James Madison and the Spirit of Republican Self-Government

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James Madison and the Spirit of Republican Self-Government

In the first study that combines an in-depth examination of James Madison’s National Gazette essays of 1791–92 with a study of The Federalist, Colleen A. Sheehan traces the evolution of Madison’s conception of the politics of communication and public opinion throughout the Founding period, demonstrating how “the sovereign public” would form and rule in America. Contrary to those scholars who claim that Madison dispensed with the need to form an active and virtuous citizenry, Sheehan argues that Madison’s vision for the new nation was informed by the idea of republican self-government, whose manifestation he sought to bring about in the spirit and way of life of the American people. Madison’s story is “the story of an idea” – the idea of America. Colleen A. Sheehan is Professor of Political Science at Villanova University and has served in the Pennsylvania House of Representatives. She is the coeditor of Friends of the Constitution: Writings of the Other Federalists, 1787–1788, and author of numerous articles on the American Founding and eighteenth-century political and moral thought; these have appeared in journals such as the William and Mary Quarterly, American Political Science Review, Review of Politics, and Persuasions: The Jane Austen Journal.

For Jack

James Madison and the Spirit of Republican Self-Government

COLLEEN A. SHEEHAN Villanova University

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521898744 © Colleen A. Sheehan 2009 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2009

ISBN-13

978-0-511-47942-7

eBook (EBL)

ISBN-13

978-0-521-89874-4

hardback

ISBN-13

978-0-521-72733-4

paperback

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

Acknowledgments List of Abbreviations for Sources Preface Introduction: Madison’s Legacy

page vii xi xiii 1

1 2

Republican Opposition The Federalist Agenda

15 31

3 4

Madison and the French Enlightenment The Commerce of Ideas

57 84

5 6 7

The Politics of Public Opinion Madison and Jefferson: An Appeal to the People The Spirit of Republican Government

107 124 156

Epilogue: The Philosopher’s Stone and the Poet’s Reprise

176

Bibliography Index

185 197

v

Acknowledgments

This book has been a long time in the making, and I have incurred a great many debts along the way to its completion. The Earhart Foundation, the James Madison Program in American Ideals and Institutions of Princeton University, the National Endowment for the Humanities, and Villanova University generously supported various stages of my research. I particularly wish to thank David Kennedy, Ingrid A. Gregg, Robby George, Bruce Cole, and Michael Poliakoff for their encouragement and support of this project. Bente Polites, Special Collections Librarian of the Falvey Memorial Library of Villanova University, was critical to the progress of this book. Only with Bente’s advice and assistance was I able to advance my research on French Enlightenment thinkers, especially Jacques Peuchet and Jean Jacques Barth´elemy. I am also grateful to Andrew Bausch, Laura Butterfield, and Clyde Ray for their able research assistance, and to Douglas Rice and Luke Perez for their kind help in proofreading the manuscript. John Doody, Lance Banning, William Allen, Michael McGiffert, Henry Olsen, Michael Fiore, Michelle Gorman, Wight Martindale, and Darren Staloff read portions of the manuscript and kindly offered recommendations for improvement. I am especially grateful to Alan Gibson, Ralph Lerner, and Paul Rahe, who reviewed the entire manuscript and offered many perceptive and immensely helpful comments and suggestions. I am deeply appreciative of the time they so generously gave and the knowledge they freely shared to make this a better work. Over the many years that I have studied the American Founding, I owe the most to two scholars and friends: William B. Allen and Lance Banning. While Bill Allen did not introduce me to the study of the early Republic, he is a large part of the reason that I continued to pursue my interest in Madison and the American Founding so many years ago. Bill is an excellent vii

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scholar and a superb teacher and mentor; our conversations over the years are really one conversation, for each time we talk we seem simply to pick up from where we left off, as if no time had elapsed. My debt to him is ongoing, and it is one that, try as I might, I am not able to repay. Because of our mutual interest in the American Founding and especially in Madison, Lance Banning and I became colleagues and ultimately good friends. His work on Madison is unrivaled among scholars and will continue indefinitely to influence the way we understand the man from Montpelier. Since he cared more about advancing a sound understanding of Madison and the American Founding than he did about the accolades he personally deserved, Lance took the time to converse with me and other more junior scholars and unselfishly supported our work. Two years ago the still-young Lance Banning passed away unexpectedly, and we are poorer now that he is gone. Lance’s legacy lives on, however, not only in the first-rate scholarship he left behind but also in the genuine community of interdisciplinary scholars on the Founding that he contributed so much to creating. This book draws freely from some articles and essays that have appeared in somewhat different form in earlier publications. A small portion of Chapter 1 is based on “Madison’s Party Press Essays,” Interpretation: A Journal in Political Philosophy 7:3 (1990), 355–77. Portions of Chapters 2, 4, 5, and the Epilogue draw from “Madison v. Hamilton: The Battle over Republicanism and the Role of Public Opinion,” originally published in the American Political Science Review 98:3 (2004), 405–24, and subsequently published in Douglas Ambrose and Robert W. T. Martin, eds., The Many Faces of Alexander Hamilton: The Life and Legacy of America’s Most Elusive Founding Father (New York: New York University Press, 2006), 165–208. Chapter 3 is based largely on “Madison and the French Enlightenment: The Authority of Public Opinion,” William and Mary Quarterly 49:3 (2002), 925–56. “The Commerce of Ideas and Cultivation of Character in Madison’s Republic,” in Bradley C. Watson, ed., Civic Education and Culture (Wilmington, Del.: ISI Books, 2006), 49–72, served as a preliminary draft for Chapter 4; parts of this essay are also blended into Chapters 1 and the Epilogue. A portion of Chapter 7 is taken from “The Politics of Public Opinion: James Madison’s ‘Notes on Government,’” William and Mary Quarterly 49:3 (1992), 609–27. I am grateful to the publishers of these journals and books for allowing me to reprint this material. Throughout this undertaking, the constant support I have received from my family and friends has meant much to me. My best friend, Jack Doody, has been by my side through the thick and thin of this scholarly endeavor. He put up with me for all the times that we had to say “no” to a kind

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invitation because I was working on “Madison.” I am fortunate to have as my husband a scholar and a critic who encourages me in my work and who is not satisfied unless I am. He has willingly devoted endless hours to our conversations on the Founding, most of them marked by patience and all of them by a great deal of cheerful encouragement. To him I dedicate this book.

Abbreviations for Sources

CSW

Federalist

PAH

PJM

PTJ SOL

Voyage

Condorcet, Marie Jean Antoine Nicolas de Caritat. Selected Writings. Edited by Keith Michael Baker. Indianapolis: Bobbs-Merrill, 1976. Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers. Edited by Clinton Rossiter. Introduction and notes by Charles R. Kesler. New York: Mentor Books, [1788] 1999. Syrett, Harold C. and Jacob E. Cooke, eds. The Papers of Alexander Hamilton, 26 vols. New York: Columbia University Press, 1961–79. Hutchinson, William T. et al., eds. The Papers of James Madison. Chicago and Charlottesville: University of Chicago Press and University Press of Virginia, 1962–. Boyd, Julian P. et al., eds. The Papers of Thomas Jefferson. Princeton, N.J.: Princeton University Press, 1950–. Montesquieu, Charles-Louis de Secondat, Baron de La Br`ede et de. The Spirit of the Laws. Translated and edited by Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone. Cambridge: Cambridge University Press, 1989. Barth´elemy, Jean Jacques. Voyage du jeune Anacharsis en Gr`ece dans le Milieu du Quatri`eme Si`ecle avant l’`ere vulgaire, 8 vols. Paris, 1788. The English translation used herein is Jean Jacques Barth´elemy. Travels of Anacharsis the Younger in Greece during the Middle of the Fourth Century before the Christian Aera, 4th ed., 8 vols. London, 1806. xi

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WJA WJM WTJ

Abbreviations Adams, Charles Francis, ed. The Works of John Adams, 6 vols. Freeport, N.Y.: Books for Libraries Press, 1850–56. Hunt, Gaillard, ed. The Writings of James Madison, 9 vols. New York: G. P. Putnam’s Sons, 1900–10. Lipscomb, Andrew A. and Albert Ellery Bergh, eds. The Writings of Thomas Jefferson, Memorial edition, 20 vols. Washington, D.C.: The Thomas Jefferson Memorial Association, 1903–4.

Preface

About two years ago I was flying from Burlington, Vermont, to the Midwest. Across the aisle an older gentleman in jeans and a crisp plaid shirt, with weathered skin and hands not afraid of hard work, slowly turned the pages of a thick tome that rested on his lap. When we landed and stood to collect our belongings, I saw that the book he had been reading was David McCullough’s John Adams. When I asked what he thought of it, he told me that he found it to be a fascinating account of a man and an age he previously hadn’t known a lot about. He mentioned that he found in the character of John Adams a man worth getting to know. I nodded ever so slightly and returned the gentle, friendly smile of, I supposed, a New England farmer as we turned to exit the plane and go our separate ways. At the time, I was working night and day on the manuscript that would become this book. My goal then, as now, was to come to know Madison as well as I could and to try to convey that understanding to others. I realized then that I also hoped one day a New England farmer would read my book and remark that James Madison was a man worth getting to know. The difficulty was that I was not writing a biography but a work of political theory, which does not easily make for a good story, unless, of course, one is as talented as Plato, which I certainly am not. Another stiff challenge, even for the biographer, is that Madison was a quiet, reserved man whose life was not, like Alexander Hamilton’s, for example, “so tumultuous” and “stuffed with high drama . . . that only an audacious novelist could have dreamed it up.”1 Madison was not born a bastard son of a Scotch peddler on a remote Caribbean island, nor was he mortally wounded in a duel of honor in the prime of his life. He was not brazen or impetuous or dashing. He had no 1

Ron Chernow, Alexander Hamilton (New York: Penguin Books, 2004), 4.

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love affair that would threaten public disgrace, in the face of which he would stand tall and accept full responsibility. Madison was an unimposing and somewhat frail fellow who often had to be asked to speak up so that he could be heard. His sense of himself was marked by a plain solidity rather than the pained puritanical labors of John Adams or the Continental ease of Thomas Jefferson. He was neither condescending nor competitive for fame, but content to leave the glory to others, or better yet, to America.2 Although he left behind a prolific set of writings, his correspondence was not crafted to be an open window upon his life and character. He did little if anything to construct a myth of himself for history. In sum, Madison’s modesty, steadiness of character, and scholarly habits do not lend themselves to the storyteller’s penchant to display the eccentric and colorfully vivid moments of the human persona and drama. This is not to say, however, that Madison lacked passion or spiritedness. His relationships with his dearest friends, whether William Bradford in his college days or Thomas Jefferson throughout his life, show that it would be a grave mistake to dismiss him as a man without heart or chest.3 In his mature years, he was as shy and standoffish at a formal dance as he was playful and loving with the nieces and nephews whom he adored. But openness of manner was for him the exception and not the rule; Madison was respected by virtually all of his contemporaries and intimately known by only a few. As a keen student of human nature once observed, though, the most “acute and retentive” human feelings seldom belong to one who makes a parade of speeches and emotions. They are more at home in the soul of “quiet grandeur.”4 The period 1776–1800 is one of the most remarkable and engrossing stories of a nation’s founding. Unlike the legendary foundings of the republics of antiquity, there was no single lawgiver who, after completing his work, retired to a distant land. Instead, the period following the establishment of the new American Constitution was stamped by the dramatic interplay among the diverse characters of the Founding generation and the force of their ideas. Despite his unassuming nature, Madison played as large a part in the drama of the early American republic as any of the Founders and a larger role than most of them. He served in many elected positions in Virginia and 2 3

4

“Spirit of Governments,” PJM 14:234. See C. S. Lewis’s chapter, “Men Without Chests,” in The Abolition of Man (New York: HarperCollins, 2001). See Jane Austen, Emma, in The Complete Novels of Jane Austen, 2 vols. (New York: Modern Library, 1992), 2:101; Leo Strauss, What Is Political Philosophy? (Westport, Conn.: Greenwood Press, 1959), 103–4.

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the United States, including in the United States House of Representatives, as Jefferson’s secretary of state, and, of course, as the fourth president of the United States. He was the leading man of ideas at the Constitutional Convention of 1787 and coauthored with Alexander Hamilton (and a minimal contribution from John Jay) The Federalist, which Jefferson called “the best commentary on the principles of government which ever was written.”5 Only a short time later, however, he and Hamilton would be on the political outs, with Madison acting as the leading voice of the republican opposition to the Hamiltonian-led Federalist political and economic program. As a result of the party battles of the 1790s and Hamilton’s influence with President Washington, Madison would ultimately find himself estranged from the president for whom he had previously acted as penman of his most important official addresses and speeches, including the First Inaugural Address.6 The rupture would be a matter of some sadness for Madison, for Washington was a man he deeply esteemed. Despite his fundamental disagreements with Hamilton, he never ceased to respect him as well, particularly for the power of his mind. The same could not be said of his opinion of John Adams – one of the few men whose ideas as well as character Madison criticized quite harshly, albeit privately. Madison’s early affiliation with Jefferson in Virginia politics grew into a deep and abiding personal friendship and political alliance that lasted throughout their lives. Except for a hiatus during the late 1790s and early 1800s, the very different personalities and political views of Jefferson and John Adams did not stand in the way of a long and ultimately enduring friendship between them. Indeed, their work together on the committee that drafted the Declaration of Independence in 1776 came full circle on July 4, 1826, when the revolutionary collaborators died within hours of each other. If Jefferson and Adams were political enemies but personal friends, Adams and Hamilton shared many of the same political views and most of the same political opponents, but they were never friends; on more than one occasion, they were intraparty enemies. Madison’s regard for Hamilton’s intellect was paralleled by Jefferson’s appreciation of Adams’s revolutionary principles; Madison’s dislike of Adams found common but harsher ground in Jefferson’s detestation of Hamilton, which Hamilton returned in kind. The description of the relationships among the dramatis personae in the 1790s’ political playbook reads a bit like a variation on the theme of A Midsummer Night’s Dream, 5 6

Jefferson to Madison, November 18, 1788, PJM 11:353. For an excellent treatment of the friendship between Washington and Madison see Stuart Leibiger, Founding Friendship (Charlottesville: University of Virginia Press, 2001).

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though Washington, try as he might, was not able to conjure up Puck’s power of the honest neighbor who makes them all friends. Still, Madison’s role in the drama of the American Founding is one thing, but what about Madison the man? The itch to come to know the Founders is, for many of us, the desire to come to know them personally. As in the case of great artists, we are often not satisfied with knowing them through their chosen form of self-revelation; we want to know them directly, to see into their souls.7 But this is not always possible. In the case of the philosopher and writer, for example, often we come to know them better in the stories they told than in the stories that can be told about them. This, I think, is the way it is with Madison. Madison made a significant contribution in all of the political posts he held, but it is in the capacity of political thinker that he made the deepest and most indelible impression on our nation. As much as and perhaps more than any of the Founders, he thought through the original vision of the new republic and transformed it into reality. In a sense, his story is the story of an idea – the idea of America. Americans are a people with a distinctive way of life that sets them apart from other peoples. With the French, or Chinese, or Iraqis, or Somalis, we share a common humanity and many of the same miseries and hopes. But we do not all love or hate the same things. We do not have all of the same principles or prejudices. Like individuals, each nation has a particular character and a unique story. To tell the story of a nation well, there must be a narrator who is able to see through the events and the details on the surface to the spirit that moves it and gives it its character. In The Mind of the Maker, Dorothy L. Sayers brilliantly captures the forces at work behind the creation of a story. In the art of writing, as in Christianity, she argues, there is a trinitarian structure that underlies the work. This consists of the idea, the activity, and the power. Behind the finished work (and the activity that produced it) is a creative idea that has the potential power to set all else in motion. The power proceeds from the idea and the activity together and is the means by which the work is communicated to others. It is the link that connects the immaterial idea to its material manifestation and brings the work to life.8 “The Power – the Spirit – is . . . a social power, working to bring all minds into its own unity. . . .”9 This same structure, 7

8

9

See Dorothy L. Sayers, The Mind of the Maker (San Francisco: Harcourt, Brace and Company, 1941), 57. In Christianity the idea, the activity, and the power are indicative of the Father, the Son, and the Holy Spirit or the Word, the Flesh, and the Holy Spirit. The Word is made Flesh (the incarnation) by the power of the Holy Spirit. See John 1:14; cf. the Apostle’s Creed. Sayers, Mind of the Maker, 131.

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Sayers argues, is present in all forms of artistic creation and in fact in the mind of man. There is, for example, a trinitarian structure in human sight, consisting of the form seen, the act of seeing it, and the mental attention or power that correlates the two. These things are as separable in theory as they are inseparably present in the experience of sight. I would argue that this same threefold pattern is at work in political life, particularly in the creative act of founding a new nation. What Sayers designates “idea,” “activity,” and “power” (or “spirit”), Aristotle called “principle,” “ethos,” and “spirit.” To understand a given political order, Aristotle taught, we must look beyond the political surface of the laws and see that there is a distinctive ethos that characterizes it. This activity, or way of life, is informed by a particular principle or idea. Between the principle and the activity there is a bridge that links them together, which we might call the “spirit” of the community. In free societies, this spirit finds expression in public opinion. This notion has been explored in our time by scholars such as Edward S. Corwin and A. D. Lindsay, who have argued for the importance of attending to the operative opinion that informs the political order and gives it life and force. According to Corwin, the regime, or constitution in the formal sense, is the “nucleus of a set of ideas.”10 To understand a nation, Lindsay argued, one must primarily concern oneself “with the ideals which are actually operative – operative enough in men’s minds to make them go on obeying a particular form of government or, at times, to make them break up the government they are accustomed to and try to construct a new one.”11 This dynamic conception of politics marked the mind of Madison. To know him, we must come to understand his vision of America and the story he wrote in his mind before it was written upon the land. Madison’s narrative was informed by the idea of republican self-government, whose manifestation he sought to bring about in the way of life of the American people. He believed that this could not be accomplished without the link that connects the idea of self-government to the ethos of republicanism. He called 10

11

Edward S. Corwin, American Constitutional History (New York: Harper and Row, 1954), 101. A. D. Lindsay, The Modern Democratic State (New York: Oxford University Press, 1962), 37. It is interesting to note that Lindsay edited a reissue of William Ellis’s renowned translation of Aristotle’s A Treatise on Government, an earlier edition of which was owned and studied by James Madison. In his introduction to this work, Lindsay argued that in the view of Plato and Aristotle, “no private education can hold out against the irresistible force of public opinion and the ordinary moral standards of society. But that makes it all the more essential that public opinion and social environment should not be left to grow up at haphazard as they ordinarily do. . . . ”

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this link the “spirit” of republican government. When released, this spirit is communicated to others through public opinion and results in certain intellectual and moral habits; it is the means by which the idea becomes an active energy that generates a process of republican self-renewal. Such an approach to understanding the human arts, whether that of writing or music or sculpture or politics, is grounded in a view of human nature and human life that is dynamic and in which the phenomenon cannot be properly treated by a purely scientific, mechanical approach that merely devises a “solution” to a “problem.” “We can see St. Paul’s Cathedral purely in terms of the problems solved by the architect,” Sayers contends, [in] the calculations of stress and strain imposed by the requirements of the site. But there is nothing there that will tell us why men were willing to risk death to save St. Paul’s from destruction; or why the bomb that crashed through its roof was felt by millions like a blow over the heart.12

One need only recall the well-known photograph of St. Paul’s Cathedral during the December 1940 bombing of London to know what Sayers means. Or perhaps the image of the twin towers of New York, now no longer standing but indelibly burnt upon the American mind, furnishes our generation the picture Sayers painted in words for an earlier one. Not every challenge that we are faced with in life is a problem to be solved. Sometimes what is before us is the challenge of a work to be made.13 If we fail to recognize the potential power of an idea or a principle to inspire the souls and actions of human beings, we will not be able to understand the mind of Madison, any more than we would be able to understand a Washington or a Lincoln or a Churchill, or the citizens who gave their lives in the wars over which they presided. This power is rooted in the freedom of the human mind and will. The nature of human freedom is precisely what allows for, indeed calls for, a creative idea that has the power to inspire and guide it. This is the task of the creator, but it is one that has certain natural laws and limits. A parent creates a child, a writer creates a character. A Founder creates a nation – a people. But like the parent or literary artist, the Founder can have only partial control over what he has created. He must recognize the essential freedom of mind and will of the characters he has formed. His own freedom consists in applying his energy to the form and limits of the medium within which he works so that it is not wrenched from the process of development 12 13

Sayers, Mind of the Maker, 193–94. Ibid., 181–216.

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that is natural to it. “The business of the creator is not to escape from his material medium or to bully it,” Sayers argues, “but to serve it,” and “to serve it he must love it.”14 In the first of his Federalist essays devoted to the character of the new government, Madison described the medium in which the Framers worked and the cause they served, as he understood it. “The genius of the people of America” and “the fundamental principles of the Revolution,” he said, demand republican government. Only a genuine republic is reconcilable “with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.”15 For James Madison, to serve the cause of America meant to respect the freedom that cannot be taken from human beings without doing violence to their natures. To love the land and its people meant to cherish what they stood for and to trust in what they would become. This is the drama of self-government that Madison envisioned unfolding and wrapping around the minds and spirit of the American people. It is the story of the power of an idea. 14 15

Ibid., 66. Federalist 39:208.

Introduction Madison’s Legacy

The land was ours before we were the land’s, She was our land more than a hundred years Before we were her people. She was ours In Massachusetts, in Virginia, But we were England’s, still colonials, Possessing what we still were unpossessed by, Possessed by what we now no more possessed. Something we were withholding made us weak Until we found out that it was ourselves We were withholding from our land of living, And forthwith found salvation in surrender. Such as we were we gave ourselves outright (The deed of gift was many deeds of war) To the land vaguely realizing westward, But still unstoried, artless, unenhanced, Such as she was, such as she would become. Robert Frost, “The Gift Outright”

At President John F. Kennedy’s inauguration in 1961, the capital blanketed with freshly fallen snow and capped by a glaring winter’s sun, Robert Frost was scheduled to read his newly composed poem “Dedication.” The conditions made it impossible for him to see the pages, so instead he delivered from memory an older verse about the birth of America – a poem, he once said, “about what Madison may have thought.”1 “The land was ours before 1

Robert Frost, “An Extemporaneous Talk for Students,” Sarah Lawrence College, June 7, 1956, in K. L. Knickbocker and H. Willard Reninger, eds., Preliminaries to Literary Judgment: Interpreting Literature, 5th ed. (New York: Holt Rinehart & Winston, 1974), 808. During this talk Frost remarked: “Now I thought I would say a poem to you – a poem about what Madison may have thought. This is called ‘The Gift Outright’ and it is my story of the

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we were the land’s.” Later, in discovering within ourselves what had been withheld, we became the possession of the land. Frost’s lines remind us of the ultimate sacrifice made by men whose bodies rest in soldiers’ graves across the original thirteen states. They also evoke the cause to which our Founding generation gave themselves wholly. The Founders’ legacy, like the soldiers’ sacrifice, was a gift to future generations of Americans that could never be, and never was intended to be, repaid. It was “the gift outright.” A gift outright is a “deed of gift,” which is “a deed executed and delivered without consideration,” that is, with no expectation of return.2 It is different from a legal contract, which sets terms of strict proportionality between benefits conferred and repayment required. Nonetheless, a deed of gift “confirms a legal relationship between the donor and repository that is based on trust and common understanding.”3 Thus, while no material repayment of the gift is required or expected, the legacy does confer on the recipients a moral obligation to respect the intended purpose of the bequest. Moreover, according to Aristotle, there are some gifts for which it is not possible to make equal payment, and that can be only partially, and rightfully, repaid by a debt of gratitude.4 Aquinas calls the debt of gratitude a “debt of moral decency” that flows “from charity,” which “the more it is paid, the more it is due.”5 Frost’s reminder of the gift we have received from our forefathers is also quietly, implicitly, a reminder to us of our debt. Calling to mind a time when the nation was “unstoried,” when the original vision of the American drama was but an idea in Madison’s imagination, he speaks to us today, the living beneficiaries of this still unfolding story. All through this poem about an event long past, there is no “they” but only and always “we.” In surrendering to the land, we became “her people.” Mingling the soil and the soul of America, Frost captures Madison’s vision of a land populated by a sovereign and self-governing people. The gift of the American soldiers and Founders made us true proprietors, owned by a land that calls us to own

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revolutionary war. My story of the revolutionary war might be about two little battles – one little battle called King’s Mountain and another little battle called Bennington – but I’ll leave battles out and give you the abstract.” Bryan A. Garner, ed., Black’s Law Dictionary (St. Paul, Minn: West Group, 1999), 423. http://www.archivists.org/publications/deed_of_gift.asp. Aristotle, Nicomachean Ethics, Martin Ostwald, trans. (New York: Macmillan Publishing Co., 1962), VIII:14, 244. Aquinas, Summa Theologica II-II Q. CVI ART. VI in Aquinas Ethicas: Or, the Moral Teaching of St. Thomas, 2 vols., Joseph Rickaby Thomas, ed. and trans. (New York: Benziger Bros., 1896), 2:201–2.

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ourselves.6 This idea was perfectly expressed by Tocqueville a generation later when he said, “I saw in America more than America.”7 As much as, perhaps even more than, for their deeds of war and their deed of gift of independence, we are indebted to the Founding generation for the legacy of self-government they left to us. Madison understood his life’s work as dedication to the crafting and constructing of this singular legacy. His contribution to the founding of the American republic was a deed of gift for which no equal payment is possible and for which recognition of his generosity is the fitting return of grateful souls. This gratitude, however, is contingent on understanding the worth of the benefit conveyed.8 The debt we owe to the giver of qualitative goods requires more than giving honor to the benefactor; we must recognize and cherish the intrinsic good of the gift itself. For Madison, as well as for Frost, the legacy of the American Founders is best repaid not by statues and monuments to them, but by honoring the principles of republicanism they bequeathed to us. It is best repaid by the citizens’ moral recognition of what we owe each other. It has been said about Frost that he was “a philosopher, but [that] his ideas are behind his poems, not in them.”9 The power of “The Gift Outright” is only partially in the words that give meaning to the events of our past. Behind the words is a power that shapes our spirit and makes us into something more than mere readers. Only two years after Frost spoke at the 1961 inaugural, President Kennedy was called upon to commemorate the poet’s death. “Our national strength matters,” Kennedy said, “but the spirit which informs and controls our strength matters just as much. This was the special significance 6

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I am not unaware that my interpretation of Frost’s ideas is at odds with a significant portion of the literary scholarship on the poet. While I do not wish to elide over the criticisms of Frost’s own character or the darkness that may have haunted him, I do think the case can and should be made for Frost’s command of his craft and for the deftness with which he captures and teaches the meaning of American democracy and the spirit that permeates it. Critics contend that this is a naive view set forth by those who do not understand poetry or Robert Frost, for Frost was a coward, a tyrant, and a liar through and through. I would suggest in response that poetry is not always about the poet, nor usually, if ever, written for the edification of literary critics. For a contrasting perspective see Lawrance Thompson, Robert Frost, 3 vols. (New York: Holt, Rinehart & Winston, 1966–76), and Robert Faggen, Robert Frost and the Challenge of Darwinism (Ann Arbor: University of Michigan Press, 2001). See also Jay Parini, Robert Frost: A Life (New York: Henry Holt and Co., 1999), who neither ignores Frost’s shortcomings nor uses them to condemn his art or his civic aspirations (429). Alexis de Tocqueville, Democracy in America, J. P. Mayer, ed. (New York: Harper Perennial, 1969), 19. See Peter Chojnowski, “A Sense of Honor: Justice and Our Moral Debt,” Angelus XXII (1999). Mark Van Doren, “The American Poet,” Atlantic Monthly 187 (June 1951), 32–34.

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of Robert Frost.”10 This was also, I think, the special significance of James Madison. At the core of Frost’s understanding of America was his insight into Madison’s dream of a land informed and sustained by the spirit of a free people capable of controlling their government and governing themselves. Frost’s Madison is not the Madison we come to know in most of the scholarly literature. For the most part, the scholars’ Madison is no friend of the common man. In the first part of the twentieth century Charles Beard’s Progressive interpretation of Madison dominated the scholarly landscape, portraying Madison as an opponent of democracy and a destroyer of the principles of the American Revolution.11 In the mid-twentieth century, under the scholarly leadership of Martin Diamond, Madison became the Founder who sought to institute a system of clever mechanistic political arrangements that make it possible to dispense with civic education and the need to form an American character.12 This Madison is a democratic liberal who established a system of pluralistic, interest-dominated politics. By thwarting the formation and influence of majorities in the extended republic, he created a governmental machine that turned private vice into public good. J. G. A. Pocock and Gordon Wood attacked this thesis with weapons stockpiled in the historians’ arsenal, situating Madison within the classical republican tradition that began in ancient Greece and continued through Machiavelli and into the era of the American Founding.13 Aristocratic leadership and deferential politics are the mainstay in this view of Madisonian politics, achieved 10

11

12

13

President John F. Kennedy, Remarks at Amherst College, October 26, 1963, in Robert G. Torriccelli and Andrew Carroll, eds., In Our Own Words: Extraordinary Speeches of the American Century (New York: Kodansha International, 1999), 242. Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York: Free Press, [1913] 1986). For a powerful critique of Beard’s thesis, see Forrest McDonald, We the People: The Economic Origins of the Constitution (Chicago: University of Chicago Press, 1958), and Robert E. Brown, Charles Beard and the Constitution: A Critical Analysis of “An Economic Interpretation of the Constitution” (Princeton, N.J.: Princeton University Press, 1956). See also contemporary Progressive interpretations of Madisonian theory in the work of Richard K. Matthews, If Men Were Angels: James Madison & the Heartless Empire of Reason (Lawrence: University Press of Kansas, 1995); Jennifer Nedelski, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (Chicago: University of Chicago Press, 1990); Woody Holton, “‘Divide et Impera’: Federalist 10 in a Wider Sphere,” William and Mary Quarterly 62 (2005), 175– 212. See William A. Schambra, ed., As Far as Republican Principles Will Admit: Essays by Martin Diamond (Washington, D.C.: AEI Press, 1992). The interpretation of Madison as a pluralist theorist continues into the present; see, for example, Steven D. Smith, The Constitution and the Pride of Reason (New York: Oxford University Press, 1998), 67–68. Gordon Wood, “Interests and Disinterestedness in the Making of the Constitution,” in Richard Beeman, Stephen Botein, and Edward C. Carter, eds., Beyond Confederation: Origins of the Constitution and American National Identity (Chapel Hill: University of North Carolina Press, 1987), 91–93; Gordon Wood, The Creation of the American Republic,

Introduction

5

in part by an extended territory composed of large congressional districts conducive to electing the better sorts of men. At present, the synthesis theory, or “multiple traditions approach” theory, to Madison is prevalent, which attempts to blend the liberal democratic and classical republican schools of thought. Michael Zuckert and Alan Gibson, for example, contend that there are classical elements in Madison’s thought, but that the modern liberal ideas of natural rights, limited government, and economic freedom are the predominant strains of his political theory.14 In each of these interpretive camps there are scholars who rigorously call into question Madison’s democratic credentials. This includes the modern liberal and many of the synthesis interpretations in one significant respect. Like the antidemocratic liberalism of contemporary Progressive scholars (e.g., Jennifer Nedelsky and Woody Holton) or the antidemocratic republicanism of Gordon Wood and others, they claim that Madison’s remedy for the problem of majority faction in the 10th Federalist was intended to make it virtually impossible for the people to form a collective judgment. An extensive territory composed of a multiplicity of interests and parties not only deters the formation of a majority faction, but in general makes it difficult for the people to communicate effectively and to discover a common opinion. The doctrine of separation of powers increases the difficulty of forming a majority consensus on any given issue. The antidemocratic thesis takes this further: Madison’s paean to popular sovereignty was in reality a death knell for popular government, these scholars claim. While some of these scholars contend that Madison’s aim was to deadlock democracy,15 others argue that his object was an end run around democracy. According to Wood, for example, though Madison and his Federalist cohorts couched their arguments in

14

15

1776–1787 (Chapel Hill: University of North Carolina Press, 1969), 510–18. See also Garry Wills, Explaining America: The Federalist (Garden City, N.Y.: Doubleday, 1981), 179–294; James Roger Sharp, American Politics in the Early Republic: The New Nation in Crisis (New Haven, Conn.: Yale University Press, 1993), 26. See Michael P. Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (Notre Dame, Ind.: University of Notre Dame Press, 1996), especially ch. 7; Alan Gibson, Interpreting the American Founding: Guide to the Enduring Debates over the Origins and Foundations of the American Republic (Lawrence: University of Kansas Press, 2006), passim, especially ch. 6; Alan Gibson, Understanding the Founding: The Crucial Questions (Lawrence: University Press of Kansas, 2007), chs. 4 and 5. These two recent works by Gibson constitute the best literature review of scholarship on the American Founding period. Gibson follows the diverse scholarly interpretations of the Founding through a labyrinth of ideas, allowing the reader to emerge with an understanding that is at once cogent and complex, varied and ongoing. In this volume, I have deliberately not attempted to repeat the work Gibson has so recently and expertly done. See Robert A. Dahl, A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956).

6

James Madison and the Spirit of Republican Self-Government

democratic language, they actually (and disingenuously) used democratic rhetoric to establish and justify an aristocratic system. Separating the social authority of the people and the political authority of the government, the Federalists imagined the Constitution as a “sort of ‘philosopher’s stone’” that could “transmute base materials into gold . . . .”16 According to Joshua Miller, Madison conceived of the sovereignty of the people in abstract terms and undermined the democratic principles of the American Revolution. By dispensing with the need for civic participation and thwarting communicative activity among the citizenry, Madison created a “ghostly body politic.”17 In addition to the classical republican versus modern liberal theses and the democratic versus antidemocratic strains of interpretation, the issue of Madison’s consistency of thought is a matter of great scholarly contention. The vast majority of historians and political theorists addressing the issue have concluded that in the 1790s Madison switched sides from his nationalist stance in the 1780s to a more Jeffersonian states’ rights position, demonstrating a mind mired in confusion and inconsistency, or perhaps even one suffering from schizophrenia or tainted by dishonesty. Most of these interpretations have focused on Madison’s contributions to The Federalist to expound his essential views, with perhaps a skimming of his writings in the 1790s to show that he changed his mind. In recent years, a handful of scholars have attempted to move beyond an overconcentration on the 10th Federalist as the telling account of Madison’s political theory and to present a more accurate and nuanced picture of his ideas.18 The careful work of Lance Banning stands out particularly in this regard. In The Sacred Fire of Liberty: James Madison & the Founding of the Federal Republic,19 Banning traces the development of Madison’s founding vision throughout the 1780s and 1790s and has successfully shown, I think, 16 17

18

19

Wood, The Creation of the American Republic, 1776–1787, 562, 475, 507. Joshua Miller, “The Ghostly Body Politic: The Federalist Papers and Popular Sovereignty,” Political Theory 16 (1988), 99–119. For a more detailed treatment of the recent scholarly literature on the issue of Madison’s consistency or inconsistency of thought, see Alan Gibson, “The Madisonian Madison and the Question of Consistency: The Consistency and Challenge of Recent Research,” The Review of Politics 64:2 (2002), 311–38. Gibson identifies Irving Brant, Martin Diamond, Gordon Wood, and John Zvesper as the leading claimants of the view that Madison was inconsistent and Drew McCoy, Gary Rosen, James Read, Michael Zuckert, Jack Rakove, and Lance Banning as the foremost voices defending Madison’s consistency. In Revolutionary Characters: What Made the Founders Different (New York: Penguin Press, 2006, 141–72), however, Gordon Wood vigorously makes the case for Madison’s consistency and that there is no “‘Madison problem,’ except the one we [historians] have concocted.” Lance Banning, The Sacred Fire of Liberty: James Madison & the Founding of the Federal Republic (Ithaca, N.Y.: Cornell University Press, 1995); cf. Banning, Conceived in Liberty: The Struggle to Define the New Republic, 1789–1993 (Lanham, Md.: Rowman & Littlefield, 2004).

