Madison and Jefferson (33 page)

For his contributions, Madison tapped his extensive notes on ancient and modern confederacies. Public debate spurred him on, and one antifederalist essayist in particular got to him. “The Newspapers in the middle & Northern States begin to teem with controversial publications,” he informed Edmund Randolph, “and one new combatant, with considerable address & plausibility, strikes at the foundation.” That writer, who signed his essays “Brutus,” made a strong case against any system of representation that encompassed an extended republic. It was after reading “Brutus” that Madison drafted
Federalist
10, and he continued to debate this formidable adversary in subsequent essays.
¹⁵

“Brutus” raised a concern that was common to the antifederalist critique: the Constitution created a government of “great and uncontrollable powers.” Its powers to tax, to regulate the militia and raise armies, to overrule state laws through the federal judiciary, and to increase its authority at will through the “necessary and proper” clause posed a danger to individual liberty and to the very survival of the states. But his main concern was
that in an extensive republic the people would lose touch with their rulers as their rulers lost touch with them.
¹⁶

Madison defended the extended republic by arguing that the distance between rulers and ruled actually improved the quality of representation: the scattering effect would make it impossible for an “overbearing majority” to exploit passions and impose its will. The representatives in Congress would be “fit” characters, whose views were “consonant with the public good.”

The notion of democracy has been made part of James Madison’s reputation as the “Father of the Constitution,” when democracy is, in fact, irrelevant to any understanding of his thinking in 1787–88. He disputed the idea advanced by “Brutus” (and maintained by Jefferson as well) that the only proper guardians of the public good were the people themselves—or representatives so sympathetic and beholden to the people that they mirrored their sentiments. Madison attributed little virtue to the force of popular opinion, as we understand it, instead embracing the social order that “Brutus” feared most: the creation of a separate, elite ruling class.
¹⁷

Madison was not about to win over any antifederalists. Few of his contemporaries sufficiently understood the argument about diffusion, and fewer still bothered to repeat it in the debates over ratification. Even Jefferson did not seem to fully grasp its meaning at first. Not until the twentieth century did scholars, in rediscovering
Federalist
10, transform Madison into a modern-day champion of pluralism. Downplaying his antiquated emphasis on virtue and elite rule, they presented the false idea that
Federalist
10 was seen as something vital at the time it was written.
¹⁸

The real impact of
The Federalist
is hard to measure. While many around the country claimed that the series, as a whole, was effective in demolishing the arguments of its enemies, all who made this claim were Madison and Hamilton partisans, writing to silence critics of the Constitution.
¹⁹
Only a small number of the essays were republished outside New York City; their turgid style limited
The Federalist
’s appeal to a narrow reading public. A Marylander remarked that it was not written “as a pamphlet ought to be” and failed to “force the attention, rouze the passions, or thrill the nerves.”

Its main target was New York, but even there the series received mixed reviews. Melancton Smith, the leading antifederalist spokesman in that state’s ratifying convention (who was possibly “Brutus” himself), dismissed “Publius” as irrelevant. Friends and foes alike found the work tiresome. A Philadelphian who signed his name “SQUIB” wished “Publius” would “rest his arm and let the people draw their breath for a little.” Entirely unimpressed with the scholarly pretense of the windy essays, he let a bit of verse
speak his mind: “His labour’d nothings, in so strange a stile, / Amaze th’unlearn’d, and make the learned smile.” “SQUIB’s” point was that the essays displayed empty erudition—the unlearned were bowled over, but the educated were not fooled.
²⁰

Madison made a point of getting copies of his essays into the hands of prominent Virginians, notably George Washington and Edmund Randolph. He was most eager to persuade Randolph to return to the federalist fold.
²¹
Madison had written for the New York newspapers with Virginia in mind, knowing he had one dragon to slay: the sixty-two-year-old George Mason, who had circulated “Objections to this Constitution” among a network of influential men inside and outside their state. After reading Mason’s laundry list of complaints, Madison was hot under the collar, writing to Washington that Mason seemed obsessed with minutiae and unable to put a “proper gloss” on the text of the Constitution.
²²

There was nothing in Mason’s written objections that Madison and his fellow delegates had not heard from him at the convention. Madison bristled in the letter to Washington, because he and Washington were kindred spirits, and Madison needed to vent. Washington himself would never quite reconcile with Mason, convinced that his neighbor’s objections were aimed at alarming southerners about some imagined northern power play. No matter what the issue at hand was, fear of a predatory North was a convenient refrain that worked effectively in Virginia. Mason’s maneuver proved to be a major problem for Madison, who watched uncomfortably as his state divided into rival camps.

