This is a good time for a new book about First Ladies. They are the forgotten heroes (or is it heroines?) of American history, largely eclipsed by the brighter light cast by famous husbands. Their stories have not received the attention they deserve.

Some were reluctant to assume the role of First Lady, either because they did not perceive themselves capable or because they feared making their private lives public. Others enthusiastically embraced the idea, seeing both challenges and opportunities.

The brief biographies in Amy Russo’s new book, Women of the White House, no more than 2-4 pages each, including pictures, are mildly informative.  The book is well put-together with regard to layout and graphic design.  It looks great and conveys high quality. Russoâ€s selection of First Lady portraits is especially impressive. An outstanding collection of this caliber is rarely found in a single volume.

All of this having been said, it is unfortunate that modern cultural currents flow through the authorâ€s comments below and in the Afterword. The author’s ideological agenda mars what could have been a remarkable work.  It occurs to us that, with a few modifications, this would make an excellent coffee table book — the photos and portraits are wonderful, and the short timelines that record the important events of each First Lady’s life provide some interesting information at a glance.

Introduction

First ladies, unlike presidents, serve by circumstance in a role that has been defined by culture rather than the Constitution. There is no job description and there are no codified rules. In that there is agency. Those who have come to shape the legacy of the East Wing the most have embraced its capacity for influence with political acumen, passion and the ability to act as allies and agents of change.

These sentences require some digestion. Russo implies that because First Ladies are neither mentioned nor regulated by the Constitution, they are not constrained by it. “Agents of change” both expresses hubris and implies political orientation. Russo seems to applaud First Ladies who amass and exercise political power, whether on behalf of a president, or to fulfill personal political ambitions. Her use of words such as ally and agency connote an agenda driven by identity politics and “intersectionality.”

Below are a handful of the first ladies from Russo’s book, with some additional context based on works covered previously at WWTFT.

Martha Dandridge Washington

Wives of public men in the 18th century were expected to host formal dinners, see to the comfort of house-guests, and keep domestic order. When Daniel Parke Custis died suddenly in 1757, Martha Dandridge had to raise four young children alone, manage a large estate, and oversee slaves. All of it was preparation for her future marriage to George Washington.

… she was left with a 17,500-acre plantation and nearly 300 slaves, making her incredibly wealthy at the age of 26.

…

By all accounts their marriage was a loving one, although circumstances required stoicism from both parties. During the American Revolutionary War (1775), General Washington spent eight years at camps on the front line. Martha joined him for almost half that time and actively participated in camp life. She cared for the sick, knitted hundreds of pairs of wool socks for winter campaigns, and entertained important visitors. Washington considered Marthaâ€s presence so vital that he asked Congress to pay her travel expenses (and he wasn’t yet president.)

When the war ended in 1783, the Washingtons returned home to Mount Vernon until 1787 when Washington agreed to preside over the Constitutional Convention. In 1789 when George was unanimously elected president, Martha was not enthusiastic about moving to New York and becoming the first First Lady, (though the term had not yet been invented). Nonetheless, she determined to set a proper standard for the future. They moved again when the Capitol was relocated to Philadelphia.

They missed life at Mount Vernon, a longing that only grew during Washingtonâ€s tumultuous second term. He struggled to hold the new nation together despite foreign wars, emerging partisanship and tension within his Cabinet.

The Great Divide by Thomas Fleming, (reviewed here.)

Secretary of State Thomas Jefferson made the task more difficult. An ardent supporter of the French Revolution, Jefferson contrived to undermine Washingtonâ€s neutrality policy by secretly engaging in activities favorable to the French. Notably, Martha Jefferson was the first presidential wife to die prior to her husband’s presidency (in 1782). This reviewer wonders if Jeffersonâ€s presidency (1801 – 1809.) would have been less calamitous had there been a First Lady to check his worst inclinations.

Abigail Smith Adams

Abigail was raised to run a household, bear and educate children, and help advance her husbandâ€s ambitions, all of which she did admirably well. She was his “confidant, advisor, and dearest friend, forging a bond between the two long before Adams became president.” First Family by Joseph Ellis (reviewed here) is one of, if not the best book about the Adams family.

When John was selected as a delegate to the Continental Congress, a friend warned that participation would brand him as a traitor and end his legal practice, and perhaps his life. John was not deterred. He was convinced a break with England was inevitable, perceiving that the old world was rooted in coercive forms of government and the new on the basis of consent. The majority of delegates thought that reconciliation was possible. Adams and developing events persuaded them otherwise.

Abigail shared Johnâ€s convictions, but worried about what form independence would take. She wrote to him: “What code of laws will be established? How shall we be governed to retain our liberties?” She opposed slavery and fretted that citizens willing to deprive others of their liberty “cannot be equally committed as those who hold to the principal ‘of doing to others as we would that others should to us.’” (First Family)

At home, Abigail managed the farm, cared for their four young children, and dealt with a series of domestic challenges, an epidemic of small pox among them. Her letters reveal the difficulties she had to surmount during the four years her husband was in Philadelphia. When Adams became president in 1797, Abigail did not welcome the prospect of moving to the new Capitol in Washington. John had no such misgivings: “I never wanted your advice and assistance more in my life.”

Abigailâ€s voice, though not equal to Johnâ€s in national affairs, was influential. Their voluminous correspondence reveals her devotion to her husband, their children, and to the formation of the new nation.

Dolley Payne Todd Madison

Dolley Payne Toddâ€s first husband, new baby, and in-laws died of Yellow Fever in 1773. Only Dolley and her 18-month-old son survived.

She married James Madison in 1797. They lived in Philadelphia for three years before then-President Thomas Jefferson appointed Madison Secretary of State. The Madisons moved to Washington in 1801.

Dolley Madison did much to define the role of the President’s spouse, known only much later by the title First Lady—a function she had sometimes performed earlier for the widowed Thomas Jefferson. Wikipedia

Dolley Madison quickly established a reputation for being a vivacious and politically astute hostess. The Madison home was a political powerhouse second only to the White House in influence. Dolley combined Martha Washingtonâ€s charm with Abigail Adams’s outspoken voice. She used both to advance her husbandâ€s career.

As First Lady she enlarged White House gathering areas and her prowess as a hostess. She was an important political asset for the new president, acting as a liaison to opposition leaders and smoothing the way for legislation Madison supported.

James Madison was an intellectual giant who, arguably, contributed more to the writing of the Constitution in 1787 than anyone. To prepare, he read dozens of books on government. Yet, for all his talent and smarts, Madison could be stubborn, manipulative, and opportunistic. See James Madison by Richard Brookhiser (reviewed here). Dolley was the perfect antidote.

Sarah Childress Polk

Russo writes:

Upon her husbandâ€s election in 1844, Sarah Polk emerged as one of the most powerful women of her time, cleverly wielding influence within the confines of patriarchal society through her strategic political partnership with the president.

The “patriarchal society” in which she lived did not confine her. Sarah used its strictures to promote James’s political ambitions by inventing her persona of religiosity, deference, and feminine modesty. To suggest otherwise is to demean her. Nobody in 1844 thought they lived in a patriarchy. Once again, Russo allows her modern wokeness and presumed moral superiority to tarnish her work.

Sarah recognized James’s political promise and pushed him forward. She shared his passion for small government and continued territorial expansion. She saw what he could do, and what they could do together. James quipped that “had he remained the clerk of the legislature, Sarah would never have consented to marry him.” Lady First by Amy S. Greenberg (reviewed here).

She was not a cipher for James or anyone else. She refused Suffragettes†entreaties to publicly support their cause (considering it unseemly for a presidentâ€s wife), but persuaded the ladies of her private sympathies and mobilized them to help James get elected.

Sarah was James’s trusted intermediary, campaign manager, and communications director. She charmed his proponents and disarmed his adversaries. Her warm relationship with members of Congress and the military, established when James was Speaker of the House of Representatives, was immensely helpful in building support for their agenda of territorial expansion.

James K. Polk was brilliant, introverted, dour, taciturn, impatient, and driven — not attributes associated with winning friends and delivering votes. Sarah did both.

Unlike their predecessors, the Polks had no children and not the least interest in having any. Sarah had slaves to keep the home fires lit, a luxury that Abigail Adams did not have, nor wished to acquire.

Although there is a great deal of evidence that Sarah initially considered herself the very best kind of slave mistress, her solicitude for her slaves did not extend to freeing them, paying them, or to take measures that would improve their lives, if they would disrupt hers. (Lady First)

This lack of empathy for slaves extended to orphaned children of close relatives whom the Polks declined to bring into their home, although that was the standard in the South at the time (they did contribute to their support elsewhere.)

The policies of the Polk administration, particularly Indian removal and war with Mexico, were not universally admired at the time, and detractors are not in short supply now.

A Country of Vast Designs by Robert W. Merry (reviewed here) does not endorse everything the Polk Administration did, but gives credit for what was accomplished. Merry points out that during his four-year term, Polk extended the domain of the United States more than any other president by opening 25 million acres of land for settlement, paving the way for an enormous influx of immigrants (and fellow Americans) seeking better lives. He lowered tariffs, created an independent Treasury, wrested Oregon from the British, and concluded the Mexican-American War.

Amy S. Greenberg points out in Lady First that “[Sarah Polk] understood how to put the White House to work in service of the nation. She increased the number of weekly receptions at the White House, and transformed them to reflect the [Mexican-American] war now underway.” In addition, in order to bolster her (otherwise somewhat unassuming) husband’s public image as a military leader, she repurposed the Scottish march Hail to the Chief to signify his arrival at rallies and other events. This staunch support of the US military was instrumental in her husband’s success as president, and starkly contrasts with the actions of a particular future First Lady …

Hillary Clinton

It should come as no surprise that Russo dedicates a substantial portion of her work to discussing Hillary Clinton, crediting her with “redefining the place of presidential spouses in U.S. politics.” WWTFT regulars will likely predict that our assessment of Clinton’s contributions is rather different, namely that Clinton’s performance neither advanced the status of First Ladies in particular, nor that of women in general. In fact, a case can be made that she achieved the opposite.

The Clintons entered the White House under the banner of “two for the price of one,” a standard soon tattered by Bill’s philandering and Hillary’s imperious overreach as Chair of the Commission on Health Care Reform. Notably, she was the first First Lady to be officially appointed to a federal position. Furthermore, the scheming of the Clinton committee, the resulting recommendations, and the expanded federal power necessary to implement them were categorically repudiated by the bulk of the electorate.

Russo’s personal biases become clear throughout the final illustrations, and the sycophantic musings on Michelle Obama and Jill Biden contrast sharply with the pompous admonishments of Melania Trump. Russo is quick to point out the perceived flaws and myriad “controversies” associated with the latter, but speaks of the former with nothing but florid praise. Ultimately, this is indicative of a general issue with the book at large — while some subjectivity is to be expected in an encompassing work such as this, Russo’s attempts to apply the standards of 21st-century leftist ideology to the whole of the American story, turn what ought to be a history into an agenda-driven narrative in which the real story takes a backseat.

