With the Constitutional Convention ending on
the 17th of September, 1787, James Madison was at liberty to interpret
the document to his close friend, Thomas Jefferson, who was in
Paris thoughout the Convention and critical phase of the ratification
process.
James Madison's explanations are of interest
for several reasons. First, all of the discussion is in one document,
unlike the Federalist Papers, where the arguments are in a large
number of separate documents. Second, Madison feels free writing
to Jefferson to criticize one aspect of the Constitution: Congress
was not given a negative (veto) over state laws. The Federalist
Papers presented arguments in favor of the Constitution, and no
faults were admitted. Third, Madison again presents his arguments
concerning the dangers of factions and the advantages of a large
republic in curbing faction. This argument is to gain lasting
and deserved fame with the publication of the Federalist
Papers, specifically Number
10.
Finally, this letter may be thought of James
Madison's first and perhaps critical effort to secure ratification
of the Constitution. Jefferson's support could not be assumed:
he, unlike Madison, was not upset by Shay's rebellion, and he
strongly objected to the lack of a Bill of Rights. Yet his support,
or at least an absence of opposition, was essential for the ratification.
If Jefferson had opposed the ratification or supported the call
for another convention, Madison would have had to overcome the
opposition of Thomas Jefferson, George Mason, Patrick Henry, and
James Monroe to secure Virginia's ratification. It is difficult
to imagine that Madison could have succeeded. If Virginia had
not ratified, then New York would likely have refused to ratify,
and the new Union would have failed without these two key states.
This one seldom read letter thus may be the single
most important letter in James Madison's career and perhaps one
of the most important in the history of the United States.
James Madison Explains the Constitution
to Thomas Jefferson
You will herewith receive the result of the Convention,
which continued its session till the 17th of September. I take
the liberty of making some observations on the subject, which
will help to make up a letter, if they should answer no other
purpose.
It appeared to be the sincere and unanimous wish
of the Convention to cherish and preserve the Union of the States.
No proposition was made, no suggestion was thrown out, in favor
of a partition of the Empire into two or more Confederacies.
It was generally agreed that the objects of the
Union could not be secured by any system founded on the principle
of a confederation of Sovereign States. A voluntary observance
of the federal law by all the members could never be hoped for.
A compulsive one could evidently never be reduced to practice,
and if it could, involved equal calamities to the innocent and
guilty, the necessity of a military force, both obnoxious and
dangerous, and, in general, a scene resembling much more a civil
war than the administration of a regular Government.
Hence was embraced the alternative of a Government
which, instead of operating on the States, should operate without
their intervention on the individuals composing them; and hence
the change in the principle and proportion of representation.
This ground-work being laid, the great objects
which presented themselves were: 1. To unite a proper energy in
the Executive, and a proper stability in the Legislative departments,
with the essential characters of Republican Government. 2. To
draw a line of demarkation which would give to the General Government
every power requisite for general purposes, and leave to the States
every power which might be most beneficially administered by them.
3. To provide for the different interests of different parts of
the Union. 4. To adjust the clashing pretensions of the large
and small States. Each of these objects was pregnant with difficulties.
The whole of them together formed a task more difficult than can
be well conceived by those who were not concerned in the execution
of it. Adding to these considerations the natural diversity of
human opinions on all new and complicated subjects, it is impossible
to consider the degree of concord which ultimately prevailed as
less than a miracle.
The first of these objects, as respects the Executive,
was peculiarly embarrassing. On the question whether it should
consist of a single person or a plurality of co-ordinate members,
on the mode of appointment, on the duration in office, on the
degree of power, on the re-eligibility, tedious and reiterated
discussions took place. The plurality of co-ordinate members had
finally but few advocates. Governor [of Virginia] Randolph was
at the head of them. The modes of appointment proposed were various:
as by the people at large, by electors chosen by the people, by
the Executives of the States, by the Congress; some preferring
a joint ballot of the two Houses; some, a separate concurrent
ballot, allowing to each a negative on the other house; some,
a nomination of several candidates by one House, out of whom a
choice should be made by the other. Several other modifications
were started. The expedient at length adopted seemed to give pretty
general satisfaction to the members. As to the duration in office,
a few would have preferred a tenure during good behaviour; a considerable
number would have done so in case an easy and effectual removal
by impeachment could be settled.
