Madison was in fact an avid supporter of Republican
government, "in which the majority rule the minority."
In 1787, shortly before the convention, he writes George Washington
that the majority "alone have the right of decision."
Fifty years later he writes that the "characteristic rule"
of a republican system is that the "major will is the ruling
will." He fears that the majority might oppress the minority,
but he worried about this in the same way that he worried that
an elite in power might oppress the majority. No government is
perfect:
His commitment to majority rule does not allow
him to cede final authority to interpret the Constitution to the
judiciary. In a speech to the House of Representatives in 1789
he said:
Jefferson also supported majority rule and judicial
supremacy, and did so with more vehemence, as we might have expected.
During the trial of Aaron Burr for treason, President Jefferson
wrote:
These quotes below are intended as introduction
to Madison's thoughts on majority rule and judicial supremacy.
They are offered in more or less chronological order from earliest
to latest. Anyone who is interested in Madison's thoughts would
benefit from reading the complete documents from which the quotes
are drawn. If you know other quotes relevant to Madison and majority
rule or judicial supremacy, please suggest them to us.
There is no maxim, in my opinion, which is more liable to
be misapplied, and which therefore, needs more elucidation
than…that the interest of the majority is the political
standard of right and wrong. Taking the word "interest"
as synonymous with "ultimate happiness," in which
sense it is qualified with every necessary moral ingredient,
the proposition is no doubt true. But taking it in the popular
sense, as referring to immediate augmentation of property
and wealth, nothing can be more false. In the latter sense,
it would be the interest of the majority in very community
to despoil and enslave the minority of individuals; and in
a federal community, to make a similar sacrifice of the minority
of component States. In fact, it is only re-establishing,
under another name and a more specious form, force as the
measure of right….
Letter to James Monroe, Octr 5th,
1786 (Madison,
1865, I, pages 250-251)
I think myself that it will be expedient…to lay the
foundation of the new system in such a ratification by the
people themselves of the several States as will render it
clearly paramount to their Legislative authorities.
Letter to Thomas Jefferson, March
19, 1787 (Madison,
1865, I, page 285)
The great desideratum, which has not yet been
found for Republican Governments, seems to be some disinterested
and dispassionate umpire in disputes between different passions
and interests in the State. The majority, who alone have the
right of decision, have frequently an interest, real or supposed,
in abusing it. In Monarchies, the Sovereign is more neutral
to the interest and views of different parties; but unfortunately,
he too forms interests of his own, repugnant to those of the
whole.
Letter to George Washington, April
16, 1787 (Madison,
1865, I, page 288-289)
To give the new system its proper validity
and energy, a ratification must be obtained from the people,
and not merely from the ordinary authority of the Legislatures.
Letter to George Washington, April
16, 1787 (Madison,
1865, I, page 290)
The people at large was in his opinion the
fittest in itself [to select the Executive]. It would be as
likely as any that could be devised to produce an Executive
Magistrate of distinguished Character. The people generally
could only know & vote for some Citizen whose merits had
rendered him an object of general attention & esteem. There
was one difficulty however of a serious nature attending an
immediate choice by the people. The right of suffrage was much
more diffusive in the Northern than the Southern States; and
the latter could have no influence in the election, on the score
of the Negroes. The substitution of electors obviated this difficulty
and seemed on the whole to be liable to fewest objections.
Constitutional Convention, July 20,
1787 (Madison,
1900-1910, IV, pages 7-8)
Among the numerous advantages promised by a
well Union, none deserves to be more accurately developed than
its tendency to break and control the violence of faction. The
friend of popular governments, never finds himself so much alarmed
for their character and fate, as when he contemplates this dangerous
vice.
Federalist
No. 10
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: it
may clog the administration, it may convulse the society; but
it will be unable to execute and mask its violence under the
forms of the Constitution.
Federalist
No. 10
[A] pure democracy by which I mean, a Society
consisting of a small number of citizens, who assemble and administer
the Government in person, can admit of no cure for the mischiefs
of faction.
Federalist
No. 10
The two great points of difference between
a democracy and a republic are: first, the delegation of the
government, in the latter, to a small number of citizens elected
by the rest; secondly, the greater number of citizens, and greater
sphere of country, over which the latter may be extended.
