James Madison and the Dynamics
of the Constitutional Convention *
tudies of the Constitutional Convention, both "empirical" and
S more "impressionistic," almost always emphasize its multiplex
divisions: small states vs. large, "pure" federalists against proponents
of a large republic, planting states against commercial interests, south
against north. There is no denying the necessity of close attention to
these conflicts. The Convention was a battleground for disagreeing
politicians and competing state and sectional concerns. It succeeded,
as the textbooks say, because the clashing delegates discovered ways
to compromise their sharpest disagreements. Analyses of its divisions
have taught us much of what we know about the way in which the
document emerged.'
For all its benefits, however, there are also ways in which a fascination with conflicting coalitions may have interfered with insight and
imparted partial and misleading images of how the meeting worked. I
do not merely mean that a repeated emphasis on conflicts and
divisions can encourage a neglect of the cooperative dimensions of
°This essay was written during tenure of a fellowship at the National Humanities Center. I am deeply grateful for the center's support. The article is a companion to two
previous discussions of Madison and the Convention, from which I have taken an occasional point or phrase while trying to avoid excessive duplication: "The Constitutional Convention, " in The Constitution: A History of its Framing and Ratification,
ed. Leonard W. Levy and Dennis J. Mahoney (New York, 1987), 112-31; and "The
Practicable Sphere of a Republic: James Madison, the Constitutional Convention, and
the Emergence of Revolutionary Federalism, " in Beyond Confederation: Origins of the
Constitution and American National Identity, ed. Richard Beeman et al. (Chapel Hill,
N.C., 1987), 162-87. I plan to bring the three together in James Madison and the
Founding (forthcoming, Cornell University Press).
1. The most comprehensive scholarly studies of the framing are Charles Warren, The
Making of the Constitution (Boston, 1928) and Clinton Rossiter, 1787: The Grand Convention (New York, 1966). Catherine Drinker Bowen, Miracle at Philadelphia: The
Story of the Constitutional Convention, May to September 1787 (Boston, 1966), is a
more popular account. Among shorter studies, the best and most instructive on the
multiplexity of the Convention's divisions is Forrest McDonald, Novus Ordo Seclorum:
The Intellectual Origins of the Constitution (Lawrence, Kans., 1985), chaps. 6-8.
THE POLITICAL SCIENCE REVIEWER
the meeting (though this, of course, has sometimes been the case).' I
mean to call attention also to another sense in which we have
repeatedly applied a static method of analysis to a dynamic situation
and thereby missed a major aspect of the story.
This can happen even when the votes in the Convention are
analyzed in series, showing that the coalition configurations shifted
over time as compromises settled certain issues and new disputes
arose.' It can happen even when the ideological positions of the
delegates are called upon to help explain statistical results, along with
the specific interests of their states4 The most sophisticated studies
of conflicting coalitions still do not allow for the continual necessity of
every state and every member to adjust to the dynamics of the process, one in which the general character of the emerging constitution
might he changed with each new vote and every individual might be
compelled to readjust repeatedly to a collective effort to resolve a
common set of problems.'
James Madison was a Virginian. He had represented the Confederation's largest state for years in the Confederation Congress,
where the majority was often fiercely jealous of its claims. He was a
southerner, a continentalist, and a defender of the west. He was a
2. This seems to me a weakness of John P. Roche, "The Founding Fathers: A Reform
Caucus in Action," American Political Science Review, 55 (1961), 799-816, which sees
no over-arching principles" at work in the Convention, and of Merrill Jensen, The
Making of the Constitution (Princeton, 1964), which suggests a sharper ideological
polarization than was present.
"
3. As in Calvin C. Jillson, Constitution-Making: Alignment and Realignment in the
Federal Convention of 1787," American Political Science Review, 75 (1981), 598-612,
an article that supersedes all coalitional analyses that do not consider changes over
time.
4. As in Calvin C. Jillson and Cecil L. Eubanks, The Political Structure of Constitution
Making: The Federal Convention of 1787, " American Journal of Political Science, 28
(1984), 435-58. This article, however, suggests that either differences of principle or
differences of interest account for coalitional configurations at specific points in the
Convention. I believe that both were always constantly at work.
5. Helpful for its insistence on the collective mission of the Convention and for its
realization that the process of compromise was more than a matter of trucking and
bargaining is Herbert J. Storing, "The Constitutional Convention: Toward a More Perfect Union," in American Political Thought: The Philosophic Dimension of American
Statesmanship, ed. Morton J. Frisch and Richard G. Stevens (New York, 1971), 51-68.
Storing's points and approach, however, are different from my own.
6. There are three excellent biographies of nicely varied length: Irving Brant, James
Madison, 6 vols. (Indianapolis, Ind., 1941-1961); Ralph Ketcham, James Madison: A
Biography (New York, 1971); and Harold S. Schultz, James Madison (New York,
1970).
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
scholar, a republican, and an effective legislative politician.' All these
facts are vital to a comprehension of his stands at the Convention. All
of them together offer only an inadequate beginning toward an understanding of his course and contributions.
This is partly so, of course, because James Madison was too complex
a thinker to be neatly typed, because he can be fitted only loosely into
categories that could pull him several ways at once. But it is so, as well,
because the Constitutional Convention forced his active mind into a
fluid interchange with others, all of whom were struggling day by day
to understand a changing plan, most of whom were listening to (as
well as battling with) the other members. Long after the Convention
had adjourned, Madison insisted that there were few delegates who
did not change in the progress of the discussions the opinions on important points which they carried into the Convention,, few who,
at the close of the Convention, were not ready to admit this change as
the enlightening effect of the discussions."' This was plainly true of
Madison himself, whose numbers of The Federalist were partly a confession of the things that he had learned. And yet our studies seldom
make a full allowance for this kind of change.
The following discussion stresses Madison's experience of the Con
vention. This seems to me to have at least two uses. First, by general
agreement, no one came to the Convention with his thought more
thoroughly in order than the father of the Constitution." If he was influenced by the meeting, changing his original opinions on several
consequential points, others surely changed their minds as well.
Madison's experience may therefore help to highlight the dynamics
of the joint endeavor, the process of deliberation. In addition, I
believe there is a sense in which a "theory" of the Constitution
started to emerge in course of the proceedings, a theory we might try
to see as immanent in the decisions and debates. When Madison and
Hamilton completed the construction of this theory, both accomplished this in part by sorting back in memory through every stage in
the Convention ' s work, comparing its decisions to the hopes with
which they had begun, and building on the lessons they had learned.
From this perspective, the Convention proved the most important
7. Max Farrand, ed., The Records of the Federal Convention of 1787, rev. ed., 4 vols.
(New Haven, Conn., 1937), 3:455. See also, ibid., 497, 517, 521, 537. I have expanded
abbreviations and modernized spelling and punctuation throughout the essay. Unless
otherwise indicated, quotations are from Madison's notes of the debates. Farrand's
collection is hereafter cited as RFC.
8
THE POLITICAL SCIENCE REVIEWER
episode in the Virginian's lifelong education. His participation in the
framing was the challenge he required in order to produce a democratic classic.
The Initial Contribution
Madison is often called "the father of the constitution" partly for
his principal responsibility for the Virginia Plan. These fifteen
resolutions, introduced by Edmund Randolph on May 29, as soon as
the Convention had agreed upon its rules, captured the initiative for
radical reform. Though they were greatly modified before the work
was through, they set the meeting's early course and served throughout the summer as the starting point for its deliberations. They succeeded so impressively in setting forth some general guidelines for
the meeting that interpreters have sometimes overlooked the critical
consensual parameters within which many of the arguments occurred.
The Virginia Plan did not propose to strengthen the existing
federal system, though this is probably what a majority of states ex pected the Convention to propose. Instead, it offered to reconstitute
the current, single-chamber central government on lines suggested
by the constitutions of the states, and then to vest this national
republic with the right "to legislate in all cases to which the separate
states are incompetent, or in which the harmony of the United States
may be interrupted by the exercise of individual legislation." To
guarantee the central government's supremacy wherever common
measures were required, the reconstructed articles of union would
be ratified by state conventions of the sovereign people, and federal
powers would include authority to veto local legislation inconsistent
with the federal charter or "to call forth the force of the Union against
any member of the Union failing to fulfill its duty." 8
Several delegates were rudely jolted by the daring scope of these
"
preliminary propositions. " Few were thoroughly prepared for such a
sweeping change. Yet Madison and his Virginia colleagues had correctly sensed, as other delegations trickled into town, that early sentiment was overwhelmingly opposed to patchwork efforts to repair the
tottering Confederation. Nearly all the members of the Constitutional Convention believed that an effective central government
required, at minimum, an independent source of revenues, authority
to regulate the country's trade, and power to compel obedience to
8. RFC, 1:20-22.
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
9
its legitimate commands . 9 Nearly all agreed, as well, that powers that
the colonies had stubbornly denied to England would have to be accompanied by firm securities against the possibility of their abuse.
The first essential contribution of the Resolutions of May 29 was to
suggest that this conundrum might be solved by trusting necessary
powers to a well-constructed representative republic. They proposed
a Revolutionary answer to the Revolutionary fear of grasping central power.
And before the hesitant could catch their breath, they found that
the agenda for the meeting had been vastly broadened. The Virginia
Plan not only sketched a radical solution to the problems of the union.
It also drew the delegates inexorably into a reconsideration of
the fundamental nature of republics, seizing here, as well, on an
original consensus of the meeting. For although they recognizedand mostly shared-the people's fierce commitment to a democratic
Revolution, nearly all the delegates were as alarmed by popular
abuses in the states as by the ineffectiveness of the Confederation
Congress. Everywhere, as Elbridge Gerry phrased it, the country
seemed to suffer from "an excess of democracy." 10 The will of unrestrained majorities, as Madison preferred to say, had often proven inconsistent either with the rights of individuals or with the wellconsidered public good, and yet the authors of the early Revolutionary constitutions had underestimated dangers of this sort by
trusting too much power to the lower houses of assembly, which were
not effectively restrained by governmental branches less immediately responsive to majority demands."
Sound republics, the Virginia Plan suggested, should be built upon
two legislative houses: one elected by the people; the other chosen in
a way that would remove its members from the whims of the majority
and thus assure continuing protection for other public goods. The
legislature should be balanced by a separate executive, and the
judiciary should be independent of them both. Through almost four
9. The weaker New Jersey Plan nevertheless included a provision for coercion of
delinquent states and powers to regulate trade and to impose a stamp tak, postal duties,
and an impost (ibid., 242-45). A large majority of states had ratified amendments to the
Articles approving an impost and a partial federal authority to regulate trade.
10. RFC, 1:48.
11. "Vices of the Political System of the United States" and other sources cited in notes
13-15 below. The indispensable discussion of discontent with the early Revolutionary
constitutions is Gordon S. Wood, The Creation of the American Republic, 1776-1787
(Chapel Hill, N.C., 1969).
months of sometimes bitter quarrels, there was little serious dispute
about these fundamental principles of governmental structure. Even
members who resisted the creation of a national republic were determined not to replicate the errors they believed had been committed
in the states. The second contribution of the Resolutions of May 29
was therefore to elicit and direct a general search for principles and
structural devices that could guarantee a place for governmental energy and wisdom, as well as for responsiveness to popular demands.
And this cooperative endeavor was as real a part of the proceedings
as the contest of specific interests-as real and as responsible for
its success.
Madison was not, and never claimed to be, the author of Virginia 's
Resolutions. The whole Virginia delegation caucused daily while the
great Convention waited for a quorum, harmonizing their opinions
and anticipating that the other states would be receptive to some
propositions from their larger sister, which had taken the initiative in
bringing a successful meeting into being. There are no surviving
records from these talks, and the participants agreed that all of them
would be as free as any other member to dissent from the proposals,
which they prevailed upon their governor to introduce. Madison,
however; was the man to whom Virginia politicians customarily
deferred on federal issues. All the keyprovisions of the plan had been
suggested in his pre-Convention writings. Contemporaries understood that it was principally his work, and there is nothing to suggest that any of its major points were inconsistent with his wishes.''