It was much agitated whether a long term, seven
years for example, with a subsequent and perpetual ineligibility,
or a short term, with a capacity to be re-elected, should be fixed.
In favor of the first opinion were urged the danger of a gradual
degeneracy of re-elections from time to time, into first a life
and then hereditary tenure, and the favorable effect of an incapacity
to be reappointed on the independent exercise of the Executive
authority. On the other side it was contended that the prospect
of necessary degradation would discourage the most dignified characters
from aspiring to the office; would take away the principal motive
to the faithful discharge of its duties--the hope of being rewarded
with a reappointment; would stimulate ambition to violent efforts
for holding over the Constitutional term; and instead of producing
an independent administration and a firmer defense of the constitutional
rights of the department, would render the officer more indifferent
to the importance of a place which he would soon be obliged to
quit forever, and more ready to yield to the encroachments of
the Legislature, of which he might again be a member.
The questions concerning the degree of power
turned chiefly on the appointment to offices, and the controul
on the Legislature. An absolute appointment to all offices, to
some offices, to no offices, formed the scale of opinions on the
first point. On the second, some contended for an absolute negative,
as the only possible mean of reducing to practice the theory of
a free Government, which forbids a mixture of the Legislative
and Executive powers. Others would be content with a revisionary
power, to be overruled by three-fourths of both Houses. It was
warmly urged that the judiciary department should be associated
in the revision. The idea of some was, that a separate revision
should be given to the two departments; that if either objected,
two-thirds, if both, three-fourths, should be necessary to overrule.
In forming the Senate, the great anchor of the
government, the questions, as they come within the first object,
turned mostly on the mode of appointment, and the duration of
it. The different modes proposed were: 1. By the House of Representatives.
2. By the Executive. 3. By electors chosen by the people for the
purpose. 4. By the State Legislatures. On the point of duration,
the propositions descended from good behaviour to four years,
through the intermediate terms of nine, seven, six, and five years.
The election of the other branch was first determined to be triennial,
and afterwards reduced to biennial.
The second object, the due partition of power
between the General and local Governments, was perhaps, of all,
the most nice and difficult. A few contended for an entire abolition
of the States; some, for indefinite power of Legislation in the
Congress, with a negative on the laws of the States; some, for
such a power without a negative; some, for a limited power of
legislation, with such a negative; the majority, finally, for
a limited power without the negative. The question with regard
to the negative underwent repeated discussions, and was finally
rejected by a bare majority. As I formerly intimated to you my
opinion in favor of this ingredient, I will take this occasion
of explaining myself on the subject. Such a check on the States
appears to me necessary: 1. To prevent encroachments on the General
authority. 2. To prevent instability and injustice in the legislation
of the States.
1. Without such a check in the whole over the
parts, our system involves the evil of imperia in imperio. If
a complete supremacy somewhere is not necessary in every society,
a controuling power at least is so, by which the general authority
may be defended against encroachments of the subordinate authorities,
and by which the latter may be restrained from encroachments on
each other. If the supremacy of the British Parliament is not
necessary, as has been contended, for the harmony of that Empire,
it is evident, I think, that without the royal negative, or
some equivalent controul, the unity of the system would be
destroyed. The want of some such provision seems to have been
mortal to the antient confederacies, and to be the disease of
the modern. Of the Lycian confederacy little is known. That of
the Amphictyons is well known to have been rendered of little
use whilst it lasted, and, in the end, to have been destroyed
by the predominance of the local over the federal authority. The
same observation may be made, on the authority of Polybius, with
regard to the Achaean League. The Helvetic System scarcely amounts
to a confederacy, and is distinguished by too many peculiarities
to be a ground of comparison.
The case of the United Netherlands is in point.
The authority of a Statdholder, the influence of a standing Army,
the common interest in the conquered possessions, the pressure
of surrounding danger, the guarantee of foreign powers, are not
sufficient to secure the authority and interest of the generality
against the anti-federal tendency of the provincial sovereignties.
The German Empire is another example. A Hereditary chief, with
vast independent resources of wealth and power, a federal Diet,
with ample parchment authority, a regular Judiciary establishment,
the influence of the neighbourhood of great and formidable nations,
have been found unable either to maintain the subordination of
the members, or to prevent their mutual contests and encroachments.
Still more to the purpose is our own experience, both during the
war and since the peace. Encroachments of the States on the general
authority, sacrifices of national to local interests, interferences
of the measures of different States, form a great part of the
history of our political system.