In the afterword, political science professor Anthony J Eksterowicz poses the question, “what will it take to elect the first female president of the United States?” The inherent strangeness of tacking such a question onto the end of this particular book aside, its implications devalue the efforts of the women discussed in the preceding pages. Since when does biology indicate qualification? The less said about it the better.

Having just finished David Mametâ€s The Secret Knowledge, I found I had a lot to think about, in fact much more than could be covered adequately within the scope of a review. Itâ€s book that deserves a close reading and consideration within the scope of its subject — the dismantling of Americaâ€s culture. As a teenager, becoming politically aware during the age of Carter and Reagan, I remember wondering about all the ruckus about culture wars from the likes of Jerry Falwellâ€s Moral Majority and fusty folk like Anita Bryant.  I didnâ€t really get it. Even then, in spite of my parents†best efforts, and going to Christian school, I couldnâ€t help being influenced by popular culture.

Years later, after taking the time to dig into why I believed what I did, did I realize the uniqueness of the American system of government.  Actually, thatâ€s not quite right either.  There have been republics in history and many democracies.  In fact, according to Francis Fukuyama in this interview  with Charles Kesler, governments that are ostensibly democracies are now among the most common. No, what sets the United States apart from any other country in the world is the assumptions on which the system was founded.

James Madison is credited with being the father of the Constitution, a title he modestly rejected.  Regardless, he did as much, if not more than any other founder to formulate the Constitution.  He pored over dozens of tomes on ancient republics and democracies, asking Jefferson, then in France, to send him everything he could lay hands upon.  Whether from histories of ancient Greece, Rome or the theories of Montesquieu, Madison tried to assemble the most bulletproof system he could, employing the natural tensions for power that he could foresee between the states and the Federal government, between the branches of government, and even between the two houses of Congress.  Nor did he neglect to consider the practical experience gleaned by about two centuries of self-rule in the colonies. The book, Madisonâ€s Metronome, reviewed here, lays this out clearly and elegantly.

But, even Madison, when all was said and done, knew that no matter how carefully he layed things out, he could not escape from relying upon the virtue of the people.

A mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands. — James Madison

Benjamin Franklin came to the same realization.

[O]nly a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.

This is why those quaint sounding pleas (to my then adolescent ears)  for maintaining culture and virtue are actually so important.  Character really does count, in fact, it is essential.

The Virginia Declaration of Rights, stated among its resolutions of “the basis and foundation of government” was:

That no free Government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles. Article 15

For our system of government to function, it has to be self perpetuating, in a sense. It should seek to be a place where immigrants want to assimilate. Schools should reinforce the values and pride in virtue that the Founders recognized.

The sleepy child of my youth said a Pledge of Allegiance at the beginning of school, and then was done with it. This was a ritual acknowledgement that we lived in a good land, an in a good society, and that our elders wished us to continue it. How different from the constant insistence on the “celebration of differences” which one finds in todayâ€s schools.  David Mamet The Secret Knowledge

When we hear talk of family values, we should recognize that the Left is correct when it points out that social mores change and that what is valued by one generation is not necessarily cherished by the next. How could it be so, unless the source of those values is virtue. Charles Kesler explains this in a recent article comparing the Reagan and Obama revolutions.

Values are what the people value; virtues and principles are what they should value. And they should value them because the principles are true and the virtues are good, not only for Americans but for human beings as such.

President Reagan realized this, in this bittersweet statement at the close of his second term.

Those of us who are over 35 or so years of age grew up in a different America. We were taught, very directly, what it means to be an American. And we absorbed, almost in the air, a love of country and an appreciation of its institutions. If you didnâ€t get these things from your family you got them from the neighborhood….Or you could get a sense of patriotism from school. And if all else failed you could get a sense of patriotism from the popular culture…. But now weâ€re about to enter the nineties, and some things have changed. Younger parents arenâ€t sure that an unambivalent appreciation of America is the right thing to teach modern children. And as for those who create the popular culture, well-grounded patriotism is no longer the style. Our spirit is back, but we havenâ€t re-institutionalized it. 

On the first count, they were successful, no one could keep up with Hamilton and Madison, at least in terms of sheer volume.  On the second count they provide interesting insight into the thought that went into the Constitution.  This paper, in particular, shows the unique nature of this new system of government.

It is interesting to read Madison here, in comparison with what Orestes Brownson had to say, 70 years later.  Brownson understood Madison correctly.

Madison doesn’t mince words.  He is not afraid to address those who claim that the Constitution forms a national government in many respects, especially in the direct exercise of power over the citizenry.  He even goes so far as to refer to some federal aspects as “blemishes.”  Nevertheless, he points out that the scope of that power is confined, and that the authority exercised by the national government is within a defined sphere, and that other authority remains at the local level.  The states are not subordinate to the national government within their proper sphere.

When there is contention about jurisdiction between states, Madison explains that this must be resolved by a tribunal – at the national level, because two equals cannot resolve matters impartially.  His words here are an interesting foreshadowing of a conflict not between states, but between a group of states and the national government. … Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; … Madison didn’t foresee that kind of conflict.

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Conformity of the Plan to Republican Principles

Independent Journal
Wednesday, January 16, 1788

To the People of the State of New York:

THE last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking.

The previous paper provided an overview of the plan of government produced by the convention. We will now look at how that is to be implemented.

The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.

The first thing thing to answer is if the proposed form is a republican one, in whole or in part. No other form of government is suitable for the people of America, as is evidenced by the fundamental principles fought for in the Revolution. As a people we have determined and demonstrated that mankind is in fact capable of self-government. Consequently, should this plan to be shown as something other than republican in nature, its proponents would have to abandon it.

What, then, are the distinctive characters of the republican form? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitution of different States, no satisfactory one would ever be found. Holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles. Poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. The government of England, which has one republican branch only, combined with an hereditary aristocracy and monarchy, has, with equal impropriety, been frequently placed on the list of republics. These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions.

So, what makes a government republican in form? If we look for answer to this question in the example provided by other countries, rather than in analysis of political theory, we might not find it. For instance, Holland is considered to have a republican government, and yet none of that government’s authority comes from the people. Similarly, Venice is frequently held up as an example of republican governance, and yet there a small group of hereditary nobles exercise almost total control over the people as a whole. So, too is Poland thought to be republican, and yet that country is governed by a mixture of hereditary aristocracy and monarchy. England takes this one step further, and has one republican branch of government which is combined with a monarchy and hereditary aristocracy. All of these countries have forms of government which are as dissimilar to one another as they are to a genuine republic, and yet they are all frequently so designated. This only shows how badly the term republican has been distorted in political discourse.

If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. According to the constitution of every State in the Union, some or other of the officers of government are appointed indirectly only by the people. According to most of them, the chief magistrate himself is so appointed. And according to one, this mode of appointment is extended to one of the co-ordinate branches of the legislature. According to all the constitutions, also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. According to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior.

Since example does not work, if choose to examine this question based on principles, we can at least say that a republican government is on that derives all its powers either directly or indirectly from the majority, and is subsequently administered by people who hold their offices either for limited terms which must be periodically re-ratified by the people, or who are subject to dismissal on the basis or behavior or performance. For such a government to work, it is essential that it derive its authority from a large majority of society rather than a powerful faction or aristocratic elite. Otherwise, a handful of tyrannical nobles could oppress the people by selectively delegating their powers to place-seekers, and call themselves republican. A republican government must be administered by persons who are directly or indirectly appointed by the people. Furthermore, those in administration must be either limited by tenure or the requirement of good behavior in office. If this is not the case then any popular government which has been, or might be constructed will degrade from its republican beginnings. In every State constitution in the Union, at least some portion of State government is appointed indirectly by the people. And, in most of the states the governor himself is selected by the people. In one of the States, a branch of the State legislature is chosen in this way. In addition, all the States have a specific tenure for those in the highest offices, and in many, the terms are limited for both the executive and the legislature. Finally, according to well-respected practice, most of the State’s judiciaries retain their offices based on good behavior in office.

On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. The House of Representatives, like that of one branch at least of all the State legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people. The President is indirectly derived from the choice of the people, according to the example in most of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican standard, and to the model of State constitutions The House of Representatives is periodically elective, as in all the States; and for the period of two years, as in the State of South Carolina. The Senate is elective, for the period of six years; which is but one year more than the period of the Senate of Maryland, and but two more than that of the Senates of New York and Virginia. The President is to continue in office for the period of four years; as in New York and Delaware, the chief magistrate is elected for three years, and in South Carolina for two years. In the other States the election is annual. In several of the States, however, no constitutional provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions.

And so, if we use the above standard to measure the Constitution planned by the convention, we can see that the proposed plan is indeed, wholly republican in nature. The House of Representatives is directly elected by the people, as is at least one branch of all State legislatures. The Senate, like the current Congress, and the state Senate of Maryland, is appointed indirectly by the people. The President is also indirectly derived from the choice of the people, per the example of most of the States. Even the judiciary, however indirectly, is in fact a product of the people’s choice. The federal judicary also follows the model described above for republican governance. Judges hold office for life, as is proper, based on good behavior. Members of the House of Representatives serve two-year terms as in South Carolina, and must stand for re-election as in all the States. Senators serve six-year terms, which is one year more than in Maryland and only two more than in that of the Senates for New York and Virginia. The president is to hold office for four years. In New York and Delaware the executive serves three-year terms, and in South Carolina two. The other states hold annual gubernatorial elections, but no constitutional provision is made for impeachment of the chief magistrate. In Delaware and Virginia the executive is not subject to impeachment until he is out of office. The President of the United States is impeachable at any time while he is in office. Other offices will be subject to legal regulation in conformance with the best practices established by the States in their constitutions.

Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the State governments; and in its express guaranty of the republican form to each of the latter.

And if any further proof were necessary, what could be more decisive than that of the absolute prohibition against titles of nobility? Both federal and State governments do this as an express guaranty of republican governance.

“But it was not sufficient,” say the adversaries of the proposed Constitution, “for the convention to adhere to the republican form. They ought, with equal care, to have preserved the federal form, which regards the Union as a Confederacy of sovereign states; instead of which, they have framed a national government, which regards the Union as a consolidation of the States.” And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision.

“But this is not sufficent!” say opponents of the proposed Constitution. “Members of the Convention should also have made sure to preserve the federal form as under the Articles of Confederation. Instead they designed a national government, under which all the states are consolidated.” They further demand to know under what authority such a bold and radical step was taken? This objection requires precise analysis.

Without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority.

To do so, we’ll first need to determine the real character of the government in question, and then to ascertain the how far members of the Convention were authorized to go, and finally look at the obligation owed to their country to fix the current system. Only then can we see the accuracy of this objection.

First. In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.

First, to understand what kind of government is being proposed, we have to look at its foundations, the sources from which it will draw its power, and to how these powers will be exercised. We also have to look at the extent of these powers and how future changes to government will be introduced.

On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.

With regard to the foundation, it would appear that the Constitution is to be founded on the assent and ratification of the people of America, via deputies elected for that purpose. Furthermore, this assent is to be given by the people, not by the people as a whole, but as citizens of their respective States. And so, this is assent and ratification will come from the supreme authority in each State as indicated by the people themselves. Therefore, establishing a Constitution will be a federal rather than a national act.

