ There would be, however, no disagreement among them on the purpose of, and immediate need for, government to protect the institution of property.⁴⁶ For weeks, the delegates in secret debated their interests and hammered out compromises. But these were all intrafraternal squabbles, a debate among merchants, planters, bankers, slave owners, manufacturers, creditors, lawyers, and others. It was a debate of the haves versus the haves. It premised itself on their overriding need to protect themselves, in the name of the commonwealth and justice, from the have-littles and have-nots.⁴⁷

Long before the thought that a strong central state was essential to liberty occurred to Madison, he placed little confidence in “any possible parchment securities against Usurpation.”⁴⁸ In Federalist “40” he warned that the proposed Constitution would “be of no more consequence than the paper on which it is written,” unless ratified by the people; and in Federalist “48” he warned “that a mere demarcation on parchment of the constitutional limits of the several departments” was an insufficient guard against tyranny.⁴⁹ Madison's point: “parchment barriers” could not stand up against power. Only countervailing power could.

When the Philadelphia convention adjourned, Madison found the plan assailed from many directions and on different grounds. The one recurring criticism, arising from many quarters, was the failure to include a specific declaration of rights. In late September 1787, upon returning to New York to fulfill his congressional obligations, Madison reported to Washington that he “found on my arrival here that certain ideas unfavorable to the Act of the Convention which had created difficulties in that body, had made their way into Congress.” As he should have anticipated, one fundamental objection was that the framers exceeded their original instructions and authority.⁵⁰ Since this topic had previously arisen in Philadelphia, Madison had no difficulty in responding to the charge.

The second objection that caused Madison more concern came from Richard Henry Lee who attempted “to amend the Act of the Convention before it should go forth from Congress” with a bill of rights. Madison told Washington that some delegates argued that the failure to include a bill of rights imposed a “duty” on them as representatives to exercise their “undoubted right” to amend the document because “the essential guards of liberty had been omitted.” Their right to amend went unchallenged. But on practical and prudent political grounds, not philosophic ones, the attempt to amend was thwarted. The Congress passed the Constitution on to the states for ratification. This initial, concrete reaction to the Constitution undoubtedly helped Madison realize he had a considerable battle ahead if the document was to survive unscathed. While rumors about ratification from New York, Boston, and Connecticut seemed positive, Madison must have had Mason, Lee, and Jefferson in mind when he confided to Washington, “I am waiting with anxiety for the eccho from Virginia but with very faint hopes of its corresponding with my wishes.”⁵¹

The politics of the Bill of Rights took on a genuine sense of urgency for Madison once it became linked with holding the Constitution hostage, or even worse, with the idea of a second convention. Early in 1788, Madison tactfully told Edmund Randolph that after reading his letter to the Virginia assembly, he felt relieved to “believe” that “the opponents to the Constitution” would not “find encouragement in it.” Madison warmed up to the task of explaining to Randolph why “I differ still more from your opinion, that a prosecution of the experiment of a second Convention will be favorable even in Virginia to the object which I am sure you have at heart.” The meaning of this sentence becomes clearer as the argument against a second convention progressed; Madison began to question the motives of other, “designing men,” such as Patrick Henry. Madison's reasons for a rejection of a second convention, however, run far deeper than this: they revealed his liberal prejudices concerning self-government.

He began his assault asserting “the inference with me is unavoidable that were a second trial to be made, the friends of a good constitution for the Union would not only find themselves not a little differing from each other as to the proper amendments; but perplexed & frustrated by men who had objects totally different.” He then moved to the heart of his doubts—the capacity of the people to make sound political choices. Recall that this was voiced in a private letter, not a public essay signed Publius. He wrote, “Whatever respect may be due to the rights of private judgment, and no man feels more of it than I do, there can be no doubt that there are subjects to which the capacities of the bulk of mankind are unequal, and on which they must and will be governed by these with whom they happen to have acquaintance and confidence.”

With the necessity of popular ratification to legitimize the Constitution a foregone conclusion, Madison feared that confusion would result if disagreements among the elite began to spill over into the public arena. He reminded Randolph that the Constitution had been drafted by “a body possessing public respect & confidence.” After implicitly urging Randolph, whom he linked with Mason, Lee, and Henry, to join the good cause of saving the union, he argued that

if a Government be ever adopted in America, it must result from a fortunate coincidence of leading opinions, and a general confidence of the people in those who may recommend it. The very attempt at a second Convention strikes at the confidence in the first; and the existence of a second by opposing influence to influence, would in a manner destroy an effectual confidence in either, and give a loose to human opinions; which must be as various and irreconcilable concerning theories of Government, as doctrines of Religion; and give opportunities to designing men which it might be impossible to counteract.⁵²

By the spring of 1788, Madison's fears and suspicions had escalated. “Conditional amendments or a second general Convention, will be fatal,” he told George Nicholas. In marked contrast to Madison's public description of the Philadelphia convention in The Federalist, he confided to Nicholas:

It is a fact, of which you though probably not a great number may be apprized, that the late Convention were in one stage of the business for several days under the strongest apprehensions of an abortive issue to their deliberations. There were moments during this period at which despair seemed with many to predominate. I can ascribe the final success to nothing but the temper with which the Members assembled, and their ignorance of the opinions & confidence in the liberality of their respective constituents.⁵³

Madison doubted that another convention, “composed even of wiser individuals,” would be successful, especially since it would “contain men, who secretly aimed at disunion.”⁵⁴ Two days later, Madison fended off “conditional ratification,” a new tactic of the disunited opposition. He wrote to Randolph that neither a second convention nor a conditional acceptance were reconcilable “in the present state of things with the dictates of prudence and safety.” As increasingly became his pattern, the normally cool and reasonable Madison sounded almost passionate as he skillfully used the fear of “disunion” and the language of the politics of suspicion to alarm his reader: “extreme facility,” “secret” aims of “disunion,” “schemes” and “masks,” “danger,” “justly dreaded,” “desperate measures,” and “licentiousness of animadversion.”⁵⁵ Although Madison initially believed the Constitution lacked sufficient power to control the states, thoughts of additional cuts to the central government's power alarmed him even more. Until ratification had been assured, he would not cease in his behind-the-scenes soliciting for unconditional ratification.

To Jefferson, who had at one moment or another supported both the idea of a second convention and conditional ratification, Madison maintained his position that if either occurred, “the Constitution, and the Union will be both endangered.”⁵⁶ Even after ratification had been secured, Madison continued to worry about a second convention. Once more in a letter to Jefferson, who had a penchant for the notion that constitutional conventions were inherently good, Madison wrote, “The great danger in the present crisis is that if another Convention should be soon assembled, it would terminate in discord, or in alterations of the federal system which would throw back essential powers into the State Legislatures.” Time, in this context, Madison considered his ally: “The delay of a few years will assuage the jealousies which have been artificially created by designing men and will at the same time point out the faults which really call for amendment,” at which point, he implied to Jefferson, he might even consider a second convention.⁵⁷

As national attention shifted to a call for a second though limited convention with “the avowed and sole purpose of revising the Constitution,” Madison's position remained unchanged. In light of his own specific instructions under the Articles of Confederation and the fact that he ignored them, it seemed “natural” to him that should a limited convention to amend the Constitution be called, “it would naturally consider itself as having a greater latitude than the Congress appointed to administer and support as well as to amend the system.” However, as Madison knew all too well, more than nature would drive the second convention:

It would consequently give greater agitation to the public mind; an election into it would be courted by the most violent partizans on both sides; it wd. probably consist of the most heterogeneous characters; would be the very focus of that flame which has already too much heated men of all parties; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric.⁵⁸

The language of the politics of suspicion and fear is manifest. Nor does Madison contain his fears to domestic frontiers. It would be difficult to imagine Jefferson, who was in Europe, agreeing with most of Madison's assertion

that the prospect of a second Convention would be viewed by all Europe as a dark and threatening Cloud hanging over the Constitution just established, and perhaps over the Union itself; and wd. therefore suspend at least the advantages this great event has promised us on that side. It is a well known fact that this event has filled that quarter of the Globe with equal wonder and veneration, that its influence is already secretly but powerfully working in favor of liberty in France, and it is fairly to be inferred that the final event there may be materially affected by the prospect of things here.

Madison halted his projections just short of the entire universe, claiming, “We are not sufficiently sensible of the importance of the example which this Country may give to the world; nor sufficiently attentive to the advantages we may reap from the late reform, if we avoid bringg. it into danger.”⁵⁹

The most complete explanation of Madison's shifting posture on the question of a bill of rights can be found in an October 1788 letter to Jefferson. Closing the sweep of his wide net of suspicion, Madison shrewdly began his attack on the Bill of Rights, granting that “it is true nevertheless that not a few, particularly in Virginia have contended for the proposed alterations from the most honorable & patriotic motives.” At that time, Madison predicted that “as far as these may consist of a constitutional declaration of the most essential rights, it is probable they will be added.” Expressing his own views on the subject, he noted that “there are many who think such addition unnecessary, and not a few who think it misplaced in such a Constitution.”

“My own opinion,” he wrote Jefferson, “has always been in favor of a bill of rights. … At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment.” Always the practical politician, Madison was candid, if uninspired, in his support: “I have favored it because I supposed it might be of use, and if properly executed could not be of disservice.” Further explaining himself to Jefferson, Madison argued against the amendments on four, somewhat logically inconsistent, grounds: they were already part of the Constitution; they would be too limited; the new federal system would protect the citizens; and bills of rights became ineffective when most needed.⁶⁰ Reason four launched Madison into a lengthy explanation of his theory of balancing liberty and power.

