In 1880, Lincoln Steffens, a radical, muckraking journalist, was so shocked to discover what he viewed as the antidemocratic motives of the framers that he promised to write a “true history of the making of the American Constitution.” He never did, which is too bad. It would have certainly been an interesting book. You can disagree with the framers, as Steffens did, or you can feel they brilliantly solved the crisis of their age. But either way it is not possible to understand our present government without understanding Madison's and the other framers' thinking at the convention 220 years ago.
T
HE
C
ONVENTION'S
C
ONDUCTOR
James Madison, a delegate from Virginia, took one of the best seats in the house for the convention. “I chose a seat in front of the presiding member, with other members on my right and left hands. In this favorable position for hearing all that passed, I noted in terms legible and in abbreviations and marks intelligible to myself what was read from the Chair or spoken by the members.” This was May 25, 1787, the first meeting day of the Constitutional Convention. As the delegates drifted into Philadelphia, a quorum of seven states had arrived. (Eventually there would be twelve. Rhode Island never made it.) Their first order of business was the election of General Washington as president of the convention, which Madison recorded in his famous notebook, later published as
Debates of the Convention
.
Madison was more than the convention's “semiofficial” reporter. He was its conductor and its intellectual engine, a combination of “the profound politician, with the Scholar . . . the best informed man of any point in debate.” Those who knew him were not surprised. He had always been diligent and studious. The oldest of ten children, and the first son of a successful Virginia planter, Madison had been the right age to fight in the Revolution. But his health, which he complained about all through his long and largely healthy life, had not been strong enough. Instead he devoted his energies to the politics of the young country, both in Virginia and as the youngest member of the Continental Congress. He was thirty-six years old at the time of the convention. Young perhaps for the inventor of a nation, but many of the delegates were not much older.
At the Constitutional Convention, he took on the arduous reporting role, no doubt, to better remember the arguments of his colleagues in preparation of his own arguments and to provide for American history firsthand the “truth and lessons” of the convention.
Since at least the fall of 1786, Madison had been thinking deeply about the problems that confronted the governance of the new country. As he watched its decline into chaos, he studied the experience of historical and more current nations to determine the causes that had helped or destroyed them. Madison, like many of the other framers, was a “modern” thinker, one who believed that history should inform decision making. “Where we see the same faults followed regularly by the same misfortunes, we may reasonably think that if we could have known the first we might have avoided the others.” Or as Washington had earlier written, “The treasures of knowledge . . . are laid open for our use, and their collected wisdom may be happily applied in the establishment of our forms of government.”
From this study, Madison reached a conclusion about the causes of the American crisis. Public virtue, he concluded, simply could not moderate self-interest, particularly that of majority factions, at least when it came to the governmental tasks of regulating peoples' conduct and redistributing their wealth.
That was the conundrum Madison set himself to solve. The people had won the right to govern themselves, yet the people were not “virtuous” enough to do so.
To address this problem, Madison drafted a plan for a new government. Both as proposed and as ultimately adopted, it was radical. First, it proposed a national government with coercive powers over the states and not simply a revision of the Articles of Confederation. This caused concern for even some supporters of a strong national government. For example, the ardent nationalist and Revolutionary War hero Charles Cotesworth Pinckney of South Carolina on May 30 “expressed a doubt whether the acts of Congresss recommending the Convention, or the Commissions of the deputies to it, could authorize a discussion of a System founded on different principles from the [Articles of Confederation].”
The plan completely reversed the earlier notion, underlying the Articles of Confederation, that liberty could only be protected by public virtue and simple government. In the place of public virtue, Madison's republican principle substituted a complex form of government built around new ideas of representation and separation of power.
Its “pivot,” as he described it, would be a new notion of how people were represented in the government. Unlike in England, where only the House of Commons was elected, in America all governmental powerâlegislative, executive, and judicialâwas to be vested in the people. As Madison's ally Pennsylvania delegate James Wilson would write, “the executive and judicial powers are now drawn from the same source, are now animated by the same principles . . . with the legislative authority: they who execute, and they who administer the laws, are so much the servants, and therefore as much the friends of the people, as those who make them.” Then, after placing all of the power of government in the hands of the people's representatives, that power was to be divided among the different branches of government to avoid the accumulation of too much power in any one branch.
The federal government would have the power to conduct foreign affairs, protect the nation and regulate trade among the states and with other nations. The states would have general legislative power to regulate the conduct of their citizens.
The federal power to make laws or to declare war would belong to a two-house Congress. The executive would enforce the laws and conduct any war. And the judiciary would resolve disputes over the application or meaning of law.
Each branch would have power to check the actions of the others to keep any one branch of government from exceeding its authority. “The separation of this governmental power, rather than simply the participation of the people in a part of the government, became the best defense of liberty.” In short, a reliance on public virtue was to be replaced by a “policy of supplying by opposite and rival interests, the defect of better motive.” Or more bluntly put, “ambition must be made to counteract ambition.”
