JAMES MADISON (1751–1836) - Bill of Rights Institute · —James Madison, 1821 The short, thin...

Place three individuals in a situation wherein the interest of each depends on the voice of theothers, and give to two of them an interest opposed to the rights of the third. Will the latter be secure? The prudence of every man would shun the danger.

The rules & forms of justice suppose & guard against it. Will two thousand in a like situation be less likely to encroach on the rights of one thousand?

—James Madison, 1821

The short, thin figure dressed in black dismounted his horse andstrode toward the front door of the white farmhouse in the rollinghills of Orange County, Virginia. The year was 1788, and JamesMadison was campaigning for a seat in the first Congress of theUnited States. But he would rather have been doing almost anythingelse this chilly Saturday afternoon. The shy and modest son of awealthy planter, he despised the handshaking and self-promotion thatdemocratic politics required. Madison was at heart a thinker, a student ofhistory and government, not a politician. Yet he wanted to play a majorrole in shaping the new American nation, and so he knocked on this voter’sdoor, as he had already done dozens of times on other doors that day.

BackgroundJames Madison did not look the part of a nation builder. He was short (only five feet, sixinches in height), thin, and introverted. In poor health throughout his life, he oftenbelieved that death was near. His favorite attire was black clothing, a fitting sign of hisusual dark mood. But Madison’s slight appearance and somber demeanor masked abrilliant and determined man.

Born on March 16, 1751, Madison was raised on his father’s plantation, Montpelier,in Orange County, Virginia. At the age of nineteen, he entered the College of New Jersey(later Princeton University), graduating two years later. Madison then began studies forthe Christian ministry.

In 1772, Madison returned to Virginia. Rejecting the idea of the ministry, he turnedhis attention to politics and embraced the patriot cause. In 1775, he was appointed to theOrange County Committee of Safety. Later he was elected to the Virginia convention.

The Articles of ConfederationBecause of his poor health, Madison did not fight in the American Revolution. Instead,he continued his political career. During the 1780s, he served in the Virginia House ofDelegates and the Continental Congress. As a member of Congress, he witnessedfirsthand the inability of the government under the Articles of Confederation to addressmany of the problems among the states. Convinced that the Articles were too weak andneeded to be altered or replaced, Madison set out on a determined campaign to organizea meeting of the states to discuss amending the Articles. He met with some success inregional meetings: the Mount Vernon Conference of 1785 and the AnnapolisConvention of 1786. At Annapolis, Madison and other delegates began to organize ageneral meeting of all the states.

James Madison

JAMES MADISON (1751–1836)

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In 1786 and 1787, Madison began planning for this national convention by writingout his thoughts on government. He explored how nations with weak central governmentstended to fall apart. He explained why the central government created by the Articles ofConfederation was too weak to solve problems among and within the states.

Central to Madison’s political theory was the idea that people tend to be guided bytheir “passions,” defined as feelings of self-interest. People usually seek to advance theirown interests at the expense of others. They then form groups with others who have thesame goals. Madison called these groups “factions” and feared that in a democraticsociety a majority faction would oppress the minority.

“Father of the Constitution”Madison was pleased when a meeting of all the states was set for the summer of 1787 inPhiladelphia. (Rhode Island was the only state that failed to attend.) So eager was he thathe arrived in the city eleven days early to prepare his plans.

Many of Madison’s ideas were embodied in the Virginia Plan, which was proposedby the Virginia delegation early in the convention. This plan called for a nationalgovernment with powers separated among the legislative, executive, and judicialbranches. The legislature would be split into two houses, a concept called bicameralism.The executive and judicial branches would constitute a council of revision, which couldveto acts passed by the legislature. Madison also included in the Virginia Plan aprovision giving the federal government the power to veto state laws.

Madison believed that it was crucial to separate powers within the centralgovernment. The resulting system of checks and balances, he believed, would preventany faction from seizing control of the government. Similarly, the proper division ofpower between the national and state governments, a novel concept called “federalism,”would preclude the dangerous concentration of power in any one place. Madisonthought that the Articles had not given the central government enough power to checkthe states, and therefore he supported a stronger central government.

Madison played a major role in the debates as the convention proceeded. He spokeoften in support of his ideas and designed compromises to break gridlocks. He also tookdetailed notes on the debates at the end of each day. Because the debates were secret,Madison’s notes provide a valuable record of what happened during the convention.

On September 17, 1787, after weeks of debate, the delegates approved the Constitution.This final version closely resembled the main outlines of the Virginia Plan.

The Federalist PapersThe Constitution was then sent to the states for ratification. But there was significantopposition to the document throughout the nation. Therefore, Madison joined withAlexander Hamilton and John Jay in composing a series of newspaper essays thatdefended the Constitution. Though intended for New York newspaper readers, theessays were also read in other states and helped to convince many to support theConstitution. They became known as the Federalist Papers. Madison wrote twenty-nineof the eighty-five essays, including two of the most famous, Nos. 10 and 51.