Madison's frustrating experiences under the Articles of Confederation, soon to be readjusted by the Washington-Adams-Hamilton regimes, led him to believe that too much liberty, rather than too much power, constituted the fundamental American problem. “In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.” He subtly told Jefferson that, living in France, he lacked Madison's perspective. Betraying his own bias for stability over democracy, Madison argued that “wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince.” Wherever “political and physical power may be considered as vested in the same hands,” Madison asked, “what use … can a bill of rights serve?” Madison thoughtfully conceived of two uses:

1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion. 2. Altho' it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter sources; and on such, a bill of rights will be a good ground for an appeal to the sense of the community.⁶¹

Ultimately, Madison returned to the notion of balancing government and liberty. With Shays's rebellion still haunting his mind, it seemed understandable how at this time he perceived the disequilibrium.

It has been remarked that there is a tendency in all Governments to an augmentation of power at the expense of liberty. But the remark as usually understood does not appear to me well founded. Power when it has attained a certain degree of energy and independence goes on generally to further degrees. But when below that degree, the direct tendency is to further degrees of relaxation, until the abuses of liberty beget a sudden transition to an undue degree of power. With this explanation the remark may be true; and in the latter sense only is it in my opinion applicable to the Governments in America. It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power, and that the line which divides these extremes should be so inaccurately defined by experience.

After completing the agonizing justifications and presenting one last reiteration of the futility of “written prohibitions,” Madison finally constructed an initial list of necessary amendments: habeas corpus, standing armies, and monopolies.⁶² Rhetoric aside, Madison still appeared uncommitted to a genuine bill of rights.

Again writing to Jefferson at the close of 1788, Madison reported that “the formidable opposition” to the Constitution had been defeated on the question of ratification; he told Jefferson that the opponents had switched tactics to placing “its administration in the hands of disaffected men.” The public's only questions concerning the Constitution, according to Madison, rested on two points: first, “the extent of the amendments; and second, “the mode in which they ought to be made.” It remains difficult to conceive of a genuine public concern over the second issue, though Madison continued to be apprehensive about a second convention; and it is curious that his description of the public's attitude on the first question mirrored his own position. The public “agreed that the System should be revised,” he wrote, “but they wish the revisal to be carried no farther than to supply additional guards for liberty, without abridging the sum of power transferred from the States to the general Government.” He continued to read his own position into that of the public, asserting that citizens “are fixed in opposition to the risk of another Convention.”

Still locked inside the politics of sin, cynicism, and suspicion, Madison warned Jefferson of the “zealous” opponents of the Constitution who “urge a Second Convention with the insidious hope, of throwing all things into Confusion, and of subverting the fabric just established, if not the Union itself.”⁶³ Consequently, though Madison for reasons of propriety would have preferred to stay out of the ratification debates in Virginia, he felt the opposition might succeed if he failed to intervene. Once again, then, the ends of ratification justified Madison overcoming his own doubts about his relationship to the appropriate means.

The reasons for Madison's initial reluctance to participate directly in the Virginia ratifying convention are several. The fact that he was a member of the Congress that proposed the Philadelphia convention and a leader in the drafting of the document, not to mention his public role as Publius, all raised questions of impropriety in his own mind. Perhaps if the resolution of the question had not been in jeopardy, he would have abstained. Yet given the strength of opposition in Virginia, headed by Patrick Henry, George Mason, and William Grayson, Madison decided to enter the battlefield once more. In late February 1788, Madison confided to Washington that he had told “friends in Orange that the County may command my services in the Convention if it pleases.” It would require, however, that he “sacrifice every private inclination to considerations not of a selfish nature.” Madison accurately predicted that the Virginia convention would require “very laborious and irksome discussions.” Lasting twenty-two days, convention politics forced him to oppose directly “several very respectable characters whose esteem and friendship I greatly prize,” including Madison's old ally George Mason. So committed was he to Virginia's ratification, Madison even volunteered to make the arduous journey from New York to Orange County if his “presence at the election in the County” seemed indispensable. In short, Madison would willingly sacrifice everything necessary to secure Virginia's support of the Constitution.⁶⁴

The Virginians convened. George Mason made two motions that played perfectly into Madison's hands: the first, that the Constitution should be debated clause by clause, from beginning to end; the second, that no vote should be taken until the first task had been completed. While the opposition forces had the powerful oratorical and bombastic skills of Patrick Henry on their side, the soft-spoken Madison had information and knowledge—“the facts”—on his. And over the long run, Madison always believed that cool and calculated, rational argument would win out over passion and hyperbole. On this occasion, he proved to be correct.

With Henry speaking on all but five days, Madison's arduous role took a toll on his delicate health. By constantly reminding the delegates that failure to ratify the document, unamended, would bring about disunion, Madison successfully secured ratification. In a gesture of conciliation, he ultimately accepted a lengthy list of recommended amendments that had no legally binding impact. They were, nevertheless, part of the rationale behind Madison's now determined efforts to secure a bill of rights once the new state was functioning. What remains of interest in the present context is what Madison had to say to his Virginia colleagues about property and the absence of a bill of rights.

Throughout June of 1788, the delegates from Virginia met to discuss and vote on the proposed Constitution. Madison played a crucial role in these debates: he possessed the insights, knowledge, and arguments needed to parry the attacks of the plan's opponents. On June 6, Madison rose to address the question of how nations lose their liberty. On the issue of religious freedom, he argued that there could be no reason to assume that a “uniformity of government will produce that of religion.” More to the point, if an attempt to introduce religion was made “it would be ineligible” since “the government has no jurisdiction over it.” Madison's reading of the Constitution—an interpretation that in time Alexander Hamilton, then John Marshall, and finally the Supreme Court would make the exception rather than the rule—insisted that where there existed no expressed grant of power, the government could not legislate. Consequently, in mid-June he still believed a bill of rights would be superfluous because the Constitution's silence on religion itself created a right to religious freedom. In the United States, he told his audience, religion was “perfectly free and unshackled.”⁶⁵ Less than a week later, recalling his telling logic of parchment barriers, he queried: “Is a bill of rights a security for religion?” This question he elected to answer: “If there were a majority of one sect, a bill of rights would be a poor protection for liberty.” Freedom, he instructed his audience, resulted from pluralism, not law—from “that multiplicity of sects which pervades America, and which is the best and only security for religious liberty in any society.”⁶⁶

In what must have been a particularly painful performance for Madison, on June 12 he found himself forced to discredit Jefferson's suggestion, as shrewdly presented by Patrick Henry, that nine states adopt the Constitution and four refuse to do so, until the document had been suitably amended. Employing the oratorical skills for which he had gained a considerable reputation in his day, Henry sarcastically reminded his audience that Jefferson's amendments “go to that despised thing called a bill of rights, and all the rights which are dear to human nature—a trial by jury, the liberty of religion and press, & c.”⁶⁷ Henry argued that of the five states which had yet to adopt the Constitution, only Virginia possessed the political weight necessary to force the amendment issue. No matter how the delegates approached the topic, Henry claimed that all arguments stood on his side: “The necessity of amendments is universally admitted. It is a word which is reechoed from every part of the continent. A majority of those who hear me think amendments are necessary. Policy tells us they are necessary. Reason, self-preservation, and every idea of propriety, powerfully urge us to secure the dearest rights of human nature.”⁶⁸ Henry directly attacked the core of Madison's position that a bill of rights in the proposed Constitution was not essential. “We are told,” he argued, “that all powers not given are reserved. I am sorry to bring forth hackneyed observations. But, sir, important truths lose nothing of their validity or weight, by frequency of repetition.”⁶⁹ Madison recognized that these arguments threatened ratification and that he had to derail this train before it gained too much momentum.

Exceptionally soft spoken and not inclined by disposition to enjoy public speaking, Madison answered Henry's wide-ranging assault on the Constitution, demonstrating his willingness and ability to slug it out with all challengers. He began his counteroffensive by asking the chair's “pardon … for making a few remarks on what fell from the honorable gentlemen”; moreover, if need be, he too would “follow the example of gentlemen in deviating from the rule of the house. But as they have taken the utmost latitude in their objections, it is necessary that those who favor the government should answer them.”⁷⁰

After a point-by-point rebuttal of the issues raised by Henry, Madison turned to Henry's invoking of Jefferson's name to assist the amendment cause. Tactfully, Madison destroyed Henry's argument. In the process, he demonstrated that, at least with an ocean between him and Jefferson, he could be his own person. Opening with a series of rhetorical questions, Madison asked: “Is it come to this, then, that we are not to follow our own reason? Is it proper to introduce the opinions of respectable men not within these walls? If the opinion of an important character were to weigh on this occasion, could we not adduce a character equally great on our side? Are we, who (in the honorable gentleman's opinion) are not to be governed by an erring world, now to submit to the opinion of a citizen beyond the Atlantic?” With forensic skills honed through years of public service, Madison left his questions unanswered but reverberating in his audience's mind; he then boldly asserted that while “I wish his name had never been mentioned,” if Jefferson “now” stood “on this floor, he would be for the adoption of this constitution.”⁷¹

As the convention drew to a close at the end of June, the issue of amendments still held center stage. On June 24, Madison framed the issue in terms of respect versus insult, if Virginia elected to go her own way on ratification. Reminding his audience of the recent past, he described how

Virginia has always heretofore spoken the language of respect to the other states, and she has always been attended to. Will it be that language to call on a great majority of the states to acknowledge that they have done wrong? Is it the language of confidence to say that we do not believe that amendments for the preservation of the common liberty, and general interest of the states, will be consented to by them? This is the language neither of confidence nor respect.⁷²

Not averse to hyperbole to combat the rhetoric of the opposition, Madison confronted the delegates with the reality that “it is a most awful thing that depends on our decision—no less than whether the thirteen states shall unite freely, peaceably, and unanimously, for security of their common happiness and liberty, or whether every thing is to be put in confusion and disorder.” In the same spirit, Madison shared his reasoned opinion with his audience: “If Virginia will agree to ratify this system, I shall look upon it as one of the most fortunate events that ever happened for human nature.” Conversely, rejection of the system gave him “the most excruciating apprehensions” and “infinite pain.”⁷³

Before giving up the floor, Madison reiterated his fundamental and unwavering interpretative stance on the meaning of the Constitution—a position that made additional protection unnecessary.