Federalist
No. 10
In the next place, as each Representative will
be chosen by a greater number of citizens in the large than
in the small Republic, it will be more difficult for unworthy
candidates to practice with success the vicious arts, by which
elections are often carried; and the suffrages of the people
being more free, will be more likely to center on men who possess
the most attractive merit, and the most diffusive and established
characters.
Federalist
No. 10
The smaller the society, the fewer probably
will be the distinct parties and interests composing it; the
fewer the distinct parties and interests. the more frequently
will a majority be found of the same party; and the smaller
the number of individuals composing a majority, and the smaller
the compass within which they are placed, the more easily will
they concert and execute their plans of oppression. Extend the
sphere, and you take in a greater variety of interests; you
make it less probable that a 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 discover their own strength, and to act in unison
with each other.
Federalist
No. 10
In the extent and proper structure of the Union,
therefore, we behold a Republican remedy for the diseases most
incident to Republican Government.
Federalist
No. 10
[W]e may define a republic to be…a government
which derives all its powers directly or indirectly from the
great body of the people, and is administered by persons holding
their offices during pleasure, for a limited period, or during
good behavior…
Federalist
No. 39
Ambition must be made to counteract ambition.
The interest of the man must be connected with the constitutional
rights of the place. It may be a reflection on human nature,
that such devices should be necessary to control the abuses
of government. But what is government itself, but the greatest
of all reflections on human nature? If men were angels, no government
would be necessary. If angels were to govern men, neither external
nor internal controls on government would be necessary. In framing
a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government
to control the governed; and in the next place oblige it to
control itself.
Federalist
No. 51
As the cool and deliberate sense of the community
ought, in all governments, and actually will, in all free governments,
ultimately prevail over the views of its rulers; so there are
particular moments in public affairs when the people, stimulated
by some irregular passion, or some illicit advantage, or misled
by the artful misrepresentations of interested men, may call
for measures which they themselves will afterwards be the most
ready to lament and condemn. In these critical moments, how
salutary will be the interference of some temperate and respectable
body of citizens, in order to check the misguided career, and
to suspend the blow meditated by the people against themselves,
until reason, justice, and truth can regain their authority
over the public mind?
Federalist
No. 63
In the State Constitutions, and, indeed, in
the Federal one also, no provision is made for the case of a
disagreement in expounding them; and as the Courts are generally
lasr in making the decision, it results to them, by refusing
or not refusing to exercise a law, to stamp it with its final
character. This makes the Judiciary Department paramount to
the legislature, which was never intended and can never be proper.
Remarks on Mr. Jefferson's "Draught
of a Constitution for Virginia," sent to Mr. John Brown,
Kentucky, October, 1788 (Madison,
1865, I, page 194)
That there be prefixed to the constitution
a declaration —
That all power is originally vested in, and
consequently derived from the people.
That government is instituted, and ought
to be exercised for the benefit of the people; which consists
in the enjoyment of life and liberty, with the right of acquiring
and using property, and generally of pursuing and obtaining
happiness and safety.
That the people have an indubitable, unalienable,
and indefeasible right to reform or change their government,
whenever it be found adverse or inadequate to the purposes
of its institution.
Proposing
Bill of Rights to House, June 8, 1789
The prescriptions in favor of liberty, ought
to be levelled against that quarter where the greatest danger
lies, namely, that which possesses the highest prerogative of
power: But this [is] not found in either the executive or legislative
departments of government, but in the body of the people, operating
by the majority against the minority.
It may be thought all paper barriers against
the power of the community are too weak to be worthy of attention…yet,
as they have a tendency to impress some degree of respect for
them, to establish the public opinion in their favor, and rouse
the attention of the whole community, it may be one mean to
control the majority from those acts to which they might be
otherwise inclined.
Proposing
Bill of Rights to House, June 8, 1789
I acknowledge, in the ordinary course of government,
that the exposition of the laws and Constitution devolves upon
the judicial; but I beg to know upon what principle it can he
contended that any one department draws from the Constitution
greater powers than another, in marking out the limits of the
powers of the several departments. The Constitution is the charter
of the people in the government; it specifies certain great
powers as absolutely granted, and marks out the departments
to exercise them. If the constitutional boundary of either be
brought into question, I do not see that any one of these independent
departments has more right than another to declare their sentiments
on that point.
Speech before House of Representatives,
Elliot's Debates (in the American
Memory Collection of the Library of Congress), June
16, 1789, pages 382-383.