At the same time as he was doing battle with Mason, Madison received reports that Patrick Henry was taking jabs at the Constitution and stirring up the Assembly. Madison was certain that Mason was supplying the fodder for Henry’s attacks. This was precisely what Madison meant when he theorized that the people followed their favorite leaders unthinkingly and could not be trusted with power. As he put it to Edmund Randolph: “Had yourself, Col. Mason, R.H. L[ee]., Mr. Henry & a few others, seen the Constitution in the same light with those who subscribed to it, I have no doubt that Virginia would have been as zealous & unanimous as she is now divided on the subject.”
²³

Madison took his first stab at Mason in
Federalist
38. He submitted that the relationship between the executive and the Senate was harmless. He reasoned, too, that a bill of rights was unnecessary because issues of rights had not arisen under the Articles of Confederation—not one of Madison’s most effective arguments. But Madison sidestepped Mason’s loudest complaint:
the notion that out-of-state tax collectors would invade Virginia and that in matters of commercial treaties the South was destined to become the pawn of the North. Mason imagined legislation being passed that would somehow undercut Virginia’s tobacco trade with England. Oliver Ellsworth had ridiculed him on this very point in a widely (and anonymously) published essay that reached into Virginia.

So why did Madison fail to weigh in and take apart Mason’s argument? Did he think that sectional rivalry was all right to introduce behind the closed doors of the convention, but was too combustible an issue to bring up in public afterward? Or was he embarrassed that Virginians should have to acknowledge their selfish provincialism in refusing to accommodate the interests of other states? Whatever the case, “Publius” refused to touch this question.
²⁴

But Madison did not dodge the highly controversial three-fifths clause. In
Federalist
54 he defended the computation of slave numbers in the apportionment of House seats. The timing was curious. Only two days before, a New York critic had pointed out that “three-fifths” existed solely to equalize the “loaves and fishes,” giving an artificial parity to North and South. It rewarded slave states for their “infecundity” and idleness. If southerners were given the privilege of counting each slave as three-fifths of a freeman, he reasoned, the northern states should be able to count “three-fifths of their live stock.”
²⁵

Whether or not Madison had access to this piece, he dismissed the charge that slaves were solely property. Instead, through the use of a legal fiction, he explained that the slave was of a “mixed character,” a person who was part property. He used the same expression in
Federalist
39. Mixed character was, for Madison, the key to the whole federal system. The American Union was no longer “a
confederacy
of sovereign States” but a “
consolidation
of the States” predicated on the states’ assent. The House of Representatives derived its powers from the people; the Senate derived its powers from the states; and the executive derived its powers from “a very compound source,” reflecting “coequal bodies politic.” The government, Madison wrote, “appears to be of a mixed character, presenting at least as many
federal
as
national
features.” The Constitution had created a polity “neither wholly
national
nor wholly
federal.
” He was drawing upon the distinction Oliver Ellsworth had made: in certain matters the states rule; in others, the national government decides for all. The government’s “mixed character” was how it would preserve domestic peace. Madison had not embraced Ellsworth’s argument in Philadelphia, but it resonated with him now.

As to the mixed character embodied in the slave, Madison applied a different logic, readily admitting that slavery was an arbitrary and unnatural condition. Laws had “transformed the negroes into subjects of property,” he explained, before making the startling admission—startling for a Virginian—that their condition might be altered: “If the laws were to restore rights which have been taken away, the negroes could no longer be refused an equal share of representation with other inhabitants.” If slaves were potentially free, legal inhabitants of the United States, then the Constitution had to recognize such an outcome: one cannot treat exclusively as property the person who might one day possess all the rights of citizenship.