Madison arrived in Philadelphia the best prepared of all who
gathered for the Federal Convention. Recognized since early in the
decade as a leading advocate of federal reforms; he had initiated
more specific preparations for the meeting sometime just before or
12. For the preparation of the Virginia Plan see RFC, 1:18; 3:23, 409, 525, and passim.
The Virginia Plan provided for rotation of members of the lower house but not the
senate; Madison's pre-Convention letters recommended the reverse. Madison had
suggested placing a veto on legislation in an executive council of revision; the plan
would have associated the judiciary with the executive in this power. Other differences will be discussed below, but I can find no evidence that Madison disapproved of
any of the resolutions or that the plan either advanced significantly beyond or (except
in the matter of a federal negative on local legislation) retreated significantly from his
precaucus desires.
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
11
shortly after the Annapolis Convention of September 1786. He made
elaborate research notes on the histories and structures of other ancient and modern confederacies.' In letters to his friends, he
analyzed the ills of the Confederation and elaborated a corrective."
Just before the Federal Convention met, he wrote a formal memorandum on the "Vices of the Political System of the United States," which
Randolph may have read before the speech with which he introduced his resolutions. 15 The evolution of the plan and Madison's
initial purposes and thinking can be confidently reconstructed from
these sources:
They suggest-and it is seldom emphasized enough by modern
scholars-that Madison began with an analysis of the relationship between the central government and states, though he was also much
alarmed by what was happening within the thirteen "members" of
the union. He began, moreover, with a basically conventional con
conception of the proper spheres of state and federal action. Close attention to this fact and to the course of his analysis are critical to better
understanding of his purposes and contribution. Many of the most per sistent misinterpretations of his conduct start when we discount his
early concentration on the federal relationship and jump immediately
to ways in which his plan would have enlarged the sphere of federal ac
tion or addressed his deep concern about conditions in the states. The
Virginia Plan did certainly incorporate these other objects, which
were not less dear to Madison than dominant interpretations would
suggest. But the Virginian ' s first and most important contribution to
the framing did not lie in his objections to contemporary definitions
of the proper business of the union or in radical suggestions for ad-
13. "Notes on Ancient and Modern Confederacies, " in The Papers of James Madison,
ed. William T. Hutchinson, Robert A. Rutland, et al (Chicago and Charlottesville, Va.,
19624 9:3-24: The editors of this collection, hereafter cited as PJM, date these notes
to spring 1786. Madison recalled writing them after his appointment to the Federal
Convention: In either case, they seem certainly-and importantly-to have been his
first step toward a systematic analysis of current ills:
14. Letters to Thomas Jefferson (March 19, 1787), Edmund Randolph (April 8, 1787)
and George Washington (April 16, 1787), in ibid., 9:318-19,368-71, 382-85.
'
15. Ibid., 345-58. In estimating Madison s initial influence on the Convention it is use
ful to bear in mind that this memorandum, which was a polished piece of writing, may
have been read by several members. It is headed by a note that a copy was made by
Daniel Carroll, a Maryland delegate, and sent by permission to Charles Carroll of
Carrollton.
12
THE POLITICAL SCIENCE REVIEWER
ditions to its duties. It lay in his conclusion that the fundamental flaw
of the Confederation was its irredeemably defective structure."
As he thought his way toward the Convention, Madison concerned
himself from the beginning less with the necessity of redistributing
responsibilities between the central government and states than with
the inability of the existing central government to do the tasks that
everyone admitted were its proper business. "Positive" additions of
authority were needed, his earliest reflections ran, so that the powers
of the general government would reach all cases in which "uniformity
is proper," "as in trade, &c., &c. "" These additions, he was quick to
see, held sweeping implications, which I shall come to shortly. But
the striking fact about his earliest, brief comments on reform is that
he gave so little space to positive additions of this sort and that he
plainly said that such additions ought to be confined to instances
where uniformity was needed.
Little space would do for Madison's initial comments on additions
to the union's duties-partly, we shall see, because his thoughts were
not extremely novel on this subject, but primarily because he was extremely eager to proceed to the essential point, which was that no additions to the positive responsibilities of the existing central government could possibly suffice. "However ample the federal powers may
be made," he wrote, "or however clearly their boundaries may be
delineated on paper, they will be easily and continually baffled by
the . . . states" unless accompanied by further changes rendering the
general government "clearly paramount" to the state legislatures and
capable of acting without their " intervention." 18
With the exception of the power over trade, Madison believed, the
current Articles of Union granted Congress positive authority to do
most of the things a general government should do-power even to
16. Close attention to the progression of Madison ' s thinking is important because it
helps redress an excessive and misleading emphasis upon the ideas that received their
most famous elaboration in Federalist No. 10. As will be seen below, I do not deny the
critical importance for Madison of the problem of majority faction and the concept of
the extended republic. I think it worth remarking, though, that an analysis of his course
at the Convention can be pressed quite far with relatively little reference to these
ideas. The present essay maybe usefully contrasted on these lines with Jack N. Rakove,
"
The Great Compromise: Ideas, Interests, and the Politics of Constitution Making, "
William and Mary Quarterly, 3rd ser., 44 (1987), 424-57. Though Rakove criticizes The
Creation of the American Republic for its relative neglect of federal problems, I do not
believe the insight has been pressed as far as it might go.
17. To Jefferson, PJM, 9:318; to Randolph, ibid., 370.
18. To Jefferson, ibid., 318.
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
13
require the states to raise the revenues it needed. 19 Nevertheless, the
union was in peril of collapse, and the republican experiment itself in
deadly danger. The fatal failing, then, was less a faulty definition of
the objects of the union than the inability of the existing central
government to execute its acts without cooperation from the states.
State governments, he wrote, were necessary instruments of federal
action, but they were not amenable to federal commands. They could
"rejudge" and countermand congressional decisions, take conflicting
actions of their own, or frustrate federal measures simply by neglecting to fulfill their legal obligations. The Confederation had the
"form," but lacked the "vital principles," of a political constitution. It
was a government on paper,
but a league of sovereign states in struc2o
ture and in operation.
Probing for essentials and placing the American Confederation in
historical perspective, Madison identified three fundamental ills:
the inability of Congress to enforce decisions that were plainly in its
province; the inability of the Confederation to achieve unanimous
agreement on amendments favored by a huge majority of states; and
consequent attempts by several of the individual republics to secure
by separate legislation ends that called imperatively for common action. 21 How, he asked, could uniformity be actually secured within
that relatively small but vitally important sphere where nearly
everyone agreed that uniformity was needed? Not, he answered, simply by extending the responsibilities of Congress, which was unable
to perform its present duties. Although new grants of power were required in order to perfect the definition of decisions that belonged in
federal hands, the most complete authority would still prove "nomi nal" unless the general government was actually obeyed. Constitutional reform, to be effective, would require two further changes:
the people, from whom all authority derived, would have to ratify the
work of the Convention; and the general government would have to
19. Revenue requisitions are "a law to the states," as state acts are laws to individuals.
Speech in the Confederation Congress, Feb. 21, 1783, ibid., 6:271.
20. "Vices of the Political System," ibid., 9:351.
21. Madison was particularly concerned with the need for federal action to counter
Britain's navigation laws and with the confusions and hostilities resulting from separate
and conflicting state attempts to do so. For the centrality of this concern in his original
decision to support a sweeping federal reform see Banning, "James Madison and the
Nationalists, 1780-1783, " William and Mary Quarterly, 3rd ser., 40 (1983), 252-54, and
especially Drew R. McCoy, The Elusive Republic: Political Economy in Jeffersonian
America (Chapel Hill, N.C., 1980), chap. 3.
14
THE POLITICAL SCIENCE REVIEWER
be empowered with a right to veto all state laws. The sovereign people were the only agency who could remake the state as well as the
federal constitutions, commanding the submission of the local governments where general interests were involved. A federal negative
on local legislation, formerly a power of the British crown, might
make it possible for the confederation government to guard its
li mited preserve against encroachments by the states, as well as "to
restrain the states from thwarting and molesting each other, and even
from oppressing the minority within themselves by paper money and
"22
other unrighteous measures which favor the interest of the majority.
Madison's insistence on a federal right to veto all state laws has
usually been taken as an indication of how far he wished to go toward
a consolidation of authority of central hands.2 3 This is a serious mis take. In context, the idea emerged precisely from the framer's wish to
find a constitutional device that would secure the general government's supremacy within a system where the overwhelming burden of
political responsibilities would still be carried by the states. It was an
effort to create a "sovereign" central government by one who still
assumed that there must be a sovereign somewhere, but who also still
assumed that the United States was to remain a federation of
republics, whose general government would be responsible for only
certain, common duties. The problem, Madison believed, was to prevent the states from "baffling" federal measures and from "intervening in the federal sphere, which is all he meant when he insisted
that effectual reform must make the states "subordinately useful.'j 24
Far from thinking of the veto as an instrument of central aggrandize
ment, he would never have arrived at the idea if he had not thought
so habitually in terms of separate state and federal duties, which he
was trying not to intermix (though with imperfect mental tools). Thus,
he carefully distinguished this "defensive power" from the "positive
responsibilities the central government would have, and he insisted
that he favored it because it struck him as the minimal " abridgement"
23
of the local "sovereignties"consistent with a lasting union.
22. To Jefferson, March 19, PJM, 9:318. See also, to Randolph, April 8, ibid., 369.
23. See, especially, Charles F. Hobson; " The Negative on State Laws: James Madison,
the Constitution, and the Crisis of Republican Government, " William and Mary Quarterly, 3rd ser., 36 (1979), 215-35.
24. This reference in the letter to Randolph (PJM, 9;369) is frequently cited and
misunderstood:
25. Ibid., 370. Compare to Washington, ibid., 383: the negative is the least possible
encroachment on the state jurisdictions." The distinction between "positive" powers
and "this defensive power" begins in the letter to Jefferson, ibid., 318.
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
15
My object here is not to palliate a bad idea or to deemphasize its
central role in Madison's preliminary thinking. But it is absolutely
vital to distinguish Madison's intentions from the way in which a universal federal veto might in fact have worked. This power might, in
operation, have resulted in enormous central intermeddling in the
business of the states. The great majority in the Convention thought it
would. But whatever we might think about this question, it is critical
to understand that this was not its purpose and would not have been,
in Madison's opinion, its effect. Thomas Jefferson saw this at once
when he objected to the negative on grounds that the "patch" was
not commensurate with the "hole." Not more than one in every hundred local acts, he wrote, would concern the Confederation as a
whole, "but this would give Congress a power they ought not to have
over the 99" in order to get at the one, "upon apresumption that they
will not exercise the 99." Madison was, indeed, presuming that the
former royal prerogative would not be abused if placed in responsible
hands-and this was not a wise presumption from his own perspective. But the federal negative, as he conceived it, was never
meant to concentrate decision-making in the hands of federal officials. It was intended to create a legislative power rather comparable in operation to the modern workings of judicial review (complete, we might remark, with modern readings of the Fourteenth
Amendment) 2 6 Grasping this will make it possible to recognize more
clearly both how absolutely indispensable for the Convention were
the insights Madison achieved before most delegates were even on
the scene, and yet how different were his original proposals from the
document he signed.
When the Convention opened, Madison had analyzed the federal
problem with a critical acuity that proved unanswerable by the opponents of his plan. 27 That plan was the essential step toward the
"
26. Jefferson to Madison, June 20, 1787, ibid., 10:64. The great desideratum which
has not yet been found for republican governments, " Madison wrote to Washington
(ibid., 384), "seems to be some disinterested and dipassionate umpire in disputes between different passions and interests in the state. The majority who alone have the
right of decision have frequently an interest, real or supposed, in abusing it. In monarchies the sovereign is more neutral to the interests and views of different parties, but,
unfortunately, he too often forms interests of his own repugnant to those of the whole.
