What made James Madison unique among his generation and has subsequently made his legacy invaluable… was his commitment to the “sacred fire of liberty” and his steadfast refusal to abandon either his republican commitment to popular participation or his liberal commitments to justice and the protection of individual rights…
Today’s offering in our Timeless Essay series affords readers the opportunity to join Alan Gibson as he explores the political philosophy of James Madison by critiquing and appreciating Lance Banning’s scholarship. —W. Winston Elliott III, Publisher
Scholarship on the political thought and career of James Madison is still dominated by a prevailing “Hamiltonian” interpretation. Set forth by such prominent scholars as Irving Brant, Martin Diamond, and George Carey, the “Hamiltonian” interpretation views the years surrounding the formation of the Constitution as the most productive years of Madison’s career and argues that he was a fervent nationalist and a proponent of centralizing reform throughout this period. During the 1780s, these scholars argue, Madison sought to address the impotence of the national government under the Articles of Confederation, but was even more concerned about the problem of majority tyranny within the states. Madison’s constitutional reform program, therefore, hinged on the consolidation of extensive powers in the national government, broad construction of constitutional charters, the establishment of an extended republic that would diffuse majority factions, and the addition of a power in the national government to veto state laws.
Insomuch as they have even taken notice of them, Madison’s writings and policy positions during the 1790s and beyond represent, in the estimation of most proponents of the “Hamiltonian” interpretation, a fundamental—if not embarrassing–reversal of his earlier policy positions from the 1780s and his nationalistic teachings as Publius. Whereas in the 1780s Madison had opposed discrimination between the present and original holders of the Revolutionary debt, favored assumption of the state debts, and favored the creation of a national bank, he favored the opposite, Jeffersonian position on each of these issues in the 1790s. Whereas in the 1780s Madison had feared majority factions and the centrifugal tendencies of the state governments and favored an extended republic with a multiplicity of interests, broad construction of constitutional charters, and the augmentation of the powers of the national government as remedies for these problems, in the 1790s he stressed the threat posed by encroaching federal power and a minority faction within the Executive branch, emphasized strict construction of the Constitution and the residual sovereignty of the states, and sought to consolidate common interests among the people and summon public opinion in opposition to the new government.
Broadly speaking, then, the “Hamiltonian” interpretation of Madison’s motives and goals during the 1780s unavoidably leads to the conclusion that there are, as John Zvesper has suggested, two distinct Madisonian “systems” of political thought: a pluralist system designed to extend the power of the national government and thwart majority factions, and a Jeffersonian party system designed to curb that power and summon popular majorities. Few Madison scholars, however, have been equally sympathetic to each of these systems. Led by Brant, Diamond, and Gordon Wood, or convinced that Madison’s political thought should be approached through his most famous writings (his contributions to The Federalist), most scholars have ignored or dismissed Madison’s efforts as an opposition leader in favor of the belief that the mid-1780s constitute a “Madisonian moment” and contain Madison’s most profound thoughts and admirable efforts. This maneuver, in turn, has had the effect of enforcing characterizations of Madison as a “liberal-pluralist,” a “commercial republican,” and an “institutionalist.” In their baldest form, these closely related interpretations suggest that Madison constructed a “new science of politics” in which “interest” would replace “virtue” and institutional complexity would serve as a remedy for the “defect of better motives” in the people. The ambitions and interests of public officials would be pitted against each other in a scheme of mutual jealousy and suspicion. Meanwhile, the public good would somehow emerge as a residue of institutional and interest group conflict and compromise. Furthermore, according to Diamond, Madison’s extended republic was necessarily a “commercial republic.” In Madison’s republic, Diamond contended, citizens would pursue their self-interest, helping to ensure that a moderate struggle of interests would replace heretofore devastating ideological and class conflicts.
Over the past twenty years, a number of scholars—including Drew McCoy, Michael Zuckert, Colleen Sheehan, Gary Rosen, James Read, Jack Rakove, Cass Sunstein, and the author of this essay—have challenged specific dimensions of the Hamiltonian interpretation. The most comprehensive and far-reaching challenge to the Hamiltonian interpretation and to the understanding of the American political system with which it is associated, however, has been set forth in the scholarship of Lance Banning. Concisely put, Banning’s numerous essays and his magisterial study The Sacred Fire of Liberty offer a series of revisions about the character of Madison’s political thought, a defense of Madison’s political career, a rehabilitation of his political thought against the charge of inconsistency, and a new understanding of Madisonian politics. To achieve these goals, Banning provides a study of “the evolution of his [Madison’s] founding vision” from 1780 to 1792 that searches for “fundamental constancies” or what was “fixed beneath the flux” in Madison’s career and his political thought.
This essay is both an appreciation and a critique of Banning’s interpretation of Madison. I first provide an extended summary of Banning’s interpretation, emphasizing its revisionary character. I then provide a critical analysis of what I believe are the three most important contributions of this interpretation and the three central areas where it should be challenged. I end by exploring the implications of Banning’s interpretation for prevailing understandings of the American Founding, the character of Madison’s political thought, and the foundations of the American political system.
Understanding the Revision: Banning’s Madison
Although Banning’s interpretation has been virtually universally applauded, the depth and character of his revision of our understanding of Madison’s political thought and career have not been adequately appreciated. Briefly put, Banning’s interpretation should be viewed as a series of specific revisions that cumulatively create a fundamentally new understanding of the path of Madison’s political career and the character of his political thought. The revisions begin with Madison’s service in the Confederation Congress—the period of Madison’s political career, Banning asserts, “about which there is least dispute among the scholars, and perhaps the most significant mistake.” The thrust of his analysis here is to differentiate Madison from the Congressmen who fought without hesitation in the early 1780s for centralizing reform and in particular for the program of the “economic nationalists”—James Wilson, Alexander Hamilton, and Robert Morris. Madison, according to Banning, first established himself in Congress as a consistent and formidable advocate for Virginia’s special interests. This included fighting to ensure recognition of Virginia’s claims to all lands northwest of the Ohio and to ensure that these lands were only ceded to the union on Virginia’s terms (which denied the speculative claims of large land companies). It also included fighting to ensure that navigation rights on the Mississippi were never ceded to Spain as a condition of a treaty.
Nevertheless, Banning identifies two even more important differences between Madison and the “economic nationalists” of the northeastern states. First, unlike these statesmen, Madison retained a profound respect for written limitations of power expressed in constitutional charters and was intensely concerned with the effect that any reforms would have on the balance of power between the national government and the states. Second, Madison believed that it was necessary for Congress to be granted a source of revenue independent of state requisitions. But unlike the “economic nationalists,” Madison believed this power should be granted only so that the young government could meet its financial obligations and pay the interest and principal on the Revolutionary War debt. Conversely, Madison never accepted Morris’ or Hamilton’s objectives of establishing a permanent debt that would tie a monied interest to the national government and become a source of influence and dependency for this interested, wealthy few.
Banning next challenges a variety of common claims surrounding Madison’s path to the Constitutional Convention. First, Banning argues that, contrary to standard accounts, Madison’s experience with the inconstancy and injustices of state laws was not the primary impetus behind his desire for constitutional reform. Scholars have seldom noticed, Banning contends, that Madison placed much of the blame for the closely linked constellation of economic, political, and moral problems within the states that led to the democratic despotism of the mid-1780s at the foot of the national government, not the people. Thus, Madison cannot be counted among the Framers who were led by the events of the mid-1780s to the conclusion that virtue was lost in the people. Furthermore, according to Banning, Madison’s desire first to reform and eventually to abandon the Articles of Confederation grew as he became increasingly frustrated with sectional conflicts and the inability of the Confederation government to address national problems, especially the inability of Congress to coordinate retaliation against the mercantilistic policies of Britain and its unwillingness to protect Southern navigation rights to the Mississippi. Madison was so passionately committed to both commercial retaliation and to open navigation on the Mississippi, according to Banning, because he deemed both to be central to westward expansion and to the perpetuation of an agrarian republic in America. Commercial retaliation was necessary to ensure open markets for America’s agricultural products and thus to keep Americans from reverting to manufacturing and the occupations associated with a more advanced society, while navigation of the Mississippi was likewise necessary (for among other reasons) to ensure the value of western lands and thus their viability as a source of revenue for the national government to retire the Revolutionary War debt.
Second, Banning challenges standard accounts of the formation of the Constitution by focusing away from Madison’s doubts about the propriety of majority rule during the mid-1780s and toward the steadfastness of his revolutionary faith in governments that rest on the consent of the governed and demand the continuous participation of the citizenry. Here, as Banning sees it, standard accounts stand Madison’s concerns on their head. Contemporary scholarship on Madison has not been wrong to stress that Madison was led by the agonizing events of the mid-1780s to question majority rule and direct citizen participation in government. But what is important to note, he observes, is that the violations of individual rights by popular majorities in the state governments during the mid-1780s were so agonizing for Madison precisely because of the depth and gravity of his commitment to the revolutionary faith in popular rule. Like most early and fervent revolutionaries, Madison, Banning insists, had believed that popular participation would be the means of securing the rights of the people. When the events of the mid-1780s exposed the tenuousness of that supposition, Madison faced the tension between his republican and his liberal commitments and underwent “the most important intellectual crisis of his life.
Banning then offers a series of closely related reappraisals of the nature of Madison’s proposals at the Constitutional Convention and his evolving role there and in the ratification contest. Madison, according to Banning, went into the Convention convinced that “the fundamental flaw of the Confederation was its irredeemably defective structure” and that this problem could not be solved simply by adding powers to the national government. It did not matter how much power the national government exercised, Madison observed, if it could not compel obedience to its decisions or act without interference from the states. The Virginia Plan was thus designed to free the national government from the constraints of the states. This was to be done by excluding the states, for the most part, from the selection of federal officials and from the execution of federal decisions, and by compelling obedience to federal commands through the use of an absolute veto on state laws and a federal power to coerce disobedient states.
According to Banning, however, Madison’s effort to establish an effective national government should not be misinterpreted as an effort to construct a powerful one. Madison’s view of the powers that should be exercised by the national government, Banning contends, was thoroughly conventional and, unlike Hamilton, he was never a consolidationist. Indeed, according to Banning, Madison believed that, with the exception of the power to regulate trade, the Articles of Confederation granted Congress authority to exercise all of the essential functions of a government.