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.

The objectors to the Constitution think that it being a federal act means that the people acting through so many independent States do not constitute an aggregate nation. Looking at things in this light, it seems obvious that ratification will occur neither at the behest of a majority of all the people in the Union, nor from a simple majority of the States. Ratification must result from the unanimous assent of the States that are party to it. The only difference here is that instead of the State legislatures deciding, the people themselves will have to give their assent. Were this a matter of simple majority rule in the Union, the will of the whole people of the United States would bind the minority. In order to make this work, one would have to decide either on the basis of individual votes, or or by taking the will of the majority of states as sufficient evidence of the majority will of the people of the United States. This is not the case. Each State is being considered as sovereign, independent of the other States, and only to become a member of the Union by its own voluntary assent. Accordingly, the new Constitution will be, if ratified, a federal and not a national one.

The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is national, not federal. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many federal as national features.

The point is concerns the source of the proposed government’s powers. The House of Representatives will derive its powers directly from the people of America. The people will be represented in the same proportions and principles as they are in the legislatures of the particular states. Were we to stop here, the government might be considered national in character. However, the Senate gets its powers from the States which exist as equally represented political entities, just as in the present Congress. If we had only a Senate, one might consider the government Federal rather than national. But further complicating matters, is the fact that the executive power comes from a combination of sources. On the one hand, the president is made by the States as political entitites. But on the other, the votes allotted to each state, are based on both equal and respresentative proportion. They are at the same time equal and unequal members of the same society. In consideration of this system of choosing the executive, it appears that the proposed system will be one of mixed character.

The difference between a federal and national government, as it relates to the operation of the government, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the national, not the federal character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a national government.

Supposedly, the key difference between a federal and a national government in regard to its exercise of power is that a federal government’s power operates on the States as political entities, whereas a national government exercices its authority on the individual citizens of the Union, directly. If we use this criterion to define what kind of government is being proposed, it is a national government. However, perhaps not as entirely so as has been suggested. For instance, if we examine how disputes between the States are to be resolved, we can see that the government will deal with the states as political entities. Aside from this exception and perhaps a few other federal features, the proposed government is national in character with respect to the exercise of power over individuals. This blemish in the design of a national government is perhaps unavoidable in any plan.

But if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

But, while the government is national with respect to its use of power, it changes form again in regard to the extent of that power. The notion of national government implies an unlimited supremacy over all persons and things under its control, so far as they are reasonable responsibilities of government. For a people completely consolidated into one nation, the supreme authority is vested entirely in the ntaional legislature. Conversely, among communities united for a particular purpose, authority is vested partly in the general and partly under the municipal legislature. Under a true national system, the local authorities serve at the pleasure of the national authority, to be controlled, directed or abolished at its whim. Whereas, under the latter, the local authorities operate in distinct spheres and are supreme within them, just as the general government operates within its realm. Looking at the proposed system in view of these zones of authority, one cannot say that it is a purely national form of government, since it operates only within well-defined parameters. The States remain sovereign in all other areas. However, in matters of contention over the limits of this jurisdiction the courts of the general government will rule as impartially as possible as per the Constitution. There is no other choice than for this to be decided at the general, rather than state level, as this is infinitely preferable to an appeal to the sword and dismemberment of the Union.

If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and particularly in computing the proportion by States, not by citizens, it departs from the national and advances towards the federal character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the federal and partakes of the national character.

If we examine the proposed Constitution according to the method by which it may be changed, we find that it doesn’t conform to either of federal or national system. If the system were a wholly national one, ultimate authority would rest on majority rule, and that majority could decide to alter or abolish the established government at any time. If it were wholly federal, on the other hand, unanimity between all the States as political entities would be required to make a change binding on all members. The system designed in the proposed plan is not like either of these. In requiring a majority of the States, rather than citizens, it is more like a federal system than a national one. However, in not requireing the unanimous consent of the States, it seems like a national system.

The proposed Constitution, therefore, [even when tested by the rules laid down by its antagonists,][1] is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

In conclusion, the proposed Constitution, even according to the definitions laid down by its opponents, is neither strictly a federal or national, but a combination of the two. In its foundation it is federal. It derives its power from both federal and national sources. In the operation of these powers it is national and not federal, but in the extent of these powers it is federal, not national. Finally, with respect to the mode of introducing amendments, it is neither wholly federal nor national.

PUBLIUS

Below, please find an excerpt from Madison’s address to the Congress introducing legislation to incorporate a “bill of rights” to the newly ratified Constitution.  Emphasis WWTFT.

It has been said, by way of objection to a bill of rights, by many respectable gentlemen out of doors, and I find opposition on the same principles likely to be made by gentlemen on this floor, that they are unnecessary articles of a Republican Government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. It would be a sufficient answer to say, that this objection lies against such provisions under the State Governments, as well as under the General Government; and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper. It has been said, that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the Constitution are retained; that the Constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true, the powers of the General Government are circumscribed, they are directed to particular objects; but even if Government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the State Governments under their constitutions may to an indefinite extent; because in the Constitution of the United States, there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the Government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the Government was established. Now, may not laws be considered necessary and proper by Congress, (for it is for them to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation,) which laws in themselves are neither necessary nor proper; as well as improper laws could be enacted by the State Legislatures, for fulfilling the more extended objects of those Governments? I will state an instance, which I think in point, and proves that this might be the case. The General Government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the Legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the State Governments had in view? If there was reason for restraining the State Governments from exercising this power, there is like reason for restraining the Federal Government.

It may be said, indeed it has been said, that a bill of rights is not necessary, because the establishment of this Government has not repealed those declarations of rights which are added to the several State constitutions; that those rights of the people which had been established by the most solemn act, could not be annihilated by a subsequent act of that people, who meant and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this Constitution. Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

It has been said that it is unnecessary to load the Constitution with this provision, because it was not found effectual in the constitution of the particular States. It is true, there are a few particular States in which some of the most valuable articles have not, at one time or other, been violated; but it does not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights. Besides this security, there is a great probability that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the peopleâ€s liberty. I conclude, from this view of the subject, that it will be proper in itself, and highly politic, for the tranquillity of the public mind, and the stability of the Government, that we should offer something, in the form I have proposed, to be incorporated in the system of Government, as a declaration of the rights of the people.

In this essay, Madison lays waste the arguments of the anti-Federalists. He uses powerful analogies to point out the inconsistent and incongruent logic used by those opposed to ratification. He explains that it might be one thing if the opponents of the proposed plan had a plan of their own and were in accord with one another. But they were not in agreement amongst themselves and some even denied the necessity of addressing the problems that nearly everyone saw as obvious.

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The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed

To the People of the State of New York:

IT IS not a little remarkable that in every case reported by ancient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men, but has been performed by some individual citizen of preeminent wisdom and approved integrity.

It is amazing to consider that in every case reported by ancient history in which a government has been established with deliberation and consent, it has been done not by an assembly of men, but rather by a single individual of preeminent wisdom and accepted integrity.

Minos, we learn, was the primitive founder of the government of Crete, as Zaleucus was of that of the Locrians. Theseus first, and after him Draco and Solon, instituted the government of Athens. Lycurgus was the lawgiver of Sparta. The foundation of the original government of Rome was laid by Romulus, and the work completed by two of his elective successors, Numa and Tullius Hostilius. On the abolition of royalty the consular administration was substituted by Brutus, who stepped forward with a project for such a reform, which, he alleged, had been prepared by Tullius Hostilius, and to which his address obtained the assent and ratification of the senate and people. This remark is applicable to confederate governments also. Amphictyon, we are told, was the author of that which bore his name. The Achaean league received its first birth from Achaeus, and its second from Aratus.

Minos founded ancient Crete and Zaleucus the government of the Locrians.  It was first Theseus and then Draco and Solon who instituted the government of Athens.  Lycurgus was the lawgiver of Sparta.  Rome’s original government was founded by Romulus and perfected by two successors of his choosing – Numa and Tullius Hostilius.   But it was Brutus who advocated the abolition of royal rule in his reforms.  He claimed that this was what Tullius Hostilius had planned and obtained the ratification of the senate and the people.  The same is true of confederate governments.  Amphictyon was the author of the document that bore his name.  The Achean league got its start from Achaeus and then Aratus.

What degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be clothed with the legitimate authority of the people, cannot in every instance be ascertained. In some, however, the proceeding was strictly regular. Draco appears to have been intrusted by the people of Athens with indefinite powers to reform its government and laws. And Solon, according to Plutarch, was in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and absolute power of new-modeling the constitution. The proceedings under Lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens.

How much responsibility these men bore for the foundation of their respective governments is a matter of some debate, and cannot be readily ascertained in all cases.  However, in some cases they definitely did have the people’s assent for what they did.  For instance Draco appears to have been entrusted by the people of Athens with unlimited authority to reform its government and laws.  And, according to Plutarch, Solon was given dictatorial power to remodel the constitution.  This was less the case with Lycurgus, but as far as those in favor of reform could prevail, they focused their attention on that wise and celebrated patriot, rather than try and to take matters into their own hands and bring about a revolution of the people.

Whence could it have proceeded, that a people, jealous as the Greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen? Whence could it have proceeded, that the Athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow-citizen, should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected? These questions cannot be fully answered, without supposing that the fears of discord and disunion among a number of counsellors exceeded the apprehension of treachery or incapacity in a single individual. History informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect. Solon, who seems to have indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.

How else could it have happened, that a people as guarded of their liberty as the Greeks, could have thrown caution to the wind to such an extent as to place their destiny in the hands of a single citizen? Why would the Athenians, a people who were so paranoid that they would not allow an army to be commanded by fewer than ten generals, allow one illustrious citizen, rather than an elected body, to make such momentous choices for their well-being and safety?  The only explanation that seems plausible is that their fears of disunion and discord between members of a body of citizens, were greater than their fear of treachery or incompetence by single individual.  Similarly, history shows us the difficulties with which these celebrated reformers had to contend, and the shortcuts they had to take to accomplish their ends.  Solon resorted to expediency more than most, and he is purported to have said that he had not given his countrymen the government best suited to their happiness, but the one that conformed the most to their prejudices.  And Lycurgus resorted to violence and superstition in order get to his goal of eliminating royal rule, which he attained by first voluntarily renouncing his country and ultimately his very life.  These lessons from history show us first how much we have to admire the American experiment, and not less to provide a warning as to the dangers and difficulties of such course and that it is extremely unwise to make things more complicated than they already are.

Is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out? This conjecture is rendered probable, not only by many considerations of a general nature, but by the particular case of the Articles of Confederation. It is observable that among the numerous objections and amendments suggested by the several States, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error which on actual trial has discovered itself. And if we except the observations which New Jersey was led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. There is abundant reason, nevertheless, to suppose that immaterial as these objections were, they would have been adhered to with a very dangerous inflexibility, in some States, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of selfpreservation. One State, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. Nor was her pliancy in the end effected by a less motive, than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. Every candid reader will make the proper reflections on these important facts.

