Scholarship on the political thought and career of James Madison is still dominated by a prevailing “Hamiltonian”” interpretation.1 Set forth by such prominent scholars as Irving Brant, Martin Diamond, and George Carey, the “”Hamiltonian”” interpretation views the years surrounding the formation of the Constitution as the most productive years of Madison’s career and argues that he was a fervent nationalist and a proponent of centralizing reform throughout this period. During the 1780s, these scholars argue, Madison sought to address the impotence of the national government under the Articles of Confederation, but was even more concerned about the problem of majority tyranny within the states. Madison’s constitutional reform program therefore hinged on the consolidation of extensive powers in the national government, broad construction of constitutional charters, the establishment of an extended republic that would diffuse majority factions, and the addition of a power in the national government to veto state laws.

In so much as they have even taken notice of them, Madison’s writings and policy positions during the 1790s and beyond represent, in the estimation of most proponents of the “”Hamiltonian”” interpretation, a fundamental—if not embarrassing—reversal of his earlier policy positions from the 1780s and his nationalistic teachings as Publius. Whereas in the 1780s Madison had opposed discrimination between the present and original holders of the Revolutionary debt, favored assumption of the state debts, and favored the creation of a national bank, he favored the opposite, Jeffersonian position on each of these issues in the 1790s. Whereas in the 1780s Madison had feared majority factions and the centrifugal tendencies of the state governments and favored an extended republic with a multiplicity of interests, broad construction of constitutional charters, and the augmentation of the powers of the national government as remedies for these problems, in the 1790s he stressed the threat posed by encroaching federal power and a minority faction within the Executive branch, emphasized strict construction of the Constitution and the residual sovereignty of the states, and sought to consolidate common interests among the people and summon public opinion in opposition to the new government.

Broadly speaking, then, the “”Hamiltonian”” interpretation of Madison’s motives and goals during the 1780s unavoidably leads to the conclusion that there are, as John Zvesper has suggested, two distinct Madisonian “”systems”” of political thought: a pluralist system designed to extend the power of the national government and thwart majority factions, and a Jeffersonian party system designed to curb that power and summon popular majorities.2 Few Madison scholars, however, have been equally sympathetic to each of these systems. Led by Brant, Diamond, and Gordon Wood, or convinced that Madison’s political thought should be approached through his most famous writings (his contributions to The Federalist), most scholars have ignored or dismissed Madison’s efforts as an opposition leader in favor of the belief that the mid-1780s constitute a “”Madisonian moment”” and contain Madison’s most profound thoughts and admirable efforts. This maneuver, in turn, has had the effect of enforcing characterizations of Madison as a “”liberal-pluralist,”” a “”commercial republican,”” and an “”institutionalist.”” In their baldest form, these closely related interpretations suggest that Madison constructed a “”new science of politics”” in which “”interest”” would replace “”virtue”” and institutional complexity would serve as a remedy for the “”defect of better motives”” in the people. The ambitions and interests of public officials would be pitted against each other in a scheme of mutual jealousy and suspicion. Meanwhile, the public good would somehow emerge as a residue of institutional and interest group conflict and compromise. Furthermore, according to Diamond, Madison’s extended republic was necessarily a “”commercial republic.”” In Madison’s republic, Diamond contended, citizens would pursue their self-interest, helping to insure that a moderate struggle of interests would replace heretofore devastating ideological and class conflicts.3

Over the past twenty years, a number scholars—including Drew McCoy, Michael Zuckert, Colleen Sheehan, Gary Rosen, James Read, Jack Rakove, Cass Sunstein, and the author of this essay—have challenged specific dimensions of the Hamiltonian interpretation.4 The most comprehensive and far-reaching challenge to the Hamiltonian interpretation and to the understanding of the American political system with which it is associated, however, has been set forth in the scholarship of Lance Banning.5 Concisely put, Banning’s numerous essays and his magisterial study The Sacred Fire of Liberty offer a series of revisions about the character of Madison’s political thought, a defense of Madison’s political career, a rehabilitation of his political thought against the charge of inconsistency, and a new understanding of Madisonian politics. To achieve these goals, Banning provides a study of “”the evolution of his [Madison’s] founding vision”” from 1780 to 1792 that searches for “”fundamental constancies”” or what was “”fixed beneath the flux”” in Madison’s career and his political thought.6

This essay is both an appreciation and a critique of Banning’s interpretation of Madison. I first provide an extended summary of Banning’s interpretation, emphasizing its revisionary character. I then provide a critical analysis of what I believe are the three most important contributions of this interpretation and the three central areas where it should be challenged. I end by exploring the implications of Banning’s interpretation for prevailing understandings of the American Founding, the character of Madison’s political thought, and the foundations of the American political system.

Understanding the Revision: Banning’s Madison

Although Banning’s interpretation has been virtually universally applauded, the depth and character of his revision of our understanding of Madison’s political thought and career have not been adequately appreciated.7 Briefly put, Banning’s interpretation should be viewed as a series of specific revisions that cumulatively create a fundamentally new understanding of the path of Madison’s political career and the character of his political thought. The revisions begin with Madison’s service in the Confederation Congress—the period of Madison’s political career, Banning asserts, “”about which there is least dispute among the scholars, and perhaps the most significant mistake.””8 The thrust of his analysis here is to differentiate Madison from the Congressmen who fought without hesitation in the early 1780s for centralizing reform and in particular for the program of the “”economic nationalists””—James Wilson, Alexander Hamilton, and Robert Morris. Madison, according to Banning, first established himself in Congress as a consistent and formidable advocate for Virginia’s special interests. This included fighting to insure recognition of Virginia’s claims to all lands northwest of the Ohio and to insure that these lands were only ceded to the union on Virginia’s terms (which denied the speculative claims of large land companies). It also included fighting to insure that navigation rights on the Mississippi were never ceded to Spain as a condition of a treaty.