Founders and the Constitution: In Their Own Words—Volume 1

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The Bill of RightsMadison attended the ratification convention in his home state of Virginia. There hebattled Anti-Federalist forces led by Patrick Henry, whose main objection to theConstitution was that it lacked a bill of rights. Madison at first opposed a bill of rightsfor several reasons: first, he argued that the rights of the people were already implied inthe Constitution; second, he worried that any such listing of rights would surely omitsome rights held by the people; and third, he believed that written lists of rights were noteffective in protecting the liberty of the people. But Madison finally promised theAnti-Federalists that a bill of rights would be adopted after the new government wentinto effect.

During the debate, the Constitution went into effect when New Hampshire becamethe ninth state to ratify it on June 21, 1788. Four days later, Virginia also approved theConstitution, and New York did so on July 26.

Madison was elected to the United States House of Representatives in 1789. One ofhis first actions was to guide a bill of rights through Congress. Madison proposed a listof seventeen amendments, of which Congress approved twelve. Ten of the twelve wereratified by the states, and in 1791 the ten amendments known as the Bill of Rights wereadded to the Constitution.

“Mr. Madison’s War”Madison served eight years in the House of Representatives. During this time, hehelped Thomas Jefferson organize the Democratic-Republican Party, which was formedto oppose the nationalist policies of Secretary of State Alexander Hamilton. Once infavor of a stronger central government, Madison now worried that the states couldbecome the only strongholds against tyrannical federal power. In 1798, Madison wrotethe Virginia Resolutions, which suggested that states could block unconstitutionalfederal laws.

In 1801, Thomas Jefferson became president. He appointed Madison as secretary ofstate. Madison succeeded Jefferson as president in 1809. His eight years as chief executivewere troubled. The country sank into an economic depression. In 1812, the United Statesand Britain went to war. The United States was ill prepared. The White House itself wasburned by British troops, and Madison and his wife, Dolley, were forced to flee thecapital. In 1815, Britain and the United States signed the Treaty of Ghent, ending the war.

RetirementAfter serving as president for two terms, Madison retired to his Montpelier home. At hisestate, some 100 slaves continued to toil. Despite his opposition to slavery, Madisonnever freed any of his slaves, not even upon his death. He knew that blacks could notimmediately prosper in American society and that, therefore, sudden emancipationwould be a disaster for all.

Madison stayed involved with public life by helping President James Monroe withforeign policy. He also helped Jefferson found the University of Virginia and served asits rector from 1826–1836.

Several years after the states ratified the U.S. Constitution, an admirer of JamesMadison labeled him “the Father of the Constitution.” Madison rejected the title, rightlyclaiming that the document was “the work of many heads & many hands.” He died at hishome on June 28, 1836, at the age of eighty-five, the last of the Founders to die. Madisonhimself was surely surprised to have lived so long.

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Reading Comprehension Questions

1. Why has Madison been called the “Father of the Constitution”?

2. Why did Madison want to separate the powers of the federal government betweenthree branches and also divide power between the federal government and the states?

3. Why did Madison originally not want a bill of rights?

Critical Thinking Questions

4. How would Madison have felt if the Constitution had not been approved by therequired nine states and had therefore not gone into effect?

5. Re-read the introductory quotation by Madison at the top of Handout A. WasMadison correct in believing that people always act out of self-interest at theexpense of others? Can you think of a time when you acted out of self-interestat someone’s expense? Can you think of a time when you put aside your owninterest to help someone else?


Excerpts from Federalist Paper No. 10

1. Vocabulary: Use context clues to determine the meaning or significance of each ofthese words and write their definitions:

a. actuated

b. adverse

c. aggregate

d. fallible

e. latent

f. inference

g. sinister

h. compass

i. concert

j. oppression

2. Context: Answer the following questions.

a. When was this document written?

b. Where was this document written?

c. Who wrote this document?

d. What type of document is this?

e. What was the purpose of this document?

f. Who was the audience for this document?

James Madison

VOCABULARY AND CONTEXT QUESTIONS

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Excerpts from Federalist Paper No. 10

A

By a faction, I understand a number of citizens, whether amounting to a majority or aminority of the whole, who are united and actuated by some common impulse ofpassion, or of interest, adverse to the rights of other citizens, or to the permanent andaggregate interests of the community. . . .

B

As long as the reason of man continues fallible, and he is at liberty to exercise it, differentopinions will be formed. . . .

The latent causes of faction are thus sown in the nature of man. . . .

The inference to which we are brought is, that the causes of faction cannot be removed,and that relief is only to be sought in the means of controlling its effects.

C

If a faction consists of less than a majority, relief is supplied by the republican principle,which enables the majority to defeat its sinister views by regular vote. . . .

D

When a majority is included in a faction, the form of popular government, on the otherhand, enables it to sacrifice to its ruling passion or interest both the public good and therights of other citizens.

E

To secure the public good and private rights against the danger of such a faction, and atthe same time to preserve the spirit and the form of popular government, is then thegreat object to which our inquiries are directed. . . .


IN HIS OWN WORDS: JAMES MADISON ON THE PROBLEM OF FACTION

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The smaller the society, the fewer probably will be the distinct parties and interestscomposing it; the fewer the distinct parties and interests, the more frequently will amajority be found of the same party; and the smaller the number of individualscomposing a majority, and the smaller the compass within which they are placed, themore easily will they concert and execute their plans of oppression. Extend the sphere,and you take in a greater variety of parties and interests; you make it less probable thata majority of the whole will have a common motive to invade the rights of other citizens;or if such a common motive exists, it will be more difficult for all who feel it to discovertheir own strength, and to act in unison with each other. . . .

