Madison's audience

Harvard Law Review

Volumn 112, Issue 3, 1999, Pages 611-679

  Kramer, Larry D ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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[No Author keywords available]

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EID: 0346333608     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1342372     Document Type: Article

References (373)

1. THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 147 (Pierce's notes, June 6, 1787) (Max Farrand ed., rev. ed. 1937) [hereinafter FARRAND].
2. ALBERT FURTWANGLER, THE AUTHORITY OF PUBLICS 112 (1984).
3. DAVID F. EPSTEIN, THE POLITICAL THEORY OF THE FEDERALIST 59 (1984).
4. Frank H. Easterbrook, The State of Madison's Vision of the State: A Public Choice Perspective, 107 HARV. L. REV. 1328, 1333 (1994).
5. Edmund S. Morgan, The Federalist, NEW REPUBLIC, Feb. 26, 1996, at 37, 37 (book review).
6. Theodore Draper, Hume & Madison: The Secrets of Federalist Paper No. 10, 58 ENCOUNTER 34, 34 (1982).
7. LANCE BANNING, THE SACRED FIRE OF LIBERTY: JAMES MADISON AND THE FOUNDING OF THE FEDERAL REPUBLIC 204 (1995).
8. See Neal Riemer, James Madison's Theory of the Self-Destructive Features of Republican Government, 65 ETHICS 34, 35-36 (1954);
9. see also Martin Diamond, The Federalist, in HISTORY OF POLITICAL PHILOSOPHY 659, 669 (Leo Strauss & Joseph Cropsey eds., 3d ed. 1987) (describing "Publius" as a spokesman for the new "science of politics" and as making "an important addition to [that] science").
10. See James A. Dorn, Madison's Constitutional Political Economy: Principles for a Liberal Order, 2 CONST. POL. ECON. 163, 183-84 (1991);
11. see also Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484, 1492 (1987) (noting that the Founders developed "complex and sophisticated theories of federalism").
12. Jack N. Rakove, The Madisonian Moment, 55 U. CHI. L. REV. 473, 474 (1988). The development and major premises of Madison's theory are described below in notes 78-102 and accompanying text.
13. Martin Flaherty complains, with good cause and more than a hint of exasperation, that legal scholars "assume that simply citing James Madison, without more, suffices as a basis for making grand points about the Founding." Martin S. Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523, 563 (1995).
14. See Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 68-72 (1985).
15. See Frank H. Easterbrook, Method, Result, and Authority: A Reply, 98 HARV. L. REV. 622, 622-27 (1985);
16. see also Frank H. Easterbrook, The Supreme Court, 1983 Term - Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 14-18 (1984) (advocating a method of statutory interpretation that emphasizes the interest group underpinnings of statutes).
17. See William N. Eskridge, Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 VA. L. REV. 275, 277-78 (1988);
18. Jonathan R Macey, Promating Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 242-50 (1986).
19. See Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 944-45 (1985).
20. See Richard A. Epstein, Toward a Revitalization of the Contract Clause, 51 U. CHI. L. REV. 703, 705, 711-12 (1984).
21. See Thomas W. Merrill, The Economics of Public Use, 72 CORNELL L. REV. 61, 115 (1986);
22. Norman R. Williams II, Rising Above Factionalism: A Madisonian Theory of Judicial Review, 69 N.Y.U. L. REV. 963, 985 (1994).
23. See Martin H. Redish, Federal Common Law, Political Legitimacy, and the Interpretive Process, 83 NW. U. L. REV. 761, 778-79 (1989).
24. See Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 176 (1994).
25. See Patricia M. Wald, Looking Forward to the Millenium: Social Previews to Legal Change, 70 TEMP. L. REV. 1085, 1109-10 (1997).
26. See Clayton P. Gillette, Plebiscites, Participation, and Collective Action in Local Government Law, 86 MICH. L. REV. 930, 940-44 (1988);
27. Note, Direct Democracy Through Initiative and Referendum: Checking the Balance, 8 NOTRE DAME J.L. ETHICS & PUB. POL'Y 573, 591-92 (1994).
28. Letter from James Madison to Thomas Jefferson (Oct 24, 1787), in 10 THE PAPERS OF JAMES MADISON 206, 212 (Robert A. Rutland et al. eds., 1977) [hereinafter 10 PAPERS OF MADISON].
29. Jack N. Rakove, The Great Compromise: Ideas, Interests, and the Politics of Constitution Making, 44 WM. & MARY Q. (3d ser.) 424, 427 (1987).
30. WILLIAM LEE MILLER, THE BUSINESS OF MAY NEXT: JAMES MADISON AND THE FOUNDING 28 (1992).
31. The obvious citations here would be to CHARLES A. BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES 152-88 (Free Press 1986) (1913),
32. and Douglass Adair, The Tenth Federalist Revisited, in FAME AND THE FOUNDING FATHERS: ESSAYS BY DOUGLASS ADAIR 75, 77 (Trevor Colbourn ed., 1974), but the point is generally taken to be a truism, see BANNING, supra note 7, at 114, 119, 129, 138, 147-48;
33. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 499-506 (1969) [hereinafter WOOD, CREATION OF THE REPUBLIC];
34. Gordon S. Wood, Interests and Disinterestedness in the Making of the Constitution, in BEYOND CONFEDERATION 69, 75-76 (Richard Beeman et al. eds., 1987) [hereinafter Wood, Interests and Disinterestedness],
35. Editorial Note to James Madison, Vices of the Political System of the United States, in 9 THE PAPERS OF MADISON 346-47 (Robert A. Rutland et al. eds., 1975) [hereinafter 9 PAPERS OF MADISON].
36. The sole dissenters from this view appear to be James H. Hutson, Riddles of the Federal Constitutional Convention, 44 WM. & MARY Q. (3d ser.) 411, 420-22 (1987),
37. and Michael P. Zuckert, Federalism and the Founding: Toward a Reinterpretation of the Constitutional Convention, 48 REV. POL. 166, 191-92 (1986), neither of whom develops the point at any length.
38. 1 FARRAND, supra note 1, at 147 (Pierce's notes, June 6, 1787).
39. See, e.g., BANNING, supra note 7, at 244-45 (haughty aristocracy); MERRILL JENSEN, THE NEW NATION: A HISTORY OF THE UNITED STATES DURING THE CONFEDERATION at viii (1950) (panicky overreaction);
40. JACKSON TURNER MAIN, THE ANTI-FEDERALISTS 249-81 (1961) (economic self-interest);
41. JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 23-56 (1996) (foresighted wisdom);
42. WOOD, CREATION OF THE REPUBLIC, supra note 24, at 469-562 (haughty aristocracy).
43. See generally WILLIAM H. RIKER, THE STRATEGY OF RHETORIC 75-95 (1996) (describing Federalist and Antifederalist campaign tactics to show how the Federalists outwitted their opponents).
44. Wood, Interests and Disinterestedness, supra note 24, at 72; see also BANNING, supra note 7, at 244-45 (noting that twentieth century scholarship has "overwhelmingly confirmed" that there was no "general crisis from which it was necessary for the country to be rescued").
45. Wood, Interests and Disinterestedness, supra note 24, at 72;
46. see WOOD, CREATION OF THE REPUBLIC, supra note 24, at 463-67.
47. M.J.C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS (1967), offers a rich and detailed discussion of constitutional thought in eighteenth century England and America.
48. For more extensive discussions of the problems summarized below, see RICHARD B. MORRIS, THE FORGING OF THE UNION, 1781-1789 (1987);
49. JACK N. RAKOVE, THE BEGINNINGS OF NATIONAL POLITICS 333-99 (1979);
50. and WOOD, CREATION OF THE REPUBLIC 393-429- cited above in note 24.
51. On Shays' Rebellion and other agrarian disturbances, see VAN BECK HALL, POLITICS WITHOUT PARTIES: MASSACHUSETTS, 1780-1791, at 227-55 (1972);
52. DAVID P. SZATMARY, SHAYS' REBELLION: THE MAKING OF AN AGRARIAN INSURRECTION (1980);
53. Richard B. Morris, Insurrection in Massachusetts, in AMERICA IN CRISIS 21 (Daniel Aaron ed., Archon Books 1971) (1952);
54. and Alan Taylor, Regulators and White Indians: The Agrarian Resistance in Post-Revolutionary New England, in IN DEBT TO SHAYS 145 (Robert A. Gross ed., 1993).
55. The problem of securing state boundaries against both other states and internal dissension is thoroughly considered in PETER S. ONUF, THE ORIGINS OF THE FEDERAL REPUBLIC: JURISDICTIONAL CONTROVERSIES IN THE UNITED STATES, 1775-1787, at 149-72 (1983).
56. Problems of foreign relations are addressed in RICHARD B. MORRIS, THE PEACEMAKERS: THE GREAT POWERS AND AMERICAN INDEPENDENCE 191-310 (1965); and RAKOVE, cited above in note 30, at 342-52.
57. On issues concerning the military and its relationship to various political problems of the Union, see RICHARD H. KOHN, EAGLE AND SWORD: THE FEDERALISTS AND THE CREATION OF THE MILITARY ESTABLISHMENT IN AMERICA, 1783-1802, at 17-88 (1975).
58. See LAURENCE D. CRESS, CITIZENS IN ARMS: THE ARMY AND MILITIA IN AMERICAN SOCIETY TO THE WAR OF 1812, at 1-52 (1982); KOHN, supra note 32, at 2-6.
59. The leading study of public finance during the Revolutionary and Confederation periods remains E. JAMES FERGUSON, THE POWER OF THE PURSE: A HISTORY OF AMERICAN PUBLIC FINANCE, 1776-1790 (1961). The discussion in the remainder of this paragraph and the next is based on Parts III and IV of Ferguson's monograph.
60. See MORRIS, supra note 30, at 245-57; RAKOVE, supra note 30, at 345-47.
61. See RAKOVE, supra note 30, at 342-45.
62. These items are specifically listed in Madison's famous memorandum on the Vices of the Political System of the United States. See James Madison, Vices of the Political System of the United States, in 9 PAPERS OF MADISON, supra note 24, at 348, 349-50 [hereinafter Vices Memo].
63. Useful discussions of problems of governance in the West are found in FRANCIS S. PHILBRICK, THE RISE OF THE WEST, 1754-1830, at 104-33 (1965);
64. and Drew R. McCoy, James Madison and Visions of American Nationality in the Confederation Period: A Regional Perspective, in BEYOND CONFEDERATION, supra note 24, at 226, 248-50.
65. Letter from George Washington to Congress (Sept. 17, 1787), in 2 FARRAND, supra note 1, at 666, 666.
66. See Rakove, supra note 23, at 428, 431, 437; see also Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), in 8 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 249, 250 (John P. Kaminski & Gaspare J. Saladino eds., 1988) [hereinafter 8 DOCUMENTARY HISTORY] (praising the Constitution's provision for popular elections to the House of Representatives because it "preserv[es] inviolate the fundamental principle that the people are not to be taxed but by representatives chosen immediately by themselves"); Charles Cotesworth Pinckney, Address to the South Carolina Legislature (Jan. 17, 1788), in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 282-83 (Jonathan Elliot ed., 2d ed. 1888) [hereinafter ELLIOT, DEBATES] (stating that, because "we have found it necessary to give very extensive powers to the federal government both over the persons and estates of the citizens, we thought it right to draw one branch of the legislature immediately from the people").
67. Madison explained to Jefferson that, if federal power were to be "render[ed] . . . efficient without the intervention of the [state] Legislatures," changing the "principle of Representation" from states to individual citizens would be "just." Letter from James Madison to Thomas Jefferson (Mar. 19, 1787), in 9 PAPERS OF MADISON, supra note 24, at 317, 318. He also argued at the Convention that the lower house of Congress must be popularly elected "lest . . . the people be lost sight of altogether." 1 FARRAND, supra note 1, at 50 (Madison's notes, May 31, 1787). George Mason defended the same proposition on the ground that a government empowered to bind individuals must reflect "the democratic principle" and that the House of Representatives should be the "grand depository" of that principle. Id. at 48-49. James Wilson responded to the argument that the government would be sufficiently democratic if the people chose the state officials who selected federal lawmakers by observing that "the difference between a mediate and immediate election was immense." Id. at 359 (Madison's notes, June 21, 1787).
68. 1 FARRAND, supra note 1, at 359 (Madison's notes, June 21, 1787).