Might not the national prerogative here suggested be found sufficiently disinterested
for the decision of local questions of policy, whilst it would itself be sufficiently re"
strained from the pursuit of interests adverse to those of the whole society?
27. The unanswerability of Madison's analysis became most striking in the brief debate
'
preceding the Convention s decision to adhere to the Virginia Plan in preference to
1 .6
THE POLITICAL SCIENCE REVIEWER
decision to completely reconstruct the federal system. Yet Madison's
analysis had overreached his great, though limited, ability to think his
way to a solution of the problems he perceived. He had identified the
problem as state "intervention" in the federal sphere, and he proposed to solve it by suggesting ways in which the states might be excluded from their current role in making federal decisions, compelled to execute the federal government's commands, and blocked
from taking independent actions that could damage other states or
vital national interests. But because he thought of the Confederation
as an instrument for doing what the states could not accomplish on
their own, because he was determined to define a "middle ground"
between state sovereignty and a consolidated national government, 28
it did not occur to him immediately that a reconstituted central
government might never need to call upon the states at all. Thus, the
pre-Convention letters advocated both the federal veto and a federal
power to coerce delinquent states. They assumed that the reconstituted central government would still rely upon the states for requisitions and for. other actions necessary to enforce its laws. 29 They
demonstrate, in short, that Madison did not, as yet, consistently envision a regime that would derive entirely from and act exclusively
upon the individual members of society. Though he was moving
toward this thought-and moved the whole Convention in the
same direction-the Virginia Plan proposed to place a great republic
at the head of a confederation of republics. It was still a partly federal,
and not a wholly national, solution-in this sense and in its major
author's wish to constitute a central government whose powers would
be plenary, but also limited to matters that the states were inthe New Jersey Resolutions. As Rakove remarks ( "The Great Compromise," 441-47),
'
Madison s opponents did not even try to counter the insistence on the insufficiency of
a purely federal system, focusing instead on practical and legal obstacles to a more fundamental reform. See RFC, 1:241-333.
28. To Randolph, PJM, 9:369. The same phrase reappears in the letter to Washington,
ibid., 383.
29. Indeed, the letters to Randolph and Washington both suggested selection of the
lower house "by the legislatures or the people at large." The letter to Washington
(ibid., 385) advocated the coercive power and then immediately conceded "the difficulty and awkwardness of operating by force on the collective will of a state."
Madison hoped the use of force might be "precluded" by means of the federal negative. "Or perhaps some defined objects of [internal] taxation might be submitted, along
with commerce, to the general authority." The obvious presumption here is that the
general government will still resort to requisitions.
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
17
dividually incompetent to handle. When the Constitutional Convention opened, neither Madison nor anybody else possessed a welldeveloped concept of concurrent governments, neither one of which
would actually be sovereign.'
Still, Madison's peculiar genius carried him habitually to the
relationships between political phenomena that others thought of as
discrete. He was instinctively inclined to press relentlessly to basics,
to grapple with complexity by slicing through the issues to the principles involved. These qualities were part of what contemporaries had
in mind in praising him as a distinctive mixture of the scholar with the
politician (or in condemning him as an impractical theorist). Because of
them, the Resolutions of May 29-and the completed Constitutionwere a good deal more than an attempt to solve the federal problem.
When Madison assessed the nation ' s ills, he found two thoroughly
entangled perils. He had long ago concluded that the union would disintegrate in time if it continually failed to meet its members' expectations. Now, however, he was also deeply fearful that the Revolutionary enterprise itself could not survive a fragmentation of the general
union. If the union should collapse or fragment into several confederations, every part would fear the others, each might be compelled
to seek out foreign allies, and all would either lose their independence
or would find themselves with standing military forces, powerful executives, swollen taxes, and persistent public debts. European intervention or a replication of conditions similar to those of Europe would
entail the end of liberty itself. Of all the states and sections, none would
lose their liberty more quickly than Virginia and the South."
30. Wood remarks this, p. 525. See also Michael P. Zuckert, "Federalism and the
Founding: Toward a Reinterpretation of the Constitutional Convention, " Review of
Politics, 48 (1986), 166-210. Written independently of the essays cited on the title
page, Zuckert's article makes several similar observations about the partly "federal"
character of Madison's initial wishes.
31. This paraphrases The Federalist No. 41 and Madison's speech in the Convention
on June 29, which will be discussed below. But Madison's association of Virginia's
vulnerability, collapse of the Confederation, and an end of republican liberty was apparent as early as Feb. 21, 1783 (PJM, 6:272) and well developed by the time of his
speech in the Virginia legislature in Nov., 1785 (ibid., 8:431-32). I have argued that this
was a central theme of Madison ' s concerns throughout the founding in " Virginia: Nation, State, and Section, " a paper read at the conference on "Ratifying the Constitution:
Ideas and Interests in the Several American States, " National Humanities Center, May
1987, (forthcoming in Ratifying the Constitution: Ideas and Interests in the Several
American States, ed. Michael Lienesch and Michael Gillispie (Princeton University
Press, 1988). See also Madison ' s candid references to the South's special vulnerability
in the speeches of Aug. 29 and Aug. 16, RFC, 2:452, 306-7.
18
THE POLITICAL SCIENCE REVIEWER
By 1787, Madison and many others thought that fragmentation of
the union might be close at hand, and the Virginian feared that a
collapse of the republican experiment could follow quite closely
behind. The inability of the Confederation government to pay its
debts, enforce its treaties, or relieve the economic difficulties of the
post-war years contributed directly, he perceived, to arguments between the states and rising talk about a dissolution of the union. But
the Confederation's weaknesses contributed, as well, to growing
doubts about the benefits of the republican experiment among an influential few and to the economic suffering that seemed to him the
leading cause of popular abuses so severe as to endanger the
commitment of even the most orthodox republicans." This twofold
crisis of commitment-to the union and the Revolutionary state experiments in popular self-governance, which depended both upon
the union and upon their own consistency with "justice"-demanded
"every concession in favor of stable government not infringing fun damental principles as the only security against an opposite extreme
of, our present situation.""
Madison approached the Constitutional Convention literally intent
on saving the republican Revolution. The terrified response of much
of the American elite to Shays' Rebellion, which had erupted
shortly after the congressional collision over Jay's negotiation with
Gardoqui, had convinced him that a fragmentation of the union into
sectional confederations was the least catastrophe that might result
from failure to engage the growing crisis of commitment. His analysis
persuaded him that strengthening the present Congress would at
best delay, but not avert, this outcome. The states would still find ways
to frustrate federal measures and encroach on federal rights. Their individual actions would continue to contribute to a rising, mutual ill
will. Within the boundaries of each, inconsistent, factious legislation
still would feed the insecurities and doubts that challenged even the
majority's commitment to the Revolutionary cause 33
32. To Jefferson, PJM, 9:318. Compare, to Randolph, ibid., 371: " Unless the union be
organized efficiently and on republican principles, innovations of a much more objectionable form may be obtruded." See also, to Jefferson, March 18, 1786 (ibid., 8:502):
Most of our political evils"-paper money, indulgences for debtors, etc.-"may be
traced up to our commercial ones, as most of our moral may to our political."
33. To Randolph, April 8, ibid., 9:371. Madison 's concern about the growth of counterRevolutionary sentiments, especially among New Englanders, pervades this volume.
But see, particularly, to Washington, Feb. 21, 1787 (ibid., 286): American leaning
toward monarchy "will of course abandon an unattainable object whenever a prospect
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
19
Neither would a strengthening of the existing Congress be compatible with "fundamental principles;" and Madison was thoroughly in
earnest when he said that he would make "concessions" only to the
point at which "stability" and governmental vigor still appeared consistent with the Revolution?' Two specific, new responsibilities, his
early thinking ran, would have to be confided to the union: regulation
of the country's trade, and power to collect at least a portion of the
necessary federal taxes. These additions, though, together with a
federal "negative" on local legislation, would produce a general
government whose "positive" authority would far surpass the British
claims that had provoked the Revolution. As a Virginian, Madison
refused to contemplate a change that would destroy his state's
capacity to "rejudge federal measures unless the change included a
transition to proportional representation, which would assure the
Old Dominion power equal to its size and contributions. As a
dedicated Revolutionary, he insisted that such powers could be
trusted only to a representative republic ss
Revolutionary principles and a determination to preserve the
Revolutionary order linked all of Madison's ideas into a complex
chain. Because he saw the crisis of the union as itself a crisis of the
Revolution, his thinking flowed without a pause into consideration
of the other ways that liberty was threatened and other ways that the
commitment might be reinvigorated and secured. Once he had concluded that a federal veto was a necessary instrument of national supremacy, he saw immediately that the reintroduction of this power
might permit the general government to intervene as guardian of
private rights whenever these were threatened by majorities within
the states. Acting as an umpire over the contentions of state factions
(though without directing their decisions), the reconstructed central
government might rescue democratic rule from its excesses and
revivify the faith that popular self-government could be combined
with justice. If Revolutionary principles proclaimed that such enormous powers were unsafe when trusted to a single-chamber Conopens of rendering the republican form competent to its purposes. Those who remain
attached to the latter form must soon perceive that it cannot be preserved at all" unless
its current ills are overcome. Compare, to Edmund Pendleton, ibid., 294-95; to Randolph, ibid., 299.
34. To Jefferson, March 19, ibid., 318.
35. The letters to Jefferson, Randolph, and Washington all insist on both of these
points.
20
THE POLITICAL SCIENCE REVIEWER
gross, Revolutionary precepts also ruled that the people could distribute power as they pleased-and were, in fact, the only agency that
could reduce the powers of the states. A principled consideration of
the crisis of the union argued, on the one hand, that liberty would not
endure unless the central government was given powers that demanded its reordering as a republic. It suggested, on the other, that
the general government, if thus transformed, could safely act to ease
the economic suffering responsible for legislation inconsistent with
morality and justice, could be given taxing powers equal to its needs,
and thus could work in a variety of ways to reconcile the few who had
already faltered while the body of the people were still firm in their
republican convictions."
Madison's own faith in democratic rule had been severly tested,
during years in the Virginia legislature, as he battled schemes for tax
support for teachers of religion, struggled unsuccessfully to revise
Virginia's constitution, and became increasingly revolted by poorly
drafted, inconsistent legislation, including measures (passed or
threatened) which were meant to shield majorities from economic
troubles by infringing private rights or by postponing taxes necessary
for the state to keep its promises and meet its federal obligations.
These experiences had carried him into the sharpest, deepest crisis of
his long career-not just because he often lost these battles, but
because such legislation forced a reconsideration of commitments he
himself had undertaken early in the Revolution. In his words, the
authors of the early Revolutionary constitutions had assumed-and so
had he-that the majority of people are "the safest guardian both of
public good and of private rights." 37 "A provision for the rights of persons," he recalled-for rule by a community of independent equals"was supposed to include of itself - protection
for the rights of prop 38
erty and for the long-term, common good. Experience had shown,
however, that these early Revolutionary maxims were imperfect.
36. The thought that an extension of the sphere of republican government might
become a republican remedy for republican ills thus emerged originally as a corollary
and defense of the idea of a federal negative, which was to be the instrument for
defeating majority abuses in the states. Excellent on this and several other points is
John Zvesper, "The Madisonian Systems," Western Political Quarterly, 37 (1984), 23656.
37. "Vices of the Political System," PJM, 9:354.
38. "Observations on Jefferson's Draft of a Constitution for Virginia," 1788, ibid.,
11:287-88.
TIME DYNAMICS OF THE CONSTITUTIONAL CONVENTION
21
"What we once thought the calumny of the enemies of republican
government," he would tell the Constitutional Convention, "is undoubtably true": an interested majority can endanger natural liberties
that governments are instituted to protect; the rule of the majority is
not invariably consistent with30society's considered interests or with
the rights of all its members.