Introduction

7

that scholars have generally misunderstood Madison’s conception of federal republicanism and thus have erroneously concluded that he changed from a Hamiltonian-type nationalist distrustful of the power of the states and of the people in the 1780s to a states’ righter and Jeffersonian democrat in the 1790s. According to Banning, throughout the Founding period, indeed throughout his life, Madison was consistently concerned about both the problem of majority faction and the threat of governmental tyranny. In the 1790s he did not change his principles; rather, he changed his emphasis. In the 1780s he concentrated on the problem of majority faction; in the 1790s, as a result of Hamilton’s and the Federalists’ attempt to increase the power of the national government at the expense of the authority of the states and the people, he concentrated on the problem of a powerful minority faction within the government. “Madison’s lifelong concern,” Marvin Meyers asserts, “has sometimes obscured the source of that concern: his prior commitment to popular government.”20 In sum, Madison consciously and consistently devoted himself to securing the democratic principles of the Revolution, the liberty of individuals, and the standard of self-government in the new federal republic. While there is a substantial scholarly literature on Madison’s political theory in the Constitutional Convention and The Federalist, relatively few studies have been devoted to his political theory and practice at the outset of the new government, and there is no book-length examination of his major theoretical writings during this period, viz., the “Notes on Government” and his essays for the National Gazette, or Party Press Essays.21 Yet the

20

21

Marvin Meyers, The Mind of the Founder: Sources of Political Thought of James Madison (Hanover, N.H.: Brandeis University Press, 1981), 408. See, for example, William B. Allen, “Justice and the General Good: Federalist 51,” in Charles R. Kesler, ed., Saving the Revolution: The Federalist Papers and the American Founding (New York: Free Press, 1987), 133–36; John Zvesper, “The Madisonian Systems,” The Western Political Quarterly 37:2 (1984), 236–56; Douglas W. Jaenicke, “Madison v. Madison: The Party Press Essays v. The Federalist Papers,” in Richard Maidment and John Zvesper, eds., Reflections on the Constitution: The American Constitution After Two Hundred Years (New York: Manchester University Press, 1989), 116–47; Matthews, If Men Were Angels, 158–64; Banning, Sacred Fire of Liberty, 348–61; Gary Rosen, American Compact: James Madison and the Problem of Founding (Lawrence: University Press of Kansas, 1999), 152–55; Saul Cornell, The Other Founders: Anti-Federalism & the Dissenting Tradition in America, 1788–1828 (Chapel Hill: University of North Carolina Press, 1999), 166–68, 247–53; James H. Read, Power versus Liberty: Madison, Hamilton, Wilson, and Jefferson (Charlottesville: University Press of Virginia, 2000), 32, 45; Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press, 2004), 112–14; Larry D. Kramer, “The Interest of the Man: James Madison, Popular Constitutionalism, and the Theory of Deliberative Democracy,” Valparaiso University Law Review, 41:2 (2007), 697–754; Alan Gibson, “Veneration and Vigilance: James Madison and Public Opinion,” Review of Politics 67:1 (2005), 5–35, 69–76; Todd Estes, “Shaping

8

James Madison and the Spirit of Republican Self-Government

years 1791–92 were perhaps the most intense period of philosophic activity in Madison’s life. This study focuses on Madison’s political thought and actions during the decade of the 1790s, with particular emphasis on his writings of 1791–92. By the spring of 1791, after the close of the first Congress in which he served, Madison’s concerns over the future of the new nation had intensified as a result of John Adams’s influential publications and the passage of Alexander Hamilton’s bill to establish a national bank in the United States. During this spring Madison spent a concentrated period of time engrossed in the study of political philosophy and history, taking extensive notes on numerous sources and composing a detailed outline that treats the central political concerns in a remarkably comprehensive manner. Later that year and into the next, he published a series of nineteen articles in the National Gazette (many of which were reprinted in other newspapers) that reflected some of these concerns and are every bit as theoretically interesting and provocative as the essays he penned under the pseudonym Publius. These Party Press Essays defined the “republican cause” of the 1790s in America and established Madison as the principal philosophic proponent of the newly emerging Republican Party. To the role of philosophic leader Madison conjoined that of political leader of the Republicans, who set themselves in opposition to the policy agenda emanating from the office of the secretary of the treasury. In defining the republican cause and leading the opposition to Hamilton’s political, economic, and foreign policy program, Madison did more than anyone else – except perhaps Hamilton – to cause the first great political fissure in the American republic. The feud between Republicans and Federalists in the 1790s left a lasting impression on the American political landscape. It marked the formation of the first political parties in the United States, led to the decisive victory of the Republicans over the Federalists in the election of 1800, and established, at least for a time, a tradition of participatory politics in the American republic. Although it is one of the most noted political battles of American history, the cause of this dispute remains to this day a source of confusion and controversy among scholars. The majority of scholars have concluded that in the 1790s Madison simply changed his mind about the theory of republican

the Politics of Public Opinion: Federalists and the Jay Treaty,” Journal of the Early Republic 20:3 (2000), 393–423; Estes, The Jay Treaty Debate, Public Opinion, and the Evolution of Early American Culture (Amherst: University of Massachusetts Press, 2006), 7–8, and passim.

Introduction

9

government that he presented in the pages of The Federalist, Banning being the foremost exception to this view. When Madison was confronted with the charge of inconsistency during his own lifetime, he denied that he had undergone any material change of mind.22 I would suggest that Banning’s arguments should be more heeded, and that a solid understanding of the motives and views behind Madison’s alleged switch of positions between the late 1780s and the early 1790s requires more than a juxtaposition of the much-studied ideas of Publius with a cursory view of Madison’s arguments in the first administration. Indeed, I believe that a careful examination of his writings of the 1790s provides a revealing account of Madison’s philosophic self-understanding and the reasons he deliberately waged war against the Federalist agenda. Madison’s criticisms of John Adams’s brand of republicanism and Hamilton’s political and economic policies were not ad hoc, nor was Madison’s intent simply to oppose Federalist measures. The battles he waged against Federalist policies were grounded in a positive republican vision and a constructive agenda as well. In Madison’s mind, the arguments he laid out and the policies he pursued at the outset of the new government were tied together by a central philosophical idea – the fundamental authority of the people and the sovereignty of public opinion in free government. In his conception of republicanism, adherence to the form and spirit of popular government in the new nation meant the recognition of the supremacy of the Constitution, understood and administered in a manner consistent with the sense of the people who ratified and adopted it. It also meant the ongoing sovereignty of public opinion, which requires the active participation of the citizenry in the affairs of the political community. In Madison’s perception, the Federalists of the 1790s were attempting to craft a highly energetic and independent status for the executive, create a narrow governmental dependence on the wealthy few, and limit the citizenry to a submissive role based merely on their “confidence in government.” Rejecting this schema, Madison advocated the politics of public opinion, through which he sought to foster and form an enlightened and broadly based public voice that would control and direct the measures of government.23 While he 22 23

See Madison to N. P. Trist, September 27, 1834, WJM 9:471–77. William B. Allen argues that contrary to the Federalist view that the Constitution was grounded in a “political system founded on public opinion and the institutions of which, once established, constituted the very expression of public opinion,” Madison and Jefferson believed that the Constitution had “erected a political system founded on but therefore subject to popular opinion. Accordingly, the offices and officers of the United States owed special deference and respect to popular opinion, and it would be appropriate to provide a

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James Madison and the Spirit of Republican Self-Government

did not deny to political leaders and enlightened men a critical place in the formation of public opinion, he fought vehemently against the Federalists’ thin version of the politics of public opinion. In opposition to the Hamiltonian view of an economically absorbed and politically subservient people, he advanced the image of a responsible citizenry (composed primarily of sturdy, independent yeoman farmers) with an active and substantial role in republican government. He believed as well that ascertaining the real opinion of the public would unmask those Federalists who sought to counterfeit public opinion and use their version of it to separate Washington from the vast republican majority in America. Although Madison’s particular conception of participatory politics was intended to avert the problem of the tyranny of the majority, it nonetheless encouraged the communication of the citizens’ views and the formation of a united public voice, thereby widening the path of opportunity for the power of public opinion. In the view of many Federalists, this threatened the checks on majoritarian politics contrived by the Framers; it asked more of the people than they could responsibly contribute to political life. Madison too was well aware of the potential dangers associated with majority opinion; in fact, none of the Founders was more mindful of such dangers. Nevertheless, he consciously took upon himself the role of chief philosophic architect and political leader of the republican effort to institute the politics of public opinion in America. The communication of ideas and the refinement of views throughout the land, he claimed, can result in the attainment of “the reason of the public” and is the republican way to achieve impartiality in government. Federalists reacted with contempt and ultimately alarm to this brand of politics and the worship of the “Goddess of Reason.” It sounded to them like the naive democratic optimism and “vain reveries of a false and new fangled philosophy” coming out of the French Enlightenment. Madison did not dispute the claim of French Enlightenment influence. Since the latter part of the 1780s Jefferson had been sending Madison crates of books by French authors on public opinion, and Madison had indeed been avidly reading their thoughts on the subject. special conveyance outside of government for the expression of that opinion. The struggle over the question, whether the opinion of the people prevailed in or over the government gave rise to that party debate which to this date provides the pure form of all political disputes in the United States” (“The Constitution to End All Constitutions: The Descent of the American Founding into the Twentieth Century, or The Perfect State Is Not Ideal,” 8–9, http://www.msu.edu/∼allenwi/presentations/Constitution_to_End_all_Constitutions).

Introduction

11

From his opening salvo in the National Gazette in the fall of 1791, Madison viewed the battles of the 1790s as rooted in a philosophic difference of opinion about the principles and conditions of republican government. In time, many of his opponents also came to believe that these political battles stemmed from more than merely partisan bickering. Ultimately, they acknowledged that they were engaged in a war of ideas that would essentially determine the character and fate of republicanism in America. The war of ideas that marked the political landscape of America in the 1790s was part of, indeed grew out of, a larger disagreement within European Enlightenment thought in the eighteenth century. In the European conflict, the advocates of the politics of public opinion lined up on one side and launched an offensive attack against the more established proponents of the theory of mixed and balanced government. The older school of thought was concentrated in Great Britain, while the later strand of Enlightenment thought developed primarily, but not solely, in France. In reaction to both of these conceptions of politics, a third strand of thought emerged in the ancien r´egime, loosely embodied by men who opposed the new rationalism and who sought to reclaim what they considered the richer and more dynamic approach to politics that characterized the classical political philosophers. Following Jonathan Swift’s lively depiction of the Archimedean struggle in The Battle of the Books, they traced the source of their philosophic rivals’ ideas back to Descartes and Hobbes and the conscious break with classical political philosophy (or even further back to Machiavelli’s rejection of classical as well as Christian thought). In the eighteenth century, new terms were added to the contest, including those found in the pages of Locke, Hume, and Rousseau. To a significant extent, however, the battle of ideas was reincited and reframed by the majestic and controversial work of the Baron de Montesquieu, Charles-Louis de Secondat, The Spirit of Laws. Montesquieu’s penetrating analysis of forms of governments and the various factors that determine the character of political societies attracted a host of followers and critics. His work became, as it were, the battleground for eighteenth-century political thought, though given the complexity and subtlety of his analysis, there was no simple alignment of troops. Many writers and politicians took what appealed to them in his work and rejected or ignored the remainder, often attempting to take Montesquieu’s ideas further than he perhaps would have been willing to go. Madison developed his theory of republicanism within the context of these opposing schools of Enlightenment thought, set against the broader background of the battle between the ancients and the moderns. Given his

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James Madison and the Spirit of Republican Self-Government

consciousness of the larger debate and his references to it in his writings of the 1790s, attention to the intellectual context within which Madison thought and wrote is critically important to understanding his ideas during this era. Moreover, an examination of the patterns of thought with which he was thoroughly familiar and to which he reacted, rather than the creation of new and foreign ones, may well contribute to a better understanding and more vivid picture of Madison’s political theory than has heretofore been made available. More than any of the other Founding Fathers, Madison is credited with thinking through and designing the constitutional blueprint for the United States. Yet there are fewer studies of his life and ideas than of those of the other leading Founders. This volume is devoted to exploring the way of life James Madison envisioned for America. Because the primary aim of the work is to grasp Madison’s vision of republicanism, followed by the effort to understand how his ideas informed his actions, the themes of the book are arranged dialectically rather than chronologically. This approach allows the reader to see more clearly the logic and interconnectedness of Madison’s various arguments and actions throughout the early Founding era; at the same time, it is hoped, it does not sacrifice the historical and political to the intellectual context. Chapter 1 provides an overview of Madison’s opposition politics in 1791–92, beginning with his research on the “Notes on Government” in the spring of 1791 and following the contours of his argument through the Party Press Essays. In the earlier Essays, Madison criticized the Federalist agenda and defined the “republican cause”; by the spring of 1792 he was openly championing the emergence of the Republican Party. Chapter 2 begins by stepping back in history, setting forth the context in which Madison developed his ideas and pursued his political goals in the early 1790s. The views and policies of two of the Federalist leaders, viz., Vice President John Adams and Secretary of the Treasury Alexander Hamilton, at whom Madison’s criticisms were largely (albeit often implicitly) directed, are examined here, particularly their laudatory view of the British model of government. Chapter 3 further broadens the context in which Madison thought and wrote, examining late-eighteenth-century French authors whom he studied and whose ideas clearly influenced his thinking during this period, including their censure of the British constitution and their development of the theory of the politics of public opinion. Chapter 4 examines the affirmative theory of republicanism Madison presented in the “Notes on Government” and Party Press Essays, demonstrating how the various components of his republican theory fit together to form a cohesive whole. This presentation includes the well-known foundational

Introduction

13

elements of Madisonian theory, that is, the extended republic, representation, separation of powers, checks and balances, and federalism. It also incorporates his arguments and analysis in the 1790s’ materials, thereby contributing to a fuller and richer account of Madisonian republican theory. In particular, his conception of the theory of public opinion and his advocacy of the commerce of ideas throughout the extended republic are highlighted and analyzed, showing the nonmechanistic and human face of Madison’s political vision. In these writings, the stress on the importance of civic education and the need to form republican habits of mind and heart reveal the conception of politics at the core of his republican ideas. Chapter 5 applies Madison’s theory of public opinion to his stance on the dominant political issues of the Washington administration, viz., a bill of rights, the funding of the national debt, the proposal to establish a national bank, Hamilton’s Report on Manufactures, commercial discrimination, and the president’s Neutrality Proclamation. Chapter 6 continues the application of Madisonian theory to practice during the Adams administration, most notably his stance on the Alien and Sedition Acts. Jefferson’s views in this controversy are also examined here. In addition, the philosophic similarities and differences between Madison and Jefferson during the 1790s are explored, with attention to Jefferson’s Draft Constitution for Virginia, his theory of generational sovereignty, Madison’s 49th and 50th Federalist essays, and his response to Jefferson’s letter regarding the “Earth Belongs to the Living Generation.” In regard to practical politics in the 1790s, more often than not, the founding and leadership of the Republican Party are generally attributed to Jefferson, with Madison treated as the Sundance Kid to Jefferson’s Butch Cassidy. In Chapter 6, I argue that this is not an accurate account of the practical or philosophic origins of the Republican Party or of their relationship to each other. In the early 1790s, Madison acted as the philosophic leader of the Republican cause and the practical leader of the Republican Party; Jefferson took over in 1797 when he became vice president and Madison (temporarily) retired to Montpelier. Chapter 7 provides a summary view of Madison’s 1791 “Notes on Government,” developing more fully the character of political analysis and the nature of the political task in which Madison understood himself to be engaged. Because of the broad and comprehensive nature of Madison’s inquiry in this notebook and his continued investigation into the general theme of the “Notes” later in his life, I have placed this subject near the end of the volume. This material abounds with citations of ancient and modern historians and political philosophers and is particularly helpful in conceptualizing the context in which Madison developed his own theory of

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James Madison and the Spirit of Republican Self-Government

republican government. Aristotle’s notion of public opinion and the spirit of governments, Montesquieu’s reformulation of Aristotle’s thesis, and Madison’s analysis of this subject provide the focus for this chapter. In situating his analysis of the influences on government, and republican government in particular, within the context of “the great oracles of political wisdom,” Madison’s “Notes” offer a window into his thinking about politics that takes us beyond the accumulated studies of Madisonian theory. At the very least, the “Notes on Government” deserve the attention devoted to them in this study, and probably a great deal more.24 I conclude this chapter with a discussion of how we might rethink the categories of analysis that have been generally applied to Madisonian political thought, suggesting that Madison himself would not accept the overly abstract and insufficiently political approach that is so often employed by scholars today. Rather, he consciously rejected the scientific rationalism and the merely institutional mechanical approach of his time and sought instead to reclaim the richer and more political approach to regime analysis that marked a long tradition of “oracles of political wisdom.” Finally, in the Epilogue, the question of the relevance of Madison’s ideas today is set forth for readers’ consideration. In a land that now extends from sea to sea and includes over 300 million people, is the kind of participatory, self-governing citizenship along the lines that Madison envisioned possible? Is it desirable? Or was this merely a whimsical dream by the Father of our Constitution whose time has come and gone? In the twentieth century, the man who posed this question most forcefully and eloquently was Robert Frost. In his response Frost provides less of an answer for us than a challenge to us, but it is a challenge that may be worth more than the scholar’s answer or even the philosopher’s stone. 24

Although I originally intended to include a more extensive treatment of the “Notes on Government” in this volume, the breadth of Madison ‘s research project and the somewhat lengthy exegesis that the material requires led me to conclude that it would be better to provide an in-depth treatment of the “Notes on Government” in a separate volume. I intend to present this treatment in Madison’s Voyage to the World of the Classics.

1 Republican Opposition

It was one of those pleasant Philadelphia days in early spring when the wind changes direction to a southwesterly and folks of every age and description, shut indoors over the cold and frosty winter months, venture forth to enjoy the awakening of nature.1 At noon on March 13 a horse and carriage party of family and friends was seen driving forth for a “wade into the country.”2 Two gentlemen, one tall and lean, with burnished copper hair and an alluring personality to match, the other substantially smaller, younger, shier, and dressed in black (as was his wont), formed part of the cheerful assembly. Best friends for many years, they had first met and formed a lasting bond when they were in public service together in their native Virginia. Now, after a hiatus of five years during which the vast expanse of the Atlantic Ocean had separated them, they were delighted to be in each other’s company once again. The year was 1791. The day was Sunday. The gentlemen riding in the light breeze under a fair midday sun were Thomas Jefferson and James Madison. The former served as secretary of state in the Washington administration, having two months prior returned from service as minister to the court of Louis XVI in Paris, France. The other had only ten days ago completed his first term in the House of Representatives of the United States under the new Constitution. Following the pleasures of their country outing, the little band of sightseers reassembled at Mr. Jefferson’s table in the late afternoon. After dinner, Madison ambled the short distance back to his residence at 1

2

Charles Peirce, A Meteorological Account of the Weather in Philadelphia: from January 1, 1790, to January 1, 1847 (Philadelphia: Lindsay & Blakiston, 1847), 51. I would like to thank Jacqueline Mirabile of Falvey Library, Villanova University, for her kind assistance in helping me locate these data. Jefferson to Madison, March 13, 1791, PJM 13:404.

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James Madison and the Spirit of Republican Self-Government

Mrs. House’s Boarding House on Fifth and Market, where, we suppose, he resumed his morning studies. Since the adjournment of Congress, he had set himself a “little task” that would consume his time and energy for a number of weeks, probably until late April, when he removed to New York to prepare for a respite northward. In May, Jefferson met up with him in New York and they set out on a tour through the lakes of upstate New York. They made it a bit past Crown Point in Essex County before they decided to turn back south toward a warmer clime, unaccustomed as the Virginia Piedmonters were to the cold temperatures and high winds of Lake Champlain in springtime. The past two years had been eventful ones, with Madison the de facto leader of the House of Representatives and prime sponsor of the Bill of Rights. Not everything had unfolded as he had hoped, however. He was unsuccessful in his attempt to enact a policy of commercial discrimination against the British or in thwarting Secretary of the Treasury Alexander Hamilton’s economic plan to assume the state debts and pay only the present holders of national bonds. But Madison himself had decided to forgo pushing his own policy on assumption in order to gain Hamilton’s political assistance in locating the new capital on the Potomac – in Madison’s home state and as far away from the stock jobbers in New York City as possible.3 The start-up of the new government was an exhilarating but also an anxious time for the men who would shape the contours of the fledgling republic. Virtually all agreed that the major task at hand was to put political flesh on the frame of the Constitution and to “cement the union.” In addition to the disaffected “Antifederalists,” some of whom were still rather grudging in their acceptance of the wholesale revisions to the Articles of Confederation, the “friends of the Constitution” – who had agreed to the constitutional outline but not a specific legislative agenda – now faced the hard but less exalted and often divisive work of everyday policy formulation. Toward the close of the First Congress, Alexander Hamilton unveiled his plan to establish a national bank. Within a short time after the bill’s introduction, Madison stood on the floor of the House of Representatives to argue against it on the grounds that it violated the intended meaning of the Constitution (not to mention the Tenth Amendment of the Bill of 3

For an excellent and provocative treatment of the reasons for Madison’s intense concern about the location of the seat of the national government, see Drew R. McCoy, “James Madison and Visions of American Nationality in the Confederation Period: A Regional Perspective,” in Richard Beeman, Stephen Botein, and Edward C. Carter II, eds., Beyond Confederation: Origins of the Constitution and American National Identity (Chapel Hill: University of North Carolina Press, 1987), 226–58.

Republican Opposition

17

Rights, which was less than two weeks short of becoming law of the land). In Madison’s view, the attempt to establish a national bank marked a new level of political fissure in the nascent republic. It was not only sectional rivalries that would need to be assuaged and differences on policy questions that would require delicate compromise at the outset of the new government. Now the meaning of American constitutionalism and the character of republican government seemed to be at issue. Hamilton’s proposed measure for the bank, combined with his apparent desire to perpetuate the national debt and encourage the speculators who rushed to take part in his enterprise, would create a class of wealthy citizens who possessed an undue influence on government, much as the way the British government operated. Madison was absolutely convinced – and had been for some time – that the British political system was not the model for America. Nonetheless, Hamilton’s efforts to move the nation in the direction of the British model had received support from a majority of the members of Congress. Vice President John Adams’s labors threatened to move public opinion in a similar direction that, Madison believed, was incompatible with republicanism. Just weeks into the first administration, Adams proposed the use of British-style titles in America “with great earnestness,” Madison complained.4 Most recently, he had added a fourth volume to his Defence of the Constitutions of Government of the United States of America, titled Discourses on Davila, which was published in periodic installments in Fenno’s Gazette of the United States in 1790–91. Madison, who regularly subscribed to the newspaper, had to ingest Adams’s aristocratic views and “obnoxious principles” with his morning tea. Hamilton’s and Adams’s admiration for the aristocratic British model of government was not news to Madison in 1791. In 1787 Hamilton had stood on the floor of the Constitutional Convention and remarked that in his “private opinion” he considered the British government to be the best in the world and doubted whether anything short of it would secure good government in America.5 Madison had listened to and recorded this daylong brazen speech favoring an executive and a Senate for life, just as he noted Hamilton’s endorsement of the British practice of “influence” and “corruption” in government.6 Perhaps all of this would have been forgotten 4 5

6

PJM 12:182. James Madison’s version of Alexander Hamilton’s “Speech on a Plan of Government,” June 18, 1787, PAH IV:192. Cf. Alexander Hamilton’s notes, IV:184; Robert Yates’s version, IV:200; John Lansing’s version, IV:204; Rufus King’s version, IV:207. Adrienne Koch, ed., James Madison’s Notes of Debates in the Federal Convention of 1787 (Athens: Ohio University Press, 1966), 131–32, 175.

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James Madison and the Spirit of Republican Self-Government

or chalked up to savvy political maneuvering had not Hamilton’s public deeds and unguarded words later revealed otherwise. At the legendary dinner party hosted by Jefferson and attended by John Adams and Alexander Hamilton in April 1791, Hamilton once again demonstrated how audacious he could be. In response to Adams’s pedantic remarks on the near perfection of the British constitution, which, he said, needed only to be purged of its corruption and equality of representation established in its popular branch, Hamilton’s riposte must have tested the bounds of his host’s civility: “Purge it of its corruption, and give to its popular branch equality of representation,” Hamilton purportedly said, “and it would become an impracticable government: as it stands at present, with all its supposed defects, it is the most perfect government which ever existed.”7 Almost certainly Jefferson’s good Madeira was flowing at the table that spring evening, and just as surely Jefferson repeated Hamilton’s provocative remarks to his friend Madison the next time they talked. At about the same time that Hamilton delivered his speech favoring a high-toned government at the Constitutional Convention, the first volume of Adams’s Defence reached America. This text examined the strengths and weaknesses of republics, ancient and modern, and argued that the tripartite balanced constitution of Great Britain was the most excellent of models. Madison was quick to criticize the work. Though it has some merit, he wrote Jefferson, much of it is “unfriendly to republicanism.” “Mr. Adams’s Book . . . has excited a good deal of attention” and would probably “revive the predilections of this Country for the British Constitution.”8 “Men of learning find nothing new in it. Men of taste many things to criticize.” It would nonetheless be read and praised “and become a powerful engine in forming the public opinion,” he lamented. By the close of the First Congress, Madison had grown increasingly anxious about the influence of Adams’s ideas on the American mind and future course of republicanism. During the course of that spring, he let loose his feeling about Adams’s views in a private letter to Jefferson. Adams’s work was “a mock defence of the Republican Constitutions of this Country,” which he actually attacked with “all the force he possessed.” To make matters worse, he composed and published his first volumes of the series while he was an official representative of the United States at a foreign court, and since becoming vice president, “his pen has been constantly at work in the same cause.”9

7

8 9

Adrienne Koch and William Peden, eds., The Life and Selected Writings of Thomas Jefferson (New York: Modern Library, 1972), 126. PJM 10:29. PJM 14:22.

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After dining with Jefferson on March 13, and feeling reinvigorated by the fresh country air and companionable society, Madison returned to his lodgings at Mrs. House’s Boarding House. With his books and papers spread about him in the small room he considered home in Philadelphia (he had stayed at Mrs. House’s while a member of Congress in the early 1780s and during the Constitutional Convention as well), and with little clear space for sleeping anyway, he likely picked up the volume that lay open on his desk and resumed the “little task” he had set for himself that spring. His task centered on a study of Jean Jacques Barth´elemy’s Voyage du jeune Anacharsis en Gr`ece dans le Milieu du Quatri`eme Si`ecle avant l’`ere vulgaire, a scholarly narrative that explores the culture and politics of classical Greece during the golden age.10 One imagines Madison with the Voyage in one hand and a pen in the other, moving back and forth over twenty-two centuries in his mind. Adams had missed the central point of the classics’ teaching on politics, Madison thought. The ancients certainly did not believe that republics could be sustained simply or even primarily by constructing an equilibrium in government, as if politics were essentially a balance scale of weights and pulleys. The vice president’s “extravagant self importance”11 and scholarly pretensions would do greater harm to the country than he knows and certainly more than Mr. Jefferson realizes, Madison mused. Madison undoubtedly worked late into many a night in the spring of 1791, reading until his eyes grew weary and his back sore, learning as much as he could from “the great oracles of political wisdom.” Sometimes, too, he picked a fight with these oracles, or with Adams and Hamilton, in his mind. Over the next year his scholarly endeavors would be left behind, replaced by more and more political and partisan activity, and finally by engagement in open party warfare. With Adams’s public reputation on the wane, due particularly to the publication of Discourses on Davila and the Publicola essays (whose authorship was initially attributed to him rather than to his son, John Quincy) and the rising dominance of Hamilton in the Washington administration, Madison increasingly targeted his strategy of oppositional politics against the measures of the secretary of the treasury, though at least one of his later anonymously published essays was aimed at Adams. By the end of 1791, with an advance copy of Hamilton’s “Report on Manufactures” in hand, Madison concluded that his worst fears had been realized. Hamilton meant, by administrative fiat, to undermine the Constitution as ratified and adopted by the American people and to alter the substance, and perhaps the form, of American republicanism. From Madison’s perspective, Hamilton’s 10 11

Voyage, 5:62, 225. PJM 11:296.

20

James Madison and the Spirit of Republican Self-Government

funding system, the national bank, and governmental support of manufacturing were linked together in a clever scheme that mimicked the British financial system and, if successful, would increase the powers of the national government and establish a powerful and influential monied class in America. The “Report on Manufactures” revealed to Madison that Hamilton intended nothing less than the transformation of the economic and political life of America. By the spring of 1792, an open split between Federalists and the newly formed Republican Party was evident in America, with Alexander Hamilton at the helm of one party and James Madison the leading voice of the other. Beginning in October 1791 and continuing through December of the following year, Madison published a series of nineteen unsigned articles, or Party Press Essays, in the newly launched Philadelphia newspaper the National Gazette. He and Jefferson had recruited Madison’s old Princeton classmate, Philip Freneau, to establish the newspaper and serve as its editor, and Jefferson had offered Freneau part-time employment as a translator at the State Department in order to ease his financial condition (for which he would be accused of patronage by the Federalists). The objective of the National Gazette was to circulate republican ideas on the issues of the day and to counteract the effects of the systematically proadministration newspaper, the Gazette of the United States. In chronological order of publication, Madison’s articles in the National Gazette appeared as follows: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

“Population and Emigration” “Consolidation” “Dependent Territories” “Money” (Part I) “Money” (Part II) “Public Opinion” “Government” “Charters” “Parties” “British Government” “Universal Peace” “Government of the United States” “Spirit of Governments” “Republican Distribution of Citizens” “Fashion” “Property” “The Union: Who Are Its Real Friends?”

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18. “A Candid State of Parties” 19. “Who Are the Best Keepers of the People’s Liberties?” Unlike the “Notes on Government,” upon which Madison based some but not most of the essays, there is no systematic order to the Party Press Essays, nor are they situated within the broad and enduring questions of political philosophy that characterized the “Notes.” While they do incorporate important aspects of Madison’s theoretical analysis of republicanism, the published essays in the National Gazette are primarily occasional pieces intended to address the political issues of the day. The essays can be divided roughly into two main categories: (1) those that emphasize the theoretical foundations of republicanism, and especially the centrality of the role of public opinion in free governments, and (2) those that focus on Republican opposition to certain economic and political policies of the Federalist administration. The former articles tend to be derivative of the philosophical arguments in the outline “Notes”; the latter have a much more partisan flavor that is not present in the “Notes.”12 The political pitch of the essays increases and intensifies over the period of publication; the tone of the first few essays, in fact, appears partisan only when viewed retrospectively, after a clear split between Federalists and Republicans became evident. Nonetheless, the initial essays do contain the seeds of what would become matters of acute party dispute. In rough outline, the transformation of the “republican cause” into the Republican Party can be traced by following Madison’s rhetoric through the Party Press Essays of 1791–92. Although Madison never mentioned Adams or Hamilton by name in these essays, he nonetheless implicated the former’s alleged defense of republican government and the latter’s role in initiating measures such as the funding system, the national bank, and governmental support of manufactures in the trend toward monarchy or aristocracy in America. Whether Hamilton or Adams actually sought to establish hereditary distinctions in America was not the central issue – though some Federalists probably did, and Madison believed that Adams’s publications and the treasury secretary’s financial program played into their schemes, providing the impetus toward new-modeling the American government on the British system. Their views and measures 12

The general role of public opinion is taken up in five of the essays, viz., “Public Opinion,” “Parties,” “British Government,” “Spirit of Governments,” and “Who Are the Best Keepers of the People’s Liberties?” Madison further explored the critical significance of the federal principle to the politics of public opinion in four of the Essays, namely, “Consolidation,” “Government,” “Charters,” and “Government of the United States.” The remaining essays deal with issues respecting public policy choices in the first administration, and primarily concern domestic and foreign fiscal policies of the Federalists, though some of these combine practical policy issues with theoretical considerations.