69. Id. at 49 (Madison's notes, May 31, 1789) (speech of James Wilson).
70. Id.
71. Id. at 256 (Madison's notes, June 16, 1787). William Davie made the same point to the North Carolina ratifying convention, arguing that the new government would not possess enough strength to exercise the powers conferred upon it unless "the foundations of this government should be laid on the broad basis of the people." William Davie, Address at the North Carolina Ratifying Convention (July 24, 1788), in 4 ELLIOT, DEBATES, supra note 40, at 21.
72. 1 FARRAND, supra note 1, at 256 (Madison's notes, June 16, 1787).
73. See RAKOVE, supra note 30, at 394-95; VILE, supra note 29, at 119-60.
74. See BANNING, supra note 7, at 149; RAKOVE, supra note 26, at 63-65. The New Jersey Plan was proposed by William Paterson on behalf of the small states as an alternative to the nationalist Virginia Plan. It constituted a series of amendments to the Articles of Confederation that would have retained their general structure while granting Congress new powers to raise money through import duties and a stamp tax, to regulate interstate commerce, and to use force to compel delinquent states to honor federal requisites. The New Jersey Plan also created a modest plural executive and a supreme court. See 3 FARRAND, supra note 1, app. E at 611-13.
75. Cf. Rakove, supra note 23, at 441-43 (explaining that the New Jersey plan was proposed to counter "the legitimacy, not the merits, of the Virginia plan").
76. 1 FARRAND, supra note 1, at 34 (Madison's notes, May 30, 1787); see also James Bowdoin Dalton, Address at the Massachusetts Ratifying Convention (Jan. 25, 1788), in 2 ELLIOT, DEBATES, supra note 40, at 105 ("Sir, I was opposed to the five per cent, impost being granted to Congress [under the Articles of Confederation] . . . . But, sir, as Congress is, by the proposed Constitution, to be differently constructed . . . my objections will be removed. In my opinion, the delegating of power to a government in which the people have so many checks, will be perfectly safe, and consistent with the preservation of their liberties.").
77. THE FEDERALIST NO. 22, at 145 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
78. Davie, supra note 45, at 20-21. This point was emphasized by Federalists, and even by moderate Antifederalists, thoughout the debate. For just a few examples, see The Federal Farmer: An Additional Number of Letters to the Republican (Letter X), in 17 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 298-99 (John P. Kaminski & Gaspare J. Saladino eds., 1995); Robert Livingston, Address at the New York Ratifying Convention (June 19, 1788), in 2 ELLIOT, DEBATES, cited above in note 40, at 215-16; Charles Pinckney, Address to the South Carolina Legislature (Jan. 16, 1788), in 4 ELLIOT, DEBATES, cited above in note 40, at 256; Richard Dobbs Spaight, Address at the North Carolina Ratifying Convention (July 30, 1788), in 4 ELLIOT, DEBATES, cited above in note 40, at 206; The State Soldier I, VA. INDEP. CHRON., Jan. 16, 1788, in 8 DOCUMENTARY HISTORY, cited above in note 40, at 305; and James Wilson, Speech at the Pennsylvania Ratifying Convention (Dec. 4, 1787), in 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 474 (Merrill Jensen ed., 1976) [hereinafter 2 DOCUMENTARY HISTORY].
79. WOOD, CREATION OF THE REPUBLIC, supra note 24, at 467, 473. The really striking thing about Wood's claim that the Federalists' "focus was not so much on the politics of the Congress as it was on the politics of the states," id. at 475, is how little evidence he cites to support it. In both The Creation of the Republic, where he first made this claim, and in his later article, Interests and Disinterestedness, Wood offers abundant testimony showing that the nationalist elite believed America was experiencing a crisis, due in no small part to parochial misbehavior by state assemblies. But other than statements by Madison, the only support he offers to link their sense of crisis in the states with reform of the national government is this inference from the content of the Constitution. As I show in Part II, if the other delegates shared Madison's views about using national reform to repair defects in the states, they were oddly silent about it.
80. The vision of Madison conniving from the early 17803 to replace the states with a fully consolidated national government was long the dominant interpretation of his political agenda. See, e.g., MARTIN DIAMOND, AS FAR AS REPUBLICAN PRINCIPLES WILL ADMIT 126-33 (William A. Schambra ed., 1992);
81. RICHARD B. MORRIS, WITNESSES AT THE CREATION: HAMILTON, MADISON, JAY, AND THE CONSTITUTION 110-12 (1985);
82. WOOD, CREATION OF THE REPUBLIC, supra note 24, at 472-73, 524-32. Madison's earlier biographers shared this view of him as well.
83. See 2 IRVING BRANT, JAMES MADISON 301, 418 (1948); RALPH KETCHAM, JAMES MADISON: A BIOGRAPHY 132-36 (1971);
84. JAMES MADISON: A BIOGRAPHY IN His OWN WORDS 51, 69-71 (Merrill D. Peterson ed., 1974). Recent historical work has tended to moderate the story by putting Madison's actions more clearly in context. Lance Banning and Jack Rakove, for example, find plenty of room to disagree about the extent of Madison's nationalism at the Convention and afterwards, but both offer persuasive accounts of his earlier conduct that are muted along the lines suggested here. See BANNING, supra note 7, at 13-75; RAKOVE, supra note 26, at 35-40.
85. For example, Madison's support in 1781 for "a general and implied power" under the Articles of Confederation that would have authorized Congress to enforce its revenue demands is often read as evidence of his early ultranationalism. KETCHAM, supra note 54, at 112-14; see also biographies cited supra note 54. But such a reading is deceptive, a product of disputes that occurred later, in the 1790s, when the issues were different. At the time Madison made this statement, the war was still on and talk about implied powers was not particularly controversial. Because Congress had exercised such powers in the past, Madison's declaration excited no special protest from his fellow delegates. Madison offered his argument, moreover, in lieu of proposals to give Congress the power to regulate trade or to collect a five percent impost, proposals which he voted against. See BANNING, supra note 7, at 20-22. And instead of arguing that Congress should exercise this implied power, Madison recommended that Congress ask the states to amend the Articles to make its authority express. Madison understood the importance of making the federal government effective, but he was unwilling to give it any more power than was necessary, and he plainly was not prepared to go as far in strengthening Congress as some of his fellow congressmen. See id. at 13-14, 24-26.
86. Madison's correspondence while he served as a state legislator in the years 1784 to 1786 bristles with contempt for legislators who lack "liberality or light" and barely suppressed fury at "those who mask a secret aversion to any reform under a zeal for such a one as they know will be rejected." Letter from James Madison to George Washington (Dec. 9, 1785), in 8 THE PAPERS OF JAMES MADISON 438, 439 (Robert A. Rutland et al. eds., 1973) [hereinafter 8 PAPERS OF MADISON]; see Letter from James Madison to Thomas Jefferson (Aug. 20, 1785), in 8 PAPERS OF MADISON, supra, at 344, 346.
87. See BANNING, supra note 7, at 77-79, 96-107; Letter from George Washington to James Madison (Nov. 5, 1786), in 29 THE WRITINGS OF WASHINGTON 50, 52 (John C. Fitzpatrick ed., 1939); Letter from George Washington to Henry Lee (Oct. 31, 1786), in 29 THE WRITINGS OF WASHINGTON, supra, at 33-34.
88. In a speech accompanying a motion in the Virginia Assembly to revise the state constitution, Madison disparaged its "Union of powers of Govt.," citing Montesquieu and listing as flaws the dependence of both the executive and the judiciary on the legislature. Notes for a Speech Favoring Revision of the Virginia Constitution of 1776 (June 14 or 21, 1784), in 8 PAPERS OF MADISON, supra note 56, at 78. He observed that the powers of the Assembly were neither limited nor defined, and he worried that the senate was "badly constituted & improperly barred . . . from originating . . . laws." Id. 59 See Letter from James Madison to Caleb Wallace (Aug. 23, 1785), in 8 PAPERS OF MADISON, supra note 56, at 350, 350-52.
89. Letter from James Madison to Thomas Jefferson (Mar. 18, 1786), in 8 PAPERS OF MADISON, supra note 56, at 500, 501.
90. See James Madison, Notes on Ancient and Modern Confederacies, in 9 PAPERS OF MADISON, supra note 24, at 3-24.
91. It concludes with a heading for a planned discussion of the "Gryson Confederacy" that Madison never got around to writing. See id. at 22 & 24 n.34.
92. See id. at 6, 8, 11, 16-18, 22.
93. Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in 10 PAPERS OF MADISON, supra note 22, at 206, 210.
94. 1 FARRAND, supra note 1, at 356 (Madison's notes, June 21, 1787). This was a point Madison pressed repeatedly during the Convention and ratification campaign. See, e.g, id. at 164 (Madison's notes, June 8, 1787); THE FEDERALIST NOS. 18, 19, 20, 45, 46 (James Madison); James Madison, Debates at the Virginia Convention (June 7, 1788), in 9 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1028, 1029-31 (John P. Kaminski & Gaspare J. Saladino eds., 1990) [hereinafter 9 DOCUMENTARY HISTORY].
95. The ideas in this paragraph are insightfully explored in Zuckert, cited above in note 24, at 172-86.
96. Letter from James Madison to George Washington (Apr. 16, 1787), in 9 PAPERS OF MADISON, supra note 24, at 382, 384.
97. Letter from James Madison to Thomas Jefferson (Mar. 19, 1787), in 9 PAPERS OF MADISON, supra note 24, at 318, 318.
98. Id. Madison made the same point in letters that he sent shortly thereafter to Randolph and to Washington. See Letter from James Madison to Edmund Randolph (Apr. 8, 1787), in 9 PAPERS OF MADISON, supra note 24, at 368, 370; Letter from James Madison to George Washington (Apr. 16, 1787), in 9 PAPERS OF MADISON, supra note 24, at 382, 383-84.
99. See Rakove, supra note 23, at 432.
100. See Letter from James Madison to Thomas Jefferson (Mar. 19, 1787), in 9 PAPERS OF MADISON, supra note 24, at 318, 322 n.3; Letter from James Madison to George Washington (Apr. 16, 1787), in 9 PAPERS OF MADISON, supra note 24, at 382, 383-84.
101. See Editorial Note to James Madison, Notes on Ancient and Modern Confederacies (Apr.-June 1786), in 9 PAPERS OF MADISON, supra note 24, at 3, 3 (suggesting that Madison "may have prepared the memorandum with the Annapolis convention in mind"). Although the meeting at Annapolis failed due to poor attendance, the delegates present included Alexander Hamilton, Abraham Clarke, William Houston, Tench Coxe, George Read, John Dickinson, and Edmund Randolph. See Proceedings and Report of the Commissioners at Annapolis, Maryland, in 1 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 181-82 (Merrill Jensen ed., 1976) [hereinafter 1 DOCUMENTARY HISTORY].
102. Letter from James Madison to Edmund Randolph (Apr. 8, 1787), in 9 PAPERS OF MADISON, supra note 24, at 368, 369.
103. Vices Memo, supra note 37, at 348, 348-58. Although Madison's own notation on the manuscript indicates that it was prepared in April 1787, the editors of his papers suggest that he might have begun to work on the memo intermittently after he returned to Congress in February. See Editorial Note to Vices Memo, supra note 24, at 346. This may be so, but for reasons explained below, the crucial portion appears to have been written sometime in April, probably after he wrote to Randolph on April 8th and before he wrote to Washington on April 16th.
104. These problems included the failure of states to meet Congress's monetary requisitions, state encroachments on federal authority and on each other's interests, state violations of treaties and of the law of nations, an inability to act in concert where there were common interests, the federal government's inability to protect the states from internal rebellions, the federal government's inability to enforce its own laws, and the insecure status of the Articles of Confederation due to the method of their adoption. See Vices Memo, supra note 37, at 348-53.
105. Id. at 353.
106. Id. at 354.
107. Id. at 355-57.
108. See J.G.A. POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION 462-505 (1975).
109. On the popularity of these sources in Revolutionary America, see BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 22-54 (enlarged ed. 1992);
110. useful studies of their ideas are found in ISAAC KRAMNICK, BOLINGBROKE AND His CIRCLE: THE POLITICS OF NOSTALGIA IN THE AGE OF WALPOLE (1968);
111. and CAROLINE ROBBINS, THE EIGHTEENTH-CENTURY COMMONWEALTHMAN (1959).
112. BAILYN, supra note 80, at 70-77, 273-74.
113. WOOD, CREATION OF THE REPUBLIC, supra note 24, at 18-28.
114. See POCOCK, supra note 79; CORINNE COMSTOCK WESTON, ENGLISH CONSTITUTIONAL THEORY AND THE HOUSE OF LORDS (1965);
115. Stanley Pargellis, The Theory of the Balanced Government, in THE CONSTITUTION RECONSIDERED 37 (Conyers Read ed., 1938).