Nevertheless, Banning identifies two even more important differences between Madison and the “”economic nationalists”” of the northeastern states. First, unlike these statesmen, Madison retained a profound respect for written limitations of power expressed in constitutional charters and was intensely concerned with the effect that any reforms would have on the balance of power between the national government and the states. Second, Madison believed that it was necessary for Congress to be granted a source of revenue independent of state requisitions. But unlike the “”economic nationalists,”” Madison believed this power should be granted only so that the young government could meet its financial obligations and pay the interest and principal on the Revolutionary war debt. Conversely, Madison never accepted Morris’s or Hamilton’s objectives of establishing a permanent debt that would tie a monied interest to the national government and become a source of influence and dependency for this interested, wealthy few.

Banning next challenges a variety of common claims surrounding Madison’s path to the Constitutional Convention. First, Banning argues that, contrary to standard accounts, Madison’s experience with the inconstancy and injustices of state laws was not the primary impetus behind his desire for constitutional reform. Scholars have seldom noticed, Banning contends, that Madison placed much of the blame for the closely linked constellation of economic, political, and moral problems within the states that led to the democratic despotism of the mid-1780s at the foot of the national government, not the people. Thus, Madison cannot be counted among the Framers who were led by the events of the mid-1780s to the conclusion that virtue was lost in the people. Furthermore, according to Banning, Madison’s desire first to reform and eventually to abandon the Articles of Confederation grew as he became increasingly frustrated with sectional conflicts and the inability of the Confederation government to address national problems, especially the inability of Congress to coordinate retaliation against the mercantilistic policies of Britain and its unwillingness to protect Southern navigation rights to the Mississippi. Madison was so passionately committed to both commercial retaliation and to open navigation on the Mississippi, according to Banning, because he deemed both to be central to westward expansion and to the perpetuation of an agrarian republic in America. Commercial retaliation was necessary to insure open markets for America’s agricultural products and thus to keep Americans from reverting to manufacturing and the occupations associated with a more advanced society, while navigation of the Mississippi was likewise necessary (for among other reasons) to insure the value of western lands and thus their viability as a source of revenue for the national government to retire the Revolutionary War debt.

Second, Banning challenges standard accounts of the formation of the Constitution by focusing away from Madison’s doubts about the propriety of majority rule during the mid-1780s and toward the steadfastness of his revolutionary faith in governments that rest on the consent of the governed and demand the continuous participation of the citizenry. Here, as Banning sees it, standard accounts stand Madison’s concerns on their head. Contemporary scholarship on Madison has not been wrong to stress that Madison was led by the agonizing events of the mid-1780s to question majority rule and direct citizen participation in government. But what is important to note, he observes, is that the violations of individual rights by popular majorities in the state governments during the mid-1780s were so agonizing for Madison precisely because of the depth and gravity of his commitment to the revolutionary faith in popular rule. Like most early and fervent revolutionaries, Madison, Banning insists, had believed that popular participation would be the means of securing the rights of the people. When the events of the mid-1780s exposed the tenuousness of that supposition, Madison faced the tension between his republican and his liberal commitments and underwent “”the most important intellectual crisis of his life.””9

Banning then offers a series of closely related reappraisals of the nature of Madison’s proposals at the Constitutional Convention and his evolving role there and in the ratification contest. Madison, according to Banning, went into the Convention convinced that “”the fundamental flaw of the Confederation was its irredeemably defective structure”” and that this problem could not be solved simply by adding powers to the national government.10 It did not matter how much power the national government exercised, Madison observed, if it could not compel obedience to its decisions or act without interference from the states. The Virginia Plan was thus designed to free the national government from the constraints of the states. This was to be done by excluding the states, for the most part, from the selection of federal officials and from the execution of federal decisions, and by compelling obedience to federal commands through the use of an absolute veto on state laws and a federal power to coerce disobedient states.

According to Banning, however, Madison’s effort to establish an effective national government should not be misinterpreted as an effort to construct a powerful one. Madison’s view of the powers that should be exercised by the national government, Banning contends, was thoroughly conventional and, unlike Hamilton, he was never a consolidationist. Indeed, according to Banning, Madison believed that, with the exception of the power to regulate trade, the Articles of Confederation granted Congress authority to exercise all of the essential functions of a government.

Furthermore, Banning maintains, Madison’s understanding of the imperatives of federal reform evolved in a number of ways as the Convention unfolded. For example, Madison becamemore of a nationalist in one limited but important sense as he learned from other “”democratic nationalists”” how better to free the national government from the constraints of the states and as he came to conceive of the Constitution as establishing concurrent state and federal governments, each arising from and acting upon the individual members of the society. In particular, he dropped the idea of a federal power to coerce the states into compliance with federal measures in favor of empowering the government to operate directly on individuals. He also became increasingly determined to secure proportional representation in both branches of Congress and to insure the selection of federal officials independent of the state governments because he sought to diminish state interference and influence in areas that were reserved for the national government.

After he had lost the historic battle over proportional representation in the Senate, Madison’s understanding of the proper direction of federal reform, Banning contends, transformed again, but not in ways that previous scholars have appreciated. Following Irving Brant, many scholars have contended that “”the Great Compromise”” marked the apex of Madison’s desire to add powers to the national government and that thereafter he became less of a nationalist. But according to Banning, Madison’s understanding of the powers needed by the national government did not change at all after “”the Great Compromise”” and his opposition to this decision did not subside easily or quickly. The real effect of “”the Great Compromise”” on Madison’s actions at the Convention and even into the First Congress was that he became much more likely to favor augmentation of the powers of the President (who represented the whole nation) rather than the Senate (which now represented the states as states). He came for example to favor the President sharing in the power to appoint judges and the treaty making power. He also now favored the right of the President to succeed himself.