Furthermore, Banning maintains, Madison’s understanding of the imperatives of federal reform evolved in a number of ways as the Convention unfolded. For example, Madison became more of a nationalist in one limited but important sense as he learned from other “democratic nationalists” how better to free the national government from the constraints of the states and as he came to conceive of the Constitution as establishing concurrent state and federal governments, each arising from and acting upon the individual members of the society. In particular, he dropped the idea of a federal power to coerce the states into compliance with federal measures in favor of empowering the government to operate directly on individuals. He also became increasingly determined to secure proportional representation in both branches of Congress and to ensure the selection of federal officials independent of the state governments because he sought to diminish state interference and influence in areas that were reserved for the national government.
After he had lost the historic battle over proportional representation in the Senate, Madison’s understanding of the proper direction of federal reform, Banning contends, transformed again, but not in ways that previous scholars have appreciated. Following Irving Brant, many scholars have contended that “the Great Compromise” marked the apex of Madison’s desire to add powers to the national government and that thereafter he became less of a nationalist. But according to Banning, Madison’s understanding of the powers needed by the national government did not change at all after “the Great Compromise” and his opposition to this decision did not subside easily or quickly. The real effect of “the Great Compromise” on Madison’s actions at the Convention and even into the First Congress was that he became much more likely to favor augmentation of the powers of the President (who represented the whole nation) rather than the Senate (which now represented the states as states). He came, for example, to favor the President sharing in the power to appoint judges and the treaty making power. He also now favored the right of the President to succeed himself.
When he turns to an analysis of The Federalist Papers, Banning provides yet another challenge to existing scholarship. Here, he maintains that scholars have incorrectly seen The Federalist No. 10 as a comprehensive statement of Madison’s political philosophy and misinterpreted Madison’s theory of an extended republic in a variety of ways. Despite extensive commentary that suggests otherwise, Federalist No. 10 was not the alpha and omega of Madison’s political thought but rather a “brilliant preface” to Madison’s contributions as Publius. Madison was also not, according to Banning, intent on “multiplying interests in an extended commercial republic,” and the election of disinterested or impartial representatives from expanded electoral districts was not the central point of his theory. The “commercial republic” interpretation is incorrect because it places Madison on the wrong side in the debate over political economy in eighteenth-century America: i.e., with those who enthusiastically wanted to impel economic development, as opposed to the Jeffersonians, who wanted to limit and channel it into agrarian pursuits. Furthermore, any interpretation of Madison’s theory of an extended republic which suggests that the election of disinterested representatives from expanded electoral districts was Madison’s central point carries with it the assumptions that he wanted distant and unresponsive rulers and that he “wanted and expected an increasing concentration of decision-making at the federal level.” Such an interpretation is incorrect, because Madison wanted representatives to reflect their constituents’ views, did not believe that the extended republic should reach beyond a “practicable sphere” in which rulers could be held accountable, always insisted it had to be built on a federal structure, and always believed that the national government should have only limited responsibilities.
In general, Banning’s reappraisal of both the framing and the ratification of the Constitution is driven by a common sense—but nevertheless previously neglected and immensely powerful—line of analysis that establishes how Madison was influenced by the dynamic process of the framing and ratification of the Constitution. The Constitutional Convention, Banning asserts, was among other things a deliberative assembly in which the delegates were forced into open exchanges over a vast and shifting body of issues. The Constitution that emerged from the Philadelphia Convention was far different from the one that Madison originally proposed, and Madison learned immensely from other delegates in its construction. Similarly, Banning treats Madison’s experience in writing essays for The Federalist as a learning process, akin to a scholarly project, in which Madison’s understanding of the immanent theory in the Constitution matured and crystallized, and in which his initial reservations about the Constitution were abandoned in favor of a greater appreciation of the “collective wisdom” of the Constitutional Convention. Viewed from this perspective, Madison’s contributions to The Federalist emerge as “partly a confession of what (and how much) he had learned.”
When Banning turns to the party battles of the early 1790s, he has already established the background for explaining Madison’s perspective on the break with Hamilton and for his contention that “the father of the Constitution did not have to travel quite so far as it is sometimes thought in order to become the co-author of the ‘Jeffersonian Persuasion.'” In particular, having firmly established the continuity of Madison’s concern for strict construction and for limiting the responsibilities of the national government, Banning is able to argue convincingly that Madison’s opposition to the chartering of a national bank (which had been rejected at the Constitutional Convention and, in Madison’s eyes, overran the boundaries of the constitutional charter) was predictable and consistent with his prior goals. Madison’s opposition to the assumption of state debts as they stood in 1792 rather than at the end of the Revolutionary War becomes understandable and defensible when it has been established that Madison always insisted on a fair attention to Virginia’s interests (which he seldom saw as inconsistent with the common interest) and that the states had differentially resolved their state debts since the Revolution, with Virginia taking a lead in absolving its debt.
Once Madison’s opposition to privilege and speculative interests has been established and we have broken away from the prevailing belief that he was an unflinching defender of the rights of property and contract, Madison’s support for discrimination between original and secondary holders of certificates becomes understandable. If we understand the centrality of Madison’s concern throughout the 1780s to counter British navigation laws and this concern’s place in Madison’s commercial, agrarian vision, then we can understand the importance that this issue has for Madison in the first Congresses. Indeed, we can see how on this issue it was Hamilton who reversed himself in the 1790s when he reneged on the promise from Federalist No. 11 to use the invigorated powers of the national government to ensure commercial discrimination against foreign nations threatening American trade. In general, from Madison’s perspective rather than those influenced by Hamilton or governed by contemporary interpretive frameworks and political concerns, it becomes possible to understand why Madison claimed that Hamilton “deserted” him and attempted to “administer the government…into what he thought it ought to be” and had been unable to secure at the Constitutional Convention—and his corollary contention that it was he, not Hamilton, who had accepted the meaning of the Constitution as it had been ratified.”
But if Banning’s account makes Madison’s specific policy positions during the 1790s understandable and defensible, it also boldly charts a still broader and more profound thread of consistency within Madison’s political thought and career. In particular, Banning argues that the most important consistency in Madison’s political thought was his commitment to the Country party ideology of the early stages of the American Revolution—and in particular to his passionate, even romantic, defense of liberty understood both as the vigilant continuous participation of the people in their government and the protection of the rights of minorities and individuals. What connected the Virginia continentalist with the “father of the Constitution” and with the author of the “Jeffersonian Persuasion,” what made Madison unique among his generation and has subsequently made his legacy invaluable, according to Banning, was his commitment to the “sacred fire of liberty” and his steadfast refusal to abandon either his republican commitment to popular participation or his liberal commitments to justice and the protection of individual rights.
Refining the Revision: Three Contributions of Banning’s Interpretation
Banning’s broad interpretation of the consistency of Madison’s political thought and career and his numerous specific revisions may be thought of as a challenge to a series of interpretations that are deeply ingrained in modern scholarship on Madison and the Founding. In particular, Banning’s contentions that Madison was a committed democratic revolutionary, that he was led to seek constitutional reform because of the inadequacies and structural faults of the national government (not because of the excesses of democracy within the states), and that he never abandoned his commitment to popular government or the virtue of the people challenge the charge—directly set forth by the Progressive historians and more subtly woven into the scholarship of Gordon Wood—that Madison and the Framers of the Constitution repudiated the principles of the American Revolution. His analysis of the debates in the Federal Convention as a dynamic process involving a “complicated interplay of disputation and consensus” is set forth against the “realism” of the Progressive historians’ depiction of the debates in Philadelphia as a clash between delegates steadfastly advancing personal, group, and sectional interests and the Constitution as a “bundle of compromises” between these interests. Banning’s effort to establish the continuity of Madison’s commitment to a modified version of strict constructionism is a challenge to the interpretation of the Madison biographer Irving Brant and more recently to the conclusions of Stanley Elkins and Eric McKitrick, who have argued that Madison was a broad constructionist during the 1780s but abandoned this principle in the 1790s as a political tactic against Hamilton’s policies. Finally, Banning’s challenge to the nationalistic interpretation of Madison’s understanding of the scope of federal powers, his challenge to the centrality of the argument of Federalist No. 10, and his repudiation of the “commercial republican” interpretation of Madison’s conception of political economy are directed against the highly influential scholarship of the late Martin Diamond.
What are we to make of all of this? Are Banning’s numerous revisions convincing? In three areas, in my estimation, Banning is overwhelmingly successful. These include his interpretations of Madison’s conception of political economy, of Madison’s understanding of the scope of national power, and of Madison’s conception of constitutional interpretation. Since these interpretations constitute some of Banning’s most controversial claims, each demands further explanation.
In the area of political economy, Banning’s contribution is to challenge prevailing interpretations of the Framers as “commercial republicans” and to show how Hamilton’s economic program was rooted in seventeenth- and eighteenth-century “Court” party ideology and how Madison’s suspicions of and ultimate opposition to these programs followed “Country” party ideology. As Banning has noted, prevailing interpretations suggest that the Framers of the Constitution were social conservatives who hoped to protect their place atop a deferential culture but were nevertheless also universally in favor of rapid economic development. The Framers of the Constitution, according to this view, envisioned the national government as a framework for the protection of private property and for a common market among the states.
In contrast, Banning has followed Drew McCoy in arguing for the superiority of the “Court” versus “Country” interpretation of eighteenth-century American political economy. Specifically, as Banning has shown, the program that Hamilton (and before him, Robert Morris) had devised was modeled on the system of administration and finance that had been adopted in the ministry of William III in the decade following the Glorious Revolution. Briefly, the ministers of the Court of William III had devised a scheme in which the nation’s commercial, political, financial, and military elite financed the national debt and were paid interest on their investments. This system, according to a then commonly held reading of the history of England, fused these diverse interests into a single national elite, tied their well-being to the success of the administration, and had thereby lent stability to the administration and served as the engine of England’s rise to national greatness.