Is it unreasonable to suppose that any problems with the proposed Constitution have arisen more from a lack of experience with such a complex and difficult subject, rather than from any lack of care and effort in producing it?  We won’t know if the system works in all aspects until we have tried to operate it.  We have seen among the numerous objections and amendments proposed by the States, that not one has been because there has been a demonstrable flaw in the proposed Constitution.  Even New Jersey’s observations were made, not because she possessed some special foresight, but rather because of her peculiar situation.  One has to ask, if one reasonable objection should be sufficient to cause a revision of the entire system.  Nevertheless, even though these objections and concerns are immaterial on the whole, they would have been sticking points had not they been trumped by the very real motive of self-preservation.  Things must be bad indeed, when one recalls that one State withheld her concurrence with the Confederation for several years, even though the enemy was at our gates (or rather actually with the borders of our country) during the time of her refusal.  It was only when she feared being blamed for the destruction of the country, and being the cause of losing the war, that she finally acceded. Honest readers will take this into consideration.

A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution. They are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. The prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. Might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted? And if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one?

Take the example of a patient who finds his condition steadily worsening over time, and who realizes that he must do something about it or suffer extreme peril.  This person chooses from among the best physicians available, the one he feels most qualified and capable of curing him.  Now the physicians he has chosen consult and agree unanimously that the patient’s condition is indeed critical, but that with proper and timely care, he can be healed.  His situation, while dire is not fatal.  They have a treatment plan they all believe will work.  But once this plan is proposed, a group of other people interject themselves.  They don’t deny that the patient’s condition is bad, but insist that the prescribed medicine will kill him if he uses it.  Wouldn’t it be reasonable for a patient in such a position to demand that those objecting to the treatment course be unanimous in their alternative proposition of treatment, before taking their advice?  And if he found them in as much disagreement among themselves as with the first set of doctors, wouldn’t it be wise for him to accept the unanimous counsel of the first group, rather than to take the advice of those who cannot even agree that a speedy remedy is necessary, let alone propose one?

Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice under pain of the most fatal consequences. Do the monitors deny the reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy? No. Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves. This one tells us that the proposed Constitution ought to be rejected, because it is not a confederation of the States, but a government over individuals. Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. An objector in a large State exclaims loudly against the unreasonable equality of representation in the Senate. An objector in a small State is equally loud against the dangerous inequality in the House of Representatives. From this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. From another quarter, and sometimes from the same quarter, on another occasion, the cry is that the Congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. A patriot in a State that does not import or export, discerns insuperable objections against the power of direct taxation. The patriotic adversary in a State of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. This politician discovers in the Constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them; whilst a fourth is not wanting, who with no less confidence affirms that the Constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. With another class of adversaries to the Constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. Whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. Let each one come forward with his particular explanation, and scarce any two are exactly agreed upon the subject. In the eyes of one the junction of the Senate with the President in the responsible function of appointing to offices, instead of vesting this executive power in the Executive alone, is the vicious part of the organization. To another, the exclusion of the House of Representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. With another, the admission of the President into any share of a power which ever must be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the Senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. “We concur fully,” reply others, “in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. Our principal dislike to the organization arises from the extensive powers already lodged in that department.” Even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. The demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. Another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the President himself.

This is the very situation in which America finds herself at this moment.  She is that patient.  She knows that she is sick.  She has obtained the unanimous advice of a group of men of her own deliberate choosing.  And she is now being warned by others against following this advice, lest she perish.  Do these others deny the danger she faces?   No.  Do they deny that speedy treatment is essential?  No.  Are they in agreement with one another as to the nature of their objections?  Are any two of them in agreement about alternatives being proposed?  Let’s look at what they are saying.  This one tells us that the proposed Constitution ought to be rejected, because it is not a confederation of the States, but a government over individuals. Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed.  A third does not object to the government over individuals, or to the extent proposed, but to the lack of a bill of rights.  A fifth is of opinion that a bill of rights of any sort would be superfluous and misguided, and that the plan would be alright but for the critical power of regulating the times and places of election.  An objector in a large State is up in arms about the unfairness of equal representation in the Senate.  At the same time an objector from a small State is just as adamant that the representation in the House gives undue weight to large States.   From this quarter we are bombarded with concerns about the attendant costs and difficulties of having such a large number of representatives.  The next minute we hear, sometimes from the same objector, that the new government would be far less objectionable if only the number of representatives and their attendant costs were doubled, because the Congress as proposed would provide only a mere shadow representation.  A patriot in a State that does not import or export, sees insuperable objections against the power of direct taxation. The patriotic adversary in a State of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption.  This politician discovers in the Constitution a direct and irresistible tendency to monarchy, but is equally sure it will end aristocracy.  Another is unable to say what form it will ultimately take, but sees clearly it must be one or other of them.  There is yet another who claims the opposite, that the proposed Constitution doesn’t do enough to protect the aristocracy, and that the government must devolve into mob rule.  Then there is a whole other group, with a different set of issues.  They object to the way in which the Constitution is worded with regard to the different branches of government.  They feel that they are so intermixed that the whole is in opposition to the very notion of liberty.  This objection is vague and does not have many adherents.  No two are in exact agreement as to the nature of their objections.  For one, it is the combination of the President and the Senate in how appointments are made.  This quarter feels that this power should be the executive’s alone.  Another feels that the House should not be excluded from this process, because only such a large number of participants can prevent abuse.  Yet another is concerned that too much power is vested in the presidency, and that this is a threat to republican principles.  According to some, the power of impeachment by the Senate should rightly be vested in the judiciary, because this power appears to place the Senate in both the Executive and Legislative branches at the same time.  Others agree that the Senate should not have this power, but don’t see placing it in the judiciary as a solution to it.  Their biggest objection is to the amount of power seemingly already lodged in the judiciary.  Among those who advocate for a council of State, there is no agreement about how it should be constituted.  One wants it to consist of a small number to be appointed by the House, while another thinks that such a council should be a larger group appointed by the President himself.

As it can give no umbrage to the writers against the plan of the federal Constitution, let us suppose, that as they are the most zealous, so they are also the most sagacious, of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. Let us further suppose that their country should concur, both in this favorable opinion of their merits, and in their unfavorable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers, and for the express purpose of revising and remoulding the work of the first. Were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, I leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the Constitution, now before the public, would not stand as fair a chance for immortality, as Lycurgus gave to that of Sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers.

Surely the opponents of the proposed plan must agree that, as they are the most zealous in their opposition, they also must be a good deal smarter than those who came up with the plan of the Convention.  If it is the case that they are so much better qualified, then let us see their plan.  For the sake of argument, let us suppose that their countrymen agree both as to their superior merits and to their unfavorable opinion of the convention, and that a second convention is necessary to rework the product of the first.  Were this even possible, and it is not, does anyone seriously think that they could come to any sort of agreement, given their history of discord and enmity?  Doesn’t the proposed Constitution stand as good a chance for acceptance and success as that given by Lycurgus to Sparta.  He made changing it dependent upon his return from exile and death.  We can put this one into effect, and if adopted, and continue it in force not until a BETTER one comes down the pike, but just until ANOTHER is agreed to by a new assembly of lawgivers.

It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation? Is an indefinite power to raise money dangerous in the hands of the federal government? The present Congress can make requisitions to any amount they please, and the States are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. Is an indefinite power to raise troops dangerous? The Confederation gives to Congress that power also; and they have already begun to make use of it. Is it improper and unsafe to intermix the different powers of government in the same body of men? Congress, a single body of men, are the sole depositary of all the federal powers. Is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? The Confederation places them both in the hands of Congress. Is a bill of rights essential to liberty? The Confederation has no bill of rights. Is it an objection against the new Constitution, that it empowers the Senate, with the concurrence of the Executive, to make treaties which are to be the laws of the land? The existing Congress, without any such control, can make treaties which they themselves have declared, and most of the States have recognized, to be the supreme law of the land. Is the importation of slaves permitted by the new Constitution for twenty years? By the old it is permitted forever.

It is amazing and sad, that those who object so strenuously to the new Constitution never bother to consider the defects of the present system it proposes to replace.  It is not necessary that the proposed Constitution be perfect, just that it be a lot less imperfect than its predecessor.  No one would refuse a trade of brass for gold, just because the gold had some alloy in it.  No one whose house is falling down would refuse a nice new one, just because the new one lacks a porch, or because this room or that doesn’t suit, or because the ceilings are 10′ instead of 11′.  Aside from such metaphorical comparisons, don’t the complaints levied against the proposed plan, have ten times the validity when applied to the existing Articles of Confederation?  If an indefinite power to raise money is dangerous in the hands of a federal government, shouldn’t we consider that the present Congress can make requisitions of any amount they choose?  After all the States are constitutionally bound to furnish the funds. They can borrow as long as they have money to paper on which to print bills of attainder.  They can borrow from foreign and domestic sources as long as someone is willing to lend them a schilling.  How about the indefinite power to raise troops?  The Confederation gives to Congress that power also; and they have already begun to make use of it.  How about the supposed danger of mixing different powers of government within the same body of men?  The Confederation places them both in the hands of Congress. Is a bill of rights essential to liberty? The Confederation has no bill of rights.   If there is an objection to the Constitution because it empowers the Senate, with the concurrence of the Executive, to make treaties which are to be the law of the land, shouldn’t even more strenuous objection be made against the existing Congress which can do the same all by itself?  Is the importation of slaves permitted by the new Constitution for twenty years? By the old it is permitted forever.

I shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of Congress on the State for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. Then, say I, in the first place, that the Confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the Union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing Congress; in either of which events, the contrast just stated will hold good. But this is not all. Out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the Union. It is now no longer a point of speculation and hope, that the Western territory is a mine of vast wealth to the United States; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. A very large proportion of this fund has been already surrendered by individual States; and it may with reason be expected that the remaining States will not persist in withholding similar proofs of their equity and generosity. We may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the United States, will soon become a national stock. Congress have assumed the administration of this stock. They have begun to render it productive. Congress have undertaken to do more: they have proceeded to form new States, to erect temporary governments, to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy. All this has been done; and done without the least color of constitutional authority. Yet no blame has been whispered; no alarm has been sounded. A GREAT and INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate money to their support for an INDEFINITE PERIOD OF TIME. And yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which exhibits it; and, at the same time, urge against the new system the objections which we have heard. Would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the Union against the future powers and resources of a body constructed like the existing Congress, than to save it from the dangers threatened by the present impotency of that Assembly?