When he turns to an analysis of The Federalist Papers, Banning provides yet another challenge to existing scholarship. Here, he maintains that scholars have incorrectly seen The Federalist No. 10 as a comprehensive statement of Madison’s political philosophy and misinterpreted Madison’s theory of an extended republic in a variety of ways. Despite extensive commentary that suggests otherwise, Federalist No. 10 was not the alpha and omega of Madison’s political thought but rather a “”brilliant preface”” to Madison’s contributions as Publius.11 Madison was also not, according to Banning, intent on “”multiplying interests in an extended commercial republic,”” and the election of disinterested or impartial representatives from expanded electoral districts was not the central point of his theory.12 The “”commercial republic”” interpretation is incorrect because it places Madison on the wrong side in the debate over political economy in eighteenth-century America: i.e., with those who enthusiastically wanted to impel economic development, as opposed to the Jeffersonians, who wanted to limit and channel it into agrarian pursuits. Furthermore, any interpretation of Madison’s theory of an extended republic which suggests that the election of disinterested representatives from expanded electoral districts was Madison’s central point carries with it the assumptions that he wanted distant and unresponsive rulers and that he “”wanted and expected an increasing concentration of decision-making at the federal level.””13 Such an interpretation is incorrect, because Madison wanted representatives to reflect their constituents views, did not believe that the extended republic should reach beyond a “”practicable sphere”” in which rulers could be held accountable, always insisted it had to be built on a federal structure, and always believed that the national government should have only limited responsibilities.

In general, Banning’s reappraisal of both the framing and the ratification of the Constitution is driven by a common sense—but nevertheless previously neglected and immensely powerful—line of analysis that establishes how Madison was influencedby the dynamic process of the framing and ratification of the Constitution. The Constitutional Convention, Banning asserts, was among other things a deliberative assembly in which the delegates were forced into open exchanges over a vast and shifting body of issues. The Constitution that emerged from the Philadelphia Convention was far different from the one that Madison originally proposed, and Madison learned immensely from other delegates in its construction. Similarly, Banning treats Madison’s experience in writing essays for The Federalist as a learning process, akin to a scholarly project, in which Madison’s understanding of the immanent theory in the Constitution matured and crystallized, and in which his initial reservations about the Constitution were abandoned in favor of a greater appreciation of the “”collective wisdom of the Constitutional Convention.””14 Viewed from this perspective, Madison’s contributions to The Federalist emerge as “”partly a confession of what (and how much) he had learned.””15

When Banning turns to the party battles of the early 1790s, he has already established the background for explaining Madison’s perspective on the break with Hamilton and for his contention that “”the father of the Constitution did not have to travel quite so far as it is sometimes thought in order to become the coauthor of the ‘Jeffersonian Persuasion.'””16 In particular, having firmly established the continuity of Madison’s concern for strict construction and for limiting the responsibilities of the national government, Banning is able to argue convincingly that Madison’s opposition to the chartering of a national bank (which had been rejected at the Constitutional Convention and, in Madison’s eyes, overran the boundaries of the constitutional charter) was predictable and consistent with his prior goals. Madison’s opposition to the assumption of state debts as they stood in 1792 rather than at the end of the Revolutionary War becomes understandable and defensible when it has been established that Madison always insisted on a fair attention to Virginia’s interests (which he seldom saw as inconsistent with the common interest) and that the states had differentially resolved their state debts since the Revolution, with Virginia taking a lead in absolving its debt.

Once Madison’s opposition to privilege and speculative interests has been established and we have broken away from the prevailing belief that he was an unflinching defender of the rights of property and contract, Madison’s support for discrimination between original and secondary holders of certificates becomes understandable. If we understand the centrality of Madison’s concern throughout the 1780s to counter British navigation laws and this concern’s place in Madison’s commercial, agrarian vision, then we can understand the importance that this issue has for Madison in the first Congresses. Indeed, we can see how on this issue it was Hamilton who reversed himself in the 1790s when he reneged on the promise from Federalist No. 11 to use the invigorated powers of the national government to insure commercial discrimination against foreign nations threatening American trade. In general, from Madison’s perspective rather than those influenced by Hamilton or governed by contemporary interpretive frameworks and political concerns, it becomes possible to understand why Madison claimed that Hamilton “”deserted”” him and attempted to “”administer the government…into what he thought it ought to be”” and had been unable to secure at the Constitutional Convention—and his corollary contention that it was he, not Hamilton, who had accepted the meaning of the Constitution as it had been ratified.17

But if Banning’s account makes Madison’s specific policy positions during the 1790s understandable and defensible, it also boldly charts a still broader and more profound thread of consistency within Madison’s political thought and career. In particular, Banning argues that the most important consistency in Madison’s political thought was his commitment to the Country party ideology of the early stages of the American Revolution—and in particular to his passionate, even romantic, defense of liberty understood both as the vigilant continuous participation of the people in their government and the protection of the rights of minorities and individuals. What connected the Virginia continentalist with the “”father of the Constitution”” and with the author of the “”Jeffersonian Persuasion,”” what made Madison unique among his generation and has subsequently made his legacy invaluable, according to Banning, was his commitment to the “”sacred fire of liberty”” and his steadfast refusal to abandon either his republican commitment to popular participation or his liberal commitments to justice and the protection of individual rights.