Can the general government exercise any power not delegated? If an enumeration be made of our rights, will it not be implied that every thing omitted is given to the general government? Has not the honorable gentleman himself admitted that an imperfect enumeration is dangerous? Does the Constitution say that they shall not alter the law of descents, or do these things which would subvert the whole system of the state laws? If it did, what was not excepted would be granted. Does it follow, from the omission of such restrictions, that they can exercise powers not delegated? The reverse of the proposition holds. The delegation alone warrants the exercise of any power.⁷⁴

One would search in vain for Madison's admission that the framers erred in not providing a specific declaration of rights. At this point, Madison genuinely believed two things: the Constitution was a bill of rights; and any scheme short of an unqualified ratification of the Constitution would be disastrous. Consequently, he let it be known that he would consider himself honor bound, after ratification, to amend the Constitution, provided it could be accomplished without a second convention. Madison once more demonstrated the lengths to which he would travel to secure ratification when he discussed slavery and property rights—perhaps the most twisted dimension to his logic of the Constitution as a bill of rights.

On June 15, Madison spoke to reassure his fellow slave owners that their property—an important right—rested more secure under the new Constitution than under the Confederation. After acknowledging that the traffic in human flesh would be prohibited in twenty years, he pointed out that in the interim their property remained secure from excess taxation (itself a form of taking) and that their ownership had been secured and guaranteed by other states. “At present,” he reminded them, “if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws; … But in this Constitution, ‘no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor shall be due.’” While the words slave or slavery do not explicitly appear in the Constitution, although alluded to in three sections, Madison wanted his conventioneers not to be mistaken: “This clause was expressly inserted, to enable owners of slaves to reclaim them.”⁷⁵ When the threat of emancipation again arose nine days later, Madison reassured his audience that “if they should ever attempt it, … it will … be an usurpation of power.” Reaffirming the expressed grant-of-powers theory, he maintained that “there is no power to warrant it, in that paper.” Slavery remained safe for two reasons: it was part of the institution of property; and it was understood to be the price extracted by the South for its participation in the new nation.⁷⁶

Even after ratification had been achieved, Madison recognized the necessity of gaining additional public support for the new charter. This, along with time, would give legitimacy to the government and make equilibrium easier to maintain. Successfully frozen out of the Senate by the political maneuvering of Patrick Henry, Madison ran for the House of Representatives. He accepted his elected position cognizant of the need for representatives and administrators sympathetic to the Constitution if it was to have a prayer of success. Having explicitly campaigned on a promise to work for a bill of rights, Madison now perceived the issue not only as the fulfillment of an obligation and a mechanism to gain additional public support for the new government, but also as an opportunity to preempt efforts for a second national convention.

Although he was ready to orchestrate a bill of rights, in early 1789 Madison's genuine views remained steadfast. “I freely own that I have never seen in the Constitution as it now stands those serious dangers which have alarmed many respectable Citizens,” he wrote George Eve. Acknowledging his opposition to all “previous alterations,” he explained, “Circumstances are now changed.” With eleven states having ratified the plan, it seemed safe to consider amendments, “if pursued with a proper moderation and in a proper mode.” At that moment, his own list of amendments had expanded to contain

satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants & c. I think it will be proper also to provide expressly in the Constitution, for the periodical increase of the number of Representatives until the amount shall be entirely satisfactory; and to put the judiciary department into such a form as will render vexatious appeals impossible. There are sundry other alterations which are either eligible in themselves, or being at least safe, are recommended by the respect due to such a wish for them.

His attention remained focused not so much on the appropriate list or expedient manner of altering the text. Rather, Madison wanted to ensure that there would be no second constitutional convention: it “would at least spread a general alarm, and be but too likely to turn every thing into confusion and uncertainty.”⁷⁷ While Madison would reluctantly add to what the framers accomplished at Philadelphia, he could not tolerate any diminution of the new state's powers. A second convention continued to be out of the question.

A little more than a year after the opening of Virginia's ratifying convention, after an initial two-week postponement, the first United States Congress finally initiated the process of amending the Constitution. The first to speak on the topic, Madison explained that he considered it his “duty” to “unfold his ideas” to the House. He warned that further delay might “occasion suspicions, which, though not well founded, may tend to inflame or prejudice the public mind.” Appreciating the power of public perception, he astutely proposed that the House not “enter into a full and minute discussion of every part of the subject, but merely to bring it before the house, that our constituents may see we pay proper attention to a subject they have much at heart.”⁷⁸

After the failure of Madison's motion to consider the issue as a Committee of the Whole, he proposed a “select committee be appointed to consider and report such amendments as are proper for Congress to propose.” Sensing that the House was not enthusiastic about the amendments, Madison apologized for being an “accessary to the loss of a single moment of time by the house.” He told his colegislators that “if I thought I could fulfil the duty which I owe to myself and my constituents, to let the subject pass over in silence, I most certainly should not trespass upon the indulgence of this house.” This being impossible, he felt “compelled to beg a patient hearing to what I have to lay before you. And I do most sincerely believe that if congress will devote but one day to this subject, so far as to satisfy the public that we do not disregard their wishes, it will have salutary influence on the public councils, and prepare the way for a favorable reception of our future measures.”⁷⁹ Hardly an enthusiastic launching of the project, thus began the journey that terminated in the Bill of Rights, perhaps the finest solo performance of Madison's public life.⁸⁰ Ironically, this was a perfect example of Madisonian praxis: he did the right thing for the wrong reasons.

As Madison sketched out his ideas, it became evident he did not intend a separate, attached list, or bill of rights. He proposed, in its place, that the amendments “can be ingrafted” into the Constitution. Specifically, he urged that offending passages be struck out and that amendments be added directly to the text of the document. Before proceeding to propose specific amendments, Madison wanted to make sure the situation did not get out of hand.

We have in this way something to gain, and, if we proceed with caution, nothing to lose; and in this case it is necessary to proceed with caution; for while we feel all these inducements to go into a revisal of the constitution, we must feel for the constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a re-consideration of the whole structure of the government, for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door was opened, if we should be very likely to stop at that point which would be safe to the government itself: But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents, such as would be likely to meet with the concurrence of two-thirds of both houses, and the approbation of three-fourths of the state legislatures.⁸¹

If the House proceeded with caution and care, Madison confidently predicted that both goals of reaffirming public rights without weakening the state could be accomplished.

Madison's first suggestion, itself telling, called for a “declaration” to be “prefixed to the constitution” that read:

That all power is originally vested in, and consequently derived from the people.

That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

This section reaffirmed Madison's fundamental perception of the Constitution. First, the people constitute the original and ultimate source of all power. Second, government is a trust, created for specific ends, which in Madison's accounting disjointedly echoed the opening of the Declaration of Independence with at least two significant additions.

Madison wanted citizens to possess the right not only of “pursuing” but also “obtaining happiness and safety.” Safety always seemed paramount in Madison's calculations; his words deviated significantly from Jefferson's trilogy by inserting a guarantee of “the right of acquiring and using property.” In light of Madison's experiences in government, it may be understandable why he inserted this phrase: if he, and most of his colleagues, had to agree to the protection of individual rights, he wanted to ensure—again and again—that property remained outside control by democratic politics. The third paragraph reflected Madison as well: the right of the people “to reform or change their government.” Note, however, that Madison did not claim a right to revolution, just to “reform or change.” And, in light of the guarantee clause of Article 4, section 4, it could not be considered self-evident that a nonrepublican government would be appropriate, especially if the alteration produced a government “adverse or inadequate to the purposes of its institution”; that is, if the new government attempted to tamper with property rights. A change in government, moreover, required far more time and energy than approval by a simple majority, given the amendment scheme adopted in the Constitution. All of this, of course, remains somewhat speculative because Madison never felt the need for further, explicit clarification.⁸² Nevertheless, the tensions between property and democracy developed into an issue Madison directly addressed later in his life.

There appears to be no need for a detailed analysis of each of Madison's nineteen specific suggested amendments. A few should suffice to understand the logic behind his ideas. His second of nine broad categories of changes urged that “in article 1st, section 2, clause 3, these words be stuck out, to wit, ‘The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative, and until such enumeration shall be made.’” Madison, always looking for the “golden mean” of a sufficient number of legislators to represent the people adequately, yet not too many that the assembly becomes an irrational mob, sought to open up the House. Concerning the House and the Senate, Madison wanted to restrict their ability to give themselves pay raises and suggested inserting in “article 1st, section 6, clause 1,” at the end of the first sentence, “But no law varying the compensation last ascertained shall operate before the next ensuing election of representatives.”⁸³ The defensive logic behind Madison's political system was manifest. The legislators could vote to raise their salaries, but before they received any additional monies, the voters would have to endorse this idea by reelecting their representatives; and, on the other hand, the voters could send a clear, negative message concerning the monetary increases by voting the scoundrels out. After all, their salaries came from taxes; taxes are a form of taking property; and that can be done legitimately only with the citizens' consent.