No doubt, I will be told that even though this is all true with regard to the current system, it is of no account, because no matter how powerful the government is on paper, it is rendered harmless by the dependence of Congress on the State for the means of carrying them into practice.   My answer to that is then that the Confederation is guilty of an even greater sin, declaring that certain powers are essential to a nation state, and then making them impossible to carry out.  Furthermore, if the Union is to continue, and no better government is to be substituted, then effective powers must be granted to, or assumed by the existing Congress.   In either event, the problem just stated will still be true.   But that is not all.  We are already a witness to the problems which have arisen from having a powerless government.  There is no doubt that the Western territory is a vast mine of wealth for the United States.   If we are to make good use of it as we should, then it must be managed well.  In so doing we will be able to discharge the domestic debt and fund the treasury for some time to come.  We may calculate that all of this new land, an area equal in size to that of the inhabited United States, will soon become a national stock.  Congress has assumed the national administration of this stock.  It has begun to render it productive.  The Congress has started to do even more.  They have proceeded to form new States, create temporary governments, and appointed officers to them.  Congress has even prescribed the conditions under which these new States may be admitted into the Confederacy.  All of this has been done without the slightest whiff of legitimate Constitutional authority.  Yet no one has raised any alarm.  A GREAT and INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate money to their support for an INDEFINITE PERIOD OF TIME.  And yet there are those, who have not only watched in silence at the prospect of this happening, but are actually advocating for it.  But these same people urge opposition to the new system because of the objections which we have discussed.  Why are they so inconsistent?  Why are they so concerned about the potential abuses of the new system when they completely disregard the dangers inherent in the existing Congress, with its present impotency?

I mean not, by any thing here said, to throw censure on the measures which have been pursued by Congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed.

I don’t mean to imply by anything I have said, to censure the actions which this Congress has undertaken.  I realize that they could not have done otherwise.  They have done what they had to do in the public interest.  The Congress has been forced to grasp powers that have exceeded the limits imposed by the Constitution.  But isn’t this, itself a proof of the danger posed by a government that does not have the powers it needs to conduct the people’s business?  It continuously faces the danger of usurpation or dissolution.

PUBLIUS

There are two principal meanings of this word.  The first meaning listed by several reputable dictionaries is:  Unusual, not typical.  The second meaning is: Unusually good, outstanding.

Note, both meanings are valid interpretations of the word, depending upon context  either or both may apply.  However, the dictionaries agree on the first meaning as being the primary meaning.  Exceptional means, out of the norm, or even unique.

The two headed calf was exceptional, most calves only have one head.

A human being breaking the sound barrier was an exceptional event, it had never been done before.

The American system was exceptional, no other country had tried something like this.

It was only later that the second meaning began to apply and be confused with the first when speaking about America.

Because America was different, America became exceptional in the way an Olympic athlete is exceptional – both different and superior.

So, let’s look at this concept of America being exceptional using both the first definition and the second.

Do you doubt that America is different, or exceptional in the first sense of the term?

There are republics that predated the American experiment, in fact, founders like James Madison studied them in great detail when crafting what would morph into the Constitution.    Of course, there were democracies as well.  Both of these forms of government had been tried, and had ultimately failed.  Madison was determined to learn from the mistakes of the past and not to repeat them.

Ultimately, Madison knew that majority rule would prevail, but he hoped that incorporating the numerous checks and balances in the Constitution would provide the necessary time for sound judgement to prevail over mob rule.  However, even the concept of checks and balances was not necessarily exceptional.  The Magna Carta could be considered such an instrument – to check the power of the monarch with the rule of law.  Even further back, the set of laws known as the Twelve Tables were implemented in ancient Rome with the purpose of preventing the oppression of the ordinary citizen by the ruling class.  Ultimately the Roman system failed under the absolute power assumed by its emperors.

So, while a good thing, republican government wasn’t unique, democratic rule had been tried in Greece, and even respect for the rule of law had had it’s go in political systems.

None of these things were exceptional.

So, what set the United States apart?

The United States Government was different because it was formed under the assumption that people had natural rights and that these rights superseded any political system.  Philosophers had been discussing and writing about natural law, but no one had ever attempted to craft a system of government based upon it until the United States.

The founding documents of the United States start from the position we are created by God and have been instilled with equal value in His sight.  But, the founders did not attempt to create a theocracy.  They recognized that just as God grants free will, so should institutions formed by his creations.  In order to ensure that free will the founders made certain that people would have the right to worship as they chose or not at all.  It did not attempt to remove consequences or impose them.

Similarly, if the starting position is that man is sovereign in his “unalienable” rights, then he is superior to any institution he might create.  He may decide to empower a government “to provide for the common defense,” but in so doing, he does not abdicate either responsibility or right to provide for his own defense.

The United States was exceptional because it was the first government “instituted among men” that was rooted in the position that men were not subjects, but sovereign in their being.

Unlike the French Revolution, the United States did not try to exclude or excise God from government.  Instead it sought to excise or exclude government from God.  The difference is important.  Under the United States, citizens are free to worship or not as they see fit.  Even today, under many governments people are not free to worship at all, or only the state proscribed religion.

The notion of the inherent value of an individual, instilled by “nature’s God,” is the fundamental building block of the United States and the foundation on which all of its principles are laid.

If a Vietnamese boat person, a Mexican immigrant, and an indigenous American all become citizens of the United States, they are all presumed equal under the law.  They are not guaranteed equality of outcome, but equality of opportunity.

This distinguishing factor is the core of American Exceptionalism.  It is why a melting pot of different nationalities and cultural heritages can live peaceably with one another, provided they share the same ideology of America – Freedom.

Freedom breeds success and prosperity.  One has only to look at the growth of the United States, the unparalleled prosperity, and the exceptional accomplishments in every realm of science, agriculture, medicine, and technology, to recognize that America has been exceptional in the second sense of the word, as well as in the first.

What many fail to understand, is that the latter is a direct consequence of the former, and is not guaranteed to continue, if the principles which set America apart and made it exceptional are not cherished and maintained.

As long as America retains the foremost meaning of the term, it will retain the second meaning as well.  Once America has decided not to be different than Greece – both modern and ancient, not to be different than Spain, France or the rest of Europe, then America will no longer by exceptional in the second sense either.

We have a blueprint for success and many for failure.  We are free to choose which plan to follow.  Let’s hope we choose wisely.

James Madison and The Making of America is not really a biography.  It is exactly what its title suggests, the story of the making of America, or at least its government.  Kevin R. C. Gutzmanâ€s book takes the reader on a chronological journey of Madisonâ€s involvement in that process.  It mirrors some aspects of Labunskiâ€s James Madison and The Struggle For The Bill of Rights, but is broader in scope and less biographical than that excellent book.

In this book, there is very little detail pertaining to Madison himself. In this respect the book is almost dispassionate in its tone.  Where in Labunskiâ€s book, the reader gets a sense of Madisonâ€s reluctance to travel and his struggles with his health as well as his contributions to the Constitution, in Gutzmanâ€s book, when Madison was ill during the Virginia convention, it is only mentioned to explain his absence in the chronology of events. Gutzmanâ€s book doesnâ€t waste time on the human aspects of its subject.

However, Gutzman makes up for this somewhat flat characterization of Madison by delving deeply into his political philosophy and principles.  He takes the reader through an exhaustive account of the Constitutional Convention and Madisonâ€s contributions.  He provides a day-by-day account of the issues, arguments, and their resolution. (None of the other players on this stage survive with a personality either.)

Gutzman relieves the tedium of his account by offering an occasional sardonic remark in his telling of events.  For instance, in recounting the arguments surrounding how representation was to be apportioned under the new government, Gutzman slips in this dry remark,

Gouverneur Morris of Pennsylvania followed Madison with an appeal to consider the effect of the committeeâ€s proposal upon the entire world.  He lamented that some delegates seemed to think of themselves as representing only their particular states, when really all humanity had a stake in the conventions outcome.  Like Madisonâ€s, Morrisâ€s disinterested principles led him to a conclusion that favored his large stateâ€s interests.

After concluding his coverage of the Constitutional Convention, Gutzman moves on to Madisonâ€s contributions to the Federalist Papers.  This section of the book was the most interesting to this reviewer.  (At the time of this writing, WWTFT has put about 36 of these essays into modern English, and spent the requisite time to understand them enough to do so.)  Gutzman goes through each of the Madison-authored Federalists with varying degrees of detail.  Initially, he talks a little bit about the evident collaboration between Madison and Hamilton, but it would have been interesting had he devoted a bit more to this.  Nonetheless, this section of the book is one that this reviewer will undoubtedly refer to in the course of his own studies of the Federalist.

Gutzman also covers Madisonâ€s participation in the Virginia ratifying convention and his tireless efforts to get the Constitution ratified by a majority of the States.  Following the successful ratification, Gutzman covers some of the ground in Labunskiâ€s book with regard to Madisonâ€s efforts to get the Bill of Rights passed.

The remainder of the book is about Madisonâ€s service in Congress, as Jeffersonâ€s right hand as Secretary of State, his presidency, and finally his long career as a political sage after retirement.  In reading this book, like so many others about the Founders, the reader is struck with the magnitude of their contributions and intellects.  No, these men werenâ€t perfect, but they deserve our admiration and our gratitude. Consider some of Madisonâ€s accomplishments:

• Driving force behind the Constitutional Convention and getting Washington on board
• Attending Physician at the birth of the Constitution (some say father of the Constitution)
• Chronicler of the Convention – Madison provided a treasure trove of meticulous notes on the Convention which were published after his death.
• Collaborator on the Federalist Papers, authoring 26 of them
• Participant in the Virginia ratification convention
• As a member of the House of Representatives, Madison crafted the amendments that would comprise the Bill of Rights and sent them to the states for ratification
• Secretary of State under Jefferson
• President of the United States (two terms)
• Author of numerous essays and treatises – even after retirement from public office

This is, by no means, an exhaustive list, but represents the majority of the themes in James Madison and The Making of America.  Gutzmanâ€s book filled in some gaps in this readerâ€s knowledge and provided a number of pointers to subjects for further investigation.

Section 1: Background on your book

Martin: How did you end up doing the project? I note that you are a political science professor rather than a historian.

Greg:  This grew out of a doctoral dissertation.  My specialty is American Political Thought.  I wanted to do something that explored the political thought of the American Founding.  There seemed to be a hole in the literature on Madison in the sense that  there is a dilemma about whether he supports majority rule or not.  I didnâ€t think this this had been dealt with in as direct a way as it needed to be.

Martin: Well, that makes sense.  But how did you go about putting this together?  Itâ€s only about 150 pages, but it seems like there isnâ€t a wasted word.  How did you find the hole?  Itâ€s obvious when someone points it out, but until someone does …, but what drew your attention to this hole in the literature?

Greg:  Well there is a tension in the literature in the sense that the great debate in Madison literature going back to the Progressive critics is about whether Madison believed in majority rule.  Where the tension arises is, if you read Madison carefully, he over and over says that empirically speaking there is no choice but majority rule.  Society wonâ€t tolerate anything else.  How do you square that circle, because while he says majority rule is inevitable, he also wants majority rule to be reasonable.

Martin:  So you just noticed that there was an argument between those two things?  And your thesis was an attempt to rectify  the seeming contradiction between these.

Greg:  Yes, but I should also pay due homage to a famous, or what should be a famous article by George Carey and Willmoore Kendall on whatâ€s called the intensity problem, that first stimulated my thinking on this.  This article really points the way toward this issue of deliberation.