22

James Madison and the Spirit of Republican Self-Government

were “more accommodated to the depraved examples” of monarchy and aristocracy than to the genius of republicanism and, whether intended or not, might well “smooth the way to hereditary government” in America.13 In contrast to Jefferson’s accusations of monarchism leveled against Hamilton, Madison’s implicit attacks in the Party Press Essays are more circumspect; they are couched in terms of the impetus or tendency of Federalist measures toward the establishment of a British-style system in the United States. Madison believed that Adams sought to reproduce the equilibrium of the British model, if not by the creation of hereditary class distinctions, then by a mimetic equivalent of societal orders that would provide additional checks and balances in government, thereby presumably enhancing the stability of the political order.14 Arguing that parties are inevitable in all governments, Adams claimed that “the great secret is to control them,” either by instituting a monarchy and a permanent army or by establishing a balanced constitution. Adams clearly opted for the latter, calling for the institution of “standing powers” in order to avoid “greater evils.”15 This is a perverse understanding of the republican solution to the problem of parties, Madison argued in “Parties” – obliquely aiming his ink at Adams’s published views. Since parties exist naturally in all political societies, legislators and statesmen must find ways to alleviate their baneful effects. The art lies in preventing or accommodating parties, to the extent possible, and when not possible, making them mutual checks upon one another. By contrast, the notion of adding “more scales and . . . more weights to perfect and maintain the equilibrium,” that is, by promoting the creation of new parties or strengthening existing ones in order to achieve additional mutual checks in society, Madison declared, is “absurd.” Though this is the theory that undergirds the use of artificial distinctions such as king, nobles, and plebeians to attain a balanced government, it is simply not the republican way. It is analogous to the foolish ethicist who promotes new vices in order to counteract existing ones, and it “is as little the voice of reason, as it is that of republicanism.”16 Madison further pursued the faulty analysis that he believed underscored the Federalists’ praise of the British model with his direct critique of it in the essay “British Government.”17 In light of the praise lavished on it by men 13 14 15

16 17

“The Union: Who Are Its Real Friends?” PJM 14:274. “Parties,” PJM 14:197–98. Adams, Defence of the Constitutions of Government of the United States, vol. 3, WJA 6:118; 587–88. “Parties,” PJM 14:198. “British Government,” PJM 14:201–2. Cf. Madison’s implicit criticism of the British model of government in “Spirit of Governments,” PJM 14:233–34, and in Federalist 14. Despite

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such as Hamilton and Adams, and with the views expressed by Adams in the Defence clearly in mind, Madison argued that the “boasted equilibrium” of the British government, so far as it is even true, is not primarily due to “the form in which its powers are distributed and balanced.”18 The stability of the British government “is maintained less by the distribution of its powers, than by the force of public opinion.”19 Stability and liberty are not secured by limiting the share of the people to a third of government and counteracting their influence by “two grand hereditary orders” with rival and hostile “feelings, habits, interests, and prerogatives,” or by any simulation of the British model of class warfare or party contestation.20 Madison believed Hamilton intended his economic plan to invest the national government with “influence,” thereby enabling it to dispense money and emoluments and strengthen its position vis-a-vis the states.21 This was ` supported by the institution of a funding system, which would continue to provide the source for political influence as long as the debt was perpetuated – and he suspected that Hamilton intended to fund the debt in perpetuity.22 Instead of setting a time for the redemption of the debt and making adequate provision to pay it off, which would lower inflation and reestablish public credit, Hamilton sought to finance the debt through increased borrowing. The two-part essay entitled “Money,” which Madison published in 1791 but probably wrote in 1779–80 when he was a delegate to the Continental Congress, served as a response to the treasury secretary’s funding scheme.23 The two essays criticized the idea that an increased supply of active (paper) money would stimulate the economy, establish public credit, and increase productivity, thereby diminishing the debt and increasing the wealth of the nation. Madison did not believe that the value of money is

18 19 20 21 22

23

Madison’s clear rejection of the British constitution as the model for America, Michael Zuckert claims that “a modern American form of republicanism, modeled on the British constitution [was] developed by [Jefferson’s] friend, James Madison . . . and embodied more or less in the Constitution of the federal union” (Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition [Notre Dame, Ind.: University of Notre Dame Press, 1996], 221). “British Government,” PJM 14:202. Ibid. “Who Are the Best Keepers of the People’s Liberties?” PJM 14:427. Ibid.; “A Candid State of Parties,” 14:371; “Spirit of Governments,” 14:233. PJM 13:106, 317. Cf. PJM 15:474, 14:208, 274–75; James Madison to Edmund Randolph, March 14, 1790, PJM 13:106; Frederick Augustus Muhlenberg, “Address of the House of Representatives to the President,” December 10, 1790, 13:317; James Madison to Thomas Jefferson, February 15, 1795, PJM 15:474; “Universal Peace,” 14:208; “The Union: Who Are Its Real Friends?” 14:274–75. See PJM 1:309–10, n. 1.

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James Madison and the Spirit of Republican Self-Government

regulated by the quantity in circulation. It depends instead on the credit of the nation that issues it and on the time of its redemption to gold and silver. Further, the value of gold and silver depends on the proportion of those metals that a country possesses in relation to other commercial nations. Funding schemes may or may not assist in the establishment of public credit, Madison argued. If such a scheme is not carefully implemented, demand-pull inflation may result, further increasing distrust of public credit and leading to national bankruptcy. A cautiously executed funding program can do no more than show the good faith of the nation and buy time in which to increase its actual wealth, for funding itself does not increase the wealth of a nation. At best, bills of credit only delay payment, and loan-office certificates (which are redeemable only at future dates) actually increase the national debt by adding to it the cost of exchange, reexchange, and accrued interest. This creates an even greater need to relieve public credit. “In order to relieve public credit sinking under the weight of an enormous debt,” Madison sardonically wrote, we invent new expenditures. In order to raise the value of our money, which depends on the time of its redemption, we have recourse to a measure which removes its redemption to a more distant day. Instead of paying off the capital to the public creditors, we give them an enormous interest to change the name of the bit of paper which expresses the sum due to them; and think it a piece of dexterity in finance, by emitting loan-office certificates, to elude the necessity of emitting bills of credit.24

“No expedient could perhaps have been devised more preposterous and unlucky,” Madison declared. Madison regarded the establishment of a national bank as an unconstitutional usurpation of power by the national government, believing it to be neither necessary nor proper according to the Constitution, though he fully recognized that it was a necessary element of Hamilton’s scheme to fund the debt and establish a class of wealthy industrialists who would wield political power in America. Taken together, the national bank and the funded public debt encouraged a “spirit of speculation” within and without government.25 Hamilton’s system of public finance appealed to the avidity of public officials, tempting them to substitute the motive of private interest for public duty.26 It directed governmental measures to the interest of the few, providing the “monied men” with irresistible opportunities for further enrichment.27 24 25 26 27

PJM 1:309. “The Union: Who Are Its Real Friends?” PJM 14:274. “Spirit of Governments,” PJM 14:233. “A Candid State of Parties,” PJM 14:371.

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In “Property,” “Fashion,” and “Republican Distribution of Citizens” Madison took implicit aim at Hamilton’s “Report on Manufactures” and governmental schemes that favored one branch of industry over another rather than allowed the economy to follow its natural course. The wealth accumulated by the frenzy of speculative activity prompted by Hamilton’s funding plan was to be channeled into the manufacturing industry, again by an unconstitutional exercise of power. Governmental manipulation of the choice of occupations via the artificial encouragement of manufactures would promote the interest of this class at the expense of other interests in the society, particularly the agricultural interest. Landholders would be burdened with arbitrary taxes while rich merchants were granted new and “unnecessary opportunities” to capitalize on their wealth.28 This show of partiality to the wealthy few, though touted as advancing the prosperity and happiness of the nation as a whole, would in time, Madison argued, actually give “such a turn to the administration, [that] the government itself may by degree be narrowed into fewer hands, and approximated to an hereditary form.”29 Designed to simulate the practices of the British system, it would introduce corruption and venality into government and encourage self-interest as its driving force. Madison contemptuously described this governmental model in “Spirit of Governments,” arguing that such a government operates on the basis of “corrupt influence” and “private interest,” rewarding the avidity of a part rather than benefiting the whole and supporting the domination of the few over a pretended liberty of the many.30 Despite Montesquieu’s, Hamilton’s, and Adams’s categorization of this type of government as a republic, Madison argued that in reality it is “an imposter.” Fortunately, such a government was not yet established in America. It is to the honor of Americans that they never stoop to “mimic the costly pageantry of its form, nor betray themselves into the venal spirit of its administration.”31 In essence, Madison all but said, the Federalist admiration of the English model is in truth the approbation of corruption and aristocratic pomp. He did not say, though he may have thought it, that Hamilton was especially to blame for attempting to incorporate into America the British “venal spirit” of corruption and Adams for covetously endeavoring to copy “the costly pageantry” of the British monarchy.

28 29 30 31

“Parties,” PJM 14:197. “A Candid State of Parties,” PJM 14:371. “Spirit of Governments,” PJM 14:233. Ibid., 14:233–34.

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James Madison and the Spirit of Republican Self-Government

By advancing the cause of speculators and manufacturers, Hamilton’s plan would increase the dependence and servility of the common citizens, whose labor and livelihood would be captive to the fashionable tastes of the wealthy for luxury goods produced in the new industries. Economic dependency begets political dependency, Madison argued in “Property”; it has a deleterious effect upon liberty and strips the citizen of a sense of security in his person, his possessions, his faculties, and his opinions. Servility among American citizens at home would thus imitate the economic servility of America abroad. The lack of commercial reciprocity between the United States and Great Britain was for many years a particularly sore spot for Madison. Madison’s first Party Press Essay, “Population and Emigration,” published on November 19, 1791, and his second, “Dependent Territories,” which appeared less than a month later, are both advocacy pieces for commercial discrimination against the British. Since the First Congress, Madison had labored diligently but unsuccessfully to enact a policy that would tax the goods and carrying ships of those countries that did not have economic treaties with the United States (i.e., Great Britain), thereby achieving commercial reciprocity or at least more advantageous commercial relations. In so doing, Madison sought to “discriminate” against America’s former “mother country,” thus following through on Publius’s (Hamilton’s) passionate call for a union strong enough to institute prohibitory trade regulations against Great Britain – indeed, for one powerful enough “to dictate the terms of the [economic] connection between the old and the new world!”32 It was probably not an accident that Madison’s articles on British commercial policy appeared just shortly after the first British minister plenipotentiary to the United States, George Hammond, arrived in Philadelphia to conduct negotiations pertaining to economic relations between the two countries. In “Population and Emigration” Madison claimed that in respect to American exports to Great Britain, the United States is in possession of only about one-fifth of the carrying freight, even though it is actually entitled to half. America should not stand for Britain’s “monopolizing” commercial policy, he argued, but should call for more just commercial relations between the two nations. Moreover, British emigration to the United States increases American demand for British products, British demand for raw materials from America, and cartage by British mariners and merchants,

32

Federalist 11, passim. For an excellent study of Madison’s and Hamilton’s stances on U.S. commercial policy toward the British see Michael Schwarz, “The Great Divergence Reconsidered: Hamilton, Madison, and U.S.–British Relations, 1783–89,” Journal of the Early Republic 27:3 (2007), 407–36.

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thereby employing and sustaining a significant number of people in the British Isles who would otherwise lack the means of survival. In sum, British emigration to and trade with the United States are critical to Britain’s prosperity. Why, he wanted to know, are we not demanding our fair commercial share? In “Dependent Territories” Madison continued his criticism of Britain’s policy of commercial discrimination, expanding it to include an attack on British colonialism. The British West Indies depended on the United States for the necessities of life, he argued, while Great Britain depended on us for the raw materials used in its manufacturing industry. Surely there is no reason to stand for the policy that American exports to the West Indies and England must be shipped in British bottoms (i.e., merchant vessels). In addition, the United States was Great Britain’s best customer, while the former depended on the latter only for nonnecessities and luxury items. America could do without these or produce substitutes. Moreover, although Great Britain bought the bulk of American exports, it was not in actuality our best customer, for it reexported a significant amount of American produce to other countries, particularly France. The relationship of the West and East Indies to Great Britain is analogous to that between slave and master, Madison asserted, and it has a similar influence on the character of both. The master country cherishes “pride, luxury, and vanity,” and the dependent territory learns “vice and servility, or hatred and revolt.” This is precisely what happened in the case of the American Revolution, Madison implied, and our situation at present is little different from the financial dependence on Great Britain that we were forced to endure prior to political independence. Even under the new Constitution, the Federalists were unwilling to lay down the gauntlet, and the new nation’s economic subordination to England was virtually unchanged since colonial times. Madison’s strong opposition to the policy of commercial nondiscrimination against the British in the 1790s was the leading, though not sole, cause of his sustained foreign policy battles with Hamilton and the Federalists throughout the decade and beyond. He saw Hamilton’s hand clearly behind the president’s Neutrality Proclamation of 1793, which declared the country’s neutrality between England and France in the war that had broken out between them. Madison criticized the Proclamation both because he believed it was an executive usurpation of legislative authority and because sufficient consideration had not been given to the American-Franco Treaty of 1778. He suspected that the Proclamation was largely the result of Hamilton’s unwarranted fear of British commercial retaliation if the United States upset the favorable balance of trade enjoyed by the former. To add insult to

28

James Madison and the Spirit of Republican Self-Government

injury, Hamilton and the Federalists orchestrated the negotiation of a new treaty with Great Britain through the diplomatic aegis of John Jay in 1795, which they took pains to keep from the public eye until all was done and settled.33 The new treaty, Madison believed, put America at an even greater economic disadvantage than it had been in previous years. The war between England and France caused almost as much hostility between opposing camps in America as it did in Europe. Madison and Jefferson thought Hamilton and his cronies Anglophiles and mere toadies of the British government. Hamilton returned the compliment, calling Jefferson and Madison Francophiles whose attachment to France was “womanish.” By the close of the decade, a pattern of missteps by the French minister Genˆet and the heightened passions and suspicions of the French and their American defenders resulted in the passage of the Alien and Sedition Acts, which President John Adams somewhat reluctantly signed into law. Though Madison had left the capital scene in 1797 to return to his home at Montpelier with his new wife, Dolley, he was persuaded by Vice President Jefferson to once again put his pen to service in the Republican cause. Jefferson wrote the Kentucky Resolutions while Madison composed the Virginia Resolutions, calling upon the other states to join them in vehement opposition to measures that would destroy the sacred liberties of the American people. The Federalist assault on free speech, Madison argued, was part of their agenda to promote the submission of the people to the government. In republican government, he argued, “the censorial power is in the people over the government, and not in the government over the people.”34 Seeking to encourage “public confidence” rather than public watchfulness over the government, the Federalists would obstruct the institution that provides the channel to make the government of a large territory responsible to the people. They would suppress

33

34

See Todd Estes’s insightful study of the politics surrounding the Jay Treaty in The Jay Treaty Debate, Public Opinion, and the Evolution of Early American Culture (Amherst: University of Massachusetts Press, 2006). According to Estes, “Some of the tactics and techniques used in the debate were not new, but their scale and deployment and effect on public opinion were. . . . [T]he Jay Treaty debate can be seen as the last vestige of an older, more deferential political culture championed by Federalists, even as the debate itself (and the tactics used by both sides) helped to hasten the acceptance of a more open, democratic culture espoused by the Republicans. In short, the Federalists won in the short term but found themselves losing the long-term struggle for control of the nation’s political culture” (2–4). “House Address to the President,” November 27, 1794, PJM 15:391; cf. 11:163; James H. Read, Power versus Liberty: Madison, Hamilton, Wilson, and Jefferson (Charlottesville: University Press of Virginia, 2000), 69–70.

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the free communication of opinions among the people, though this has ever been deemed “the only effectual guardian of every other right.”35 Under Madison’s initial leadership in 1791–92 the “republican cause” became the Republican Party. Throughout the 1790s Republicans united in opposition to the Federalist agenda, which they believed sought to dismiss or enervate the power of public opinion, distance the government from the will of the people, and undermine the people’s spirit of independence and capacity for self-government. Whatever the differences between Adams’s and Hamilton’s visions for America, in this regard the Republicans viewed them as advancing the same antirepublican agenda. Madison’s central charge against the Federalists was that they denied the people the republican right to govern themselves. Believing that the people are “stupid, suspicious, [and] licentious,” and that they cannot be trusted as keepers of their own liberties, the Federalists preached confidence in government and submission to its acts.36 They appealed “less to the reason of the many than to their weaknesses” and have “debauched themselves into a persuasion that mankind are incapable of governing themselves.” Republicans, on the other hand, believe that the people are “the best keepers of [their] liberties” and take offense “at every public measure that does not appeal to the understanding and to the general interest of the community, or that is not strictly conformable to the principles, and conducive to the preservation of republican government.”37 Rather than promote servile obedience to the government, they think that “the people ought to be enlightened, to be awakened, to be united, [and] that after establishing a government they should watch over it, as well as obey it.”38 In a word, they believe in “the doctrine that mankind are capable of governing themselves.”39 Adams and Hamilton viewed matters from a very different and, they believed, more realistic perspective. Indeed, each saw himself as the rescuer of republicanism in a new age. For Adams, the challenge of republicanism was to provide an antidote to the pride of human nature, as it remained permanently in a fallen world, but that could now be controlled by a new conception of dynamic balances. For Hamilton, the solution lay in a new 35

36 37 38 39

Marvin Meyers, The Mind of the Founder: Sources of Political Thought of James Madison (Hanover, N.H.: Brandeis University Press, 1981), 262–63. “Who Are the Best Keepers of the People’s Liberties?” PJM 14:426–27. “A Candid State of Parties,” PJM 14:371. “Who Are the Best Keepers of the People’s Liberties?” PJM 14:426. “A Candid State of Parties,” PJM 14:371.

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order of republicanism in the modern economic age of industry and competitive advantage. Madison thought Adams and Hamilton placed too much reliance on modern science and the mechanics of self-interest and did not attend sufficiently to the power of the human spirit. He too sought a new order of the ages, but one that he believed marked a more noble republican course.

2 The Federalist Agenda

Madison’s philosophic lead in opposing the “antirepublican” views and measures of the early 1790s defined the essential controversy between what would soon become the first American political parties. But history does not always favor the victors, and Madison’s characterization of his opponents as antirepublicans did not stick. To almost a man, the Federalists considered themselves the true proponents of republicanism, much as the Antifederalists of the 1780s believed themselves to be the real Federalists. The character of Federalist Party thought remains unsettled in scholarship today, with myriad books that criticize the views of men such as John Adams and Alexander Hamilton (generally from a “Jeffersonian perspective”) and others that defend their republican credentials.1 Despite the widely read and 1

See Gordon Wood’s analysis of Adams as a classical republican thinker in The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969), ch. 14. Robert Webking and John Patrick Diggins, in contrast, claim that Adams is more appropriately situated within the liberal tradition (The American Revolution and the Politics of Liberty [Baton Rouge: Louisiana State University Press, 1988]; The Lost Soul of American Politics: Virtue, Self-Interest, and the Foundations of Liberalism [New York: Basic Books, 1984]). In a sympathetic and thoughtful recent work on Adams, C. Bradley Thompson (John Adams and the Spirit of Liberty [Lawrence: University Press of Kansas, 2002]) defends Adams’s republican credentials on the terms he himself set forth, rejecting the view of several leading scholars that identify him as a classical republican thinker. In fact, Thompson claims, Adams was “the first major American theorist to reject classical republicanism explicitly.” Excellent studies on Hamilton’s republican ideas include Gerald Stourzh, Alexander Hamilton and the Idea of Republican Government (Stanford, Calif.: Stanford University Press, 1970); Karl-Frederich Walling, Republican Empire: Alexander Hamilton on War and Free Government (Lawrence: University Press of Kansas, 1999); and Robert W. T. Martin, “Reforming Republicanism: Alexander Hamilton’s Theory of Republican Citizenship and Press Liberty,” in Douglas Ambrose and Robert W. T. Martin, eds., The Many Faces of Alexander Hamilton: The Life and Legacy of America’s Most Elusive Founding Father (New York: New York University Press, 2006), 109–33. See also

31

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influential essay by Daniel Rodgers, titled “Republicanism: The Career of a Concept,” which proclaims the end of “republicanism” as a paradigm for the American Founding, such interpretive claims will no doubt continue in the literature on this era. This is as it should be, for the term “republican” is not a later invention by scholars that has been superimposed on the eighteenth century. Rather, it is a term employed regularly by the Founders themselves to describe a form of government whose origins date to classical times. That the word meant different things to different people is not a reason to abandon its usage. Instead, it is all the more reason to explore its meanings and to attempt to uncover the power of a concept that inspired men of such different views and that continues to define the nature of the American political system to this day. Although historians have situated John Adams and Alexander Hamilton together under the banner of the Federalists, the union between them was precarious even in the best of times. Both considered themselves defenders of republicanism, both praised the British constitution of balanced government, and both believed that the version of republicanism that emerged from the Constitutional Convention was probably unworkable and that the United States would eventually have to move closer to the English model. Adams, however, did not share Hamilton’s British-inspired vision of high finance and industrialization for America. Moreover, the personalities of the two men were decidedly unsuited to each other, and there was no love lost between them. Adams largely blamed Hamilton for his loss in the presidential election of 1800, though on this as on many other matters, he seems to have misread Hamilton.2 Adams did not have Hamilton’s analytical quickness of mind or his flair for risk, not to mention the New Yorker’s good looks or charm. Dubbed “His Rotundity,” Adams was stodgy in appearance and manner, and his mind tended toward the pedantic and plodding. His vanity and jealousy of others were well-known traits that many of his colleagues found irritating (including Madison), though they were offset by a remarkable fulsomeness of heart that marked his relationships with those he loved and

2

Ron Chernow, Alexander Hamilton (New York: Penguin Books, 2004); Stephen F. Knott, Alexander Hamilton and the Persistence of Myth (Lawrence: University Press of Kansas, 2002); John Lamberton Harper, American Machiavelli: Alexander Hamilton and the Origins of U.S. Foreign Policy (Cambridge: Cambridge University Press, 2004), 3–6. Cf. Gordon Wood’s provocative and delightful compilation of articles on Hamilton and Adams (and other “worthies” of the Founding generation) in Revolutionary Characters: What Made the Founders Different (New York: Penguin Press, 2006). Forrest McDonald, Review of The Papers of Alexander Hamilton, Vols. XX–XXII, in William and Mary Quarterly 33:4 (1976), 678.

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considered friends. Still, Adams was at times such a caricature of himself that his idiosyncrasies were irresistible fodder for anyone with a sense of satire. In fact, they still are. In the musical 1776 the puffed-up figure of Adams is, ironically, unforgettable. “I’ll not be in the history books,” Adams whines: Only Franklin. Franklin did this, and Franklin did that, and Franklin did some other damn thing. Franklin smote the ground, and out sprang General Washington, fully grown and on his horse. Then Franklin electrified him with that miraculous lightning-rod of his, and the three of them – Franklin, Washington, and the horse – conducted the entire War for Independence all by themselves.

As perfectly wrought and comic as this little speech is, one might think that it is pure fiction. Actually, though, it is not far from what Adams actually did say, though the celebrity of the horse was high artistic invention. “The History of our Revolution will be one continued lye from one end to the other,” Adams wrote Benjamin Rush in 1790. “The essence of the whole will be that Dr. Franklin’s electric rod smote the earth and out sprang General Washington. Then Franklin electrified him . . . and thence forward those two conducted all the Policy, Negotiations, Legislations, and War.”3 However foppish Adams may have been at times, no one doubted his sincere devotion to America or the significant contributions he made to the revolutionary cause. Next to Washington and Franklin, he was considered by his countrymen the leading senior statesman. He had been at the forefront of the American cause for independence since its inception, leading the way in the revolutionary war of ideas and in formulating constitutional structures for the new states. He chaired the committee that drafted the Declaration of Independence, authored Thoughts on Government, drafted the Massachusetts Constitution, and served as America’s first minister to Great Britain under the new United States Constitution. With the publication of his four-volume A Defence of the Constitutions of Government of the United States of America in 1787–92, it was reasonable for Madison to expect that Adams’s ideas would carry weight with the American people. Certainly Adams expected that they would. The central thrust of the Defence is the case for the constitutional separation and balance of powers in government. It was aimed particularly at the views of the French politician and writer Anne Robert Jacques Turgot, 3

Quoted in Robert Ferguson, “The American Enlightenment, 1750–1820” in Sacvan Bercovitch, ed., Cambridge History of American Literature (Cambridge: Cambridge University Press, 1994), 348.

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who had criticized the American state constitutions’ provisions for legislative bicameralism and checks and balances (Pennsylvania and Georgia, with their unicameral legislators, excepted), which Turgot asserted were imitations of the British royal government and had no place in a republic. The American states “endeavor to balance these powers,” Turgot wrote, as if this equilibrium, which in England may be a necessary check to the enormous influence of royalty, could be of any use in Republics founded upon the equality of all the Citizens, and as if establishing different orders of men, was not a source of divisions and disputes.4

In contrast to the English model, Turgot advocated that all authority be collected into “one center, the nation.”5 According to Adams, Turgot’s scheme would concentrate all the powers of government – legislative, executive, and 4

5

A. Turgot, “Letter from A. Turgot,” in W. Bernard Peach and D. O. Thomas, eds., The Correspondence of Richard Price, 3 vols. (Durham, N.C.: Duke University Press, 1991), 2:13. Adams’s critique is based on a letter Turgot sent to Dr. Richard Price in 1778, which Price published after Turgot’s death in Observations on the Importance of the American Revolution, and the Means of Making It a Benefit to the World (Dublin: Printed for T. Cadell, in the Strand, 1785; repr., Whitefish, Mo.: Kessinger Publishing Company, 2007). It is interesting to note that John Adams’s praise for mixed government in many ways paralleled that of Jean Louis Delolme, an intellectual adversary of Price. As David Lieberman argues in “The Mixed Constitution and the Common Law,” in Mark Goldie and Robert Wokler, eds., The Cambridge History of Eighteenth-Century Political Thought (Cambridge: Cambridge University Press, 2006), 339: “In elucidating the history and operation of England’s constitution, Delolme traversed well-rehearsed matters of political structures, government functions, and themes of balances and checks. Nonetheless, his study is indicative of how, by the mid-1770s, significantly divergent accounts had developed concerning the manner in which this government system produced its celebrated benefit: political liberty. The spectrum of interpretation can be indicated through a brief comparison of the sharply contrasting positions adopted in Delolme’s tendentious rendering of England’s separation of powers and in Richard Price’s no less substantial recasting of England’s mixed constitution in his 1776 Observations on the Nature of Civil Liberty. Ultimately, what divided the two theorists was a basic conflict over the nature of liberty, which by this time boasted a rich and distinguished pedigree. Price, who defined liberty in general with ‘the idea of self-government or self-direction’, identified civil freedom as the capacity of the members of a given community to govern and make laws for themselves” (Richard Price, Observations on the Nature of Civil Liberty in Political Writings, D. O. Thomas, ed. [Cambridge: Cambridge Texts in the History of Political Thought, [1776] 1991], 22, 23–24). Delolme (reacting here to the doctrines of Rousseau) directly repudiated this approach. “‘To concur by one’s suffrage in enacting laws’ was to enjoy ‘a share’ of ‘power’; ‘to live in a state where the laws are equal . . . and sure to be executed’ was ‘to be free’” (Jean Louis DeLolme, The Constitution of England; or, An Account of the English Government, William Hughes, ed. [London, [1771] 1834], 212; and see William Paley, Principles of Moral and Political Philosophy, in Works of William Paley, Edmund Paley, ed., 4 vols, [London: [1785] 1838], 3:250–52).

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judicial – in one representative assembly. Would Turgot have no checks, no orders, no balance, Adams asked in astonishment? Adams’s intention in writing the Defence was only partially to present a critique of Turgot’s opposition to bicameralism and mixed, balanced government, however. That could have been done quite easily and in a brief exposition, he admitted. Adams’s goal was also to assemble the views of the most thoughtful philosophers, historians, and politicians “whose writings were in the contemplation of those who framed the American constitutions.”6 The preservation and destruction of governments is a subject that engaged the attention of these writers whose influence may be seen in America, and their analysis shows “the utility and necessity of different orders of men, and an equilibrium of powers and privileges.”7 Adams thought the classical idea of mixed, balanced government was best summarized by Polybius. He accepted Polybius’s general premise of the need to institutionalize the rivalry between the different social classes within the government, but he believed he had improved on the classical doctrine by including three, rather than only two, opposing weights within the scale of government. To accomplish this, he blended the classical mixed government theory with the modern notion of separation of powers set forth by Montesquieu, thereby advancing the idea of a strong and independent executive and a tripartite separation of independent powers and balances within the legislative branch of government.8 Though Adams did not advocate a balance of hereditary orders, he nonetheless sought to institute a system of class rivalry and counterpoises within government as imitative of the British model as possible. History shows that the classical republics that maintained themselves the longest were able to do so because they incorporated a balance of social orders and rivalries within their constitutional structures, he argued. Ultimately, however, their corruption and demise were due to their defective conception of a dual rather than tripartite balance, the latter of 6 7 8

Adams, Defence of the Constitution of Government of the United States, vol. 2, WJA 4:435. Ibid., vol. 1, WJA 4:440. See David Wootton’s in-depth discussion of the distinction between the theory of mixed and balanced government, on the one hand, and the separation of powers, on the other, in “Liberty, Metaphor, and Mechanism: The Origins of Modern Constitutionalism,” in D. Womersley, ed., Liberty and American Experience in the Eighteenth Century (Indianapolis: Liberty Fund, 2006), 209–74. Wootton argues that it is necessary to understand this distinction in order to recognize the various and differing ways that the idea of checks and/or balance(s) has been conceived by writers on government. Adams attempted to bring together the diverse analytical and historical traditions associated with mixed government (and balance) and separation of powers (and checks). Prior to Adams, Spelman’s translation of Polybius’s fragment on the balanced constitution made “checks” and “balances” virtually equivalent.

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which, in practice at least, was never accomplished prior to the establishment of the English constitution.9 It may seem ironic that the Founder who was perhaps hardest on himself (and his sons), in terms of living up to moral standards, did not make more of a place for virtue in his political philosophy. Undoubtedly, Adams considered virtue absolutely necessary to happiness and the good life.10 But he also believed that human beings seldom choose virtue for virtue’s sake, that in fact they tend to covet the sham virtue of honor or distinction, and that the wise legislator will arrange the operations of the various classes of society to counteract this fundamental fact of human nature. In Adams’s mind, the institutionalization of social orders within government was not an endorsement of aristocracy but the recognition of the prideful nature of man and the need to control its harmful effects. He believed that the passion for distinction is present in every human soul, from the lowliest clerk to the blueblooded aristocrat. In commercial societies, the desire for wealth (and the distinction it brings) moves the common man, and the institutionalization of this interest serves to check the ambitions of the few. Conversely, aristocratic pride, “which looks down on commerce and manufactures as degrading,” especially when supported by “the pompous trumpery of ensigns, armorials, and escutcheons,” can help to prevent “the whole nation from being entirely delivered up to the spirit of avarice” in commercial nations. According to Ralph Lerner, Adams considered such pretensions “mischievous and ridiculous in America,” but nonetheless recognized that some sorts of countermeasures to “the universal gangrene of avarice” are necessary. He thus encouraged utilizing the rivalry between acquisitiveness and pride of birth to achieve a balance of passions and prejudices within the political order.11 In the third volume of the Defence Adams focused his attack on Marchamont Nedham, a seventeenth-century British writer considered a leading exponent of republican ideas.12 Turgot’s idea of collecting all authority 9 10

11

12

Adams, Defence, vol. 1, WJA 4:469, 559. See Andrew S. Trees’s discussion of Adams’s views on the relative importance of virtue versus governmental arrangements in civic life in The Founding Fathers and the Politics of Character (Princeton, N.J.: Princeton University Press, 2003), 75–105. “Commerce and Character: The Anglo-American as New-Model Man,” William and Mary Quarterly 36 (1979), 23 and n. 58. According to Paul Rahe, Marchamont Nedham did propagate republicanism and populism – but of the Machiavellian stripe (Paul A. Rahe, “Machiavelli in the English Revolution,” in Rahe, ed., Machiavelli’s Liberal Republican Legacy [Cambridge: Cambridge University Press, 2006], xxiii, 1–22). Rahe argues that Nedham’s bow to man’s rational capacities and to self-government was “no more than a passing rhetorical flourish, conferring a certain specious dignity on a populist argument that is otherwise Machiavellian through and

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into “‘one center,’ and that center the nation,” was probably derived from Nedham, Adams claimed.13 Adams understood that Turgot meant by “the nation” the people. Subsequent to the original agreement to form the nation, however, Adams believed that to speak of the nation was euphemistic. At this stage, there really is no entity that can be properly termed the nation or the people, he argued; rather, there is the majority and the minority in a state. Nedham had set forth the fundamental principle that “the people . . . are the best keepers of their own liberties.”14 “But who are the people?” Adams asked. “If by the people is meant the whole body of a great nation,” he responded, it should never be forgotten, that they can never act, consult, or reason together, because they cannot march five hundred miles, nor spare the time, nor find a space to meet; and therefore, the proposition, that they are the best keepers of their own liberties, is not true. They are the worst conceivable; they are no keepers at all. They can neither act, judge, think, or will, as a body politic or corporation.”15

If by the people is meant the majority, or the majority represented in successively chosen assemblies and responsible only to their constituents, without the check of an independent executive and senate composed of different orders of men, the proposition is also false. “The majority has eternally, and without one exception, usurped over the rights of the minority,” Adams contended.16 The English government is the only one that has provided against this problem and, indeed, is the only “scientifical government”; by

13 14 15 16

through” (13). Although it is beyond the scope of this project to pursue, Rahe has also noted in conversations with me that it is “odd that Adams thinks Nedham the inspiration of Turgot: Nedham was a very early proponent of the separation of powers.” See also Rahe’s discussion of Nedham in his forthcoming volume, Soft Despotism, Democracy’s Drift (New Haven, Conn.: Yale University Press, 2008). Cf. Paul A. Rahe, Republics Ancient and Modern: Classical Republicanism and the American Revolution (Chapel Hill: University of North Carolina Press, 1992), 409–26; Blair Worden, “Marchamont Nedham and the Beginnings of English Republicanism, 1649–1656,” in David Wootten, ed., Republicanism, Liberty, and Commercial Society, 1649–1776 (Stanford, Calif.: Stanford University Press, 1994), 45–81; Blair Worden, “‘Wit in a Roundhead’: The Dilemma of Marchamont Nedham,” in Susan D. Amussen and Mark A. Kishlansky, eds., Political Culture and Cultural Politics in Early Modern England: Essays Presented to David Underdown (Manchester, U.K.: Manchester University Press, 1995), 301–37; Blair Worden and Joad Raymond, “The Cracking of the Republican Spokes,” Prose Studies 19 (1996), 255–74; Joseph Frank, Cromwell’s Press Agent: A Critical Biography of Marchamont Nedham, 1620–1678 (Lanham, Md.: University Press of America, 1980). Adams, Defence, vol. 3, WJA 6:6. Ibid., Ibid., WJA 6:6–7. Ibid., WJA 6:10; 61; 127.

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instituting “standing powers” based on the natural orders of men, it has avoided much “greater evils.”17 In Madison’s Party Press Essay “Who Are the Best Keepers of the People’s Liberties?” a hypothetical “republican” defends the idea that the people are the best keepers of their own liberties. In response, a hypothetical “antirepublican” rejects this fundamental tenet, searching instead for “the mysteries of government” in the “science of the stars” and “fathoming the depths where truth lies hidden” and the “secret art” of government is to be found. “Wonderful as it may seem,” the anti-republican says, “the more you increase the attractive force of power, the more you enlarge the sphere of liberty.” In fact, the establishment of two grand orders “inveterately hostile to the rights and interests of the people” – “by a mysterious operation” – results in the fortification of their rights and interests. “Mysterious indeed!” the republican mockingly responds, “but mysteries belong to religion, not to government, to the ways of the Almighty, not to the works of man.” Madison’s implicit target in this essay is Adams; his anti-republican mouthpiece echoes Adams’s argument in the chapter on Benjamin Franklin in the first volume of the Defence. Citing the anecdote that Franklin supposedly told at the 1776 Pennsylvania Convention during the debate about whether there should be one or two legislative assemblies, Adams recounted Franklin’s story about a group of wagoners. In order to descend a steep hill with a heavy load, the wagoners tied two cattle to the front of the wagon to pull it down the hill and two cattle to the back of the wagon to pull it up. The cattle in front, plus the weight of the load, overbalanced the pair pulling up the hill and the wagon moved “slowly and moderately down the hill.”18 Perhaps, Adams remarked, Franklin might have recalled from Newton that for every action there must be an equal and contrary reaction, or there can be no rest. Had Harrington been in attendance at the convention, Adams continued, he would have said, as he once did when remarking on two girls dividing a cake and choosing a piece, “O! the depth of the wisdom of God, which, in the simple invention of a carter, has revealed to mankind the whole mystery of a commonwealth.” Or he might have mentioned the “centripetal and centrifugal forces by which the heavenly bodies are continued in their orbits, instead of rushing to the sun, or flying off in tangents among comets and fixed stars impelled or drawn by different forces in different directions, they are blessings to their own inhabitants. . . . ” 17 18

Ibid., WJA 6:118. Ibid., vol. 1, WJA 4:390; cf. 4:410–13.