The implications of Madison’s legal thinking are substantial. Slaves could acquire legal identities similar to those of other inhabitants of the nation who were dependents: women, children, and aliens. (Not accidentally, it is called “emancipation” when a male child comes of age.) All of them lacked the full rights claimed by citizens. In Madison’s construction, the peculiar legal nature of slaves had led to an “expedient” compromise—the three-fifths rule. The slave, then, was a strange hybrid, “debased by servitude below the equal level of free inhabitants, which regards the
slave
as divested of two fifth of man.”

We should pause for a moment to consider how the logic worked, or didn’t work. After just having, in effect, scheduled the end of the overseas slave trade for the year 1808, twenty years after adoption of the Constitution, politicians might have seized upon the calculations of “Publius” and pressed for a future date at which to convey “free inhabitant” status to the remainder of those born into slavery. Whether he realized it or not, Madison had devised a
constitutional
basis for the emancipation of slaves. The way he wrote about slavery, race almost appeared irrelevant: civil law had transformed African Americans into a species of property, and natural law had nothing to do with their status.
²⁶

His intellectual argument sidestepped the reality on the ground, of course. The indebted southern planter was anxious about the fluctuating value of his crop, and about preserving a certain quality of life; the human drama of slavery was tied to his fears. If Madison’s “mixed character” thinking was a theoretical exercise, it was also divorced from the elaborate taxonomy of race that Jefferson had spelled out in
Notes on Virginia.

For Jefferson, differences were dictated by nature. He never strayed from this judgment. But Jefferson’s logic was also a series of psychological justifications. He regarded the original crime of capture, kidnapping, and enslavement
as experiences indelibly imprinted on the African American and comparable, in this way, to skin pigmentation. The memory of abuse, he allowed himself to think, made it dangerous for manumission to occur without a complete separation of the races. Jefferson saw slavery as the suspension of a state of war—race war—that would break out at some point after mass emancipation.
²⁷

While both Virginians’ formulations were fairly abstract, Jefferson’s was framed by emotions he assumed were felt by both whites and blacks. Madison’s dispassionate
Federalist
54 saw slave status as something arbitrary and temporary. His “mixed character” designation for slaves could hardly have been comforting to southerners who read his essay, and were asked to accept the idea that only a legal fiction separated slaves from freemen. While Madison appears to have drawn up his argument for hypothetical purposes, we must recall that in the midst of the Revolution, he had been prepared to grant freedom to the slaves who served in the Virginia militia.

Madison read
Notes on Virginia
while engaged in writing his
Federalist
essays. Overlooking his friend’s racial theories, he drew on Jefferson’s words in an unrelated context to point to the danger of legislative tyranny. Naming the U.S. minister to France in the text of
Federalist
48, Madison wrote: “The authority in support of [Virginia’s state constitution] is Mr. Jefferson, who besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it.” Madison’s point: The constitution-writing Governor Jefferson had understood—though Ambassador Jefferson apparently did not—that “173 despots would surely be as oppressive as one.” Instead of criticizing Jefferson, Madison let Jefferson’s language in
Notes
criticize Jefferson and the many other Virginians who, in 1787–88, reflexively warned about tyranny from the top down.

Madison opened
Federalist
49 with a second reference to the author of “that valuable work,”
Notes on Virginia.
This time it was to register disapproval of Jefferson’s proposal for constitutional revision. Jefferson favored the calling of a popular convention at times when two of the three branches of Virginia’s state government agreed that fundamental change was needed. Madison allowed that there was “great force in this reasoning,” but he still had “insuperable objections” to it. If a constitution could be altered too easily, he said, it would become a mere tool of party politics. Regular conventions introduced “the danger of disturbing the public tranquility by interesting too strongly the public passions.” Once again it was Madison’s conviction that the people should be kept at bay.
²⁸