Madison applied this new approach aggressively. For example, legislative power, the supreme power of government, was to be further subdivided between the Senate and House of Representatives, whose members would, Madison believed, have different interests based on the difference in size between Senate and House districts and terms and qualifications for office. This proposal was not intended by Madison as a means for giving small states a larger voice in the new government, as is commonly thought. That idea, as we shall see, would emerge later as a crucial compromise that probably saved the convention. Madison's purpose behind the two-house legislature was for the Senate to cool the passions of the House, Washington reportedly told Jefferson years later. For a bill to become law, it would have to receive a majority vote in each house of Congress (and then be subject to the executive's veto), creating many opportunities to stop legislation and many hurdles to its enactment. According to Madison: “In republican government the legislative authority, necessarily, predominates. The remedy for this inconvenience is to divide the legislature into different branches; and to render them by different modes of elections, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependence on the society, will admit.”
To Lincoln Steffens (and to others more recently, as we shall see in chapter 8), this complicated system, requiring more than a simple majority to get action, was undemocratic. But to Madison, it was the solution to their fundamental problem: how to create a working government, one that both protected the rights of individuals and minorities while possessing enough authority to take effective action across a territory larger than most of the nations of the old world.
Just a few years before the American Revolution, the great French philosopher Montesquieu, whose writings on democracy and separation of power were very important to Madison and the other framers, had argued that, at best, a democracy could only work in a “small territory” because “in a large republic the public good is sacrificed to a thousand views.” Conversely, he wrote, “in a small one, the interest of the public is easier perceived, better understood, and more within the reach of every citizen; abuses have a lesser extent, and of course are less protected.” The wisdom of the age, as reflected by Montesquieu, was that size was the enemy of orderly democracy, making it harder for citizens to agree on the public good. Everything about the chaos in America between 1776 and 1787 seemed to prove him right.
But if democracy required a small territory, America was hardly an ideal vineyard in which to grow it. For America was expanding rapidly in both size and population. Between 1770 and 1790, the population had doubled from two to four million, and settlement was expanding from the Atlantic seaboard toward the Mississippi River. The incipient nation was growing so fast that the great economist Adam Smith, from his perch in Scotland, predicted it would eclipse the mother country in wealth within a hundred years.
Madison's new vision of democracy turned that growth from an obstacle to democracy into an asset, indeed, into a virtue. Under his plan for a new government, the presence of a “thousand views” meant more opportunity for different views to be heard and less opportunity for a single view to dominate the others. Indeed, this approach introduced what became a basic thread in the story of the nation. Growth was good. Integrating new citizens was, ultimately, positive (although often complicated and painful).
“In the extended Republic of the United States, and among the great variety of interests, parties and sects which it embraces, a coalition of a Majority of the whole society could seldom take place on any other principles than those of justice and the general good.” Madison was quite a precise man. His choice of words was interesting. Not just a majority of the whole society, but a coalition of a majority. Two separately elected legislative bodies and a separately chosen executive all had to concur.
For Montesquieu, the ideal democracy, indeed, the only possible democracy, was a small one such as the city-state of Athens where everyone had supposedly similar interests and could work out their problems together. Madison saw a way to create democracy on a continental scale through representation that forced coalitions of a majority.
At least, that was his theory.
But, as Madison knew, many theories of government had ended up on the dust heap of history. He knew that he would have to orchestrate its enactment. He understood what a challenge this was going to be. He told Washington that he knew his proposal was radical: “Temporising applications will dishonor the Councils which propose them, and may foment the internal malignity of the disease, at the same time that they produce an ostensible palliation of it. Radical attempts, although unsuccessful, will at least justify the authors of them.”
Madison would leave nothing to chance. By the eve of the convention he knew that many of the delegates shared the broad view that a stronger central government was needed. But the success of the convention depended not only on a shared vision of the broad outlines of a new, stronger central government but on its details. Here the going would be rough, for as Washington noted, the states of America were “different from each other in their manners, circumstances and prejudices.” “On the need for change . . . the delegates were like-minded men. But on what kind of changeâthere the temple of accord became the Tower of Babel.”
Madison, a master political craftsman, understood the importance of creating an agenda upon which the convention would focus. He had arrived early in Philadelphia, staying as he always did at the House-Trist lodgings at Fifth and Market just down the block from the Pennsylvania state house, where the convention would be held. He wanted time to take the political temperature of the delegates as they arrived and to informally meet and talk with as many as possible.
He seemed particularly interested in the Pennsylvania Federalists: Robert Morris, James Wilson, Benjamin Franklin, and Gouverneur Morris.
Madison also wanted time to sell his friend Governor Edmund Randolph of Virginia on his plan. He could not succeed without the support of his own state, Virginia, whose delegation also included his ally George Washington and George Mason (who would later oppose the Constitution). But Randolph was the key. “It was axiomatic with Madison that Virginia would go no farther into federalism than Randolph would but how far he would go sometimes depended more on Madison than on himself.” Travel was slow in those days, and the delegations took time to arrive. Madison used that time to full effect. The Virginia delegation met daily to discuss Madison's proposals.
The fruits of Madison's politicking became clear on the convention's first day of real business, Tuesday, May 29, 1787. Madison himself, from his seat near George Washington, took notes as his plan was presented by the governor of Virginia, ensuring that evermore the young Madison's ideas would be known to history as the Virginia Plan.
Mr. Randolph opened the main business . . . [t]he character of such a governme[nt] ought to secure 1. against foreign invasion: 2. against dissentions between members of the Union, or seditions in particular states: 3. to procure to the several States various blessings, of which an isolated situation was incapable: 4. to be able to defend itself against encroachment: & 5. to be paramount to the state constitutions . . . [h]e then proceeded to the remedy; the basis of which he said, must be the republican principle.