Martin:  Have you always been interested in American History?  Or was this purely a vehicle for political science?

Greg:  Well, this is sort of a late career thing for me.  I was a political consultant in national politics for 15 years before I got into this.  I worked in the Senate for several years, and it always seemed to me that there was a mutual contempt, or at least lack of respect between the academy and practitioners of politics.   It always seemed to me that the Importance of ideas was being overlooked.   By the same token it seemed that in the academy there was not a full appreciation for how these ideas get applied.  So that is what led me to it.

Martin:  The cover art for the book is wonderful.  Iâ€m a bibliophile, I look at books with some appreciation for quality.  When this book showed up from the University of Kansas Press, it just screamed to be read.  How did it come about?

Greg:  That came about by having absolutely nothing to do with me. Laughs.  Kansas does a wonderful job.  All their authors say this.   The first time I saw this it was in exactly in the form you see it today.

Martin:  So credit, where credit is due?

Greg: … and none of it is due to me!

Martin:  What did you learn in the course of publishing this book?  Not about the subject matter, but about the process of writing and getting it published.

Greg:   This was my first book.  I hope that I have learned that you have to pay careful attention whatâ€s actually being said and not to an extraneous political agenda – particularly in the area of American political thought.  Because there is such a clear intersection between the theory and the practice, I think it tends to get distorted by political agendas a lot.

Kansas is a wonderful press to work with.  They were very supportive and there when you needed them, but they didnâ€t try to dictate the content in anyway.  From that standpoint the process was very smooth.  I hope it was meticulous.    I tried to make it meticulous. I went through literally every page of what was, at that point was 30 published volumes of his writings.  I certainly learned itâ€s a lot of work!

Part II The Book

Martin:  Looking at the bibliography (which is pretty extensive), it seems as though you spent a lot of time analyzing what others have said and often refuting their contentions.  How did you arrive at which to go after?

Greg:  Well it may not be as impressive as it looks in the sense that the literature on Madison and the American Founding is so vast … The typical process is to follow the footnotes, but on this particular topic there is just no end to that process!  But what I did know is that the major debates on majority rule had been framed by a few major thinkers.  Charles Beard and the Progressive critics were one group, but by the time Lance Banning came along they had been more or less refuted.  But it did seem to me that this influence was still lingering.

The main thing that I wanted to do was to track down the literature on majority rule, not just on Madison but on majority rule.

Martin:  How long did it take?

Greg: It was 2 years of work.

Martin:  You donâ€t come out and say it in so many words, but it seems as though youâ€re a Madison fan.  (I am – the more I learn, the more impressed I am with these guys, warts and all).  After all your study, what would you say was Madisonâ€s biggest strength/weakness?

Greg:  I think his biggest strength is, heâ€s a very careful analytical thinker and a very historically oriented thinker.  He was someone who was capable of thinking in a very analytical way even in the midst of practical politics, which is a rare thing, particularly these days.   In terms of  weaknesses, one of the things I wanted to explore is the possibility that a lot of his political thought is uniquely influenced by the dynamics that occur around a time of founding rather than in a stable republic.  So, I think there are certain senses in which he did not see as far ahead as obviously we are able to see in retrospect today.  Faulted is probably not the right term.  Obviously he canâ€t be blamed for not seeing the internet coming or instant communication..  But I do think that there are certain strands in his thought that are tied to a time of founding which may not be as applicable in a stable republic.

Martin:  It seems like a there a lot of people on both sides of the political spectrum who try to stuff the founders into a box of their own design.  I got tired of being ignorant and didnâ€t want to be guilty of undeserved reverence for the founders.  Neither did I want to lack the information to either refute or understand the vitriol about, for instance, the meme of white aristocratic bigots.  For your part, why did you find it important to look to Madison for his take on our government versus somebody else?

Greg:  Well, because we are living in his republic.   That is not to say… as I say in the book I think he is miscast as the father, but heâ€s maybe itâ€s uncle.

Martin:  Midwife, or attending physician, I think you said in the book.

Greg:  Yeah, attending physician, I think it was.  We are living under institutions, that if he didnâ€t design, he at least gave the major theoretical defenses for.  I think a lot of the frustration we feel in contemporary politics has to do with the fact that we are living under 225-year old institutions, but with modern expectations.  I think it is very important institutionally to understand where we came from.  But I think itâ€s also undeniably the case that these guys thought about permanent questions and those questions are very much still with us.

Martin:  Is Madison still relevant today?

Greg:  Absolutely.  Gosh, let me count the ways.  I think many of the debates weâ€re having around the issue of terrorism, certainly go back to issues like separation of powers.  He certainly thought about human nature, which is many ways the central question of politics.  Certainly the issue of faction is very much still with us.  I think in some ways he doesnâ€t quite foresee, but itâ€s still there.   He is the major theorist of the Constitution and weâ€re living under his Constitution.

I donâ€t know if you know Ben Kleinermanâ€s work.  But he and I just did a paper for a conference in which one of things we argued is that one of the major sources of contentions in contemporary politics is the fact that the Constitution hasnâ€t changed, but that our expectations of politics has.   The Constitution hasnâ€t kept pace with what we want it do in the way that Madison would have wanted it to.  Which is to say we havenâ€t amended it.  But we want to do something new rather than sort of do it in paperwork, which is what Madison would have expected.  We just proceed and then turn around and get disappointed when there seems to be this tension between the Constitution and what we want to do.

Martin:  So we just proceed rather than use the mechanisms that are in place to handle such things?

Greg: Thatâ€s right.  There is an incident right at the end of his presidency, on the second to last day of his presidency, where he vetoes this roads bill – The Bonus Bill. And what he says in fairly casual terms is that he supports the underlying power, he supports what Congress wants to do.  When was the last time we saw a president veto something that he actually wants to do on the grounds itâ€s unconstitutional?  But thatâ€s another story.  He says, look I want to do this, and you want to do this, just pass an amendment.  Itâ€s not quite as grave and dramatic of a thing as we make it out to be today.  And in fact, if we didnâ€t make it out to be quite so dramatic we might be in better shape with respect to the Constitution.

Martin:  I might argue with you on that one.  It seemed to me that that was part of the temporal republicanism that Madison put in place to make it not a light thing to change the founding document for the country.

Greg:  Well, no, no.  That I agree with.   So, I think the point is not that it is a light thing.   Itâ€s supposed to be not an impossible thing, which is the standard weâ€ve set for it.  Let me give you example.  If you take the issue of health care reform, if the country wants to pass health care from, what Madison would have said, Iâ€m sure he would have a lot of things to say, but I think the first thing he would have said, is pass a Constitutional amendment authorizing Congress to do this.  Instead what weâ€re trying to do is the last thing he would have expected, which is to settle big Constitutional questions through the an undemocratic or at least a-democratic institution, which is the court.

Martin:  Your exploration of Madisonâ€s majoritarian views was really interesting and made me think – and Iâ€m still cogitating on it, in fact.  In particular your take on Madisonâ€s views on the potential for the tyranny of the Majority or conversely the tyranny of the minority made me look at Federalist 10 in a whole new light.   I tend to favor Bastiatâ€s view on the sanctity of property. In the book you donâ€t take sides, but Iâ€d like to know what you think.  Was Madison right?

Greg:  That was a very interesting point in your review.  If I have forced you to think, you have forced me to do this same.   Let me put it in a couple different ways.  One is he is highly concerned about property.  In terms of Charles Beardâ€s thesis that the Founders were only concerned about property, in many ways Beard is right.  I call this the Seinfeld defense – “not that there is anything wrong with that”.  There is a very long tradition in Anglo Saxon thought about property being the key to decentralized power and so forth.  He clearly thinks itâ€s very important, but all rights have boundaries, and all rights get regulated.  What is unique about conscience is the empirical impossibility of regulating it.  That is not so much to say the conscience is important and property is not, itâ€s simply that you canâ€t regulate conscience in the way that you can regulate property.  So, the question becomes, in what institution of government do we want that regulation to happen?  Do we want it to be in one in which we have a voice, or do we want these things to be sorted out by the courts.  Madison clearly thinks that these are questions to be sorted out through political mechanism.   But I think in terms of Madisonâ€s own preference.  There are some very intriguing passages in which he does suggest property can be heavily regulated.  I think his own personal preference was certainly that it be lightly regulated.  But I think he would say that that is a prudential question more than a Constitutional one.

Martin:  So, youâ€re putting your imprimatur on it.  In your opinion was he right?

Greg:  Well, I canâ€t weasel out of that question can I?  laughs  Do you mean was he right with respect to property being regulable? I think he was right.  I mean, very few would argue for no regulation, for instance you canâ€t just put a skyscraper next to somebodyâ€s house.  The question, in this case for Madison isnâ€t is it regulable, but where does it get regulated?  And if you donâ€t want it regulated or you want it lightly regulated, where do you go to make that case? Madisonâ€s answer is, you go to your neighbors.

Martin:  At several points in Madisonâ€s Metronome, you point out that Madison felt it important to instill reverence for the Revolution and founding documents.  As a political scientist, do you see a concerted effort on the part of some, to denigrate the Founders and the Constitution today?  And do you think that is intentional or unintentional?

Greg:  I think to a certain extent there has been one ever since the Progressives in the late 19th century.  Ever since Woodrow Wilson said free men need no guardians.   To be honest with you, I actually prefer it when itâ€s intentional.  I think there is absolutely nothing wrong with saying, “I disagree with the Founders.ӠWhat I object to is trying to take the Founders and treat them as an ink-blot test where you project whatever you were already looking into what they said.  I think itâ€s important note that for Madison at least, reverence for the founding doesnâ€t mean you never change.  It means you change with a certain amount of reverence for what youâ€re changing from and you donâ€t do it lightly, and you donâ€t do it for, as Jefferson says in the Declaration, for transient causes.  The benefit of the way that the Progressives and the Woodrow Wilsons of the world criticize the Founding is that they actually come right out and do it.  You can tell where they are coming from.  I think the problem in contemporary politics – and this happens on both the right and the left – is that we treat the Founding as sacred and therefore we have to input whatever our beliefs are into the Founding.  And that, I think really cheapens their thought.

Martin:  You concluded the book in a cautionary way, saying that now we are more dependent than ever on virtue than on anything else.  You point out that Madison sought to avoid such reliance, instead seeking to put systems in place to ensure that time ameliorate passion.  What do you see in the future?

Greg:  Thatâ€s a good question.  I see time contracting more and more.  I think that is problematic for the Madisonian system.   I think there are so many issues on which we have to recalibrate our expectations and in an age of instant communication we seem very reluctant to do that.  I think that this is connected with this tendency to see whatever it is we want to see in the Founding.   So whatever our policy preferences are, if the Constitutional system doesnâ€t immediately produce that, then we try to assert corruption, etc.   I think this is going to be a real problem going forward and I think the Madisonian answer is the only way you can solve it, through the recalibration of public opinion.  Iâ€m not sure that there are institutional answers to this.  I think that is why I ended the book on a cautionary note, because it is not immediately evident to me what the solution to this is.  Unless people will act like grownups and have adult expectations about what the Constitution is capable of producing.
Martin:  So youâ€ve just said what Madison said then.  Youâ€re dependent on the virtue of the people.