Source: Federalist Paper No. 10. The Avalon Project at Yale Law School.<http://www.yale.edu/lawweb/avalon/federal/fed10.htm>.

James Madison

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By the time the delegates to the ConstitutionalConvention had gathered in Philadelphia in 1787,the American people had been accustomed formore than one hundred and fifty years to havingmost of their affairs managed first within thecolonies and then in independent states. It was notsurprising that the Articles of Confederation, theinitial constitutional system for“The United States of America,”affirmed in its first article thegeneral “sovereignty, freedomand independence” of the states.Beyond historical precedence,the commitment to statesovereignty drew support fromsixteenth- and seventeenth-century theorists such as JeanJacques Rousseau who arguedthat the habits and virtuesneeded by a self-governingpeople can be cultivated only insmall republics. In short, historyand theory seemed to be on theside of a confederation of smallAmerican republics or states.

If the American people were inclined to favorstate sovereignty, they also were interested incomfortable preservation—that is, in the enjoymentof both “safety and happiness,” to borrow from theDeclaration of Independence. By the mid-1780s, itwas clear to many Americans that state sovereigntycreated obstacles to comfortable preservation, notthe least being the impediments to a smooth-functioning commercial system. Concerns aboutthe effects on the country of competing fiscal andcommercial policies in the different states led tothe Annapolis Convention of 1786. While thedelegates to this convention did not come up witha specific plan for fixing the commercial system,they petitioned the confederation congress toarrange for a constitutional convention that wouldreconsider the Articles of Confederation with theaim of improving interstate commerce.

James Madison, one of seven delegates chosento represent Virginia at the ConstitutionalConvention of 1787, prepared a document on thehistory of confederacies during the monthspreceding the meeting. Events such as Shays’sRebellion in Massachusetts and disputes over the

commercial use of the Potomac River, along withhis study of history, convinced him that a systembased on state sovereignty was destined to fail.Madison worked with other members of theVirginia delegation on a plan for a basicallynational, rather than confederal, system ofgovernment. In addition to provisions for separate

legislative, executive, and judicialbranches, the “Virginia Plan”would have empoweredCongress “to negative all lawspassed by the several States,contravening in the opinion ofthe National Legislature thearticles of Union; and to callforth the force of the Unionagainst any member of theUnion failing to fulfill its dutyunder the articles thereof.” TheVirginia Plan proposed anational government that wouldbe legally and functionallysupreme over the states.

According to Madison, onlya national system would be capable of protectingthe fundamental interests and rights of theAmerican people. Other delegates at theconvention disagreed. Roger Sherman ofConnecticut, for example, argued that “the objectsof Union . . . were few” and that “the people aremore happy [sic] in small than in large States.”Sherman was not alone in preferring aconfederation of small republics to a national orunitary political system. Madison understood thathe had to expose the weaknesses of the confederalmodel to save the Virginia Plan. Sherman helpedhim out on June 6 by conceding that some stateswere too small and, hence, subject to factiousviolence. Madison seized upon this argument. Heresponded that “faction & oppression” had“prevailed in the largest as well as the smallest”states, although less in the former than the latter.

The teaching for Madison was clear: largerepublics are more likely to provide “security forprivate rights, and the steady dispensation ofJustice,” than small republics. This argument hithome with the delegates. Madison convinced themthat what they wanted most from government, thatis, protection for rights or republican liberty, could

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best be achieved in a national system. Smallrepublics, he argued, were actually bad forrepublican liberty, being hotbeds of factiousdivision and violence. He summed up his positionbluntly: “The only remedy is to enlarge the sphere,& thereby divide the community into so great anumber of interests & parties, that in the 1st. placea majority will not be likely at the same moment tohave a common interest separate from that of thewhole or of the minority; and in the 2d. place, thatin case they shd. have such an interest, they maynot be apt to unite in the pursuit of it.” Here wasthe outline of the famousdefense of the large republicthat appears in Madison’sFederalist Paper No. 10.

In the end, the delegatesat the ConstitutionalConvention settled on a planthat combined national andconfederal elements. Toquote Federalist Paper No. 39: the proposed system“in strictness” was “neither national nor a federalConstitution, but a composition of both.”Madison’s June 6 speech, however, insured that thenew “compound” republic would have a nationalas opposed to a confederal tilt. This innovativegovernmental model, what came to be called the“federal” model, represented one of America’sgreat contributions to the science of politicsaccording to Madison. The model’s nationalelements were evident not only in the creation ofseparate executive and judicial departments as wellas proportional representation in the House ofRepresentatives, but in the supremacy clause thataffirmed that the Constitution as well as nationallaws enacted under its authority would constitutethe supreme law of the land. The confederalelements appeared in the provision for equal staterepresentation in the United States Senate (afeature especially desired by the small states) andstate participation in the ratification ofamendments. The addition of the 10thAmendment in 1791 provided added protectionfor state interests (“The powers not delegated tothe United States by the Constitution, norprohibited by it to the States, are reserved to theStates respectively, or to the people”).