[W]hatever veneration might be entertained
for the body of men who formed our Constitution, the sense of
that body could never be regarded as the oracular guide in expounding
the Constitution. As the instrument came from them it was nothing
more than the draft of a plan, nothing but a dead letter, until
life and validity were breathed into it by the voice of the
people, speaking through the several State Conventions. If we
were to look, therefore; for the meaning of the instrument beyond
the face of the instrument, we must look for it, not in the
General Convention, which proposed, but in the State Conventions,
which accepted and ratified the Constitution.
Speech before House of Representatives,
Farrand's Records (in the American
Memory Collection of the Library of Congress), April
6, 1796, page 374.
[T]he right of electing the members of the
government constitutes more particularly the essence of a free
and responsible government. The value and efficacy of this right
depends on the knowledge of the comparative merits and demerits
of the candidates for public trust, and on the equal freedom,
consequently, of examining and discussing these merits and demerits
of the candidates respectively.
Madison's Report on the Virginia Resolutions
(in the American
Memory Collection of the Library of Congress), 1799-1800.
[W]hat a lesson to America and the world is
given by the efficacy of the public will, when there is no army
to be turned against it.
Letter to Thomas Jefferson, February
28, 1801 (Madison,
1865, II, page 171)
In a government whose vital principle is responsibility,
it never will be allowed that the Legislative and Executive
Departments should be compleatly subjected to the Judiciary,
in which that characteristic feature is so faintly seen.
Letter to Thomas Jefferson, June 4,
1810 (Madison,
1865, II, page 479)
I am not unaware that my belief, not to say
knowledge, of the views of those who proposed the Constitution,
and, what is of more importance, my deep impression as to the
views of those who bestowed on it the stamp of authority, may
influence my interpretation of the Instrument.
Letter to Henry St. George Tucker,
December 23, 1817 (Madison,
1865, III, page 54)
It has been the misfortune, if not the reproach,
of other nations, that their governments have not been freely
and deliberately established by themselves. It is the boast
of ours that such has been its source, and that it can be altered
by the same authority only which established it. It is a further
boast, that a regular mode of making proper alterations has
been providently inserted in itself.
Letter to Judge Roane, September 2,
1819 (Madison,
1865, III, page 145)
A Government like ours has so many safety-valves,
giving vent to overheated passions, that it carries within itself
a relief against the infirmities from which the best of human
Institutions cannot be exempt.
Letter to General La Fayette, November
25, 1820 (Madison,
1865, III, pages 189-191)
Such is the plastic facility of legislation,
that, not withstanding the firm tenure that judges have on their
offices, they can, by various regulations, be kept or reduced
within the paths of duty; more especially with the aid of their
amenability to the legislative tribunal in the form of impeachment.
It is not probable that the Supreme Court would long be indulged
in a career of usurpation opposed to the decided opinions and
policy of the legislature.
Nor do I think that Congress, even seconded
by the judicial power, can, without some change in the character
of the nation, succeed in durable violations of the rights and
authorities of the states. The responsibility of one branch
to the people, and of the other branch to the legislatures of
the States, seem to be, in the present stage. at least, of our
political history, an adequate barrier….But what is to
control Congress when backed, and even pushed on, by a majority
of their constituents?…Nothing within the pale of the
Constitution, but sound arguments and conciliatory expostulations
addressed both to Congress and to their constituents.
Letter to Judge Roan, May 6, 1821 (Madison,
1865, III, page 219)
As a guide in expounding and applying the provisions
of the Constitution, the debates and incidental decisions of
the Convention can have no authoritative character…[T]he
legitimate meanings of the Instrument must be derived from the
text itself; or if a key is to be sought elsewhere, it must
be…in the sense attached to it by the people in their
respective State Conventions, where it received all the authority
which it possesses.
Letter to Thomas Ritchie, September
15, 1821 (Madison,
1865, III, page 228)
If…the powers of the General Government
be carried to unconstitutional lengths, it will be the result
of a majority of the States and of the people, actuated by some
impetuous feeling, or some real or supposed interest, overruling
the minority, and not of successful attempts by the General
Government to overpower both.
Letter to John G. Jackson, Dec. 27,
1821 (Madison,
1865, III, pages 243-247)
The will of the nation being omnipotent for
right, is so for wrong also; and the will of the nation being
in the majority, the minority must submit to that danger of
oppression as an evil infinitely less than the danger to the
whole nation from a will independent of it.