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In Franklin and Turgot’s advocacy of one assembly, there is nothing to restrain it, Adams claimed. The jealousy and vigilance of the people will not serve as a check on their representations; this is a “mere delusion.” There ought to be no jealousy between the electors and the elected. It is contradictory to think that at one moment the people should extend to their representative “affection” and “confidence” and at the next harbor a “suspicion” of him. Rather, the properly instituted assembly reflects the “unreserved confidence” of the “collective body of the people.” The notion of collecting all authority into one center, the nation, is a “charming” one in which “brothers . . . live in harmony!” Adams sarcastically concluded. “How many beautiful sentiments, in heavenly numbers, from writers sacred and profane, might be said or sung in honor of peace, concord, harmony and brotherly love!”19 It is true that good republics are virtuous, but virtue is not the cause of good government; instead, it is the result of a well-ordered, scientific constitution. It may even be true that a republic can exist among “highwaymen” if the constitution sets one “rogue to watch another.”20 Turgot’s pupil, Condorcet, in Lettres d’un bourgeois de New-Heaven (as in New Haven, Connecticut, where Condorcet was an honorary member – the spelling undoubtedly an intentional error), took up his pen to refute Adams’s attack on his teacher. Condorcet’s Lettres were published in the first ´ volume of Philip Mazzei’s Recherches historiques et politiques sur les EtatsUnis de l’Am´erique septentrionale in 1788. In 1793 Condorcet discussed in more depth some of the ideas he had set forth in earlier works, in his Outlines of an Historical View of the Progress of the Human Mind. When reading or rereading this work in later years, Adams, as was his wont, wrote comments in the margins of the pages. In response to Condorcet’s remark that knowledge has become part of an energetic and universal commerce, and that a new kind of authority – public opinion – has been established, which exercises “a less tyrannical empire over the passions, but a more firm and lasting power over reason,” Adams jotted in the margin of the page: “The public opinion is at times as great a tyrant as Marat.”21 To Condorcet’s claim that a tribunal has been erected in favor of justice and reason, Adams remarked, “As often in favor of error, absurdity, and vice as of reason and

19 20 21

Ibid., vol. 3, WJA 6:200. Ibid., vol. 3, WJA 6:219. Zoltan ´ Haraszti, John Adams and the Prophets of Progress (Cambridge, Mass.: Harvard University Press, 1952), 251.

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justice.” In reaction to Condorcet’s claim that a free press resists new errors from their birth, and that often they are attacked and eradicated even before they have spread, Adams acerbically wrote, “There has been more new error propagated by the press in the last ten years than in an hundred years before 1798.” Adams went on to attack Marat and others, who, when they had in their hands the “empire of the press,” were more tyrannical than Caesar Borgia. One wonders, though, given his mention of the date 1798 and the American controversy surrounding the Alien and Sedition Acts that he was embroiled in that year, whether he was thinking only of the French press. Adams’s disdain for what he considered the lunacy of French ideas was at a high point in the years leading up to and following the French Revolution. It was not, however, at its peak. When he later revised and added supplemental notes to his volumes of the Defence in 1813 (and with Napoleon in power), he hit a new acme of ridicule. The “mysterious science” that in the Party Press Essays Madison had mocked Adams for advocating now became the brunt of derision in an attack by Adams upon French “Ideology.” “Ideology,” or “that obscure metaphysics” that searches after “first causes” upon which to found the legislation of nations, he wrote, is a new word for which the literary and political worlds are deeply indebted. The English word “Idiocy” hardly expresses the power or meaning of the new science, though it may provide its proper definition. “And a very profound, abstruse, and mysterious science it is,” Adams jeered. “It was taught in the school of folly, but alas, Franklin, Turgot, Rochefoucauld and Condorcet, under Tom Paine, were the great masters of that Academy!”22 Despite his sometimes piercing sarcasm, Adams’s plodding mind and labored intellectual forays stand in rather droll contrast to Hamilton’s razorsharp analytical abilities and his often hastily written yet brilliant reports and essays. No one of the Founding generation could match Hamilton for quickness of mind or flashes of pure intellectual genius. Not even Madison, who studied and worked through questions with a thoroughness that the quick-witted Hamilton seldom mustered the patience to do. Hamilton was a natural; Madison was a scholar. Hamilton was not only graced with natural genius – he knew it. He carried himself with an air of self-possession that was the reflection of genuine pride and not mere vanity, though it was nonetheless often irksome to his colleagues. “The spectacle of a person who is certain he knows how to do almost anything better than everyone else is normally irritating,” write Stanley Elkins and Eric McKitrick. “So it would be on more than one occasion with Alexander Hamilton. But most of the 22

Discourses on Davila in Adams, Defence, vol. 4, WJA 6:402–3, n. B.

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time such a trait in his case was not the defect it might have seemed in others, but a clear asset, since he generally could do it better.”23 In the 1760s Alexander Hamilton was but an orphaned teenager working as a clerk at a trading post on the remote island of St. Croix. On many a clear Caribbean day, with only the vast ocean separating him from his aspirations, he looked north across the waters, dreaming of the country and the reputation that might someday be his. The images in his mind were not pipe dreams. The proprietor of the shop where he spent his days recognized the youth’s intellectual abilities, and his ambition too. Hamilton would shortly travel to America and rise to the highest ranks of public service, leaving, ultimately, only presidential ambitions unfulfilled. Unlike Adams, Jefferson, or Madison, the young Hamilton saw Revolutionary War battle and undoubtedly heard the sound of bullets flying past his ear. Perhaps, like Washington, he too found something charming in the sound. In Washington’s mind, there was no young man of more talent, principle, or daring than Hamilton. In everything but biology, he was the son Washington had always wanted. Hamilton loved Washington but did not always defer to him; he was as intent on becoming his own man and making a name for himself as he was on making America a great nation. “America is a Hercules,” he once wrote, “but a Hercules in the cradle.”24 Following the establishment of the new government in 1789 and his appointment to the post of secretary of the treasury, Hamilton consciously set about making the United States the greatest economic and political power on earth. While his contributions to American economic greatness may not, like his life in general, make for a saga of romantic proportions, the chronicle is nonetheless an amazing one. It is writ large on the annals of the country that took him in and raised him from boy to manhood. In turn, he adopted America as his own and reared it from a fledging nation to one that would soar in the economic and political skies for at least two centuries to come. Hamilton’s financial system consisted of three essential elements. First and foremost was the need to establish public credit in the United States. The initial step in accomplishing this was the establishment of an adequate system of funding the national debt. Whereas an unfunded debt is the object of excessive speculation, drains the nation of capital, and diverts funds from useful and productive industry, a properly instituted funding system supplies active capital in a country deficient in capital. Once public securities have 23

24

Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early Republic, 1788–1800 (New York: Oxford University Press, 1993), 95. Hamilton to Washington, April 14, 1794, PAH 16:272.

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acquired an adequate and stable value and the confidence of the community is established, the debt may serve as an engine of credit by promoting the transfer and exchange of funds. With additional capital in circulation, interest rates decrease; the stabilization of public stock moderates the spirit of speculation and directs capital to more useful channels. In Hamilton’s view, the depreciated condition of landed property in America resulted from the scarcity of money. The increased quantity and circulation of capital would help to improve the state of agriculture. Further, it would unclog the wheels of commerce, thereby promoting commerce and manufacturing as well.25 While Hamilton conceded that his program benefited the monied men of America, he denied that it created a special monied interest adverse to other citizens. Rather, he argued, investment in public stock promotes the economic growth of the nation, including all the useful industries in which the citizens are engaged. Productivity is increased and employment rises, further increasing the active and actual capital of a nation. Industry in general flourishes, “and herein,” Hamilton declared, “consist[s] the true wealth of a nation.”26 The second prong of Hamilton’s financial program involved the establishment of a national system of banking that would fortify the establishment of public credit. The institution of a national bank was, in his opinion, more than an optional supplement to the funding system. Whereas banks are “useful in Countries greatly advanced in wealth,” he argued, they are absolutely “necessary in Countries little advanced in wealth.”27 The advantages derived from a national bank include (1) augmentation of the active and productive capital of the nation, (2) greater ability of the government to obtain financial support, especially in times of emergency, and (3) assistance in the payment of taxes.28 A national bank increases the supply of active capital by its ability to lend and circulate greater amounts of capital than the actual sum of its stock in coin. For all practical purposes, then, industry and trade would receive an absolute increase of capital infusion, and economic enterprise would be enlarged. In this way, banks are “the nurseries of national wealth.”29 Hamilton defended the constitutional authority of the national government to establish a national bank on the grounds that the

25 26 27 28

29

Hamilton to Robert Morris, April 30, 1781, PAH 2:618. Ibid. “Notes on the Advantages of a National Bank,” PAH 8:220. “Final Version of the Second Report on the Further Provision Necessary for Establishing Public Credit (Report on a National Bank),” PAH 7:306. Ibid.

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right to erect corporations is inherent in the very definition of government. In defending the bank in a private letter to Washington, he couched his case in more practical terms: “[T]he most incorrigible theorist among [the bank’s] opponents would in one month’s experience as head of the Department of the Treasury be compelled to acknowle[d]ge that it is an absolutely indispensable engine in the management of the Finances, and would quickly become a convert to its perfect constitutionality.”30 It was in response to the third prong of Hamilton’s financial scheme that Madison mounted a full-scale opposition against his “antirepublican” program and, with his political allies, adopted the appellation “the republican party.” Hamilton’s “Report on Manufactures” was premised on the idea that the accelerated growth of manufacturing in the United States was essential to the national interest. The manufacturing industry, Hamilton argued, enhances the produce and revenue of the community, contributes to the diversification and division of labor, increases employment and productivity by engaging persons not ordinarily working, promotes foreign emigration, furnishes broader scope for the differing talents and dispositions of persons, increases the demand for agricultural produce, and makes the United States less dependent on foreign markets. Despite the clear and certain economic benefits that the growth of manufactures would produce in the nation, this does not guarantee that it will naturally occur, or occur as quickly as the country requires. Human beings are creatures of habit and tend to adopt untried industries reluctantly and slowly. “To produce the desirable changes, as early as may be expedient,” he said, “may therefore require the incitement and patronage of government.”31 The supply of active capital needed to encourage manufacturing in the new republic was already in place via the funded debt and the national bank. Speculation in public stocks could thus be directed to useful purposes and away from its sometimes pernicious effects. Although the encouragement of manufactures in America would be disadvantageous to the other classes of society and to consumers in the short term, Hamilton argued that the long-term permanent effect would be to the benefit of all classes of society and the nation as a whole. Hamilton’s economic program was designed to stabilize the fiscal situation of the country, stimulate productivity, and set America on the course of prodigious material prosperity. His intent was to establish the economic foundation on which political stability and greatness depended. He had no 30 31

Hamilton to Washington, August 18, 1792, PAH 12:251. “Alexander Hamilton’s Final Version of the Report on the Subject of Manufactures,” PAH 10:267.

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wish, he repeatedly claimed, to establish monarchy or aristocracy in America or to introduce hereditary distinctions of any kind. That he was bent on corrupting a portion of the legislature he pronounced false and malignant. He rebuffed the charge that he was attempting to overturn the state governments or pervert limited government; there is a good deal of ambiguous ground concerning the demarcation between the general and the state governments over which honest men might disagree, he asserted. Finally, he flatly denied that he and the Federalists were conspiring to overthrow republican government in the United States, or even that their measures would tend to subvert the republican form or prepare the way for monarchy.32 In exasperation Hamilton could only ask in regard to his opponents’ accusations: When ever were “men more ingenious to torment themselves with phantoms?”33 Hamilton intended his economic blueprint for America to achieve both individual security and national strength. His conception of the connection between political stability and economic prosperity was presented most explicitly in his daylong speech of June 18 at the Constitutional Convention. In societies where industry is encouraged, Hamilton argued, individual security is often threatened by the clash of the distinct and rival interests between the few and the many, that is, between the wealthy, well-born, educated citizens and the mass of the people. If either group has all the power, it will oppress the other. “Both therefore ought to have power that each may defend itself agst. the other.”34 Moreover, given the “violence & turbulence” of the democratic spirit, it is particularly crucial to establish a separate and permanent body to check the unsteadiness and imprudence of the mass of the people.35 The principle of representation is not sufficient to resist “the popular current,” for the most popular branch of the legislature will predominate, and within it a few individuals tend to prevail.36 Dependent on the favor of the people for the continuation of their position and power, these leaders often sacrifice the permanent interest of the nation to the passionate and partial interests of the many. 32

33 34

35

36

Hamilton to Washington, August 18, 1792, PAH 12:248–53; cf. Washington to Hamilton, July 29, 1792, PAH 12:131–33. Hamilton to Adams, August 16, 1792, PAH 12:209. James Madison’s version of Alexander Hamilton’s “Speech on a Plan of Government,” June 18, 1787, PAH 4:192. Alexander Hamilton’s notes for “Speech on a Plan of Government,” June 18, 1787, PAH 4:185; James Madison’s version of Alexander Hamilton’s “Speech on a Plan of Government,” 4:193; Robert Yate’s version, 4:200; John Lansing’s version, 4:204. Alexander Hamilton’s notes for “Speech on a Plan of Government,” June 18, 1787, PAH 4:185.

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The problem of the force of majority faction is therefore not solved by the representative principle. Nor, Hamilton contended, is the difficulty overcome by the establishment of a government over a large extent of territory, as Madison seemed to suppose. Although representatives chosen from larger districts may be of some benefit, frequently a small portion of a large district carries an election.37 The representatives of an extensive nation still meet in one room and are liable to the same influences as those in a small country, including the charm of a powerful demagogue. In addition, the deterrent effect of the size of a nation on the formation of a majority faction is of doubtful veracity; combinations of a majority on the basis of interest will not be as difficult or unlikely as is assumed. Geographical and economic factors can and will influence the people and their representatives, and “it is easy to conceive a popular sentiment pervading” one portion, even a major portion, of the legislature.38 In essence, Madison’s analysis of the problem of majority faction and his proffered solution of the extended republic and representation, which he presented on June 6 on the Convention floor and later summarized in the 10th Federalist, was inadequate to the task of remedying the defects of popular government. In Hamilton’s view, Madison’s proffered solution was not a well-thought-through solution to the problem at all. Hamilton contended that the problem of majority tyranny necessitates the establishment of a “permanent barrier” in government that would counteract the passionate demands of the many, particularly their covetousness toward the property of others.39 The British provided for this barrier in their House of Lords. Hamilton believed that an equally effectual check on the turbulent and changing multitude was needed in America. Accordingly, he proposed a senate for life or during good behavior, arguing that the seven-year senate term supported by some delegates, including James Madison, was not sufficient for the purpose.40 But just as there ought not to be too much dependence on popular sentiments, there ought not to be too little.41 Hamilton recommended a House of Representatives of enlarged numbers, elected directly by the people every three years. The two branches of the legislature would balance each other in terms of the many versus the 37 38 39

40 41

“Notes Taken in the Federal Convention,” PAH 4:166. Ibid., PAH 4:165. James Madison’s version of Alexander Hamilton’s “Speech on a Plan of Government,” June 18, 1787, PAH 4:192. See the discussion regarding the Senate of Maryland throughout the Convention debates. “Remarks in Support of a Three-Year Term for Members of the House of Representatives,” PAH 4:214.

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few, turbulence versus inertia, and protection of equal rights versus security for property rights. One chamber would manifest the “sensibility” of the populace, the other “knowledge and firmness” in public affairs.42 It would be a kind of balance and the “happiest mode of conciliating” contraries, anticipating Jane Austen’s felicitous equipoise of Sense and Sensibility. The two-weighted scale protects the few and the many from oppression by each other, thereby contributing to the security of individual rights. But Hamilton thought more than this was needed. Like Adams, he advocated adding a third weight to the scale in the form of a single elected executive serving for life or good behavior. The executive would possess an absolute negative on legislation and, in turn, would himself be subject to counterbalancing checks by the legislature. Accordingly, the executive would provide an additional check against the passage of laws based on partial interest. In positive terms, Hamilton’s executive was to serve as the dominant active agency in government. Characterized by unity, duration, and energy, his ambitions would be virtually one with the interests of the nation. He would move government to act with vigor, dispatch, and regularity, providing a sense of national character, strength, and permanency of will. An independent judiciary would supplement the checks against the legislature and its natural tendency to dominate in popular governments. This check on legislative power would further increase the proportionate authority of the republican executive. Hamilton’s central objective in his June 18 speech was to demonstrate the need for a “permanent will” in the government.43 His plan was partly modeled on the British constitution, particularly in regard to the separation of powers based on two distinct interests in society and an energetic executive who would embody the interest of the nation as a whole. However, unlike the monarchic model, Hamilton claimed that his plan was fully consistent with the principles of republicanism: in it “the Executive and Legislative organs are appointed by a popular Election, and hold their offices upon a responsible and defeasible tenure.”44 Granted, subsequent to (indirect) election by the people, the Senate and executive would be as far removed from popular will as republican principles would allow. A democratic assembly cannot be properly checked by a democratic Senate, nor a democratic legislature by 42

43

44

“New York Ratifying Convention: First Speech of June 25 (Francis Child’s version),” PAH 5:81. Alexander Hamilton’s notes for “Speech on a Plan of Government,” June 18, 1787, PAH 4:186. “To the New York Evening Post,” February 24, 1802, PAH 25:537.

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a democratic executive, Hamilton argued.45 Gouverneur Morris described the problem in earthier tones: [T]he members of both Houses are creatures which, though differently born, are begotten in the same way and by the same sire. . . . The President can . . . do what he pleases, provided it shall always please him to please those who lead a majority of the Representatives.46

Hamilton urged his colleagues to see that the only effectual method to secure the ends of republican government was to overcome the contest between the few and the many. Like a host of renowned thinkers before him, Hamilton saw in the British constitution a model that effectually neutralized this struggle at the governmental level. He borrowed from the vaunted British model the idea of achieving an equilibrium of the predominant and rival passions and interests within the legislature, albeit without deriving the competing humors from a hereditary ranking. The key to the success of the British political system was the creation of institutions and practices that neutralize the destabilizing effects of the rival passions in society and at the same time utilize those passions to energize and bolster the government. Hamilton believed that if the American republic was to succeed, it too must incorporate a political scheme that channels men’s selfish passions and interests and utilizes them to support the government.47 Besides force, Hamilton listed four other factors that prompt men to support the government, viz., interest, opinion, habit, and influence.48 Of these, self-interest is “the most powerful incentive of human action,” he argued, explicitly following Hume in his assessment of human nature.49 No regime derives benefit from neglecting to utilize this dominant force in man, Hamilton declared in 1775. He restated this idea at the Constitutional Convention: the key to constructing a stable and good government is to interest the passions of men and make them serve the public.50 45 46

47

48

49 50

Ibid. Harvey Flaumenhaft, The Effective Republic: Administration and Constitution in the Thought of Alexander Hamilton (Durham, N.C.: Duke University Press, 1992), 186. “New York Ratifying Convention. First Speech of June 25 (Francis Child’s version),” PAH 5:85. Alexander Hamilton’s notes for “Speech on a Plan of Government,” June 18, 1787, PAH 4:180. “The Farmer Refuted,” PAH 1:92. Alexander Hamilton’s notes for “Speech on a Plan of Government,” June 18, 1787, PAH 4:187; “Remarks on the Ineligibility of Members of the House of Representatives for Other Offices,” PAH 4:217.

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The conjunction between Hamilton’s economic and political philosophies occurs at two principal axes. First, Hamilton believed that economic diversification is necessary to the security of individual rights. Second, he held that economic prosperity leads to an opinion of confidence in government, thereby providing the foundation for public strength. The diversification of occupations throughout the union, he predicted, would contribute significantly to overcoming the rivalry between northern and southern interests, that is, between industry and agriculture, between free and slaveholding states.51 Economic diversification would help to control the problem of majority faction by diminishing the most powerful engine of faction in America – interests grounded in geographic/occupational distinctions. Moreover, increased diversification would lead to a preponderance of members of the learned professions, especially the legal profession, in Congress. Unlike men of industry and agriculture, men of the professional ranks “form no distinct interest in society” and are likely to be impartial arbiters between the others.52 Economic diversification also fuels prosperity, and vice versa. Economic prosperity instills in the people an opinion of the benefit of government to their own well-being and inspires in them a confidence in its measures. Public confidence in government stabilizes the regime and endows it with public strength. This is particularly true in republican government, which, even more than other political forms, depends on opinion.53 51

52

53

“Alexander Hamilton’s Final Version of the Report on the Subject of Manufactures,” PAH 10:293; see also Richard Brookhiser, Alexander Hamilton: American (New York: Free Press, 1999), 97. According to Brookhiser, Hamilton believed that the “‘Ideas of contrariety of interests’ between the North and the South . . . are ‘as unfounded as they are mischievous’” and that “‘the diversity of circumstances’ between the regions in fact leads to a ‘contrary conclusion,’ because ‘mutual wants constitute one of the strongest links of political connection.’” Brookhiser summarizes Hamilton’s view thus: “If the South wanted to be a region of farms, let the North supply her hats and wires.” Federalist 35:183; see also William B. Allen, with Kevin A. Cloonan, The Federalist: A Commentary (New York: Peter Lang, 2000), 167–74. “New York Ratifying Convention: First Speech of June 21 (Francis Child’s version),” PAH 5:37. For an innovative and thought-provoking defense of Hamilton’s ideas and policies regarding commerce, statesmanship, and public opinion, see Michael D. Chan, Aristotle and Hamilton: On Commerce and Statesmanship (Columbia: University of Missouri Press, 2006). “Hamilton’s America,” Chan argues, “was industrious, entrepreneurial, innovative, temperate, sagacious, energetic, diverse, urbane, mobile, refined, and lawful” (183). In contrast to the Jeffersonian and Madisonian vision of an agricultural nation filled with independent yeoman farmers, Hamilton “aimed at nothing less than a change in the American character.” Chan agrees with my claim that Hamilton’s promotion of the commercial industrialization of America was “less broadly participatory than Madison’s,” but he further argues that Hamilton would not restrict the role of statesmen to inspiring confidence in the citizens (59, n. 4). Hamilton believed that opinion is the arbiter of governmental measures. Thus, it is not simply statesmen who must be enlightened; “the people, or public opinion,

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In 1787 the United States was predominantly an agricultural nation. To achieve Hamilton’s goals of economic diversification and prosperity meant that America must become a commercial and industrial republic. This transformation depended on the institution of his three-pronged fiscal program, beginning with the establishment of public credit and a national bank and culminating in governmental support of manufactures. Accordingly, Hamilton sought to connect the interests of the monied men to the interests of the nation – an idea he never dispensed with.54 The first wave of his economic program depended on this connection. It would stabilize public credit, wean men from state attachments to the support of the national government, and provide the avenue for economic prosperity and the train of events that would usher in a new economic and political era in America. Like Montesquieu, Hamilton believed that in a republic, where all the passions are free and unmodified, it is natural that the passion for material aggrandizement dominates men’s souls.55 A commercial republic allows the passionate pursuit of economic gain and rewards it with success. Commercial prosperity multiplies “the means of gratification,” promotes the circulation of charming, shiny metals – “those darling objects of human avarice and enterprise” – and increases prosperity throughout the society.56 The multiplication of the means of gratifying the acquisitive desire is much more the result of economic prosperity than of the mere size of the territory. By interesting the monied men in the prosperity of the nation, Hamilton sought to start a chain reaction that would promote the commercialization of the entire nation. The consequences of this economic metastasis were far-reaching on the political

54

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must also be enlightened, and not only about matters of fundamental or constitutional opinion; but to the extent possible, enlightenment must extend to matters of policy” (61). I would agree that Hamilton placed great importance on “opinion,” and that to the “extent possible” he sought to educate and enlighten opinion in the American republic, as his many public reports and articles demonstrate. Nonetheless, he disagreed with the Republicans about the extent to which public enlightenment is possible and thus was ultimately forced to make his case to the people in the hope of achieving more than he believed the public understanding could bear. Forrest McDonald claims that in his maturity Hamilton rejected the idea of tying the interests of the wealthy to the interest of government, pointing particularly to his seemingly modified argument in 1795 in “The Defence of the Funding System” (Novus Ordo Seclorum [Lawrence: University Press of Kansas, 1985], 137). Hamilton’s argument in “The Defence,” however, is more nuanced. Although Hamilton claims that the bonding of the interests of the monied men to the national interest was not his primary aim in his plan to fund the debt – indeed, that it was the consideration upon which he relied the least – it was nonetheless included in his calculation. See PAH 19:40–41; cf. Hamilton to Unknown Recipient, December, 1779–March, 1780, PAH 2:248). Montesquieu, SOL 19:27, 325,328. Federalist 12:59.

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front. By multiplying and diversifying occupations and interests in America, the age-old battle between the haves and have-nots would be replaced by a new and much less dangerous rivalry in society. The likelihood of a majority faction forming would be greatly reduced and the stability of the political order would be significantly enhanced. Moreover, the commercial republic possesses the advantage over other forms of government because it tends “to interest the passions of the community in its favor [and] beget[s] public spirit and public confidence.”57 Hamilton viewed human nature as consisting of two very different types of men: the mass of men who are motivated largely by self-interest and an exclusive class of men whose souls are dominated by the desire for distinction. Hamilton accepted the generality of human nature as it was and did not attempt to transform it into something it could not become. He relied on the average republican citizen to pursue his own economic advantage, neither expecting nor encouraging him to develop a public-spiritedness unconnected with his perception of self-interest. The vast majority of citizens were not called on to participate actively in the affairs of government; the extent of their peacetime responsibilities was essentially limited to electing the better sort of men to political office and supporting the government they had chosen.58 Their attachment to the new American republic, Hamilton believed, would result largely from their opinion of its necessity and utility. A train of prosperous events, brought about by a wise and energetic administration, would engender an attachment of the people to their government and instill in them confidence in its measures.59 “The confidence of the people will be easily gained by a good administration,” Hamilton maintained.60 Confidence results largely from the gratification of men’s acquisitive desires, producing habits of obligation and obedience to government. Since all governments, and particularly free republics, are dependent on public opinion, the wise republican statesman will cultivate an opinion of confidence by promoting measures that gratify the average citizen’s passion for material gain, thereby increasing the stability and strength of the nation. In turn, the statesman himself is rewarded by the favor of public opinion, that is, by the confidence and esteem of his fellow citizens, thus gratifying 57 58

59

60

“Notes Taken in the Federal Convention,” PAH 4:163. “The Continentalist No. VI,” PAH 3:102–3; “Second Letter from Phocion,” April, 1784, PAH 3:544–45. Cf. Flaumenhaft, The Effective Republic, 15–16, 216. “New York Ratifying Convention: First Speech of June 21 (Francis Child’s version),” PAH 5:39–40. Ibid., PAH 5:39.

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his distinctive desire for fame. In this way, the most powerful passions of the many and the ruling passion of the noblest minds are directed toward the support of government.61 Hamilton learned, perhaps from Jacques Necker, the importance of directing public opinion to the support of government by means of publicity, particularly publicity in the area of national finance. Necker’s theory emphasized the influence of public ministers on public opinion to produce unity, confidence, and obedience to the government. “A skilful administration,” he wrote, “has the effect of putting in action those it persuades, of strengthening the moral ideas, of rousing the imagination and of joining together the opinions and sentiments of men by the confidence it inspires.”62 Confidence is “that precious sentiment which unites the future to the present” and “lays the surest foundation of the happiness of the people.”63 Hamilton took Necker’s advice and wrote prolifically for the public press in an effort to influence public opinion and inspire a spirit of confidence in the government and obedience to its measures. Although Hamilton believed that the citizens generally possess the ability to perceive their interests with sufficient clarity, he also recognized that they are sometimes misled by opinions built on false appearances of the advantageous.64 Hamilton believed that disadvantageous policies can also result from affections of the heart. At the start of the second Washington administration and the outbreak of war between France and Great Britain, Hamilton feared that the Republicans’ “womanish attachment” to the new French republic and animus against England could result in an American foreign policy that would destroy his entire financial program. Hamilton took measures to prevent this from happening. He was a major force behind Washington’s issuance of the 1793 Neutrality Proclamation, he defended the proclamation in a series of “Pacificus” essays, and in 1795–96 he published numerous 61

62

63 64

In contrast to the widespread desire for economic gain, the love of fame, which Hamilton called the “ruling passion of the noblest minds,” is clearly not an objective promoted by the commercial republic (Federalist 72:405). Ralph Lerner has remarked, “What, Hamilton asked, was to be done about men whose aspirations fell only sometimes within the ordinary system of rewards held out by a [commercial] republic – men of ‘irregular ambition,’ intent on seizing or even creating chances for self-promotion? (Federalist 72:408) To this challenge the commercial republicans responded with counsel and modest hopes, but no sure solution. The limits of the market model were in sight” (“Commerce and Character: The Anglo-American as New-Model Man,” William and Mary Quarterly 36:1 [1979], 18). Jacques Necker, A Treatise on the Administration of the Finances of France, 3 vols., Thomas Mortimer, trans. (London: J. Walter, 1785), 1:xii. Ibid.,1:x. Stourzh, Alexander Hamilton and the Idea of Republican Government, 92–93.

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pieces defending the Jay Treaty, which clarified and ensured continued commercial relations with Great Britain. Going head to head with Helvidius (i.e., Madison) in the paper wars, he argued for a construction of the Constitution that recognized the conduct of foreign policy as essentially executive in nature, though he allowed for the constitutional role of the Senate in making treaties and of the Congress in its power to declare war. He would not agree with Madison, however, that the constitutional powers granted to Congress delimit the constitutional and practical duties of the executive to conduct foreign policy. Once again, in Hamilton’s mind, the proper construction of the Constitution intersected with political and economic realities. Indeed, he believed that the continuance of stable political relations and a dynamic commerce with Great Britain were absolutely critical to America’s future.65 Great Britain provided a major market for American agricultural produce, and approximately three-fourths of United States imports came from Britain. American prosperity, and the civic confidence it inspired in government, depended heavily on the revenues brought into the United States Treasury from impost duties on British goods. If American dependence on commerce with England were to lessen with the rise of a diversified domestic economy, this would occur only over a period of time. Until then, a significant decline or loss of British trade would ruin the United States economy, destroy public credit, and shake the political foundations of the fledgling country. The policy of commercial discrimination against the British – which Madison had been pushing for in Congress since 1789 – would result in British retaliation against the United States and be devastating to the new nation.66 In a word, it could vastly delay, if not destroy, the Hamiltonian dream of commercial greatness for America. Out of office and focused on his private legal practice during the Adams administration, Hamilton only occasionally acted as counselor to the Federalist Party. One of these occasions was in 1798. Due to the perceived threat posed by some Americans’ (i.e., Republicans’) attachment to France over and above loyalty to their own country, the Federalists drafted the Alien and Sedition Acts. When first shown a draft of the acts, Hamilton approved the former but protested the latter, arguing that the Sedition Act contained “highly exceptional” provisions. “I hope sincerely the thing may not be hurried through,” he wrote Treasury Secretary Oliver Wolcott. “Let us not 65

66

Elkins and McKitrick, The Age of Federalism, 123–31; cf. Jack Rakove, James Madison and the Creation of the American Republic (Glenview, Ill.: Scott, Foresman/Little, Brown Higher Education, 1990), 118. Compare Hamilton’s position after the formation of the new government with his argument for commercial regulations against the British in Federalist 11.

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establish a tyranny. Energy is a very different thing from violence.”67 Ultimately, however, Hamilton supported an amended version of the Sedition Act. In general, he believed that truth should be allowed as a defense against the charge of libel; if a defendant could prove that his statements were true, the jury (and not the judge, as in the British common law tradition) should consider this in its verdict.68 Despite the somewhat liberalizing tendency of American libel laws at the turn of the nineteenth century, the Sedition Act was no more acceptable to the American public than the Alien Act. Indeed, the acts became a major issue in the election of 1800 and contributed to the defeat of the Federalist Party. During the 1790s, Hamilton’s earlier sanguinity about the effects easily gained by a good administration was destroyed by the successes of opponents whom he thought misjudged or misled the common man. He believed that naive projectors and ambitious demagogues had instigated a systematic opposition to his economic measures. Aaron Burr clearly fit the description of the ambitious demagogue.69 Jefferson had something of the demagogue in him, Hamilton believed, but was fundamentally a man whom nature had ill endowed with a “sublimated paradoxical imagination.”70 Having drunk too much from the well of French philosophy, his “mind [was] prone to projects . . . incompatible with the principles of stable and systematic government.”71 Madison, at least initially, appeared to Hamilton a different sort of man. At the commencement of the new government, Hamilton claimed, there existed a similarity of thinking between Madison and himself. Despite their disagreement on debt discrimination and the assumption of state debts, Hamilton remained disposed to believe in Madison’s honesty, fairness, and goodwill. After all, not only had they worked in tandem to produce The Federalist, they had also spent considerable time at the outset of the new government exchanging ideas and friendly advice. They must have appeared to those around them, and to themselves as well, as political allies. By the 67

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69 70 71

Hamilton to Oliver Wolcott, June 29, 1798, PAH 21:522. Cf. McDonald, Alexander Hamilton (New York: W. W. Norton, 1979), 339 and n. 20; Chernow, Alexander Hamilton, 571– 72; John C. Miller, Alexander Hamilton & the Growth of the New Nation (New York: Transaction Publishers, 2003), 484–85; Martin, “Reforming Republicanism,” 109–33. See Martin, “Reforming Republicanism, 118–28. See also James Morton Smith, “Alexander Hamilton, the Alien Law, and Seditious Libels,” Review of Politics 16:3 (1954), 305– 33; Karl-Friedrich Walling, Republican Empire: Alexander Hamilton on War and Free Government (Lawrence: University Press of Kansas, 1999), 249–56, 261–62. Hamilton to James A. Bayard, January 16, 1801, PAH 25:321. Hamilton to Charles Cotesworth Pinckney, October 10, 1792, PAH 12:544. “Catullus No. IV,” PAH 12:581; Hamilton to Edward Carrington, May 26, 1792, PAH 11:439.