116. Hence, the anonymous author of a 1775 Essay upon Government wrote that "every division in any degree, is in a Political, what we call a disease in a Natural Body, which as it weakens its strength, so tends to its destruction." Essay upon Government 38 (1775), quoted in WOOD, CREATION OF THE REPUBLIC, supra note 24, at 59 n.25. Explicit analogies between political and physical bodies were commonplace, as was the use of metaphors drawn from medicine, particularly those associated with illness or infirmity.
117. Even before the break with England, observers had frequently remarked that the absence of a nobility skewed the balance of social forces in colonial government, and to many colonists this seemed to explain the persistent tensions that marked colonial politics. See BAILYN, supra note 80, at 274-79; BERNARD BAILYN, THE ORIGINS OF AMERICAN POLITICS 131-33 (1968);
118. WOOD, CREATION OF THE REPUBLIC, supra note 24, at 210-12. The Revolution greatly exacerbated these tensions. For notwithstanding a handful of adical proposals, most American politicians still believed in the correctness of English constitutionalism and its underlying principle of balancing social forces in a mixed government. Yet now two orders seemed to be missing, for having just severed ties to the British Crown, Americans were no more likely to anoint a new king than they were to establish a hereditary nobility.
119. See Louise Burnham Dunbar, A Study of "Monarchical" Tendencies in the United States from 1776 to 1801, 10 U. ILL. STUD. SOC. SCI. 1, 27-75 (1923). But just because America had neither king nor nobles did not mean that it lacked social orders. Few Revolutionaries doubted that there existed in the community a social and intellectual elite distinguished by its abilities and discernment. This "natural aristocracy" was distinct from the body of the people - more likely to be learned, more likely to possess wisdom, foresight, and patience. As such, it could counter and restrain the intemperate passions of the people, bringing prudence and stability to government more effectively even than England's corrupt hereditary House of Lords.
120. See EDMUND S. MORGAN, INVENTING THE PEOPLE 248-49 (1988); WOOD, CREATION OF THE REPUBLIC, supra note 24, at 208-09. The idea that the principle of the English constitution could be redeemed by balancing aristocracy against democracy - the few against the many - quickly achieved widespread approbation, and an important part of the task of creating mixed government in Revolutionary America became putting representatives of this natural aristocracy in a position to check the body of the people. To that end, every state except Pennsylvania and Georgia retained or created a bicameral legislature with an upper house reserved - at least in theory - for this aristocracy of wisdom and talent.
121. See JACKSON TURNER MAIN, THE UPPER HOUSE IN REVOLUTIONARY AMERICA 99-191 (1967). However neat this move may have seemed conceptually, identifying and recruiting the aristocratic element of American society for service in the new senates proved to be extremely difficult. Various measures were tested, including property qualifications for both senatorial candidates and voters, an electoral college, election by the lower house, and longer terms. See MAIN, supra, at 188-91, 202-15; MORGAN, supra, at 249-50;
122. WOOD, CREATION OF THE REPUBLIC, supra note 24, at 206-22. A number of states experimented with extending the electorate on the theory that only men of genuine distinction would be able successfully to appeal to a broad constituency. See MORGAN, supra, at 250-52. The state senates nevertheless failed to work in the way desired, for despite all the effort to find a natural aristocracy, most state senates remained too much like the lower houses to serve their intended purpose. See, e.g., MAIN, supra, at 188-91; MORGAN, supra, at 252; 1 DAVID RAMSAY, THE HISTORY OF THE AMERICAN REVOLUTION 351-52 (1789). The apparent failure of these upper houses is part of a larger story, told most famously by Gordon Wood in The Creation of the American Republic, of the perceived general failure of the state experiments in republican government during the so-called critical years. See WOOD, CREATION OF THE REPUBLIC, supra note 24, at 391-429. The details of this larger story need not concern us, except to note that by the mid-1780s these perceptions had begun to threaten the whole paradigm at the heart of eighteenth-century political thought. But if the inherited wisdom seemed incapable of explaining the conditions of American politics, there was as yet no obvious alternative. The classic categories were deeply etched in the minds and consciousness of eighteenth-century Americans. The view that royalty, aristocracy, and democracy were the basic elements of society and that the goal of politics was to achieve a balanced equilibrium among them was a way of thinking that Americans understood. If these concepts no longer fit, shaking free of them nevertheless entailed a substantial reorienting of the familiar world.
123. Suggestions to this effect were heard as early as the 1730s. See RICHARD HOFSTADTER, THE IDEA OF A PARTY SYSTEM 35-36 (1969).
124. WOOD, CREATION OF THE REPUBLIC, supra note 24, at 503; see supra note 85.
125. BAILYN, supra note 80, at 367.
126. Gordon Wood argues that the Antifederalists also viewed society as a heterogeneous mixture of interests. See Wood, Interests and Disinterestedness, supra note 24, at 101-02. Yet this fact meant something different to them than it did to Madison, or than it does to us. No one had ever thought that society was, or could be, literally homogeneous: the different professions and religions and classes and lifestyles of Americans were there in plain view. John Adams had precisely this reality in mind when he wrote in 1776 that a representative assembly "should be in miniature an exact portrait of the people at large. It should think, feel, reason and act like them." John Adams, Thoughts on Government, in 1 AMERICAN POLITICAL WRITING DURING THE FOUNDING ERA 403 (Charles S. Hyneman & Donald S. Lutz eds., 1983). Antifederalists, however, continued to believe that this heterogeneous body could govern itself as a homogeneous political order and that pervasive factious contention among different groups reflected a failure of virtue and of government. In part for this reason, Antifederalists remained uniformly committed to the idea of a small republic.
127. See THE ANTIFEDERALISTS at li-lvi, cvi-cxiii (Cecelia M. Kenyon ed., 1966); RAKOVE, supra note 26, at 228-34;
128. Wilson Carey McWilliams, The Anti-Federalists, Representation, and Party, 84 NW. U. L. REV. 12, 26-30 (1989).
129. THE FEDERALIST No. 10, at 59 (James Madison) Jacob E. Cooke ed., 1961). Do not misunderstand: I am not suggesting that Madison was really some sort of crypto-pluralist or that he was rejecting something modern scholars call "civic humanism" for something they call "liberalism." See POCOCK, supra note 79, at 506-45;
130. WOOD, CREATION OF THE REPUBLIC, supra note 24, at 606-15;
131. Robert E. Shalhope, Republicanism and Early American Historiography, 39 WM. & MARY Q. (3d ser.) 334, 335 (1982). Such categories offer little help in understanding Madison, particularly as they have been stretched and twisted by the interpretive needs of historians and political theorists with a multitude of agendas of their own.
132. See Daniel T. Rodgers, Republicanism: The Career of a Concept, 79 J. AM. HIST. 11 (1992). Obviously Madison was no friend of faction. Faction is, he said, a "dangerous vice" that needs to be "cured"; its fruit is the "instability, injustice and confusion" that have been "the mortal diseases" of popular government; its "violence" destroys both "the rights of other citizens" and "the permanent and aggregate interests of the community." THE FEDERALIST No. 10, supra, at 56-57. It takes a considerable measure of blind faith - emphasis on the blind - to see Madison as anything other than intensely disturbed by faction in all its guises. Even as he argues that faction is a constitutive force in society, Madison holds to the belief that there is a "public good" and that this public good may be something other than what a majority of the citizens thinks it wants at any given moment. Id. at 60-61. Of course, this does not make Madison a "republican" in the Pocockian sense either, for it is equally clear that Madison does not view virtue or the subordination of private interest as either a condition for, or the end of, republican government. Categories like "classical republican" and "Lockean liberal" have uses for historians and theorists, but we need to be careful in invoking them, for they do not capture the unique blend of ideals, ideas, and commitments that characterized the Founding generation, and they distort the ideological transitions that were underway.
133. WOOD, CREATION OF THE REPUBLIC, supra note 24, at 593.
134. Vices Memo, supra note 37, at 356-57.
135. THE FEDERALIST No. 10, supra note 90, at 64. Following the conventional wisdom of his time, Madison assumed that a large electorate and large electoral districts would defeat efforts by "unworthy candidates" to win by bribing voters or using other "vicious arts" and that only men whose merit had earned them a broad public reputation would be able to garner enough votes to win. Id. at 63.
136. In the Vices Memo, Madison mentions the need to find better representatives, but as a separate consideration in a single sentence tacked on to the end of the memo as an afterthought, in which he remarked that "[a]n auxiliary desideratum for the melioration of the Republican form is such a process of elections as will most certainly extract from the mass of the Society the purest and noblest characters which it contains." Vices Memo, supra note 37, at 357. Even The Federalist No. 10, which links this process to size and gives it more attention, explicitly identifies the tendency of extending the republic's sphere to dilute faction as the circumstance "principally" responsible for reducing the risk of dangerous combinations. See THE FEDERALIST No. 10, supra note 90, at 63.
137. See MAIN, supra note 85, at 188-89; MORGAN, supra note 85, at 250-52.
138. As with his Notes on Ancient and Modern Confederacies, Madison's Vices Memo ends with a heading for a twelfth item on the "Impotence of the laws of the States" that Madison apparently felt no need to complete. Vices Memo, supra note 37, at 357.
139. Id.
140. Though the logic of this argument might have supported an effort to abolish the states or transfer their legislative authority to the national government, Madison apparently never contemplated such a step and sought only a negative power to guard against abuses - a point too-often overlooked that is argued effectively in BANNING, cited above in note 7, at 117-19, and Zuckert, cited above in note 24, at 194-97.
141. RAKOVE, supra note 26, at 47.
142. Charles F. Hobson, The Negative on State Laws: James Madison, and the Crisis of Republican Government, 36 WM. & MARY Q. (3d ser.) 215, 226 (1979).
143. Jack N. Rakove, The Madisonian Theory of Rights, 31 WM. & MARY L. REV. 245, 253 (1990).
144. BANNING, supra note 7, at 118.
145. Letter from James Madison to Thomas Jefferson (Mar. 19, 1787), in 9 PAPERS OF MADISON, supra note 24, at 317, 318.
146. Letter from James Madison to Edmund Randolph (Apr. 8, 1787), in 9 PAPERS OF MADISON, supra note 24, at 368, 370.
147. See Vices Memo, supra note 37, at 353-57; supra pp. 629-30.
148. Letter from James Madison to George Washingon (Apr. 16, 1787), in 9 PAPERS OF MADISON, supra note 24, at 382, 384.
149. See, e.g., RAKOVE, supra note 26, at 46 & n.26.
150. See Letter from Thomas Jefferson to James Madison (June 20, 1787), in 10 PAPERS OF MADISON, supra note 22, at 63, 64. Jefferson's misunderstanding of Madison's full thinking, as much as Madison's frustration with the outcome in Philadelphia, probably accounts for Madison's lengthy explication of the idea in his October 24th reply to Jefferson. See Letter from James Madison to Thomas Jefferson, supra note 22, at 212-17; infra pp. 679-80.
151. See Letter from James Madison to Thomas Jefferson, supra note 22, at 206-19.
152. See supra notes 79-90 and accompanying text.
153. See supra notes 93-95 and accompanying text.
154. Consider, for example, our own experience with the rediscovery of Madison's republican roots by legal scholars in the past two decades. See LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 143-63 (1996). An even better illustration of this process is the initial reception by economists of the Coase Theorem, which, like Madison's new theory of politics, was an apparently simple twist on familiar concepts that had major repercussions in its field. Having been told that the theorem was wrong when he first introduced it, Coase used the opportunity of a workshop at the University of Chicago to make another attempt. According to George Stigler, at the outset everyone agreed that Coase was wrong. He continues: The discussion began. As usual, Milton [Friedman] did much of the talking. I think it is also fair to say that, as usual, Milton did much of the correct and deep analytical thinking. . . . My recollection is that Ronald didn't persuade us. But he refused to yield to all our erroneous arguments. Milton would hit him from one side, then from another, then from another. Then to our horror, Milton missed him and hit us. At the end of that evening the vote had changed. There were twenty-one votes for Ronald and no votes for Pigou.
155. The Fire of Truth: A Remembrance of Law and Economics at Chicago, 1932-1970, 26 J.L. & ECON. 163, 221 (Edmund W. Kitch ed., 1983).
156. See CHARLES A. BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES 156-58 (1986); KALMAN, supra note 112, at 238-39;
157. Douglass Adair, "That Politics May Be Reduced to a Science": David Hume, James Madison, and the Tenth Federalist, in 1 THE AMERICAN PAST: CONFLICTING INTERPRETATIONS OF THE GREAT ISSUES 190, 199-204 (Sidney Fine & Gerald S. Brown eds., 2d ed. 1965).