To this point, Madison's changes look nothing like the first ten amendments to the Constitution. Beginning with his fourth category, Madison articulated the core of what eventually came to be known as the Bill of Rights. It is noteworthy that unlike the Declaration of Independence, the rights in the final Bill of Rights are not “unalienable” and, for all intents and purposes, have nothing to do with equality—a fundamental concern of the declaration.

Still assuming that the amendments would be “ingrafted” into the body of the document, Madison specified where the language should be altered. His first declaration of specific guarantees involved religion. He proceeded to delineate, inside one category, what finally developed into the First through Sixth amendments, and the Eighth and Ninth. So significant are Madison's words, and so rarely do they appear in print, they will be quoted at length.

Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit, The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.⁸⁴

Because Madison feared local politics in the separate states, it seems inevitable that lacking the federal veto over state legislation, for which he lobbied throughout the Constitutional Convention, he should try to gain added protection against local government. Consequently, his fifth set of changes occurred in Article 1, section 10, between the first and second clauses. Here he wanted to insert the clause “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”⁸⁵ The rest of the language in this section contained explicit limitations on power in the state governments, including several protections on property rights. Madison's additional protections were not accepted by his colleagues; they would have to await Supreme Court action in the twentieth century when it undemocratically, selectively incorporated Madison's ideas.⁸⁶

Madison's sixth and seventh categories of changes, in part, appear in the Fifth, Sixth, and Seventh amendments to the Constitution.⁸⁷ Madison's eighth change, which would have created a new Article 7, reaffirmed the notion of separation of powers and contained the language that would become the Tenth Amendment: “The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively.”⁸⁸

Having presented his suggestions, Madison proceeded to justify his position. The themes sounded familiar: the omissions were never “so essential” as to make ratification “improper,” nor were the changes, “altogether useless.” Madison was less than enthusiastic in his advocacy not because he held these rights in low regard—indeed, he called them “great rights,” “choicest privileges of the people,” “pre-existent rights of nature”—but because he seemed genuinely to fear the people, and the state governments as the agents of the people, more than the new central government. Consequently, “all paper barriers against the power of the community, are too weak to be worthy of attention.” Never sanguine about its real ability to check legislative abuses of power, Madison reasoned that if a bill of rights constituted a desirable weapon against the new government, it was also essential in “all the states.”⁸⁹ He emphasized this point by arguing that when it came to abuses of bill of attainder and ex post facto laws, “there is more danger of those being abused by the state governments than by the government of the United States.”⁹⁰

“Having done what I conceived was my duty,” Madison sat down. Once more, he suggested that a committee be formed to continue the discussion, thereby liberating the House of its responsibility to show the public that it had taken some action about their rights. This would free the House to initiate “the absolute necessity … of pursuing the organization of the government.”⁹¹ After all, in Madison's view, strong government—not paper barriers—guaranteed rights, liberty, as well as stability. At least, that is, until the Federalists began to run the show.

Madison's fears of the demos being the primary threat to rights and stability proved short lived. As control of the Washington-Adams regimes quickly slipped out of Madison's and Jefferson's grasps, both men realized an active, free press would be essential to balance the executive branch; Madison eventually realized just how dangerous the chief executive, rather than the legislature, could be.

Madison's views on the role of a free press in a republican government can be seen in less strident form in several of his National Gazette essays in the early 1790s. In “Public Opinion” Madison persuaded his readers that the “real sovereign in every free” government was public opinion. He stood in the forefront in understanding just how powerful a force public opinion could be in popular government. But the relationship between the government and public opinion remained dialectical: in some cases, “public opinion must be obeyed by the government”; and in other cases, public opinion “may be influenced by the government.” The significance of public opinion, at this point, convinced Madison of the importance of a “Constitutional Declaration of Rights” by its widespread acceptance as a “part of the public opinion.” Often concerned with the issue of size, Madison argued that a free press would become especially significant to ascertain the “real opinion” of a public spread over a vast territory: “Whatever facilitates a general intercourse of sentiments, as good roads, domestic commerce, a free press, and particularly a circulation of newspapers through the entire body of the people, and Representatives going from, and returning among every part of them, is equivalent to a contraction of territorial limits, and is favorable to liberty, where these may be too extensive.”⁹²

The logic behind Madison's politics required that every actor in the political system have some degree of protective power, “a defensive armour for each,” as he described it. Unlike Madison of The Federalist, when he was in de facto power, the Madison of the National Gazette, who was out of power, emphasized the ultimate power of the people. If well-informed by the press, the people could form a defensive protection against tyranny.

In bestowing the eulogies due to the partitions and internal checks of power, it ought not the less to be remembered, that they are neither the sole nor the chief palladium of constitutional liberty. The people who are the authors of this blessing, must also be its guardians. Their eyes must be ever ready to mark, their voice to pronounce, and their arm to repel or repair aggressions on the authority of their constitutions; the highest authority next to their own, because the immediate work of their own, and the most sacred part of their property, as recognising and recording the title to every other.⁹³

Again, two things must be noted. First, Madison's position remained simply to have the people exercise their voting power to pick men of wisdom. He did not want the demos intimately involved in politics. They were not to set the agenda or discuss policy choices; they were restricted to kicking the bums out of office when they got out of line. Second, Madison linked rights and constitutions as “the most sacred part of” the people's property. This theme of Madison's concept of citizenship will be further explored in the next two chapters. For the present, an examination of Madison's more extreme opposition to the Federalist regime as the 1790s drew to a close is necessary.

Counterpressure and balance contained the keys to freedom. In 1798, Madison noted how one newspaper could “be an effectual antidote” to either the executive or another newspaper; he was “glad to find in general that every thing that good sense & accurate information can supply is abundantly exhibited by the Newspapers to the view of the public.” Still, Madison realized that this balancing of the government's position by the press would extend only as far as its circulation. Madison's alarm with the machinations at the capitol had yet to reach its peak, although images of Robespierre came readily to his mind. Yet in the spring of 1798 he “hoped however that any arbitrary attacks on the freedom of the Press will find virtue eno' remaining in the public mind to make them recoil on the wicked authors. No other check to desperate projects seems now to be left.”⁹⁴

The Alien and Sedition Acts pushed Madison into direct conflict with the Adams administration. Upon learning of the preliminary details of the alien bill, he told Jefferson that it represented “a monster that must for ever disgrace its parents.” Still, Madison thought the proposal so outrageous that he hoped it might backfire on the Federalists: “These addresses to the feelings of the people from their enemies, may have more effect in opening their eyes, than all the arguments addressed to their understanding by their friends.”⁹⁵ Of course, given Madison's low opinion of the people, relying upon them to save the republic would be a risky business. Newspapers could help; so too could the state governments. Consequently, he moved on the Virginia legislative front in an effort to spur other state legislatures to check the tyrannical federal government. While the crucial issues for Madison in the Virginia Resolution of 1798 undoubtedly consisted in the proper interpretation of the Constitution and the legitimate power of the federal government, our concern for the present is how it related in its language to threats to individual and states' rights.

In December of 1798, the Virginia General Assembly reaffirmed both its “warm attachment to the Union of the States” and its responsibility “to watch over and oppose every infraction of those principles, which constitute the only basis of that union.” To that end, as author of this Virginia resolution, Madison argued that whenever “a deliberate, palpable and dangerous exercise of other powers not granted by the said compact” occurred, “the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the pro[gress] of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”⁹⁶ Exactly what interpose meant would not become clear until later in the document, when Virginia asked the other states to join in declaring the “alien and sedition acts” an “unconstitutional” violation of the Constitution and one of its amendments.⁹⁷ Moreover, Madison argued that the objectionable acts directly contradicted Virginia's ratification of the Constitution since she did so expressly declaring “that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.” The resolution closed with a call to other states, “that the necessary and proper measures will be taken by each, for cooperating with this State in maintaining unimpaired the authorities, rights, and liberties, reserved to the States respectively, or to the people.”⁹⁸ When seven states eventually responded to Virginia's request, the replies were uniformly negative.

While there exists considerable evidence to support the position that Madison may not have been the author of either the “Virginia Resolution of 10 January 1799” or the “Address of the General Assembly to the People of the Commonwealth of Virginia, 23 January 1799,” “stylometric” and other evidence indicates that he did write two essays for the Philadelphia-based Aurora General Advertiser, which are germane to the issue of rights.⁹⁹ In “Foreign Influence” Madison turned the Adams administration's arguments against French influence in the United States back against the regime itself. On the issue of a free press, Madison drew some sophisticated and rather modern conclusions about British influence through financial connections. “Money in all its shapes is influence,” observed Madison; and “our monied institutions consequently form another great engine of British influence.” Either directly or indirectly, Madison claimed, Britain or her connections control “Our Bank” through selection of the “Directors” who “dispense the credits and favours of the Banks.” This control turned “every dependent” on credit into “a kind of vassal, owing homage to his pecuniary superiors, on pain of bankruptcy and ruin.”¹⁰⁰ Not only did Britain control the bank, it exerted a heavy influence, if not direct control, on the American press.

Madison had assumed that there would be foreign influence in banking, but control of the press, far more subtle, had not always been his concern.¹⁰¹ Becoming aware of this menace, he found it “deplorable that this guardian of public rights, this organ of necessary truths, should be tainted with partiality at all. How bitter the reflection, that it should be subject to a foreign taint.” Madison traced the chain of influence from the interior countryside to the commercial cities back to the British investors.