It may be said that the new Constitution is founded
on different principles, and will have a different operation.
I admit the difference to be material. It presents the aspect
rather of a feudal system of republics, if such a phrase may be
used, than of a Confederacy of independent States. And what has
been the progress and event of the feudal Constitutions? In all
of them a continual struggle between the head and the inferior
members, until a final victory has been gained, in some instances
by one, in others, by the other of them. In one respect, indeed,
there is a remarkable variance between the two cases. In the feudal
system, the sovereign, though limited, was independent; and having
no particular sympathy of interests with the great Barons, his
ambition had as full play as theirs in the mutual projects of
usurpation. In the American Constitution, the general authority
will be derived entirely from the subordinate authorities. The
Senate will represent the States in their political capacity;
the other House will represent the people of the States in their
in their individual capacity. The former will be accountable to
their constituents at moderate, the latter at short periods. The
President also derives his appointment from the States, and is
periodically accountable to them. This dependence of the General
on the local authorities seems effectually to guard the latter
against any dangerous encroachments of the former; whilst the
latter, within their respective limits, will be continually sensible
of the abridgement of their power, and be stimulated by ambition
to resume the surrendered portion of it.
We find the representatives of Counties and Corporations
in the Legislatures of the States much more disposed to sacrifice
the aggregate interest, and even authority, to the local views
of their constituents, than the latter to the former. I mean not
by these remarks to insinuate that an esprit de corps will not
exist in the National Government, or that opportunities may not
occur of extending its jurisdiction in some points. I mean only
that the danger of encroachments is much greater from the other
side, and that the impossibility of dividing powers of legislation
in such a manner as to be free from different constructions by
different interests, or even from ambiguity in the judgement of
the impartial, requires some such expedient as I contend for.
Many illustrations might be given of this impossibility. How long
has it taken to fix, and how imperfectly is yet fixed, the legislative
power of corporations, though that power is subordinate in the
most compleat manner? The line of distinction between the power
of regulating trade and that of drawing revenue from it, which
was once considered the barrier of our liberties, was found, on
fair discussion, to be absolutely undefinable. No distinction
seems to be more obvious than that between spiritual and temporal
matters. Yet, wherever they have been made objects of Legislation,
they have clashed and contended with each other, till one or the
other has gained the supremacy. Even the boundaries between the
Executive, Legislative, and judiciary powers, though in general
so strongly marked in themselves, consist, in many instances,
of mere shades of difference.
It may be said that the Judicial authority, under
our new system, will keep the States within their proper limits,
and supply the place of a negative on their laws. The answer is,
that it is more convenient to prevent the passage of a law than
to declare it void after it is passed; that this will be particularly
the case where the law aggrieves individuals, who may be unable
to support an appeal against a State to the Supreme Judiciary;
that a State which would violate the Legislative rights of the
Union would not be very ready to obey a Judicial decree in support
of them; and that a recurrence to force, which, in the event of
disobedience, would be necessary, is an evil which the new Constitution
meant to exclude as far as possible.
2. A Constitutional negative on the laws of the
States seems equally necessary to secure individuals against encroachments
on their rights. The mutability of the laws of the States is found
to be a serious evil. The injustice of them has been so frequent
and so flagrant as to alarm the most stedfast friends of Republicanism.
I am persuaded I do not err in saying that the evils issuing from
these sources contributed more to that uneasiness which produced
the Convention, and prepared the public mind for a general reform,
than those which accrued to our national character and interest
from the inadequacy of the Confederation to its immediate objects.
A reform, therefore, which does not make provision for private
rights, must be materially defective. The restraints against paper
emissions and violations of contracts are not sufficient. Supposing
them to be effectual as far as they go, they are short of the
mark. Injustice may be effected by such an infinitude of legislative
expedients, that where the disposition exists, it can only be
controuled by some provision which reaches all cases whatsoever.
The partial provision made supposes the disposition which will
evade it.
It may be asked how private rights will be more
secure under the Guardianship of the General Government than under
the State Governments, since they are both founded on the republican
principle which refers the ultimate decision to the will of the
majority, and are distinguished rather by the extent within which
they will operate, than by any material difference in their structure.