There could be no greater error, though, than to suggest that
Madison's republican convictions had not passed this test, or even
that he thought that some of the ideals of 1776 would have to be
severely compromised in order to preserve the others. If Madison
was disillusioned, he was never disenchanted, and we need to emphasize both sides of his conclusion for a balanced understanding of
his contributions. Others were inclined by the experiences of the
1780s to reject the early Revolutionary maxims altogether, to Madison's profound alarm. He never did. He never came to think that any
agency except the body of the people could be trusted with the
public good. He never came to doubt that liberty defined as private
rights (or "justice") is ultimately inseparable from liberty defined as
majority control. Nevertheless, his growing recognition of the difficulties always present in the effort to combine democracy with
private rights, the will of the majority with long-range public needs,
became increasingly apparent in his changing thoughts about reform
of the Virginia constitution or about provisions for a new one for Kentucky. 40 Here, without abandoning his Revolutionary fear that governmental officers are always tempted to escape their duty to the
people, he showed himself increasingly inclined to favor measures
meant to temper the majority's demands with wisdom and with new
protections for the rights of the propertied few. He pinned his hopes
particularly (and once again, conventionally) on an upper house that
would be chosen indirectly or by freehold suffrage. This did not completely (or consistently) resolve the problems posed by his commitment to equality as well as private rights, which helps explain his fascination with enlargement of the size of the republic and his stubborn
dedication to the deus ex machina of a federal veto on state laws. But
he did insist increasingly on constitutional devices meant to counteract these tensions, and this insistence plainly found its way into the
'
"
"
39. Rufus King s notes on the debates, RFC, 1:108. See also Vices, PJM, 9:353-54.
"Observations on Jefferson' s
To
Caleb
Wallace,
Aug.
23,
1785,
PJM,
8:350-57;
40.
Draft," ibid., 11:281-94.
22
THE POLITICAL SCIENCE REVIEWER
Resolutions of May 29. Under the Virginia Plan, the lower house
would be elected by the people, the upper by the first from persons
nominated by the states. These resolutions did not merely aim to
make the powers of the central government coequal with its duties.
They proposed, as Madison had put it early in the year, "to perpetuate
'>41
the union and redeem the honor of the republican name
First Successes, First Defeats
Between May 30 and June 13, the Constitutional Convention conducted a complete consideration of "Randolph's Resolutions." During these two weeks, a brilliant group of delegates from Pennsylvania
and Virginia developed a compelling case for radical reform, building
on, but moving rapidly beyond, the insights Madison had reached
before the meeting. Distinguishing between a "national " government and one "merely federal," 42 they argued that the central
government could never prove effective if the states retained the
power to ignore or countermand its acts, but that a federal power of
coercion would entail a constant threat of war between the union and
its members. The inescapable necessity, these "nationalists" maintained, was to abandon the unworkable idea of a government over
governments, a sovereignty over sovereignties, and give the central
government the means to act directly on the individual members of
society. Revolutionary principles required, however, that a central
government possessing the authority to reach the people's lives and
purses would have to represent its citizens immediately and fairly.
Given the necessity for larger, more effective federal powers, the
traditional equality between the states would have to be abandoned
in order to preserve equality among the people and majority control.
Under the Virginia Plan, both houses of the legislature were to be
apportioned according to the numbers of the free inhabitants or to
the contributions of the states. 43 Madison regarded this provision as
41. To Pendleton, Feb. 24, ibid., 9:295. My italics.
42. These distinctions originated in the Convention on May 30 in remarks by Gouverneur Morris and George Mason. See RFC, 1:34.
43. Madison believed that population was the fairest test of wealth and was responsible for including in the congressional recommendations of 1783 an amendment that
would have based federal requisitions on population (counting slaves as 3/5 of whites)
instead of on the value of lands. The Virginians knew that their proposals would revive
the ancient arguments between the North and South over methods of assessing lands
and counting slaves. Little guesswork is involved in suggesting that the phrasing of the
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
23
obviously "just," by which he meant consistent with equality and standard rules of representation. He reasoned that the northern states
would readily approve, because they had the larger population, while
the southern states would be attracted by the rapid shift of population
to the South and West." He considered the provision absolutely
necessary to persuade the larger states to part with portions of their
power, and he was certain that the smaller states would be compelled
to go along if all the large ones were agreed. He discovered, as we
know, that members from the smallest states were adamant against
the change, while many other delegates were dubious about a plan
that promised to erect a stronger central government on greater popular control.
The first two weeks of the Convention seem most helpfully described as an initial exploration during which a complicated pattern
of divisions rapidly emerged within a framework of evolving general
understandings. Through these days, Madison was learning even as
he guided and instructed. He had entered the Convention, we have
seen, convinced that clearer definition of the central government's
responsibilities was not the most important task, and he refused to let
the meeting be distracted by this issue. On May 31, South Carolina
moved for an immediate enumeration of the legislative powers.
Madison opposed the motion, not because he was opposed to an enumeration, but because he was determined that the delegates should
focus, first, on structural and operational reform 4 5 His early interven-
resolution was intended to demand proportional representation while postponing the
inevitable battles over what "proportional" would mean. Note also the additional suggestion that requisitions were still assumed to be required.
44. See the pre-Convention letters to Jefferson, Randolph, and Washington. For the
pervasive current agreement that the weight of population was shifting rapidly into the
South and West (and for the special role of this assumption in Madison's own thinking),
see Drew R. McCoy, "James Madison and Visions of American Nationality in the Confederation Period: A Regional Perspective," in Beyond Confederation: Origins of the
Constitution and American National Identity, ed. Richard Beeman et al. (Chapel Hill,
N.C., 1987), 226-58.
45. RFC, 1:53. Butler had asked Randolph to explain the extent of the meaning of
resolution 6, and Randolph "disclaimed any intention to give indefinite powers to the
national legislature." Madison "said he had brought with him into the Convention a
strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the national legislature, but had also brought doubts concerning its practicability. His wishes remained unaltered, but his doubts had become stronger. What his
opinion might ultimately be he could not yet tell. But he should shrink from nothing
24
THE POLITICAL SCIENCE REVIEWER
lions in debates were aimed almost exclusively at heading off disputes on more specific matters until the meeting could define some
.common ground." The Convention quickly fell in line with this approach, moving through the fifteen resolutions rapidly by simply
passing over any that produced or threatened serious contentions.
The strategy was quite successful. The Virginia Plan was only a preliminary outline of a finished constitution. It did not specifically
define which powers were beyond the competence of individual
states. It embodied inconsistencies that Madison had carried with
him to the meeting. It barely sketched some of the leading features of
a sound republic-not even indicating, for example, whether the ex ecutive should be a council or a single man. But as his allies helped
develop a persuasive case for radical reform, stressing that a "national" government would act consistently upon the people, Madison and
the entire Convention could imagine more concretely how the central government might wield effective power without relying on or
trying to coerce the states. The outline introduced at the beginning
speedily assumed a more substantial shape, filling for the most part as
the democratic nationalists desired. On May 31, with only two states
voting no, the gathering approved the popular election of the lower
house. James Wilson led a winning struggle for a single chief executive. It was soon apparent that a large majority of delegates approved
the substitution of a complex and authoritative central government
for the present, feeble, unicameral regime.
Intellectually outclassed by men like Madison and Wilson, lacking
an alternative to the Virginia Plan, most members from the smaller
states squirmed silently through the Convention ' s early days. Yet as it
grew more difficult to make the small decisions while the more important disagreements continued unresolved, opponents in the
smaller states discovered partial allies in the individuals or delegations who were most concerned about excessive central power or
who feared that the Virginia Plan allowed for more participation by
which should be found essential. " The phrase I have italicized bears stressing, together
with the tactical objective of the moment, since many analysts emphasize Madison's
doubts and interpret him as an opponent of enumeration. Later in the meeting, as will
be discussed below, Madison proved the Convention's leading advocate of strict,
though full, enumeration.
46. There are several indications that this was Madison's approach and that the speech
just cited should be put into this context. Consider, for example, the maneuvers of May
30 (ibid., 35-37).
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
25
the people than the people were equipped to make in national affairs.
Though Randolph's Resolutions weathered the Convention's first examination fundamentally intact, the nationalists encountered mounting opposition and suffered two significant defeats.
The Virginia Plan provided for election of the senate by the lower
house from persons nominated by the states. On June 7, over loud
complaints from Madison and Wilson, majorities in every delegation
defeated this proposal in favor of direct election by the states. 47
Madison was deeply disappointed. He had seen before the meeting
opened that the states' pernicious "intervention" in the federal
sphere could be defeated partly by excluding them from their direct
participation in the choice of federal officials. He had heard James
Wilson say that he preferred "to derive not only both branches of the
legislature from the people, without the intervention of the state
legislatures, but the executive also, in order to make them as independent as possible of each other as well as of the states.' Though
Madison could not agree, as yet, to popular election of the other
branches, sharing the majority's opinion that this might render them
unable to defend minorities or to resist the people's whims, he
decidedly concurred with Wilson that he wanted to avoid "too great
an agency of the state governments in the general one."49 Fearing
that selection of the senate by the states could build into the system
just the flaw that was destroying the Confederation, he also saw that it
must either reinforce demands for equal voting, which would be an
"inadmissable" inequity, or else produce an upper house whose
membership would be too large to give the government the "coolness," "wisdom," and "stability" expected from a senate.'
47. Nearly everyone agreed that the selection of the senate by the lower house might
give the lower chamber an overweening influence, while few were willing to entrust
election of the upper directly to the people, as Wilson recommended. Doubting that
the people were equipped to make a fit selection or insisting that a senate chosen in
this way would prove unable to defend minorities against majority demands, many
members saw election by the local legislatures simply as a lesser evil. Many others,
though, including several delegates from larger states, were forcefully impressed by
the insistence of John Dickinson and Roger Sherman that selection by the local
legislatures could collect the sense of states as states, assure a federal harmony, and
offer firm securities against potential national usurpations. See, particularly, the
speeches of Dickinson, Sherman, and George Mason on June 6 and 7, ibid., 133, 13637, 155, together with Dickinson 's " Letters of Fabius," ibid., 3:304.
48. June 1, ibid., 1:69.
49. June 6, ibid., 134.
50. June 7, ibid., 151-52, 154.
26
THE POLITICAL SCIENCE REVIEWER
This defeat, however, was immediately followed by another, which
was even more severe for the Virginian. On June 8, Madison supported a proposal to extend the federal negative to cover all state
laws, which is what he had preferred from the beginning. 51 He would,
in fact, appeal repeatedly for this provision through the weeks ahead,
believing even at the close of the Convention that the veto was a better instrument than federal courts for overturning local legislation
harmful to the union-and, of course, the only tool with which the
federal government could intervene directly to protect minorities
against majority transgressions of their rights. 52 From early in the
meeting, Madison had pleaded with the other delegates to recognize
that they were not assembled merely to repair the defects of the
union. It was also necessary, he insisted, to provide more certainly
"for the security of private rights and the steady dispensation of justice." "Interferences with these," he said, "were evils which had more
perhaps than anything else produced this convention." 53 The argument was powerfully effective. In the end, it won the war, for the
Convention did propose a democratic remedy for democratic ills,
both by designing an enlarged republic consciously intended to avoid
the errors of the early Revolutionary constitutions and by placing prohibitions on the sorts of local legislation Madison especially condemned. 54 But while the great majority approved of the Virginian's
ends, they disapproved his means. He lost the battle to extend the
veto, 7 states to 3, and the Convention later voted to dispense with it
entirely, preferring to rely upon the federal courts to overturn statess
legislation inconsistent with the Constitution or with federal laws.
The easy part was over. On June 9, New Jersey ' s delegates de"
"
51. Ibid., 164. Here, again, Madison called the negative the mildest expedient
necessary to defend national supremacy, prevent disputes between the states, and protect "the weaker party" from majority oppressions.
52. See, for example, his speech of July 17, ibid., 2:27-28. For his position at the end of
the Convention and his fullest explanation of the federal veto see Madison to Jefferson,
Oct. 24, PJM, 10:205-20.