Letter to Thomas Jefferson, Feby 17,
1825 (Madison,
1865, III, page 483)
Power, wherever lodged, is liable, more or
less, to abuse. In governments organized on Republican principles
it is necessarily lodged in the majority; which sometimes from
a deficient regard to justice, or an unconscious bias of interest,
as well as from erroneous estimates of public good, may furnish
just ground of complaint to the minority. But those who would
rush at once into disunion as an asylum against offensive measures
of the General Government, would do well to examine how far
there be such an identity of interests, of opinions, and of
feelings, present and permanent, throughout the states individually
considered, as, in the event of their separation, would in all
cases secure minorities against wrongful proceedings of majorities.
A recurrence to the period anterior [prior] to the adoption
of the existing Constitution, and to some of the causes which
led to it, will suggest salutary reflections on this subject.
Letter to Thomas Lehre (not sent),
August 2d, 1828 (Madison,
1865, III, page 635-6)
[M]en cannot be justly bound by laws, in making
which they have no share.
Letter to Joseph C. Cabell, January
5, 1829 (Madison,
1865, IV, page 2)
[T]he Constitution of the United States was
created by the people of the United States composing the respective
states, who alone had the right…
Outline, September, 1829 (Madison,
1865, IV, page 19)
The right of suffrage is a fundamental article
in republican constitutions. The regulation of it is, at the
same time, a task of particular delicacy. Allow the right exclusively
to property, and the rights of persons must be oppressed. The
feudal polity alone sufficiently proves it. Extend it equally
to all, and the rights of property or the claims of justice
may be overruled by a majority without property or interested
measures of injustice. Of this abundant proof is afforded by
other popular governments and, is not without examples in our
own, particularly in the laws impairing the obligations of contracts.
Notes on Suffrage, written at different
periods after his retirement from public life (Madison,
1865, IV, page 22)
In a just and free government…the rights
both of property and of persons ought to be effectually guarded.
Will the former be so in the case of a universal and equal suffrage?
Will the latter be so in the case of a suffrage confined to
the holders of property?
Notes on Suffrage, written at different
periods after his retirement from public life (Madison,
1865, IV, page 22)
Under every view of the subject, it seems indispensable
that the mass of the citizens should not be without a voice
in making the laws which they are to obey, and in choosing the
magistrates who are to administer them.
Notes on Suffrage, written at different
periods after his retirement from public life (Madison,
1865, IV, page 27)
No notice has been taken…of the fact
that the present charges of usurpations and abuses of power
is not that they measures of the Government violating the will
of the constituents, as was the case with the alien and sedition
acts, but that they are measures of a majority of the constituents
themselves, oppressing the minority through the forms of the
government. This distinction would lead to very different views
of the topics under discussion. It is connected with the fundamental
principles of Republican Government, and with the question of
the comparative dangers of oppressive majorities from the sphere
and structure of the General Government and from those of the
particular Governments.
Letter to E. Everett, April, 1830.
(Madison,
1865, IV, page 72-73)
As the people of the United States enjoy the
great merit of having established a system of Government on
the basis of human rights, and of giving it a form without example,
which, as they believe, unites the greatest national strength
with the best security for public order and individual liberty,
they owe to themselves, to their posterity and to the world,
a preservation of the system in its purity, its symmetry, and
its authenticity.
Supplement to the letter of November
27, 1830, to A. Stevenson (Madison,
1865, IV, page 138)
The two vital characteristics of the political
system of the United States are, first, that the Government
holds its powers by a charter granted to it by the people; second,
that the powers of government are formed in two grand divisions
— one vested in a Government over the whole community,
the other in a number of independent Governments over its component
parts. Hitherto charters have been written grants of privileges
by Governments to the people. Here they are written grants of
power by the people to their Governments.
Supplement to the letter of November
27, 1830, to A. Stevenson (Madison,
1865, IV, pages 138-139)
Another error has been in ascribing to the
intention of the Convention which formed the Constitution an
undue ascendancy in expounding it. Apart from the difficulty
of verifying that intention, it is clear, that if the meaning
of the Constitution is to be sought out of itself, it is not
in the proceedings of the body that proposed it, but in those
of the State Conventions, which gave it all the validity and
authority which it possesses.