The inland papers it is well known copy from the city papers; this city more particularly, as the centre of politics and news. The city papers are supported by advertisements. The advertisements for the most part, relate to articles of trade, and are furnished by merchants and traders. In this manner British influence steals into our newspapers, and circulates under their passport. Every printer, whether an exception to the remark or not, knows the fact to be as here stated. There are presses whose original independence, subsequent apostacies, occasional conversions, speedy relapses, and final prostration to advertising customers, point them out as conspicuous examples.¹⁰²

Whether subjected to pressure from the Adams administration directly or the British investors indirectly, the press struggled to function independently while under attack in the young republic.

Madison's efforts as legislator and editorialist did not produce the results for which he and Jefferson had hoped: North Carolina had recently rejected the Kentucky resolution, causing Madison to worry about “one of the most daring experiments that has been made on the apathy of the people.”¹⁰³ On 23 February 1799, Madison's second essay, “Political Reflections,” appeared in print. In analyzing the French Revolution and its aftermath, especially in light of Adams's reading of those events, Madison artfully turned the public's attention back to the genuine threats presented by the executive at home, rather than mythical threats in Paris. In words that Madison as Publius had used against the American people, factions, and state legislatures, he subtly but tellingly rebuked the current national regime. He began the assault attacking “the doctrine so ardently propagated by many, that in a republic the people ought to consider the whole of their political duty as discharged when they have chosen their representatives.”¹⁰⁴ As he had in the past, Madison argued that the citizens had to be ever vigilant to watch for usurpations of power. When violations occurred, the people must exercise their defensive power and then return to their daily routine. Although this was Madison's notion of the role for the average citizen, it still remains a far cry from Aristotle's conception of zoon politikon.

Madison continued his argument. In vivid, instructive prose he decoded for his readers “the true lesson” taught by French politics:

that in no case ought the eyes of the people to be shut on the conduct of those entrusted with power; nor their tongues tied from a just wholesome censure on it, any more than from merited commendations. If neither gratitude for the honor of the trust, nor responsibility for the use of it, be sufficient to curb the unruly passions of public functionaries, add new bits to the bridle rather than to take it off altogether. This is the precept of common sense illustrated and enforced by experience—uncontrouled power, ever has been, and ever will be administered by the passions more than by reason.¹⁰⁵

Madison pushed his position directly to Adams's doorstep, where he mocked

the fashionable doctrine of the present day, that elective and responsible rulers ought never to be deemed capable of abusing their trust, much less does it favor the still more fashionable doctrine, that executive influence in a representative government is a mere phantom created by the imaginations of the credulous, or the arts of the hypocritical friends of liberty; and that all true patriots will ever unite their efforts in strengthening the executive force, by stifling every jealousy of its hostile misapplication.¹⁰⁶

He closed his well-reasoned diatribe with two “momentous truths” in the “whole field of political sciences” that should be “engraven on the American mind.” “First. That the fetters imposed on liberty at home have ever been forged out of the weapons provided for defence against real, pretended, or imaginary dangers from abroad. Secondly, That there never was a people whose liberties long survived a standing army.”¹⁰⁷

With the huge success of the revolution of 1800, Madison's attention again shifted away from freedom of the press to affairs of the state. His consistency on the relationship between diversity, balance, and freedom, be it religion or press, never wavered. This can be seen in an 1828 letter to Nicholas Trist. Commenting on the less than favorable state of newspaper publishing, Madison reminded Trist that “falsehood and slanders must always be controuled in a certain degree by contradictions in rival or hostile papers where the press is free.” Then he told Trist,

It has been said, that any country might be governed at the will of one who had the exclusive privilege of furnishing its popular songs. The result would be far more certain from a monopoly of the politics of the press. Could it be so arranged that every newspaper, when printed on one side, should be handed over to the press of an adversary, to be printed on the other, thus presenting to every reader both sides of every question, truth would always have a fair chance.¹⁰⁸

With Madison's historic view of the Bill of Rights and his special interest in freedom of the press and religious toleration in mind, it is appropriate to return to his intriguing essay “Property.”

Considered among the most remarkable of all his public essays, “Property” comes closest to expressing what might be considered the heart and soul of Madisonian politics. The perfect logic of his words presented the hope of achieving genuine economic justice through the appropriate public understanding of the meanings of the terms property and rights; however, the reality of a rapidly developing market economy, with its inevitably increasing mass of propertyless humans, would make a mockery of Madison's noble attempt. He would remain committed implicitly to the market principles of possessive individualism.¹⁰⁹

Throughout this 1792 essay, Madison linked himself with the philosophic tradition that as late as Hobbes and Locke continued to think of property, by contemporary standards, in an extraordinarily wide sense. Hobbes included a person's “own life and limbs, and in the next degree (in most men), those things that concern conjugal affection; and after them riches and means of living.” Locke, as is well known, defined property as a man's life, liberty, and estate.¹¹⁰

Historically, then, property comprised much more than material things. In what Madison called “its larger and juster meaning,” property “embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.”¹¹¹ He listed some of the “things” included under property in its “particular” meaning: land, merchandise, or money. In its “larger and juster meaning” he enumerated a person's opinions (and the free communication of them), an individual's religious opinions (in the profession and practice of them), the safety and liberty of his person, and “the free use of his faculties and free choice of the objects on which to employ them.” Property, in either meaning, was essential to humanity, yet it remained threatened on two fronts: “an excess of power” or “an excess of liberty.” In the previous decade, Madison's attention had focused on the latter threat; in the 1790s, his concern turned to the former. In time, his attention would return to the problem of too much liberty as his fears of surplus population began to rematerialize.

Madison reminded his late-eighteenth-century readers of his fundamental premise: “Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses.”¹¹² At that moment in American history, Madison's worry consisted not of excessive governmental power taking “particular” property through taxes, or inflation, or credit schemes, but the “taking” of individual rights of opinion, of conscience, of the press. Again like Hobbes and Locke, Madison's stated hierarchy of rights implied that material property held lesser import than property rights to nonmaterial, but essential, human rights. Echoing the spirit of The Federalist, Madison wrote that the protection of property “being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”¹¹³ Madison's analysis of justice and the absolute necessity of securing material property compared to the less than absolute necessity to protect nonmaterial property demonstrated, in spite of his words, the genuine primacy of a right to property in the narrow, “particular” sense. His writings on suffrage and property, discussed in the next chapter, further established his actual position.

“The praise of affording a just security to property,” he wrote, “should be sparingly bestowed on a government which, however scrupulously guarding the possessions of individuals, does not protect them in the enjoyment and communication of their opinions, in which they have an equal, and in the estimation of some, a more valuable property.”¹¹⁴ Notice how he failed to state that such a government should simply be considered unjust; he preferred, instead, to withhold a degree of praise. Notice also that on speech and press, he does not argue that he personally thinks these rights are superior to “particular” property rights, but that “some” hold that position.

He addressed next the right he always considered first in his personal hierarchy, “conscience … the most sacred of all property.” Even here, however, the security of material property appeared implicitly more significant than conscience. Madison argued:

More sparingly should this praise be allowed to a government, where a man's religious rights are violated by penalties, or fettered by tests, or taxed by a hierarchy. Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and unalienable right. To guard a man's house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man's conscience which is more sacred than his castle, or to withhold from it that debt of protection, for which the public faith is pledged, by the very nature and original conditions of the social pact.¹¹⁵

Where Madison will “spare” praise on a government that intruded on these rights, even though he attributed these rights to natural rather than positive law, he drew a distinct line when the violations touched the body or things of an individual. “That is not a just government, nor is property secure under it,” he wrote, “where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest.”¹¹⁶ He presented a specific example of such an injustice that diverted the reader's attention away from the southern domestic scene: “A magistrate issuing his warrants to a press gang, would be in his proper functions in Turkey or Indostan, under appellations proverbial of the most compleat despotism.”¹¹⁷ Madison remained unequivocal. Where “arbitrary seizures” in any form took place, the government could not be considered just. This particular violation did not involve the question of how “sparingly” a government should be praised or blamed; “arbitrary seizures” made it categorically unjust. That arbitrary actions especially infuriated the rational Madison will be shown later. For a brief moment, a private note by Madison on slavery must be considered.

In preparing his notes for the National Gazette essays, Madison indicated he had been explicitly thinking of the questions slavery raised in terms of property and democracy. That he elected not to incorporate his thoughts into his public essays can be readily appreciated since he comprehended fully the obvious contradictions. “In proportion as slavery prevails in a State, the Government, however democratic in name, must be aristocratic in fact,” he wrote. “The power lies in a part instead of the whole; in the hands of property, not of numbers.” After describing “the antient popular governments,” he compared them to the South and concluded both were “aristocratic.” “In Virginia” he noted that “the aristocratic character is increated by the rule of suffrage, which requiring a freehold in land excludes nearly half the free inhabitants, and must exclude a greater proportion, as the population increases. At present the slaves and non-freeholders amount to nearly 3/4 of the State.” It must be pointed out that Madison did not appear critical of this situation. After all, as a liberal concerned with the institution of property, not democratic politics, why should he be? However, with whiffs of democracy in the air, Madison was not about to share these private thoughts with the public. He closed this passage of his notes with an incredible understatement: “Were the slaves freed and the right of suffrage extended to all, the operation of the Government might be very different.” Indeed. With slavery institutionalized in the South, Madison knew power flowed “much more into the hands of property, than in the Northern States. Hence the people of property in the former are much more contented with their established. Governments, than the people of property in the latter.”¹¹⁸ This would include Madison as well, given his position on the appropriate relationship between stable government, property, and suffrage. None of the above, however, ever saw the light of day during his lifetime, although hints did appear in his “Property” essay.