Refining the Revision:
Three Contributions of Banning’s Interpretation

Banning’s broad interpretation of the consistency of Madison’s political thought and career and his numerous specific revisions may be thought of as a challenge to a series of interpretations that are deeply ingrained in modern scholarship on Madison and the Founding. In particular, Banning’s contentions that Madison was a committed democratic revolutionary, that he was led to seek constitutional reform because of the inadequacies and structural faults of the national government (not because of the excesses of democracy within the states), and that he never abandoned his commitment to popular government or the virtue of the people challenge the charge—directly set forth by the Progressive historians and more subtly woven into the scholarship of Gordon Wood—that Madison and the Framers of the Constitution repudiated the principles of the American Revolution. His analysis of the debates in the Federal Convention as a dynamic process involving a “”complicated interplay of disputation and consensus”” is set forth against the “”realism”” of the Progressive historians’ depiction of the debates in Philadelphia as a clash between delegates steadfastly advancing personal, group, and sectional interests and the Constitution as a “”bundle of compromises”” between these interests.18 Banning’s effort to establish the continuity of Madison’s commitment to a modified version of strict constructionism is a challenge to the interpretation of the Madison biographer Irving Brant and more recently to the conclusions of Stanley Elkins and Eric McKitrick,who have argued that Madison was a broad constructionist during the 1780s but abandoned this principle in the 1790s as a political tactic against Hamilton’s policies.19 Finally, Banning’s challenge to the nationalistic interpretation of Madison’s understanding of the scope of federal powers, his challenge to the centrality of the argument of Federalist No. 10, and his repudiation of the “”commercial republican”” interpretation of Madison’s conception of political economy are directed against the highly influential scholarship of the late Martin Diamond.

What are we to make of all of this? Are Banning’s numerous revisions convincing? In three areas, in my estimation, Banning is overwhelmingly successful. These include his interpretations of Madison’s conception of political economy, of Madison’s understanding of the scope of national power, and of Madison’s conception of constitutional interpretation. Since these interpretations constitute some of Banning’s most controversial claims, each demands further explanation.

In the area of political economy, Banning’s contribution is to challenge prevailing interpretations of the Framers as “”commercial republicans”” and to show how Hamilton’s economic program was rooted in seventeenth- and eighteenth-century “”Court”” party ideology and how Madison’s suspicions of and ultimate opposition to these programs followed “”Country”” party ideology. As Banning has noted, prevailing interpretations suggest that the Framers of the Constitution were social conservatives who hoped to protect their place atop a deferential culture but were nevertheless also universally in favor of rapid economic development. The Framers of the Constitution, according to this view, envisioned the national government as a framework for the protection of private property and for a common market among the states.20

In contrast, Banning has followed Drew McCoy in arguing for the superiority of the “”Court”” versus “”Country”” interpretation of eighteenth-century American political economy. Specifically, as Banning has shown, the program that Hamilton (and before him, Robert Morris) had devised was modeled on the system of administration and finance that had been adopted in the ministry of William III in the decade following the Glorious Revolution. Briefly, the ministers of the Court of William III had devised a scheme in which the nation’s commercial, political, financial, and military elite financed the national debt and were paid interest on their investments. This system, according to a then commonly held reading of the history of England, fused these diverse interests into a single national elite, tied their well-being to the success of the administration, and had thereby lent stability to the administration and served as the engine of England’s rise to national greatness.

#page#

But whereas Hamilton held this reading of English history and hoped to replicate the English model of administration and finance, Madison feared and opposed this system for reasons that could be traced to the Country party critique of Court policies. In particular, Banning maintains, Madison believed that this system would lead to ministerial corruption and influence by placemen, public pensioners, and dealers in public funds. Indeed, Madison viewed this system as the reason that the British government had become corrupt in the 1770s and thus, ultimately, as the source of the repressive economic measures that had led to the American Revolution in the first place. To Madison, the replication of this system was therefore unthinkable.

Most important, linking Madison’s opposition to a permanent funding system and his system of political economy to Country Party ideology and Hamilton’s economic program to the Court program of economic success has provided scholars with a much more complex and historically accurate framework for understanding early American political economy than understanding them collectively as “”commercial republicans.”” Indeed, whatever criticisms may be deservedly lodged against the scholarship of the so-called “”republican synthesis,”” the discovery of the recrudescence of Country and Court ideologies in eighteenth-century America marks one of its permanent contributions. In particular, calling the Framers “”commercial republicans”” and suggesting that they were enthusiastic advocates of unimpeded economic development fails to convey an appreciation for the Jeffersonians’ fear of a manufacturing America and the intensely political concerns behind their agrarianism. It also conflates Hamiltonian and Jeffersonian political economy under a single capacious rubric and thus cannot account for the fact that differences over political economy were among the most profoundly divisive issues in eighteenth-century America. Finally, this framework of analysis has illuminated the spectrum of beliefs about political economy held by the Founders, has helped us to understand the economic programs of Hamilton on the one side and Jefferson and Madison on the other as highly integrated efforts to adapt widespread eighteenth-century assumptions about political economy to the American experience, and has constructively complicated our understanding of the relationship of the Founders’ ideas to the development of capitalism.