But whereas Hamilton held this reading of English history and hoped to replicate the English model of administration and finance, Madison feared and opposed this system for reasons that could be traced to the Country party critique of Court policies: In particular, Banning maintains, Madison believed that this system would lead to ministerial corruption and influence by placemen, public pensioners, and dealers in public funds. Indeed, Madison viewed this system as the reason that the British government had become corrupt in the 1770s and thus, ultimately, as the source of the repressive economic measures that had led to the American Revolution in the first place. To Madison, the replication of this system was therefore unthinkable.
Most important, linking Madison’s opposition to a permanent funding system and his system of political economy to Country Party ideology and Hamilton’s economic program to the Court program of economic success has provided scholars with a much more complex and historically accurate framework for understanding early American political economy than understanding them collectively as “commercial republicans.” Indeed, whatever criticisms may be deservedly lodged against the scholarship of the so-called “republican synthesis,” the discovery of the recrudescence of Country and Court ideologies in eighteenth-century America marks one of its permanent contributions. In particular, calling the Framers “commercial republicans” and suggesting that they were enthusiastic advocates of unimpeded economic development fails to convey an appreciation for the Jeffersonians’ fear of a manufacturing America and the intensely political concerns behind their agrarianism. It also conflates Hamiltonian and Jeffersonian political economy under a single capacious rubric and thus cannot account for the fact that differences over political economy were among the most profoundly divisive issues in eighteenth-century America. Finally, this framework of analysis has illuminated the spectrum of beliefs about political economy held by the Founders, has helped us to understand the economic programs of Hamilton on the one side and Jefferson and Madison on the other as highly integrated efforts to adapt widespread eighteenth-century assumptions about political economy to the American experience, and has constructively complicated our understanding of the relationship of the Founders’ ideas to the development of capitalism.
In addition to furthering our understanding of Madison’s conception of political economy, Banning has also decisively challenged the idea that Madison held a Hamiltonian conception of the scope of national power and that he transformed from a Hamiltonian nationalist in the 1780s to a proponent of states’ rights in the 1790s. As previously suggested, proponents of this thesis are numerous and influential. Charles Hobson, for example, has contended that in the 1780s Madison was “scarcely less a consolidationist than Alexander Hamilton” and George Carey has contended that there were no “substantial differences between him [Madison] and Hamilton…concerning the scope of national power.”
Scholars who present this interpretation point to a number of pieces of evidence.
- the numerous statements that Madison made in the mid-1780s that the centrifugal tendencies of the state government posed the biggest threat to the viability of the American republic and his assurances that the national government created under the new Constitution would have neither the inclination nor the ability to absorb the state governments,
- the sweeping provisions in the Virginia plan which are often interpreted as expressing Madison’s desire to give the national government broad, undefined powers,
- statements Madison made at the Convention which are interpreted to suggest that he wanted the states to be reduced to administrative districts with the same status in relationship to the national government as counties have to the state governments,
- Madison’s infamous and stubborn defense at the Constitutional Convention of a universal negative that would have allowed the national government to reject any state laws,
- Madison’s successful motion on August 18 at the Convention to refer a long list of enumerated powers to the Committee of Detail in order to have them added to the Convention and his support on September 14 of a provision to add a congressional power to cut canals and to create charters of incorporation,
- the grave disappointment that Madison expressed in his famous long June 24, 1787, letter to Thomas Jefferson about the inadequacies and prospects of the Constitution and the loss of the universal negative.
Banning does not respond to this evidence by suggesting that there were no differences between Madison’s positions in 1787 and 1792. Instead, he readily concedes that in 1787 Madison was much more concerned that the state governments would be able to encroach on the prerogatives of the national government than that the national government would absorb the powers of the states. Madison based this prediction on the conclusions that he reached from his study of ancient and modern confederacies, his immediate experience with the operations of the state governments under the Articles of Confederation, his prediction that the people would have more immediate attachment to the state governments than to the national government, and his belief that the national government would not have the inclination to intrude on the powers of the states, or if it did, that it would be controlled by its structure and character from such actions. Less than four years after he had set this case forward in the Convention and The Federalist, however, Madison had reason to believe that in fact the national government posed a very real threat to the reserved powers of the states and to call upon the people of America to embrace the state governments as a means of counteracting excessive centralization. Thus, critics who maintain that Madison changed his mind about the likelihood of future threats to the state governments are correct.
Nevertheless, Banning effectively demonstrates that, when all the evidence is considered and put into context, we gravely misunderstand Madison if we move beyond this observation and interpret him as a frustrated consolidationist. As Banning observes, late in his life, Madison sharply differentiated between a national government and an unlimited or consolidated one, and he maintained that arguments for a national government at the Convention should not be construed as arguments in favor of an unlimited or consolidated government. He also maintained that the provisions in the Virginia Plan (such as the one that empowered the national government to legislate in all cases in which uniformity was required) were meant merely to serve as general principles to guide debate toward a specific enumeration of powers. They were not, in other words, enumerations of powers themselves. Furthermore, as Michael Zuckert and Banning have observed, we do not have to rely on Madison’s late-in-life testimony on this issue: Madison’s views were confirmed during the course of the Convention by the statements of other delegates who clearly saw their task as providing such an enumeration.
Likewise, the oft-quoted nationalistic statements that Madison made about the relationship of the national government and the states during the Constitutional Convention have to be treated judiciously and in context. When this is done, it becomes clear that Madison was really hypothetically arguing that even if the greatest fears of the small state delegates were realized, the national government had no real inclination or ability to absorb the powers of the state governments and the small states mistook their own interests if they believed that greater decentralization would make their situation more secure. Furthermore, these statements also have to be considered alongside Madison’s consistent claim that he sought a “middle ground” between consolidation and confederation and numerous other statements that Madison made at this time such as his pledge to “preserve the State rights with the same care, as I would trials by jury.”
Finally, Banning also effectively establishes that Madison’s support for the universal negative should not be viewed as a consolidationist provision. As Banning repeatedly points out, Madison viewed the negative primarily as a “defensive power”: i.e., as a means of keeping the state governments from frustrating the ability of the national government to perform its limited functions and for giving the national government finality within its proper sphere of power. Conversely put, he did not view the negative as a means of widening the sphere of power created by the national government or absorbing the legislative powers of the states into the national government, but instead as giving the national government finality within its proper and limited sphere of power. What Banning’s analysis of the universal negative makes clear, then, is that Madison pursued the universal negative with such determination because by 1787 he had come to believe that the national government was at a profound disadvantage in struggles with the states. Working from the axiom that “wherever there is a danger of attack, there ought to be given a constitutional power of defense,” Madison saw the negative as the only effective and least intrusive means that the national government could be given for combating state encroachments. Thus, a universal negative was, in Madison’s estimation, indispensable for restoring a proper balance between the national government and the states, but it was never anything but a restoration of balance that Madison sought.
Broadly speaking, Banning’s most important contribution here is to provide a typology of the varieties of nationalism among proponents of the Constitution. At a minimum, Banning identifies three dimensions of “nationalism” among the Framers: the desire to make the national government independent of the state governments in the selection of federal officials and in the execution of its powers, the desire to give the national government final say–or sovereignty–at least over matters within its sphere of power, and finally the goal of expanding the powers given to the national government. Madison, Banning establishes, was a nationalist only in the first two of these dimensions. Madison went into the Constitutional Convention zealously committed—and became even more committed—to freeing the national government from dependence on the states in the selection of national officials and in the execution of its responsibilities. Madison learned from other delegates how to achieve this goal better, and the structure of the government created by the original Constitution embodies much of the logic espoused by the “democratic nationalists” on this matter. Madison’s commitment to a sweeping negative that gave the national government the power to veto state laws “in all cases whatsoever” indicated that he entered the Convention still believing that sovereignty had to lie in either the states or the national government, and that he believed the national government had to be given final authority in the limited area of its responsibilities. The loss of the negative and other compromises at the Convention led Madison to defend a Constitution that was much less clear on the question of finality.
Most importantly, Banning convincingly argues that Madison’s conception of the scope of national power or the functions of the national government was never Hamiltonian. In contrast to Hamilton, who believed that Congress had to have the “power to pass all laws whatsoever,” Madison hoped to redesign the national government to allow it to perform the essential tasks that virtually everyone—even many Anti-Federalists—believed it should accomplish. As Banning succinctly puts it, “Madison was a determined ‘nationalist’ only in his view of how the new regime should work, not in his opinion of the work it ought to do.”
A third contribution of Banning’s study is to challenge decisively the contention that Madison was a broad constructionist during the 1780s who became a strict constructionist during the 1790s. This charge is most frequently made by examining Madison’s shifting positions on the national bank and his supposedly shifting position on the doctrine of implied powers. Specifically, scholars commonly point out that Madison supported empowering the national government with the authority to create charters of incorporation such as a national bank at the Constitutional Convention. He then, however, opposed the formation of a national bank on constitutional grounds in Congress in 1792. On the level of constitutional theory, many commentators contend that Madison’s speeches opposing the constitutionality of the national bank in the 1790s fundamentally contradict his famous defense of implied powers in Federalist No. 44. There, Madison defended the proposition that if the necessary and proper clause had not been written into the Constitution, it would have been necessary to interpret the document as if it had been anyway. He also wrote—in words oft-quoted in defense of broad construction and sometimes said to be the source of John Marshall’s defense of implied powers in McCulloch v. Maryland—that “no axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.”
Finally, many scholars point out that during discussion about the Bill of Rights in the First Congress, an addition was proposed to include the word “expressly” in what would become the Tenth Amendment. This language was designed to replicate the language of the second article of the Articles of Confederation. Had it passed, it would have reserved to the states and the people all powers not “expressly” given to the national government and virtually required strict construction of the new federal charter. Still, Madison helped to defeat this provision only two years before opposing the constitutionality of a national bank. Perhaps the most valuable and lasting contribution of Banning’s scholarship, is to establish that some dimensions of this familiar characterization are simply false, while others are fundamentally misleading. In particular, Banning establishes that Madison’s approach to constitutional interpretation was not instrumental to his understanding of the ends of Congressional power, that “respect for written limitations of authority was near the center of his [Madison’s revolutionary] creed,” and that this commitment “did not develop after 1789” but was apparent even “during the Confederation’s darkest years”—and indeed, throughout the period from 1780 to 1792. He supports these claims with numerous examples from the period from 1780 to 1792. Banning points out, for example, that Madison favored an amendment in 1781 to give Congress the power to coerce delinquent states (even though he believed that this power was implied in the Articles of Confederation) and initially opposed an effort to create a national bank in 1781 because he contended that the Articles of Confederation did not confer the power to create charters of incorporation on the national government. Banning also notes that Madison expressed his support for written limitations of authority in his public writings and in his speeches at the Constitutional Convention and in the Virginia Ratifying Convention.” Thus, according to Banning, the arguments that Madison used in the First Federal Congress to oppose the creation of a national bank “had been prefigured countless times through the preceding decade and on more than one occasion since the Constitution was approved.”