53. June 6, RFC, 1:134. See also the speech of June 19, ibid., 318.
54. Madison's own record of the June 6 speech has him referring to enlargment of the
sphere as "the only defense against the inconveniences of democracy consistent with
the democratic form of government" (ibid., 134-35). He usually referred to "republican" rather than "democratic " forms of government, but a rigorous distinction between
these terms was not especially common until he made it a strategy of The Federalist.
55. Madison recorded Randolph and Mason voting against extension of the negative
on June 8 (ibid, 168). I think it certain that the two eventual non-signers were responsible for the limitation of the power in the resolutions of May 29.
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
27
manded an immediate decision on apportioning the Congress, with
William Paterson insisting that ten of the thirteen states would never
ratify a plan that would subordinate them all to Massachusetts,
Pennsylvania, and Virginia. On June 11, the Convention overwhelmingly approved proportional representation in the lower house
(7-3-1). But this impressive victory for the initial resolutions was
followed by a very close one on the senate, where Roger Sherman's
motion for equality was narrowly rejected, 6 to 5. 56 Two days later, the
Committee of the Whole reported Randolph's Resolutions to the
House, but the Convention then immediately adjourned in order to
permit the mounting opposition to develop an alternative proposal.
And although the small-state/anti-nationalist alternative to the Virginia Plan, Paterson ' s New Jersey Resolutions, was quickly and
decisively rejected, even optimistic nationalists resigned themselves
to a campaign that promised to extend throughout the summer. 5 7
John Dickinson suggested privately-and firmly-that Madison
would fail entirely to secure the stronger government he wanted unless he would concede the smaller states an equal vote in one branch
of the Congress. 58
The Battle Over Representation
As the Convention entered on the great debate that culminated in
the famous compromise between the big and little states, Madison
resisted Dickinson's suggestion with increasing stubbornness and
passion. "He was much disposed," he said, "to concur in any expedient not inconsistent with fundamental principles that would
remove the difficulty concerning the rule of representation. But he
could neither be convinced that the rule contended for was just, nor
necessary for the safety of the small states against the large." 59 "He
admitted that every peculiar interest, whether in any class of citizens
or any description of states, ought to be secured as far as possible." He
had even been considering a rule that would assure the North and
South that each would dominate one house of Congress, for
56. Ibid., 200-2.
57. Less than three full days of arguments comparing the two plans, including
Hamilton's day-long speech of June 18 and Madison's remarkable summation on the
following morning, were needed before the Convention voted 7-3-1 to adhere to Randolph's Resolutions.
58. June 15, RFC, 1:242.
59. June 28, ibid., 446.
28
THE POLITICAL SCIENCE REVIEWER
"wherever there is danger of attack, there ought to be given a constitutional power of defense.j 60 But the smaller states, he said, had no
distinctive interests simply as a consequence of being small, no
reason to expect a combination of the larger. Massachusetts, Pennsylvania, and Virginia were as different as could possibly be wished "by
the most jealous citizen of the most jealous state. In point of manners,
religion, and .. staple productions, they were as dissimilar as any
three other states in the union. "61
State equality, moreover, would infringe the "fundamental principles " of equity and majority control. To give "unequal portions of
the people" equal voices in the upper house would give a small
minority the power to defeat legitimate majority desires. It would enable them to use this power to extort concessions on a host of other
matters. Madison insisted that an equal senate was "confessedly unjust ." It would exaggerate the North 's superiority of population and
perhaps perpetuate a sectional imbalance that was tending otherwise
toward equilibrium with every passing day. It would " infuse mortality
into a Constitution which we wished to last forever, " for the upper
house, on such a plan, would be no better than "another edition of
[the Confederation] Congress," "absolutely dependent on the
states." "I would compromise on this question if I could do it on correct
principles," Madison repeated, "but otherwise not. If the old fabric of
the Confederation must be the groundwork of the new, we must fail 62
Compromisers, nevertheless, were seizing the direction of the
meeting. At the beginning of July, another motion for an equal senate
deadlocked the Convention. Madison and Wilson were the only
members to oppose appointment of a grand committee to resolve the
impasse, sensing that the tide was turning irresistably toward the construction of a bargain. And, indeed, it was. Selected by a ballot, the
committee was composed exclusively of leading spokesmen for the
smaller states and large-state men who had most clearly signalled
their commitment to accommodation &3
Madison persisted stubbornly in trying to reverse the current. Two
of his Virginia colleagues, Randolph and George Mason, thought that
the committee's compromise proposal held a valuable concession
from the smaller states. In exchange for equal voting in the senate,
60. June 30, ibid., 486-87.
61. June 28, ibid., 447.
62. This paragraph is an amalgam of the speeches of June
Quotations are at ibid., 1:464, 476, 490; 2:9-10.
63. July 2, ibid., 510-16.
29, June 30,
and July
14.
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
29
opponents would accept proportional representation in the lower
house and agree to bar the senate from amending or initiating money
bills.64 To Madison (or Wilson), though, this supossed "concession'
was worse than none at all. It would prevent the senate from contributing consistency and coolness to a vital class of legislation, but it
would not prevent minorities from blocking necessary measures or
manipulating their position in the senate to compel majority concessions on a host of other things."
Madison was clearer now than he had been when the Convention
opened as to how to solve the problems he perceived. The Virginia
Plan suggested, from the start, that an effective central government
might be constructed partly by removing the state legislatures from
their current, equal role in making federal decisions and by destroying their capacity to rejudge federal acts. But the Virginia Plan did
not consistently project a system of concurrent state and general
governments, each of which would rise entirely from and act consistently upon the individual members of society. Madison had entered
the discussions willing to concede the states a very minor role in
choosing federal officials, and he had entered them anticipating that
the states would have a larger part in executing federal decisions. At
the beginning of July, he still desired a federal negative on local
legislation, which would operate directly on the states as states and
even make the national government "a branch of the state legislatures."'' But while he still believed that there should be a power to
prevent the states from taking independent actions inconsistent with
their federal duties or with private rights, the concept of concurrent
governments was clear enough by now that he no longer thought that
state cooperation would be necessary for enforcement of federal
laws. As early as May 31, he had dropped the clause providing for a
federal power of coercion, and he had grown increasingly determined to exclude the states from any role in choosing federal officials.
He had become a more consistent "nationalist" in this respect than he
had been at the beginning of the meeting. Therefore, he denounced
the earlier decision for election of the senate by the states and drew
the line inflexibly on an equality of voting.
64. The Convention's subsequent decision to permit the senate to amend money bills,
together with the North-South compromise permitting a majority to make commercial
regulations, were undoubtedly the leading sources of Mason's and Randolph's decisions not to sign. I have discussed this matter at length in "Virginia: Nation, State,
and Section. "
65. See especially the speech of July 5, RFC, 1:527.
30
THE POLITICAL SCIENCE REVIEWER
Madison's rigidity on this important issue was not as inconsistent as
it may appear with his conviction that the future of humanity might
be determined by the Philadelphia Convention, or even with his
reputation as a skillful parliamentary tactician. The Virginian was as
dedicated to a thoroughly republican regime as to a lasting federal
union, and nearly all of his concerns seemed vitally affected by this
issue. An equal senate violated democratic principles, endangered
the "perpetuation" of union, and threatened the essential interests of
Virginia and the South. Moreover, Madison was not the weak-kneed
politician of the myth. He knew that legislative victories occasionally
called for a successful game of "chicken." He believed, not only that
the smaller states would blink, but also that the larger ones might have
to stare them down in order to complete a plan that would be ratified
by states that were essential to its ultimate adoption.
It had been said, said the Virginian, that the union should continue
"partly federal" in structure, and that an equally apportioned senate
67
might embody and protect its federal features. "If there was any
solidity in this distinction, he was ready to abide by it." But Madison
had changed his views sufficiently since the beginning of the meeting that he now saw no solidity in this distinction. As modified by the
Convention to this point, the plan he was supporting would operate
"
in every instance "on the people individually. "The practicability of
making laws, with coercive sanctions,
68 for the states as political bodies,
had been exploded on all hands."
Madison was willing, he had said, to violate proportionality so far as
to concede each state at least a single member in the senate. 6 ° He was
willing to consider other measures that might temper members' fears
70
for the specific interests of their states. If this was not enough,
however, he believed that the Convention was compelled to choose
between "departing from justice in order to conciliate the smaller
states and the minority of the people of the U.S. or . displeasing
these by justly gratifying the larger states and the majority of the peo66. June 28, ibid., 447.
67. Most recently by Oliver Ellsworth, who was putting the Connecticut position in
the language of an ultimatum (ibid., 468).
68. July 14, ibid., 2:8-9. This was Madison's final plea before the vote that carried the
famous compromise on July 16.
69. Earlier on July 14; ibid., 5.
70. Speech of July 14, ibid., 8. Here Madison suggested that if the government was to
be partly national and partly federal, the proper compromise would have the states
vote equally in cases where the central government would act on states and proportionally in cases where it would act on the people.
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
31
pie." For himself, he had no doubts about the proper option. "It was in
vain to purchase concord in the Convention on terms which would
perpetuate discord among their constituents. " The Convention, he
insisted, should "pursue a plan which would bear the test of examination" on its merits. It should put aside the fear "that the people of the
small states would obstinately refuse to accede to a government
founded on just principles and promising them substantial protection. " " If the principal states, comprehending a majority of the people
of the U.S., should concur in a just and judicous plan, he had the firmest hopes that all the other states would by degrees accede." 71
Madison opposed the Connecticut Compromise to the end. And
when the large states caucused in the aftermath of their defeat, he
was undoubtedly among the number who, "supposing that no good
government could or would be built on that foundation, . . . would
have concurred in a firm opposition to the smaller states and in a
separate recommendation, if eventually necessary." Few large-state
delegates, however, were willing to continue with this game. "The
time was wasted," Madison complained, "in vague conversation on
the subject." All the members from the larger states returned to the
Convention, and the smaller states were satisfied from that point on
that there would be no effort to reverse the critical decision. 72
The Character of Madison's Commitments
For Madison, the bargain of July 16 was a tremendous blow. Along
with the excision of the federal negative, it was unquestionably the
major reason why he wrote, at the conclusion of the meeting, "I
hazard an opinion . . . that the plan . . . will neither effectually answer
its national object nor prevent the local mischiefs which everywhere
excite disgusts." 73 His discontent was so profound and had so many
71. July 5, ibid., 1:527-29.
72, July 17, ibid., 2:19-20. On July 10, Randolph had communicated to Madison a plan
intended to conciliate the small states by granting an equal vote in the senate on certain specific matters and by incorporating other provisions that would give all the states
additional assurances for the protection of their specific interests (ibid., 3:55-56).
Madison suggested in the speech of July 14 that some such arrangement might be
proper if the Convention was bent on a partly national, partly federal system. Madison's
position to this point, together with the language of his record of the large-state caucus,
is the basis for my guess that he preferred to return to the Convention and confront the
small states with an ultimatum demanding an alternative compromise along these
lines.
73. To Jefferson, Sept. 6, PJM, 10:163-64.
32
THE POLITICAL SCIENCE REVIEWER
sources that many able analysts have followed Irving Brant, his principal biographer, in seeing it as possibly the most important watershed
in his career. The small-state triumph, they have said, initiated a
retreat from an expansive view of federal powers which originated in
the second half of the Convention and culminated in the strictconstructionist and states'-rights stance of the Virginia Resolutions of
1798." I know that there appears to be substantial evidence for this
opinion. I nevertheless believe that it is off the mark. It opens with a
misinterpretation of Madison's position in the years before the meeting and ends in a misunderstanding of the 1790s. 75 More relevant to
present purposes, however, it produces a mistaken, very partial comprehension of his role and contributions during both halves of the
Constitutional Convention.