In addition to furthering our understanding of Madison’s conception of political economy, Banning has also decisively challenged the idea that Madison held a Hamiltonian conception of the scope of national power and that he transformed from a Hamiltonian nationalist in the 1780s to a proponent of states’ rights in the 1790s. As previously suggested, proponents of this thesis are numerous and influential. Charles Hobson, for example, has contended that in the 1780s Madison was “”scarcely less a consolidationist than Alexander Hamilton”” and George Carey has contended that there were no “”substantial differences between him [Madison] and Hamilton…concerning the scope of national power.””21

Scholars who present this interpretation point to a number of pieces of evidence.22 These include:

  • the numerous statements that Madison made in the mid-1780s that the centrifugal tendencies of the state government posed the biggest threat to the viability of the American republic and his assurances that the national government created under the new Constitution would have neither the inclination nor the ability to absorb the state governments,23 
  • the sweeping provisions in the Virginia plan which are often interpreted as expressing Madison’s desire to give the national government broad, undefined powers,24
  • statements Madison made at the Convention which are interpreted to suggest that he wanted the states to be reduced to administrative districts with the same status in relationship to the national government as counties have to the state governments,25
  • Madison’s infamous and stubborn defense at the Constitutional Convention of a universal negative that would have allowed the national government to reject any state laws,26
  • Madison’s successful motion on August 18 at the Convention to refer a long list of enumerated powers to the Committee of Detail in order to have them added to the Convention and his support on September 14 of a provision to add a congressional power to cut canals and to create charters of incorporation,27
  • the grave disappointment that Madison expressed in his famous long June 24, 1787, letter to Thomas Jefferson about the inadequacies and prospects of the Constitution and the loss of the universal negative.28

Banning does not respond to this evidence by suggesting that there were no differences between Madison’s positions in 1787 and 1792. Instead, he readily concedes that in 1787 Madison was much more concerned that the state governments would be able to encroach on the prerogatives of the national government than that the national government would absorb the powers of the states. Madison based this prediction on the conclusions that he reached from his study of ancient and modern confederacies, his immediate experience with the operations of the state governments under the Articles of Confederation, his prediction that the people would have more immediate attachment to the state governments than to the national government, and his belief that the national government would not have the inclination to intrude on the powers of the states, or if it did, that it would be controlled by its structure and character from such actions.29 Less than four years after he had set this case forward in the Convention and The Federalist, however, Madison had reason to believe that in fact the national government posed a very real threat to the reserved powers of the states and to call upon the people of America to embrace the state governments as a means of counteracting excessive centralization. Thus, critics who maintain that Madison changed his mind about the likelihood of future threats to the state governments are correct.

Nevertheless, Banning effectively demonstrates that, when all the evidence is considered and put into context, we gravely misunderstand Madison if we move beyond this observation and interpret him as a frustrated consolidationist. As Banning observes, late in his life, Madison sharply differentiated between a national government and an unlimited or consolidated one, and he maintained that arguments for a national government at the Convention should not be construed as arguments in favor of an unlimited or consolidatedgovernment. He also maintained that the provisions in the Virginia Plan (such as the one that empowered the national government to legislate in all cases in which uniformity was required) were meant merely to serve as general principles to guide debate toward a specific enumeration of powers. They were not, in other words, enumerations of powers themselves. Furthermore, as Michael Zuckert and Banning have observed, we do not have to rely on Madison’s late-in-life testimony on this issue: Madison’s views were confirmed during the course of the Convention by the statements of other delegates who clearly saw their task as providing such an enumeration.30

Likewise, the oft-quoted nationalistic statements that Madison made about the relationship of the national government and the states during the Constitutional Convention have to be treated judiciously and in context. When this is done, it becomes clear that Madison was really hypothetically arguing that even if the greatest fears of the small state delegates were realized, the national government had no real inclination or ability to absorb the powers of the state governments and the small states mistook their own interests if they believed that greater decentralization would make their situation more secure. Furthermore, these statements also have to be considered alongside Madison’s consistent claim that he sought a “”middle ground”” between consolidation and confederation and numerous other statements that Madison made at this time such as his pledge to “”preserve the State rights with the same care, as I would trials by jury.””31

Finally, Banning also effectively establishes that Madison’s support for the universal negative should not be viewed as a consolidationist provision. As Banning repeatedly points out, Madison viewed the negative primarily as a “”defensive power””: i.e., as a means of keeping the state governments from frustrating the ability of the national government to perform its limited functions and for giving the national government finality within its proper sphere of power. Conversely put, he did not view the negative as a means of widening the sphere of power created by the national government or absorbing the legislative powers of the states into the national government, but instead as giving the national government finality within its proper and limited sphere of power.32 What Banning’s analysis of the universal negative makes clear, then, is that Madison pursued the universal negative with such determination because by1787 he had come to believe that the national government was at a profound disadvantage in struggles with the states. Working from the axiom that “”wherever there is a danger of attack, there ought to be given a constitutional power of defense,”” Madison saw the negative as the only effective and least intrusive means that the national government could be given for combating state encroachments.33 Thus, a universal negative was, in Madison’s estimation, indispensable for restoring a proper balance between the national government and the states, but it was never anything but a restoration of balance that Madison sought.

Broadly speaking, Banning’s most important contribution here is to provide a typology of the varieties of nationalism among proponents of the Constitution. At a minimum, Banning identifies three dimensions of “”nationalism”” among the Framers: the desire to make the national government independent of the state governments in the selection of federal officials and in the execution of its powers, the desire to give the national government final say—or sovereignty—at least over matters within its sphere of power, and finally the goal of expanding the powers given to the national government. Madison, Banning establishes, was a nationalist only in the first two of these dimensions. Madison went into the Constitutional Convention zealously committed—and became even more committed—to freeing the national government from dependence on the states in the selection of national officials and in the execution of its responsibilities. Madison learned from other delegates how to achieve this goal better, and the structure of the government created by the original Constitution embodies much of the logic espoused by the “”democratic nationalists”” on this matter. Madison’s commitment to a sweeping negative that gave the national government the power to veto state laws “”in all cases whatsoever”” indicated that he entered the Convention still believing that sovereignty had to lie in either the states or the national government, and that he believed the national government had to be given final authority in the limited area of its responsibilities. The loss of the negative and other compromises at the Convention led Madison to defend a Constitution that was much less clear on the question of finality.