Considered collectively, the numerous examples that Banning supplies in The Sacred Fire of Liberty and his other writings should forever put to rest the myth that Madison was a broad constructionist in the 1780s. Here, however, we can buttress Banning’s claim for consistency in this area by explicitly providing four additional generalizations about Madison’s approach to constitutional interpretation throughout this period that, in my estimation, follow from Banning’s interpretation and Madison’s writings.
First, Madison’s approach to constitutional interpretation was complex and subtle, involving not only respect for written limitations of governmental authority, but also the inevitability of construction in constitutional interpretation, the recognition of implied powers, and the necessity of some means of differentiating legitimate from illegitimate appeals to implied powers. Conversely put, Banning’s account and Madison’s speeches and writings emphatically do not suggest that Madison believed that constitutional interpretation was either an unproblematic or a mechanical act, that Madison had a desiccated view of the powers of the Articles of Confederation or the Constitution, or that he ever rejected the doctrine of implied powers. Indeed, Banning observes that Madison sometimes second guessed himself and often agonized over how to proceed on matters of constitutional interpretation. Banning further observes that Madison’s profound respect for constitutional limitations on the powers of government was paralleled from the beginning of his career by an acceptance of the doctrine of implied powers. Madison’s “ordinary inclination” during his service in the Confederation Congress, Banning contends, “was to start with charter definitions of the boundaries between the central government and the states and to insist on both the full assertion of the powers granted Congress and a genuine regard for the authority remaining with the states. At times, such as when he was calling for the use of coercion to force delinquent states to pay their share of federal taxes or when he was fighting for measures relating to Congress’ power to conduct war, this approach led Madison to favor recognition of a limited category of implied powers. At other times, such as when he opposed the chartering of a national bank in 1781, this approach led him to fight against the expansion of Congressional authority.
Second, although Banning does not explicitly make this observation, his account suggests that Madison’s conception of constitutional interpretation did transform during the 1790s. During the 1790s, Hamilton’s efforts to use implied powers as a means of justifying the constitutionality of a national bank opened the door to what Banning calls “usurpations by construction.” At this point, Madison countered Hamilton’s defense of implied powers by developing specific criteria for differentiating legitimate from illegitimate implied powers. Specifically, Madison came to the conclusion that to consider whether a power was implicit in the Constitution, an interpreter had to consider not only “the degree of its incidentality to an express authority” but also “the degree of its importance,” since the latter consideration also helped to determine “the probability or improbability of its being left to construction.” Here, Madison’s essential point was that important powers (such as the chartering of a national bank) were not likely to have been left to implication by the drafters of the document. In addition, it was at this time that Madison also first set forth his belief that “the sense in which the constitution was understood and adopted” was the proper standard for determining the constitutionality of specific proposals. Both Madison’s test for the legitimacy of implied powers and his support for originalism were novel. Neither had been in his intellectual armor in the 1780s, but both were also clearly consistent with his commitment to written limitations on the authority of the national government.
Third, Madison’s positions on implied powers and the necessary and proper clause were essentially consistent throughout this period. To be sure, Madison had different emphases at different times. In The Federalist No. 44, he emphasized the inevitability of construction, but in his speeches of 2 and 8 February 1791 against the constitutionality of the national bank he emphasized the problem of limiting construction and preventing it from being used to justify any power however incidental to the express powers of the Constitution. Nevertheless, the understanding of the necessary and proper clause that Madison presented in Federalist No. 44 was virtually identical to the one that he presented in his Congressional speeches of 1791. In Federalist No. 44, he defended the proposition that even if the necessary and proper clause had not been written into the Constitution “all the particular powers requisite as means of executing the general powers would have resulted to the government by unavoidable implication. In his speech before Congress, he pointed out that the necessary and proper clause was “merely declaratory of what would have resulted by unavoidable implication, as the appropriate, and as it were, technical means of executing those powers.”
A strong case can also be made that Madison held a consistent position on the constitutionality of a national bank. In 1781, he opposed chartering a national bank even though he believed that one was necessary because of his respect for written limitations on governmental charters. In 1787, he sought to give the national government the power to create charters of incorporation because this power was so important that it should not be left to implication. Thus, in 1791, Madison did not believe that it was legitimate to justify by implication the creation of a national bank because this was such a “great and important” power and because the Convention had rejected it and that the people in the state ratifying conventions had neither authorized nor expected to be exercised. As James Read has recently written, what this suggests is that Madison, unlike Hamilton, “took very seriously what had been agreed upon” by the people.
Fourth, Madison’s approach to constitutional interpretation was distinct from—and indeed superior to—the slippery slope of Hamiltonian broad construction and the straightjacket of Jeffersonian strict construction. Madison was really neither a “broad” nor a “strict” constructionist, and he certainly did not transform from one into the other. Like Hamilton, Madison accepted the inevitability of construction and the doctrine of implied powers, but unlike Hamilton, he supported only those implied powers that were “evidently; and necessarily involved in an express power.” Conversely, he did not believe that it was proper to use implication as a device for deriving constitutional powers and, unlike Hamilton, he also did not see the public good as the only restraint to federal power. But unlike Jefferson, Madison did not argue against the existence of implied powers, suggest that the Constitution could act as a straightjacket, or imply that constitutional interpretation could ever approach a self-evident or mechanical act.
Confronting the Revision: Three Challenges to Banning’s Interpretation
In contrast to his claims that Madison held consistent understandings of political economy, the scope of federal power, and constitutional interpretation, however, Banning’s efforts to diminish the importance of Madison’s theory of the extended republic, his claims that Madison consistently supported “the people’s active and continuing participation” in the political system, and his contention that Madison was committed to a republican conception of liberty are more problematic.
First, as previously mentioned, Banning has argued that the tenth Federalist Paper has too frequently been seen as the key to the whole of Madison’s political thought. Excessive emphasis on this document at the expense of Madison’s other writings, as well as the tendency to interpret it through the perception of post-New Deal understandings of the role of the national government, have contributed to numerous misreadings of it and the contention that Madison was a Hamiltonian consolidationist.
Given the amount of interpretation that has been devoted to Madison’s theory, it would be hard to argue that the theory of an extended republic has not received enough attention. Banning is certainly also correct that “the history of modern interest in the tenth Federalist Paper is too nearly the replacement of one misreading with another.” Specifically, his contention that the argument for the election of elite representatives from expanded electoral districts was not Madison’s central point and that the extended republic was not part of an effort by Madison to consolidate power in the national government. As Banning points out, Madison fought to double the number of representatives twice during the Constitutional Convention—an outcome that would have significantly diminished the size of electoral districts. Furthermore, the argument for expanded electoral districts is clearly defended in Madison’s writings as a “secondary and subsidiary” point. Nor did he believe that a consolidated republic was either desirable or possible. His extended republic was a compound composed of a collection of small republics (the state governments) that retained the lion’s share of governmental powers and purposes. To the degree that these strictures provide a corrective against ahistorical interpretations of Madison’s theory and counter the endless commentary—much of it politically motivated—that looks to Madison’s theory of an extended republic as a foundational exposition of a contemporary political ideology, they are certainly welcome.
Nevertheless, there are compelling reasons why an historically accurate interpretation of Madison’s theory places it at the center of his political thought. Banning is incorrect when he maintains that Madison did not hope to establish the national government as an impartial arbiter or administrator among the nation’s many interests and sections. Actually, not only was establishing the national government as an impartial administrator what Madison’s theory of an extended republic was all about, but impartiality was the heart of Madison’s conception of justice, and a concern for impartial justice provides yet another—indeed, perhaps the broadest and most foundational—thread of continuity between Madison’s goals in the 1780s and 1790s.
To fully establish these claims, we need to use the same developmental approach that Banning advocates and first examine the construction of Madison’s theory. In particular, Madison constructed his theory of an extended republic as he thought through the problem of how to address the multiplicity, mutability and especially the injustices of state laws. Madison settled upon the idea of lodging a power in the national government to negate state laws “in all cases whatsoever.” Although this was the same power that the King had exercised (and abused) in relation to the colonies, Madison saw it as the only possible remedy for solving these problems. Nevertheless, Madison fully understood that the national government might develop an interest independent of the people. Thus, he believed that the national government should be controlled by the people, limited in its powers, and that the territory over which its power extended should be confined to a sphere in which the people could defend their rights if this became necessary. Even more important, he knew that the national government would operate on the principle of majority rule as the state governments had. If both the national and state governments operated on the principle of majority rule, he asked, then how could the national government be trusted to be sufficiently neutral to exercise the universal veto? Why would it not also be overtaken by majority factions in the same way that the state governments had in the mid-1780s?
Madison answered this question with his theory of an extended republic. An extended republic, he argued, would embrace a greater variety of interests than the state governments had, making the national government less likely than the state governments to be overtaken by an “interested and overbearing majority.” In an extended republic, Madison believed, the national government would be sufficiently dependent on the people because of its elective basis to keep it from developing an interest adverse to the whole society, but it would be sufficiently neutral between the many interests of the nation to qualify it to exercise the universal negative.
All of this is by now familiar to Madison scholars. But what is important here is that, contrary to what Banning explicitly states, the loss of the universal veto at the Convention did not end Madison’s efforts to establish the national government as an impartial or disinterested arbiter between the nation’s many interests. The loss of the universal veto meant that the national government would be unable to intervene directly within the states and protect the rights of individuals and minorities. This is why the loss of the negative was so devastating for Madison. Nevertheless, even after the loss of the universal negative, Madison continued to believe that the national government should still be an impartial administrator or disinterested arbiter in disputes between the nation’s many interests or sections, within the sphere of its limited powers.