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spring of 1792, however, Hamilton became convinced that Madison was acting in cooperation with Jefferson, that he was actuated by “personal and political animosity” against him, and that his character was in fact subtle, complicated, and artificial in a way that the treasury secretary had not previously understood.72 Either Jefferson had so influenced Madison that the latter had undergone a material change of mind or Madison was simply a common political calculator, pursuing measures to feed his own political popularity and/or the advantage of his particular state.73 Whatever Madison’s motives, by 1792 the Roman alliance between the two leading Publii of 1787–88 was shattered forever. Although Hamilton initially speculated that Madison’s opposition was motivated by personal ambition or partisan rivalry, possibly resulting from Jefferson’s influence over him, he later acknowledged what Madison had long claimed – that the war between Republicans and Federalists stemmed from a difference of principle. “[I]n reality the foundations of society, the essential interests of our nation, the dearest concerns of individuals are staked upon the eventful contest,” Hamilton wrote in 1801.74 “[T]he contest between us is indeed a war of principles” – not a war “between monarchy and republicanism” but “between tyranny and liberty.”75 Hamilton’s modification of his earlier perspective is often overlooked by scholars, perhaps because it is easy to see it as just another partisan shot at his political opponents. Yet this is precisely what Hamilton warned his contemporaries against: those who persist in seeing the conflict as nothing more than zealous partisanship and a struggle for power are deceived. Hamilton’s more mature and, I would argue, more trenchant assessment of the party contest provides a valuable insight into the democratic implications of Madison’s and the Republicans’ agenda. It also has a virtue that is lacking in Hamilton’s earlier assessment and in much of the scholarly analysis of this era: it allows Madison his own voice rather than merely subsuming it under Hamilton’s “Publius” in the 1780s or Jefferson’s sway in the 1790s. Ultimately, Hamilton recognized that Madison’s opposition to him and the Federalists was propelled by a fundamental philosophic disagreement over the nature and role of public opinion in a republic. Apparently, Jefferson was not alone in his attachment to a “wild and fatal” political 72 73

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Hamilton to Edward Carrington, May 26, 1792, PAH 11:432–34. See, for example, Forrest McDonald’s endorsement of this thesis in Alexander Hamilton, 199–200, 175, 254, and in The Presidency of George Washington (New York: W. W. Norton, 1974), 80–81. “An Address to the Electors of the State of New York,” PAH 25:352–53. Ibid., PAH 25:370.

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scheme that would destroy sound government in America.76 Like the French writers from whose well of speculative philosophy they were imbibing, the Republicans were bent on a fanaticism in politics that miscalculated the force of the human passions and was “unsuited to the nature of man.”77 They were simply “too much in earnest” about “democracy.”78 Prostrating themselves before the opinion of the majority, as if vox populi were vox dei, they encouraged a spirit of anarchy and flirted with tyranny, its natural ally. They stimulated the restless passions of the people and excited a reckless censure, destroying public confidence in the government and its leaders.79 Following in the path of their Jacobin cohorts, the Republicans worshiped at the altar of the “Goddess of Reason,” rejecting the “mild reign of rational liberty, which rests on the basis of an efficient and well balanced government.”80 Men are for the most part ruled by their passions, Hamilton believed, and are rather more “reasoning tha[n] reasonable animals.”81 Yet his opponents were intent on molding “a wise, reflecting and dispassionate people.” They eulogized reason, but in reality they courted men’s vanities and cheated the people out of their confidence. Left unchecked, the Republican brand of politics would succeed in “corrupting public opinion till it becomes fit for nothing but mischief.”82 Moreover, they claimed for public opinion a moral status in free government and invoked its authority to circumvent the prescribed constitutional amendment process – the only legitimate channel of appeal to the people in their collective capacity.83 The Republican politics of public opinion threatened to undermine all the hard work done by the men at Philadelphia in 1787, and the source of their new creed was none other than the fanatics of the French Enlightenment. Hamilton named names: In vain was the collected wisdom of America convened at Philadelphia. In vain were the anxious labours of a Washington bestowed. Their works are regarded as nothing better than empty bubbles destined to be blown away by the mere breath of a disciple of Turgot; a pupil of Condorcet.84 76

77 78 79 80 81 82 83 84

Hamilton to Washington, August 18, 1792, PAH 12:249; “Views on the French Revolution,” PAH 26:740. “Views on the French Revolution,” PAH 26:739. Hamilton to James A. Bayard, January 16, 1801, PAH 25:319. “Treasury Department Circular to the Commissioners of Loans,” PAH 13:394–95. “An Address to the Electors of the State of New York,” PAH 25:353, 370. Hamilton to James A. Bayard, April [16–21], 1802, PAH 25:605. Ibid., PAH 25:605–6. Ibid., PAH 25:606. “The Examination. Number IX,” PAH 25:501.

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Whatever diminution of respect Hamilton had felt in the early 1790s for the force of Madison’s mind and the soundness of his judgment, a decade later his opinion of the Virginian’s political sagacity had sunk lower still. From Hamilton’s perspective, the loss of Madison as a political and philosophic ally must have been a genuine disappointment. This was the mind that had conspired with him at the Constitutional Convention, penned with him The Federalist, and seemed to understand, if not fully, at least better than most of his colleagues, the age-old dilemma of the few versus the many and the republican road that could overcome it.

3 Madison and the French Enlightenment

Hamilton’s fears about the influence of French Enlightenment philosophy on Jefferson and Madison were not ungrounded. Certainly Jefferson’s views were significantly shaped by the French authors whom he read and associated with during his ministerial stint in Paris. In the 1780s and 1790s Madison too was a keen scholar of French social and political thought, studying the more radical thought of Turgot, Condorcet, and the physiocrats, as well as the more moderate philosophy of the celebrated oracle, the Baron de Montesquieu. In the provocative Party Press Essay “Spirit of Governments,” Madison first bestowed rather circumscribed praise on Montesquieu’s contributions to the science of politics; he then swiftly turned his pen against the classification of governmental types set forth in The Spirit of Laws.1 Montesquieu’s typology of governmental forms, Madison asserted, “can never be defended against the criticism which it has encountered.” Despite his partial comprehension of the truths of politics, Montesquieu was not in the same league as Newton or Locke, “who established immortal systems” in matter and mind, respectively.2 Rather, “he was in his particular science what Bacon was in universal science. He lifted the veil from the venerable errors which enslaved opinion, and pointed the way to those luminous truths of which he had but a glimpse himself.”3 1 2 3

PJM 14:233–34. “Spirit of Governments,” PJM 14:233. Compare Madison’s identification of Montesquieu with Bacon rather than Newton with the seventeenth-century historian John Millar’s similar statement: “I am happy to acknowledge the obligations I feel myself under to this illustrious philosopher [Adam Smith], by having, at an early period of life, had the benefit of hearing his lectures on the History of Civil Society, and of enjoying his unreserved conversation on the same subject. – The great Montesquieu

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Montesquieu’s influence on Madison and the American Founders, particularly evident in the theory of separation of powers that informs the United States Constitution, is well noted by scholars.4 Madison’s pointed critique of Montesquieu in the 1790s, however, has been given scant attention.5 The crux of Madison’s criticism concerned the Frenchman’s praise of the British system of balanced government. According to Montesquieu, the institutional and corporate division of powers and checks and balances established in the British system of government provided for political moderation and made the English constitution the model of free government in the modern world.6 Most English politicians and writers, whether of the Court or Country party, agreed with the general assumptions underlying the theory of balanced government advocated by Montesquieu; their disagreement was among themselves and essentially concerned whether the parts of their government were effectively separated and balanced, and thus whether liberty was or was not sufficiently protected. Conversely, a number of French thinkers disagreed with Montesquieu’s assumptions, rejecting their countryman’s theory of balanced government as any real guarantee of stability or safeguard for liberty. When Madison publicly invoked the name of Montesquieu in his writings of the early 1790s, it was primarily to challenge rather than to celebrate the political wisdom of the French oracle. His

4

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pointed out the road. He was the Lord Bacon in this branch of philosophy. Dr. Smith is the Newton” (John Millar, An Historical View of the English Government, 4 vols., Mark Salber Phillips and Dale R. Smith, eds. [Indianapolis: Liberty Fund, 2006], II:404–5). Adam Smith was Millar’s teacher at the University of Glasgow. According to Phillips and Smith, “Millar’s footnote to this section is an often-quoted tribute to his teacher, and it expresses the view that, while Montesquieu was the pioneer of the Enlightenment’s naturalistic approach to the study of human society, Smith was its true founder.” While Madison compares Montesquieu to Bacon, he does not mention Adam Smith as analogous to Newton or mention Smith at all. In a seminal study of philosophic referents by the Founding generation, Donald Lutz has shown that Montesquieu ranks significantly above all else, including John Locke (“The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American Political Science Review 78:1 [1984], 189–97). Yet, as Lutz points out, heavier referencing does not necessarily imply greater agreement; a proportion of the citations to a particular political philosopher may demonstrate disagreement with that thinker. John Zvesper (Political Philosophy and Rhetoric: A Study of the Origins of American Political Parties [Cambridge: Cambridge University Press, 1977], 114–15), Paul A. Rahe (Republics Ancient and Modern: Classical Republicanism and the American Revolution 3 vols. [Chapel Hill: University of North Carolina Press, 1994], 3:180–81), and Lance Banning (The Jeffersonian Persuasion [Ithaca, N.Y.: Cornell University Press, 1978], 167–68; The Sacred Fire of Liberty: James Madison & the Founding of the Federal Republic [Ithaca, N.Y.: Cornell University Press, 1995], 358–59) briefly discuss Madison’s alternative categorization of governmental types and identify the type that operates “by corrupt influence” as an unmistakable reference to the British government, as well as to U.S. administration policies of the 1790s. Montesquieu, SOL 11:6, 156–66.

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criticisms, like those of many Continental writers, signaled a fundamental disagreement with Montesquieu’s analysis of free government. Madison’s proposed alternative to Montesquieu’s vaunted British model is grounded in the recognition of public opinion as the ruling authority in republican government. The concept of public opinion as a dominant political force originated in France in the late 1760s and was popularized by Jacques Necker in De l’administration des finances de la France, published in 1784. In the years leading up to the French Revolution, a host of French writers touted the reign of public opinion and the advent of a new kind of politics. Madison was familiar with much of this material in the 1780s and continued his study of French texts in the 1790s, demonstrating a keen interest in their treatment of l’opinion publique. The almost singular reliance by scholars on British thinkers as sources of influence on Madison’s political thought, and the virtual neglect of French theorists, surely calls for reconsideration. Interestingly, the spur to French thinking on this subject was the great sage Montesquieu, who pioneered the path to the politics of public opinion, even though he himself did not complete the journey. Montesquieu’s categorization of regime types consists of despotism, monarchy, and republicanism, including aristocratic and democratic republicanism. Each type is characterized by a predominant spirit: the first by fear, the second by honor, and the third by virtue.7 Montesquieu’s observations concerning the British government are tantamount to the introduction of a fourth governmental species, or at least to a new definition of republican government. In response to Montesquieu, Madison suggested an alternative categorization of regime types. The first kind of government he described consists of a permanently armed military force that compels the submission of the populace. The second governmental type is activated by private interest and corrupt influence, and the third governmental form operates on the basis of the reason of the society. Madison depicted the first kind of government as inhumane, operating on a burdened and plagued people who groan under its oppressive weight. Examples of this kind of government are numerous throughout history, and in the present time, Madison observed, still operate in “almost every country of Europe.” While they pride themselves on their marks of civilization and humanity, they are not substantially different from the despotic governments that have dominated the globe throughout the ages. This description would certainly include China, Turkey, Spain, and the ancien r´egime of France. The British government is described in Madison’s second category, which 7

Ibid., SOL 2:1–2, 10; 3:1–9, 21–29.

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bolsters partisan corruption with the threat of military force. However, as Madison noted in the introduction to his analysis, governments are seldom if ever reducible to a single principle of operation. Nonetheless, whenever possible, it is useful to identify the spirit that predominates in them. Madison’s second governmental type functions by unleashing the motive of private interest, utilizing avidity as a substitute for public duty. By distributing bounties to allies and bribes to opponents, it is supported by “an army of interested partizans.” The wagging tongues, the pens, the intrigues, and the political alignments of these corrupt backers supply “the terror of the sword.” While it may pretend to represent the liberty of the many, in actuality it is dominated by the few. “Such a government,” Madison declared, wherever to be found, is an imposter. It is happy for the new world that it is not on the west side of the Atlantic. It will be both happy and honorable for the United States, if they never descend to mimic the costly pageantry of its forms, nor betray themselves into the venal spirit of its administration.

The vaunted liberty of this governmental type is largely a pretext, which is discoverable if one examines the spirit and principle of its operations. There can be no doubt that the government Madison is describing here is that of England and that he identified the predominant spring of its operations as pecuniary self-interest. Certainly his contemporaries recognized in this derisive appraisal certain aspects of the British government that were admired by many. In The Spirit of Laws Montesquieu deliberately evaded identifying the operating principle and spirit of the British government, choosing instead to emphasize that liberty constitutes its direct end.8 Madison’s criticism of Montesquieu’s analysis in “Spirit of Governments” is due to this evasion, which provided the grounds for categorizing Great Britain as a type of free government or republic. The vigor of Madison’s censure was intensified by the acceptance of this categorization by influential citizens of his own country, especially John Adams and Alexander Hamilton. Thus, his explicit invocation of Montesquieu’s errors in this article was motivated by both philosophic and practical political concerns. In “British Government,”9 an article published in the National Gazette just three weeks prior to “Spirit of Governments,” Madison took a different tack in criticizing Montesquieu. In this essay he implicitly invoked Montesquieu’s analysis of the British constitution to demonstrate that it is rooted in historical error. The equilibrium of the British government (such 8 9

Ibid., SOL 11:5, 156; 11:20, 186. “British Government,” PJM 14:201–2.

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as it is), Madison argued, is not primarily ascribable to its particular form of distributed powers. Those who attribute the longevity of the British constitution to this cause forget the changes that have occurred over time. In primitive times, the executive and the judicial power were combined and the legislature consisted of a single chamber; at present, the government is divided into three branches with a bicameral legislature. If the current government is characterized by a balance of power, the older form lacked any balance at all, yet it lasted longer than the current one has even been tried. The primary cause of the preservation of governmental equilibrium, Madison claimed, is “the force of public opinion.” Absent this force, the power balance of the current government would likely shift to either the monarch or the House of Commons. Either the “ambition in the House of Commons could wrest from [the monarch] his prerogatives, or the avarice of its members, might sell to him its privileges.” Madison implicitly took issue with the theory of corporate governmental equilibrium in his National Gazette essay “Parties.”10 Published a few days before “British Government” appeared, it presented a brief description of the balanced government theory that Madison would attribute directly to the British system in the later article. Although different interests and parties arise naturally in all political societies, Madison asserted, the notion that the encouragement of a conflict of interests in society is beneficial to the equilibrium of the political order is nonsense. The idea that the different social and corporate classes should each possess a certain portion of governmental power in order to balance each other is consistent neither with reason nor with republican theory. The encouragement of partial and/or artificial interests to promote political conflict and achieve political equilibrium is not the secret of Britain’s (apparent) liberty, stability, and success. Madison’s critique of the English system points to a fundamental disagreement with Montesquieu, Hume, and others over the essential character of republican government. Building on their nascent insight into the relationship of public opinion to the stability of political order, Madison argued that not only is public opinion the actual ground of political power and stability in every government, it is the only genuine sovereign authority in free government.11 In the third category of regime types in “Spirit of Governments” Madison showcased republican government and contrasted it with the preceding two 10 11

“Parties,” PJM 14:197–98. “Public Opinion,” PJM 14:170. In Madison’s “Notes on Government” (PJM 14:157–69), a portion of which served as draft notes for some of the Party Press Essays, Madison entitled one of the sections “Influence of Public Opinion on Government.” Madison obviously drew from this segment of the “Notes” when writing both “British Government” and “Public Opinion” for the National Gazette.

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types of regimes. Anchored in public opinion, this government derives “its energy from the will of the society, and operat[es] by the reason of its measures, on the understanding and interest of the society.”12 Madison continued in an uncharacteristically rhapsodic timbre: [This] is the government for which philosophy has been searching, and humanity been sighing, from the most remote ages. Such are the republican governments which it is the glory of America to have invented, and her unrivalled happiness to possess.

Montesquieu “glimpsed” the elegance of the theory underlying a republic of this character, but like Locke, he suffered from the disadvantage “of having written before these subjects were illuminated by the events and discussions which distinguish a very recent period.”13 In addition, Montesquieu was unfortunately “warped by a regard to the particular government of England, . . . profess[ing] admiration bordering on idolatry.”14 Madison’s writings in the early 1790s reveal that his theory of republican government cannot be understood simply or even primarily within the context of the philosophy of Montesquieu – or Hume or Locke – or any of the British thinkers who relied on Montesquieu’s analysis. Indeed, his theory can be accurately grasped only if the distinctions he marked out between Montesquieu and himself are fully taken into account. In Madison’s view, the lucid picture of the principles and processes of republican government accessible to him and his generation was clouded in the decades in which Locke and Montesquieu lived and wrote. According to Keith Michael Baker, the concept of public opinion as a political force did not generally emerge until about 1770.15 Its emergence in France under the ancien r´egime, however, changed the face of French political thought and politics throughout the remainder of the century and beyond. 12 13 14 15

“Spirit of Governments,” PJM 14:234. Madison, “Helvedius No. I,” PJM 15:68. Ibid. Keith Michael Baker, Inventing the French Revolution: Essays on French Political Culture in the Eighteenth Century (Cambridge: Cambridge University Press, 1990), 187. The numerous works by Baker on the society and politics of eighteenth-century France, and particularly his writings on the concept of public opinion during this era, are a pathbreaking and brilliant contribution to understanding the political thought of French thinkers during this period. Also excellent is Mona Ozouf’s work, particularly “‘Public Opinion’ at the End of the Old Regime,” Lydia C. Cochrane, trans., The Journal of Modern History 60 Supplement (1988), S1–S21. See also Harvey Chisick, “Public Opinion and Political Culture in France During the Second Half of the Eighteenth Century,” English Historical Review 117 (2002), 48– 77. For a comprehensive treatment of the concept of public opinion in French thought see J. A. W. Gunn, Queen of the World: Opinion in the Public Life of France from the Renaissance to the Revolution (Oxford: Voltaire Foundation, 1995).

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During Jefferson’s stint as ambassador to the court of Louis XVI, he routinely purchased and sent books to his friend in Virginia. Some of the volumes shipped were ones specifically requested by Madison, while others were selected by Jefferson for him, sometimes with a line or two in his letters relaying his own enthusiasm for a selected author or work. Among the books and pamphlets Jefferson sent Madison during the late 1780s were works by Mably, Moreau, Necker, Turgot, Condorcet, Chastellux, DuPont de Nemours, Le Trosne, Louis-S´ebastien Mercier, Le Mercier de La Rivi`ere, Volney, comte de Mirabeau, Brissot de Warville, Barth´elemy, and Panckoucke’s edition of the Encyclop´edie m´ethodique as these volumes became available.16 Madison also obtained earlier from France writings by La Bruy`ere and Raynal’s work on the East and West Indies. With the exception of texts by Condorcet and Raynal, Madison included works by these French authors in his list of books bound for Philadelphia in 1790.17 Surely he had a purpose in mind when he selected these texts for shipment to his new residence in the capital city. In the spring of 1791 he penned the “Notes on Government,” and later that year and into the next he composed the Party Press Essays. Both the “Notes on Government” and the Party Press Essays incorporate ideas from these French texts. What the French authors just cited (or in the case of Necker, a Swiss employed by the French government) have in common is a conception of a public possessing a judgment and force that cannot safely be ignored by government. In general, they argued that public opinion reflects a moral consensus and is a source of political authority and stability in government. 16

17

Jefferson to Madison, August 2, 1787, PJM 10:128–29; Jefferson to Madison, July 31, 1788, PJM 11:212, 214 n. 13; Madison to Jefferson, October 17, 1788, PJM 11:295; Jefferson to Madison, January 12, 1789, PJM 11:413, 414 n. 4 and n. 5; Madison to Jefferson, May 9, 1789, PJM 12:142; “Memorandum of Books,” ca. August 1790, PJM 13:286–89. In Madison’s book list of August 1790, indicating the texts he would send to his residence in Philadelphia, he marked those books purchased for him by Jefferson in France (“Memorandum of Books,” ca. August 1790, PJM 13:286–89). This list is particularly illuminating in respect to Madison’s intended plan of study of French texts in the period following the summer of 1790. Some of the authors listed previously are referenced in this book list by text only, as for example the entry “Tableau de Paris” (authored by LouisS´ebastien Mercier) or “Soci´et´e Politique” (referring to Le Mercier de La Rivi`ere’s L’Ordre naturel et essentiel des soci´eti´es politiques). Le Trosne’s name is misspelled by Madison as ˆ is “le Trone,” though his work, De l’administration provinciale et de la r´eforme de l’impot, clearly indicated by Madison’s reference to “Admtron. De l’impot ˆ par le Trone.” In addition to citing “Neckar on Religion,” Madison lists “Examen sur les finances,” which likely refers to Necker’s De l’administration des finances de la France, published in 1784. See “Memorandum of Books,” ca. August 1790, PJM 13:286–89. Of the books Madison specially selected to bring with him to Philadelphia, texts by these French authors make up a significant proportion of the overall shipment.

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Most scholars agree that Rousseau was the first prominent writer to employ the phrase l’opinion publique.18 By the latter eighteenth century, however, the phrase had taken on a rationalistic aspect distinctly different from Rousseau’s conception. For Rousseau, public opinion was comprised of the untutored views of the populace, which result from customs, mores, and habits. At times, Rousseau speaks of public opinion positively and celebrates it as the guardian of public morality, perhaps even, in its consolidated form, as tantamount to the general will. In contrast to other types of law, public opinion “forms the real constitution of the state.”19 At other times, Rousseau speaks of public opinion as prejudice and fashionable whim, viewing it as an obstacle to the achievement of the general will rather than a vehicle for expressing that will. In this sense, public opinion is much too prone to error and to manipulation by the intellectuals and the royal court; as such, it reflects a servile dependence on the opinions of others, manifesting itself as a debasement of taste and character. Either way, Rousseau did not believe that public opinion is refined or enhanced by representative government or the decision-making process of an interactive, deliberative assembly.20 Unlike later French thinkers on the subject, Jurgen Habermas argues, Rousseau’s ¨ concept is really one of an “unpublic opinion,” which comprises the idea of a “democracy without public debate.”21 A second group of French thinkers envisioned a type of politics that would publicize governmental measures and encourage public discussion. This new environment of political openness would invite public expression at the same time that it would shape the public views. The concept of public opinion thus took on a more politically dynamic meaning, conveying the notion of a deliberate and authoritative voice within society that results from communicative activity. This group includes the previously cited French authors. It also includes Jacques Peuchet, who authored the section on “Police et 18

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See, for example, Paul A. Palmer, “The Concept of Public Opinion in Political Theory,” in Carl Wittke, ed., Essays in History and Political Theory, in Honor of C. H. McIlwain (Cambridge, Mass.: Harvard University Press, 1936), 236. J. A. W. Gunn, however, argues that the term “public opinion” is employed much earlier than 1750 and, though Rousseau may have been the earliest prominent author to use it, he cannot be credited with originating the expression (Queen of the World, 122). See, for example, Jean-Jacques Rousseau, The Social Contract II:12, in Lester G. Crocker, ed., The Social Contract and Discourse on the Origin of Inequality (New York: Washington Square Press, 1967), 58. Cf. chapter 7, “Launching the Term ‘Public Opinion’: Jean-Jacques Rousseau,” in Elisabeth Noelle-Neumann, The Spiral of Silence: Our Social Skin (Chicago: University of Chicago Press, 1993). Rousseau, The Social Contract II:1, 27–28, and III:15, 98–101. Jurgen Habermas, The Structural Transformation of the Public Sphere, Thomas Burger, ¨ trans. (Cambridge, Mass: MIT Press, 1989), 98.

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municipalit´es” in the Encyclop´edie m´ethodique, which Madison brought with him to Philadelphia. These authors regarded public opinion as “Queen of the world.” In the 1780s, the concept of public opinion became so firmly established in the French lexicon that it replaced “opinion” in the new French encyclopedia.22 Louis-S´ebastien Mercier, in the Tableau de Paris in 1782, declared that public opinion had become the universal cry and a preponderant, irresistible force in Europe, and that it had caused a great revolution in men’s ideas.23 “In a nation that thinks and talks,” the abb´e Raynal argued, “public opinion is the rule of government.”24 “It is public opinion which governs,” Le Trosne wrote; “it is therefore important to submit to this master.”25 Jacques Necker, the French minister of finance, called public opinion the “spirit of society,” a kind of “invisible power” that, though “destitute of treasures, of guards, and armies, dictates its laws in the capital, in the court, and even in the king’s palace.”26 “Everything,” Necker asserted, “is, more or less, finally influenced by the impulse of the public.”27 Given the force of public opinion, this group of French thinkers set for themselves the challenge of articulating a kind of political order that would acknowledge the authority of the newly emerged public. At the same time, however, most (Mably, in particular, excepted) followed Rousseau in rejecting the politics of party contestation, which they viewed as destructive to stability and liberty in political life.28 The tranquil spirit of public opinion, 22

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The 1765 edition of the Encyclop´edie contains an entry for “Opinion” that makes the traditional distinction between knowledge and opinion, describing the latter as characterized by uncertainty and variability. In the Encyclop´edie m´ethodique there is no entry at all for “opinion” in the philosophical sections; rather, the term is replaced by “opinion publique,” which is treated in the political sections on finances and police, published in the 1780s, and is associated with rationality. Louis-S´ebastien Mercier, Tableau de Paris: Nouvelle e´ dition, 12 vols. (Amsterdam, 1782– 88), 4:289. Guillaume Thomas François Raynal, Histoire philosophique et politique des e´ tablissemens . . . dans les deux Indes (Amsterdam, 1770), 6:391–92. ˆ Guillaume François Le Trosne, De l’administration provinciale et de la r´eforme de l’impot (Basel: P. J. Duplain, 1779), 117. Jacques Necker, A Treatise on the Administration of the Finances of France, 3 vols., Thomas Mortimer, trans. (London: J. Walter, 1785), I:lv, I:lviii. Ibid., 3:461. On the politics of party contestation, see Baker, Inventing the French Revolution, 186. Mably, and Moreau at least early in his career, set themselves apart from most other French theorists of public opinion in arguing that partisan struggles are beneficial to good government since they provide a kind of energy in politics. Later in his life, however, Moreau dispensed with any discussion praising the British system of party politics. Necker, on the other hand, wanted to discourage factionalism and promote unity and tranquility in political life, though he was in general an admirer of the British government, especially its public disclosure of the nation’s finances.

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they argued, is incompatible with the kind of factionalism that divides men into opposing groups filled with animosity for each other. A united people is beneficial to political order, for in the public concurrence of opinion government derives stability. In contrast, a perpetual state of warring parties, as in the British model of opposition politics, leaves the citizens in a constant state of insecurity and the government, at best, in precarious equilibrium. The vaunted reign of public opinion meant the rejection of the notion that a government organized on the basis of particular classes or orders of society was sufficient to achieve stability in political affairs or provide the basis for a genuine community of citizens. Apparently, Montesquieu’s praise of the British government and the spirit of party rankled more than one generation of Frenchmen. Despite their disagreements with Montesquieu, this second group of French thinkers on public opinion owes its initial insights to him. From his works, particularly The Spirit of Laws, they adopted the idea of a general spirit or mind that animates the society and its laws.29 With Montesquieu they rejected the Hobbesian legalistic solution to political conflict, seeking instead a more penetrating understanding of the complexity of human affairs. Montesquieu’s emphasis on communication and the interactive relationship between moeurs and laws resonated in their writings. Jean Jacques Barth´elemy, in Voyage of Anacharsis the Younger in Greece, for example, argued that moeurs “restrain the citizen by the fear of public opinion, while the laws only terrify him by the dread of punishment.”30 In the Encyclop´edie m´ethodique, Peuchet contended that Montesquieu’s inquiry into the relationship of laws and mores was thoroughly enlightened. “[T]he great art of this philosopher,” Peuchet wrote, “is that, even when he is mistaken, he compels the reader to think, and shows him the road that leads to truth.”31 In 1797 Simone-J´erome Bourlet de Vauxcelles summarized the influence of ˆ Montesquieu on thinkers of his century. It was particularly to Montesquieu, he said, that one must turn to understand the roots of public opinion and its formation. That was why Montesquieu titled his great book Esprit, thus invoking an intellectual principle that animates all else.32 Indeed, the ringing

29 30

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Montesquieu, SOL 19:308–33. Jean Jacques Barthl´elemy, Travels of Anacharsis the Younger in Greece during the middle of the fourth century before the Christian aera, 4th ed., 8 vols. (London, 1806), 5:278. Hereafter cited as Voyage. Peuchet, “Discours pr´eliminaire,” in Encyclop´edie m´ethodique: Jurisprudence, vol. 9, Police et municipalit´es, i–clx (Paris, 1789), clvii. Gunn, Queen of the World, 375. Cf. Alexis de Tocqueville’s discussion of moeurs in Democracy in America, J. P. Mayer, ed. (New York: Harper Perennial, 1969), 287. Tocqueville

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cry by the proponents of a politics of public opinion to establish over society an “empire of reason” would seem to have originated in Montesquieu’s idea that “La raison a un empire naturel.”33 Notwithstanding their indebtedness to Montesquieu, these theorists consciously took his insights further, or perhaps in a different direction, than Montesquieu himself was willing to go. Most found fault with his encouragement of party conflict and checks and balances; the physiocrats and Condorcet, in particular, were unsatisfied with the impure reason that dominated his scheme. As Montesquieu himself readily admitted, the model of balanced government he so praised derives its energy from the agitated play of the passions and thus is rather closed to the guidance of reason.34 The second group of French thinkers on public opinion generally viewed such a system as the antithesis of good government because, they argued, reason, rather than passion or mere will, is the standard for legitimate public decisions. According to their conception, public opinion is not constituted by a mere aggregate of the sentiments of the populace; it is not synonymous with “popular opinion(s).”35 Thus, their view must be differentiated from Rousseau’s perspective. It must also be distinguished from the contemporary view, which conceives of public opinion as discoverable in daily polling aggregates. This distinction is critically important for those of us today who seek to understand the eighteenth-century concept of public opinion. Theirs was not primarily a theory of political popularism; public opinion was not a spontaneous outpouring by the people or an ephemeral tide of popular sentiments and uneducated views.

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defines moeurs in its original Latin meaning, applying it “not only to ‘moeurs’ in the strict sense, which might be called habits of the heart, but also to the different notions possessed by men, the various opinions current among them, and the sum of ideas that shape mental habits.” Montesquieu, De l’esprit des lois (1748), sixi`eme partie, 28:38, 79. http://classiques.uqac.ca/ classiques/montesquieu/de_esprit_des_lois/partie_6/esprit_des_lois_Livre_6.pdf; cf. Montesquieu, SOL 28:38, 591. This phenomenon is associated with England’s extreme political liberty. It may, in fact, be one of the reasons Montesquieu does not unqualifiedly endorse the English model. See Paul A. Rahe, “Forms of Government: Structure, Principle, Object, and Aim,” in Montesquieu’s Science of Politics: Essays on The Spirit of Laws (Lanham, Md.: Rowman & Littlefield, 2001), 69–108 and particularly 82–83. See, for example, Ozouf, “Public Opinion,” S8–9, n. 24; Jacques Peuchet, “Discours pr´eliminaire,” in Encyclop´edie m´ethodique: Jurisprudence, vol. 9, Police et municipalit´es (Paris, 1789), ix–x. Peuchet published a second volume on police in 1791. Carol Allen and William B. Allen are currently completing the first English translation of Peuchet’s preliminary discourse to his work on police in the Encyclop´edie m´ethodique. I am grateful to them for sharing their preliminary draft with me.

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Condorcet set forth the distinction between public opinion and popular opinion bluntly. Whereas public opinion is enlightened by the men of letters, popular opinion is that “of the most stupid and misery-stricken part of the people.”36 Necker put it more diplomatically, distinguishing public opinion from the fleeting popular sentiments and views of the populace. In De l’administration des finances de la France, which was reprinted in the section on finances in the Encyclop´edie m´ethodique, Necker argued: We must be very careful not to confound that public opinion, which I have delineated, with those rumours of a day, which commonly take their rise in particular societies only, and under certain circumstances. It is not to such a decision that a man capable of being at the head of an extensive administration ought to give way. On the contrary, he ought to know how to despise it; that he may remain firmly attached to that public opinion, which is respectable under all its forms, and which alone is rendered sacred, by reason, time, and a universal conformity of sentiments.37

The proponents of a politics of public opinion agreed on the vital importance of the enlightened members of society to the formation of a public voice grounded in reason. For some, the head of state and/or his high-ranking ministers formed the coterie of enlightened men; for others, the literati were tasked with taking the lead in shaping the public mind. For all of them, publicity and communication were critically important to the dissemination of information to the people and the achievement of an enlightened public opinion. Moreau and Necker emphasized the influence of the king and his ministers on public opinion to produce unity, confidence, and obedience to the government. According to Moreau, a vigorous defender of the monarchy under the ancien r´egime, public opinion informs the will of the king, but the king, simultaneously, shapes the conscience and opinion of his subjects. In the final analysis, the subjects owe the sovereign and his government their confidence and obedience. Necker argued that “a skilful administration has the effect of putting in action those it persuades, of strengthening the moral ideas, of rousing the imagination and of joining together the opinions and sentiments of men by the confidence it inspires.”38 Indeed, “confidence” is “that precious sentiment which unites the future to the present” and “lays 36 37

38

Ozouf, “Public Opinion,” S8–9, n. 24. Necker, A Treatise, I:lxv–lxvi. Cf. L´eonard Burnard, Necker et l’Opinion Publique (Paris: ´ Honor´e Champion, Editeur, 2004). Necker, A Treatise, I:xii.

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the surest foundation of the happiness of the people.”39 “The good opinion of the public,” Necker passionately declared, is the “dear object of my ambition!”40 But the idea of wanting “the good opinion of the people,” he admitted, was perhaps rather more of wanting “to render it subservient to great undertakings.”41 Necker and Moreau thus argued for a quasi-dynamic theory of public opinion, emphasizing the influence and inspiration of the monarch and his ministry on the sentiments and attachments of the general public. They neglected, however, to inquire into the composition of the public, their priorities, or the possibility of the citizens’ enlightenment, thereby leaving the concept of public opinion abstract and amorphous.42 A host of French writers moved substantially beyond Moreau and Necker’s conception of public opinion as primarily the judgment of the public on the reputation of men of rank or talent and envisioned a more energetic and substantive role for the public in the political life of a nation. Placing a dual emphasis on the influence of the enlightened men on public opinion and the directive influence of public opinion on government, they conceived of public opinion as both acted upon and itself an active agent. Physiocrats such as Le Trosne and Mercier de La Rivi`ere sought to enlighten and direct public opinion and create a unified and active citizenry. To accomplish this they advanced the freedom of the press, free public discussion, the influence of laws and/or moeurs on public opinion, the reciprocal influence of public opinion on laws, mores and manners, and, most importantly, the subjection of opinion to e´ vidence. According to François Quesnay, the founder of the physiocrats and the author of the entry on “´evidence” in the Encyclop´edie, the term “signifies a certitude so clear and manifest by itself that the mind cannot deny it.”43 In order to subject public opinion to the commands of e´ vidence, a number of physiocrats advocated the establishment of provincial assemblies, conceiving of them as forums by which to form, direct, and unify the opinion of the public. Eighteenth-century French advocacy of provincial assemblies generally followed Turgot’s plan of provincial and national assemblies, definitively presented in M´emoire sur les municipalit´es (actually drafted by Dupont de

39 40 41 42 43

Ibid., I:x. Ibid., I:xvii. Ibid., I:liv–lv. See Gunn, Queen of the World, 293, 325. ´ François Quesnay, “Evidence,” in Denis Diderot, Jean Le Rand d’Alembert, et al., eds., Encyclop´edie, vol. 6 (Paris: Briasson, 1756). Cf. Pierre Rosanvallon, “Political Rationalism and Democracy in France in the 18th and 19th Centuries,” Philosophy & Social Criticism 28:6 (2002), 687–701.