Most importantly, Banning convincingly argues that Madison’s conception of the scope of national power or the functions of the national government was never Hamiltonian. In contrast to Hamilton, who believed that Congress had to have the “”power to pass all laws whatsoever,”” Madison hoped to redesign the national government to allow it to perform the essential tasks that virtually everyone—even many Anti-federalists—believed it should accomplish.34 As Banning succinctly puts it, “”Madison was a determined ‘nationalist’ only in his view of how the new regime should work, not in his opinion of the work it ought to do.””35

A third contribution of Banning’s study is to challenge decisively the contention that Madison was a broad constructionist during the 1780s who became a strict constructionist during the 1790s. This charge is most frequently made by examining Madison’s shifting positions on the national bank and his supposedly shifting position on the doctrine of implied powers. Specifically, scholars commonly point out that Madison supported empowering the national government with the authority to create charters of incorporation such as a national bank at the Constitutional Convention. He then, however, opposed the formation of a national bank on constitutional grounds in Congress in 1792. On the level of constitutional theory, many commentators contend that Madison’s speeches opposing the constitutionality of the national bank in the 1790s fundamentally contradict his famous defense of implied powers in Federalist No. 44. There, Madison defended the proposition that if the necessary and proper clause had not been written into the Constitution, it would have been necessary to interpret the document as if it had been anyway. He also wrote—in words oft-quoted in defense of broad construction and sometimes said to be the source of John Marshall’s defense of implied powers in McCulloch v. Maryland—that “”no axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.””36

Finally, many scholars point out that during discussion about the Bill of Rights in the First Congress, an addition was proposed to include the word “”expressly”” in what would become the Tenth Amendment. This language was designed to replicate the language of the second article of the Articles of Confederation. Had it passed, it would have reserved to the states and the people all powers not “”expressly”” given to the national government and virtually required strict construction of the new federal charter. Still, Madison helped to defeat this provision only two years before opposing the constitutionality of a national bank. Perhaps the most valuable and lasting contribution of Banning’s scholarship is to establish that some dimensions of this familiar characterization are simply false, while others are fundamentally misleading. In particular, Banning establishes that Madison’s approach to constitutional interpretation was not instrumental to his understanding of the ends of Congressional power, that “”respect for written limitations of authority was near the center of his [Madison’s revolutionary] creed,”” and that this commitment “”did not develop after 1789″” but was apparent even “”during the Confederation’s darkest years””—and indeed, throughout the period from 1780 to 1792.37 He supports these claims with numerous examples from the period from 1780 to 1792.38 Banning points out, for example, that Madison favored an amendment in 1781 to give Congress the power to coerce delinquent states (even though he believed that this power was implied in the Articles of Confederation) and initially opposed an effort to create a national bank in 1781 because he contended that the Articles of Confederation did not confer the power to create charters of incorporation on the national government. Banning also notes that Madison expressed his support for written limitations of authority in his public writings and in his speeches at the Constitutional Convention and in the Virginia Ratifying Convention.39 Thus, according to Banning, the arguments that Madison used in the First Federal Congress to oppose the creation of a national bank “”had been prefigured countless times through the preceding decade and on more than one occasion since the Constitution was approved.””40

Considered collectively, the numerous examples that Banning supplies in The Sacred Fire of Liberty and his other writings should forever put to rest the myth that Madison was a broad constructionist in the 1780s. Here, however, we can buttress Banning’s claim for consistency in this area by explicitly providing four additional generalizations about Madison’s approach to constitutional interpretation throughout this period that, in my estimation, follow from Banning’s interpretation and Madison’s writings.

First, Madison’s approach to constitutional interpretation was complex and subtle, involving not only respect for written limitations of governmental authority, but also the inevitability of construction in constitutional interpretation, the recognition of implied powers, and the necessity of some means of differentiating legitimate from illegitimate appeals to implied powers. Conversely put, Banning’s account and Madison’s speeches and writings emphatically do not suggest that Madison believed that constitutional interpretation was either an unproblematic or a mechanical act, that Madison had a desiccated view of the powers of the Articles of Confederation or the Constitution, or that he ever rejected the doctrine of implied powers. Indeed, Banning observes that Madison sometimes second-guessed himself and often agonized over how to proceed on matters of constitutional interpretation.41 Banning further observes that Madison’s profound respect for constitutional limitations on the powers of government was paralleled from the beginning of his career by an acceptance of the doctrine of implied powers. Madison’s “”ordinary inclination”” during his service in the Confederation Congress, Banning contends, “”was to start with charter definitions of the boundaries between the central government and the states and to insist on both the full assertion of the powers granted Congress and a genuine regard for the authority remaining with the states.””42 At times, such as when he was calling for the use of coercion to force delinquent states to pay their share of federal taxes or when he was fighting for measures relating to Congress’ power to conduct war, this approach led Madison to favor recognition of a limited category of implied powers. At other times, such as when he opposed the chartering of a national bank in 1781, this approach led him to fight against the expansion of Congressional authority.43 

Second, although Banning does not explicitly make this observation, his account suggests that Madison’s conception of constitutional interpretation did transform during the 1790s. During the 1790s, Hamilton’s efforts to use implied powers as a means of justifying the constitutionality of a national bank opened the door to what Banning calls “”usurpations by construction.””44 At this point, Madison countered Hamilton’s defense of implied powers by developing specific criteria for differentiating legitimate from illegitimate implied powers. Specifically, Madison came to the conclusion that to consider whether a power was implicit in the Constitution, an interpreter had to consider not only “”the degree of its incidentality to an express authority”” but also “”the degree of its importance,”” since the latter consideration also helped to  determine “”the probability or improbability of its being left to construction.””45 Here, Madison’s essential point was that important powers (such as the chartering of a national bank) were not likely to have been left to implication by the drafters of the document. In addition, it was at this time that Madison also first set forth his belief that “”the sense in which the constitution was understood and adopted”” was the proper standard for determining the constitutionality of specific proposals.46 Both Madison’s test for the legitimacy of implied powers and his support for originalism were novel. Neither had been in his intellectual armor in the 1780s, but both were also clearly consistent with his commitment to written limitations on the authority of the national government.