Madison did certainly initiate and help to lead a "nationalist" offensive at the Philadelphia Convention. He entered the deliberations
seeking national supremacy wherever national interests were involved, Influenced by his allies in the battle with the smaller states,
he came to be increasingly convinced that such authority demanded
the complete exclusion of the local legislatures from a role in choosing federal officials or executing federal commands. Like Wilson, he
opposed the critical decisions on the senate both because they
seemed unfair to Pennsylvania or Virginia and because he knew that
they were consciously intended, by many on the other side, to build
"
state agency " into a "partly federal " system. No one said more
clearly that the ruling of July 16 required that everyone adjust to a
decision that the new regime would not be wholly "national" in structure. No one found this harder to accept.
Later in his life, however, Madison repeatedly objected to the supposition that the term national," as applied in the early stage of the
74. Brant, James Madison, 3: The Nationalist, chaps. 1-12, is the fullest and most influential study of the Virginian's course at the Convention. There and in his condensation of the larger study, The Fourth President: A Life of James Madison (Indianapolis,
1970), 170-74, Brant maintains that the Connecticut Compromise "affected at once his
attitude toward federal powers," determining him to favor an enumeration over a
broad grant of legislative authority and initiating the reversal that would mark the
1790s. Ketcham, 215, endorses this interpretation, which is certainly the dominant
opinion: "Madison's nationalism . reached its peak during the weeks when it seemed
likely representation would be according to population"; after the large-state caucus,
he "became more cautious about the powers granted to the general government "
"
75. For more on this see my articles "James Madison and the Nationalists and "The
"
Hamiltonian Madison: A Reconsideration, Virginia Magazine of History and Biography, 92 (1984), 3-28.
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
33
Convention, . . . was equivalent to unlimited or consolidated." It was
used, he wrote, in order to distinguish the emerging system from the
current `federal government," which rested on the states instead of
on the people.' During his retirement the framer also had occasion
to deny that the Virginia Plan's initial, vague description of the reach
of national powers was ever "meant to be inserted in . . . the text of
the Constitution." A definition or enumeration of these powers, he insisted, "was to be the task of the Convention." "If there could be any
doubt that this was intended and so understood by the Convention, it
would be answered by the course of the proceedings.'
Madison was quite correct in issuing these warnings. There was
never any serious division at the Constitutional Convention over
whether, as opposed to when, the members should attempt a clearer
definition of the legislative powers.' a Like Madison himself, the overpowering majority of members intended, from the first, "to draw a
line of demarcation which would give to the general government
every power requisite for general purposes, and leave to the states
every, power which might be most beneficially administered by
them. 79 For all the framer's warnings, though, both errors have per sisted, and thus we often find it said that in the early phase of the
Convention, Madison was willing to pursue consolidation nearly to
the point of turning states into the counties of a single great republic,
reversing his position only when defeated on the senate. This has
been suggested even though the speeches always cited to support
76. Madison to Andrew Stevenson, March 25, 1826, RFC, 3:473-74. See also Madison
to N.P. Trist, Dec. 1831, in The Writings of James Madison, ed. Gaillard Hunt, 9 vols.
(New York, 1900-1910), 9:474-75.
77. Madison to Robert S. Garnett, Feb. 11, 1824, Writings ofJames Madison, 9:176-77;
Madison to John Tyler, 1833, in RFC, 3:526-29.
78: Several major studies of the meeting suggest that the Convention saw a substantive
.division over whether there should be a broad grant of legislative powers or an enumeration (e.g. Jensen, 48, 66-67, 72-73, 80; McDonald, 238, 267). Others are ambiguous,but might be read this way (Warren, 163-64, 314-15, 388-89, 548-49; Rossiter,
208-9, 250). Despite Madison's late-life statements and his and Randolph's statements
of May 31, the usual assumption is that the Virginia Plan envisioned a broad grant, but
that the Committee of Detail decided on an enumeration. A separate article would be
required to demonstrate persuasively that the Convention never considered a broad
grant rather than an enumeration, but divided only over whether to postpone a definition of the specific scope of national powers to a later point. The reader, however,
should carefully examine the proceedings of May 31, (RFC, 1:53-54, 56, 60, 61) and
July 16-17 (ibid., 2:17, 25-27). It should also be noted that when the Committee of
Detail advanced an enumeration, no one asked why it had done so.
79. To Jefferson, Oct. 24, 1787, PJM, 10:208.
34
THE POLITICAL SCIENCE REVIEWER
this view also say in passing that he sought a "mixed" regime, that he
intended to "preserve the State rights, as carefully as the trials by
jury." S0 It has been suggested even in the face of his determination,
when the meeting finally attempted an enumeration, to leave as little
as he could to implication." Phrases lifted from their qualifying context are combined with Madison's insistence on the federal negative,
80. June 29, June 30, RFC, 1:463, 490. Two speeches are repeatedly quoted by authors
wishing to suggest that Madison "shared Hamilton ' s quest for a unitary central government" (Roche, 28). Both should be read more carefully and placed in their proper context. On June 21, William Samuel Johnson admitted that Madison and Wilson, unlike
Hamilton, "wished to leave the states in possession of a considerable, though a subordinate, jurisdiction." He challenged these nationalists, however, to explain how "the
individuality of the states" could be preserved and rendered safe if the states were not
to be able to defend themselves with "a distinct and equal vote" (ibid., 355). Madison
answered that the histories of all confederations showed that state encroachments on
the general government were actually the greater danger. But suppose, he said, for
purposes of argument, "that indefinite power should be given to the general legislature
and the states reduced to corporations dependent on the general legislature; why
should it follow that the general government would take from the states any branch of
their power as far as its operation was beneficial and its continuance desirable to the
people?" The national legislators would be representatives of the people. Insofar as
the general government could practicably "extend its care to all the minute objects . . of the local jurisdictions," its powers would not be improper or the people less
free. Insofar as it could not attend to these, the general government itself would wish
to maintain the subordinate governments. "Supposing therefore a tendency in the
general government to absorb the state governments, no fatal consequence could
result" (ibid., 356-58). In context, it is clear that Madison was not advocating an unli mited central government, which he plainly thought impracticable, but suggesting
that fulfillment of even the deepest fears of his opponents would prove less "fatal" to
liberty than a continuation of the "independence" of the states. (For just how "fatal" he
thought the latter would prove, the speech of June 29, which will be discussed below,
may profitably be read in close conjunction with this one.) Also frequently quoted are
remarks in the long speech of June 28: "The two extremes before us are a perfect
separation [or independence] and a perfect incorporation of the 13 states.... In the
first case the smaller states would have everything to fear from the larger. In the last
they would have nothing to fear. The true policy of the small states therefore lies in
promoting those principles and that form of government which will most approximate
the states to the condition of counties" (ibid., 1:449). Again, Madison was advocating
neither of the extremes he mentions. He was suggesting that the small states mistook
their own interests in insisting on a "federal" system and attempting to turn their fears
to his own advantage.
81. On August 18, Madison moved to refer a long list of additional grants of enumerated powers to the Committee of Detail. On Sept. 14, Benjamin Franklin wished
to add a congressional power to cut canals, and Madison urged extending this to permit
congressional creation of corporations. These actions have also commonly been seen as
powerful evidence of the great reach of his nationalism at the Convention. I believe
that, carefully considered, they are in fact among the clearest indications of its limits.
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
35
a proper emphasis on his determination to exclude the states from
federal decisions, and an excessive fascination with his argument for
an extension of the sphere to build a case that simply overrides his
early and repeated statements that he meant to find a "middle
ground" between state sovereignty and a consolidated system. Yet
Madison was always a determined "nationalist" only in his view of
how the new regime should work and be constructed, not in his opinion of the work it ought to do. It is impossible to place him at a single
point on any single spectrum of opinion. On the matter of state
agency within the federal structure, the Virginian was a radical extremist, standing at the end of one specific spectrum. On the matter
of the quantum of responsibilities that should be placed in federal
hands, he stood much closer to the middle of a different spread. And
in his conscientious dedication to a government that would accord
entirely with republican ideals, he stood far over toward an opposite
extreme from many of his closest allies in the battle with the smaller
states. From, first to last, he was a "nationalist" who thought that too
much power, placed in hands too distant from the people, might endanger Revolutionary ends. And not until we place an equal emphasis
on all of his commitments can we hope to reach a balanced understanding of the whole of his distinctive contribution to the
framing. 82
The powers he proposed to add in August were far from extensive. Several of thempower over a seat of national government, to dispose of western lands, to organize
western governments, and so forth-were so obviously required that I believe his motion makes it clear that he wished to leave as little to implication as possible. His motion
of Sept. 14 may be understood in similar terms. In moving for a power of incorporation,
he had internal improvements and perhaps another national bank primarily in mind.
Suggestively, King argued that the grant was unnecessary, probably hinting that it was
already implicit. Similarly, Gouverneur Morris suggested that the power to create a
university, another of Madison's desires, would be covered by the power over a seat of
government. See ibid., 2:324-25, 615. These maneuvers may profitably be considered
'
in conjunction with Madison s remark in Federalist No. 41, 270, that every omission
from the Constitution of grants of necessary powers would have become a ground for
"
necessary usurpations of power, every precedent of which is a germ of unnecessary
and multiplied repetitions. " See also Federalist No. 42, 280. Citations are to The
Federalist, ed. Jacob E. Cooke (Middletown, Conn., 1961).
82. It should be clearly said, since I do not desire to burn a straw man, that Brant,
Ketcham, and many other students of Madison and the Convention do insist on his
republican contributions. Besides works already cited see Martin Diamond, "Democracy and The Federalist: A Reconsideration of the Framers ' Intent, " American Political
Science Review, 53 (1959), 52-68; Robert J. Morgan, "Madison' s Analysis of the Sources
36
THE POLITICAL SCIENCE REVIEWER
Madison's positions did significantly change as a result of the decision of July 16. But they did not become less "national" than they had
been before the compromise occurred. The Virginian came to
Philadelphia determined to create a general government whose
powers would extend effectively to all those great and national matters that the states were individually incompetent to handle-those
and nothing more. Through the second half of the Convention, he
remained intent on this objective. He continued to support a federal
negative on all state legislation. 83 Unlike other southerners, he
favored power to impose a federal tax on exports. S4 He opposed insertion of provisions requiring more than a majority of Congress for the
passage of commercial
legislation or limiting the Senate's part in mak85
ing money bills. Near the close of the Convention, he moved to
place additional specifics on the list of the enumerated powers. I cannot, indeed, identify a single power that he wanted to withhold from
Congress after the Great Compromise but would have favored if the
outcome had been different. He did not reverse his course or change
his mind in any fundamental way about the business that the general
government should do. He still intended, as he always
had, to make
86
that government supreme within its proper sphere.
But while the compromise did not significantly change the framer's
vision of the proper reach of federal powers, it did immediately affect
his views about the way in which this power should be shared among
of Political Authority," American Political Science Review, 75 (1981), 613-25; Neal
Riemer, "The Republicanism of James Madison," Political Science Quarterly 69 (1954),
45-64; and Riemer, James Madison: Creating the American Constitution (Washington,
1986). Of all authorities, however, only Riemer and Zuckert approach a proper emphasis upon the limits of his nationalism, and neither detects the changes of mind that
Madison experienced in course of the Convention.
83. July 17, Sept. 12, RFC, 2:27-28, 589.
84. Aug. 16, Aug. 21, ibid., 306-7, 361. The former speech includes: " The Southern
States, being most in danger and most needing naval protection, could the less complain if the burden should be somewhat heaviest on them.... Time will equalize the
situation of the states in this matter. "
85. Aug. 29, Aug. 8, Aug. 13, ibid., 451-52, 224, 276-77. The speech of Aug. 29 is one of
the most revealing for Madison's differences from many other southerners in his judgment of who would control the new regime and in his vision of sectional integration,
which will be discussed below.
86. This is the sense in which I think that Madison was quite correct to say that "Candor discovers no ground for the charge that the Resolutions [of May 29] contemplated
a government... more national than that in which they terminated." See Madison to
Tyler, 1833, ibid., 3:529.