The defenders of the confederal modelcontinued their attacks on the new system duringthe ratification debates that followed theconvention. Patrick Henry of Virginia, forexample, accused the delegates to the FederalConvention of violating their authorization by

proposing to establish a “consolidated” governmentbased on the consent of the people, rather than thestates. For Henry, the new constitutional systemwould endanger the rights and privileges of thepeople along with the “sovereignty” of the states.Richard Henry Lee, one of the Anti-Federalists,shared Henry’s fear that a large republic would notbe hospitable to liberty and natural rights. Likemany other opponents of the Constitution, Leealso argued that republican liberty can bepreserved only by a virtuous citizenry and thatonly small republics are capable of nurturing civic

and moral virtues.The fact that the

document that issued fromthe Federal Convention didnot include a bill of rightsseemed to lend support tothe charge by Patrick Henryand others that theproposed governmental

system would promote neither the happiness northe liberty of the people. In fact, several delegatesto the convention, including George Mason ofVirginia and Eldridge Gerry of Massachusetts,were sufficiently troubled by the absence of a billof rights that they departed without adding theirsignatures to the document. Gerry also worriedthat the new government would not adequatelyrepresent the people and that its powers were notwell defined. When it was clear that the opponentsof the plan would not accept the argument that theframework set out by the delegates provided for alimited government of enumerated powers thatwould be incapable of emasculating natural rightsand liberties, an agreement was reached during theratification period to add amendments that wouldguarantee, among other things, freedom of speechand religion, trial by one’s peers, and protectionagainst unreasonable searches and seizures.

The federal system or compound republiccrafted by the Framers was an ingenious responseto the demand for both effective or competentgovernment on the one side, and rights-sensitivegovernment on the other. The decision to dividepower among (federalism) and within (checks andbalances) several governments positioned theAmerican people to enjoy the benefits of a largerepublic (e.g., strong defense against foreignencroachments, national system of commerce,etc.) while still retaining significant control overtheir day-to-day affairs within the states. Thestates, and not the national government, wereentrusted with the “police powers,” that is, the

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Madison convinced them that whatthey wanted most from government,

that is, protection for rights orrepublican liberty, could best beachieved in a national system.


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authority to protect the health, morals, safety andwelfare of the people. It is worth noting thatMadison was quite content to entrust the policepowers to the states—he never desired that theUnited States have a unitary system of government.

Ratification of the Constitution in 1791 hardlyput an end to the debate between the advocates ofstate sovereignty or small republicanism and theproponents of national sovereignty and the largerepublic. The concerns of James Madison andPatrick Henry, for example, are never far from thesurface of contemporary debates about the powerof the federal government to impose regulationson the states under the Constitution’s commerce

clause or the Fourteenth Amendment. There isconsiderable evidence, however, that the tensionbetween these positions not only adds vitality tothe constitutional system, but has been criticallyimportant to the advancement of both nationalsecurity and equality in the enjoyment offundamental rights. The federal arrangement thatwas crafted by the delegates at the FederalConvention of 1787 has long been recognizedas one of the principal models of a moderndemocratic system of government.

David E. Marion, Ph.D.Hampden-Sydney College

Suggestions for Further ReadingDiamond, Martin. The Founding of the Democratic Republic. Itasca, IL: F.E. Peacock, 1981.Frohnen, Bruce (ed.). The American Republic: Primary Sources. Indianapolis: Liberty Fund, 2002.Kurland, Philip B. and Ralph Lerner (eds.). The Founders’ Constitution. Indianapolis: Liberty Fund, 1987.McDonald, Forrest. E Pluribus Unum. Indianapolis: Liberty Fund, 1979.Storing, Herbert J. What the Anti-Federalists Were For. Chicago: The University of Chicago Press, 1981.


As Benjamin Franklin left Philadelphia’s ConventionHall in September 1787, upon the completion of thework of the Framers of the Constitution, a womanapproached him and asked the old sage of theRevolution what the delegates had created. Franklinresponded, “A republic, Madame, if you can keepit.” The woman’s reaction to Franklin’s reply is left unrecorded by history,but she might well haveasked Franklin for a moredetailed answer. Thoughthe word “republic” wascommon currency inAmerica at the time, themeaning of the term wasimprecise, encompassingvarious and diverse formsof government.

Broadly, a republicmeant a country not governed by a king. The rootof the word is the Latin, res publica, meaning “thepublic things.” “The word republic,” Thomas Painewrote, “means the public good, or the good of thewhole, in contradistinction to the despotic form,which makes the good of the sovereign, or of oneman, the only object of the government.” In arepublic, the people are sovereign, delegatingcertain powers to the government whose duty is tolook to the general welfare of society. That citizensof a republic ought to place the common goodbefore individual self-interest was a key assumptionamong Americans of the eighteenth century.“Every man in a republic,” proclaimed BenjaminRush, “is public property. His time and talents—his youth—his manhood—his old age, nay more,life, all belong to his country.”