158. The copy of the memorandum found in Madison's papers at his death was made by him in 1808 and begins with the remark "(a copy taken by permission by Danl. Carroll & sent to Chs Carroll of Carrollton)." Vices Memo, supra note 37, at 348. Madison's editors hypothesize, not implausibly, that this copy may have been made at the time of the Convention. See Editorial Note to the Vices Memo, supra note 37, at 358 n.1. Plus, Madison must have shared his thoughts with others after hours, though his extensive committee work, together with the tedious labor of deciphering and transcribing his shorthand notes each night, presumably left little enough time for such conversations. Nevertheless, Madison surely tried to persuade the other Virginia delegates and such close allies as Alexander Hamilton, James Wilson, and Rufus King.
159. William Pierce, Character Sketches of Delegates to the Federal Convention, in 3 FARRAND, supra note 1, at 87, 94; see KETCHAM, supra note 54, at 256, 471. A less admiring observer offered the following description: "A hollow, feeble voice, - an awkward, uninteresting manner, - a correct stile without energy or copiousness - are his distinguishing traits." Letter from Zephaniah Smith to David Daggett (Dec. 13, 1794), in 4 PROCEEDINGS OF THE AMERICAN ANTIQUARIAN SOCIETY 374, 374 (Franklin B. Dexter ed., 1888).
160. see BANNING, supra note 7, at 114, 115; MILLER, supra note 24, at 143-44.
161. BANNING, supra note 7, at 113. All but a handful of committed anti-nationalists were unavailable, were not chosen as delegates by their state legislatures, or declined to attend. See FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION 185-86 (1985); MORRIS, supra note 30, at 269.
162. Letter from Jacob Broome to Thomas Collins (May 23, 1787), in SUPPLEMENT TO MAX FARRAND'S THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 16, 17 (James H. Hutson ed., 1987) [hereinafter FARRAND SUPPLEMENT].
163. Letter from George Mason to Arthur Lee (May 21, 1787), in 3 FARRAND, supra note 1, at 24, 24; see also Letter from George Mason to George Mason, Jr. (May 20, 1787), in 3 FARRAND, supra note 1, at 22, 23 ("The most prevalent idea in the principal States seems to be a total alteration of the present federal system . . . .").
164. See 1 FARRAND, supra note 1, at 33-35 (Madison's notes, May 30, 1787).
165. See supra notes 96-102 and accompanying text.
166. Letter from James Madison to Thomas Jefferson, supra note 22, at 212.
167. See 1 FARRAND, supra note 1, at 18 (Madison's notes, May 29, 1787). The list of defects that Randolph tendered to explain why it was necessary to abandon the Articles of Confederation was similarly narrow and enumerated problems that showed how the existing government lacked each of the properties that he had just mentioned. See id. at 19.
168. 1 FARRAND, supra note 1, at 134 (Madison's notes, June 6, 1787). For further discussion of this speech, see pages 657-59 below.
169. 1 FARRAND, supra note 1, at 134 (Madison's notes, June 6, 1787).
170. There were, of course, other delegates who wanted a powerful federal government, such as Alexander Hamilton, Rufus King, James Wilson, and Gouverneur Morris, to name only the most obvious candidates. But those delegates were more interested in displacing or superseding the states than in reforming them, and, as Lance Banning argues at length, their reasoning rested on premises that were fundamentally different from Madison's. See BANNING, supra note 7, at 144-64; see also Peter S. Onuf, State Sovereignty and the Making of the Constitution, in CONCEPTUAL CHANGE AND THE CONSTITUTION 78, 79-80 (Terence Ball & J.G.A. Pocock eds., 1988) (arguing that the nationalist reformers were interested in doing away with states and state sovereignty to the extent feasible). Indeed, Hamilton was still hoping and planning for the states' demise after the Convention, observing in notes to himself that if the national government began well and managed to "conciliate the confidence and affection" of the people, "[i]t may then triumph altogether over the state governments and reduce them to an entire subordination, dividing the large states into smaller districts."
171. Alexander Hamilton, Conjectures About the Constitution (Sept. 1787), in 13 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 277, 278 (John P. Kaminski & Caspare J. Saladino eds., 1981) [hereinafter 13 DOCUMENTARY HISTORY]. Hamilton's actions as Washington's Treasury Secretary and, in fact, throughout the 1790s, were consistent with these musings.
172. 1 FARRAND, supra note 1, at 33 (Madison's notes, May 30, 1787). Randolph initially proposed to insert three resolutions: one stating that a "merely federal" Union was inadequate; a second adding that "no treaty or treaties" among the states could secure their common welfare; and a third concluding that a "national government" consisting of a "supreme" legislative, executive, and judiciary ought therefore to be established. Because the first two resolutions added little to the third, while using needlessly provocative language, Randolph agreed to eliminate them. Id.; see id. at 38-39 (Yates's notes, May 30, 1787).
173. See id. at 34 (Madison's notes, May 30, 1787); id. at 42 (McHenry's notes, May 30, 1787).
174. See id. at 34-35 (Madison's notes, May 30, 1787).
175. See id. at 35.
176. An incomplete fragment in McHenry's notes records Madison responding to Charles Cotesworth Pinckney's concern that Randolph's new resolution would abolish the states by assuring him that "it will decide nothing" except that "the confed. is defect. and ought to be amended." Id. at 44 (McHenry's notes, May 30, 1787).
177. See supra p. 623. Charles Pinckney openly made this claim, contemptuously dismissing Paterson's proposal with the snide comment that "the whole comes to this[:] Give N. Jersey an equal vote, and she will dismiss her scruples, and concur in the Natil. system." 1 FARRAND, supra note 1, at 255 (Madison's notes, May 30, 1787).
178. See infra pp. 645-46.
179. See 1 FARRAND, supra note 1, at 249-52 (Madison's notes, June 16, 1787).
180. Id. at 253. Pinckney and Randolph repeated the argument, see id. at 255, which was carried forward into the ratification campaign, see THE FEDERALIST No. 40, at 263-64 (James Madison) (Jacob E. Cooke ed., 1961);
181. William Davie, Debate at the North Carolina Ratifying Convention (July 24, 1788), in 4 ELLIOT, DEBATES, supra note 40, at 16, 16-17;
182. [Archibald] Maclaine, Debate at North Carolina Ratifying Convention (July 24, 1788), in 4 ELLIOT, DEBATES, supra note 40, at 24, 24-25;
183. John Marshall, Remarks at the Virginia Ratifying Convention, in 9 DOCUMENTARY HISTORY, supra note 65, at 943, 1117-18;
184. Edmund Pendelton, Remarks at the Virginia Ratifying Convention (June 5, 1788), in 9 DOCUMENTARY HISTORY, supra note 65, at 943, 946; Wilson, supra note 52, at 465, 483-84 ("I never heard before, that to make a proposal was an exercise of power.").
185. See 1 FARRAND, supra note 1, at 252-55 (Madison's notes, June 16, 1787) (speech of Wilson).
186. Id. at 260 (Yates's notes, June 16, 1787).
187. Id. at 255 (Madison's notes, June 8, 1787).
188. See id. at 262-63 (Yates's notes, June 8, 1787). Madison did not write down Randolph's specific points, which are listed in Yates's notes.
189. Apologists for Hamilton have speculated that he might have given this speech to show what extreme nationalism really looked like, hoping perhaps to make the Virginia Plan appear reasonable by comparison. See, e.g., FORREST MCDONALD, ALEXANDER HAMILTON: A BIOGRAPHY 100 (1979) [hereinafter MCDONALD, A BIOGRAPHY];
190. BROADUS MITCHELL, ALEXANDER HAMILTON: YOUTH TO MATURITY 381 (1957).
191. But Clinton Rossiter was, if anything, too kind in labeling the evidence for this "supremely clever" bit of strategy "entirely spectral." CLINTON ROSSITER, 1787: THE GRAND CONVENTION 178 (1966). Besides, Hamilton's subsequent behavior at the Convention - his halfhearted effort to backtrack the next day, his departure soon thereafter for practically the rest of the Convention, and his continued reminders to the other delegates that he did "not . . . think favorably of Republican government" and that [n]o man's ideas were more remote from the plan than his" - strongly suggests that he was presenting his true views on June 18th. 1 FARRAND, supra note 1, at 323 (Madison's notes, June 18, 1787);
192. see id. at 424 (Madison's notes, June 26, 1787); 2 id. at 645-46 (Madison's notes, Sept. 17, 1787); see also STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM 104-05 (1993).
193. Hamilton left some penetrating scribblings recounting "Maddisons Theory" and explaining why he believed Madison was wrong. 1 FARRAND, supra note 1, at 146-47 (Hamilton's notes, June 6, 1787). He is the only delegate whose own notes display clear comprehension of Madison's novel arguments about society and faction, though King's notes of June 4th also seem to comprehend Madison's general drift. See id. at 108 (King's notes, June 4, 1787). Hamilton's notes are discussed further in notes 201-202 below and accompanying text.
194. See 1 FARRAND, supra note 1, at 286-93 (Madison's notes, June 18, 1787). The whole tenor of Hamilton's speech was contrary to Madison's logic. He said at one point, for example, that "[t]he extent of the Country to be governed, discouraged him," while nowhere making any reference to finding solace in its size for anything. Id. at 287. And Hamilton continued to describe a political society consisting of two essentially homogeneous elements - "the few & the many" - which his plan represented in a democratic lower house and an upper house whose members would be appointed for life. Id. at 288-89.
195. See id. at 314-22 (Madison's notes, June 19, 1787).
196. Id. at 318.
197. Id. at 318-19.
198. Lansing opened debate the day after the New Jersey Plan's defeat by moving to replace Randolph's first resolution with one vesting all significant powers in Congress alone. See id. at 336 (Madison's notes, June 20, 1787). Debate on this motion consumed the entire day, but no new arguments were made and Lansing's motion was defeated. The alignment was the same as on the previous day, except that Connecticut rejoined its small-state allies, which narrowed the margin of victory to 6-4, with Maryland still divided. See id. at 344.
199. Id. at 318 (Madison's notes, June 19, 1787).
200. Id. at 134 (Madison's notes, June 6, 1787).
201. Id. Madison made this argument again on June 19th and yet again in his post-Convention letter to Jefferson. See id. at 318-19 (Madison's notes, June 19, 1787); Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), supra note 22, at 212. For examples of how historians have used these statements, see BANNING, cited above in note 7, at 114, 147; and WOOD, CREATION OF THE REPUBLIC, cited above in note 24, at 467;
202. Wood, Interests and Disinterestedness, cited above in note 24, at 73.
203. 1 FARRAND, supra note 1, at 48 (Madison's notes, May 31, 1787).
204. See BANNING, supra note 7, at 245; WOOD, CREATION OF THE REPUBLIC, supra note 24, at 513-14;
205. Wood, Interests and Disinterestedness, supra note 24, at 71-77.
206. See 1 FARRAND, supra note 1, at 152-53 (Madison's notes, June 7, 1787). Gerry's solution to this problem, which was to deny direct popular participation by having state legislators choose national representatives, further reveals his incomprehension of Madison's theory, which was supposed to answer precisely these kinds of objections. It is thus ironic, to say the least, when comments like Gerry's are offered as evidence that other delegates agreed with Madison's ideas. Madison's whole point was that there would be less need to worry about populism in an extended republic because of the effect of size on who got elected and on the likelihood of a factious majority's forming. One can almost feel Madison squirming as Gerry insists, the day after Madison presented his theory, that "the commercial & monied interest wd. be more secure in the hands of the State Legislatures, than of the people at large. The former have more sense of character, and will be restrained by that from injustice." Id. at 154. Compare id. with 1 FARRAND, supra note 1, at 134-35 (Madison's notes, June 6, 1787) (Madison arguing that "[r]espect for character is always diminished in proportion to the number among whom the blame or praise is to be divided" and that the proper remedy is to "enlarge the sphere"). Although the Convention ultimately agreed to popular elections for the House of Representatives, this decision was not based on acceptance of or agreement with Madison's argument. See infra pp. 653-60.
207. McHenry quotes Randolph as saving that "[o]ur chief danger arises from the democratic parts of our constitutions" when he introduced the Virginia Plan, 1 FARRAND, supra note 1, at 26 (McHenry's notes, May 30, 1787). But Randolph made this statement after completing his explanation of why radical reform was needed: "Having pointed out [the Confederation's] defects," he was at this point explaining why the particular resolutions drafted by the Virginians outlined a government that would be less democratic than any that existed in the states. Id.; see also id. at 51 (Madison's notes, May 31, 1787) (Randolph explaining why the Senate needed to be small); id. at 132 (Madison's notes, June 6, 1787) (Gerry opposing popular elections for the lower house); id. at 218 (Madison's notes, June 12, 1787) (Randolph arguing for long terms for senators); id. at 359 (Madison's notes, June 21, 1787) (Rutledge opposing popular elections for the lower house).