Greg:  Yeah, although, here is the dilemma.  Madison didnâ€t want to depend on virtue.  He is very explicit in Federalist 51 that he doesnâ€t want to depend on virtue, but was in a position where, to a certain extent he has to.

Martin:  Well, he has to depend on patience at least.  Thatâ€s the virtue that you called out.

Greg:  Correct.  The difference is that in the late 18th century, early 19th century, patience was a fact of life and not necessarily a virtue.  This is in many ways the fix that weâ€re in. I donâ€t want to be entirely pessimistic either.   Madison was certainly not a pessimist about the countryâ€s ability to adapt.

Martin: You made a comment about â…”â€s of the way through Madisonâ€s Metronome which I found interesting.  You said that contemporary conversations about rights tend to leave out the greater mass of the population.  Please elaborate on that.

Greg: When we talk about rights today, we tend to think about them as reservations against the community.  Thatâ€s a compelling way to think about rights in a lot of ways, but itâ€s not the way that Madison thinks about rights.  But let me reiterate, the fact that Madison said something, even by Madisonâ€s logic doesnâ€t mean that you canâ€t disagree with it.  All rights have boundaries, with the exception of conscience, all rights have natural boundaries that nobody would disagree with.  The question is, do you engage the public in that conversation? Or do you pursue rights through the courts?   The empirical evidence is fairly overwhelming, that when you try to pursue rights through the courts you end up with backlashes that leave you worse off than you were before.

There is a case, Goldman v Weinberger.  in which a Jewish Air Force chaplain, who was a rabbi that wanted to wear a Yarmulke.  This violates the uniform regulation.  He sues.  The answer of the appellate court, is if you want to do that is that you have change the law,  You canâ€t extract yourself from the community and ask the court to do it for you.  Interestingly enough, the outcome of this case is that Congress does change the uniform code to permit this    Madisonâ€s take is that if you can build something on the foundation of public opinion, itâ€s going to be much more secure and strong in structure than if you simply do through the courts.  Does that answer your question?

Martin:  Yeah.

Greg:  And by the way, this happens on both sides.  Have you seen Harvey Wilkinsons†new book?  He was a Reagan appointee for the 4th Circuit Court in Virginia.  His book is called Cosmic Constitutional Theory in which he talks about how the right and the left try to transmute policy disputes into rights disputes and try to settle them through the courts.

Martin:  I think I saw a review of that recently, now that you talk about it.  I donâ€t think it was a favorable review!

Greg: That wouldnâ€t surprise me, because there is a lot riding on this because of the healthcare debate right now.  There is a lot riding on how active conservatives want the court to be.

Martin:  Thatâ€s somewhat ironic to hear.

Greg:  Yes, and I think Wilkinson would say inconsistent.  You might want to check out Wilkinsonâ€s op ed in the New York Times a few weeks ago, which was quite good.

Martin:  Iâ€ve discovered a number of different approaches to constitutional interpretation.  Hadley Arkes advocates a natural law perspective – and makes a persuasive argument citing the founding documents and things like the preamble to the bill of rights, etc.  The Tea Party is all about original intent.  In your book, you say that the Constitution is a living document, (which makes me shudder,) but one with a really slow metabolism.  Philosophically, what has more credence in your opinion?  After all, you took the time to research Madisonâ€s intent.

Greg:  The problem with original intent jurisprudence, to which I am largely sympathetic, is that the clearest original intent is not to have policy questions decided by the court.

Martin:  So you think there is a little bit of a paradox there?

Greg:  Yes.  I think there is also a paradox generated by Madisonâ€s position on the National Bank, which is once the people have consistently through all three branches of government, ratified a certain Constitutional view for a certain amount of time then it becomes law.  Thatâ€s what I mean by suggesting that for Madison the Constitution was a living Constitution with a slow metabolism.

Martin:  Let me stop you there for a second.   Because this was a point that really made me think.  I think that it is unfortunate that many times things are misinterpreted for such a long period of time that they become de facto law.  You say that this is part and parcel of the process.  Iâ€m thinking of the 14th Amendment — being born here grants you citizenship.  I donâ€t think that it was originally intended that people come here from other countries and drop a kid here, but the fact is that it has been interpreted that way since the early 20th century.

Greg: There are different strands of original intent.  For original intent, what Madison would say is that the first place you look is to the words.  You only try to look at historical intent if the words are not clear.  The problem is, although I would certainly agree with you, that although it is not what they had in mind, it is what they said.  I think that to change that at this point would require an amendment. Now this is what I meant by saying that the amending process is not supposed to be quite so grave.  If the Constitution is being interpreted in a way that is not working for us, then amend it.   It wasnâ€t something that was supposed to be easy to do, but it wasnâ€t supposed to be impossible to do.

The problem that we end up with  … and I think this is a just criticism of what Madison does with the Bank … is that when we change the Constitution through practice rather than through amendment, we end up with what George Carey called a GARBLED.

Part III The fluffy questions at the end

Martin:  In the course of researching this book, what was the most surprising thing you found?

Greg:  The implications of what he does with the national bank were eye-opening.   The concept of a living Constitution is Madisonâ€s position, and that wasnâ€t something I would have predicted before I did the research.

Martin:  That surprised me too.

Greg: At a certain point there is a question of whether there is a better option.  Short of amendment, there is nobody Iâ€m aware of in mainstream politics, either on the right or the left who thinks that the Constitution, exactly as it was written in 1787, is compatible with what people on both sides of the aisle, seem to want government to do today. The question is not whether it changes, but how it changes.

Martin: You said something earlier … sure there are amendments which are no longer valid, time has marched on.  However, the genius behind the Constitution in my view is that it is a statement of human nature, an analysis of general principle.  Throughout, you can see that … necessary powers for example, Hamilton argues that you donâ€t give a power without all of the requisite authority to exercise that power, so be careful which power you give.  So here are the powers, and there is lot done by implication, and they did not specify down to the jot and tittle of every single thing that was possible, but they made a generic document that provided a framework for the arenas in which government can play.  So, I guess I would disagree a little bit. Everything in the Constitution is not exactly as it was written in 1787, but it has been amended many times.

Greg:  No, thatâ€s correct.  Iâ€m not sure we disagree.

Martin: So, perhaps weâ€re in violent agreement?

Greg:  There is no question in my mind that Madisonâ€s preferred mode of Constitutional change is amendment.  For example, for the New Deal.  I would argue that the basic tenets of the New Deal have not been challenged by either Republicans or Democrats for at least two generations now.  But Madisonâ€s preferred mode would have been that you amend the Constitution to provide the necessary authority.  The difficulty that Madison is in, is that if you take a look at how he says the Constitution is changed with respect to the National Bank, you have to say the same thing in steroids with regard to the New Deal.    I donâ€t think that you can conclude that the New Deal was based on Madisonian principles, but I donâ€t think Madison would view it is illegitimate.  I call this a sort of Madisonian paradox – that an un-Madisonian system acquires a sort of Madisonian legitimacy.

Martin:  What did you leave out?  Iâ€m sure you had to excise things for various and sundry reasons – they didnâ€t fit, space, etc.  But, what did you leave out?  What killed you to leave it out?

Greg:  All sorts of diversions.  I am very interested in the political theory of rights and majority rule.    I would have liked to have gotten more deeply into the contours of that debate outside of Madison.  I am also very interested in the tensions between Madison and Jefferson.  They were political partners and lifelong political partners – there was some deep theoretical political tension. I didnâ€t get to delve into that as much as I would have liked to.

Martin:  One my colleagues here at WWTFT, James Best, has written about, and studied Madison a lot.  He likes to say that Madison was at his best when he wasnâ€t under Jeffersonâ€s sway.

Greg:  Yeah, there is a sort of an older brother/little brother dynamic between the two of them.  I donâ€t mean to psychologize the dispute, but the purpose that Madison serves in that relationship is to reign Jefferson back in.  In many ways Jefferson is more than of a poet than a theorist.  If you look, for example at the exchange they have where Jefferson suggests that no law should last more than 19 years, the practical implications of that are nuts.  You just couldnâ€t do that.  This is a case where Madison has to be the more sober of the two.    But I think it is a fruitful tension between the two of them, and I think it is a very interesting one.

Martin:  What if anything did you discover that ran counter to your expectations?

Greg:  I found Madison to be much more strictly and straightforward of a majoritarian than I expected.  I went in with an open mind to deal with this puzzle of majority rule and found him to be much more consistently majoritarian than I would have guessed.  And also what I mentioned before about the living constitution with a slow metabolism.

Martin:  What didnâ€t I ask you that I should have?

Greg:  I thought you would ask about health care. I think you have been pretty comprehensive.

Martin:  Whatâ€s your next project?

Greg:  My next book is completely different.  It is a book on the political thought of Pat Moynihan.  I think he is  the Madison of his day.  The practitioner of politics who is very theoretically grounded and is able to keep up that dialog between theory and practice throughout his career.  So there is that commonality.   And I would like to add, that thatâ€s one of the things I really appreciate about the University of Kansas Press, is that they understand that American political thought didnâ€t end with Calhoun.  I think it is also important to take more recent things into account, too.

Before getting into the meat of the book review, this reviewer is compelled to remark on the physical presentation of Madison’s Metronome.  Bibliophiles will appreciate the quality binding and paper, along with the beautiful cover art.  The University of Kansas Press is to be congratulated on producing a gorgeous volume.  It is truly a pleasure to read, so much so, in fact that nary a mark or highlight did this reviewer make upon it, instead opting to make use of a separate pad and paper for annotations.

On to the review.

Madison’s Metronome is an extremely honest and thorough assessment of Madison’s political theories as they relate to the construction of the United States federal system.  The book is a “chips fall where they may” look at a remarkable mind.  Author Greg Weiner does an incredible job of avoiding even the smell of a partisan agenda of any kind.  This is truly an academic look at Madison’s views on republican government.  Honest conservatives and progressive liberals alike will find things in the book that make them stop and reassess.  Although Weiner’s book is thorough and deep, it is not dry.  The author manages to explain some pretty complex concepts in a straightforward and accessible manner.  On the other hand, it’s not bedtime reading, either.  It is definitely not a book written for someone unfamiliar with the history of the time.  It is, from the first, a conversation (in the vein of Mortimer Adler’s Great Conversation) between Weiner and other historians, past and present.

Weiner’s approach at presenting his thesis is methodical and topical rather than chronological.  Although there is a fair amount of biographical information interspersed throughout, Madison’s Metronome is not a biography.  Instead it is a look at Madison’s mind and his understanding of the system that he is often credited with building.  His approach works in part because, although Madison’s thinking matured and evolved throughout his long life, he remained remarkably consistent on many things, chief among them, his vision of the role of time in a democratic republic.  Although Weiner doesn’t explicitly say so, his analysis of Madison’s thinking leads to one inescapable conclusion  – Madison was one smart guy.  Supporting this assessment, we’ll begin our review of Weiner’s book by quoting the opening paragraph,

Twelve-year-olds do not read Michel de Montaigne anymore, much less take notes.  James Madison did both, and a circa 1763 entry in his child commonplace book indicates that one of the French essayist’s observations made a particular impression: “Time,” Montaigne wrote and Madison transcribed, “is the Sovereign Physician of our Passions, & gains its End chiefly by supplying our imaginations with other & new Affairs, wearing out the Old by new impressions.” To this, Madison added an observation of his own: “Our passions are like Torrents, which may be diverted, but not obstructed.”