Republicanism was not an American invention.In shaping their governments, Americans looked tohistory, first to the ancient world, and specifically tothe Israel of the Old Testament, the Roman republic,and the Greek city-states. New Englanders inparticular often cited the ancient state of Israel as theworld’s first experiment in republican governmentand sometimes drew a parallel between the TwelveTribes of Israel and the thirteen American states. In1788, while ratification of the Constitution wasbeing debated, one Yankee preacher gave a sermonentitled,“The Republic of the Israelites an Example

to the American States.” Indeed, the Bible was citedby American authors in the eighteenth centurymore often than any other single source.

Americans not only knew their Bible, but alsothe history of the Greeks and Romans. The eliteclass mastered ancient languages and literature, arequirement of colleges at the time. To these men

of the eighteenth century,ancient languages were notdead, nor were ancientevents distant; rather,the worlds of Pericles and Polybius, Sallust andCicero were vibrant and near. The relativelyminor advancements intechnology across 2,000years—people still traveledby horse and sailing ship—

served to reinforce the bond eighteenth-centuryAmericans felt with the ancients.

Like the Greeks and Romans of antiquity,Americans believed that government must concernitself with the character of its citizenry. Indeed,virtue was “the Soul of a republican Government,”as Samuel Adams put it. Virtue had twoconnotations, one secular and the other sacred.The root of the word was the Latin, vir, meaning“man,” and indeed republican virtue often referredto the display of such “manly” traits as courage andself-sacrifice for the common good. These qualitieswere deemed essential for a republic’s survival. “Apopular government,” Patrick Henry proclaimed,“cannot flourish without virtue in the people.” Butvirtue could also mean the traditional Judeo-Christian virtues, and many Americans feared thatGod would punish the entire nation for the sins ofits people. “Without morals,” Charles Carrollproclaimed, “a republic cannot subsist any lengthof time.” New Englanders in particular sought tohave society’s institutions—government andschools as well as churches—inculcate such qualitiesas industry, frugality, temperance, and chastity inthe citizenry. The Massachusetts Constitution of1780, for example, provided for “public instructionsin piety, religion, and morality.”

The second ingredient of a good republic was awell-constructed government with good institutions.

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“If the foundation is badly laid,” George Washingtonsaid of the American government,“the superstructuremust be bad.” Americans adhered to a modifiedversion of the idea of “mixed”government, advocatedby the Greek thinker Polybius and later republicantheorists. A mixed republic combined the threebasic parts of society—monarchy (the one ruler),aristocracy (the rich few), and democracy (thepeople)—in a proper formula so that no one partcould tyrannize the others. But Americans believedthat the people of a republic were sovereign, so theysought to create institutions that approximated themonarchical and aristocraticelements of society. TheFramers of the Constitutiondid just this by fashioning asingle executive and a Senateonce removed from thepeople. The problem, as JohnAdams pointed out in hisThoughts on Government, wasthat “the possible combinations of the powers ofsociety are capable of innumerable variations.”

Americans had every reason to be pessimisticabout their experiment in republicanism. Historytaught that republics were inherently unstable andvulnerable to decay. The Roman republic and thecity-state of Athens, for instance, had succumbed tothe temptations of empire and lost their liberty. Thehistories of the Florentine and Venetian republicsof Renaissance Italy too had been glorious but short-lived. Theorists from the ancient Greek thinkerPolybius to the seventeenth-century English radicalAlgernon Sidney warned that republics suffer fromparticular dangers that monarchies and despotismsdo not. Republics were assumed to burn brightlybut briefly because of their inherent instability.One element of society always usurped power andestablished a tyranny.

The great danger to republics, it was generallybelieved, stemmed from corruption, which, likevirtue, had both a religious and a worldly meaning.Corruption referred, first, to the prevalence ofimmorality among the people. “Liberty,” SamuelAdams asserted, “will not long survive the totalExtinction of Morals.”

“If the Morals of the people” were neglected,Elbridge Gerry cautioned during the crisis withEngland, American independence would notproduce liberty but “a Slavery, far exceeding that ofevery other Nation.”

This kind of corruption most often resultedfrom avarice, the greed for material wealth. SeveralAmerican colonial legislatures therefore passed

sumptuary laws, which prohibited ostentatiousdisplays of wealth. “Luxury . . . leads tocorruption,” a South Carolinian declared duringthe Revolutionary era, “and whoever encouragesgreat luxury in a free state must be a bad citizen.”Another writer warned of the “ill effect ofsuperfluous riches” on republican society. Avaricewas seen as a “feminine” weakness; the lust forwealth rotted away “masculine” virtues. JohnAdams bemoaned “vanities, levities, and fopperies,which are real antidotes to all great, manly, andwarlike virtues.”

The second meaning ofcorruption referred toplacing private interest abovethe common good. Thistemptation plagued publicofficials most of all, who hadample opportunity tomisappropriate public fundsand to expand their power.

“Government was instituted for the general good,”Charles Carroll wrote,“but officers instrusted with itspowers have most commonly perverted them to theselfish views of avarice and ambition.” Increasinglyin the eighteenth century, Americans came to seegovernment itself as the primary source of corruption.