208. Vices Memo, supra note 37, at 349.
209. Thus, Madison listed paper money and debtor relief laws twice in his Vices Memo: once in item four as examples of laws "adverse to the spirit of the Union" and "destructive of the general harmony," and again in item eleven to illustrate the injustice that pervades the small state republics. Id. at 349-50, 355-56.
210. See, e.g., 1 FARRAND, supra note 1, at 165 (Madison's notes, June 8, 1787) (Gerry opposing the proposal for an unlimited national veto as overbroad while observing that he "had no objection to authoriz[ing] a negative to paper money and similar measures"); 2 id. at 26 (Madison's notes, July 17, 1787) (Morris opposing an amendment prohibiting federal interference in matters of "internal police" of the states on the ground that these "ought to be infringed in many cases, as in the case of paper money & other tricks by which Citizens of other States may be affected"); Charles Pinckney, Speech on the 10th Section of Article 1st of the Federal Constitution (May 20, 1788), in 4 ELLIOT, DEBATES, supra note 40, at 333-36 (South Carolina Ratifying Convention) (explaining how South Carolina would benefit from the restrictions in Article I, § 10, which encourage commerce with other states); Report to Governor Samuel Huntington from Connecticut's Delegates to the Constitutional Convention (Oct. 25, 1787), in 13 DOCUMENTARY HISTORY, supra note 126, at 471 (stating that the restraints contained in Article I, § 10, were "thought necessary as a security to commerce, in which the interest of foreigners as well as the citizens of different states may be affected").
211. See supra pp. 628-36.
212. The leading study remains Hobson, cited above in note 100, who was the first to highlight the centrality of the national veto to Madison's theory.
213. See supra pp. 630-36.
214. 2 FARRAND, supra note 1, at 440 (Madison's notes, Aug. 28, 1787).
215. See supra note 98.
216. See supra note 108.
217. Letter from Thomas Jefferson to James Madison (June 20, 1787), in 10 PAPERS OF MADISON, supra note 22, at 64. Jefferson's analysis, which anticipated the solution to the problem of state encroachments that was eventually adopted in Philadelphia, is worth quoting in full: The negative proposed to be given [Congress] on all the acts of the several legislatures is now for the first time suggested to my mind. Primâ facie I do not like it. It fails in an essential character, that the hole & the patch should be commensurate. But this proposes to mend a small hole by covering the whole garment. Not more than 1. out of 100. state-acts concern the confederacy. This proposition then, in order to give them 1. degree of power which they ought to have, gives them 99. more which they ought not to have, upon a presumption that they will not exercise the 99. . . . Would not an appeal from the state judicatures to a federal court, in all cases where the act of Confederation controuled the question, be as effectual a remedy, & exactly commensurate to the defect[?] Id.
218. 3 FARRAND, supra note 1, at 593. Evidence from later votes at the Convention suggests that it was Mason and Randolph who insisted on qualifying Madison's proposal. See Rakove, supra note 23, at 440; Zuckert, supra note 24, at 187-88.
219. See Papers of Committee of Detail, in 2 FARRAND, supra note 1, at 134, 135; Pinckney Plan, in 3 FARRAND, supra note 1, at 595, 605.
220. See 1 id. at 165-66 (Madison's notes, June 8, 1787) (Williamson opposing an unlimited veto); id. at 167 (Dickinson supporting an unlimited veto); 2 id. at 27-28 (Madison's notes, July 17, 1787) (Morris opposing the veto). Consider, too, the unexpected support for the measure from later Antifederalist James Monroe, who heard rumors of it and agreed that it might be "the best way of introducing uniformity," though only if it could be done "consistently with the constitutions of the several States." Letter from James Monroe to Thomas Jefferson (July 27, 1787), in 3 FARRAND, supra note 1, at 65, 65.
221. Madison dropped a hint on May 3151, saying he hoped the Convention would find a better way to control the states than through the use of force, as had been proposed in the Virginia Plan. See 1 FARRAND, supra note 1, at 54 (Madison's notes, May 31, 1787). The veto was debated on June 8th and again on July 17th, at which time it was lost for good. But where Madison refrained from further protest on the issue of representation in Congress, he continued to press for a national veto, raising the issue (with Pinckney) on August 23rd, again on August 28th, and yet again on September 12th. See 2 id. at 390-91 (Madison's notes, Aug. 23, 1787); id. at 440 (Madison's notes, Aug. 28, 1787); id. at 589 (Madison's notes, Sept 12, 1787); Hobson, supra note 100, at 216.
222. See, e.g., RAKOVE, supra note 26, at 174; Hobson, supra note 100, at 227.
223. 1 FARRAND, supra note 1, at 164 (Madison's notes, June 8, 1787); see 2 id. at 390 (Madison's notes, Aug. 23, 1787) (speech of Pinckney).
224. For Wilson's argument, see 1 FARRAND, cited above in note 1, at 166 (Madison's notes, June 8, 1787), in which Wilson stated that a negative was needed to prevent states from continuing to encroach on federal authority and that a "definition of the cases in which the Negative should be exercised, is impracticable"; and 2 FARRAND, cited above in note 1, at 391 (Madison's notes, Aug. 23, 1787), in which Wilson noted that just as the states needed the Senate for self-defense, the national government needs the negative. For Dickinson's argument, see 1 FARRAND, cited above in note 1, at 167 (Madison's notes, June 8, 1787), in which Dickinson argued that the national government needs the negative to avoid the "danger of being injured by the power . . . of the States," and that it was "impossible to draw a line between the cases proper & improper." 171 1 id. at 165-66 (Madison's notes, June 8, 1787).
225. Id. at 167.
226. 2 id. at 391 (Madison's notes, Aug. 23, 1787).
227. Id.
228. Id. at 26-27 (Madison's notes, July 17, 1787). Morris's statement about infringing the states' internal police power was made in opposition to Sherman's proposal for language specifically preserving this authority. See id. at 25.
229. Id. at 28.
230. 1 id. at 168 (Madison's notes, June 8, 1787).
231. See id. at 170 (Yates's notes, June 8, 1787); id. at 172 (King's notes, June 8, 1787); id. at 173 (Hamilton's notes, June 8, 1787).
232. 2 id. at 390 (Madison's notes, Aug. 23, 1787).
233. See id. at 390-91. The veto was voted down by a margin of 7 to 3 on both June 8th and July 17th; the vote on August 23rd was 6 to 5. See 1 id. at 168 (Madison's notes, June 8, 1787); 2 id. at 28 (Madison's notes, July 17, 1787); 2 id. at 391 (Madison's notes, Aug. 23, 1787). The Supremacy Clause had been added without debate immediately after the negative was rejected on July 17th; it was based on a motion by Luther Martin that picked up on Morris's suggestion that "[a] law that ought to be negatived will be set aside in the Judiciary departmt." 2 id. at 168 (Madison's notes, July 17, 1787). By making this authority explicit, Martin reduced still further the need for a legislative veto, placing primary responsibility for preventing state encroachments on federal interests in the courts. See Hobson, supra note 100, at 228; Luther Martin, Address No. II. (Mar. 21, 1787), in 16 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 452 (John P. Kaminski & Caspare J. Saladino eds., 1986) [hereinafter 16 DOCUMENTARY HISTORY] (Luther Martin's reply to a Maryland "Landholder," Mar. 21, 1788). Madison himself doubted the ability of courts effectively to check either state or federal legislatures and so found this solution to the problem of state encroachments thoroughly unsatisfactory. See Letter from James Madison to Thomas Jefferson, supra note 22, at 211; cf. Madison's Report on the Virginia Resolutions (1799-1800), in 4 ELLIOT, DEBATES, supra note 40, at 549 (arguing that federal courts cannot be the final arbiters of the Constitution's meaning because they will favor the federal government at the expense of the states).
234. See 1 FARRAND, supra note 1, at 164-65 (Madison's notes, June 8, 1787). The supervisory rationale is confined in Madison's own notes to a brief mention of the tendency of the states "to oppress the weaker party within their respective jurisdictions," which comes at the end of Madison's list of reasons for wanting an unlimited negative. Id. at 164. It is possible that Madison felt it unnecessary to elaborate given his lengthy speech of June 6th, or perhaps he was subdued by the poor reception that this speech had been given. See infra pp. 658-59.
235. See 2 FARRAND, supra note 1, at 27-28 (Madison's notes, July 17, 1787).
236. The clearest statement of Madison's pre-Convention views on the general topic of representation and apportionment is in his letter advising Caleb Wallace about a constitution for Kentucky. See Letter from James Madison to Caleb Wallace (Aug. 23, 1785), in 8 PAPERS OF MADISON, supra note 56, at 330, 353-54; supra p. 627.
237. Letter from James Madison to Edmund Randolph (Apr. 8, 1787), in 9 PAPERS OF MADISON, supra note 24, at 368, 368-69; see RAKOVE, supra note 26, at 29-31. See generally RAKOVE, supra note 30, at 241-329 (discussing various crises and a potential national response to them).
238. See supra pp. 621-22. The short statement in text simplifies an immensely complex problem. The idea of representation had been continuously under scrutiny since the Stamp Act crisis of the early 17605, a process by no means concluded in 1787. There were still vastly different views about who or what needed to be represented, about the proper role of a representative, about the precise function of a representative assembly, and so on. All good republicans agreed, however, that the legislature must be somehow accountable, and for most this meant direct election of at least one house. Leading treatments of this diverse issue include MORGAN, cited above in note 85; J.R. POLE, POLITICAL REPRESENTATION IN ENGLAND AND THE ORIGINS OF THE AMERICAN REPUBLIC (1966); RAKOVE, cited above in note 26, at 203-43;
239. JOHN PHILLIP REID, THE CONCEPT OF REPRESENTATION IN THE AGE OF THE AMERICAN REVOLUTION (1989);
240. and WOOD, CREATION OF THE REPUBLIC, cited above in note 24.
241. Madison himself may have equivocated briefly about the necessity of direct popular elections, for he tentatively suggested to George Washington before the Convention that it might be possible to let state legislators do all the choosing. See Letter from James Madison to George Washington, supra note 67, at 384. Most likely, Madison was merely testing the waters with the more strongly anti-populist Washington. In any event, by the time he reached Philadelphia, Madison was once more firmly committed to "the popular election of one branch of the national Legislature as essential to every plan of free Government." 1 FARRAND, supra note 1, at 49 (Madison's notes, May 31, 1787).
242. 1 FARRAND, supra note 1, at 179 (Madison's notes, June 9, 1787). The nationalists drove this point relentlessly home, castigating backers of equal representation by states for defending a system that was "unjust," "corrupt," "despot[ic]," "vicious," "tyrann[ical]," and "evil." Id. at 183 (Yates's notes, June 9, 1787) (comments of Wilson); id. at 254 (Madison's notes, June 16, 1787) (comments of Wilson); id. at 456 (Yates's notes, June 28, 1787) (comments of Williamson); id. at 490 (Madison's notes, June 30, 1787) (comments of King); 2 id. at 7 (Madison's notes, July 14, 1787) (comments of King). As Madison warned at the height of the controversy, if the new national government was to act - and particularly to tax - without the intervention of state legislatures, "not to divest such unequal portions of the people as composed the several States, of an equal voice, would subject the system to the reproaches & evils which have resulted from the vicious representation in G. B." 1 id. at 464 (Madison's notes, June 29, 1787).
243. Letter from James Madison to Thomas Jefferson (Mar. 19, 1787), in 9 PAPERS OF MADISON, supra note 24, at 317-18.
244. See Letter from James Madison to George Washington, supra note 67, at 383 (asserting that proportional representation was necessary to "obviate the principal objections of the larger States to the necessary concessions of power").
245. See Rakove, supra note 23, at 431.
246. Madison's chief efforts at the Convention were directed toward persuading the small state delegations that proportional representation was not only fairer, but also in their best interests. Unlike the more hotheaded Wilson and King, he resisted making blunt threats of dissolution. Having tried everything else, an exasperated Madison finally voiced his true fears on the final day of debate about the issue: [T]he people of the large States would in some way or other secure to themselves a weight proportioned to the importance accruing from their superior numbers. If they could not effect it by a proportional representation in the Govt. they would probably accede to no Govt. which did not in great measure depend for its efficacy on their voluntary cooperation . . . . 2 FARRAND, supra note 1, at 9 (Madison's notes, July 14, 1787).