Returning to that essay, under the category of actions that resulted in an unjust government, Madison presented a few examples: “where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.” With the shadow of slavery blocking the light of justice contained in this sentence, Madison presented specific examples for consideration, lest his ideal notions of justice get out of control. He continued his recitation of unqualifiedly unjust governmental actions, where the “arbitrary” nature of the behavior remained essential:

A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.¹¹⁹

The language and sentiment of Locke (and Madison's “Agricultural Address” of 1818) pervades. Humans labor out of necessity, not choice. Consequently, on occasion even “the keenness and competition of want” prove to be an “insufficient spur to labor” and must be supplanted by additional taxes. Madison labeled this an “unfeeling policy” as he warned that this taxing had divine limits; if it “took” away from the day of rest, which God gave to man in exchange for decreeing that he had “to earn his bread by the sweat of his brow,” it constituted a property violation.

This essay on property, its essence captured neatly by Madison in a single sentence—“In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights”—makes it undeniable that Madison precariously tried to straddle two traditions inside of liberalism. Each tradition contained different, but not necessarily mutually exclusive, concepts of humanity. Madison embraced “the society and politics of choice, the society and politics of competition, the society and politics of the market.”¹²⁰ In short, he viewed the world through liberal eyes. The earlier moment of the liberal tradition, from Hobbes to Locke, viewed the individual as essentially a consumer of goods and utilities, an appropriator of land and capital. This ontological view of man continues to be crucial for the development of the full market society. In Madison's essay, this concept was reflected in the protection of property in “external things,” an individual's “right to his property.”

More importantly, as if in anticipation of John Stuart Mill and T. H. Greene (or perhaps it may have been his reading of Aristotle), Madison also perceived at least some individuals as more than “a bundle of appetites seeking satisfaction” through ownership of property. He simultaneously viewed man's essence, in the words of C. B. Macpherson, as that of “a doer, a creator, an enjoyer of his human attributes. … Whatever the uniquely human attributes are taken to be, in this view of man their exertion and development are seen as ends in themselves, a satisfaction in themselves.”¹²¹ This second, later model of humanity found expression in Madison's discussions of freedom of conscience and of opinion and the free use of one's faculties—the individual's “property in his rights.” The problem of Madison simultaneously sustaining these two views of humanity becomes insurmountable: he will not give up his market assumptions of capitalist property. While he could balance a man's “right to his property” as well as a man's “property in his rights” in the late eighteenth century, early in the next century—given Madison's economic and political assumptions—one side of his seesaw would swell in mass and crash to the ground.

Recall that Madison published “Property” a week after his essay “Fashion.” The implicit subtheme of each article, as well as his heroic defense of the original creditors on the national debt, circled around the ideal of maintaining economic justice in an emerging market economy.¹²² Madison's rhetorical arguments for justice in the institution of property are sound, but doomed, because of his Malthusian worldview based on scarcity and his unwillingness to redistribute material property democratically. When free land ran out, which was inevitable, it would be impossible in the “larger and juster meaning” of property to claim that those without property are in an economic condition “which leaves to everyone else the like advantage.”¹²³ Land provided the equal opportunity that, to Madison, made the protection of unequal property holdings fair and just. It also kept economic exploitation to a minimum. As the population grew and the free land became exhausted, a “monopoly” in the form of a class who owned property would indeed develop and have the power to “deny to part of its citizens the free use of their facilities, and free choice of their occupations.” There would be, however, nothing arbitrary about this: it would be the normal, ongoing, systematic exploitation by those with property of those without property, requiring the latter to pay for access to the means of life.

When this finally occurred, not only would the propertyless outnumber the propertied, but in Madison's own terms the relationship could no longer be considered just. In short, in a full market economy, “a property in rights” becomes effectively meaningless without property in external things. All would still be free. Some, however, would be more free than others. When presented with the choice of a democratic politics reestablishing justice or protecting the institution of property and therein social stability, Madison stood for stability.¹²⁴ That Madison remained deeply concerned over this dynamic situation will become evident when his views of property joined to suffrage are presented. Trapped inside his Calvinistic-Lockean view of history, humanity, and property, there seemed little beyond education, political manipulation, and hope that could be done on behalf of a system that would finally run out of time. When that occurred, as Rakove describes Madison's vision, “Wage labor and urban life would sap the manly independence of the republic's citizens.”¹²⁵

On the other hand, Madison's “Property” essay contained the seeds of a radical notion of property that could have politically solved his economic race against time. All Madison had to do was logically link his ideas of an individual having “a right to his property” as well as “a property in his rights” with his assertion that an individual “has an equal property in the free use of his faculties and free choice of the objects on which to employ them,” along with his fairness condition that individuals may take from the common so long as it “leaves to every one else the like advantage.” At the historic moment when it finally became impossible to guarantee the last requirement, a political solution to maintaining justice remained possible provided property as effective “rights” to be exercised, rather than “things” to be possessed, took priority.¹²⁶ This Madison would not do. It would have required faith in politics as well as humanity; it would have required less fear of chaos and instability. It would have required Madison to be Jefferson.

Notes

1. “Property,” National Gazette, 27 Mar. 1792, The Papers of James Madison, ed. William T. Hutchinson et al., 17 vols. (Chicago and Charlottesville: University of Chicago Press and University of Virginia Press, 1962-), 14:266 (hereafter cited as PJM).

2. See Jennifer Nedelsky, Private Property and the American Constitution (Chicago: University Press of Chicago, 1990), chapter 2, where she calls this essay “uncharacteristic” and “atypical” of Madison.

3. “Property,” PJM 14:266; JM's [James Madison's] emphasis. See William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford: Clarendon Press, 1765), bk. 2, p. 2.

4. John Locke, Second Treatise of Government, ed. C. B. Macpherson (Indianapolis: Hackett, 1980), p. 19; Locke's emphasis.

5. Ibid., pp. 21, 23.

6. “Property,” PJM 14:266.

7. Douglass Adair, “James Madison's ‘Autobiography,’” William and Mary Quarterly 3d ser., 2 (Apr. 1945): 198-199; Jack Rakove, James Madison and the Creation of the American Republic (Glenview, Ill.: Scott, Foresman, 1990), p. 6.

8. JM to William Bradford, 1 Dec. 1773, PJM 1:105-106. Just how far Americans would need to travel before they conceived of the United States itself as a political entity can be seen in Madison's casual reference to “your Country” without mentioning Pennsylvania; see also JM's subsequent letter to Bradford, PJM 1:106.

9. JM to William Bradford, 24 Jan. 1774, PJM 1:105-106. See also JM to William Bradford, 1 Apr. 1774, PJM 1:112, where he contrasted Virginia to Pennsylvania: “The Sentiments of our people of Fortune & fashion on this subject are vastly different from what you have been used to. That liberal catholic and equitable way of thinking as to the rights of Conscience, which is one of the Characteristics of a free people and so strongly marks the People of your province is but little known among the Zealous adherents to our Hierarchy. We have it is true some persons in the Legislature of generous Principles both in Religion & Politicks but number not merit you know is necessary to carry points there.”

10. JM to William Bradford, 24 Jan. 1774, PJM 1:106.

11. JM to William Bradford, 1 Apr. 1774, PJM 1:112-113.

12. Declaration of Rights and Form of Government of Virginia, 16 May-29 June 1776, Ed. note, PJM 1:170-175.

13. JM's Amendments to the Declaration of Rights, 29 May-12 June 1776, PJM 1:175. The full wording of the amendment read: “That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, that all men are equally entitled to enjoy the free exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, Unless the preservation of equal liberty and the existence of the State are manifestly endangered; And that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.”

14. See Marvin Meyers, ed., The Mind of the Founder, rev. ed. (Hanover, Mass.: Brandeis University Press, 1981), p. 6, who notes how the previous year Madison had voted for an act to incorporate the Episcopal church in order to “play for time,” until postponement would kill it. For JM's own view, see JM to James Madison Sr., 6 Jan. 1785, PJM 8:217.

15. To the Honorable the General Assembly of the Commonwealth of Virginia A Memorial and Remonstrance, ca. 20 June 1785, PJM 8:298-299. “Property,” 27 Mar. 1792, National Gazette, PJM 14:266-267, where JM acknowledges “conscience” as “a natural and unalienable right,” yet implies that a government that violated religious rights would not automatically be considered completely unjust.

16. “Memorial and Remonstrance,” PJM 8:299.

17. Ibid., 8:300; cf. “Consolidation,” 3 Dec. 1791, National Gazette, PJM 14:137-139; “Government,” 31 Dec. 1791, PJM 14:178-179; “Charters,” 18 Jan. 1792, PJM 14:191-192; “Government of the United States,” 4 Feb. 1792, PJM 14:217-219; “A Candid State of Parties,” 22 Sept. 1792, PJM 14:370-372.

18. “Memorial and Remonstrance,” PJM 8:300.

19. Ibid., 8:302.

20. Ibid., 8:303-304.

21. Rakove, Madison, p. 34.

22. JM to Thomas Jefferson, 22 Jan. 1786, PJM 8:474.

23. Act of Religious Freedom, 31 Oct. 1785, PJM 8:400-401.

24. Isaac Kramnick, ed., The Federalist Papers (New York: Viking Penguin, 1987), 10:127, 128. See JM to Thomas Jefferson, 20 Aug. 1785, PJM 8:345, where, partially in code, he wrote: “The presbyterian clergy have at length espoused the side of the opposition, being moved either by a fear of their laity or a jealousy of the episcopalians. The mutual hatred of these sects has been much inflamed by the late act incorporating the latter. I am far from being sorry for it as a coalition between them could alone endanger our religious rights and a tendency to such an event had been suspected” (JM's emphasis).