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
37
the different branches of reconstructed system.8 7 At the start of the
Convention, Madison had plainly seen the senate as the branch best
suited to control the passions of the people, to secure a place for wisdom and stability in the enlarged republic, and to guard against the
mutability, injustices, and multiplicity of laws which he identified as
major weaknesses of democratic rule. 88 At this time, the role that he
envisioned for the upper house contrasted sharply with his evident
uncertainty about the character and powers of a national executive.
His pre-Convention letters all suggest that he had formed no clear
ideas about the latter subject. The Virginia Plan suggested little more
than that a separate executive should be created, and Madison's own
notes recorded him as entering the earliest deliberations on this
branch only to suggest that a decision on the powers of the office
should precede a choice between a council and a single man. Rufus
King and William Pierce, however, wrote that Madison expressed a
fear that great executive authority could end in an "elective monarchy," recommending the construction of a council whose advice
could be ignored only at the peril of its head. 89 This was the provision
of Virginia's constitution, and it seems entirely likely that Madison
agreed with his Virginia colleagues, too, on legislative choice of the
executive and on a clause that would exclude its chief from serving
two successive terms. 9°
87. This accords with Schultz, 67-68, 73-74.
88. His most important speeches on the uses of a senate came on June 7 (RFC, 1:15152) and June 29 (ibid., 42'1-23). See also June 12 (ibid., 218): "What we wished was to
give to the government that stability which was everywhere called for and which the
enemies of the republican form alleged to be inconsistent with its nature." Once the
Convention decided on election of the senate by the state legislatures, Madison supported a term of up to 9 years, though he would have combined this with ineligibility
for reelection (ibid., 423).
89. Ibid., 66-67, 70, 74.
90. Though King and Pierce agree that Madison favored a single executive with a
council whose advice would not be absolutely binding, their accounts are hopelessly
contradictory on other points. Pierce says he was against ineligibility for a second term
(ibid., 74). King says he urged "7 years and an exclusion for ever after-or during good
behavior" (ibid., 71). A good-behavior term hardly seems consistent with King's own
account of Madison's fear of an elective monarch or with other things we know about
Madison's positions, but it seems entirely possible that Madison voted with his
colleagues against executive reeligibility during the Convention's early days. On June
4, he opposed a motion by Wilson and Hamilton to make the executive veto absolute,
then seconded Wilson's motion to associate the judiciary in the veto power. On June 5,
he agreed with Wilson that a legislative appointment of the judges was a bad idea, but
preferred appointment by the senate rather than the executive.
38
THE POLITICAL SCIENCE REVIEWER
The decision of July 16 struck Madison as inconsistent with majority control, a barrier to the pursuit of general interests, and a potential peril to the South. By this time, moreover, he was forcefully impressed by Wilson's argument that a responsible executive could only
be secured by concentrating the executive authority in the hands of a
single man, who must be independent of the legislature for his office. 91 Together, these considerations moved him steadily toward
strengthening this branch at the expense of the improperly constructed senate. As early as July 18, he favored an attempt to shift the
power to appoint the federal judiciary from the senate to the head of
the executive, acting with concurrence of a portion of the upper
house. Three days later, he was frank about his reasons:
The principle of [the great] compromise ... required ... that there
should be a concurrence of two authorities, in one of which the people, in the other the states, should be represented. The executive
magistrate would be considered as a national official, acting for and
equally sympathizing with every part of the United States. If the
second branch alone should have this power, the judges might be
appointed by a minority of the people, [though they would act
directly on the people rather than the states]. As it would, moreover,
throw the appointments entirely into the hands of the Northern
states, a perpetual ground of jealousy
and discontent would be fur92
nished to the Southern states.
Similarly, on August 23, he argued that the chief executive should
have a role in making treaties, as "the Senate represented the
states alone.'
Despite the rulings on the senate, Madison remained committed to
an upper house that could effectively restrain the lower 9 4 He did not
become a leading advocate of great executive vigor. He moved to
91. See Madison ' s speech of July 19, ibid., 2:56-57, where he favored popular election
over legislative choice. Wilson had consistently condemned provisions in the Resolutions of May 29 which made the lower house responsible for the election of the other
branches. He was certainly the meeting's foremost advocate of independently derived
and fully countervailing branches. No other member, I believe, influenced Madison
more.
92. July 21, ibid., 80-81.
93. Ibid., 392.
94. At the end of the Convention, he still called the senate "the great anchor of the
"
government (to Jefferson, Oct. 24, PJM, 10:209). The decisions for a six-year term, per
capita voting, and federal payment of salaries all contributed to his conviction that the
senators might still impart the principles he wanted from this body.
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
39
make it possible to make a peace without executive consent. 95 On
September 7, he supported Mason ' s motion to revive an executive
council96 Nevertheless, as he attempted to adjust his thinking to the
ruling that the government would still be "partly federal" in structure,
Madison was plainly more inclined to transfer more responsibilities to
truly "national" hands, as well as to imagine the executive as a completely equal, fully countervailing branch. His early reservations were
dininished, too, by his concern that even the combined resistance of
the president and judges might prove insufficient to defeat the
legislature's tendency "to absorb all power." "This was the real source
of danger to the American constitutions," he insisted, and it "suggested the necessity of giving every defensive authority to the other
departments that was consistent with republican principles." 97
Passage after passage from the records of the Federal Convention
strikes the reader once again with the intensity of Madison's revulsion at conditions in the states. Everywhere, he was convinced, experience had shown that all effective power tended to be sucked into
the legislative vortex, that legislative power tended to be concentrated in the lower house, and that the popular assemblies, when
unchecked, were dangerous custodians of private rights and public
good. He plainly wanted multiple impediments against a federal
replication of this problem. Thus, near the conclusion of proceedings,
he opposed the substitution of 2/3 for 3/4 as the majority required to
override a presidential veto. The purpose of the veto, he explained,
was to protect the president against encroachments on his powers
and to make it possible for the executive "to prevent popular or fac95. Sept. 7, RFC, 2:540. Madison's intentions were transparent here, and the defeat of
the motion initiated a suggestive series of maneuvers. War, he reasoned, was a certain
and familiar instrument of magisterial ambition, and the convention followed him so far
as to adopt a motion exempting treaties of peace from the requirement that 2/3 of the
senate would be necessary to conclude a treaty. Two Southerners, however, quickly
moved a clause providing that a 2/3 vote should still be necessary whenever territory
was involved. Doubtless recollecting his determined wartime efforts to protect
Virginia's Western claims (and with the Jay-Gardoqui battle surely also in his mind),
Madison confessed that it had been too easy to make treaties despite the current ninestate rule, joined with the majority to overturn his proposition, and followed with an
unsuccessful motion that a quorum of the senate should consist of two-thirds of all its
members (ibid., 547-49). Madison, as I suggest at greater length in " Virginia: Nation,
State, and Section," was not less dedicated to Virginia's interests than his two nonsigning colleagues; he simply calculated these a different way.
96. Ibid., 542.
97. July 21, ibid., 74.
40
THE POLITICAL SCIENCE REVIEWER
tious injustice." Experience had shown, he argued, that all the checks
attempted in the states were insufficient to defeat "legislative injustice and encroachments." 98
Here, however, it is crucial to revert again to Madison's original intentions and to call insistently for equal emphasis upon the other side
of his distinctive role at the Convention. For, by focussing excessively
on the Virginian's fear of popular majorities, as well as by confusing
his determination to erect a "national" system with a wish for a consolidated one, many studies leave a false impression of his overall
position. But passage after passage from the records also show that he
intended to restrain the legislature and the people only insofar as this
appeared to be consistent with republican commitments. Madison's
concern about a gradual revival of hereditary privilege was absolutely
literal in nature. He was bent upon perpetuation of the union because
he was convinced that the republican experiments that had been
started in the states could not endure without this shield. And he continued to define "republics," more than commonly is seen, in early
Revolutionary terms. "Liberty," as he conceived it, did require additional securities for private rights. But "liberty," in the Virginian's
usage, also denoted governments that would remain responsive to,
not merely governments elected by, the body of the people. Thus, the
same considerations that committed him to an effective general
government committed him, as well, against execessive concentration of authority in hands too distant from the people or imperfectly
familiar with their needs.
At the beginning of the Constitutional Convention, Madison insisted on the popular election of the lower house, and this was not exclusively because he wanted to prevent the states from making
national decisions. If the lower house were chosen by the states and
other branches built on that-a second option in his pre-Convention
letters-"the people, he observed, "would be lost sight of
altogether and the necessary sympathy between them and their
rulers and officers too little felt." He was an advocate; " he said, of
refining the popular appointments by successive filtrations," that is
of indirect elections, but thought it could be pushed too far." In
order to be durable and stable, the central government, he now insisted, would have to "rest on the solid foundation of the people
98. Sept. 12, ibid., 586-87.
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
41
themselves." 99 Early in July, in line with this position, the Virginian
moved to double the membership of the lower house, concerned that
65 would be too few to win the people's confidence or "to bring with
"loo
them all the local information which would be frequently wanted.
On September 8, he seconded another motion to enlarge the lower
house.'°' And he was adamant throughout the meeting on submission
of the Constitution directly to the people.
These motions and remarks are worthy of renewed attention, the
more so when we recollect that Madison and the majority of the Convention reasoned from assumptions that are not immediately apparent from a twentieth-century perspective. One of those assumptions was that in a national republic, as in all the states, the lower
house would have the leading role in writing legislation. On domestic
matters in particular, the House of Representatives would be the sails,
the other parts the anchors, of the ship of state. The lower house
would be the branch with which the people would especially identify, the branch they would instinctively support in any confrontation
with the others.
Multiple securities against encroachments by the lower house
were necessary, Madison believed, in part because he never doubted
that the House of Representatives would be responsive to the people.
Enlargement of the size of the republic could not possibly, in every
case, prevent a factional majority from forming; nor would it prevent
the people's representatives from advocating the majority's de sires. 102 But checks and balances were necessary, too, because majority excess had never seemed to Madison the only danger to
republics-not even in the Revolutionary states. Popular abuses, at
this moment, were undoubtedly his principal concern, yet he did not
forget that rulers can betray the people, that power can corrupt, that
legislators may prefer their personal ambitions to the people's
99. May 31, ibid., 1:49-50.
100, July 10, ibid., 568.
101. Ibid., 2:553.
'
102. Hamilton grasped this point immediately when he first heard Madison s great
speech in the Convention on enlarging the sphere. "The assembly, when chosen, will
meet in one room if they are drawn from half the globe," he jotted, and "paper money is
capable of giving a general impulse," that is, of creating a majority faction among the
people and thus in the national legislature (ibid., 1:146). The argument of Federalist
No. 10 collapses if representatives are not assumed to reflect the multiplicity of interests among the people. The clearest statement of Madison's assumption that they
would reflect the people ' s wishes may be Federalist No. 46, 318-19.
42
THE POLITICAL SCIENCE REVIEWER
needs, and that elected representatives might someday try to free
themselves from their dependence 3on the people in order to pursue
distinctive interests of their own.'°
The Constitutional Convention was not the proper time or place
for Madison to emphasize his fierce allegiance to early Revolutionary
maxims. He was in the midst of other former congressmen who
knew his ways of thought and often saw him as a bit too doctrinaire. In
order to secure the governmental vigor he desired, he was compelled
to form a temporary bond with men with whom he differed hugely on
other fundamentals. 1 " For all of this, however, Madison reiterated
time and time again-first in pre-Convention, private letters, then in
several of his speeches-that he was willing to concede no more to
governmental vigor and stability than Revolutionary precepts would
permit. He opened the Convention with a plan that was as conscientiously republican as national, and he was conscientiously concerned
throughout to see that the emerging system would remain consistent
with both goals.