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Nemours on behalf of Turgot in 1775). Turgot argued that the proper formation of public opinion requires the institution of multiple tiers of government that can strain and purify the passions and interests in society. Accordingly, he and others promoted the establishment of a multilayered system of deliberative assemblies that were intended to transform individual wills and preferences into an authoritative consensus grounded in reason. At the primary local level, the right to participate was limited to those with a sufficient amount of landed property, whose rational interests were ensured by their stake in society. At the national level, members of the assembly were to be elected by the owners of property. Presumably, those elected to political office would be the most educated, respected, and capable members of society, thereby coinciding with or taking their cue from the enlightened elite. Their responsibility was not to represent the will or the partial interests of their constituents, but rather the rational interest of the society. In this process, however, Turgot did not mean to alienate the citizens from the public judgments, for the legislative task he envisioned was simultaneously interventionist, educative, and conciliatory. Nonetheless, the encouragement of civic participation in local affairs was an instrumental means and not a political end for Turgot; primarily, he sought to establish a system that encouraged social and political unity and promoted a scheme of rational administration.44 The political system Turgot, his student Condorcet, and their friends in the physiocratic camp envisioned held out the promise of the achievement of a public good determined by the harmonious expression of the mutual benefit of the citizens and common interest of the nation. Distinguishing between the unjust rule of mere will and the just rule of reason in society, they sought the establishment of a political process that subjects individual views and narrow interests to e´ vidence, transforming them into a unitary public opinion grounded in reason. The public opinion that results from this process should not be confused with popular opinion, they argued. Rather, public opinion is preceded by the opinion of enlightened men and dictated by it; it is the established “body of beliefs held in common by such [average] men” whose “authority sweeps along the opinion of the people.”45 In this way, the will of the society is made to depend on the reason of the society. Accordingly, public opinion constitutes the expression of the rightful authority of a nation. Over time, public opinion and law provide mutual support for each other, deriving their force not merely from habit but from 44 45

See Ozouf, “Public Opinion,” S20. CSW, 221; See also Ozouf, “Public Opinion,” S8–9, n. 24.

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the effect of “fixed principles and real, proven truths,” thereby establishing over society an “empire of reason.”46 To establish the rule of reason over society, Condorcet attempted to work out a complex scheme of decision making based on mathematical probabilities. The modern scientific method and the aim of objectivity that inspired Condorcet are generally identified as the basis of the rationalism of the Enlightenment.47 There is another strand of French Enlightenment thought, however, that vigorously opposed this approach to politics and ethics. Jean Jacques Barth´elemy and Jacques Peuchet stand out particularly in this regard. They rejected the mathematical treatment of politics and morality and promoted instead the guidance of prudential reason in political life. With his fellow members of the Acad´emie des Inscriptions et Belles-Lettres, Barth´elemy fought against the rationalist philosophy of his day, which he believed threatened to eclipse the humanities and the classics.48 Peuchet also harshly criticized those who reduced reason to mathematical abstractions and neglected human nature.49 The end of society, Peuchet asserted, is not metaphysical perfection.50 Enlightenment will not make men perfectly virtuous. Human beings are a composite of reason and passion, and neither can be eliminated from our nature. Although humanity is not susceptible to perfectibility, he argued, we can nonetheless learn from philosophy and 46 47

48

49

50

CSW, 58. See, for example, Gertrude Himmelfarb, The Roads to Modernity: The British, French, and American Enlightenments (New York: Alfred A. Knopf, 1994). Louis Bertrand, La Fin du Classicisme et le Retour a l’Antique (New York: Burt Franklin, 1897), 43–44. Peuchet may have learned the spirit of moderation in moral and political inquiry from Montesquieu. He certainly believed that some men of his time did not read Montesquieu carefully, and he was particularly critical of his contemporaries who, devoid of a profound understanding, “invoke abstract principles” and neglect an understanding of “the nature of man, about which L’Esprit des loix offers great models so instructively” (Peuchet, “Discours pr´eliminaire,” clix). Bernard Manin claims that, in the final analysis, Montesquieu’s moderation is “rather like Aristotle’s prudence: a virtue that makes it possible to work toward universal goals in a world characterized by relative indeterminacy. But for Montesquieu relative indeterminacy does not rest on the same foundation as for Aristotle: it derives not from the contingency of the material world but from the liberty of man. The consequences for action are the same for both authors, however: ordered, rational action toward universal ends is possible in an indeterminate world, because the indeterminacy of the world is only relative. The French revolutionaries, of whom Condorcet may here be taken as a representative type, rejected this prudential rationality couched in the modern form of a theory of moderation. In this opposition the Revolution marks not the triumph of reason over relativism but the victory of one form of rationality over another” (“Montesquieu,” in François Furet and Mona Ozouf, eds., A Critical Dictionary of the French Revolution [Cambridge, Mass.: Harvard University Press, 1989], 730). Peuchet, “Discours pr´eliminaire,” lv.

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from experience how to diminish the evil and make the good more palpable.51 Accordingly, Peuchet argued for a politics of moderation, calling for the establishment of “the limits of moderation and the rules of a healthy logic” in ethical and political inquiry.52 “Public opinion,” Peuchet wrote, “has its source in the opinion of enlightened men, whence it gains partisans and becomes the general conviction.”53 The rise of the print media is a necessary condition for the formation of public opinion, for these sources of information and means of communication, combined with the growth of literacy, make possible the enlightenment of the public. Relying explicitly on William Robertson’s History of the Reign of Charles V, Peuchet situated his treatment of the phenomenon of public opinion within a general historical account of the progress and transformation of European society.54 Unlike Barth´elemy (whose ideas we will explore in Chapter 7), Peuchet claimed that the idea of public opinion was unknown to the ancient world.55 In modern times, he said, the art of printing has replaced the spoken word as the primary means of political communication, and the publicity that it engenders is possible over an expansive nation and is not limited to the small polities of classical times.56

51 52 53 54

55

56

Ibid., liv. Ibid., liii. Cf. xli. Ibid., x. Madison cited the Robertson text in his 1791 “Notes on Government.” See PJM 14:159. In this work Robertson recognized public opinion as a force for political change in civilized nations. See Karen O’Brien, “Robertson’s Place in the Development of Eighteenth Century Narrative History,” in Stewart J. Brown, ed., William Robertson and the Expansion of Empire (Cambridge: Cambridge University Press, 1997), 74–91. O’Brien argues that although Robertson certainly did not assign to the idea of opinion the authoritative role it has in contemporary political life, he nonetheless envisioned a much more demanding and creative role for it than one can find in Hume’s rather “passive and normative processes of opinion” (83). Interestingly, Madison’s study of classical political philosophy led him to a different view. In the “Notes on Government” he claims that Aristotle understood that public opinion could influence the government and contribute to its preservation or destruction, citing particularly Aristotle’s discussion of the rotation of regimes in Book V, Chapter 12 of the Politics (“Notes on Government,” PJM 14:162). It is very possible that Madison’s commentary on Aristotle’s conception of public opinion was a response to Peuchet’s and/or others’ claims that the ancients were unaware of the idea or force of public opinion. Barth´elemy’s suggestions regarding Aristotle’s understanding of the relationship of moeurs and public opinion, and their effect on the preservation or destruction of regimes, may have contributed to Madison’s conception of the classical understanding of politics (Voyage 5:277–78). For a more extensive discussion of this, see Chapter 7. Note that Peuchet’s idea that the print media make communication possible in a government over a large territory is presented in 1789, i.e., two years after Madison introduced this notion in The Federalist. See particularly Federalist 10 and 14.

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Central to Peuchet’s political thought is the idea of public morality, which is essentially the society’s perception of the relationship between duties and interests and its general view of virtue and vice. Public morality is the product of all the local and political circumstances that influence the mores of a people, and it is the foundation for the formation of a common opinion among men. A nation’s principles of justice are modeled on those of the generally adopted maxims of morality within the society.57 For the ancients, Peuchet argued, public morality was identical to the mores, customs, and prejudices of the society. In modern times, public morality provides a “path opened for reason to serve humanity usefully.”58 The advent of the politics of public opinion, and its operation in a large nation, makes charting this new path possible. In both ancient and modern times, the regime or government (and particularly la police,59 the subject of Peuchet’s entry in the Encyclop´edie m´ethodique) constitutes the predominant influence on the content of public morality. In modern times, public opinion is the dominant influence on government. The invention of printing and the increased circulation of knowledge in the modern era have fostered communication among men and energetically promoted the formation of a common opinion informed by the views of the enlightened members of society. This opinion guides government, which in turn shapes public morality. As the ideas of the enlightened members of society become “amalgamated with popular ideas,” the beliefs and moral habits of the citizenry are purified, ameliorated and civilized.60 Accordingly, Peuchet argued, public opinion can alter and modify the morality of a nation; it can preserve or scorn the laws. “It is the guide and guardian” of morality.61 The politics of public opinion makes a peaceful 57 58 59

60 61

Peuchet, “Discours pr´eliminaire,” v. Ibid., iv. In Citizens without Sovereignty: Equality and Sociability in French Thought, 1670–1789 (Princeton, N.J.: Princeton University Press, 1994), Daniel Gordon explains the different meanings attached to the term police in sixteenth- through eighteenth-century France. In the sixteenth century the word was essentially a translation of the Greek work politeia, or “polity/regime.” It meant “the sum of legal and religious customs” that constitute a civilization and act as constitutional checks and limitations on government (19–20). For many writers in the eighteenth century, the term merely connoted the administrative function and competence of government, a reduction in the meaning of polis/police that “outraged the republican Rousseau” (20, 22). While Peuchet’s use of the term certainly includes the idea of administrative regulations that establish order in the state, he also captures the breadth of the classical term politeia in his lengthy discussion of the importance of beliefs, customs, and opinions in maintaining the stability and health of the political order. Peuchet, “Discours pr´eliminaire,” lxxxi. Ibid., ix.

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revolution in the mores of society possible; it is capable of jarring the virtually stagnant prejudices and established customs of a society. In contrast to the ancient world, public morality in the modern era is not synonymous with custom and prejudice. Rather, in its association with public opinion, public morality censures prejudices and customs and opens a path for reason to shape the ethos of a nation.62 The tenets of public morality are refined and humanized in the modern era by a dynamic communicative process that transmits the ideas of the men of letters to the common citizens via the print media. This process of refinement is substantially enhanced in a large nation constituted by distinct levels of governance. Peuchet argued that in contrast to public morality in a small state, public morality in a large nation is much more a “universal sentiment, founded upon the rights of nature and humanity, than a factious opinion or an imitation.”63 Like Turgot, Condorcet, and the physiocrats, Peuchet promoted a multitiered system of representative government. At the local and national levels, discussion and debate can provide the forum for the realization of an enlarged view of interest.64 Anticipating Tocqueville, Peuchet argued that it is at the local level that one learns how to be a citizen. The practice of suffrage and participation in discussions of the public good may serve to elevate the citizens’ views and aggrandize their ideas, perhaps even to inspire a hatred of prejudice and promote a spirit of toleration.65 They are like so many schools of civic education, where the populace learns to fulfill their duties and to defend their rights as both virtuous men and enlightened citizens.66 Local governing bodies may even teach people a taste for the pleasures of the mind.67 Public discussions at the local level take place within the broader context of a reigning national public opinion. The opinions, mores, customs, and habits of the citizens are altered and elevated both by their engagement with the ideas of the enlightened minds of their time and by their experiences in local self-government. The local assemblies act as forums of civic learning and serve as obstacles to the tyranny of higher governmental authorities; local customs and prejudices are subject to and modified by the judgments of the established opinion of the larger polity. Public opinion is the sum and 62 63 64 65 66 67

Ibid., lxxiv. Ibid., lxxv. Ibid., lxiv. Ibid. Ibid. Ibid.

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result of this complex and dynamic process of social enlightenment. It is the source of the judgments of the nation, and its power is prodigious. Public opinion “reigns over all the minds,” Peuchet argued, and is ultimately the arbiter and guide for the conduct of magistrates and government itself.68 The “ascendancy of public opinion and enlightenment on the deliberations of government” balance the narrow views of interest and make possible the achievement of public decisions based on the reason of the public.69 Peuchet ultimately anticipated a progress of enlightenment that would establish over society an “empire of reason.”70 In opposition to any notion of the progress of enlightenment, whether Condorcet’s more optimistic vision that human beings might over time develop a greater faculty of rational choice and actually rely less and less on passion and prejudice, or Peuchet’s more restrained view of the possibility of attaching the human passions to a more humane and civilized opinion of right, Gabriel Bonnot de Mably believed that human opinions are too often actuated by powerful passions and interests. He directed the brunt of his criticisms against the physiocrats, particularly La Rivi`ere, and the claim that individual opinions will facilely yield to the rational dictates of e´ vidence. Liberty can be safeguarded only in a political system that separates the powers of government and provides counterforces to balance the various passions and interests that motivate men, Mably asserted. Moreover, in large, rich, and powerful nations, there can be no political moderation without the existence of competing corporate ranks in society.71 These rival orders act to achieve political equilibrium, thus preventing the abuse of power. However, in the clash of these competing claims, Mably also carved out a positive role for public deliberation. He believed that to garner public attention, claimants are compelled at least to assume the “mask of the public good” and show 68

69 70 71

Ibid., ix. Here Peuchet cites Necker’s assertion that public opinion “reigns over all the minds” and that even princes must submit to it. Ibid., lxii–lxiv. Ibid., viii. Gabriel Bonnot de Mably, Des droits et des devoirs du citoyen, Jean-Loius Lecercle, ed. (Paris: Didier, 1972), 212. Cf. Ira O. Wade, The Structure and Form of the French Enlightenment, 2 vols. (Princeton, N.J.: Princeton University Press, 1977), 2:346–51. According to Wade, Mably opposed the physiocrats’ view that counterforces and the doctrine of mixed, balanced government were inimical to liberty. Instead, he employed the notion of a balance of power to promote citizenship and achieve the public good in republican government, rejecting the physiocratic notion of enlightened despotism and e´ vidence. However, Wade contends that Mably’s conclusion “is the important thing,” for as Mably declared, “Si ces r´eflexions sont vraies, vous en concluerez, Mr., que les moeurs m´eritent la principale attention de la politique, et ques bonnes or mauvaises elles d´edident du sort e´ tats” (351).

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a minimum degree of concern for the interests of others.72 The competition of private interests compels “mutual recognition,” which induces each individual to “bring the strongest reasons to bear on behalf of his opinions.”73 In this way, public deliberation assists in transforming private interests into the public good. La Rivi`ere, the comte de Mirabeau (and his father the marquis as well), Turgot, Le Trosne, Condorcet, Peuchet, and the Italian francophile Philip Mazzei vehemently disagreed with Mably’s endorsement of a political order based on divided powers, balanced counterforces, and rival corporate orders. Such a system only encourages conflict among men and prevents the society from achieving the stability, unity, and tranquility at the heart of the politics of public opinion. Mably’s ideas were as anathema to them as Montesquieu’s. The model of government that Condorcet proposed took its bearing from the equality of rights rather than the identity of corporate claims, narrow interests, and self-serving prerogatives. If Montesquieu had reflected more on the “nature and effects of truly representative constitutions,” Condorcet argued, and been less concerned with “how abuses counterbalance abuses,” he might have discovered “the means of enveloping them all in the same destruction.”74 The type of balanced government advocated by Montesquieu either destroys itself or depends for its operation on a system of intrigue and corruption. Further, it supposes the existence of two opposing parties, which are contrary to a united and indivisible republic.75 The unity of the nation is grounded in the authority of the public, Condorcet declared. Indeed, as Turgot had argued, the authority of the public must be collected into “one centre, the nation” – for the nation is the public and vice versa. The exercise of national power must accord with the natural rights of man and the free exercise of his faculties; it cannot legitimately be divided or balanced by vested interests or artificial powers. The logical expression of the united sovereign will, in Condorcet’s view, could not be achieved by fracturing that will. He thus rejected all attempts to balance the “vicious powers,”

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Johnson Kent Wright, A Classical Republican in Eighteenth-Century France: The Political Thought of Mably (Stanford, Calif.: Stanford University Press, 1997), 113. Quoted in ibid., 113; cf. Gabriel Bonnot de Mably, Doutes propos´es aux philosophes e´ conomistes, sur l’Ordre naturel et essentiel des soci´et´es politiques (The Hague: Durand, 1767), II:205–6. Keith Michael Baker, Condorcet: From Natural Philosophy to Social Mathematics (Chicago: University of Chicago Press, 1975), 260. CSW, 155–56. See also Baker, Condorcet, 323.

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including the idea of bicameralism.76 “Man did not put himself into society to be jostled between opposing powers,” he wrote, “becoming equally victim of their unity or of their quarrels, but to enjoy all his rights in peace, under the direction of an authority solely instituted to maintain them; an authority which, never having the power to violate these rights, can have no need of being counterbalanced by another power.”77 Condorcet’s praise for the American polity, where “public discussions destroy prejudices and prepare the support of public opinion for the wise views of these newborn laws,” is accompanied by a harsh criticism of the machinery of checks and balances in the U.S. Constitution.78 The American system, he claimed, is laden with a “multitude of springs” and “so many counterweights” that are “supposed in theory to balance one another” but that “combine in reality to weigh upon the people.” These are “dangerous political subtleties . . . too long admired.”79 The comte de Mirabeau, in Addresse aux Bataves, followed a similar line of criticism, claiming that Americans had been overly influenced by the system of balanced powers in the English constitution and by the views of the overrated Montesquieu.80 Peuchet too was critical of the “incoherent system of opposed interests and blind passions” that he thought characterized the newly formed American political system.81 In fact, he recommended that the new U.S. Constitution be considerably altered. Despite the doctrine of popular sovereignty that Condorcet advanced, he, like most of the second group of French thinkers, favored preserving the monarchy in France. These thinkers tended to situate the authority of public opinion in monarchical governments and to deny its relevance in despotisms or republics. Moreau viewed popular government as a type of despotism, though he distinguished it from the ordinary kind in which 76 77

78 79 80 81

CSW, 178. Baker, Condorcet, 265. In 1793, in “On the Principles of the Constitutional Plan Presented to the National Convention,” Condorcet wrote, “If the constitution of a people is based on the principle of the balance of the vicious powers combating or combining one with another; if it gives different classes of citizens prerogatives that must balance one another; if it creates permanent bodies and establishes powers long entrusted to the same individuals, no doubt the moment of examining such a constitution will be a moment of alarm because these diverse interests it has created will raise vigorous and implacable war upon each other” (CSW, 178). CSW, 79. CSW, 80. P. F. Willert, Mirabeau (London: Macmillan & Co., 1923), 119. Peuchet, “Discours pr´eliminaire,” xxix. Peuchet also commented that in America, public virtue lacks consistency and public morality is not well pronounced.

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a “terrible silence” prevails. In popular governments the people are the sovereign rulers; they cannot be checked by any other force, and certainly not by public opinion. Necker and Peuchet argued that public opinion is neither the spirit of obedience that one finds in a despotic government nor the popular opinions that dominate in popular assemblies. It is not enfeebled by the absence of liberty, as in the politics of absolutist systems, nor is it the result of mere self-interest and seething passions that tend to prevail in regimes of excessive liberty, of which Greek democracy is the classic example. Rather, public opinion functions “as a mean between despotism and extreme liberty.”82 Not all of the major French writers on this question, however, linked the benign politics of public opinion to constitutional monarchies and denied its place in republics. Brissot de Warville claimed that public opinion is more important to republican governments than to monarchical ones. Because of increased publicity in the former, public opinion is of greater relevance to public officials in a republican form of government, and it is a more powerful force in its political life.83 Brissot himself was a proclaimed republican prior to the Revolution and long before most others of his aristocratic class thought or spoke of any such allegiance. He was a student of the American Revolution and an admirer of the energetic character he saw exhibited by the people of the United States. Not surprisingly, Jefferson became friends with him during his time in France. When Brissot ventured to America in 1788, Madison extended to him an invitation for dinner, which he accepted.84 Undoubtedly, their conversation that evening turned on matters of mutual interest and concern, among which was likely their shared view of the vital importance and dynamic quality of public opinion 82

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Baker, Inventing the French Revolution, 196–97. See Necker, A Treatise, I:lvii–ix; Peuchet, “Discours pr´eliminaire,” ix–x. According to Baker, “it may have been Montesquieu’s characterization of British politics that provided for these later 18th century French thinkers a suggestive context for their analysis of the operation of public opinion. In both despotic nations and free ones, Montesquieu argued, it is generally a matter of indifference whether individuals reason badly or well; in the former, the very act of a people reasoning shakes the foundations of the government, while in the latter, the exercise ensures popular liberty. Presumably then, in a nation that is neither enslaved nor excessively free, the difference between reasoning well or poorly must make a significant difference. Necker’s and Peuchet’s explications of the politics of public opinion suggest that the concept took shape in this ‘intermediate space’ suggested by Montesquieu between despotism and excessive liberty.” Cf. SOL 29:1, 602. “Discours sur l’humanit´e des juges dans l’administration de la justice criminelle,” in Biblioth`eque philosophique du l´egislateur (Berlin, 1782–1785), IV:83–124 at 86n–87n. Jefferson to Madison, May 1, 1788, PJM 11:32 and n. 1; Madison to Jefferson, August 10, 1788, PJM 11:227; “Memorandum of Books,” ca. August 1790, PJM 13:288.

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in republican governments and, perhaps, the lack of understanding of this among many of their French and American colleagues. Hamilton’s allegations of ties between American republican theory and French Enlightenment thought were not unfounded. Madison’s theory of public opinion was not sui generis. He was influenced by the theory of l’opinion publique that emerged on the Continent in the latter eighteenth century, and he may have directly borrowed phraseology from some of the French writers. For example, Saint Pierre claimed that a “new empire of reason” was being established, as more and more citizens were being enlightened by public opinion.85 Condorcet argued that over time, public opinion derives force from the effect of “fixed principles” and unites society under “an empire of reason.”86 Peuchet said that in the modern world Christian morality has united men as brothers; scientific discoveries have led to an increase in communication and the circulation of knowledge among men and have “extended the sovereign empire of reason.”87 The optimism of the French and their wont for the felicitous expression captured Madison’s ear and imagination. In words reminiscent of his French brethren, Madison proclaimed: “Let it be the patriotic study of all to erect over the whole [society], one paramount Empire of reason, benevolence and brotherly affection.”88 Madison shared with the French theorists the understanding that public opinion is the source of stability and authority in a nation. Like them, he learned from Montesquieu and others the importance of public morality in forming the conscience of a nation. Also like them, he associated the nation with the people or the public. Thus, he agreed with many of their criticisms of Montesquieu, especially the condemnation of hereditary and corporate orders in government. He too rejected the design of the British constitution, wherein two major parties are encouraged in their incessant contest for political power; he believed that an amelioration of factions and enlargement of partial interests cannot occur in a party system driven by two major competing economic and social interests. He agreed that there is a distinction between mere will and reason, between ephemeral popular passions and public opinion, and that public opinion should not be equated with the mere will of the majority. Public opinion is not the sum of ephemeral passions and narrow interests; it is not an aggregate of uninformed minds and wills. 85

86 87 88

See Thomas E. Kaiser, “The Abb´e de Saint-Pierre, Public Opinion, and the Reconstitution of the French Monarchy,” The Journal of Modern History 55:4 (1983), 618–643, particularly 635. Baker, Condorcet, 58. Peuchet, “Discours pr´eliminaire,” viii. “Consolidation,” PJM 14:139; emphasis added.

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Rather, Madison believed that public opinion results from a process that refines and transforms popular views, sentiments, and interests. His goal, like theirs, was to achieve political rule grounded in the “reason of the . . . public” or “reason of society.”89 Madison and the French theorists of public opinion shared Rousseau’s concern that seductive rhetoric threatens the proper formation of public opinion, but they rejected his view that the proper formation of the general will is harmed by communication with others.90 They did not think that public opinion draws its moral force from the judgments of the conscience made in splendid isolation.91 Instead, they believed that communication of the ideas of the literati to ordinary citizens throughout society can inform

89

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Federalist 49:285; “Universal Peace,” PJM 14:207; “Spirit of Governments,” PJM 14:234. See also “Public Opinion,” PJM 14:170, and “Vices of the Political System of the United States,” PJM 9:355–57, where public opinion is identified as the modified opinion of the sovereign majority. La raison publique is a phrase used by Louis-S´ebastien Mercier, as well as by others. See Rousseau, Social Contract, II:3, 30–31. Here Rousseau argued: “If the people came to a resolution when adequately informed and without any communication among the citizens, the general will would always result from the great number of slight differences, and the resolution would always be good.” When the pluses and minuses of particular wills based on private interests are added together, they cancel each other out, and the general will is “the sum of the differences.” Cf. Bernard Manin, “On Legitimacy and Political Deliberation,” Elly Stein and Jane Mansbridge, trans., Political Theory 15:3 (1987), 345–48. See also Sam Fayyaz’s thoughtful discussion of Rousseau’s concept of “speechless deliberation” in “Participation without Communication: Rousseau’s Conception of Deliberation and Habermas’ Challenge,” http://www.bsos.umd.edu/gvpt/Theory/Fayyaz.pdf. See, too, Marvin Meyers’s comparison of Madison’s concept of justice and the general good with Rousseau’s concept of the general will and “the sum of the differences.” Meyers concludes that Madison followed Rousseau’s idea of using private interests (i.e., Rousseau’s “the pluses and minuses”) to cancel each other out. Nonetheless, he argues, the resulting “sum of the differences” is not sufficient to explain Madison’s republican thought; Madison’s objective must be understood as “X plus the sum of the differences,” which includes such things as “the love of liberty and republican principles for their own sake” (Meyers, The Mind of the Founder: Sources of Political Thought of James Madison [Hanover, N.H.: Brandeis University Press, 1981], xxiv–xxxiii). Meyers is correct as far as he goes, but he does not take sufficiently into consideration how the importance of political communication and the genuinely deliberative aspect of Madison’s theory sets him at odds with Rousseau. Thus Meyers concedes that “the ‘X plus’ of my political formula remains a mystery” (xxxi). The possible exception to this is Condorcet, whose ideas on the issue are not perfectly consistent. See Baker, Condorcet, 229–44, 259. Cf. Anthony J. La Vopa, “The Birth of Public Opinion,” Wilson Quarterly 15 (1991), 46–55. La Vopa’s explication of “public opinion” is characterized by the ideal of isolating the individual conscience so that a consensus of disinterested judgments would be formed. La Vopa does not distinguish between this earlier understanding of public opinion and the later strand of French thought on the subject, which not only permits but advances the process of communication and deliberation.

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public opinion and elevate public morality, and they were committed to forming an enlightened and active citizenry. Recognition of the common ground between Madison and the French theorists of public opinion, particularly their mutual rejection of Montesquieu’s praise for the British constitution, is, I believe, remarkably helpful in understanding Madison’s thoughts on public opinion in the 1790s. It is, however, only a part of the story. Madison clearly worked out the theory of public opinion in his own unique terms, giving it a distinctive republican tone and direction. He disagreed with men such as Necker and Moreau who confined the role of the people to confidence and submission to the government. Although he concurred with the second group of French theorists that the formation of public opinion is a dynamic, interactive process involving the influence of the literati and political leaders on opinion and, in turn, the influence of settled public opinion on government, he vehemently disagreed with the majority of them that republican government is an unfit home for the proper formation of public opinion. In contrast to their monarchical attachments, Madison was a committed republican who envisioned popular government as a better environment in which to form and achieve the just authority of public opinion. Unlike those French authors whom he might have termed “theoretic politicians,” Madison entertained no Rousseauian illusion that civil egalitarianism would produce a commonality in opinions, passions, and interests. In contrast to Turgot, Condorcet, or the physiocrats, his commitment to the communication and circulation of ideas throughout society was not rooted in faith in e´ vidence or the abolition of all “circumstantial and artificial distinctions” among men.92 Like Mably, he believed that citizens who freely exercise their faculties will naturally form different opinions, be led by different passions, and assume diverse interests. These differences unavoidably lead to the formation of distinct groups or parties in political societies. As much as possible, Madison sought to prevent the existence of parties and to achieve a “general coalition of sentiments.”93 He recognized that this would not always be possible, however, and in these circumstances he advocated making the different parties and interests “checks and balances to each other.”94 Madison thus rejected the claim by Turgot, Condorcet, and the physiocrats that public opinion cannot form properly or operate effectively in a 92 93 94

“A Candid State of Parties,” PJM 14:371–72. “Parties,” PJM 14:197–98; “A Candid State of Parties,” PJM 14:371–72. “Parties,” PJM 14:198; see also “Notes on Government,” PJM 14:160.

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republic or in any society with internal divisions and factions.95 He believed that he had discovered how republican government could embody a politics of moderation without denying the nature of man. His discovery allowed him to accept, to the extent necessary, factionalism in political life and at the same time to envision how the considered opinion of the community might be fostered, formed, and consolidated. Steering clear of an arithmetic solution to the formation of public opinion, he advanced a prudential approach to political decision making. Accordingly, he acknowledged separation of powers and checks and balances as useful and important prudential devices to control tyranny, and he was critical of those who would dispense with them. In a letter to Madison in 1788, Philip Mazzei, echoing the complaints of his friend Condorcet, disparaged the American system of legislative checks and balances. “In your closet at Paris and with the evils resulting from too much Government all over Europe fully in your view,” Madison pointedly responded, “it is natural for you to run into criticisms dictated by an extreme on that side.”96 Madison accepted that selfish passions and private interests are often motivating forces within the human soul. As a result, he included within his political scheme a place for distributive and mechanical arrangements that would help to control their deleterious effects. He sought, whenever possible, to utilize these “inventions of prudence” to prevent the concentration of power within government and to thwart the power of majority faction. In his view, such counteracting devices do not impede or undermine the sovereign authority of public opinion. Rather, they contribute to the proper formation and legitimate rule of public opinion. Madison’s prudential approach to the politics of public opinion characterizes his recognition that enlightenment is not tantamount to philosophical wisdom, and that in a nation of nonphilosophers a wise government will not

95

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According to Keith Michael Baker, the concept of public opinion “implies none of the divisions, factions, passions, or political conflicts of a completely free government. . . . Public opinion, in other words, implies acceptance of an open, public politics. But, at the same time, it suggests a politics without passions, a politics without factions, a politics without conflicts, a politics without fear. One could even say that it represents a politics without politics” (Inventing the French Revolution, 196). Baker’s interpretation of the political (or apolitical) milieu is certainly not applicable to Madison’s conception of the politics of public opinion, in which the existence of conflicting interests and some degree of party spirit and factious activity are presumed in a free society. Peuchet’s rejection of the physiocratic presumption of the force of e´ vidence deserves greater attention vis-a-vis this issue; he may well have been ` less optimistic about overcoming the differences that spring from the nature of man than they. Madison to Philip Mazzei, October 8, 1788, PJM 11:278.

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think it superfluous to have the prejudices of the society on its side.97 His formulation in Federalist 49 accepts Montesquieu’s, Hume’s, and Mably’s insight into the difficulty of overcoming the force of passion and interest in the human soul. Nonetheless, Madison sought to meet this challenge and to achieve, to the extent possible, the “reason of the public” anchored in principles of popular sovereignty and natural right. He sought, in a word, to create the nation upon which the French Enlightenment thinkers predicated their theory of public opinion, but which in his judgment they undercut by reaching beyond the realities of human nature. Madison’s judicious treatment of politics has much in common with Peuchet’s appeal to “healthy logic” in a world that does not admit of human perfectibility; it is an outright rejection of Condorcet’s and Mazzei’s demand for theoretical purity in public reason. “The Americans are an enlightened & a liberal people, compared with other nations,” Madison lectured Mazzei, “but they are not all philosophers.”98 While Madison’s conception of the rule of public reason does not require philosophic wisdom in the populace, it does call for a participatory, enlightened, and responsible citizenry. To accomplish this, Madison argued in favor of a large territory composed of a multiplicity of interests and sects, which would tend to obstruct the force of faction and advance the circumstances that can help foster a common opinion grounded in the rights of nature and directed to the general good. On the importance of territorial size to the theory of public opinion, Madison may have informed and influenced his brethren across the seas.99 As we shall see, a large territory composed of a multiplicity of interests and sects contributes to the theory of the politics of public opinion by making possible the achievement of an “equilibrium in the interests & passions of the Society.”100 It does so without the need to depend on the British model of institutionalized class conflict or on the French faith in the power of e´ vidence. 97 98 99

100

Federalist 49:283. Madison to Philip Mazzei, October 8, 1788, PJM 11:278. For example, in his “Discours pr´eliminaire” Peuchet briefly discusses the effects of the size of a nation on the formation of public morality, arguing that in a larger nation public morality is less likely to be grounded in an artificial or factious opinion and more likely to accord with the principles of justice (lxxv). The date of publication of Peuchet’s work is 1789, leaving open the possibility that he was indebted to Madison’s Federalist essays for this idea. In his 1791 essay “Public Opinion,” Madison may, in turn, have been influenced by Peuchet’s identification of factious opinion as an artificial or counterfeited opinion. See PJM 14:170. “Notes on Government,” PJM 14:158.