Letter to N.P. Trist, December, 1831
(Madison,
1865, IV, page 211)
The only distinctive effect between the two
modes of forming a constitution by the authority of the people,
is, that if formed by them as embodied into separate communities,
as in the Constitution of the United States, a dissolution of
the constitutional compact would replace them in the condition
of separate communities, that being the condition in which they
entered into the compact; whereas, if formed by by the people
as one community, acting as such by a numerical majority, a
dissolution of the compact should reduce them to a state of
nature, as so many individual persons.
Letter to Daniel Webster, March 15,
1833 (Madison,
1865, IV, page 294)
Those who framed and ratified the Constitution
believed that, as power was less likely to be abused by majorities
in representative government than in democracies, where the
people assemble in mass, and less likely in the larger than
in the smaller communities under a representative government,
inferred also, that by dividing the powers of government, and
thereby enlarging the practicable sphere of government, unjust
majorities would be formed with still more difficulty, and be,
therefore, the less to be dreaded; and whatever may have been
the just complaint of unequal laws and sectional partialities
of the majority Government of the United States, it may be confidently
asserted that the abuses have been less frequent and less palpable
than those that disfigured the administrations of State Government,
while all the effective power of Sovereignty were separately
exercised by them. If bargaining interests and views have created
majorities under the federal system, what, it may be asked,
was the case in this respect antecedent to this system, and
what, but for this, would now be case in the State governments?
To ______ _____ [Majority Government],
1833 (Madison,
1865, IV, pages 328-329)
It has been said that all government is an
evil. It would be more proper to say that the necessity of any
government is a misfortune. This necessity, however, exists;
and the problem to be solved, is not what form of Government
is perfect, but which of the forms is least imperfect: and here
the general question must be between a republican government,
in which the majority rule the minority, and a government in
which a lesser number or the least number rule the majority.
If the republican form is, as all of us agree, to be preferred,
the final question must be, what is the structure of it that
will best guard against precipitate counsels and factious combinations
for unjust purposes, without a sacrifice of the fundamental
principle of republicanism?
To ______ _____ [Majority Government],
1833 (Madison,
1865, IV, page 329)
As the Legislative, Executive, and Judicial
departments of the United States are co-ordinate, and each equally
bound to support the Constitution, it follows that each must,
in the exercise of its functions, be guided by the text of the
Constitution according to its own interpretation of it; and,
consequently, that in the event of irreconciliable interpretations,
the prevalence of the one or the other department must depend
upon the nature of the case, as receiving its final decision
from the one or the other, and passing from that decision into
effect, without involving the functions of any other.
It is certainly due from the functionaries
of the several departments to pay much respect to the opinions
of each other; and, as far as official independence and obligation
will permit, to consult the means of adjusting differences and
avoiding practical embarrassments growing out of them, as must
be done in like cases between the different co-ordinate branches
of the Legislative department.
But notwithstanding this abstract view of the
co-ordinate and independent right of the three departments to
expound the Constitution, the Judicial department most familiarizes
itself to the public attention as the expositor, by the order
of its functions in relation to the other departments; and attracts
most the public confidence by the composition of the tribunal.
It is the Judicial department in which questions
of constitutionality, generally find their ultimate discussion
and operative decision…
To Mr. ______ _____ , 1834 (Madison,
1865, IV, pages 349-350)
The amount of this modified right of nullification
is, that a single State may arrest the operation of a law of
the United States, and institute a process which is to terminate
in the ascendency of a minority over a large minority in a republican
system, the characteristic rule of which is that the major will
is the ruling will.
Nullification, 1835-'6 (Madison,
1865, IV, page 410)
It has been asked whether every right has not
its remedy; and what other remedy exists, under the Government
of the United States, against usurpations of power, but a right
in the States individually to annul and resist them.
The plain answer is, that the remedy is the
same under the Government of the United States as under all
governments, established and organized under free principles.
The first remedy is in the checks provided among the constituted
authorities; that failing, the next is in the influence of the
ballot-box and hustings; that again failing, the appeal lies
to the power that made the Constitution, and can explain, amend,
or remake it. Should this resort also fail, and the power usurped
be sustained in its oppressive exercise on a minority by a majority,
the final course to be pursued by the minority must be a subject
of calculation, in which the degree of oppression, the means
of resistance, the consequences of its failure, and the consequences
of its success, must be the elements.
Nullification, 1835-'6 (Madison,
1865, IV, page 417)