The evidence for this is extensive. Even as he made preparations to attend the First Congress, Madison called impartiality “the vital principle of administration” in republics. In his writings for the National Gazette and his speeches in the first Congresses between 1789 and 1792, Madison refined (or perhaps more fully revealed) his conception of justice as impartiality. Generally speaking, Madison understood impartiality as the equal protection of rights and the equal distribution of benefits and burdens. Impartial justice, he also contended, demanded that those who sacrificed the most should benefit, that those who benefited should sacrifice, and that the burden should be in proportion to the ability to pay. Thus, the poor should pay proportionally less than the rich. Conversely, impartiality was opposed to “privilege” and to “interestedness”—especially to politicians who attempted to secure undue benefits for particular groups and who took part in decisions from which they directly benefitted.
In the first Congress, Madison embodied the role of an impartial arbiter and admonished his colleagues to follow his example. In the tenth Federalist Paper, he had observed that “the apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality.” In debates on impost duties, he sought to construct and convince his colleagues to adopt a scheme of taxation that distributed burdens among the products of the nation in such a way as to equally burden each interest and section of the nation but also not to overburden the poor. When New England representatives balked at accepting their proportion of the public burden, Madison rebuked them for seeking privilege and for their unwillingness to accept mutual concessions.
Madison’s transformation on discrimination between secondary and original holders of the national debt was likewise driven by his understanding of justice as impartiality and his desire to have the national government serve as an impartial arbiter. In 1782, it will be remembered, Madison had condemned discrimination between original and current or secondary holders of government certificates. In 1790, however, he changed his mind and argued that the secondary holders should be given the highest market price that the securities had demanded plus interest, and the original holders should receive the difference between the market value and the face value. Part of Madison’s antagonism to paying only the current holders can doubtlessly be attributed to the vehement antipathy that he shared with most Virginians for speculation—an activity that, in Madison’s mind, was little different than gambling. Part of it also doubtlessly resulted from the fact that the debt had been transferred from ordinary citizens from all regions of the nation to monied interests in the Northeast.
Still, one of the central reasons that Madison believed that the original holders had to be compensated was because any other policy was an affront to impartial justice and because through this policy the government could show its “honesty and disinterestedness.” The original holders were the individuals who had sacrificed for the union at its time of greatest peril. Nevertheless, the original return from the securities that they had expected and which the government had promised had never been fulfilled. Instead, they had been “forced” by circumstances to accept depreciated securities as payment and then to sell them for whatever they could get on the market. If some recognition was not made of their claims, then not only would they have been treated unfairly originally, but they would now be asked to pay taxes to award those who had benefited from their misfortune. In general, in arguing for discrimination between the present and original holders of the debt, Madison was acting as an arbiter and following the dictum from the tenth Federalist that “justice ought to hold the balance between” the claims of conflicting parties. Holding the balance here certainly involved a recognition of the very real claims of present holders of the certificates, but justice also demanded that the claims of the original holders be at least partially fulfilled.
In the broadest possible sense, then, Madison’s understanding of justice as impartiality is a core thread connecting the 1780s with the 1790s. During the 1780s, interested majorities within the states and in Congress and sectional conflicts in Congress had threatened individual rights and prevented the impartial distribution of public benefits and burdens. During the 1790s, the Hamiltonian faction represented, in Madison’s eyes, an effort by a partisan and interested minority faction which sought special advantages for New Englanders in general and the manufacturing and mercantile occupations in particular. The threats of the 1780s and the 1790s emanated from different sources and had to be countered through different strategies. The threats of the 1780s came from majority factions and had to be addressed by distancing the people through various means from direct influence in the government. The threats of the 1790s came from a minority faction and had to be addressed by consolidating the will of the people against the government. Nevertheless, whether “interested” majorities or “interested” minorities posed the threat and whether the proper remedy was creating a gap between the people and their representatives or closing that gap, Madison’s understanding of the proper goal of government was the same: impartial administration that protected individual rights and treated all sections, interests, and classes of people in the United States fairly. Perhaps most importantly, Madison was never simply a friend of the rich or of the poor, or of creditors or debtors. Instead, he defended the impartial protection of all property, whether of the rich or the poor, the creditor or the debtor. If that proposition is taken seriously and explored, then Madison’s opposition to paper money in the 1780s (which harmed creditors) is of a piece with his advocacy of discrimination (which was designed to help ordinary citizens).
A second challenge to Banning’s interpretation of Madison can be issued against his contention that Madison sought “the people’s active and continuing participation” in the political system. Although much of what Banning says in favor of this proposition is sensible, the claim itself is exaggerated. Certainly, Banning is correct that Madison never believed that majority tyranny was the only kind of tyranny that was possible in the American republic. Banning’s account illustrates that even Madison’s fears of majority tyranny did not result simply from excesses within the states. Madison reached the height of his contempt for the “maxim” that “the interest of the majority is the political standard of right and wrong” and issued one of his most famous and oft-quoted outbursts against majority tyranny when seven northern states led by John Jay sought to have the national legislature sacrifice navigation rights on the Mississippi. Thus, the tyranny of sectional majorities at the national level, not simply popular majorities at the state level, was on Madison’s mind in the mid-1780s.
In general, Banning is also correct that Madison was a consistent defender of “popular control” of the government by the people. Here, Banning’s efforts to counter the characterization—inherited in the Progressive historians and still made by many leftist scholars today—that Madison was an opponent of democracy are well founded. Indeed, we can strengthen Banning’s case here by emphasizing that even in 1787 Madison hoped only that factious majorities would be prevented from forming by the diversity of the extended republic. He did not hope to prevent the formation of all popular majorities. As Banning also observes, from Madison’s perspective in the mid-1780s, it hardly seemed necessary to create means of summoning popular participation and creating public pressure against the government.
Nevertheless, we risk falling into two problems—both of which emerge in Banning’s work—if we take these lines of interpretation too far and build them into the proposition that Madison was a fervent—rather than a sober—defender of democracy. First, we end up suggesting that Madison was a different kind of democrat than he was in the 1780s. Put briefly, although Madison certainly did not abandon a commitment to the principles of popular government and the system that he defended was consistent with those principles as he and his contemporaries defined them, Madison had a minimal and sober understanding of democracy in the 1780s based on the belief that the people had the ultimate right to control public policies, not a conception of democracy that stressed the people’s active and continuous participation in politics. Furthermore, Madison did not simply have apprehensions about the effects of popular government during the 1780s. The constitutional reforms that he favored were designed, at least in part, to prevent the national government from directly reflecting the views of popular majorities in the way that the state governments had in the mid-1780s. Madison, in other words, did not want a distant and unresponsive national government, but he did want a more distant and less responsive one than had been the case with the state governments.
At the Constitutional Convention, Madison favored three-year terms for representatives, seven-year terms for Senators, and believed that life-terms for the President should be seriously considered because of the importance of Executive independence. He also gave qualified assent to a freehold requirement for voting for members of the House of Representatives. The Constitution that he eventually defended, it should be remembered, had only one directly popularly elected branch of government. Furthermore, expanded electoral districts were designed to secure the election of better leaders who would “refine and enlarge the public views”; extent of territory was designed to prevent factious majorities from realizing the strength of their numbers and acting in concert. In general, the system of separation of powers that Madison defended was designed first to check the legislative branch–the most popular branch, and the one which Madison feared would draw all power into its “impetuous vortex.” 
Madison, then, was hardly a participatory democrat and was a moderate even among his contemporaries. James Wilson was a much more consistent defender of direct popular elections at the Constitutional Convention. Madison would also have never supported the definition of republicanism as the direct participation by the mass of citizens that Jefferson arrived at after his Presidency, or Jefferson’s proposal for radically decentralized democracy through “ward republics.” Finally, contrary to Banning’s suggestion, Madison was not committed to conserving the “most profoundly revolutionary institutions and convictions of his time.” The most revolutionary institutions of Madison’s time were the state governments. The structural reforms he sought at the Constitutional Convention were not simply designed to address the structural defects of the Articles of Confederation, but also to prevent the national government from inviting the problems of excessive democratization that had taken place within the states. Madison sought to create distance between the government and the people in 1787 because he valued other goals in government—especially energy, stability, and the protection of liberty—that he believed would be endangered by more direct citizen involvement. Unlike many scholars today, he did not equate democratic government with good government.
Correctly characterizing Madison’s conception of democracy is important because, if we depict Madison as a thoroughgoing democrat in the 1780s, then we miss seeing how his understanding of the proper relationship between the public’s views and the government transformed from the 1780s to the 1790s. In particular, as Madison came to the realization that the government he had created was subject to the problem of minority factions to a degree that he had not previously expected, he had to find means of bridging the extended republic, of creating avenues of information to the people about the actions of their government and of promoting collective action among the people. The circulation of newspapers became a piece of the answer to this problem. The formation of a political party was another. The development of a democratic conception of the role of public opinion in the American political system became a third. We need not interpret these developments within Madison’s political thought, like Zvesper and other scholars, as reversals of Madison’s previously held positions. But they are developments that we will fail to appreciate fully if we do not observe that Madison the sober democrat had to become a more committed and theoretically sophisticated defender of democracy in the 1790s than he had been in the 1780s in order to promote Jeffersonian principles and programs.
Ultimately, this discussion of Madison’s commitment to democracy should also lead us to a third challenge to Banning’s work, namely to his contention that “we seldom fully recognize how constantly and consciously he [Madison] was himself intent on the protection and perfection of a democratic Revolution,” that what most distinguished him from the other Founders was that Madison conceived of the republican experiment in “early-revolutionary terms,” and that Madison was deeply committed to the defense of liberty in both its liberal form as the protection of individual rights and its republican form as popular control that demanded vigilant continuous participation by the citizenry.