25. Federalist 19:168; Madison showed how this concern was reasonable since it was “the controversies on the subject of religion, which in three instances have kindled violent and bloody contests, [which] may be said, in fact, to have severed the league” among the Swiss cantons.

26. Federalist 51:321-322. It should be noted as well that the federal system supplies additional governments to check factions.

27. See “Parties,” 23 Jan. 1792, National Gazette, PJM 14:198, where he drew a distinction between “natural distinctions” and “artificial distinctions”; the former were based on property holdings, the latter on political distinctions between “kings, and nobles and plebeians.” Madison explicitly showed he understood the faulty logic of the idea by stating its position in terms of balance: “We shall then have the more checks to oppose to each other: we shall then have the more scales and the more weights to perfect and maintain the equilibrium.” Rejecting the idea as not being “the voice of reason” or “republicanism,” Madison considered the idea of creating additional and artificial vices “absurd.” Besides, given the inequality of human nature and Madison's conception of the nature of politics, an increase in the natural variety is inevitable.

28. See JM speech, 6 June 1787, The Records of the Federal Convention of 1787, ed. Max Farrand, 4 vols. (New Haven, Conn.: Yale University Press, 1937) 1:135; at the Constitutional Convention, Madison's concern was with religion's ability to “become a motive to persecution & oppression,” not with how to maintain its free practice. As in Federalist 10 and 51, Madison reasserted the advantages of an extended republic. See also JM speech, 26 June 1787, Records of the Federal Convention 1:421-423.

29. See Jonathan Elliott, ed., The Debates of the Several State Conventions on the Adoption of the Federal Constitution, 4 vols. (Philadelphia: J. B. Lippincott, 1836), 3:330. See also PJM 11:85-86: “The powers of the federal government are enumerated; it can only operate in certain cases: it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”

30. For minor practical exceptions to JM's theoretical position, see Robert S. Morgan, James Madison on the Constitution and the Bill of Rights (New York: Greenwood Press, 1988), pp. 151-152.

31. TJ to William Stephens Smith, 2 Feb. 1788, in Julian P. Boyd, The Papers of Thomas Jefferson, 20 vols. (Princeton, N.J.: Princeton University Press, 1950-), 12:558 (hereafter cited as PTJ).

32. TJ to James Madison, 20 Dec. 1787, PTJ 12:438-444; see also TJ to Edward Carrington, 21 Dec. 1787, ibid., pp. 445-447; TJ to Uriah Forrest, 31 Dec. 1787, ibid., pp. 475-479; TJ to William Stephens Smith, 2 Feb. 1788, ibid., pp. 557-559; TJ to Alexander Donald, 7 Feb. 1788, ibid., pp. 570-572; TJ to James Madison, 15 Mar. 1789, ibid., 14:659-663; and in a letter to Dr. Joseph Priestley, 19 June 1802, The Works of Thomas Jefferson, ed. Paul Leicester Ford, 12 vols. (New York: Knickerbocker Press, 1904), 9:381, Jefferson appears to have gone out of his way to see that history recorded the fact that he had no part to play in either the drafting or the passing of the Constitution of 1787.

33. See Rowland Berthoff and John Murrin, “Feudalism, Communalism, and the Yeoman Freeholder: The American Revolution Considered as a Social Accident,” in Essays on the American Revolution, eds. Stephen G. Kurtz and James H. Hutson (Williamsburg: University of North Carolina Press, 1973), p. 273.

34. Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985), p. 156; Rakove, Madison, p. 47.

35. Drew McCoy, The Last of the Fathers: James Madison and the Republican Legacy (New York: Cambridge University Press, 1989), p. 41; see also Gordon Wood, “Interests and Disinterestedness in the Making of the Constitution,” in Beyond Confederation, ed. Richard Beeman et al. (Chapel Hill: University of North Carolina Press, 1987), p. 73.

36. McDonald, Novus Ordo Seclorum, pp. 177-178.

37. JM to George Washington, 8 Nov. 1786, PJM 9:166. See JM to James Madison Sr., 1 Nov. 1786, PJM 9:154, “They profess to aim only at a reform of their Consti[tu]tion and of certain abuses in the public administration, but an abolition of debts public & private, and a new division of property are strongly suspected to be in contemplation.”

38. JM to George Washington, 21 Feb. 1787, PJM 9:286. See also letter to Washington, 18 Mar. 1787, PJM 9:315.

39. JM to John G. Jackson, 27 Dec. 1821, The Writings of James Madison, ed. Gaillard Hunt, 9 vols. (New York: G. P. Putnam's Sons, 1900-1910), 9:72.

40. See McDonald, Novus Ordo Seclorum, pp. 154-157. Jefferson's reaction to Shays's rebellion was in stark contrast to Madison's. See TJ to JM, 30 Jan. 1787, PTJ 11:93: “I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical. Unsuccessful rebellions indeed generally establish the encroachments on the rights of the people which have produced them. An observation of this truth should render honest republican governors so mild in their punishment of rebellions, as not to discourage them too much. It is a medicine necessary for the sound health of government.” And to William Smith, 13 Nov. 1787, PTJ 12:356-357, he claimed: “God forbid we would ever be 20. years without such a rebellion. … We have had 13. states independent 11. years. There has been one rebellion. That comes to one rebellion in a century and a half for each state. What country before ever existed a century and half without a rebellion? And what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it's natural manure.”

41. See Kramnick, “Introduction” to The Federalist Papers, p. 25: “The concern of many who repudiated the Articles at the Constitutional Convention would be not simply the immense power of state legislatures, abstractly considered, but the substantive content of the legislation passed by these all powerful legislatures as it threatened vested economic interests and private rights. It would be the redistributive nature of so much of the legislation coming out of the state legislatures in this period which enraged the critics of the Articles.”

42. J. R. Pole, The American Constitution—For and Against: The Federalist and Anti-Federalist Papers (New York: Hill and Wang, 1987), p. 11.

43. Federalist 37:246-247.

44. See Michael Parenti, “The Constitution as an Elitist Document,” How Democratic Is the Constitution? ed. Robert A. Goldwin and William A. Schombra (Washington: Free Enterprise Institute, 1985), p. 51, who makes an important point about this rationalization of self-interest and national interest. It is a “fallacy,” writes Parenti, “to presume there is a dichotomy between the desire to build a strong nation and the desire to protect property and that the delegates could not have been motivated by both.” “In fact,” Parenti reminds us, “like most people, they believed that what was good for themselves was ultimately good for the entire society.”

45. See McDonald, Novus Ordo Seclorum, pp. 219-224, for a detailed summary of the economic interests of the delegates.

46. See Martin Diamond, “Democracy and The Federalist: A Reconsideration of the Framers' Intent,” American Political Science Review 53 (Mar. 1959): 52-68.

47. Parenti, “Constitution as an Elitist Document,” p. 44. See James Hutson, “Riddles of the Federal Constitutional Convention,” William and Mary Quarterly 44 (July 1987): 422: “The convention was not an ideological encounter because the delegates agreed on so many principles of government before they entered the Pennsylvania State House.” See also Jack Rakove, “The Great Compromise: Ideas, Interests, and the Politics of Constitution Making,” William and Mary Quarterly 44 (July 1987): 425, where he argues that “concessions were made to every interest that manifest itself at the convention.”

48. JM to Thomas Jefferson, 15 Mar. 1800, PJM 17:373.

49. Federalist 40:263; 48:312.

50. Bruce Ackerman, We the People (Cambridge, Mass.: Belknap Press of Harvard University Press, 1991), p. 41, with all the assurance of a lawyer, claims that the conventioneers acted illegally. “Modern lawyers are perfectly prepared to admit that the Constitutional Convention was acting illegally in proposing its new document in the name of We The People.”

51. JM to George Washington, 30 Sept. 1787, PJM 10:180-181.

52. JM to Edmund Randolph, 10 Jan. 1788, PJM 10:354-356.

53. JM to George Nicholas, Apr. 1788, PJM 11:12-13. The totally secular nature of Madison's description, along with his increasingly frequent implicit and explicit denigration of “the bulk of mankind,” suggests that Madison's theological explanation for the convention's harmony was written for the consumption of the masses.

54. JM to George Nicholas, 8 Apr. 1788, PJM 11:13.

55. JM to Edmund Randolph, 10 Apr. 1788, PJM 11:19.

56. JM to Thomas Jefferson, 22 Apr. 1788, PJM 11:28.

57. JM to Thomas Jefferson, 10 Aug. 1788, PJM 11:226. See JM to Edmund Pendleton, 20 Oct. 1788, PJM 11:307: “I am glad to find you concurring in the requisite expedients for preventing antifederal elections, and a premature Convention. … An early Convention threatens discord and mischief. It will be composed of the most heterogenious characters—will be actuated by the party spirit reigning among their constituents—will comprehend men having insidious designs agst. the Union—and can scarcely therefore terminate in harmony or the public good.”

58. JM to George Lee Turberville, 2 Nov. 1788, PJM 11:331.

59. Ibid., 11:331-332.

60. JM to Thomas Jefferson, 17 Oct. 1788, PJM 11:297: “The rights in question are reserved by the manner in which the federal powers are granted. 2 because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of Conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power. … 3. because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other. 4. because experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.”