4 The Commerce of Ideas

In the first term of the Washington administration James Madison had very little time he could call his own. Since he was approaching forty and still a bachelor, this might have been a time devoted to personal considerations and establishing a basis for future domestic happiness. Instead, during this stage of life Madison dedicated himself fully to public affairs and to shaping the future of the new nation. In speeches on the floor of Congress, in public writings, and in private studies, he worked to change the direction in which the Federalists were leading the country. His personal sacrifice was consciously made. He believed that the success of the Federalist program would mean the subversion of republican government in America. Madison’s goal was not merely to resist Federalist views and policy. He also sought to promote a positive alternative to the opposition’s philosophy of government, one that, in his view, accorded with the true principles of republicanism. In 1791 he took the lead in promoting the republican cause and providing a philosophic defense of republican principles and policies.1 Rather than encouraging schemes that mimicked the antirepublican British system of balanced government, increased the power of the national executive at the expense of the local organs of self-government, and diminished the role of the citizenry in shaping public decisions, Madison sought to meet 1

See Madison’s “Party Press Essays,” identified in PJM as “Essays for the National Gazette”: “Population and Emigration,” 14:117–22; “Consolidation,” 14:137–39; “Dependent Territories,” 17:559–60; “Money,” 1:302–10 (in two parts); “Public Opinion,” 14:170; “Government,” 14:178–79; “Charters,” 14:191–92; “Parties,” 14:197–98; “British Government,” 14:201–2; “Universal Peace,” 14:206–9; “Government of the United States,” 14:217–19; “Spirit of Governments,” 14:233–34; “Republican Distribution of Citizens,” 14:244–46; “Fashion,” 14:257–59; “Property,” 14:266–68; “The Union: Who Are Its Real Friends?” 14:274–75; “A Candid State of Parties,” 14:370–72; “Who Are the Best Keepers of the People’s Liberties?” 14:426–27.

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the age-old problem of placing power and right on the same side and to vindicate the idea of republican self-rule. This challenge was one he wrestled with in the 1780s and continued to think through in the 1790s. He was convinced that the solution depended on modifying the sovereignty in popular government.2 The view, so prominent among scholars, that Madison dispensed with the need for civic participation and thwarted communicative activity among the citizenry, thereby undermining popular sovereignty and the democratic principles of the American Revolution, stems from an overconcentration on and an acontextual reading of the 10th Federalist.3 This interpretation also neglects the fact that Federalist 10 was not Publius’s – or Madison’s – last word on communicative activity among the citizenry. In his very next contribution to The Federalist, in fact, Madison reversed the tack he took in the 10th essay. In Federalist 14 he explicitly discussed how to encourage the communication of ideas throughout the large republic. Madison was thus both for and against the activity of political communication, or at least for promoting some kinds of communication and impeding others. Madison’s theory of republicanism involved six major components, each of which was designed to minimize the factious effects of communicative activity and draw forth its didactic potential. These are: the extent of territory, representation, separation of powers and checks and balances, federalism, the influence of the literati on public opinion, and the influence of public opinion on government. Employing an approach to the problem of political communication that combined traditional republican solutions with a new framework of analysis regarding territorial extent and separation of powers, Madison believed he had discovered the way to remedy the vices of popular government and at the same time preserve its spirit and form. This was for him the “great desideratum” that alone could vindicate popular government and make it worthy of adoption by mankind. Madison’s remedy depended, as Robert Frost so well understood, on the commerce of ideas and cultivation of the American mind and character. Madison identified human nature, with its composite of opinion, passion, and interest, as the latent source of factional conflict. When men freely 2 3

See “Vices of the Political System of the United States,” PJM 9:357; Madison to Washington, April 16, 1787, PJM 9:384; Madison to Jefferson, October 24, 1787, PJM 10:214. See, for example, Charles R. Kesler, ed., Saving the Revolution: The Federalist Papers and the American Founding (New York: Free Press, 1987); Lance Banning, The Sacred Fire of Liberty: James Madison & the Founding of the Federal Republic (Ithaca, N.Y.: Cornell University Press, 1995), 205–10; James H. Read, Power versus Liberty: Madison, Hamilton, Wilson, and Jefferson (Charlottesville: University Press of Virginia, 2000), 181, n. 62.

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and coolly exercise their reason on various questions, they naturally form different opinions on some of them. When they are actuated by a common passion, “their opinions, if they are to be so called, will be the same.”4 The problem with opinion, then, is of a specific nature: it is not opinion resulting from the independent operation of the opining faculty that constitutes the root danger. It is opinion actuated and united by passion or interest that gives rise to the problem of faction. When either the impulse that actuates opinion or the opportunity to unite on the basis of such an opinion is lacking, the problem vanishes. Reasoning itself does not create factions, though it may well lead to differences of opinion. Without an accompanying passion or interest to move men to act upon their ideas, such differences are merely philosophic and apolitical. Nonetheless, if human nature is not to be idealized, one must recognize that the impulses toward faction cannot be eradicated; they are as much a part of human nature as the capacity to reason.5 Moreover, if liberty is to be respected, people must be permitted to form and communicate opinions, even if such views are antithetical to the rights of others or to the common good. When opinion is easily transmitted and spread, the activity of political communication tends to exacerbate the baneful effects of factious views. This is what generally happens in pure democracies or small republics. Given the ease of communication in a small area with a restricted populace and a limited number of interests and parties, there are few if any obstacles in the path of a factious majority. If a majority of citizens happens to hold a particular interest or passion, given the lack of geographical, occupational, religious, 4 5

Federalist 50:287. Martin Diamond claims that, like Aristotle, Madison recognized the “autonomous operation of the opining faculty . . . [;] but as to what should be done with that capacity, the difference between them . . . is the difference between modernity and antiquity” (“Ethics and Politics: The American Way,” in Robert H. Horwitz, ed., The Moral Foundations of the American Republic, 3rd ed. [Charlottesville: University Press of Virginia, 1986], 87). I believe that Diamond is correct in recognizing opinion as an independent variable in Madison’s analysis, but that he erroneously concludes that, like the variables of passion and interest, opinion is an “independent generating source . . . of factional behavior” (86). Madison is patently clear on the actuating cause of faction in Federalist 10: all factions are “actuated by some common impulse of passion, or of interest” (46–47). Passions and interests can attach themselves to opinions (as, for example, “a zeal for different opinions”) and, as such, constitute factional behavior, but in itself opinion is not a generating source of faction. In eliding over Madison’s meticulous definition and discussion of faction, Diamond can then argue that, like the moderns, Madison believed it is “too risky to rely on refining and improving a society’s opinions.” Instead, Diamond claims, Madison sought to devitalize political opining about the advantageous and just. In contrast, Aristotle and the classics viewed the refinement and improvement of the citizens’ opinions about the advantageous and just as “the political task” (88–89).

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and other forms of differentiation that would likely characterize the polity, it is relatively easy for the people to discover others who share their view and act together to obtain a common object. This is the case of impulse coinciding with opportunity.6 The impulse is passion or interest; opportunity is provided by the ease of communication and facile recognition of a shared purpose. When impulse and opportunity intersect, it is futile to rely on other, better motives such as religion, morality, or respect for character.7 In proportion to the number of people who are known to share the same viewpoint, the greater the confidence a member of the majority has in his own opinion, further increasing the danger posed by an interested majority. “The reason of man, like man himself,” Madison wrote in Federalist 49, “is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated.”8 Madison’s analysis of majoritarian politics is grounded in a psychological analysis of the power of opinion, or what is today called “group dynamics” or “groupthink.” The larger the group that shares the same opinion, the more it inspires confidence in others, stymies independent thought and private judgment, discourages checks upon the majority, and removes obstacles in the path toward tyranny. This is the problem that so disturbed Tocqueville about democracy.9 Madison saw it forty years earlier. In a civilized society composed of an extensive territory and a large population, the multiplicity of interests and parties that naturally arises in it makes it less likely that a majority will hold the same interest or passion at the same time. In the case where it does, however, Madison claimed that the size of the territory and the number of inhabitants will impede political 6 7 8

9

See Federalist 10:49. For a contrasting view, see Kesler, “Federalist 10 and American Republicanism,” Saving the Revolution, 25–29. Federalist 10:49. See Madison to Jefferson, October 24, 1787, PJM 10:213. Federalist 49:283. Cf. Morton White, Philosophy, The Federalist, and the Constitution (Oxford: Oxford University Press, 1987), 99, n. 40:248–49. White seems to imply that for Madison (as for Hume) “membership in a group” tends to lead to “objectionable behavior,” whether the source be passion, interest, or the attempt “to use reason in arriving at opinions” (248). I would agree that Madison understood the dangers associated with group psychology. However, as I have argued, he did not claim that the attempt to reason and form opinions was an independent generating source of faction or an “objectionable behavior.” Cf. David E. Epstein, The Political Theory of The Federalist (Chicago: University of Chicago Press, 1984), 68–81; Kesler, Saving the Revolution, 25–29. White’s conclusion that Publius regarded “true interests and rational motives as weaker than selfish or hostile passions and interests” does not adequately account for his discussion of “public reason” in Federalist 49 or of the power of a societal opinion collected and erected on the “principles of justice and the general good” in Federalist 51. Alexis de Tocqueville, Democracy in America, J. P. Mayer, ed. (New York: Harper Perennial, 1969), 246–61.

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communication. In essence, Madison’s theory of the extended republic is a political prescription intended to curtail majority tyranny by a kind of quarantine of factious opinions. If a majority of citizens were to share a common passion or interest at any given time, the challenge of communicating across the extensive territory would make it difficult for them to discover their common motive. The size of the nation has the effect of isolating factions and rendering them unable to spread their communicable disease. In general, effective communication is harder in a large republic than in a small one (or in a pure democracy), whether the opinions communicated are factious or not. Moreover, the size of the territory presents a tougher challenge to those who are knowingly seeking an unjust or dishonorable objective. “Where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.”10 In other words, there is no honor among thieves – and they know it. Madison’s insight into the psychology of suspicion is particularly interesting when juxtaposed to his view that men acquire confidence and firmness in their own opinions in proportion to the number of others who are known to concur. But the open communication of ideas depends on the belief that one’s motives are pure, or at least not dishonorable. Conversely, communication is guarded when one is knowingly pursuing ends that are shameful or generally thought to be shameful. When a man’s own motives are surreptitious, he tends to be distrustful of the motives of others. In a sizable nation in which a great number of people are required to achieve a majority, it is less likely that a majority will communicate and unite for ignominious purposes because the consciousness of dishonorable purposes breeds moral and/or practical hesitancy, and the politics of communication in a large nation amplifies the effects of that hesitancy. While Madison’s proffered solution of the extended territory diminishes the odds that a majority faction will form or unite, it does not forestall the possibility. If Americans lack a consciousness about what constitutes unjust or dishonorable purposes, that is, if there is a lack of enlightened understanding about the principles of justice and honor, then all bets are off.11 10 11

Federalist 10:51. Cf. White, Philosophy, The Federalist, and the Constitution, 143–44. This is the problem Madison is virtually silent about in the pages of The Federalist, perhaps because it was not the appropriate venue for such a discussion or perhaps because he did not believe that the generation of Americans who fought in the Revolution were in particular need of a civics lesson on the principles of justice or the meaning of honor (though he does proffer a lesson directed at southerners on the unnatural institution of slavery in the 54th essay). Certainly, he continues throughout his life to be concerned about the effect

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Under these circumstances, a majority faction would find it less difficult to communicate a common purpose, overriding the obstacle of shame and activating the contagious effect of opinion. Madison discusses a possible counter to this problem of a united, unjust majority in Federalist 63, arguing that it is the duty of the Senate in particular to check the overbearing majority’s “misguided career.” But this is at best a temporary solution, which can only be effective in the long term if “reason, justice, and truth . . . regain their authority over the public mind.”12 The principle of representation also helps deny any one group of people a clear, easy path to rule. In a nation with a bicameral congress composed of numerous large legislative districts, communicative activity is partitioned and layered, thereby making it more difficult for a majority faction to secure the requisite votes in the legislature. Moreover, Madison believed that the clash of arguments in public bodies can contribute substantially to the deliberative process and the refinement of the public voice. Nonetheless, he also fully recognized the problem that worried Hamilton: whatever the size of the nation, assemblies are to some degree susceptible to the influence of demagoguery and the heat of capital politics.13 “The advantage enjoyed by the public bodies in the light struck out by the collision of arguments,” Madison said, is but too often overbalanced by the heat of the proceeding from the same source. Many other sources of involuntary error might be added. It is no reflection on Congs. to admit for one, the united voice of the place, where they may happen to deliberate. Nothing is more contagious than opinion, especially on questions, which being susceptible of very different glosses, beget in the mind a distrust of itself. It is extremely difficult also to avoid confounding the local with the public opinion, and to withhold the respect due to the latter, from the fallacious specimens exhibited by the former.14

12 13

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of the institution of slavery on American character – on what it does to slaves as well as to freemen. He also frets about the future of America when the majority of citizens become landless, turning from agricultural pursuits to manufacturing. See Madison’s “Note on his August 7, 1787 Speech in the Federal Convention,” ca. 1821, in Marvin Meyers, The Mind of the Founder: Sources of Political Thought of James Madison (Hanover, N.H.: Brandeis University Press, 1981), 395–400; Madison, “Speech in the Virginia Constitutional Convention,” December 2, 1829, in Meyers, Mind of the Founder, 402–8; Madison to William T. Barry, August 4, 1822, in Meyers, Mind of the Founder, 343–47. Federalist 63:352. “Vices of the Political System of the United States,” PJM 9:354; Federalist 58:328–29; “Notes on Government,” PJM 14:165–66; Madison to Benjamin Rush, March 7, 1790, PJM 13:93–94. Madison to Benjamin Rush, March 7, 1790, PJM 13:93–94.

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Madison’s political realism is reflected in his assessment of what today we call “Beltway politics.” Too often the advantages of representation are outweighed by the easy contagion of opinion in a body that meets under one roof in a politically charged city. The heat of capital politics skews independent judgment. This danger is especially acute in members whose mental abilities and/or confidence in themselves are of a weaker nature. The tendency for human beings to distrust their own judgment when they are surrounded by a relatively unified contrary opinion, or to defer making an independent judgment when a common opinion has already formed, results from the infectious power of opinion. In numerous assemblies the danger is particularly great, Madison argued, since they are marked by the confusion and immoderation that accompany the gathering of a multitude. Under such conditions, it is impossible “to secure the benefits of free consultation and discussion . . . [for] in all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason.”15 To counteract the dangers inherent in a popular assembly, as well as to guard against governmental tyranny over the people, Madison endorsed the doctrine of separation of powers advocated by Montesquieu, including the limited blending of powers to provide for institutional checks and balances. In Federalist 51, however, he reminded his readers that these devices are “auxiliary precautions” and that the “primary control” on the government is “a dependence on the people.”16 Madison would later restate this argument in the Party Press Essay “British Government,” arguing that separation of powers and checks and balances are important prudential devices to control the will of the government and protect liberty, but they are secondary to a primary dependence on public opinion.17 In the conclusion of the 51st Federalist, Madison restated his case for a dependence on the people in even broader terms than he initially had in the essay: the will of the government must be dependent on the will of the society. Accordingly, the public is not only the primary guardian whose watchfulness keeps government within its prescribed boundaries, but also the active agency upon which the movement of government depends. Madison’s practical efforts to advance the cause of popular government were based on two equally important theoretical maxims of republicanism: the majority must ultimately rule, and it must have right on its side. In republican government, Madison wrote in a preparatory study for the Constitutional 15 16 17

Federalist 55:310. Federalist 51:290. “British Government,” PJM 14:201; cf. “Government of the United States,” PJM 14:218.

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Convention, “the majority however composed, ultimately give the law.”18 The problem, of course, is that the majority may have force but not justice on its side. Madison insisted on both. Majority rule is a necessary but not sufficient condition of free government. A government independent of the will of the society is unrepublican and illegitimate, but so too is a majority that has power but not right on its side.19 Fully aware of the long historical list of injustices associated with popular government, Madison nonetheless was adamant that the ultimate and only legitimate solution to the problem of governmental and majority tyranny is the cultivation of the just sense of the community. When the assertions in Federalist 51 are attended to in the context of the two preceding Federalist Papers, a nascent idea beats in the ear of Publius’s audience. It is reason, not passion, that ought to prevail over legislative decisions. Specifically, it is the reason of the public that ought to control the government.20 In the Party Press Essay “Spirit of Governments,” Madison pounded the republican drum to a rolling cadence. Contrasted with the imposter republican government advanced by some, which is actuated by private interest and avidity and pretends to operate by the liberty of the many, but in fact is supported by the domination of the few, Madison set forth the true republican model: A government, deriving its energy from the will of the society, and operating by the reason of its measures, on the understanding and interest of the society.

This “is the government for which philosophy has been searching, and humanity sighing, from the most remote ages,” we recall. This is the kind of “republican government” America invented and that is its “unrivalled happiness to possess.”21 In the same vein of thought that runs through Federalist 49, 50, and 51, “Spirit of Governments” reinforces and intensifies the claims of Publius. The spirit of republicanism, Madison emphatically pronounced, requires that the will of the government be dependent on, “or rather the same with,” the will of the society, and that the will of the society be subject to “the reason of the society.”22 The process of subjecting the public will to the precepts of reason directs popular government toward the ends of justice and the general good. In turn, the resulting laws inform 18 19 20 21 22

Madison to Edmund Randolph, January 10, 1788, PJM 10:355. Federalist 51:292–93; cf. “Vices of the Political System of the United States,” PJM 9:350, 355. Federalist 50:287; Federalist 49:285. “Spirit of Governments,” PJM 14:234. “Universal Peace,” PJM 14:207.

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the citizens’ understanding and influence their perception of the public interest. This has been the ambitious quest of philosophy and the ardent longing of humanity from time immemorial, Madison declared. America has answered humanity’s call, and upon its soil the greatest political aspirations are to be realized. “The great desideratum” in government, Madison wrote in preparation for the work at Philadelphia in 1787, is the establishment of a “disinterested & dispassionate umpire” that renders impartial judgments between the different passions and interests of the society.23 The achievement of reasonableness and impartiality in republican government, he believed, hinges on a “modification of the Sovereignty.” Prior to the Constitutional Convention, Madison conceived of this just umpire determining national policy as well as officiating over state legislation and exercising the power of veto in the case of unconstitutional or unjust local legislation. After the Convention’s rejection of his proposed constitutional negative on state laws, Madison continued to seek the establishment of an impartial referee that would sit in judgment on national concerns.24 The great problem in popular government, he argued in the 10th Federalist, is that the parties to the case must themselves also be the judges.25 Scholars have often interpreted Madison’s notion of a “disinterested & dispassionate umpire” to mean the national legislature of the United States, the members of which hail from large legislative districts and are more likely to be fit choices than those who come from the assembly districts of Rhode Island or even Virginia or Massachusetts.26 Of course Madison noted the 23 24

25 26

Madison to Washington, April 16, 1787, PJM 9:384; cf. “Vices of the Political System of the United States,” 9:357; Madison to Jefferson, October 24, 1787, PJM 10:214. Madison to Jefferson, October 24, 1787, PJM 10:214. Cf. “Notes on Government,” PJM 14:158. A fuller discussion of Madison’s negative on state laws is included in my forthcoming work, Madison’s Voyage to the World of the Classics. Federalist 10:48. For example, Gordon Wood claims that Madison meant by this the national legislature, elected from large districts and composed of an aristocratic set of statesmen whose elite and independent judgment would answer the ends sought (“Interests and Disinterestedness in the Making of the Constitution,” in Richard Beeman, Stephen Botein, and Edward C. Carter, eds., Beyond Confederation: Origins of the Constitution and American National Identity [Chapel Hill: University of North Carolina Press, 1987], 92; The Creation of the American Republic, 1776–1787 [Chapel Hill: University of North Carolina Press, 1969], 562). Alan Gibson claims that the Madisonian remedy of an impartial umpire consists in the formation of just majorities in Congress, made possible by (1) the inclusion of a multiplicity of interests in a large territory with a diverse population, which obstructs the communication of factious views and leaves representatives fairly independent in the exercise of their trust, and (2) large electoral districts from which impartial representatives are more likely to be chosen. For Madison, public opinion “was simply a public consciousness formed from the

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benefit of representatives from large electoral districts; he did not, however, look to representation as the panacea for popular injustice or conceive of minority government as the cure for majority faction.27 Indeed, time and again he made clear the fundamental principle that informed his understanding of republican government: “[T]he majority . . . alone have the right of decision.”28 In his concluding discussion of the cure for the diseases most

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aggregate of individual sentiments.” Moreover, Gibson argues – and in this he is in agreement with Wood – that Madison’s goal was not to reform the citizens of an unjust majority or to educate and form civic character (Gibson, “Ancients, Moderns, and Americans: The Republicanism–Liberalism Debate Revisited,” History of Political Thought, 21:2 [2002], 287, 282; “Impartial Representation and the Extended Republic: Towards a Comprehensive and Balanced Reading of the Tenth Federalist Paper,” History of Political Thought 12:2 [1991], 285, 300–1; Wood, “Interests and Disinterestedness,” 81). While I do not disagree that Madison hoped that the national representatives would be enlightened and virtuous, I reject the view that a reliance on the “better sorts” of men constituted Madison’s “great desideratum” for the achievement of impartial justice in republican government. Lance Banning’s analysis of the issue, I think, is much closer to the mark. According to Banning, Madison was “adamant that once the proper checks had been imposed and passing passions had been cooled, the will of the majority must rule.” Banning does not, however, follow Madison’s thought to the next step, which involves the politics of deliberative communication at both the governmental level and throughout the society, thereby refining and, to the extent possible, uniting and settling public opinion, resulting in a rightful authority that government must obey. Instead, he argues that in order for Madison’s republican theory to work, representatives in Congress must reflect the diverse views of their constituents (Sacred Fire of Liberty, 372, 209). As a result, Banning opens himself up to the kind of criticism that Gibson makes of his argument. Gibson claims that by failing to account for the achievement of impartiality in public decision making, Banning ultimately succumbs to the pluralist model he tries to avoid (“Impartial Representation and the Extended Republic,” 267–68). Conversely, Banning argues that Gibson does not take account of the importance of the practicable extent of territory and the role it plays in maintaining the rulers’ responsibility to the people in Madison’s theory. “Madison never argued that the national legislators would be capable of acting as impartial referees over clashing interests at the national level,” Banning declares (Sacred Fire of Liberty, 212, n. 61; 470, n. 54). I would add that Gibson’s combination model does not solve the difficulty of preventing the communication and spread of factious views among the national representatives, who meet in person in the capital city and have open, easy lines of communication and ample opportunity for the formation of factions, which could well prove an overmatch for contrived institutional rivalries. Cf. Woody Holton, “‘Divide et Impera’: Federalist 10 in a Wider Sphere,” William and Mary Quarterly 62:2 (2005), 339–82.Contrary to the generally agreed-upon importance of large legislative districts to Madison’s political theory, Holton argues that Madison was a “relative moderate” on the question of the size of legislative districts. Alan Gibson disagrees; he argues that Madison’s (and the original Federalists’) schema of government “risked tyranny created by independent acts of public officials in order to control tyranny created by the influence of popular majorities” (Gibson, Understanding the Founding: The Crucial Question [Lawrence: University Press of Kansas, 2007], 228). Madison to Washington, April 16, 1787, PJM 9:384; cf. “Vices of the Political System of the United States,” PJM 9:357.

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incident to popular government, he declared that “a coalition of a majority of the whole society would seldom take place on any other principles than those of justice and the general good.” Note that Madison does not say that a coalition of a majority of the legislature would rarely take place on any other basis than justice and the general good. His remedy of a “disinterested & dispassionate umpire” for the problem of popular injustice is not contingent on gathering a few good men at the seat of government. It is, rather, a more complex and genuinely republican solution to the chief problem that has plagued popular governments throughout history. As Madison made clear in “Vices of the Political Systems of the United States,” The Federalist, the “Notes on Government,” and the Party Press Essays, in devising a solution to the leading problem of majority faction in popular government, the institution of the principle of representation is auxiliary to the establishment of an extensive territory. But the size of the nation and the multiplicity of economic interests and religious sects that it encompasses are not the culmination of Madison’s republican theory either. When the components of territorial size and representation are viewed as part of a more comprehensive Madisonian design informed by an overarching theory of public opinion, they fit together to form a coherent vision of republican self-government. Madison grounded his theory of public opinion in a new conception of the politics of communication. He envisioned a commerce of ideas in the extended republic that would not only refine the will of the majority in the legislature but, to the extent possible, would also modify and enlarge the will and views of the majority (or society) itself. His aim was to honor the republican principle that identifies power with right; even more importantly, his goal was to place popular power on the side of right, thereby forming a sovereign public genuinely worthy of republican esteem. Although Madison sought to check the communication of factious views via the enlargement of the orbit, representation, separation of powers, and checks and balances, it was not his design to stymie the communication of all opinions throughout the society. At each of three levels of political interaction – that is, within the government, between the representatives and their constituents, and among the citizenry themselves – political communication is a double-edged sword. It is both part of the political problem Madison identifies and an integral part of the republican solution he presents. Communication is the means by which minority and majority factions form and unite, but it is also the vehicle necessary to collect, form, and refine the will of the society. Communication makes possible a public check on governmental tyranny and the formation of a positive agency that directs governmental measures.

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“Public Opinion,” Madison declared, “sets bounds to every government, and is the real sovereign in every free one.”29 In all governments, public opinion operates as a force that limits the power of government. In all free governments public opinion is the ground of all legitimate authority; it functions as both a defensive power that controls government and an active agency that influences the will of the government. As the embodiment of the highest expression of public opinion, the Constitution provides a standard to which officials and citizens can appeal to limit the power of government, as well as a source of instruction concerning individual rights and responsibilities. The latter is what Madison meant by the beneficial effects of a bill of rights over time, as it is sanctified and incorporated into public opinion.30 In addition to its manifestation in the Constitution, public opinion has three other modes of expression: as the censor of governmental acts, as the constitutional majority on which positive acts of government depend, and as the general spirit that permeates the nation (and perhaps beyond). The censorship of governmental acts by public opinion is a defensive measure that finds expression via state political organs and by educated men through the print media.31 The appeal may be to the people of the states or even directly to the people as a collectivity. However, public opinion in these cases does not carry the force of law, though it may well “lead to a change in the legislative expression” of the public will or even to a change in judicial opinion.32 The affirmative force of public opinion manifests itself through frequent elections and responsible representation, by which “the will of the largest political body may be concentered and its force directed to any object which the public good requires.”33 In the expression of public opinion by the constitutional majority the people’s agency is not direct, but it is nonetheless their will, and not a government insulated from the actual views of the people, that guides public measures. Finally, public opinion in its broadest sense consists of the settled views and general convictions of the people. Its potential power is prodigious: it can preserve or alter public morality; it can support or scorn the laws. The formation of constitutional majorities occurs within a sphere permeated by an overarching and ubiquitous public opinion. When settled, the opinion of the constitutional majority 29 30 31 32 33

“Public Opinion,” PJM 14:170; cf. “Notes on Government,” PJM 14:161–62. “Notes on Government,” PJM 14:162–63; “Public Opinion,” PJM 14:170; Meyers, Mind of the Founder, 169. James Madison to Thomas Jefferson, October 24, 1787, PJM 10:214; Federalist 44 and 46; Meyers, Mind of the Founder, 262–64. Meyers, Mind of the Founder, 270. Federalist 14:68–69.

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is absorbed by this more general and pervasive public opinion, contributing to the ongoing modification and enlargement of the sense of the community in a republic.34 Madison discovered a republican remedy to the age-old problem of majority faction – that is, a cure that preserves and vindicates the ultimate right of the majority to rule – via an analysis of the politics of communication in an extensive republic. On the one hand, a nation should be large enough to include a multiplicity of interests and sects, thereby neutralizing the effects of interest or passion by effectually denying any one interest or sect majority status. The extensive size of the territory makes it less likely that a majority activated by a common passion or interest will be able to communicate effectively and unite for unjust ends. On the other hand, the territory must not be so large that it precludes the communication of ideas within the society. Madison repeatedly insisted on limiting the size of the territory to a practicable sphere – in both the 1780s and the 1790s – because it was a critical component in creating a political environment in which the citizens are able to communicate their honorably motivated sentiments and views and form a public opinion grounded in the principles of justice and the general good. The practicable limit on territorial size thus contributes to the positive political role of a national majority united by a common opinion. The communication of opinions in a large but practicable sphere results in a modification of the views of a latent majority. The modified opinion of the majority is achieved through established constitutional processes in a practicably large, representative, federal government, which provides the arena in which to collect, temper, and refine the public views. Accordingly, Madison did not conceive of the multiplicity of interests and parties in a large republic as an end in itself.35 The purpose of the 34 35

“Vices of the Political System of the United States,” PJM 9:355. In Republics Ancient and Modern, 3 vols. (Chapel Hill: University of North Carolina Press, 1994), Paul Rahe claims that Madison’s chief purpose in arguing for the extension of the territory is to achieve a “multiplication of factions” within the society (3:47–48, 55). ´ His scheme “deliberately subverted homonoia by promoting in the citizenry a diversity in interests, passions, and even opinions” that was limited only by the “veneration” of citizens for their Constitution (63). Nevertheless, Rahe claims that Madison “recognized all along” that the “consolidation of public sentiment was, in fact, the glue binding the Union together” and that “he never for a moment doubted the need for a measure of unanimity regarding fundamental political principles.” The problem, however, is that his arguments in The Federalist were “seriously inadequate” and even “flawed” – which Madison came to see in 1791 (182 and n. 158). I appreciate Rahe’s acknowledgment that Madison recognized “all along” the need to form a common opinion among the citizenry, particularly on fundamental principles. However, to my knowledge, Madison never promoted a multiplicity of factions, nor did he encourage a multiplicity of opinions per se (Martin Diamond makes these errors

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theory of the 10th Federalist is to place obstacles in the path of those groups that are actuated by partial interests and harmful passions, and that themselves impede the discovery of the “comprehensive interests” of the society.36 Having demonstrated the negative effects of the extensive territory on communication in Federalist 10, Madison can then show in the 14th Federalist how representation in a large territory encourages communicative activity in the nation. In Federalist 14 Publius shifts his focus from the divisive effects of a large territory to the things that unite Americans across the broad swath of republican land. Americans have mingled and shed their blood in defense of freedom and the sacred rights of humanity, he reminded his citizen-readers. They are “knit together . . . by so many cords of affection,” forming one family that has built and inhabits a great and respectable empire. They have a shared past and triumph in governing themselves: they are “mutual guardians of their mutual happiness.” In a word, they have consecrated their union. Madison returned to the subject of forming a common opinion in a large but practicable territory three years later in the Party Press Essay “Public Opinion.” In this essay he explained how the proper size and structure of the territory affect the formation of public opinion and contribute to achieving its appropriate degree of influence on government. Contrary to the predominant interpretation of his theory, Madison does not employ the factors of territorial size and governmental structure for the sole purpose of preventing the formation of a factious majority. He also utilizes them to establish the conditions in which a certain kind of majority can feasibly form.37 When public opinion is fixed, Madison taught, it must be obeyed

36

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as well; see “Ethics and Politics,” 87–90). Moreover, both as Publius and in his letter to Jefferson of October 24, 1787, Madison acknowledged that his discussion in The Federalist was incomplete and that a more thorough discussion of republicanism was needed; he did not, however, say or imply (then or later) that his argument was flawed (see Federalist 51: 288–89; PJM 10:205–20; see also “Notes on Government,” PJM 14:159, and “Parties,” PJM 14:198). Federalist 62:347. In the 51st Federalist Madison asserts that if a majority is united by a common interest, the rights of the minority will be insecure. Nonetheless, in the 14th, 46th, 52nd, and 58th Federalists he argues for the discovery of common interest in the society. See Federalist 14:67, 46:265, 52:295, and 58:325. See the excellent article by Tiffany Jones Miller, “James Madison’s Republic of ‘Mean Extent’ Theory: Avoiding the Scylla and Charybdis of Republican Government,” Polity 39:4 (October 2007), 545–69. Contrary to Miller’s suggestion (549), however, she and I actually agree that Madison’s aim in promoting the practicable sphere was to achieve the dual objective of thwarting the formation of majority factions and achieving due governmental dependence on the people, or public opinion. See, for example, my essay, “The Commerce of Ideas and Cultivation of Character in Madison’s Republic,” in Bradley C. Watson, ed., Civic

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by the government. When not settled, it may be influenced by those in government. The extensive size of the territory and the large population make it difficult for a faction to “counterfeit” the opinion of the public; the limitation imposed by the practicable sphere enables the “real” opinion of the public to form and carry effect.38 Madison argued in both The Federalist and the Party Press Essays that the practicable boundaries of a republic can be stretched without sacrificing the formation of the public voice if conditions that ease communication among the citizens are present. These conditions include good transportation routes, improvements in interior navigation, the free circulation of newspapers, and representatives traveling to and from the capital city, all of which act as equivalents to a contraction of the territorial size.39 Thus, unlike Rousseau, who opposed the principle of representation and believed that the communication of views is detrimental to achieving the general will, Madison envisioned utilizing a scheme of representation to facilitate the general communication of sentiments and views. Although he was acutely aware of the aggravating effects of seductive rhetoric within legislative chambers, he also claimed that there is an “advantage enjoyed by public bodies struck out by the collision of arguments.” We know from the 10th Federalist that Madison considered the principle of representation part of the republican solution to the problem of majority faction. We also know that politicians cannot be depended on to exercise reason and restraint. In order to derive the benefit of the “full effect” of representation, Madison tells us in Federalist 63, it must be combined with an extensive territory.40 The will of the society is manifested in government through the constitutionally prescribed processes, which give to the legislature preeminence in public policymaking. A frequently elected legislature is more closely aligned with the will of the people than are the other branches of government. In a large republic, it is less likely to be the pawn of a majority faction than in a small one. Those who argue that the ancients were unaware of or did not incorporate the idea of representation in classical polities are mistaken, according

38 39 40

Education and Culture (Wilmington, Del.: ISI Books, 2006), 49–72, in which I argue that “the purpose of limiting the territory to a practicable sphere is to keep the representatives dependent on the will of the society”; also see Sheehan, “Public Opinion and the Formation of Civic Character in Madison’s Republican Theory,” The Review of Politics, 67:1 (Winter 2005), 43–44. “Public Opinion,” PJM 14:170. Federalist 14:70–71; “Public Opinion,” PJM 14:170; “Notes on Government,” PJM 14:161. Federalist 63:355.

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to Madison. In Federalist 63 Madison offered a number of examples of the institution of popularly elected representative assemblies and councils in classical Greece and Rome. What the ancients failed to do was (1) exclude the people from direct participation in government and (2) combine the principle of representation with territorial extension. The establishment of representation in a small polity does not sufficiently distance the representatives from popular passions and partial interests; even with the existence of a senate to check the representative assemblies of the people, the will of the latter tends to be an irresistible force that ultimately reigns alone in a small territory.41 Conversely, the extension of the territory considered by itself achieves the inclusion of a multiplicity of interests and sects within the society, thereby making factious combinations of the majority improbable, but it lacks a vehicle for the political formation and expression of the society’s will. In Madison’s schema, “the great principle of representation” denies the people a direct agency in lawmaking, but it also functions as the “great mechanical power in government” by which the will of the society converges at a common center and directs the government to the common good.42 Representation is thus a vehicle for the collection and modification of society’s will. In contrast to a nation that is too small and where a majority faction easily arises, or to one that is too large and the public voice cannot be collected, Madison taught that a territory of practicable extent provides the conditions for the communication of ideas, the proper formation of public opinion, and its proper degree of influence on the representatives. Under these circumstances, the representatives are effectively distanced from the influence of the ephemeral passions and partial interests of the diverse factions within their districts while simultaneously being kept dependent on the will of the society. While separation of powers is generally considered a contrivance to prevent governmental tyranny, Madison sought to use this prudential device to maintain governmental dependence on the people as well. Separation of powers contributes to the “chain of dependence” that binds the will of the government to the will of the public.43 The “great principle of responsibility” is jeopardized when the powers of government are not effectively divided, Madison argued, and it is sacrificed when the powers are improperly 41 42 43

Federalist 63:353–57. Federalist 14:68–69. See “Removal Power of the President,” PJM 12:256; 12:236–37.