In general, this contention is part of Banning’s continuing challenge to an exclusively liberal interpretation of the American Founding. Throughout the 1980s and into the 1990s, scholarship on the American Founding was of course dominated by the question of whether the political thought of the Founders is best characterized as a species of “Lockean liberalism” or “classical republicanism.” Banning’s early contribution to this debate was The Jeffersonian Persuasion. Here, he countered Gordon Wood’s now infamous claim that the formation of the Constitution marked “the end of classical politics” and the beginning of a “new science of politics” based upon the interests of the people. The political programs and ideas of the Jeffersonian Party, Banning firmly established, were deeply influenced by the same constellation of ideas—including opposition to standing armies, public debts, unbalanced constitutions, governmental patronage, and corruption—that Bernard Bailyn had established as central to the ideological origins of the American Revolution, and that one of Banning’s dissertation advisors, J.G.A. Pocock, had linked with classical conceptions of virtue and liberty and labeled classical republicanism.
As the debate progressed, Banning became one of the first scholars to suggest that a simple choice between liberalism or republicanism was the wrong way to proceed in this debate. Instead, he stressed the complexity and ambiguity of the Founders’ intellectual inheritance and the tensions within their thoughts, and he maintained that scholars should try to understand the terms upon which the Founders combined diverse intellectual traditions. Like the other participants, Banning has also learned immensely from this debate—especially about how political theorists characterize classical republicanism—and has thus made adaptations in his understanding of how to characterize properly the political thought of the Founders.
In The Sacred Fire of Liberty, Banning now pursues a complex argument that at once suggests that Madison’s political thought cannot be identified literally as ancient or classical, but that also seeks to establish that Country party ideology was as significant to Madison in the 1780s as it became to him in developing the Jeffersonian Persuasion in the 1790s—and that Madison held a passionate, even romantic, defense of liberty.
Certainly, Banning’s contention that Madison’s refusal to choose between the protection of individual rights and political participation was his most distinguishing feature as a Founder is well taken. In one sense, this argument subtly restates the common interpretation that Madison’s most profound intellectual struggle was to reconcile majority rule with the protection of individual rights. Nevertheless, Banning’s claims about the role of early revolutionary thinking in Madison’s thought (which I take to be analogous to Country party ideology) raises more perplexing issues. Banning and Stanley Elkins and Eric McKitrick have decisively established how this constellation of ideas manifested itself in Madison’s Anglophobia, his opposition to the permanent debt and speculation that came with Hamilton’s system of public finance, and his commitment to written limitations of authority. But how was Country party ideology or early Revolutionary thinking anything but an obstacle to the goal of designing and defending an effective national government? How, in other words, was an ideology framed by suspicion of power and belief in the fragility of liberty helpful in the establishment of a government powerful enough to govern a continental union of unprecedented expanse?
Furthermore, did Madison really have a “republican” conception of liberty? And what indeed does Banning mean by this claim? Does Banning mean simply that Madison believed that the people should have ultimate control over the government? Or is he suggesting by the assertion that Madison was committed to the vigilant continuous participation of the people in their political system, that Madison understood liberty as “positive” liberty and believed that political participation by the citizenry was necessary to the full expression and development of the human personality? Madison’s writings and papers, I would suggest, do not support the contention that Madison conceived of man as a zoon politikon or believed that political participation was somehow an expression of the human personality. Moreover, there is a substantial distance between the “popular control” from which Madison would not compromise and a fervent commitment to positive liberty.
Here, Banning seems to fall into the same error that Michael Zuckert has identified in the scholarship of J.G.A. Pocock: Banning treats “Country Party Ideology” as a complex chain of ideas, and when he espies one dimension of the chain he attributes all of the links of the chain. “Country Party” or “early revolutionary ideology” is indeed very helpful in explaining many of Madison’s commitments and beliefs in the period from 1780 to1792. Nevertheless, it is wrong to suggest that a republican conception of liberty was a central component of that ideology. Put succinctly, Banning convincingly documents the influence of Country party ideology in Madison’s commitment to written limitations of authority, his opposition to debt, privilege, corruption, and speculation. But he does not establish that Madison had a genuinely republican conception of liberty which suggested that political participation was necessary as a means of human self-fulfillment.
Applying the Revision: Reconsidering Madison and the Founding
Whatever conclusions we reach about these challenges to and qualifications of Banning’s interpretation, it should be readily acknowledged that Banning has given us an illuminating and comprehensive revision of the contours of Madison’s political thought and the course of his political career. At this point, it now remains for scholars to explore how this interpretation should revise our understandings of the character of Madison’s political thought, his place within the American Founding, and the intellectual and institutional foundations of the American republic.
In particular, three areas are especially promising. First, Banning’s interpretation and a number of other excellent recent studies have set forth insights for establishing—in the face of Zvesper’s claim—that Madison’s political thought can be understood as a single, coherent constellation of ideas. Such an interpretation of Madison’s political thought as a single “system” can build upon Banning’s contentions that Madison was a “structural” nationalist who believed that the scope of federal responsibilities should be severely limited and held a modified version of strict construction. It should also emphasize Madison’s undisputed consistency in the protection of civil liberties and stress the importance of his conception of political economy (including not only his opposition to debt and speculation but also his plan for using landed expansion as a means of stalling economic development at the commercial-agrarian stage) and its place in his vision of the nation’s future. Finally, such an analysis should establish the importance of enduring, deliberative majorities in Madison’s political thought. Most important, an exploration of these major components of Madison’s political thought and their interrelationships should provide an interpretation of Madison that establishes his distinctiveness not only from Hamilton, but also from Jefferson.
Second, Banning’s interpretation explicitly calls for a reconsideration of the familiar characterization of Madison as the quintessential Federalist, and the Federalists themselves as a homogeneous group. Heretofore most scholarship on the American Founding has rested on the straightforward but obviously simple-minded assumption that all Federalists were nationalists, commercial republicans, and exponents of the “new science of politics” of Locke and Hobbes, while the Anti-Federalists were agrarians, localists, and proponents of a diluted—if still viable—strain of classical republicanism. Nevertheless, as Banning’s account decisively establishes, neither Madison’s political career nor his political thought make sense when examined through the lens of this interpretive construct. Madison was indeed a continentalist, but one with considerable respect for written limitations of authority and a concomitant respect for the powers and duties of the states. All of this, moreover, was inseparably linked to his distinctly western, agrarian, and Jeffersonian vision of the nation’s future.
Was Madison then simply an anomaly among the Federalists? Banning flirts with this possibility throughout The Sacred Fire of Liberty. Madison, Banning observes, shared Hamilton’s contempt for the weaknesses of the government under the Articles of Confederation and his fear of majority tyranny. He was nevertheless no less repelled than Patrick Henry by Hamilton’s vision of national splendor. Furthermore, Madison was as concerned as Henry, Edmund Randolph, and George Mason with protecting Virginia’s interests and preventing northern domination of the South. Unlike these delegates, however, Madison attributed the sectional conflicts that threatened southern interests to the weaknesses of the government established by Articles of Confederation, and he believed that ratification of the Constitution would provide an agricultural majority in Congress that would help shield southern interests from injustice. Furthermore, he believed that the Revolutionary War had shown that these states were peculiarly vulnerable to attack from foreign nations and that they thus needed the protection afforded by a strong army gathered from all of the states. In general, Banning portrays Madison as a Federalist who was uniquely sensitive to Anti-Federalist fears and arguments, not because he abstractly sympathized with them, but because his Virginia upbringing, experiences in Congress, and revolutionary creed conditioned him to share their concerns.
Profoundly provocative, this thread of Banning’s interpretation nevertheless has important implications and raises bedeviling questions. In particular, Banning’s analysis of Madison as at once indispensable to the Founding and anomalous among the champions of the Constitution raises—perhaps unintentionally—a constellation of questions about our perception of Madison’s place in the Founding and the reasonableness of some of his beliefs and expectations. At a minimum, there is a tension between portraying Madison’s positions, values, and attitudes as unique and considering him influential. Certainly, in one sense, Banning successfully reinforces the common view that Madison was indispensable to the Founding because of his multiple roles: as principal architect of the Virginia resolutions and semi-official reporter at the Convention, as one of the authors of The Federalist, as champion of the Constitution against Patrick Henry in Virginia, as champion of the Bill of Rights in the First Congress, and as co-founder of the Jeffersonian Party. Nevertheless, by emphasizing the differences among Federalists and establishing Madison’s uniqueness, Banning raises questions about whether or not it is really justifiable to privilege Madison’s understanding of the Constitution. Have we been so taken by the sophistication and persuasiveness of Madison’s account that we have simply supposed that it was commonly shared? Do we not need to consider the possibility, as Larry Kramer has recently suggested, that Madison was so advanced in his theoretical understanding of the Constitution that few of his colleagues accepted his arguments or even understood his point? Furthermore, if, as Banning suggests, even supporters of the Constitution had fundamentally different visions of the nation’s future and different understandings of the set of public policies that it was meant to enact, then did Madison fail to perceive this or did he simply trust that Hamilton and the East Coast “economic nationalists” would be willing to accept the Constitution as it had been understood when it was ratified? The belief that Madison simply trusted Hamilton suggests that he was naive and seems to verify the judgment of the Virginia Anti-Federalists who admonished Madison in the 1790s for his earlier assurances that the Constitution would help to secure Virginia’s interests. Finally, if the nation’s leaders were divided over the meaning of the Constitution and the future of the republic, then how did Madison come to believe that the people had been any more united in their beliefs and thus that there was an authoritative public understanding of the meaning of the document that could be enforced as the sole legally binding one?
Third, Banning’s work also challenges us to rethink the image of Madison as the quintessential modern and the “coldly realistic founder of a modern governmental theory.” Those who turn to Banning’s work expecting to encounter Madison hoping to construct a political system that would unleash self-interest will read instead of Madison’s “hostility to privilege,” contempt for “speculative greed,” his antipathy for “land mongers,” his opposition to lobbying and representatives who were immediately and personally interested in the outcome of legislation that they advocated, his desires to promote “mutual concessions” and to have states, regions, and interest share “common burdens,” and his desire to foster a “spirit of disinterested attention to the needs of every region.” Those who expect to read of Madison steadfastly protecting the rights of property and contract at the expense of democratic participation or defending a political system that limited future efforts to redistribute property will read that, had it been enacted, Madison’s plan to discriminate between the present and previous holders of the debt would have been, “as bald a governmental interference in existing private contracts as any of the local legislation that Madison had frequently condemned.” Ultimately, scholars will encounter a Madison who is a “republican idealist,” a “dedicated moralist,” and perhaps even “hopelessly romantic.”