61. JM to Thomas Jefferson, 17 Oct. 1788, PJM 11:298-299; JM's emphasis.

62. JM to Thomas Jefferson, 17 Oct. 1788, PJM 11:299. Perhaps explaining his view of a future Hamilton regime, Madison briefly, and uncannily, acknowledged that governments can be taken over by “a succession of artful and ambitious rulers, [who] may by gradual & well-timed advances, finally erect an independent Government on the subversion of liberty.”

63. JM to Thomas Jefferson, 8 Dec. 1788, PJM 11:381-383. Note how Madison always employs the subtle but undoubtedly effective tactic of linking a threat to the new Constitution with the destruction of the Union and a return to a Hobbesian state of nature, in spite of the twin facts that the Articles of Confederation were strong enough to govern during the war and perhaps loose enough to allow the economy to thrive after the war.

64. JM to George Washington, 20 Feb. 1788, PJM 10:526-527. While de jure ratification was but one state away, JM knew that Virginia constituted one of the four states whose support was essential for de facto ratification.

65. JM speech, 6 June 1788, Elliot, Debates 3:93

66. JM speech, 12 June 1788, Elliot, Debates 3:330.

67. Patrick Henry speech, 12 June 1788, Elliot, Debates 3:314; Henry's emphasis.

68. Ibid., 3:315.

69. Ibid., 3:316. Rarely a slow learner, Madison, once unqualified ratification had been secured, would adopt some of Henry's rhetoric to his own advantage when he became the champion for the Bill of Rights in the First Congress.

70. JM speech, 12 June 1788, Elliot, Debates 3:328.

71. Ibid., 3:329.

72. JM speech, 24 June 1788, Elliot, Debates 3:617.

73. Ibid., 3:618, 619.

74. Ibid., 3:620. Madison rose later in the day to repeat his position, while offering the hint of an olive branch to the opposition; see JM speech, 24 June 1788, 3:626-627: “As to a solemn declaration of our essential rights, he thought it unnecessary and dangerous—unnecessary, because it was evident that the general government had no power but what was given it, and that the delegation alone warranted the exercise of power; dangerous, because an enumeration which is not complete is not safe. Such an enumeration could not be made, within any compass of time, as would be equal to a general negation, such as his honorable friend (Mr. Wythe) had proposed. He declared that such amendments as seemed, in his judgment, to be without danger, he would readily admit, and that he would be the last to oppose any such amendment as would give satisfaction to any gentleman, unless it were dangerous.”

75. JM speech, 15 June 1788, Elliot, Debates 3:453. Madison also acknowledged slavery to be wrong, but disunion worse (3:454), “Great as the evil is, a dismemberment of the Union would be worse.”

76. JM speech, 24 June 1788, Elliot, Debates 3:621-622; see also JM speech, 15 June 1788, Elliot, Debates 3:458-459.

77. JM to George Eve, 2 Jan. 1789, PJM 11:404-405.

78. JM speech, 8 June 1789, PJM 12:196-197.

79. Ibid., 12:197-198. See JM to Richard Peters, 19 Aug. 1789, PJM 12:346-347, “The papers inclosed will shew that the nauseous project of amendments has not yet been either dismissed or dispatched.”

80. Cf. Herbert Storing, What the Anti-Federalists Were For (Chicago: University of Chicago Press, 1981), p. 64, who persuasively argues that the Bill of Rights is the Anti-Federalists' great contribution to American politics.

81. JM speech, 8 June 1789, PJM 12:199.

82. Ibid., 12:200.

83. Ibid., 12:200-201. See Rakove, Madison, p. 81, who locates nineteen Madison amendments.

84. JM speech, 8 June 1789, PJM 12:201-202.

85. Ibid., 12:202.

86. See Henry J. Abraham, Freedom and the Court: Civil Rights and Liberties in the U.S., 5th ed. (New York: Oxford University Press, 1972), pp. 29-88.

87. JM speech, 8 June 1789, PJM 12:202; Madison thus expressed his seventh point: “That in article 3d, section 2, the third clause be struck out, and in its place be inserted the clauses following, to wit:

    The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury, shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may be law be authorised in some other county of the same state, as near as may be to the seat of the offence.

    In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.”

88. JM speech, 8 June 1789, PJM 12:202. Before adoption by the House, the words “or to the people” were added. Finally, his ninth change would have renumbered Article 7 as Article 8.

89. Ibid., 12:203-204. See PJM 12:205. JM used “the necessary and proper clause” to argue, against his own earlier position that in spite of the logic behind the notion of “enumerated” powers, perhaps some added protection was wise. But he shifted from a fear of abuse of the national government to his real fear of “improper laws … enacted by the state legislatures.” Indeed, at moments it appears Madison's prime concern was to further check the powers of the states, rather than the federal power.

90. JM speech, 8 June 1789, PJM 12:208: “The state governments are as liable to attack these invaluable privileges as the general government is, and therefore ought to be as cautiously guarded against.”

91. Ibid., 12:209.

92. “Public Opinion,” 19 Dec. 1791, National Gazette, PJM 14:170. See also PJM 14:168, where JM noted that “the class of literati … are the cultivators of the human mind—the manufacturers of useful knowledge—the agents of the commerce of ideas—the censors of public manners—the teachers of the acts of life and the means of happiness.” Cf. John Stuart Mill's On Liberty.

93. “Government of the United States,” 4 Feb. 1792, National Gazette, PJM 14:218.

94. JM to Thomas Jefferson, 5 May 1798, PJM 17:126.

95. JM to Thomas Jefferson, 20 May 1798, PJM 17:133-134.

96. Virginia Resolutions, 21 Dec. 1798, PJM 17:189.

97. Ibid., 17:189-190. JM used the term interpose in Federalist 38 and twice in Federalist 43.

98. Virginia Resolutions, 21 Dec. 1798, PJM 17:190. Unfortunately for JM, this resolution in time became linked by the states' rights movement with Jefferson's more radical Kentucky resolution, a source of much personal discomfort and concern for JM after Jefferson's death.

99. For a detailed discussion of the issues and evidence surrounding JM's authorship of these four documents, see the editorial notes in PJM 17:199-206, 211-214.

100. “Foreign Influence,” 23 Jan. 1799, Aurora General Advertiser, PJM 17:219.

101. See JM speech, 14 Jan. 1794, PJM 15:189.

102. “Foreign Influence,” 23 Jan. 1799, Aurora General Advertiser, PJM 17:219-220.

103. JM to Thomas Jefferson, 25 Jan. 1799, PJM 17:221.

104. “Political Reflections,” 23 Feb. 1799, Aurora General Advertiser, PJM 17:238.

105. Ibid., 17:239.

106. Ibid., 17:240; JM's emphasis.

107. Ibid., 17:242; JM's emphasis. See also “Notes for Essays,” 19 Dec. 1791-3 Mar. 1792, PJM 14:160-161, where JM wrote, “Fear & hatred of other nations, the greatest cement, always appealed to by rulers when they wish to impose burdens or carry unpopular points.”

108. JM to N. P. Trist, 23 Apr. 1828, Letters and Other Writings of James Madison, ed. William C. Rives and Philip R. Fendall, 4 vols. (Philadelphia: J. B. Lippincott, 1884), 3:630.

109. C. B. Macpherson, The Political Theory of Possessive Individualism (Oxford: Clarendon Press, 1962), pp. 263-264. See also McDonald, Novus Ordo Seclorum, p. 4, where he reminds scholars that terms like property, liberty, society, and rights were, “during the eighteenth century, in a state of flux.”

110. Quoted in C. B. Macpherson, The Rise and Fall of Economic Justice: And Other Essays (Oxford: Oxford University Press, 1985), pp. 76-85.

111. “Property,” 27 Mar. 1792, National Gazette, PJM 14:266; JM's emphasis.

112. Ibid. See also “Observations on Jefferson's Draft,” 15 Oct. 1788, PJM 11:287: “This middle mode reconciles and secures the two cardinal objects of Government, the rights of persons, and the rights of property”; see also JM's “preamble” to the Constitution as part of his ideas on a bill of rights, 8 June 1789, PJM 12:200. “That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, and the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.”

113. “Property,” 27 Mar. 1792, National Gazette, PJM 14:266; JM's emphasis.

114. Ibid.

115. Ibid., 14:266-267.

116. Coming from a slaveholder, this was an interesting statement indeed, though one could argue that it was the “arbitrary” nature of the seizures that made them unjust to Madison.

117. “Property,” 27 Mar. 1792, National Gazette, PJM 14:267.

118. “Notes for Essays,” PJM 14:163-164.

119. “Property,” 27 Mar. 1792, National Gazette, PJM 14:267. JM also wrote: “If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; nay more, which indirectly violates their property, in their actual possessions, in the labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues and soothe their cares, the influence will have been anticipated, that such a government is not a pattern for the United States.”

120. C. B. Macpherson, The Real World of Democracy (Toronto: CBC Learning Systems, 1965), p. 6.

121. C. B. Macpherson, Democratic Theory: Essays in Retrieval (Oxford: Clarendon Press, 1973), chapters 1-3.

122. See “Fashion,” 20 Mar. 1790, National Gazette, PJM 14:257-259.

123. “Property,” 27 Mar. 1792, National Gazette, PJM 14:266; JM's emphasis.

124. Sheldon Wolin, The Presence of the Past (Baltimore: Johns Hopkins University Press, 1989), p. 45.

125. Rakove, Madison, p. 135.

126. See Macpherson, Rise and Fall, pp. 76-91.