Weiner does a masterful job of showing how these two ideas shaped Madison’s thinking about republican government for his entire life.  The first of these ideas comprises Weiner’s primary thesis on the role of time in moderating the passions which rule the majority in society.  The second is Madison’s practical understanding of human nature and it’s inevitability.

Throughout the course of the book, Weiner makes a series of compelling arguments to support his view that Madison was not opposed to majority rule in the way many have interpreted his writings to say. Instead, Madison believed that majority rule was inevitable and, in fact, the only truly just mechanism of governance.  This is not to say that Madison did not see the dangers inherent in the formation of an abusive majority to the rights of the minority.  But, Madison saw the risks of tyranny as being greater from government than from majority rule.  Madison saw the moderating influence of time, coupled with the broadest majority possible, as the best counter to the latter.  The checks and balances of the federal system were constructed as an answer to the former.  But even this mechanism is based on utilizing the moderating influence of time to ensure that the passions of the moment were given time to abate.  The different election cycles of congress – every two years for the House of Representatives, 3 offset six year cycles for the Senate, 4 year terms for the President, and lifetime tenures for the Supreme Court, were all part of this design.  Weiner characterizes,

… one function of the Constitution was to serve as a metronome, setting the proper tempo for republican politics.

Although Madison is often credited as the father of the Constitution, this was an honor that he firmly refused to accept.  Nevertheless, it is probably safe to say that without Madison we probably wouldn’t have a Constitution.  He may not have been responsible for writing it in its present form, but his influence moderated much of what was proposed by others.  Madison’s perspective is unique for many reasons, among them that he was one of the youngest delegates to the Convention and its last survivor.  It is thanks to Madison’s copious notes that we have a record of what transpired during those sweltering weeks in Philadelphia.

In Weiner’s view, historians poring over those notes, The Federalist, or any of his other writings, sometimes confuse Madison’s concern with the abuse of the majorities with opposition to majority rule.  Others falsely accuse Madison of being majoritarian only when it suited his argument.  Weiner makes a good case for Madison’s intellectual honesty on this topic.  Per his analysis, Madison saw majority rule as the only legitimate form of governance.  In fact, there is considerable evidence to support that Madison felt that a minority obstructing the will of the majority for too long was bound to be the source of civil unrest.  Weiner points to the Articles of Confederation and the ability of even one state to obstruct the will of the majority as being a major frustration to good government.

A key to understanding Madison as both a staunch federalist and a populist majoritarian, is to look at things the way he did.  In his view, liberalism (in the classical sense) and republicanism were not at odds with one another but operating on a different plane.  Madison considered majority rule as a mechanism for making decisions, and liberalism as a criterion for evaluating them.  The trick was to slow down the passions of the moment enough that reason would have time to evaluate the course.  That evaluation would be done by the people, through their representatives.  If a majority view cohered long enough to weather election cycles, Madison figured it was likely to be a fair reflection of majority interests.  If, on the other hand, the passions of the moment dissipated before they could take hold, then they probably weren’t in the true best interest of the majority anyway.

According to Weiner, Madison had faith that the majority would eventually make the right decisions, but in the short term, if not forced to consider the ramifications of what was being advocated, might enact legislation that was counter to the long term interest of society as whole.  Madison sought to inject time for reflection by erecting systematic barriers to hasty decisions.  Weiner contends that Madison never really questioned the right of majorities to impose their will, only their inability to discern the right course at times.

There was only one exception to this.  In matters of conscience, Madison felt that the majority had no claim on minority interest, but not for the reasons popularly ascribed to him.  For Madison, it was not that the individual should not be imposed upon by the majority but that the individual owed allegiance to God first, then government.

It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.  From A Memorial and Remonstrance written to the Virginia General Assembly.

Weiner explains,

The key to Madison’s argument lies in its syllogistic hierarchy of associations and the obligations that attend them.  These rise from “subordinate associations” to the “general authority” to the “Universal Sovereign.”  Conscience is the only assertion of right that logically outranks the general authority on this scale.  Conversely, and equally important, every other right deals with associations or activities – such as the individual’s possession of property – that would be located below the general authority on the same scale, and thus be regulable by it.  That is not to say the individual is at the mercy of the general authority – that is, the majority.  Again, the majority is obliged to maintain the rule of law, including in its regulation of rights.  The relevant point for the present analysis is that the individual’s right of conscience actually derives from the individual’s obligation to an authority that outranks society.  For another right to be comparably immune from majorities, it would have to entail obligations exceeding the individual’s obligation to society as well.  No other right contemplated in Madison’s writings meets that criterion.  The point, in sum, is not that society is not entitled to interfere with the individual.  Madison indicates clearly that it can.  What society is not entitled to do is interfere with the Creator’s superior claim to the individual’s allegiance.

This analysis may not sit well with contemporary discussions about individual rights or religion.   Madison recognized the danger inherent in majority rule but saw no alternative.  His reasoning was not on the basis of the rights of the individual, but the Creator’s superior claim.  Weiner doesn’t take sides in the argument, but contrasts Madison’s view with that of Thomas Paine, who posited that the rights of the individual were supreme in matters of conscience because the individual was supreme.  It would be interesting to explore Weiner’s thoughts on the merits of Madison’s argument in comparison with those of Bastiat.

What, then, is law? It is the collective organization of the individual right to lawful defense.

Each of us has a natural right — from God — to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties? If every person has the right to defend even by force — his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right — its reason for existing, its lawfulness — is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.

Such a perversion of force would be, in both cases, contrary to our premise. Force has been given to us to defend our own individual rights. Who will dare to say that force has been given to us to destroy the equal rights of our brothers? Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organized combination of the individual forces?

If this is true, then nothing can be more evident than this: The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.  The Law

But, this is of course outside of the realm of Weiner’s thesis, which is to explain Madison’s point of view rather than to critique it.  However, at the end of Madison’s Metronome Weiner does venture a few observations about the suitability of Madison’s system of temporal republicanism in the present day.

Whereas Madison believed decisions should take longer to make as their gravity increased, the contemporary ethos holds the opposite: the more urgent change is assumed to be, the more quickly it must be delivered.  … Success equals change divided by time (s=c/t).  The more change a political actor can deliver in a shorter period of time, the more successful he or she is assumed to be.

The application of this formula is problematic for several reasons, including the fact that it inherently classifies prudence as failure, at least insofar as prudence values inaction when change is not specifically warranted and gradualism when it is.  Change is not always necessary; sometimes, Madison might even say “usually,” mere governance is.  The chief flaw of the speed standard, however, is that it places stresses on the constitutional system that it was not designed to bear and was, on the contrary, specifically engineered to avert.  The result, we have seen, is a simultaneous and apparently endless escalation of both expectations and disappointments.

In conclusion, Weiner returns to an earlier theme not yet covered in this review.  Madison hoped that time, coupled with reverence for the Constitution, which would be strengthened by time, would help make the majority less prone to violent change.  He thought that with time, people would be less prone to modify or destroy the parchment barriers of the Constitution.  It was for this reason that he sought to inculcate reverence for the founding documents.

In a day when the Constitution is under attack from those who claim it is out-dated, when reverence for its principles is denigrated, one has to wonder if there isn’t a method to this madness.

International criminal law is now taught in law schools.  it is a subject with its own specialized case books.  It is treated as a well-established branch of the law.  But it is, in fact, quite new and not at all well-established.

Rabkin then discusses the conclusions reached by the authors of The Nuremburg Tribunals and the Origins of International Criminal Law, by Kevin Jon Heller, and The International Criminal Court: Europe’s Guantanamo Bay? by David Hoile.

In the case of the Nuremburg Trials, the proceedings were largely an American affair, despite protestations to the contrary.  Although the sentences were not particularly harsh in most cases (only 12 of 25 death sentences were ultimately carried out and of the 38 defendants who were sentenced to 20 or more years, all were released within 10), and on the whole minimal.  The German people resented them as “revenge trials” and “victor’s justice.”   Sadly, these so called military tribunals did not succeed in educating the German people against National Socialism or racism.

Rabkin asks,

Would trials be more effective if removed from the distracting concerns of an occupying power?

.. and concludes no.

Ethnic strife following the break up of Yugoslavia prompted the UN security council to establish the International Criminal Tribunal for the Former Yugoslavia in 1993.  It was hailed as the “first international war crimes tribunal since Nuremburg.”  Unlike the Nuremburg tribunals, this one was not an instrument of an occupying power, since the scattering of U.N. peacekeepers in Bosnia could not even keep the peace there, let alone control all the neighboring territories.

Still, people in Serbia noticed the new tribunal’s sense of timing.  It was not until six years after its creation that the ICTY indicted Serb President Slobodan Milosevic.  The indictment was announced in 1999, just as NATO was bombing Belgrade in a dispute over the Serb province of Kosovo — at a time when nationals of NATO states predominated on the prosecution staff and on the tribunal’s bench.  After Milosevic was overthrown and subsequently extradited to the Hague, broadcasts of his trial actually revived his popularity.  Before his sudden heart attack in 2006, pollsters found he had become the most highly esteemed politician in Serbia — despite all his failed wars and abuses of power while in office.

After documenting the failures of a second UN International Tribunal in addressing the genocide occurring in Rwanda, he examines the record of the UN’s next iteration – the permanent International Criminal Court.

The ICC’s achievements in Africa has been less than stellar, earning no respect and no little resentment from countries being adjudicated by outsiders.  The ICC is suspected of neocolonialism – with good reason.  The E.U. has pressured aid recipients threatening to withhold assistance from those who refuse to buy into ICC jurisdiction.

Rabkin explains,

Perhaps it is not surprising that people do not trust outsiders claiming to deliver justice to them – without their consent.  Of course, genuine evil-doers don’t want justice imposed on themselves under any conditions.  In this world, justice almost always requires coercion.  But it makes a difference if those who wield the sword of justice are at least connected with the community in which justice is enforced.

With the ever increasing impetus to apply international law, as specified in various UN resolutions, to Americans at the expense of national sovereignty, we should mind, not only the lessons of the ICC’s brand of justice, but hearken back to the words of James Madison at the end of Federalist No. 62,

But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.

In Federalist No. 62, Madison was arguing the importance of a government which affords a predictable and stable system of laws.  But it is no less applicable to the danger faced by ceding sovereignty  to an unelected international authority with its own goals and agenda.  The United States is a nation built upon the rule of law, not the rule of any law, but that of a stable system in which the laws are the product of an elected legislature and based on fundamental principles applicable to all citizens.  In the same Federalist, Madison reminds us,

Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?