When combined with his beliefs about strict construction and limited government, this interpretation brings out the complexity and ambiguity of Madison’s political thought and establishes that it cannot be easily evoked—in totality, at least—to support the political agendas of either the right or left in contemporary American politics. Like many members of the right, Madison favored strict interpretation of the Constitution, adherence to its original meaning, and he jealously guarded the powers of the states. Still, unlike the contemporary right, he was no friend of state-sponsored commercial capitalism or speculative wealth and did not believe that an “invisible hand” would reorder private vices into public virtues. Like many on the left, Madison was an opponent of government regulation of the press, an advocate of essentially strict separation of church and state, and he hoped to establish a government that would elevate government above private interests. But unlike many on the left, he showed a profound and consistent respect for constitutional limits of authority. In breaking down any clear lines from the past to the present, Banning reminds us that our struggles, questions, and concepts are often not the same as those undertaken by the Founders and that if we want to learn from them we must first grasp their self-understanding and the meaning they intended to convey to their contemporaries. Only then are we in a position to make the kinds of translations that are necessary to understand how they speak to us.
Ultimately, Banning’s scholarship may offer two paradoxical lessons about Madison’s relevance. First, a good faith effort to locate in Madison and the Founders the origins of particular strengths and weaknesses within the American political system and American society may lead us to discover that “they are only distantly and partially responsible for what we like or hate about America today.” Second, scholars who ransack Madison’s writings while fastened to contemporary interpretive conventions and armed with political agendas may never find him or establish his relevance. But those who engage in the arduous task of first trying to understand him as he understood himself—and was understood by his contemporaries—may find the historical Madison rewarding and relevant precisely because his views are not framed by our scholarly conventions and political concerns. In all of this, there is the possibility that we often need not look to the stars or to Madison but in ourselves for the source of our problems: There is also the possibility that Madison saves his most useful, profound, and unexpected insights for scholars who, like Lance Banning, first read him carefully, and in historical context.
This essay in our series of “Timeless Essays” was first published here in November 2013. Republished with the gracious permission of The Political Science Reviewer (2003). The Imaginative Conservative applies the principle of appreciation to the discussion of culture and politics—we approach dialogue with magnanimity rather than with mere civility. Will you help us remain a refreshing oasis in the increasingly contentious arena of modern discourse? Please consider donating now.
1. The interpretation presented above is a synthesis of the views of many scholars. In particular, however, see E. James Ferguson, “The Nationalists of 1781-1783 and the Economic Interpretation of the Constitution,” Journal of American History 56 (1969), 241-261; Irving Brant, James Madison (Indianapolis: The Bobbs-Merrill Co., 6 vols., 1941-1961), especially volume II James Madison: The Nationalist, 1780-1787; George Carey, In Defense of the Constitution (Indianapolis: Liberty Fund, Inc., revised and expanded edition, 1995), 77-121, especially 80-94. For the most unqualified interpretation of the “Hamiltonian Madison” see Garry Wills, Explaining America: The Federalist (Garden City, NY: Doubleday, 1981).
2. John Zvesper, “The Madisonian Systems,” Western Political Quarterly 37 (1984), 236-256.
3. The most subtle versions of this interpretation are found in Gordon Wood, The Creation of the American Republic, 1776-1787 Chapel Hill: University of North Carolina Press, new edition 1998), especially 391-564, 593-615; As Far as Republican Principles Will Admit: Essays by Martin Diamond ed. William A. Schambra (Washington D.C.: The AEI Press, 1992), especially 17-36, 337-368.
4. For a review essay that documents this challenge see Alan Gibson; “The Madisonian Madison and the Question of Consistency: The Significance and Challenge of Recent Research,” in The Review of Politics 64 (Spring 2002), 311-348. For the specific revisions of these authors see Drew McCoy, The Last of the Fathers: James Madison & The Republican Legacy (Cambridge: Cambridge University Press, 1989); McCoy, The Elusive Republic: Political Economy in Jeffersonian America (Chapel Hill: University of North Carolina Press, 1980), esp. 120-135; Michael P. Zuckert, “Federalism and the Founding: Toward a Reinterpretation of the Constitutional Convention,” The Review of Politics 48 (1986), 166-210; Zuckert, “A System Without a Precedent: Federalism in the American Constitution” in The Framing and Ratification of the Constitution ed. Leonard W. Levy and Dennis J. Mahoney (New York: MacMillan Publishing Co., 1987), 132-150; Colleen A. Sheehan, “Madison’s Party Press Essays,” Interpretation: A Journal of Political Philosophy 17 (Spring 1990), 355-377; Gary Rosen, American Compact: James Madison and the Problem of Founding (Lawrence: University Press of Kansas, 1999); James Read, Power Versus Liberty: Madison, Hamilton, Wilson, and Jefferson (Charlottesville: University Press of Virginia, 2000); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996); Rakove, James Madison and the Creation of the American Republic (Glenview, Illinois: Scott, Foresman/Little, Brown Higher Education, 1990); Rakove, “The Madisonian Moment,” University of Chicago Law Review 55 (Spring, 1988), 473-505; Cass Sunstein, “Interest Groups in American Public Law,” Stanford Law Review 38 (November 1985), 29-87; Gibson, “Impartial Representation and the Extended Republic: Towards A Comprehensive and Balanced Reading of the Tenth Federalist Paper,” History of Political Thought 12 (Summer 1991), 263-304; Gibson, “The Commercial Republic & the Pluralist Critique of Marxism: An Analysis of Martin Diamond’s Interpretation of Federalist 10,” Polity 25 (Summer 1993), 497-528, 537-545.
5. See Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca, NY: Cornell University Press, 1995), the conclusions of which are crystallized in Banning, “James Madison: Memory, Service, and Fame” in The Noblest Minds: Fame, Honor, and the American Founding ed. Peter McNamara (Lanham, Md.: Rowman & Littlefield Publishers, Inc., 1999), 121-140. Banning set forth many of the arguments included in Sacred Fire in a series of articles published throughout the 1980s. See “The Moderate as Revolutionary: An Introduction to Madison’s Life,” The Quarterly Journal of the Library of Congress 37 (1980), 162-175; “James Madison and the Nationalists, 1780-1783,” William and Mary Quarterly 40 (1983), 237-255; “The Hamiltonian Madison: A Reconsideration,” Virginia Magazine of History and Biography 90 (1984), 3-28; “James Madison and the Dynamics of the Constitutional Convention,” The Political Science Reviewer 16 (1987), 5-48; “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, Stephen Botein, and Edward C. Carter II (Chapel Hill: University of North Carolina Press, 1987), 162-187; “The Constitutional Convention,” in The Framing and Ratification of the Constitution ed. Leonard W. Levy and Dennis J. Mahoney (New York, NY: Macmillan, 1987), 112-131; “1787 and 1776: Patrick Henry, James Madison, the Constitution, and the Revolution” in Toward a More Perfect Union: Six Essays on the Constitution ed. Neil Y. York (Provo, UT: Brigham Young University Scholarly Publications, 1988), 59-89; “Virginia: Sectionalism and the General Good” in Ratifying the Constitution: Ideas and Interests in the Several American States ed. Michael Allen Gillespie and Michael Lienesch (Lawrence: University Press of Kansas, 1989), 261-299; “James Madison, the Statute for Religious Freedom, and the Crisis of Republican Convictions,” in The Virginia Statute For Religious Freedom: Its Evolution and Consequences in American History ed. Merrill D. Peterson and Robert C. Vaughan (Cambridge: Cambridge University Press, 1988), 109-138; “Political Economy and the Creation of the Federal Republic,” in Devising Liberty: Preserving and Creating Freedom in the New American Republic ed. David Thomas Konig (Stanford, CA: Stanford University Press, 1995), 11-49.
6. Banning, Sacred Fire, 2, 9, 4.
7. Of the major reviews of Banning’s work only Robert Becker’s even alludes to its highly revisionary character. See, for example, Robert Becker, review of The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic, by Lance Banning, American Historical Review 102 (December 1997), 1562-1563; Richard Matthews, review of Jefferson and Madison: Three Conversations from the Founding and The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic, by Lance Banning, The William and Mary Quarterly 54 (July 1997), 663-667; Vincent McGuire, review of The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic, by Lance Banning, American Political Science Review 90 (December 1996), 884; Gary Rosen, review of The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic, by Lance Banning, First Things 63 (May 1996), 45-47; J.C.A. Stagg, review of The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic, by Lance Banning, The Journal of American History 83 (September 1996), 603-604.
8. Banning, Sacred Fire, 13.
9. Ibid., 98.
10. Ibid., 116.
11. Ibid., 213.
12. Ibid., 207.
13. Ibid., 209.
14. Ibid., 214.
15. Ibid., 112.
16. Ibid., 191.
17. Madison’s claims to consistency and his contention that Hamilton abandoned him can be found in Madison to C. E, Haynes, 25 February 1831, The Writings of James Madison ed. Gaillard Hunt (New York: G. P. Putnam’s Sons, 1910), IX, 442.; N. P. Trist, “Memoranda,” 27 September 1834 in The Records of the Federal Convention of 1787 ed. Max Farrand (New Haven, CT.; Yale University Press, 1966, 4 vols.), III, 534.
18. Banning, Sacred Fire, 143.
19. Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788-1800 (New York: Oxford University Press, 1993), especially 105-106, 224, 229-232.
20. Banning’s position on Madison’s conception of political economy is set forth most comprehensively in “Political Economy and the Creation of the Federal Republic,” 11-49. For the view of Madison and the Framers as social conservatives and proto-capitalists see Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (Chicago: University of Chicago Press, 1990).
21. Charles Hobson, “The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government,” The William and Mary Quarterly 36 (April 1979), 215-235. The quotation is at 218; Carey, In Defense, 87.
22. In addition to the scholarship of Hobson and Carey, the use of this evidence is used in support of a Hamiltonian interpretation of Madison’s position on the scope of federal powers and the relationship of the states to the national government is most visible in Brant, James Madison, III, especially 12-13, 23-31; 35-38, 76-77, 85-89, 127-129, 132-139, 149-150, 155.
23. See in particular The Federalist ed. Jacob Cooke (Middletown, CT: Wesleyan University Press, 1961), Nos. 18-20, 110-129, No. 46, 315-323.