247. Several commentators reason that popular elections and proportional representation make the national legislature more broadly representative and thus a better, more neutral umpire over state laws. See BANNING, supra note 7, at 209; MILLER, supra note 24, at 73-75; Rakove, supra note 23, at 432-33. They may be right, yet Madison himself never actually said anything like this, and his desire for a negative over state laws remained undiminished even after the Senate was lost. See supra note 167. Consider also Madison's post-Convention letter to Jefferson, which discusses both the veto and the controversy over proportional representation without suggesting any connection between the two or even hinting that the loss of the Senate would have weakened the effectiveness of the negative. See Letter from James Madison to Thomas Jefferson, supra note 22, at 207-15.
248. See Rakove, supra note 23, at 432.
249. See 1 FARRAND, supra note 1, at 50 (Madison's notes, May 31, 1787). Mason and Wilson made similar arguments, and the point carried easily. See id. at 48-49.
250. Id. at 132 (Madison's notes, June 6, 1787).
251. Id. at 133.
252. Id. at 134.
253. See id. at 134-36. Madison may have presented at least part of the theory two days earlier, during a discussion of whether to establish a Council of Revision. Although neither Madison nor Yates mentions it in his notes, both Rufus King and William Pierce record Madison supporting the proposal with arguments apparently drawn from his pre-Convention memos. According to King, Madison described the inherently factious nature of society and discussed the need for strong checks to protect "a minority in Danger of oppression from an unjust and interested majority" - arguing that a combination of the Executive and the Judiciary was necessary to make the check sufficiently "respect[able]." Id. at 108 (King's notes, June 4, 1787). King's notes are interesting because they correctly transcribe Madison's arguments, a rarity in the Convention. The same thing cannot be said of Pierce, who seems to have admired Madison without ever understanding what the man was actually saying. Impressed by what he describes as "a very able and ingenious Speech," Pierce records Madison defending an eccentric variation of the theory of mixed government, an argument that bears little or no relation to Madison's actual thinking. Id. at no (Pierce's notes, June 4, 1787). Thus, writes Pierce, after "point[ing] out all the beauties and defects of ancient Republics," Madison proved that "the only way to make a Government answer all the end of its institution was to collect the wisdom of its several parts in aid of each other whenever it was necessary. Hence the propriety of incorporating the Judicial with the Executive in the revision of the Laws." Id. 198 Rakove, supra, note 23, at 439-40 n. 35; see also Hutson, supra note 24, at 421 (arguing that other delegates found Madison's speech unimpressive); Zuckert, supra note 24, at 191 (same).
254. 1 FARRAND, supra note 1, at 141 (Yates's notes, June 6, 1787).
255. See id. at 143-44 (King's notes, June 6, 1787).
256. See id. at 146 (Hamilton's notes, June 6, 1787). Farrand indicates in a footnote that Hamilton memorialized "Maddisons Theory" on a separate, undated sheet of paper. Farrand included it with the other notes of June 6th because it referred to the ideas Madison presented that day, see id. at 146 n.13, but Hamilton may have discussed the theory with Madison earlier, just as he may have reflected on the theory at his leisure on a later date. Given the penetrating nature of the critique, it seems unlikely that these notes were written on Hamilton's first encounter with Madison's argument.
257. See id. at 146-47. Hamilton suggests that Madison's principles "do not conclude so strongly as he supposes" because the legislature "will meet in one room if they are drawn from half the globe - & will be liable to all the passions of popular assemblies." Id. at 146. Moreover, various real and imaginary divisions in society will still be "capable of giving a general impulse." Id. As for the influence of large districts on elections, Hamilton notes that small portions of a large district frequently determine the outcome and that demagogues "are not always inconsiderable persons." Id. at 147. Perhaps this explains why Hamilton made no use of Madison's argument when he presented his own ideas for national reform on June 18th. See supra note 142 and accompanying text.
258. See 1 FARRAND, supra note 1, at 147 (Pierce's notes, June 6, 1787); FARRAND SUPPLEMENT, supra note 118, at 56 (Lansing's notes, June 6, 1787); supra p. 616.
259. Rakove, supra note 23, at 427.
260. 1 FARRAND, supra note 1, at 133 (Madison's notes, June 6, 1787) (comments of James Wilson); see id. at 68 (Madison's notes, June 1, 1787) (comments of Wilson); id. at 154 (Madison's notes, June 7, 1787) (comments of Wilson); see also id. at 134 (Madison's notes, June 6, 1787) (comments of George Mason); 2 id. at 54 (Madison's notes, July 19, 1787) (Gouverneur Morris advocating a popular national election for the President and arguing that "[t]he extent of the Country would secure his re-election agst. the factions & discontents of particular States").
261. This disparity in the relative importance of the two parts of Madison's argument today has generated a spirited debate about which component mattered more to Madison himself. Compare BANNING, supra note 7, at 208-09 (arguing that Madison believed that making majorities harder to form was more important), and Rakove, supra note 10, at 483-84 (same), with GARRY WILLS, EXPLAINING AMERICA: THE FEDERALIST 223-47 (1981) (arguing that Madison thought improving the quality of the representatives was more important),
262. and WOOD, CREATION OF THE REPUBLIC, supra note 24, at 502-06 (same). It is a strange debate, inasmuch as Madison's own words leave little room for doubt that he viewed the effect of size in diluting faction as more important. See supra p. 633.
263. There is one possible, highly suspect, exception to this claim. According to Madison, George Mason - who until then had resisted Madison's arguments - suddenly invoked them on August 13th in support of the limitation of money bills to the lower house. After noting the impropriety of allowing the Senate to tax when it represented the states and not the people, Madison records Mason as saying: Nor was it in any respect necessary in order to cure the evils of our Republican system. He admitted that notwithstanding the superiority of the Republican form over every other, it had its evils. The chief ones, were the danger of the majority oppressing the minority, and the mischievous influence of demogogues. The Genl. Government of itself will cure these. As the States will not concur at the same time in their unjust & oppressive plans, the general Govt. will be able to check & defeat them, whether they result from the wickedness of the majority, or from the misguidance of demogogues. 2 FARRAND, supra note 1, at 273-74 (Madison's notes, Aug. 13, 1787). Madison himself could hardly have said it better - which is precisely what makes this speech so suspicious. If Mason believed this statement, why had he not made the point earlier, when it might have mattered? And why had he opposed Madison's version of the national veto? Unfortunately, we have notes from no other delegates with which to confirm or deny the comment, made in a context where it hardly mattered. Not that Madison would have deliberately misrecorded Mason's point, but it is possible that, in translating what Mason was saying into his own language, Madison transformed its meaning. Be that as it may, this is the only recorded comment by anyone other than Madison during the whole Convention that makes the arguments that modern theorists have assumed are built into the foundation of the Constitution.
264. 1 FARRAND, supra note 1, at 425 (Madison's notes, June 26, 1787).
265. Id. at 406 (Madison's notes, June 25, 1787).
266. Id. at 407; see also supra p. 653 (recording Morris's opposition to the veto).
267. Id. at 288 (Madison's notes, June 25, 1787).
268. See id. at 398-403 (Madison's notes, June 25, 1787). Pinckney sticks with the magic number three in describing what divisions exist - though in his rendering, royalty, nobility, and democracy have become the professional interest, the commercial interest, and the landed interest.
269. Id. at 132-33 (Madison's notes, June 6, 1787).
270. See THE FEDERALIST No. 10, supra note 90, at 61-62; RAKOVE, supra note 26, at 218.
271. 1 FARRAND, supra note 1, at 50 (Madison's notes, May 31, 1787). Jack Rakove has explored the difficulties and unresolved ambiguities in Madison's conception of representation in detail. See Rakove, supra note 10, at 480-89.
272. 1 FARRAND, supra note 1, at 359 (Madison's notes, June 21, 1787) (speech of George Mason).
273. See id. at 164 (Madison's notes, June 8, 1787) (national veto); id. at 318-19 (Madison's notes, June 19, 1787) (New Jersey Plan); id. at 422-23 (Madison's notes, June 26, 1787) (nine-year Senate terms).
274. See Rakove, supra note 23. Rakove borrows from this article in his recent book, see RAKOVE, supra note 26, at 54-79, but his initial treatment is more fully developed.
275. Rakove, supra note 23, at 427.
276. Id.
277. See id. at 431. Madison's logic is discussed above at pages 655-56.
278. Rakove, supra note 23, at 434.
279. Id.
280. See id. at 437-41.
281. See id. at 443-48.
282. These quotes are from a speech by James Wilson on June 30th. See 1 FARRAND, supra note 1, at 483 (Madison's notes, June 30, 1787).
283. Slipping into an evaluative mode, Rakove judges the small-state case for equal representation by states as piteous, observing that it "did not seem to carry great conviction" and that "it is difficult to resist concluding that the small-state delegates knew they had the weaker arguments." Rakove, supra note 23, at 444-45. Without necessarily advocating their position, it bears noting that the small-state arguments are nowhere near this weak. Rakove emphasizes the inability of small-state delegates to offer examples of possible alliances among the large states, quoting Ellsworth saying that he cannot think of any but that the mere possibility frightens him. See id. In fact, Ellsworth offered the requested examples later in the same speech: "In commercial regulations they will unite. If policy should require free ports, they would be found at Boston, Philadelphia and Alexandria. In the disposition of lucrative offices they would unite." 1 FARRAND, supra note 1, at 496 (Yates's notes, June 30, 1787). George Read offered another illustration by pointing to the actions of large states during the war in appropriating "the common interest in the Western lands," observing sardonically that once justice was done in that respect "the smaller States who had been injured would listen then perhaps to those ideas of just representation which had been held out." Id. at 405 (Madison's notes, June 25, 1787). Small-state advocates also responded effectively to Madison's and Wilson's insistence that without proportional representation the new government would be as weak as the old one. The problem, Ellsworth shot back, is that the Articles require a supermajority on important matters, and he challenged the large-state delegates to name a single salutory measure that had been "lost for want of a majority of the States." Id. at 484 (Madison's notes, June 30, 1787); see also id. at 487 (Sherman arguing that the problem was that Congress could not enforce its laws, not that it could not muster majority support to pass them). Whatever we think of these arguments today - and hindsight suggests that the problem of size was more complex than any of the protagonists understood, see ROSEMARIE ZAGARRI, THE POLITICS OF SIZE 125-44 (1987) - they elicited a chorus of concessions from large-state delegates. Charles Pinckney confessed that "candor obliged him to admit that the large States would feel a partiality for their own Citizens & give them a preference, in appointments: that they might also find common points in their commercial interests, and promote treaties favorable to them." 1 FARRAND, supra note 1, at 510 (Madison's notes, July 2, 1787). Randolph, too, conceded that there was "some danger" to the small states, though he thought that the Executive veto might protect their interests. Id. at 514. Even Rufus King and Alexander Hamilton were willing to acknowledge that "common residence within the same State would produce a certain degree of attachment; and that this principle might have a certain influence in public affairs," although both thought that other expedients could be devised to protect the small states. Id. at 466 (Madison's notes, June 29, 1787) (speech of Alexander Hamilton); see also id. at 492-93 (Madison's notes, June 30, 1787) (speech of Rufus King).
284. Rakove, supra note 23, at 446.
285. The Continental Congress debated apportionment for three days in late July and early August of 1776. The content and tenor of the debate are remarkably like those of a decade later. As recorded by Thomas Jefferson, Wilson argued, as he would again at the Constitutional Convention: [I]t has been said that the Congress is a representation of states; not of individuals. I say that the objects of [its] care are all the individuals of the states. [I]t is strange that annexing the name of 'State' to ten thousand men, should give them an equal right with forty thousand. [T]his must be the effect of magic, not of reason. . . . [I]t is pretended too that the smaller colonies will be in danger from the greater. . . . [T]he probability is much greater that the larger states will disagree than that they will combine. I defy the wit of man to invent a possible case or to suggest any one thing on earth which shall be for the interests of Virginia, Pennsylvania & Massachuset[t]s, and which will not also be for the interest of the other states. Thomas Jefferson, Notes of Proceedings in the Continental Congress (June 7-Aug. 1, 1776), in 1 THE PAPERS OF THOMAS JEFFERSON, 1760-1776, at 309, 327 (Julian P. Boyd ed., 1950); see also 2 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 247 (L.H. Butterfield ed., 1961) (describing Benjamin Rush making a similar argument in the same debate); POLE, supra note 185, at 344-48; RAKOVE, supra note 30, at 158.