Fear of government’s tendency to expand itspower at the expense of the people’s liberty waspart of Americans’ English political heritage. Theyimbibed the writings of late-seventeenth-centuryEnglish radicals and eighteenth-century “country”politicians who were suspicious of the power of British officials (the “court”). Governmentcorruption was manifested in patronage (theawarding of political office to friends), faction (theformation of parties whose interests were opposed tothe common good), standing (permanent) armies,established churches, and the promotion of an eliteclass. Power, these country writers argued, waspossessed by the government; it was aggressive andexpansionist. Liberty was the property of thegoverned; it was sacred and delicate. The history ofliberty in the world was a history of defeat by theforces of tyranny.

Though the history of republicanism was adismal one, the lessons of history as well as theirown colonial experience convinced the AmericanFounders that they possessed sufficient informationon which to base a new science of politics.“Experience must be our only guide,”John Dickinsonproclaimed at the Philadelphia Convention; “reasonmay mislead us.” The Framers of the United StatesConstitution all had experience as public servants,


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Fear of government’s tendency to expand its power at the expense of thepeople’s liberty was part of Americans’

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and it must be remembered that the documentthey produced did not spring forth as somethingentirely new in the American experience. Rather,the Founders had learned much from the operationof their colonial charters, state constitutions, andthe Articles of Confederation.

At Philadelphia, the Founders focused on theproper construction of the machinery of governmentas the key to the building of a stable republic. TheConstitution makes no mention of the need for virtueamong the people, nor does it make broad appealsfor self-sacrifice on behalf of the common good. It isa hard-headed documentforged by practical men whohad too often witnessedavarice and ambition amongtheir peers in the statehouse, the courtroom, andthe counting house. A goodconstitution, the Foundersheld, was the key to goodgovernment. Corruption and decay could beovercome primarily through the creation of a writtenconstitution—something England lacked—thatcarefully detailed a system in which powers wereseparated and set in opposition to each other sothat none could dominate the others.

James Madison, often called “The Father of theConstitution” because of the great influence of hisideas at Philadelphia, proposed to arrange themachinery of government in such a fashion as notto make virtue or “better motives” critical to theadvancement of the common good. Acknowledgingin The Federalist Papers that “enlightened statesmenwill not always be at the helm,” Madison believedthat the separate powers of government—legislative,executive, and judicial—must be set in oppositionto one another, so that “ambition must be made tocounteract ambition.”

“In framing a government which is to beadministered by men over men,” Madison asserted,“the great difficulty lies in this: you must first enablethe government to control the governed; and in thenext place oblige it to control itself.”

James Wilson, representing Pennsylvania atthe Philadelphia Convention, declared that theConstitution’s separation of powers and checksand balances made “it advantageous even for badmen to act for the public good.” This is not to saythat the delegates believed that the republic couldsurvive if corruption vanquished virtue in society.Madison himself emphasized the importance ofrepublican virtue when defending the newgovernment in The Federalist Papers. But the Framers

agreed with Madison that men were not angels, andmost were satisfied that the Constitution, as GeorgeWashington put it,“is provided with more checks andbarriers against the introduction of Tyranny . . . thanany Government hitherto instituted among mortals.”

The question remained, however, whether onepart of society would come to dominate. No matterhow perfect the design, the danger remained that afaction would amass enough political power to takeaway the liberty of others. To combat this problem,classical republican theory called for creating auniformity of opinion among the republican

citizenry so that factionscould not develop. Theancient Greek city-states, forexample, feared anythingthat caused differentiationamong citizens, includingcommerce, which tended tocreate inequalities of wealthand opposing interests. In

contrast, Madison and the Founders recognizedthat factionalism would be inherent in a commercialrepublic that protected freedom of religion, speech,press, and assembly. They sought only to mediatethe deleterious effects of faction.

Republics also were traditionally thought to bedurable only when a small amount of territory wasinvolved. The Greek city-states, the Roman republic,the Italian republics, and the American states allencompassed relatively small areas. When the Romanrepublic expanded in its quest for empire, tyrannywas the result. Madison turned this traditionalthinking on its head in The Federalist Papers, arguingthat a large republic was more conducive to libertybecause it encompassed so many interests that nosingle one, or combination of several, could gaincontrol of the government.

Not all Americans accepted the Madisoniansolution. Agrarians, such as Thomas Jefferson, wereuncomfortable with the idea of a commercial republiccentered on industry and sought to perpetuate anation of independent farmers through the expansionof the frontier. Though uneasy about the “energeticgovernment” created by the Constitution, Jeffersonendorsed the Framers’ work after a bill of rightswas added to the document. “Old republicans” likeSamuel Adams and George Mason opposed theConstitution, even after the addition of a bill ofrights, fearing that the power granted to the centralgovernment was too great and wistfully looking backto the Revolutionary era when virtue, not ambition,was the animating principle of government. But in1789, as the new government went into operation,

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[The Constitution] is a hard-headeddocument forged by practical men whohad too often witnessed avarice and

ambition among their peers.

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most Americans shared the optimism of BenjaminFranklin, who had decided at the conclusion of thePhiladelphia Convention that the sun carved intothe back of the chair used by George Washingtonwas a rising—not a setting—sun, and therebyindicative of the bright prospects of the nation.