A full discussion of this question would, if I mistake not, unfold
the true principles of Republican Government, and prove, in contradiction
to the concurrent opinions of the theoretical writers, that this
form of Government, in order to effect its purposes, must operate
not within a small but an extensive sphere. I will state some
of the ideas which have occurred to me on this subject.
Those who contend for a simple democracy, or
a pure republic, actuated by the sense of the majority, and operating
within narrow limits, assume or suppose a case which is altogether
fictitious. They found their reasoning on the idea that the people
composing the Society enjoy not only an equality of political
rights, but that they have all precisely the same interests and
the same feelings in every respect. Were this in reality the case,
their reasoning would be conclusive. The interest of the majority
would be that of the minority also; the decisions could only turn
on mere opinion concerning the good of the whole, of which the
major voice would be the safest criterion; and within a small
sphere, this voice could be most easily collected, and the public
affairs most accurately managed.
We know, however, that no society ever did, or
can, consist of so homogeneous a mass of Citizens. In the Savage
state, indeed, an approach is made towards it, but in that state
little or no Government is necessary. In all civilized societies,
distinctions are various and unavoidable. A distinction of property
results from that very protection which a free Government gives
to unequal faculties of acquiring it. There will be rich and poor;
creditors and debtors; a landed interest, a monied interest, a
mercantile interest, a manufacturing interest. These classes may
again be subdivided according to the different productions of
different situations and soils, and according to the different
branches of commerce and of manufactures. In addition to these
natural distinctions, artificial ones will be founded on accidental
differences in political, religious, or other opinions, or an
attachment to the persons of leading individuals. However erroneous
or ridiculous these grounds of dissention and faction may appear
to the enlightened Statesman or the benevolent philosopher, the
bulk of mankind, who are neither Statesmen nor philosophers, will
continue to view them in a different light.
It remains, then, to be enquired, whether a majority
having any common interest, or feeling any common passion, will
find sufficient motives to restrain them from oppressing the minority.
An individual is never allowed to be a judge, or even a witness,
in his own cause. If two individuals are under to bias of interest
or enmity against a third, the rights of the latter could never
be safely referred to the majority of the three. Will two thousand
individuals be less apt to oppress one thousand, or two hundred
thousand one hundred thousand?
Three motives only can restrain in such cases:
1. A prudent regard to private or partial good, as essentially
involved in the general and permanent good of the whole. This
ought, no doubt, to be sufficient of itself. Experience, however,
shews that it has little effect on individuals, and perhaps still
less on a collection of individuals, and least of all on a majority
with the public authority in their hands. If the former are ready
to forget that honesty is the best policy, the last do more. They
often proceed on the converse of the maxim, that whatever is politic
is honest. 2. Respect for character. This motive is not found
sufficient to restrain individuals from injustice, and loses its
efficacy in proportion to the number which is to divide the pain
or the blame. Besides, as it has reference to public opinion,
which is that of the majority, the standard is fixed by those
whose conduct is to be measured by it. 3. Religion. The inefficacy
of this restraint on individuals is well known. The conduct of
every popular assembly, acting on oath, the strongest of religious
ties, shews that individuals join without remorse in acts against
which their consciences would revolt, if proposed to them, separately,
in their closets. When, indeed, Religion is kindled into enthusiasm,
its force, like that of other passions, is increased by the sympathy
of a multitude. But enthusiasm is only a temporary state of Religion,
and whilst it lasts will hardly be seen with pleasure at the helm.
Even in its coolest state, it has been much oftener a motive to
oppression that a restraint from it.
If, then, there must be different interests and
parties in society, and a majority, when united by a common interest
or passion, cannot be restrained from oppressing the minority,
what remedy can be found in a republican Government, where the
majority must ultimately decide, but that of giving such an extent
to its sphere, that no common interest or passion will be likely
to unite a majority of the whole number in an unjust pursuit?
In a large society, the people are broken into so many interests
and parties, that a common sentiment is less likely to be felt,
and the requisite concert less likely to be formed, by a majority
of the whole. The same security seems requisite for the civil
as for the religious rights of individuals. If the same sect form
a majority, and have the power, other sects will be sure to be
depressed. Divide et impera, the reprobated axiom of tyranny is,
under certain qualifications, the only policy by which a republic
can be administered on just principles.