286. THE FEDERALIST No. 10, supra note 90, at 59.
287. 1 FARRAND, supra note 1, at 288 (Madison's notes, June 18, 1787).
288. See Wood, Interests and Disinterestedness, supra note 24, at 92.
289. See CHARLES DE SECONDAT, BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS bk. 8, ch.16, at 124 (Anne M. Cohler, Basia Carolyn Miller, & Harold Samuel Stone trans., Cambridge Univ. Press 1989) (1748).
290. See HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR 15-23 (1981);
291. Cecilia M. Kenyon, Introduction to THE ANTIFEDERALISTS, supra note 89, at xxxix-xlviii.
292. As in the discussion of the Federal Convention, I am interested in Madison's argument about the nature of society and the way extensive size can dilute the threat of a factious majority. As previously noted, this was the idea that was novel in 1787, as well as the reason that Madison's essay remains important today. The other main contention in The Federalist No. 10 - that better representatives are likely to be chosen in large districts - was previously known and is of neglible interest to modern theorists. See supra notes 85, 94-95 and accompanying text. Not surprisingly, given its familiarity from the 1770s, this latter argument appears frequently in the ratification contest, usually offered in reply to charges that the House of Representatives would be aristocratic. See, e.g., An American Citizen III: On the Federal Government, PHILADELPHIA INDEPENDENT GAZETTEER, Sept. 29, 1787, reprinted in 13 DOCUMENTARY HISTORY, supra note 126, at 272, 272;
293. Alexander Hamilton, Remarks at the New York Ratifying Convention (June 21, 1788), in 2 ELLIOT, DEBATES, supra note 40, at 256-57;
294. George Nicholas, Speech at the Virginia Ratifying Convention (June 4, 1788), in 9 DOCUMENTARY HISTORY, supra note 65, at 915, 922;
295. Edmund Randolph, Remarks at the Virginia Ratifying Convention June 7, 1788), in 9 DOCUMENTARY HISTORY, supra note 65, at 1006, 1016, 1025; Wilson, supra note 52, at 487, 489. Only William Findley challenged the argument, describing it as "a novel doctrine." James Wilson, Notes from the Pennsylvania Ratifying Convention (Dec. 5, 1787), in 2 DOCUMENTARY HISTORY, supra note 52, at 505, 505.
296. See THE FEDERALIST No. 37, at 238, No. 51, at 351-53 (James Madison) (Jacob E. Cooke ed., 1961), No. 85, at 588 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
297. Only 24 numbers of the Federalist Papers were reprinted at all outside New York City, and these in but few places each. See Editorial Note to PUBLIUS, THE FEDERALIST No. 1, reprinted in 13 DOCUMENTARY HISTORY, supra note 126, at 486, 490. The tenth essay was reprinted outside New York only once, in the Pennsylvania Gazette, nearly a month after Pennsylvania had ratified the Constitution. See Elaine F. Crane, Publias in the Provinces: Where Was The Federalist Reprinted Outside New York City?, 21 WM. & MARY Q. (3d ser.) 589, 592 (1964). John and Archibald M'Lean published the first volume of the Federalist Papers, which included an unsigned introduction by Hamilton together with the first 36 essays, on March 22, 1788. Although this would have been early enough to play a role in Virginia and New Hampshire, as well as in New York, only 500 copies were printed; a second volume, containing the remaining essays, was not even published until late May, and no copies reached Virginia or New Hampshire until their state conventions were already well underway. See 13 DOCUMENTARY HISTORY, supra note 126, at 491; 18 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 83-87 (John P. Kaminski & Caspare J. Saladino eds., 1995). Many commentators concluded that Publius did not affect the outcome of ratification. See 13 DOCUMENTARY HISTORY, supra note 126, at 494 (quoting Archibald Maclaine of North Carolina saying that Publius was not "well calculated for the common people" and French chargé d'affaires Otto saying that the Federalist Papers "is not at all useful to educated men and it is too scholarly and too long for the ignorant"); FURTWANGLER, supra note 2, at 19-23; Letter from Rufus King to Jeremiah Wadsworth (Dec. 23, 1787), in 15 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 70, 71 (John P. Kaminski & Gaspare J. Saladino eds., 1984) [hereinafter 15 DOCUMENTARY HISTORY] (noting that "'the Landholder' will do more service our way, than the elaborate works of Publius");
298. Dennis J. Mahoney, A Newer Science of Politics: The Federalist and American Political Science in the Progressive Era, in SAVING THE REVOLUTION: THE FEDERALIST PAPERS AND THE AMERICAN FOUNDING 250, 251 (Charles R. Kesler ed., 1987) [hereinafter SAVING THE REVOLUTION]
299. (quoting ANDREW C. MCLAUGHLIN, CONSTITUTIONAL HISTORY OF THE UNITED STATES (1935));
300. James G. Wilson, The Most Sacred Text: The Supreme Court's Use of The Federalist Papers, 1985 B.Y.U. L. REV. 65, 108. Among the more entertaining contemporary comments on the Federalist Papers were those of Alexander Contee Hanson, who as "Aristides" had written a well-received pamphlet that circulated in Maryland, Virginia, and a few other states. In presenting an annotated copy of "Aristides" to his son in 1804, Hanson compared himself to Publius. Noting that "the Federalist was not completed until almost every state in the Union had decided on the constitution; and therefore, be its excellence what it may, it could have had little weight," Hanson added: The Federalist unquestionably is a treatise, which displays learning and deep penetration. It is an ingenious, elaborate, and in some places, sophistical defence of the constitution. . . . Altho written in a correct, smooth stile it is from its prolixity, tiresome. I honestly confess, that I could not read it thro' - It is not in short, what is called a [wonder?]making pamphet [sic]. It is not written as a pamphlet ought to be, which on a great interesting occasion, is intended to guide the public mind. It does not force the attention, rouze the passions, or thrill the nerves - It is easily to be seen, that Aristides assumes more merit as a pamphleteer, than he is willing to allow the Feoderalist - He does so! whilst he admits, with his whole heart, that as a treatise on government, the Federalist is as much superieur to [Aristides's contribution] as the latter considered merely as an occasional pamphlet, is superieur to the former.
301. Aristides, Remarks on the Proposed Plan of a Federal Government (Jan. 31-Mar. 27), in 15 DOCUMENTARY HISTORY, supra, at 517, 521-22.
302. See BAILYN, supra note 80, at 363-65.
303. See Americanus I, III, in 1 THE DEBATE ON THE CONSTITUTION 227-30, 437-42 (Bernard Bailyn ed., 1993).
304. Harrington, To the Freemen of the United States, BOSTON AM. HERALD, June 11, 1787, at 2, 2.
305. See id.
306. Letter from James Madison to Thomas Jefferson (Feb. 19, 1788), in 16 DOCUMENTARY HISTORY, supra note 180, at 143, 143.
307. Letter from William Grayson to William Short (Nov. 10, 1787), in 14 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 81, 81 (John P. Kaminski & Gaspare J. Saladino eds., 1983) [hereinafter 14 DOCUMENTARY HISTORY].
308. The News-Mongers' Song for the Winter of 1788, ALBANY GAZETTE, Nov. 15, 1787, in 14 DOCUMENTARY HISTORY, supra note 243, at 117, 117.
309. See, e.g., Francis Corbin, Remarks (June 7, 1788), in 9 DOCUMENTARY HISTORY, supra note 65, at 1007, 1010-11. The closest Madison himself came to presenting the theory of the extended republic was an elliptical reference made during his first long speech at the Virginia Convention. Replying to Patrick Henry's rhetorically charged cry that the Constitution would lead to tyranny, Madison urged that a "candid examination" of history showed "the majority trampling on the rights of the minority" to be the major cause of the "factions and commotions" that had ruined republics in the past. James Madison, Remarks (June 6, 1788), in 9 DOCUMENTARY HISTORY, supra note 65, at 989, 990. He then observed: "Perhaps in the progress of this discussion it will appear, that the only possible remedy for those evils, and means of preserving and protecting the principles of republicanism, will be found in that very system which is now exclaimed against as the parent of oppression." Id. Madison failed to return to the point though, instead leaving Corbin to explain it the following day.
310. See, e.g., Alexander Hamilton, Debate at New York Ratifying Convention (June 21, 1788), in 2 ELLIOT, DEBATES, supra note 40, at 251, 256-57;
311. Charles Pinckney, Speech at the South Carolina Ratifying Convention (May 14, 1788), in 4 ELLIOT, DEBATES, supra note 40, at 318, 326-27.
312. See Editor's Note to Letter from William Symmes, Jr. to Peter Osgood, Jr. (Nov. 15, 1787), in 14 DOCUMENTARY HISTORY, supra note 243, at 107, 108.
313. William Symmes, Debate at the Massachusettes Ratifying Convention (Jan. 22, 1788), in 2 ELLIOT, DEBATES, supra note 40, at 70, 72.
314. William Symmes, Debate at the Massachusettes Ratifying Convention (1788), in 2 70, 72. Id.
315. A Citizen of Philadelphia, The Weaknesses of Brutus Exposed, in 14 DOCUMENTARY HISTORY, supra note 243, at 63, 72;
316. see also A Countryman I, NEW HAVEN GAZETTE, Nov. 15, 1787, in 14 DOCUMENTARY HISTORY, supra note 243, at 106, 107 ("Many instances can be quoted, where people have been unsafe, poor and contemptible, because they were governed only in small bodies; but can any instance be found where they were less safe for uniting?");
317. POUGHKEEPSIE COUNTY JOURNAL, Mar. 18, 1788, in 16 DOCUMENTARY HISTORY, supra note 180, at 409, 410 ("Why a nation consisting of only three millions of souls . . . should be more in danger of losing its liberty, than thirteen disunited separate communities each on an average containing but little more than two hundred thousand inhabitants is mysterious.").
318. Edmund Randolph, Remarks at the Virginia Ratifying Convention (June 6, 1788), in 9 DOCUMENTARY HISTORY, supra note 65, at 970, 987-88.
319. See A Landholder III, CONN. COURANT, Nov. 19, 1787, in 14 DOCUMENTARY HISTORY, supra note 243, at 139, 140-41; Letter from New York, CONN. J., Oct. 31, 1787, in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 300, 387-88 (Merrill Jensen ed., 1978); Publicola, An Address to the Freeman of North Carolina, N.C. STATE GAZETTE, Mar. 20, 1788, in 16 DOCUMENTARY HISTORY, supra note 180, at 435, 437.
320. See THE FEDERALIST No. 9, at 50, 55-56 (Alexander Hamilton) (Jacob E. Cooke ed., 1961);
321. [Fisher] Ames, Debate at the Massachusetts Ratifying Convention (Jan. 19, 1788), in 2 ELLIOT, DEBATES, supra note 40, at 45-46;
322. Aristides, Remarks on the Proposed Plan, in 15 DOCUMENTARY HISTORY, supra note 237, at 522, 541-42;
323. James Bowdoin, Debate at the Massachusetts Ratifying Convention (Feb. 1, 1788), in 2 ELLIOT, DEBATES, supra note 40, at 128;
324. William Davie, Debate at the North Carolina Ratifying Convention (July 24, 1788), in 4 ELLIOT, DEBATES, supra note 40, at 22;
325. Thomas Dawes, Debate at the Massachusetts Ratifying Convention (Jan. 15, 1788), in 2 ELLIOT, DEBATES, supra note 40, at 14;
326. Fabius VII, Observation on the Constitution Proposed by the Federal Convention, PENN. MERCURY, Apr. 29, 1788, in 17 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 246, 248-49 (John P. Kaminski & Gaspare J. Saladino eds., 1995);
327. James Monroe, Some Observations on the Constitution, in 9 DOCUMENTARY HISTORY, supra note 65, at 841, 852-59;
328. George Nicholas, Speech at the Virginia Ratifying Convention (June 10, 1788), in 9 DOCUMENTARY HISTORY, supra note 65, at 1092, 1137;
329. Charles Pinckney, Debate in the South Carolina Legislature (Jan. 16, 1788), in 4 ELLIOT, DEBATES, supra note 40, at 262;
330. Alexander White, WINCHESTER VA. GAZETTE, Feb. 29, 1788, in 8 DOCUMENTARY HISTORY, supra note 40, at 438, 441; Wilson, supra note 52, at 341-42, 345.
331. See WILLIAM H. RIKER, THE STRATEGY OF RHETORIC: CAMPAIGNING FOR THE AMERICAN CONSTITUTION 41-42 (1996). Riker reasons that tactical considerations might have led Federalists to refrain from trying to sell the Constitution with arguments that smacked too much of anti-populism. Opponents of the plan outnumbered supporters in a majority of states, with the vote too close to call in several others.