“We have it in our power to begin the worldover again,” Thomas Paine had written in 1776,during the heady days of American independence.And indeed the American Founders in 1787 werekeenly aware that they possessed a rare opportunity.

Like the legendary Lycurgus of Ancient Greece,they were to be the supreme lawgivers of a newrepublic, a novus ordo seclorum or new order of theages. The American Founders were aware that theeyes of the world and future generations were uponthem, and they were determined to build an eternalrepublic founded in liberty, a shining city upon ahill, as an example to all nations for all time.

Stephen M. Klugewicz, Ph.D.Consulting Scholar, Bill of Rights Institute


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Suggestions for Further ReadingAdair, Douglass. Fame and the Founding Fathers: Essays by Douglass Adair. Indianapolis: Liberty Fund, 1998.Bailyn, Bernard. The Origins of American Politics. New York: Vintage Books, 1968.McDonald, Forrest. Novus Ordo Seclorum: The Intellectual Origins of the Constitution. Lawrence: University

Press of Kansas, 1985.Pocock, J.G.A. The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition.

Princeton: Princeton University Press, 1975.Rahe, Paul A. Republics Ancient and Modern, 3 vols. Chapel Hill: The University of North Carolina Press, 1994.Wood, Gordon. The Creation of the American Republic. Chapel Hill: The University of North Carolina Press, 1969.

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Thomas Jefferson accurately represented theconvictions of his fellow colonists when heobserved in the Declaration of Independence thata government, to be considered legitimate, must bebased on the consent of the people and respect theirnatural rights to “life, liberty and the pursuit ofhappiness.”Along with other leading members of thefounding generation, Jeffersonunderstood that these principlesdictated that the government begiven only limited powers that,ideally, are carefully described inwritten charters or constitutions.

Modern theorists like JohnLocke and the Baron deMontesquieu had been makingthe case for limited governmentand separation of powers duringthe century prior to the AmericanRevolution. Colonial Americanswere quite familiar with Locke’sargument from his Two Treatisesof Government that “AbsoluteArbitrary Power, or Governing without settledstanding Laws, can neither of them consist with theends of Society and Government. . . .” Locke addedthat the reason people “quit the freedom of thestate of Nature [is] to preserve their Lives, Libertiesand Fortunes.” Civil society has no higher end thanto provide for the safety and happiness of thepeople, and this is best done under a system ofknown rules or laws that apply equally to “the Rich and Poor, . . . the Favorite at Court, and theCountry Man at plough.” For his part, Montesquieuargued that only where governmental power islimited in scope, and then parceled out amongdifferent departments, will people be free fromoppression. Constitutional government, formodern natural rights theorists, should be limitedgovernment dedicated to the comfortablepreservation of the people—that is, to theirsecurity, freedom, and prosperity.

John Adams echoed the beliefs of manyAmericans when he argued that only by creating abalance of forces within the government could thepeople hope to escape despotism and misery. Anunchecked legislature, he observed, would becapable not only of making tyrannical laws, but of

executing them in a tyrannical manner as well. In hisfamous draft of a constitution for the commonwealthof Massachusetts, Adams declared that the“legislative, executive and judicial power shall beplaced in separate departments, to the end that itmight be a government of laws, and not of men.”This document, along with his Defence of the

Constitutions of Government ofthe United States of America,containing a strong case for checksand balances in government,were well known to the delegateswho attended the ConstitutionalConvention of 1787.

James Wilson, one of theforemost legal scholars of thefounding period and a delegatefrom Pennsylvania at theConstitutional Convention, agreedwith Adams’ insistence that thepower of government should bedivided to the end of advancingthe peace and happiness of the

people. In the words of Wilson, “In government,the perfection of the whole depends on the balanceof the parts, and the balance of the parts consists inthe independent exercise of their separate powers,and, when their powers are separately exercised,then in their mutual influence and operation onone another. Each part acts and is acted upon,supports and is supported, regulates and isregulated by the rest.”

Both the Articles of Confederation and theConstitution of the United States provided forgovernments with limited powers. As John Jay haddiscovered as America’s secretary of foreign affairs,the power of the central government was severelylimited under the Articles and, hence, could betrusted to a unitary legislative department. Fear ofgovernmental tyranny and a desire to preserve thepower enjoyed by the new states resulted in thecreation of a central government that could noteffectively oversee interstate commerce or do otherthings that were critical to ensuring the safety andhappiness of the people. In a letter to EdmundRandolph at the end of 1786, George Washingtonbemoaned the “awful situation of our affairs”which he attributed to “the want of sufficient power

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in the foederal head.”Washington quickly joined themovement to create a new governmental systemthat was equal to “the exigencies of Union,” toquote from the instructions given the delegates tothe Constitutional Convention of 1787.

The Constitution of 1787 grew out of a plandrafted largely by James Madison during the winterand spring before the Convention. The “VirginiaPlan” proposed a central government that wassupreme over the states. Evidence that the nationalgovernment was to be entrusted with considerablepower could be found in the provisions for abicameral legislature andindependent executive andjudicial departments.