It must be observed, however, that this doctrine
can only hold within a sphere of a mean extent. As in too small
a sphere oppressive combinations may be too easily formed against
the weaker party, so in too extensive a one a defensive concert
may be rendered too difficult against the oppression of those
entrusted with the administration. The great desideratum in Government
is so to modify the sovereignty as that it may be sufficiently
neutral between different parts of the society to control one
part from invading the rights of another, and at the same time
sufficiently controlled itself from setting up an interest adverse
to that of the entire society. In absolute monarchies, the prince
may be tolerably neutral towards different classes of his subjects,
but may sacrifice the happiness of all to his personal ambition
or avarice. In small republics, the sovereign will is controlled
from such a sacrifice of the entire society, but is not sufficiently
neutral towards the parts composing it. In the extended Republic
of the United States, the General Government would hold a pretty
even balance between the parties of particular States, and be
at the same time sufficiently restrained, by its dependence on
the community, from betraying its general interests.
Begging pardon for this immoderate digression,
I return to the third object above mentioned, the adjustments
of the different interests of different parts of the continent.
Some contended for an unlimited power over trade, including exports
as well as imports, and over slave as well as other imports; some,
for such a power, provided the concurrence of two-thirds of both
Houses were required; some, for such a qualification of the power,
with an exemption of exports and slaves; others, for an exemption
of exports only. The result is seen in the Constitution. South
Carolina and Georgia were inflexible on the point of the Slaves.
The remaining object created more embarrassment,
and a greater alarm for the issue of the Convention, than all
the rest put together. The little States insisted on retaining
their equality in both branches, unless a compleat abolition of
the State Governments should take place; and made an equality
in the Senate a sine qua non. The large States, on the other hand,
urged that as the new Government was to be drawn principally from
the people immediately, and was to operate directly on them, not
on the States; and, consequently, as the States would lose that
importance which is now proportioned to the importance of their
voluntary compliance with the requisitions of Congress, it was
necessary that the representation in both Houses should be in
proportion to their size. It ended in the compromise which you
will see, but very much to the dissatisfaction of several members
from the large States.
It will not escape you that three names only
from Virginia are subscribed to the act. Mr. Wythe did not return
after the death of his lady. Doctor McClurg left the Convention
some time before the adjournment. The Governor [Randolph] and
Col. Mason refused to be parties to it. Mr. Gerry was the only
other member who refused. The objections of the Governor turn
principally on the latitude of the general powers, and on the
connection established between the President and the Senate. He
wished that the plan should be proposed to the States, with liberty
to them to suggest alterations, which should all be referred to
another General Convention, to be incorporated into the plan as
far as might be judged expedient. He was not inveterate in his
opposition, and grounded his refusal to subscribe pretty much
on his unwillingness to commit himself, so as not to be at liberty
to be governed by further lights on the subject.
Col. Mason left Philadelphia in an exceeding
ill humor indeed. A number of little circumstances, arising in
part from the impatience which prevailed towards the close of
the business, conspired to whet his acrimony. He returned to Virginia
with a fixed disposition to prevent the adoption of the plan,
if possible. He considers the want of a Bill of Rights as a fatal
objection. His other objections are to the substitution of the
Senate in place of an Executive Council, and to the powers vested
in that body; to the powers of the Judiciary; to the vice president
being made president of the Senate; to the smallness of the number
of Representatives; to the restriction on the States with regard
to ex post facto laws; and most of all, probably, to the power
of regulating trade by a majority only of each House. He has some
other lesser objections. Being now under the necessity of justifying
his refusal to sign, he will, of course, muster every possible
one. His conduct has given great umbrage to the County of Fairfax,
and particularly to the Town of Alexandria. He is already instructed
to promote in the Assembly the calling a Convention, and will
probably be either not deputed to the Convention, or be tied up
by express instructions. He did not object in general to the powers
vested in the National Government so much as the modification.
In some respects he admitted that some further powers would have
improved the system. He acknowledged, in particular, that a negative
on the State laws and the appointment of the State Executives
ought to be ingredients; but supposed that the public mind would
not now bear them, and that experience would hereafter produce
these amendments.
Excerpted from letter
to Thomas Jefferson, October 24, 1787 (Madison
1865, I, pages 343 to 357).
Transcribed into HTML
format by James Madison University from Madison, James. 1865.
Letters and Other Writings of James Madison, Published
by order of Congress. 4 volumes. Edited by Philip R. Fendall.
Philadelphia: Lippincott. Permission to use this page should be
obtained from: Dr. Devin Bent (devin@bents.net)