Two episodes, I think, especially illuminate the special combination of republican with national concerns that Madison imparted
to the meeting. In the first, he stood with other Southerners, as he had
done so often in the Continental Congress, as a dedicated spokesman
for the West. As it became apparent that the smaller, Northern states
would win their battle for an equal senate, Madison's Virginia
colleagues pushed insistently for constitutional provisions for a periodic census and for clauses guaranteeing quick admission of and
equal treatment for new Western states, which everyone assumed
would help the South reverse the North's initial domination of the
Congress. Madison, moreover, had a very special interest in issues of
this sort, for his conception of an integrated nation was Western more
103. See "Vices of the Political System," PJM, 9:354.
104. I have discussed these differences at greater length in the essays previously cited.
I would add that Madison is sometimes easily misjudged unless we realize that he consistently assumed that his republican credentials were so obvious that there was little
need for him to flaunt them. A revealing episode occurred in the Convention on July
17, when Dr. James McClurg, in order to object to the executive reeligibility, moved a
tenure during good behavior. Randolph had appointed McClurg as Patrick Henry's
substitute in Virginia's delegation at Madison's particular suggestion, and Madison
rushed in immediately to save the novice's face. He was not, he said, "apprehensive of
being thought to favor any step toward monarchy" when he suggested that a "respect
for the mover" entitled the motion to a fair hearing "until a less objectionable expedient should be applied for guarding against a dangerous union of the legislative and
executive departments " (RFC, 2:33-35.)
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
43
than Southern in its flavor. The best security for the essential interests
of the planting states, as he conceived it, would be found in the
agrarian majority that would preponderate in nearly every region,
would constitute the bedrock of a sound republican society, and
would be steadily renewed by Western growth.'
Many Eastern delegates were thoroughly appalled when they envisioned an eventual predomination by the South and West, none of
them more vocally than Gouverneur Morris. On July 11, Morris urged
the gathering to leave the legislature free to apportion representation on a standard that would take account of wealth as well as
numbers, warning that a flood of poorer western states could ruin the
more developed east. Madison "was not a little surprised to hear this
implicit confidence [in representatives] urged by a member who on
all occasions had inculcated so strongly the political depravity of men
and the necessity of checking one vice and interest by opposing to
them another vice and interest." While Morris, he remarked, "recommended this implicit confidence to the Southern states in the
Northern majority, he was still more zealous in exhorting all to a
jealousy of a Western majority. To reconcile the gentleman with himself it must be imagined that he determined the human character by
the points of the compass." "All men having power,"
Madison inIO6
sisted, "ought to be distrusted to a certain degree."
Madison, contemporaries said, was notable for his remarkably good
temper. He never lost control. He answered his opponents as a friend
responds in private to another friend's mistakes. But Madison demolished Morris with a stinging wit that he would not have loosed on
others because he was disgusted by the Pennsylvanian's jaundiced
view of human nature and had had his fill of this urbane aristocrat's
unhidden anti-democratic inclinations. Madison's revulsion from
popular misrule was every bit as deep as any other member's, but so
were his convictions that the people had sufficient virtue to sustain a
totally elective system and that a people's government demands abiding vigilance against the irrepressible ambitions of even democratic rulers.
Several times in course of the Convention, Madison condemned
implicit confidence in rulers. Though he was willing to impose the
most elaborate restraints on the immediate desires of popular ma105. See his speech of Aug. 29, ibid., 451-52, and, more broadly, McCoy, "James
Madison and Visions of American Nationality. "
106. RFC, 1:584.
44
THE POLITICAL SCIENCE REVIEWER
jorities, he nevertheless assumed that, once these checks had been
applied, the product of successive distillations of the people's will
must still reflect the wishes of the greater number. And although he
feared that unrestrained majorities could undermine democracy itself, he was determined that the government would always be responsive to the body of the people. The constitutional machinery of
checks and balances was meant, from his perspective, as an added
guarantee against majority abuses, but it was also an auxiliary assurance that elected representatives could not pursue distinctive interests of their own. "In all cases where the representatives of the
people will have a personal interest distinct from that of their constituents," he argued, "there was the same reason for being jealous of
them as for relying on them with full confidence when they had a
common interest.'' 107 Popular election was the first and most important bond between the rulers and the ruled, but the Convention also
needed to be sure that rulers, once elected, could never free themselves from their dependence on the people or from the community
of interests with the people that elections were supposed to
forge.'"
A second incident, I think, was even more revealing of this other,
deeply Revolutionary side of Madison's distinctive role at the Convention. Of all his speeches, I believe, the most impassioned was his
final, eloquent appeal against John Lansing 's motion to restore
equality of voting in the lower house. Madison
entreated the gentlemen representing the small states to renounce
a principle which was confessedly unjust, which could never be admitted, and if admitted must infuse mortality into a Constitution
which we wished to last forever. He prayed them to ponder well the
consequences of suffering the Confederacy to go to pieces... Let
each state depend on itself for its security, and let apprehensions
arise of danger from distant powers or from neighboring states, and
the languishing condition of all the states, large as well as small,
107. Aug. 10, ibid., 2:250.
108. For these points see also the speeches of July 26 (ibid., 2:123-24) and Aug. 7
(ibid., 2:203-4). In the first, Madison opposed a landed-property qualification for
legislators because it was politic as well as just that the interests and rights of every
class should be duly represented and understood in the public councils." In the second, which embarassed him as he grew older, he praised a freehold suffrage for the
franchise; but he particularly opposed suggestions that the suffrage should be left to
the legislature to determine. "A gradual abridgement of this right has been the mode in
which aristocracies have been built upon the ruins of popular forms."
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
45
would soon be transformed into vigorous and high-toned governments.... The same causes which have rendered the Old World
the theatre of incessant wars and have banished liberty from the
face of it would soon produce the same effects here. [The smaller
states would] quickly introduce some regular military force against
sudden danger from their powerful neighbors. The example
... would soon become universal. [Great powers would be granted
to executives.] A standing military force, with an overgrown execu
tive, will not long be safe companions to liberty. The means of
defense against foreign danger have always been the instruments of
tyranny at home. Among the Romans it was a standing maxim to excite a war whenever a revolt was apprehended. Throughout all Europe the armies kept up under the pretext of defending have enslaved the people. 109
This was not a new idea for Madison, nor did the higher-flying
nationalists in the Convention miss the implications of the thought
that standing armies and a vigorous executive were incompatible
with freedom. It is seldom noted, but a fact, that Alexander Hamilton
was on his feet immediately to second Madison's appeal against
equality of voting, but also to remark that "no government could give
us tranquility and happiness at home which did not possess sufficient
stability and strength to make us respectable abroad."'
James Madison had come to Philadelphia in May a dedicated
Revolutionary statesman who believed that liberty depended on the
continental union and that neither would endure unless the general
government was reconstructed as a great republic, so that it could
safely be entrusted with authority to rule. In order to preserve the
union and to foster an environment in which the Revolutionary enterprise could prosper, he insisted on a new regime with power to
fulfill the general government's financial obligations, to enforce its
laws, and to create the proper economic context for a healthy public
life. Positive additions to its powers were essential, he believed, in
order to persuade the Spanish to reopen the Mississippi River, to
retaliate against the British for their crippling navigation laws, and
thus to alter the conditions thatengendered economic legislation
which endangered both the union and the Revolutionary faith that
109. June 29, ibid., 464-65.
110. Ibid., 467. On Sept. 14, ibid., 617, Madison supported a clause intended to " discountenance' armies in time of peace, as these were "allowed on all hands to be
an evil.
46
THE POLITICAL SCIENCE REVIEWER
justice could be realized most fully in republics. Defensive powers
were required, as well, in order to permit the general government to
guard itself against encroachments by the states and to protect the
people from their rashness. From first, to last, however, Madison
assumed that powers would be granted by the people only to perform
the common business of the nation, that the great republic ought to be
constructed so as to assure that its elected rulers could not develop
independent interests of their own, and that excessive governmental
vigor was as incompatable with Revolutionary purposes as any of the
state abuses he condemned. Madison intended to invigorate the
union so that it would not be necessary for the states to tone their
governments so high as to endanger their republican regimes. But
neither did he plan to tone the central government so high that it
would reproduce the European evils he was trying to avoid.
The Constitutional Convention debated an enormous range of
issues-many more than can be handled even in an essay of excessive
length. On a spectrum that would take account of all those issues,
Madison stood in between the fearful foes of radical departures from
the early Revolutionary order and men who sympathized more fully
with his centralizing means than with his Revolutionary ends. This
moderation calls for more attention than it often gets, and it is not to
be confused with easy pliability or lack of passion. The Constitution
would have been a different document (if any Constitution had
emerged) if Madison had not contributed republican as well as unionist commitments to its framing. And Madison might never have
defended it in quite the terms he did if he had not, throughout the
summer, stood so often in between, affected more than the Convention's records may immediately reveal by what he heard from both
extremes.
As the Convention ended, Madison and many others were exhausted by the work, conscious that the Constitution had been
shaped by their disputes, and temporarily depressed by their defeats.
Madison was very much aware that the completed document did not
propose as radical a cure for current ailments as the plan he had
originally intended. Rejection of the federal negative in favor of
specific limitations on the states had robbed the central government
of its capacity to intervene if state majorities should find new ways to
threaten private rights. Without the veto, he believed, the general
government would also have imperfect tools with which to guard itself against encroachments or to keep the states from harming one
THE DYNAMICS OF THE CONSTITUTIONAL CONVENTION
47
another. The constitution of the senate was a serious departure from
the national and democratic maxims he preferred."
Preferred, that is to say, until his willingness to undertake a systematic effort to defend the Constitution led him to review the
course of the Convention and to think again about the sentiments expressed by "allies" such as Morris or "opponents" such as Dickinson
and Sherman (as well as by the Antifederalists whom he was now
compelled to answer). For as he wrote The Federalist, Madison implicitly confessed that his opponents in the battle with the smaller
states had been more nearly right than he had then admitted. He still
could not defend the equal voting in the Senate as anything except a
necessary evil. But borrowing from Dickinson, from Sherman, and
from other small-state men, he did defend the "partly federal"
features of the system as a valuable, additional assurance-and in
light of what he knew about the views of other influential framers,
perhapsu2a necessary one-that nationalizing changes would not go
too far.
Scholars know a truth about a major writing project (or about a process of deliberation) that they might apply more fully to the making of
the Constitution. Insights come when we exchange ideas with others,
and conclusions change again as we attempt to put them onto paper.
The most extraordinary minds are not so very different from our own.
Madison's was changed considerably by his experience at the Convention. It was changed again as he attempted to encompass and explain what the Convention had accomplished, for there was little of
the propagandist in his makeup. The more he thought and wrote
about the finished Constitution, the more he managed to convince
himself, as well as others, that the Constitutional Convention had indeed prepared a viable corrective for the nation's ills-in fact, the
best solution to the central riddle of a liberal republic that human ingenuity had ever yet advanced. The Constitution did specifically forbid the types of local legislation that had challenged even Madison's
conviction that democracy could be combined with justice. In this
way-and in the structure of the central government itself-the
document did promise to perpetuate the union and redeem the
Revolutionary faith. Internal checks and balances, together with the
size of the compound republic, offered every safeguard for minorities
111. To Jefferson, Oct. 24, PJM, 10,207-16.
112. See especially The Federalist, nos. 39, 45, 62.
48
THE POLITICAL SCIENCE REVIEWER
consistent with a totally elective system. The role and powers of the
states would serve-together with the people's vigilance, of courseas an effective, final check on the ambitions of the national rulers. It
was a fragile settlement, no doubt, and not the one he had originally
intended. But there was also little vanity in this Virginian's makeup.
As he decided that the Constitution might be wiser than the plan he
had concocted in his closet, Madison was making a commitment, too,
to keep a careful watch on policies or constitutional constructions
that might overturn it. The father of the Constitution" did not have
to travel quite so far as it is sometimes thought in order to become coauthor of the Jeffersonian persuasion.
University of Kentucky
LANCE BANNING