The delegates whoattended the ConstitutionalConvention were sufficientlyversed in modern politicaltheory to understand thatthey would have to dividethe power of the national government if theyintended to entrust it with real authority over thelives of the people and the states. They understoodthe dangers of imparting considerable politicalpower to a unitary sovereign. In this connection,there was never any doubt in their minds that theyshould create a government of “delegated andenumerated” powers, that is, that the governmentshould only be entrusted with specified(enumerated) powers that derived directly fromthe people. While they worried about the“turbulence and follies” of democracy, theyrecognized that government had to be based on theconsent of the people to be legitimate.

The Virginia Plan anticipated the bicamerallegislature and independent executive and judicialdepartments found in the United States Constitutiontoday. Building on Madison’s model, the delegatesassigned responsibilities to the departments basedon their peculiar characteristics. The six-year termof senators, for example, seemed to make this aproper institution to involve in foreign policy (e.g.,ratification of treaties) since senators would havemore time than members of the House ofRepresentatives to acquaint themselves withinternational affairs and their longer terms andlarger constituencies (entire states) also would givethem more freedom to attend to matters otherthan the immediate interests of constituents backhome. The House of Representatives was entrustedwith the important power to initiate revenue(taxation) bills precisely because the members of

this chamber are tied so closely to the people byshort terms and small districts.

In addition to matching powers andgovernmental responsibilities, the delegates werecareful to position each department to “check andbalance” the other departments. Examples are the executive’s veto power, the congressionalimpeachment power, and the judicial review powerentrusted to the Supreme Court, the only nationalcourt formally established by the Constitution.Although in good Lockean fashion the legislativedepartment was designed to be the preeminent

department, it was stillsubjected to checks by theother branches of thegovernment. Separation ofpowers as well as the systemof checks and balances weredevices for reducing the threatof governmental tyranny, notexcluding legislative tyranny.

However, the constitutional arrangement, putinto its final wording by Gouverneur Morris, wasnot driven entirely by a desire to eliminate thethreat of tyrannical government. The system ofseparated and divided powers also was intended topromote competence in government. Thepresident can employ his veto not only to checklegislative action that he considers irresponsible,but to provoke Congress to improve a legislativeenactment. The Senate can use its authority toratify presidential nominations of cabinet officersor judges to ensure that qualified candidates arenamed to fill these positions.

Writing in Federalist No. 9, Alexander Hamiltonidentified the principle of separated and dividedpowers, along with checks and balances, as amongthe inventions of the new science of politics thathad made republican government defensible.Madison described in Federalist No. 51 the benefitsof the governmental arrangement represented inthe new Constitution: “In the compound republicof America, the power surrendered by the people isfirst divided between two distinct governments,and then the portion allotted to each subdividedamong distinct and separate departments. Hence adouble security arises to the rights of the people.The different governments will control each other,at the same time that each will be controlled byitself.” Significantly, Anti-Federalists as well asFederalists agreed that governmental powersshould be limited and that these powers should besubject to internal as well as external checks.

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There was never any doubt in theirminds that they should create agovernment of “delegated and

enumerated” powers . . .


It is important to emphasize that the Framerssettled on an arrangement that divided yet blendedthe legislative, executive, and judicial powers. Thisfacilitates interdepartmental checking whilepromoting mature deliberation. Their aim was tocreate a decent and competent democracy, somethingbeyond mere non-tyrannical government. Theyplaced the whole of the government, and even thepeople, under constitutional limitations. TheConstitution is the supreme law of the land, notthe enactments of Congress or the order of thepresident or the momentary will of the people. AsChief Justice Marshall declared in Marbury v.Madison (1803), “The distinction between agovernment with limited and unlimited powers isabolished, if those limits do not confine the personson whom they are imposed, and if acts prohibitedand acts allowed, are of equal obligation.” Even the

desires of the people are held in check by theConstitution. The political system still meets thecriteria of democratic government, however, sincethe people hold the power, through theirrepresentatives, to amend the Constitution.

The paradigm of constitutional governmentembraced by the American people in 1787, that is,limited government based on the consent of thepeople and committed to the protection offundamental rights, has become the dominant modelthroughout the world. The rhetoric of rights, whethercouched in the language of natural rights or humanrights, is universally appealing. Also universallyaccepted is the argument that rights are most securewhen governmental powers are limited in scopeand subject to internal and external checks.

David E. Marion, Ph.D.Hampden-Sydney College


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Suggestions for Further ReadingFrohnen, Bruce (ed.). The American Republic: Primary Sources. Indianapolis: Liberty Fund, 2002.Kurland, Philip B. and Ralph Lerner (eds.) The Founders’ Constitution. Indianapolis: Liberty Fund, 1987.Mansfield, Harvey C., Jr. Taming the Prince. New York: The Free Press, 1989.McDonald, Forrest. A Constitutional History of the United States. New York: Franklin Watts, 1982.Storing, Herbert J. What the Anti-Federalists Were For. Chicago: University of Chicago Press, 1981.Wood, Gordon. The Creation of the American Republic, 1776–1787. New York: W.W. Norton, 1969.


JAMES MADISON (1751–1836) - Bill of Rights Institute · —James Madison, 1821 The short, thin...

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