24. The most famous of these vested in Congress the power 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.” Notes of Debates in The Federal Convention of 1787 Reported by James Madison ed. Adrienne Koch (New York: W.W. Norton & Co., 1987), 30-32. The quotation is at 31.
25. “Speeches of 21 and 28 June, 1787,” The Papers of James Madison ed. William T. Hutchinson (Chicago and Charlottesville, 1962-), X, 67-68, 79-82. Hereafter cited as PJM.
26. Hobson, “The Negative on State Laws,” 215-235.
27. “Speeches of 18 August and 14 September, 1787,” Notes of Debates, 477-478, 638.
28. Madison to Jefferson, October 24, 1787, PJM, X, 205-220.
29. See especially The Federalist Nos. 18-20, 45-46, 110-129, 308-323; “Speeches of 21 and 28 June, 1787,” PJM, X, 67-68, 79-82; Zuckert, “Federalism and the Founding,” 204.
30. Banning, Sacred Fire of Liberty, 159-161 and notes 67 and 68 on 454-455. See also Michael P. Zuckert, “Federalism and the Founding,” 177-180, 183-185.
31. Banning, Sacred Fire of Liberty, 163; Madison to George Washington, April 16, 1787, PJM, IX, 383. “Speech of 30 June, 1787,” PJM, X, 91.
32. Michael Zuckert’s analysis of the universal negative parallels and reinforces Banning’s. The universal negative, Zuckert points out, was analogous to the royal prerogative to veto laws of the colonial legislatures. “The parallel with the royal veto power,” Zuckert writes, “is instructive, for it indicates Madison’s view that the power to deal with encroachments is not part of the ordinary legislative power but is indeed closer to an executive power. It was, after all, a negative power, a veto, a power to refuse to assent to laws, and not a positive power to make law, which Madison turned to here. There is no hint that Madison favored granting the legislature of the general government plenary or full legislative power.” Zuckert also points out that John Dickerson and others who not among the nationalists at the Convention nevertheless favored Madison’s universal negative-an indication that it was viewed by the delegates as giving the national government finality within its limited sphere, not expanding that sphere. Zuckert, “Federalism in the American Constitution,” 145.
33. “Speech of 30 June 1787,” PJM, X, 90.
34. Hamilton’s speech of18 June, 1787 is in Notes of Debates, 129-139. The quotation is at 138.
35. Banning, Sacred Fire, 164.
36. The Federalist No. 44, 304-305.
37. Sacred Fire, 38, 22.
38. Banning’s analysis of Madison’s conception of constitutional interpretation can be found in Ibid., 21-22, 92, 158-162, 221, 246, 276-279, 282, 325-333, 345-346, 377, 382-384. See also Rosen, American Compact, 159.
39. Banning, Sacred Fire, 161.
40. Ibid., 330.
41. See for example Banning’s discussion of Madison’s concerns over the constitutional issue raised by the question of the removal power of the President. Ibid., 276-279.
42. Ibid., 26. Banning’s emphasis.
43. Ibid., 21-22.
44. Ibid., 387.
45. Ibid, 326; “Speech of 2 February, 1791,” PJM, XIII, 374.
46. “Speech of 2 February, 1791,” PJM, XIII, 381.
47. The Federalist No. 44, 304.
48. “Speech of 2 February 1791,” PJM, XIII, 376.
49. “Speech of 2 February 1791,” Ibid., 378.
50. James Read, Power Versus Liberty, 41.
51. This case is also made in Rosen, American Compact, 126-127. See also Read, Power Versus Liberty, 11-13, 35-42 who also emphasizes the subtly of Madison’s approach to constitutional interpretation, but does not contend that it was superior to Hamilton’s.
52. “Speech of 2 February 1791,” PJM, XIII, 378.
53. Banning’s precise position on the differences between Madison and Jefferson’s approaches to constitutional interpretation is unclear. At times, he treats Jefferson and Madison as if they shared a common approach, speaking of “the starting point for his [Madison’s] and Jefferson’s strict construction of the Federal Constitution.” But later, he notes that in his opposition to the national bank Jefferson went “notably beyond his friend toward a complete rejection of the doctrine of implicit powers.” Banning, Sacred Fire, 92, 328.
54. These points are best brought out in Banning, “The Hamiltonian Madison,” 12-16. The quotations are at 12n14, and at 13. On July 10, 1787, Madison motioned to double the number of representatives that would serve in the House of Representatives. On September 8, 1787, he then seconded a motion to the same effect. Banning, “James Madison and the Dynamics of the Constitutional Convention,” 41.
55. This is not to say that the theory of an extended republic was important to other delegates at the Convention. As I point out below, Madison developed the theory of an extended republic in conjunction with the universal negative of state laws and both the universal negative and the theory of the extended republic fell on deaf ears at the Convention. On this, see Zuckert, “Federalism and the Founding,” 187-199, especially 192 and Larry D. Kramer, “Madison’s Audience,” Harvard Law Review 112 (January 1999), 611-679.
56. Banning argues that the “impartial representation” reading of Madison’s argument for an extended republic is necessarily and inseparably linked to interpretations that excessively emphasize Madison’s argument for the election of disinterested representatives from large electoral districts and that suggest that Madison hoped to concentrate extensive power in the national government. See Sacred Fire of Liberty, 208-209. In contrast, I would suggest that there is no necessary relationship between these misinterpretations and Madison’s goal of establishing the national government as an impartial arbiter. The election of better representatives was only one way that Madison sought to ensure impartial representation. He also hoped that the barriers that were present in the extended republic distance, a greater number of individuals, and a civic consciousness would help to promote the formation of impartial majorities in a Congress that was not necessarily filled with elite statesmen. See Gibson, “Impartial Representation and the Extended Republic,” 282-295 and George W. Carey, The Federalist: Design for a Constitutional Republic (Urbana: University of Illinois Press, 1989), 9-49. Furthermore, although several important scholars have made the mistake of reading Madison’s effort to make the national government a disinterested umpire as evidence that he also favored concentrated power in the national government and unresponsive rulers, there is no necessary link between these propositions either. Madison sought a government that would impartially administer within its limited sphere of powers.
57. Indeed, even as he resists the impartial representation interpretation of Madison’s theory of an extended republic; Banning’s own analysis in Sacred Fire indicates his understanding of the importance of justice and impartiality in Madison’s goals in the First Congress. What I am suggesting above is that these goals were a continuation of the principles embedded in the tenth ederalist. See Sacred Fire, 275, 297-301, 314-315.
58. Michael Zuckert seems to be the first scholar to have established the links between Madison’s theory of an extended republic and the negative veto as a means of addressing the problems within the states. See Zuckert, “Federalism and the Founding,” 187-199.
59. The Federalist No.10, 57.
60. See in particular Madison to Jefferson, October 24, 1787, PJM, X, 212-214 and Madison to George Washington, April 16, 1787, PJM, IX, 383-384.
61.Madison to Edmund Pendleton, October 20, 1788, PJM, XI, 306-307.
62. See Gibson, “Impartial Representation and the Extended Republic,” 276-282.
63. The Federalist No. 10, 60.
64. See “Speeches of 9, 17, and 28 April 1789,” PJM, XII, 69-74, 85-87, 114-119.
65. “Speech of 11 February 1789,” PJM, XIII, 34-38. The quotations are at 36 and 37-38. Madison made these points explicitly in the explanation for his changed position that he gave late in his life. See “James Madison’s Autobiography,” ed. Douglass Adair The William and Mary Quarterly 2 (1945), 204-205.
66. The Federalist No. 10, 60.
67. Madison’s commitment to the impartial protection of all forms and degrees of property is brought out in his fascinating and important essay “Property,” PJM, XIV, 266-268. In 1791, Madison wrote that speculation and “other abuses” made it debatable “whether the system of the old paper under a bad Government, or of the new under a good one, be chargeable with the greater substantial injustice. The true difference seems to be that by the former the few were the victims to the many; by the latter the many to the few.” Madison to Thomas Jefferson, August 8, 1791, PJM, XIV, 69. See also Banning, Sacred Fire of Liberty, 314.
68. Banning, Sacred Fire, 72-73. This discussion refers to Madison’s often quoted letter to James Monroe of October 5, 1786, PJM, IX, 140-141.
69. “Speech of 21 June 1787,” PJM, X,
70. 70. “Speech of 12 June 1787,” PJM, X,50.
71. “Speech of 17 July 1787,” PJM, X, 103.
72. “Speech of 7 August 1787,” PJM, X, 138-139.
73. The Federalist No. 10, 62.
74. Madison’s strongest statements about the overreaching character of legislatures in republican governments occur in The Federalist No. 51, 350; The Federalist No. 48, 333-334. The quotation is at 333.
75. For the differences between Madisonian republicanism and the republicanism that Jefferson arrived at late in his life, see in particular Michael Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (Notre Dame, IN: University of Notre Dame Press, 1996), 232-239.
76. Banning, Sacred Fire, 372.
77. The Federalist No. 37, 233-234.
78. Ibid., 9-10.
79. Banning, The Jeffersonian Persuasion: Evolution of A Party Ideology (Ithaca: Cornell University Press, 1978).
80. Gordon Wood, Creation of the American Republic, esp. 593-615.
81. On the transformation of this debate and Banning’s evolving position in it see Alan Gibson, “Ancients, Moderns, and Americans: The Republicanism-Liberalism Debate Revisited,” History of Political Thought 21 (Summer 2000), 261-307, esp. 271-275 and notes 62 and 63.
82. In his important essay “Jeffersonian Ideology Revisited,” Banning seems to indicate that he believes that the Jeffersonians did understand liberty as necessary to the full development of the human personality. See Banning, “Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the New American Republic,” The William and Mary Quarterly 62 (January 1986), 17-19.
83. Michael Zuckert, Natural Rights and the New Republicanism (Princeton, NJ: Princeton University Press, 1994), 167-168.
84. Kramer, “Madison’s Audience,” 611-679.
85. Banning, Sacred Fire, 253.
86. Ibid., 42, 315, 18, 344, 275, 272, 297.
87. Ibid., 314
88. Ibid., 253, 314, 372.
89. Ibid., 367.