Third, Madison’s positions on implied powers and the necessary and proper clause were essentially consistent throughout this period. To be sure, Madison had different emphases at different times. In The Federalist No. 44, he emphasized the inevitability of construction, but in his speeches of 2 and 8 February 1791 against the constitutionality of the national bank he emphasized the problem of limiting construction and preventing it from being used to justify any power however incidental to the express powers of the Constitution. Nevertheless, the understanding of the necessary and proper clause that Madison presented in Federalist No. 44 was virtually identical to the one that he presented in his Congressional speeches of 1791. In Federalist No. 44, he defended the proposition that even if the necessary and proper clause had not been written into the Constitution “”all the particular powers requisite as means of executing the general powers would have resulted to the government by unavoidable implication.””47 In his speech before Congress, he pointed out that the necessary and proper clause was “”merely declaratory of what would have resulted by unavoidable implication, as the appropriate, and as it were, technical means of executing those powers.””48

A strong case can also be made that Madison held a consistent position on the constitutionality of a national bank. In 1781, he opposed chartering a national bank even though he believed that one was necessary because of his respect for written limitations on governmental charters. In 1787, he sought to give the national government the power to create charters of incorporation because this power was so important that it should not be left to implication. Thus, in 1791, Madison did not believe that it was legitimate to justify by implication the creation of a national bank because this was such a “”great and important”” power and because the Convention had rejected it and that the people in the state ratifying conventions had neither authorized nor expected to be exercised.49 As James Read has recently written, what this suggests is that Madison, unlike Hamilton, “”took very seriously what had been agreed upon”” by the people.50

Fourth, Madison’s approach to constitutional interpretation was distinct from—and indeed superior to—the slippery slope of Hamiltonian broad construction and the straight-jacket of Jeffersonian strict construction.51 Madison was really neither a “”broad”” nor a “”strict”” constructionist, and he certainly did not transform from one into the other. Like Hamilton, Madison accepted the inevitability of construction and the doctrine of implied powers, but unlike Hamilton, he supported only those implied powers that were “”evidently and necessarily involved in an express power.””52 Conversely, he did not believe that it was proper to use implication as a device for deriving constitutional powers and, unlike Hamilton, he also did not see the public good as the only restraint to federal power. But unlike Jefferson, Madison did not argue against the existence of implied powers, suggest that the Constitution could act as a straight-jacket, or imply that constitutional interpretation could ever approach a self-evident or mechanical act.53

Confronting the Revision:
Three Challenges to Banning’s Interpretation

In contrast to his claims that Madison held consistent understandings of political economy, the scope of federal power, and constitutional interpretation, however, Banning’s efforts to diminish the importance of Madison’s theory of the extended republic, his claims that Madison consistently supported “”the people’s active and continuing participation”” in the political system, and his contention that Madison was committed to a republican conception of liberty are more problematic.

First, as previously mentioned, Banning has argued that the tenth Federalist Paper has too frequently been seen as the key to the whole of Madison’s political thought. Excessive emphasis on this document at the expense of Madison’s other writings, as well as the tendency to interpret it through the perception of post-New Deal understandings of the role of the national government, have contributed to numerous misreadings of it and the contention that Madison was a Hamiltonian consolidationist.

Given the amount of interpretation that has been devoted to Madison’s theory, it would be hard to argue that the theory of an extended republic has not received enough attention. Banning is certainly also correct that “”the history of modern interest in the tenth Federalist Paper is too nearly the replacement of one misreading with another.”” Specifically, his contention that the argument for the election of elite representatives from expanded electoral districts was not Madison’s central point and that the extended republic was not part of an effort by Madison to consolidate power in the national government. As Banning points out, Madison fought to double the number of representatives twice during the Constitutional Convention—an outcome that would have significantly diminished the size of electoral districts. Furthermore, the argument for expanded electoral districts is clearly defended in Madison’s writings as a “”secondary and subsidiary”” point.54 Nor did he believe that a consolidated republic was either desirable or possible. His extended republic was a compound composed of a collection of small republics (the state governments) that retained the lion’s share of governmental powers and purposes. To the degree that these strictures provide a corrective against ahistorical interpretations of Madison’s theory and counter the endless commentary—much of it politically motivated—that looks to Madison’s theory of an extended republic as a foundational exposition of a contemporary political ideology, they are certainly welcome. 

Nevertheless, there are compelling reasons why an historically accurate interpretation of Madison’s theory places it at the center of his political thought.55 Banning is incorrect when he maintains that Madison did not hope to establish the national government as an impartial arbiter or administrator among the nation’s many interests and sections.56 Actually, not only was establishing the national government as an impartial administrator what Madison’s theory of an extended republic was all about, but impartiality was the heart of Madison’s conception of justice, and a concern for impartial justice provides yet another—indeed, perhaps the broadest and most foundational—thread of continuity between Madison’s goals in the 1780s and 1790s.57

To fully establish these claims, we need to use the same developmental approach that Banning advocates and first examine the construction of Madison’s theory. In particular, Madison constructed his theory of an extended republic as he thought through the problem of how to address the multiplicity, mutability and especially the injustices of state laws.58 Madison settled upon the idea of lodging a power in the national government to negate state laws “”in all cases whatsoever.”” Although this was the same power that the King had exercised (and abused) in relation to the colonies, Madison saw it as the only possible remedy for solving these problems. Nevertheless, Madison fully understood that the national government might develop an interest independent of the people. Thus, he believed that the national government should be controlled by the people, limited in its powers, and that the territory over which its power extended should be confined to a sphere in which the people could defend their rights if this became necessary. Even more important, he knew that the national government would operate on the principle of majority rule as the state governments had. If both the national and state governments operated on the principle of majority rule, he asked, then how could the national government be trusted to be sufficiently neutral to exercise the universal veto? Why would it not also be overtaken by majority factions in the same way that the state governments had in the mid-1780s?