332. See JACKSON TURNER MAIN, THE ANTIFEDERALISTS 249 n.1 (1961) (estimating that Antifederalists probably had a national majority of perhaps 52%). Given the need to coax delegates who were either moderately antifederal or undecided, arguments that went farther than necessary in attacking state government could have seemed politically unwise to Federalist campaign managers. Riker thus hypothesizes that Federalists may have avoided emphasizing the menace of state politics because they did not believe the argument would win as many votes as would the themes of military and economic crisis. See RIKER, supra, at 42.
333. See CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 13 (Helen E. Veit, Kenneth R. Bowling & Charlene Bangs Bickford eds., 1991) ("No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."). Still holding to his belief that state politics inherently threaten minority rights and therefore required control at the national level, Madison regarded this proposal as "the most valuable [one] on the whole list" Amendments to the Constitution (Aug. 17, 1789), in 12 THE PAPERS OF JAMES MADISON 344, 344 (Charles F. Hobson et al. eds., 1979). It was, however, defeated in the Senate. See BANNING, supra note 7, at 288-89;
334. DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD 1789-1801, at 114-15 (1997).
335. As Douglass Adair observed in his influential study of The Federalist No. 10, prior to 1913 - the year Charles Beard published An Economic Interpretation of the Constitution of the United States - "practically no commentator on The Federalist or the Constitution, none of the biographers of Madison, had emphasized Federalist 10 as of special importance for understanding our 'more perfect union.'" Adair, supra note 24, at 75-76. Indeed, the Supreme Court did not cite Madison's now-famous essay until Storer v. Brown, 415 U.S. 724, 735 (1974).
336. See Jack N. Rakove, Early Uses of The Federalist, in SAVING THE REVOLUTION, supra note 237, at 234, 241-43.
337. See John Zvesper, The Madisonian Systems, 37 W. POL. Q. 236, 249 (1984). Madison adverted to the theory of the extended republic in response to the South Carolina nullifiers - reminding them of the injustices committed by states under the Articles of Confederation - and in a private memorandum he wrote reflecting on population growth.
338. See DREW R. MCCOY, THE LAST OF THE FATHERS: JAMES MADISON AND THE REPUBLICAN LEGACY 138, 196 (1989). It was, ironically, Hamilton rather than Madison who included the argument in a draft of Washington's Farewell Address; no matter, for Washington deleted the passage. See FURTWANGLER, supra note 2, at 128-29.
339. In one of those exquisite ironies that fill history books, it was Federalists who found themselves objecting to the Louisiana Purchase in 1803 on the ground that republican government could not function over such a large area. See LINDA K. KERBER, FEDERALISTS IN DISSENT 93 (1970);
340. DREW R. MCCOY, THE ELUSIVE REPUBLIC: POLITICAL ECONOMY IN JEFFERSONIAN AMERICA 200 (1980).
341. See supra note 256. Beard presented The Federalist No. 10 as a complete statement of the political science underlying the Constitution - which in Beard's hands turned out to be nothing more than a surprisingly frank confession of Beard's own thesis that the Constitution was self-consciously designed to promote the interests of a property-owning elite. See BEARD, supra note 113, at 156-58. Beard never did explain why someone out to dupe the public would openly broadcast his plan.
342. Although Beard moved The Federalist No. 10 to the top of the list of sources to consult on the Constitution, his conspiracy-based interpretation did so without inspiring any sense of the essay's profundity or theoretical importance. That task was left for Adair, who recaptured The Federalist No. 10 from Beard by describing the intellectual pedigree and significance of Madison's argument See Adair, supra note 113, at 190, 194-204; Adair, supra note 24, at 87-92. It is Adair's work that inspired the cottage industry that The Federalist No. 10 has since become.
343. In saying this, I do not mean to give short shrift to problems of objectivity and interpretation or to imply that history consists of discovering invariable, !incontestable truths. Like any problem of forensic evidence, however, examination of historical records will yield interpretations that are more or less persuasive in explaining the available data. See Flaherty, supra note 11, at 525.
344. Exaggerating the influence of Madison's theory of the extended republic is simply one aspect of a more general problem, and this paper is but the first in a larger project studying the process of establishing republican government in a heterogeneous society. One consequence of the facile assumption that Madison and the Federalists decisively solved the large republic riddle in 1788 has been to pay too little attention to the other side of the argument. Yet Antifederalists were less concerned with faction than with questions of political legitimacy. The distance created between representatives and constituents in a large republic - the distance that Madison anticipated would be so helpful in reducing the danger of faction - would, they feared, weaken the foundation necessary to secure the people's "attachment" to the government. When controversy arose, as it surely would in a society as large and diverse as the United States, federal legislators would be unable to contain the passionate disagreements that were sure to arise, which would lead to anarchy or disunion. Events in the first decade under the Constitution proved the wisdom of this projection. The early republic was convulsed by precisely the sort of tensions that Antifederalists had warned about, as the United States immediately found itself wracked by contentious problems of finance and foreign policy. It took an unplanned and largely fortuitous but profound transformation in political culture to set the joints in place and make the new government secure. Ironically, the most significant development in this metamorphosis - the emergence of political parties and party politics - was just the sort of thing that the Federalists of 1788, and especially the Madison who wrote The Federalist No. 10, had hoped to prevent. The development of parties, in turn, transformed virtually every aspect of the constitutional structure, particularly in the areas of federalism and separation of powers. See Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1515-42 (1994);
345. Larry Kramer, The Confidence of the People: Organizing Politics in the Extended Republic (draft in progress, on file with the Harvard Law School Library).
346. See, e.g., HENRY F. MAY, THE ENLIGHTENMENT IN AMERICA 97-101 (1976); POCOCK, supra note 79, at 523;
347. WOOD, CREATION OF THE REPUBLIC, supra note 24, at 499-506, 593-96.
348. Pocock's and Wood's claims are insightfully critiqued in JOYCE APPLEBY, LIBERALISM AND REPUBLICANISM IN THE HISTORICAL IMAGINATION 281-90 (1992);
349. MICHAEL ZUCKERT, NATURAL RIGHTS AND THE NEW REPUBLICANISM 150-83 (1994); and Rodgers, cited above in note 90, at 18-37.
350. Anyone who doubts the Federalists' superb political skills in controlling the agenda and persuading every state to ratify unconditionally need only read William Riker's analysis of the campaign to be convinced. See RIKER, supra note
351. One of the unappreciated strengths of Gordon Wood's 1992 book, The Radicalism of the American Revolution, is precisely the way in which Wood downplays the pivotal significance of the Constitution relative to the longer, slower, and grander sweep of events that occurred between the middle of the eighteenth and the middle of the nineteenth centuries. Unlike Wood's earlier Creation of the American Republic, cited above in note 34, which presented the Founding as the self-conscious realization of a brilliant intellectual program that later got out of hand, Radicalism more accurately portrays the Constitution as an unsuccessful holding action on the part of bewildered men swept up in turbulent social forces that they neither controlled nor fully understood.
352. Vices Memo, supra note 37, at 354; see supra notes 75-102 and accompanying text.
353. of course some delegates, with more grandiose visions of America's future, believed this meant going pretty far - much further than Madison believed, as events in the 1790s were to reveal. Hamilton represents the extreme here, caring little about either the states or republican government (though willing to live with both if necessary) and inspired by the desire to see the United States as a great commercial power capable of rivaling England. See ELKINS & MCKITRICK, supra note 140, at 92-114; MCCOY, supra note 259, at 132-35; MCDONALD, A BIOGRAPHY, supra note 140, at 117-42.
354. See supra note 156 and accompanying text.
355. Pennsylvania and Georgia - whose constitutions were deemed the most radical and had been criticized the most harshly in the 17805 - both amended their charters in or after 1789, as did South Carolina. See FORREST MCDONALD, THE PRESIDENCY OF GEORGE WASHINGTON 97 (1974).
356. See, e.g., GERHARD CASPER, SEPARATING POWER: ESSAYS ON THE FOUNDING PERIOD 16-22 (1997);
357. CHARLES C. THACH, JR., THE CREATION OF THE PRESIDENCY, 1775-1789: A STUDY IN CONSTITUTIONAL HISTORY (1922); VILE, supra note 29, at 153-62.
358. See, e.g., articles cited supra notes 12-21.
359. MILLER, supra note 24, at 28.
360. Public choice scholars, who happily name Madison as their forebear, have detailed a variety of ways in which he botched the argument, the most important being his failure to appreciate how a cohesive minority can exploit free riding and transaction costs in order to dominate a more diffuse majority. See JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY (1962);
361. ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY (1957);
362. MANCUR OLSON, JR., THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1965);
363. GEORGE J. STIGLER, THE CITIZEN AND THE STATE: ESSAYS ON REGULATION (1975);
364. LESTER C. THUROW, THE ZERO-SUM SOCIETY: DISTRIBUTION AND THE POSSIBILITIES FOR ECONOMIC CHANGE (1980);
365. JAMES Q. WILSON, POLITICAL ORGANIZATIONS ch. 15, at 305-26 (2d ed. 1995);
366. Sam Peltzman, Toward a More General Theory of Regulation, 19 J.L. & ECON. 211 (1976).
367. But see Gary S. Becker, A Theory of Competition Among Pressure Groups for Political Influence, 98 Q.J. ECON 371 (1983) (arguing that small groups lack the advantage of economies of scale and are therefore unable to exert pressure as efficiently as medium-to-large groups).
368. A good introduction to public choice theory can be found in DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION (1991); an interesting collection of essays exploring the application of public choice theory to the Constitution is found in THE FEDERALIST PAPERS AND THE NEW INSTITUTIONALISM (Bernard Grofman & Donald Wittman eds., 1989).
369. With a little effort, one could perhaps find a way to salvage a more central role for Madison's theory in constitutional law. Yet there are good reasons to suppose not only that this effort would be misplaced, but also that it would inappropriately distort our interpretation of the Constitution. The "law" that we talk about when we refer to positive law that imposes legally binding obligations invariably embodies a tension between our understanding of what it should be and our actual practices. The elements of this opposition are, in fact, formed by each other to a large extent we try to shape our practices in accord with our normative understanding, just as we apprehend and describe this understanding by reflecting on our practices. At any particular moment, on any particular question, the task of interpretation consists of reconciling strains that exist between the two - sometimes by revising our practices, sometimes by changing our aspirations What the Constitution "is" thus cannot be decided by an abstract inquiry into what anyone - be he an eighteenth-century Founder or the most sophisticated contemporary philosopher - might have imagined it to be. What the Constitution "is," rather, can be determined only by understanding what the men and women responsible for administering American government have made of it, and then asking what kinds of conflicts, uncertainties, and stresses remain or have been created. This task includes reconstructing, as best we can, what the Constitution was originally meant to be, but not in order to make some hopeless effort to apply that understanding to today's world. Rather, we make the inquiry in order to ask how this original understanding shaped the subsequent implementation of the Constitution in practice, how that experience reshaped the understanding of those responsible for carrying the government forward, what new problems these modified understandings presented, how those problems were solved in light of these understandings, and so on - eventually carrying the inquiry forward to the present so that we understand how both our values and our practices have been transformed. If we misunderstand or distort how the Constitution was originally understood, as has been the case with our mistaken emphasis on Madison's theory of faction, we are likely similarly to misunderstand or distort what it has become - as has, in fact, happened in significant respects. See, e.g., supra note 263. For a more in-depth discussion, see Larry Kramer, Fidelity to History - And Through It, 65 FORDHAM L. REV. 1627 (1997).
370. See WILLS, supra note 206, at xi; Rakove, supra note 257, at 234; Rakove, supra note 10, at 474.
371. See Letter from James Madison to Thomas Jefferson, supra note 22, at 205-20. The ostensible purpose of this letter was to tell Jefferson (still in Paris at the time) about the outcome of the Convention's deliberations. After reporting the rejection of his proposal for a federal negative on state laws (whose importance at the Convention Madison greatly exaggerated), Madison reiterated and expanded the ideas of his Vices Memo in an aside that occupies more than half of this very long letter, concluding with an apology for his "immoderate digression." Id. at 214.
372. As previously noted, Jefferson had failed to pick up Madison's earlier hint about the supervisory role of the negative. See supra note 108 and accompanying text. This second letter must have caused Jefferson to wonder at how worked up Madison was about an argument whose importance Jefferson evidently still failed to see. In any event, his subsequent reply to Madison once again ignored the issue. See Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), in 10 PAPERS OF MADISON, supra note 22, at 333, 335-39.
373. See supra notes 260-261.