Madison answered this question with his theory of an extended republic. An extended republic, he argued, would embrace a greater variety of interests than the state governments had, making the national government less likely than the state governments to be overtaken by an “”interested and overbearing majority.””59 In an extended republic, Madison believed, the national government would be sufficiently dependent on the people because of its elective basis to keep it from developing an interest adverse to the whole society, but it would be sufficiently neutral between the many interests of the nation to qualify it to exercise the universal negative.60

All of this is by now familiar to Madison scholars. But what is important here is that, contrary to what Banning explicitly states, the loss of the universal veto at the Convention did not end Madison’s efforts to establish the national government as an impartial or disinterested arbiter between the nation’s many interests. The loss of the universal veto meant that the national government would be unable to intervene directly within the states and protect the rights of individuals and minorities. This is why the loss of the negative was so devastating for Madison. Nevertheless, even after the loss of the universal negative, Madison continued to believe that the national government should still be an impartial administrator or disinterested arbiter in disputes between the nation’s many interests or sections, within the sphere of its limited powers.    

The evidence for this is extensive. Even as he made preparations to attend the First Congress, Madison called impartiality “”the vital principle of administration”” in republics.61 In his writings for the National Gazette and his speeches in the first Congresses between 1789 and 1792, Madison refined (or perhaps more fully revealed) his conception of justice as impartiality. Generally speaking, Madison understood impartiality as the equal protection of rights and the equal distribution of benefits and burdens. Impartial justice, he also contended, demanded that those who sacrificed the most should benefit, that those who benefited should sacrifice, and that the burden should be in proportion to the ability to pay. Thus, the poor should pay proportionally less than the rich. Conversely, impartiality was opposed to “”privilege”” and to “”interestedness””—especially to politicians who attempted to secure undue benefits for particular groups and who took part in decisions from which they directly benefitted.62

In the first Congress, Madison embodied the role of an impartial arbiter and admonished his colleagues to follow his example. In the tenth Federalist Paper, he had observed that “”the apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality.””63 In debates on impost duties, he sought to construct and convince his colleagues to adopt a scheme of taxation that distributed burdens among the products of the nation in such a way as to equally burden each interest and section of the nation but also not to overburden the poor. When New England representatives balked at accepting their proportion of the public burden, Madison rebuked them for seeking privilege and for their unwillingness to accept mutual concessions.64

Madison’s transformation on discrimination between secondary and original holders of the national debt was likewise driven by his understanding of justice as impartiality and his desire to have the national government serve as an impartial arbiter. In 1782, it will be remembered, Madison had condemned discrimination between original and current or secondary holders of government certificates. In 1790, however, he changed his mind and argued that the secondary holders should be given the highest market price that the securities had demanded plus interest, and the original holders should receive the difference between the market value and the face value. Part of Madison’s antagonism to paying only the current holders can doubtlessly be attributed to the vehement antipathy that he shared with most Virginians for speculation—an activity that, in Madison’s mind, was little different than gambling. Part of it also doubtlessly resulted from the fact that the debt had been transferred from ordinary citizens from all regions of the nation to monied interests in the Northeast.

Still, one of the central reasons that Madison believed that the original holders had to be compensated was because any other policy was an affront to impartial justice and because through this policy the government could show its “”honesty and disinterestedness.”” The original holders were the individuals who had sacrificed for the union at its time of greatest peril. Nevertheless, the original return from the securities that they had expected and which the government had promised had never been fulfilled. Instead, they had been “”forced”” by circumstances to accept depreciated securities as payment and then to sell them for whatever they could get on the market. If some recognition was not made of their claims, then not only would they have been treated unfairly originally, but they would now be asked to pay taxes to award those who had benefited from their misfortune.65 In general, in arguing for discrimination between the present and original holders of the debt, Madison was acting as an arbiter and following the dictum from the tenth Federalist that “”justice ought to hold the balance between”” the claims of conflicting parties.66 Holding the balance here certainly involved a recognition of the very real claims of present holders of the certificates, but justice also demanded that the claims of the original holders be at least partially fulfilled.

#page#

In the broadest possible sense, then, Madison’s understanding of justice as impartiality is a core thread connecting the 1780s with the 1790s. During the 1780s, interested majorities within the states and in Congress and sectional conflicts in Congress had threatened individual rights and prevented the impartial distribution of public benefits and burdens. During the 1790s, the Hamiltonian faction represented, in Madison’s eyes, an effort by a partisan and interested minority faction which sought special advantages for New Englanders in general and the manufacturing and mercantile occupations in particular. The threats of the 1780s and the 1790s emanated from different sources and had to be countered through different strategies. The threats of the 1780s came from majority factions and had to be addressed by distancing the people through various means from direct influence in the government. The threats of the 1790s came from a minority faction and had to be addressed by consolidating the will of the people against the government. Nevertheless, whether “”interested”” majorities or “”interested”” minorities posed the threat and whether the proper remedy was creating a gap between the people and their representatives or closing that gap, Madison’s understanding of the proper goal of government was the same: impartial administration that protected individual rights and treated all sections, interests, and classes of people in the United States fairly. Perhaps most importantly, Madison was never simply a friend of the rich or of the poor, or of creditors or debtors. Instead, he defended the impartial protection of all property, whether of the rich or the poor, the creditor or the debtor. If that proposition is taken seriousl