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mixed.44 In the first Congress of the United States, Madison spent considerable time on the floor of the House of Representatives arguing against the proposal to combine the Senate with the executive in the power of removal of officials from the executive branch. Such a mixture of the powers of government violates the principle of separation of powers, he said, for it invites influence and corruption and negates the intended effect of providing for responsibility to the community. Separation of powers assists in promoting a due “responsibility” of government officials to the community, however, in a republic that allows for the effective formation and influence of public opinion. Madison’s goal, then, is not properly understood when it is reduced to the distillation of the people’s will by representatives in Congress. To the degree that he sought to distill the popular will through the establishment of “an equilibrium in the interests & passions of the Society,” it was for the purpose of creating the conditions necessary to refine and enlarge the opinion of the society.45 Madison’s insight into how territorial size contributes to the achievement of the just majority involves more than a technical dependence on the people via their representatives in Congress. It also entails, to the extent possible, the tempering of factious impulses and the elevation of opinion within the society by means of a dynamic “commerce of ideas” at the level of government and throughout “the entire body of the people.”46 Madison’s “modification of the sovereignty” is not merely the alteration of individual state interests and popular views by the national legislature. It is also the modification of public opinion itself. “In the extent and proper structure of the union,” Madison wrote in the conclusion to Federalist 10, “we behold a republican remedy to the diseases most incident to republican government.”47 In the climactic conclusion of the 51st essay he restates the importance of size and structure: “And happily for the republican cause, the practicable sphere may be carried to a very great extent by a judicious modification and mixture of the federal principle.”48 The federal structure of the union is an essential component of Madison’s theory of the extended republic. In a nation that is too large or lacks such prudential equivalents to territorial limits, the public voice is effectually “silenced.” To counteract this, a large nation must incorporate the federal principle, which provides a means to form and collect the public 44 45 46 47 48

Ibid., PJM 12:237. “Notes on Government,” PJM 14:158–59. Ibid., PJM 14:168; “Public Opinion,” PJM 14:170. Federalist 10:52, emphasis added. Federalist 51:293.

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voice. Indeed, without a due degree of power at the state (or what he often called “local”) level of government, the extent of the territory would make it impossible for the people to communicate effectively and form a united voice by which to control and direct the measures of government.49 Conversely, wherever “public opinion is fixed,” even “the most arbitrary government is controuled.”50 In a large territory, federalism helps to promote governmental responsibility to the people; it contributes to making the environment conducive to the communication of ideas and the mobilization and expression of public opinion in a nation that would otherwise be too large for republican government.51 Given the importance of federalism to Madison’s republican theory, it is not surprising that when he perceived a Federalist threat to the rightful constitutional authority of the states, he exhorted citizens to support the federal nature of the union and to maintain power within its proper boundaries.52 In 1792 Madison called upon Americans to dedicate themselves, “with a holy zeal,” to their constitutional “scriptures.” As social compacts, constitutions are superior to all other forms of political obligations. They are in fact “sacred” trusts, “bound on the conscience by the religious sanctions of an oath.”53 Deriving their moral force from “the only earthly source of authority,” they represent the most fundamental expression of the sovereignty of the people and of public opinion. “As metes and bounds of government, they transcend all other land-marks, because every public usurpation is an encroachment on the private right, not of one, but of all.” Madison believed that the authority of public opinion is limited by the act of consent to a constitution. But he rejected the idea that it is limited to the act of constitutional consent or that it is merely an intermittent expression of authority at times of elections.54 While the authority of the Constitution is 49 50 51 52 53 54

“Consolidation,” PJM 14:138. Cf. Federalist 46; PJM 17:247. PJM 14:192. See the Party Press Essay “Consolidation,” PJM 14:138–39. Cf. the precursor of the arguments in this essay in Federalist 44 and 46. Cf. PJM 10:68. “Charters,” PJM 14:192. “Ibid., PJM 14:191. Gary Rosen is correct that for Madison the Constitution is the manifestation of the sovereign “sense of the community” (American Compact: James Madison and the Problem of Founding [Lawrence: University Press of Kansas, 1999], 165). However, his insistence that “Madison’s solution was a kind of constitutional passion, an unthinking attachment to the Constitution as an end in itself” (127), neglects Madison’s concern for public enlightenment and fails to take into account his conception of the dynamic character of public opinion and its continuous operation and influence in the everyday life of the polity. Roger Sharp also gives Madison’s conception of public opinion a static quality, arguing that although Madison called for dependence on an enlightened and watchful public, in the early 1790s

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fixed and its provisions are unalterable except through the modes of amendment prescribed in the document itself, there are myriad political decisions that do not involve constitutional questions. In these instances, the government ought to be informed by the considered views of the community. “In no case,” Madison declared, “ought the eyes of the people to be shut . . . nor their tongues tied.” If left uncontrolled by the people, government “ever will be administered by passions more than by reason.”55 Contrary to the notion that Madison wanted the people’s involvement limited to voting – or as Richard K. Matthews puts it, to kicking the bums out of office when

55

he did not suggest how public opinion would be collected and articulated, regarding it as “a fixed entity that was supportive of republicanism but essentially inert” (American Politics in the Early Republic: The New Nation in Crisis [New Haven, Conn.: Yale University Press, 1993], 45). “Political Reflections,” PJM 17:238–39; cf. “Who Are the Best Keepers of the People’s Liberties?” PJM 14:426–27; Federalist 49:285; Federalist 50:287. See also James Madison, Virginia Ratifying Convention, June 20, 1788, PJM 11:163. “I have observed,” Madison said, “that gentlemen suppose, that the general legislature will do every mischief they possibly can, and that they will omit to do every thing good which they are authorised [sic] to do. If this were a reasonable supposition, their objections would be good. I consider it reasonable to conclude, that they will as readily do their duty, as deviate from it: Nor do I go on the grounds mentioned by gentlemen on the other side – that we are to place unlimited confidence in them, and expect nothing but the most exalted integrity and sublime virtue. But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks – no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.” This passage is sometimes cited to demonstrate that Madison limited the role of the people to electing the better sorts of men to public office. But Madison does not in fact make this argument here. Rather, he says that, as a republican, he believes the people will have sufficient virtue and intelligence to make a good choice in the election of political leaders. He does not say that their responsibility is limited to voting good men into office, nor does he say that a sufficient amount of popular virtue and intelligence guarantees that those placed in office will possess the requisite virtue and wisdom. He does not say that once the people cast their votes, they can rest easy in the assurance that their rulers will exercise moral and intellectual virtue. Instead, Madison argues that once they are elected, the people should not expect all their representatives to be knaves, nor should they expect from them “the most exalted integrity and sublime virtue” or place “unlimited confidence” in them. Madison believed that it is on the people’s character and judgment that we must place ultimate dependence in republican government; since some degree of caution or lack of trust is appropriate in respect to the rulers, it is logical that the people’s judgment should not sleep between elections, but rather remain actively exercised. Thus, as he argues in “Who Are the Best Keepers of the People’s Liberties?” the antirepublicans believe:

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they got out of line – Madison explicitly argued the reverse.56 The doctrine that has “so ardently been propagated by many, that in a republic the people ought to consider the whole of their political duty as discharged when they have chosen their representatives” and “that the people ought at all times to place an unlimited confidence in rulers” they have chosen, is false, he protested. Just as he had indicated in The Federalist a decade earlier, in “Political Reflections” Madison insisted that the people are the primary control on the government, that they have a real and ongoing role in the political life of their country, and that the manifestation of the reason of the public results from their active political participation and the communication of ideas. The advent of circulating newspapers significantly increased communication among the people and contributed to the power of public opinion in the eighteenth century, a phenomenon clearly grasped by Madison and many of his contemporaries abroad.57 The rise of the mass media also made communication over a large territory possible for the first time in history. It was now possible to found a nation large enough to impede the formation of a majority faction and at the same time establish the circumstances that make possible a genuine “commerce of ideas” throughout an extensive territory. To my knowledge, this original, momentous insight belongs to James Madison. Madison envisioned newspapers serving as vehicles for circulating the ideas of the literati to the people of the extensive American The people are stupid, suspicious, licentious. They cannot safely trust themselves. When they have established government they should think of nothing but obedience, leaving the care of their liberties to their wiser rulers. In contrast, Republicans believe: Although all men are born free, and all nations might be so, yet too true it is, that slavery has been the general lot of the human race. Ignorant – they have been cheated; asleep – they have been surprized; divided – the yoke has been forced upon them. But what is the lesson? That because the people may betray themselves, they ought to give themselves up, blindfold, to those who have an interest in betraying them? Rather conclude that the people ought to be enlightened, to be awakened, to be united, that after establishing a government they should watch over it, as well as obey it. 56

57

See Richard K. Matthews, If Men Were Angels: James Madison & the Heartless Empire of Reason (Lawrence: University Press of Kansas, 1995), 159; cf. 162–63. See also Thomas Pangle, The Spirit of Modern Republicanism (Chicago: University of Chicago Press, 1988), 44, 96–98. For a discussion of the relationship between newspapers and the influence of DemocraticRepublican societies in America in the 1790s, see Albrecht Koschnik, “The Democratic Societies of Philadelphia and the Limits of the American Public Sphere, circa 1793–1795,” William and Mary Quarterly 58:3 (July 2001), 615–36.

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republic, resulting in the refinement and enlargement of the public views and the emergence of an enlightened public opinion. Indeed, Madison assigned a free press and the literati a critically important role in republican government. “If we are to take for the criterion of truth the majority of suffrages,” Madison wrote in early 1790, “they ought to be gathered from those philosophic and patriotic citizens who cultivate their reason, apart from the scenes which distract its operations, and expose it to the influence of the passions.”58 Moreover, “it is the duty . . . of intelligent and faithful citizens to discuss and promulgate [political information and ideas] freely” in order to control government by the “censorship of public opinion” and “according to the rules of the Constitution.”59 Circulating print media serve to communicate the ideas of the educated and patriotic members of society to the people at large. The literati are thus charged with the role of civic educators in Madison’s republic, and their contribution to the common benefit of the community is no less necessary than that of the husbandman or the manufacturer. The “literati,” Madison declared, are the cultivators of the human mind – the manufacturers of useful knowledge – the agents of the commerce of ideas – the censors of public manners – the teachers of the arts of life and the means of happiness.60

Madison’s use of the language of agriculture and manufacturing in his description of the highest aims of the new republic was clearly no accident. He intentionally meant to contrast his vision of the American commercial republic and its hero, the merchant of ideas and mores, with the narrower Hamiltonian emphasis on commerce as material exchange and profit. Madison’s choice of wording in this Party Press Essay reminds one of a passing comment by David Hume in one of his essays. Perhaps Madison meant to remind his colleague Hamilton of the broader and more elevated views of the Scotsman whom he admired. According to Christopher J. Finlay, Hume saw the role of the men of letters as that of “moderating opinion through dialogue” and contributing to “a commerce of ideas” within society.61 “The Materials of this Commerce must chiefly be furnish’d by Conversation and 58 59 60 61

Madison to Benjamin Rush, March 7, 1790, PJM 13:93. Meyers, Mind of the Founder, 264. “Notes on Government,” PJM 14:168. Christopher J. Finlay, “Hume’s Theory of Civil Society,” European Journal of Political Theory 3:4 (2004), 384.

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common Life,” Hume wrote. “The manufacturing of them alone belongs to Learning.”62 The indispensable role Madison assigned the enlightened citizens of a republic demonstrates that he was no adherent of the notion that the clash of rival interests is an acceptable substitute for “better opinions” in a republican society.63 In fact, he looked to the most thoughtful and virtuous citizens to keep the people informed about political activity at the seat of government; to prompt them, when necessary, to censure governmental measures; and, in general, to instruct the citizenry in the morals and manners of republicanism. Their influence on public opinion serves to anchor a republican citizenry in the moral principles of free government. Madison’s advocacy of the commerce of ideas and politics of public opinion was his sustained attempt to solve the problem of majority opinion in a manner fully consistent with the form and spirit of popular government. The spirit of free government cannot be attained by achieving the people’s consent and then dissociating them from the acts of government. The spirit of republicanism is present only when it is embodied in the minds and mores of the citizens and sustained by the activity of political participation and communication throughout the land. The construction of public opinion involves a process of instructive dialogue and deliberation that permeates the whole society, from the influence of the literati, the statesmen, and the laws on the mores and views of the citizens, to the communication of ideas throughout the great body of the people, to the influence of the settled opinion of the community on the representatives in government. Accordingly, public opinion is both acted upon and is itself an active political agent upon which government depends for its direction. The process of forming public opinion is a time-consuming and complex one, much like the process of establishing precedents in courts of law or, better yet, the challenge of education in a free society. Majority opinion in a republican polity is constantly in the process of constructing itself within an intellectual, moral, and psychological milieu larger than itself. This architectonic influence over the minds and morals of the public influences the decisions of government and the laws of the land, which in turn operate on the understanding and interest of the public. This is Madison’s solution to the difficult challenge he set himself when preparing for the Federal Convention, that is, how to 62 63

David Hume, “Of Essay Writing,” in David Hume, Essays: Moral, Political, and Literary, Eugene F. Miller, ed. (Indianapolis: Liberty Classics, 1985), 535. See Diamond, “Ethics and Politics: The American Way,” 93.

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achieve a “modification of the Sovereignty.”64 Public opinion is the sovereign authority in a genuine republic whose mild voice of reason is capable of transforming the will of a nation. It is no surprise, then, how often Madison put pen to paper in the public press, or that he urged his fellow citizens, despite all artificial and circumstantial distinctions, to come together as one people under the mantle of the “Empire of reason.” 64

“Vices of the Political System of the United States,” PJM 9:357.

5 The Politics of Public Opinion

Throughout the 1790s, Madison worked to prevent measures that he believed were contrary to the sovereign authority of the people as expressed in the Constitution. He also sought to establish and secure a political system dependent on the ongoing sovereignty of public opinion. These modes of authority informed Madison’s stances on policy questions during the 1790s. To show as clearly as possible how Madison’s republican theory informed his political practice in this period, the issues of the Washington administration will be treated thematically rather than chronologically in this chapter. We begin with those measures that raised the issue of the relationship between public opinion and constitutional meaning, that is, the adoption of a bill of rights, the establishment of a national bank, and governmental support of manufactures, and then proceed to the policy issues that impacted the ongoing politics of public opinion, viz., the national debt, foreign policy, and commercial discrimination.1 In the next chapter the Alien and Sedition Acts and the Kentucky and Virginia Resolutions will be examined, as well as the main philosophic points of agreement and disagreement between the two leading Republicans, Madison and Jefferson.

1

Early in the first Washington administration Madison took an active role on issues concerning the Revolutionary War debt, including an attempt to distinguish between original and present holders of the debt certificates and the effort to stymie Hamilton’s plan for the national assumption of states debts as they presently stood, i.e., after some states had complied with the old Congress’s request for payment and others had not. Debt discrimination and assumption were clearly important issues for Madison; they involved the application of equal justice to individuals and citizens of states. As important as they were, however, he also understood that they were issues that were not clear-cut or of enduring significance to the republican character of the nation.

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When Madison introduced the Bill of Rights in the first Congress in 1789, he did so with some reluctance. His concern was that the specification of certain rights in the Constitution might be erroneously construed to disparage other rights not listed in the document. He insisted many times over that the United States Constitution was one in which the people gave to government certain enumerated powers, not one in which government gave to the people certain rights. Still, the opponents of the new Constitution had expressed serious reservations about whether the proposed plan would effectually limit the powers of government. In 1788, Madison pledged his support for a bill of rights. His support was a tactical move to win ratification of the Constitution without calling a second convention. But he also had another reason: A bill of rights, like maxims that preceded the constitutions of old, could have the effect of educating public opinion on the fundamental principles of the polity.2 As respect for these rights becomes incorporated into public opinion, public opinion defines and limits the demands of the majority. Over time, a bill of rights acts as a kind of republican schoolmaster, serving as a civic lexicon by which the people teach themselves the grammar and meaning of freedom. The more ancient the lineage of the constitutional declaration, the more influence it exerts on the views and sentiments of the people. As an expression of the political principles and moral sentiments of the society, a bill of rights is a manifestation of how ethical motives can and do influence the formation of majority opinion. Thus, even before the formation of the new government (and before Hamilton unveiled any part of his program and prior to Jefferson’s return to the United States), Madison applied his theory of public opinion to political practice. He grounded his ultimate support for a bill of rights on the benefit of incorporating “political truths” into the fabric of “national sentiment” and worked to establish the practice of making “an appeal to the sense of the community” on certain critical constitutional questions.3 Shortly after taking his seat in the First Congress he repeated his reasons for advocating a declaration of rights, adding that the act would help to consolidate the opinion of the community in support of the new Constitution.4 It would 2

3 4

For an in-depth discussion of Madison’s position on a bill of rights, see Edward J. Erler, “James Madison and the Framing of the Bill of Rights: Reality and Rhetoric in the New Constitutionalism,” Political Communications 9 (1992), 213–29. Madison to Jefferson, October 17, 1788, PJM 11:298–99. Ibid.; “Amendments to the Constitution,” June 8, 1789, PJM 12:204–9. See also Madison to Jefferson, December 8, 1788, PJM 11:382–83; “Notes on Government,” PJM 14:162–63.

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contribute to establishing the principles of free government not merely on paper, but in the minds and hearts of the American citizens. “In proportion as government is influenced by opinion,” Madison wrote, “it must be so, by whatever influences opinion. This decides the question concerning a Constitutional Declaration of Rights, which requires an influence on government, by becoming part of the public opinion.”5 In the debate over the bank bill in early 1791 Madison again appealed to public opinion, claiming that the establishment of a national bank was contrary to the sense in which the Constitution had been understood and adopted.6 “[T]he enlightened opinion and affection of the people,” he argued, “[are] the only solid basis for the support of this government.”7 If those congressmen who have suggested an “appeal to the public opinion” are sincere, then “we ought to let our constituents have an opportunity to form an opinion on the subject.”8 In the months following this controversy, he and Jefferson began working actively to foster the agency of public opinion and establish its authoritative role in the politics of the new nation. Madison’s central argument against the institution of a national bank was that it violated the Constitution, as understood by the people who ratified and adopted it.9 He viewed Hamilton’s proposal to establish the bank as an attempt to use unconstitutional means to accomplish legitimate ends. Hamilton’s “Report on Manufactures” went even further: it proposed the national exercise of power to achieve ends not mandated by 5

6 7 8

9

“Public Opinion,” PJM 14:170. See also “Notes on Government,” PJM 14:162–63; Marvin Meyers, The Mind of the Founder: Sources of Political Thought of James Madison (Hanover, N.H.: Brandeis University Press, 1981), 169. “The Bank Bill,” February 2, 1791, PJM 13:381. Ibid., February 8, 1791, PJM 13:386–87. Ibid., PJM 13:387. See also “The Bank Bill,” February 2, 1791, PJM 13:381. Madison later defended his change of position on the constitutionality of the national bank on the grounds that the issue had been determined by established precedents and settled public opinion. He denied the charge of inconsistency by demonstrating that in both cases he had appealed to the same standard of public opinion. By 1816, not only had the national bank been sanctioned by successive legislatures and by local authorities, it had received the “acquiescence . . . of the nation at large” and there was little if any prospect for “any change in the public opinion.” Under such circumstances, Madison concluded, an executive veto “would have been a defiance of all obligations derived from a course of precedents amounting to the requisite evidence of the national judgment and intention” (Meyers, Mind of the Founder, 393, emphasis added). “The Bank Bill,” February 2, 1791, PJM 13:372–382; “The Bank Bill,” February 8, 1791, PJM 13:383–387; “Draft Veto of the Bank Bill,” PJM 13:395–96; Max Farrand, ed., The Records of the Federal Convention of 1787, rev. ed., 4 vols. (New Haven, Conn.: Yale University Press, 1937), 3:533–34.

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the Constitution.10 Madison viewed the Constitution of the United States as the embodiment of the highest expression of the opinion of the public. No expression of the public, however widespread and popular, is superior to the voice of the people expressed in its most sovereign capacity in this document. Only the extraconstitutional invocation of the right of revolution can claim moral superiority. The American idea of constitutionalism is derivative of the principle of popular sovereignty, which forms the democratic basis for the doctrine of originalism. No one took this doctrine more seriously than Madison. Indeed, as Jack Rakove argues, Madison was the founding father of originalism, or the original originalist.11 Madison viewed Hamilton’s construction of the Constitution as more than a point of legal debate. It struck at the central philosophical tenets of republican government. The idea of consent of the governed means that something was consented to – understood and agreed to – by the people in their most sovereign capacity. The people are “the only earthly source of authority,” Madison wrote. The charters authenticated by their seal in the solemn act of founding constitute the most sacred trusts. Constitutions are, in essence, the holy writs of this world, the “political scriptures” of faithful citizens. “They are bound on the conscience by the religious sanction of an oath . . . , [transcending] all other land-marks, because every public usurpation is an encroachment on the private right, not of one, but of all.”12 Hamilton’s loose interpretation of the Constitution effectively removed the limitations on the power of government placed there by the authority of the people, undermining the very principle of popular sovereignty. It has been argued that Madison’s altered position on the national bank during his presidency represents an abandonment of the doctrine of constitutional supremacy since, in this instance, he trumped the authority of the Constitution with the power of ordinary public opinion and legislative precedent.13 I believe this is an erroneous reading of the explanation Madison provided for his change of view. Madison was not arguing that ordinary public opinion – even when settled over a course of many years and informing established precedents – is ever superior to the Constitution. His argument 10

11

12 13

Madison to Henry Lee, January 1, 1792, PJM 14:180; Madison to Henry Lee, January 21, 1792, PJM 14:193. See Jack N. Rakove’s Pulitzer Prize–winning book Original Meanings: Politics and Ideas in the Making of the Constitution (New York: First Vintage Books, 1996), ch. XI. I would disagree with Rakove, however, that Madison’s originalism was the result of a conversion to the doctrine in the mid-1790s. “Charters,” PJM 14:191. Meyers, Mind of the Founder, 389–90; Gary Rosen, America Compact: James Madison and the Problem of Founding (Lawrence: University Press of Kansas, 1999), 140.

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was that for over twenty years public opinion had acquiesced in the decision to establish a national bank, demonstrating that the generation that ratified the Constitution was in fact not adverse to it and did not understand it to be contrary to the Constitution – even if Madison himself, in “his solitary opinion,” had.14 Accordingly, the bank was not nor ever had been unconstitutional. Madison is not here confessing to any weakening of his dedication to the Constitution as the supreme authority in all cases, nor is he admitting to any inconsistency of principle. Rather, he is conceding that he had misread public opinion on the issue in the early 1790s. The establishment of a national bank was not, as he had earlier thought, contrary to the Constitution, as understood by the public who ratified it. Thus, as president, he could respect legislative precedent because the institution of the bank was not an unconstitutional exercise of power, but only an ordinary, legitimate legislative act. His action as president did not represent an exception to the idea of the fundamental authority of the Constitution, and indeed he was, without fail, committed to the doctrine of constitutionalism throughout his life. “A Constitution being derived from a superior authority,” he said in 1831, “is to be expounded and obeyed, not controlled or varied, by the subordinate authority of a Legislature.”15 Accordingly, Madison did change his mind on the issue of the constitutionality of a national bank – as he openly conceded – but he did so in order to remain consistent with his fundamental principles. Whereas Madison’s original position on the national bank and the “Report on Manufactures” stemmed from his perception that such exercises of power were contrary to the constitutional voice of the public, his opposition to the perpetuation of the public debt resulted from the effect it would have on the ongoing sovereignty of public opinion. Hamilton was correct to think that he had Madison’s general support for funding the public debt, and indeed Madison argued on the floor of the House of Representatives in early 1790 that the debt incurred in the war for independence must be funded. However, Madison’s general view was that although funding was at times necessary in the life of a nation, it was nonetheless an evil.16 While he assented to those measures necessary to reestablish public credit and retire the debt, he was adamantly opposed to a perpetuation of it and, in fact, had been so for many years.17 The extension of the debt would only increase the 14 15 16 17

Meyers, Mind of the Founder, 390–93. Ibid., 391, emphasis added. “Assumption of State Debts,” PJM 13:75. Madison to Edmund Randolph, March 14, 1790, PJM 13:106, “Address of the House of Representatives to the President,” PJM 13:317; cf. “Discrimination between Present and

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distance between the national government and the interests of the people. Public debt generally results from the costs of running a war and outfitting an army, all of which tend to increase executive discretionary power, corruption in government, and governmental independence of the popular will, he argued in the Party Press Essay “Universal Peace.”18 Such has been the ploy used by governments to extend and perpetuate arbitrary power throughout human history. The cure for this, Madison declared, is to make the will of the government “subordinate to, or rather the same with, the will of the community.”19 Furthermore, to the extent possible, each generation should bear the financial burden of debts it has taken on, thereby prompting “avarice . . . to calculate the expences of ambition” and “in the equipoise of these passions, [leaving] reason . . . free to decide for the public good.”20 By “permanent and constitutional maxims of conduct” the executive temptation to go to war must be moderated by the legislative representatives’ willingness for war, contingent on the opinion of their constituents. The people’s temptation to wage war is controlled by “subjecting the will of the society to the reason of the society.”21 A few years later, in the exchange with Hamilton writing as Pacificus, Madison as Helvidius insisted on the legislative nature of the power to declare war and make treaties, as delineated in the Constitution. “Under colour of vindicating an important public act,” Helvidius wrote in his first installment, Pacificus “advanced [principles] which strike at the vitals of [the nation’s] constitution, as well as at its honor and true interest.”22 The violation of the principle of separation of powers manifested in the president’s Proclamation of Neutrality in 1793 was a travesty in respect to “the simple, the received, and the fundamental doctrine of the constitution, that the power to declare war[,] including the power of judging of the causes of war[,] is fully and exclusively vested in the legislature.”23 The arguments of the Helvidius essays encompass both a question of constitutional meaning and the issue of governmental dependence on the will of the people. In respect to the former, Madison declared the proclamation unconstitutional based

18

19 20 21 22 23

Original Holders of the Public Debt,” PJM 13:37; “Notes on Debates,” February 21, 1783, PJM 6:272; “Notes on Debates,” February 27, 1783, PJM 6:298. “Universal Peace,” PJM 14:206–9, “The Union: Who Are Its Real Friends?” PJM 14:274– 75; Madison to Jefferson, February 15, 1795, PJM 15:474; “Political Observations,” PJM 15:518. “Universal Peace,” PJM 14:207. Ibid., PJM 14:208. Ibid., PJM 14:207. “Helvidius Number 1,” PJM 15:66. “Helvidius Number 4,” PJM 15:108.

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on original intent, that is, on the “simple” meaning of the Constitution and the manner in which it was “received” or understood by the Framers and the ratifying public. In his second claim, we see how he combined the “doctrine” of American constitutionalism with the principle of the ongoing sovereignty of public opinion. In essence, Madison argued that Pacificus’s defense of the Neutrality Proclamation is contrary to the republican principles that inform the Constitution. Specifically, it is grounded in an interpretation of the prerogative power that is inconsistent with the doctrine of popular sovereignty. Madison would later employ a similar twofold argument in his case against the Sedition Act. In the present case, however, he did not have a constitutional provision to demonstrate decisively the “simple” and “received” meaning of the Constitution, nor, given the increasingly imprudent antics of the French minister Genet, was it at all clear that public opinion endorsed his viewpoint. He was thus compelled to focus on the much more theoretical and complex argument regarding the republican doctrine at the foundation of the United States Constitution and, when his efforts proved ineffective, to adopt a more quarrelsome approach and tone. When all was said and done, Madison was disappointed in his own performance as Helvidius. His frustration stemmed from the resulting “polemical” character of the essays and his failure to do justice to the complex constitutional and practical issues involved in the controversy over the war and treaty powers.24 Helvidius’s case for governmental dependence on the will of the people continued the argument Madison presented in “Universal Peace.” “War is in fact the true nurse of executive aggrandizement,” Helvidius wrote.25 Quoting one of Hamilton’s contributions to The Federalist, Helvidius argued that a “hereditary monarch . . . [is] often the oppressor of his people,” though generally he has too much personally at stake in his government to be corrupted by a foreign power.26 An elective magistrate, on the other hand, may 24

25 26

See “Detached Memoranda” in Jack N. Rakove, ed., James Madison: Writings (New York: Library of America, 1999), 770. Later in his life (ca. 1819?), Madison wrote about his Helvidius essays: “I ought not perhaps to acknowle[d]ge my having written this polemic tract, without acknowle[d]ging at the same time my consciousness & regret, that it breathes a spirit which was of no advantage either to the subject, or to the Author. If an apology for this, & for other faults can be made it must be furnished by the circumstances, of the pamphlet being written in much haste, during an intense heat of the weather, and under an excitement stimulated by friends, agst a publication breathing not only the intemperance of party, but giving as was believed a perverted view of President Washington’s proclamation of neutrality, and calculated to put a dangerous gloss on the Constitution of the U.S.” Cf. Curtis A. Bradley and Martin S. Flaherty, “Executive Power Essentialism and Foreign Affairs,” Michigan Law Review 102 (2004), 684–88. “Helvidius Number 4,” PJM 15:108. Ibid., PJM 15:109.

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be tempted by avarice to sacrifice the interests of his fellow citizens and by ambition to betray his country. Madison feared that Pacificus’s construction of the American Constitution would destroy the rudimentary constitutional conditions necessary to the achievement of an impartial umpire in republican government. The advantage of absolute monarchy, he argued, is that the king is sufficiently neutral toward the different interests and parties of his country, whereas in a republic the will of the majority may sacrifice the interests of the minority.27 Conversely, the advantage of republics is that the sovereign will is sufficiently restrained from making decisions contrary to the interests of the society; in monarchy it is not, and the king may sacrifice the interests and happiness of his subjects to his own personal ambition and gain. The arbitrariness of republican government is remedied by enlarging the sphere, thwarting the formation of a majority faction, and providing adequate conditions for the refinement of public views. This remedy, however, is contingent on maintaining the beneficial effects of republican government: the will of the government must be dependent on the will of the whole society and prevented from setting up an interest adverse to it. The United States Constitution lodges the question of war and peace with the legislature, not with the president, Helvidius asserted, and gives the latter only a partial and not the sole power to make treaties, precisely to weaken the executive temptation to betray the interest of the nation and to ensure that the will of the government is dependent on and responsible to the people. Madison understood that political neutrality and commercial nondiscrimination toward the British were critical to the success of Hamilton’s domestic economic program. He viewed Hamilton’s willingness to allow the continuance of American economic subordination to the British as a sacrifice of national honor and interest in order to advance short-term economic gains. In the long run, Madison believed, the economic, political, and moral strength of the United States were tied to achieving a nonsubservient economic position. (Hamilton had claimed just the opposite result from his policies, that is, some short-term disadvantages but long-term economic and political benefits.) Prior to and at the very outset of the First Congress, and time and time again throughout the 1790s and in subsequent years, Madison argued that the establishment of a beneficial or at least more equitable commercial policy with the British would take fully into account American preeminence in agriculture and Great Britain’s dependence on American produce. While England depended on the United States for the 27

“Vices of the Political System of the United States,” PJM 9:357; Madison to Washington, April 16, 1787, PJM 9:384.

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raw materials used in its manufacturing industry, its West Indian colonies – from which it drew an immense income – depended on the United States for the necessities of life. In Madison’s judgment, there was no good reason to adopt Hamilton’s servile response to British commercial dominance and allow it to treat the United States as if it were still a British colony. Commercial retaliation against the British would force a change in trade policy; other markets, particularly France, could substitute for losses in Anglo-American commerce. Throughout Madison’s political career the British commercial monopoly was a stinging thorn in his side, which perhaps explains his unrealistic assessment that America could bring the world’s most advanced economic nation to its knees.28 Nevertheless, he pursued a policy based on this train of thought for decades. In the Washington administration he viewed the Hamilton-inspired Neutrality Proclamation of 1793 and the Jay Treaty of 1795 as continuing demonstrations of shameful deference to the empire that America had fought and defeated in order to end political oppression and economic subjugation. During his tenure as secretary of state under President Jefferson, the United States finally demanded a fairer trade policy from the British and, in the effort to force Great Britain to comply, passed the Embargo Act of 1807. The retaliatory policy had little effect on Great Britain but was economically disastrous for the United States, the very result Hamilton had predicted during the Washington administration. By 1812 America was embroiled in war with the British, which was derisively tagged by some “Mr. Madison’s War.” Hamilton was no longer around to say, “I told you so,” but many of his Federalist cohorts were. During the war between England and France in the 1790s, Madison attempted to counteract the “Anglican Party” and the false appearance that public opinion endorsed its prejudices for England and against France. He and James Monroe produced a model resolution to be distributed at country meetings, the object of which was to provide a means to mobilize, collect, and manifest “the genuine sense” and “real sentiments of the people” – that is, “the agricultural” and “commanding part of the society” – and to negate the counterfeiting of public opinion coming from the nation’s commercial centers.29 He believed that the Federalists’ domestic political and economic policies, like their foreign commercial policy, catered to the wealthy few 28

29

See Stanley Elkins and Eric McKitrick, The Age of Fedealism: The Early Republic, 1788– 1800 (New York: Oxford University Press, 1984), 130–31, 376–77. Madison to Jefferson, September 2, 1793, PJM 15:92–93; cf. Lance Banning, The Sacred Fire of Liberty: James Madison & the Founding of the Federal Republic (Ithaca, N.Y.: Cornell University Press, 1995), 377–78.

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and ignored the opinion of the majority of the people who resided outside the capital and the urban financial centers of New York and Philadelphia. Hamilton’s plan to perpetuate the national debt undercut the republican principle of governmental responsibility to the will of the people. The establishment of a national bank and governmental support of manufacturers exacerbated this, further creating a two-tiered class system with wealthy urban financial speculators favored at the expense of the opinions and interests of the majority of rural farmers who worked for a living and produced the real wealth of the nation. In both the international and national arenas, Madison advocated a system of free trade grounded in the property rights of individuals (versus the artificial notion of the wealth of nations, which served as the excuse for commercial discrimination policies). In the first month of the first session of the First Congress, before Jefferson’s return from France and before Hamilton had been offered the position of secretary of the treasury, Madison declared on the floor of the House: I own myself the friend to a very free system of commerce, and hold it as a truth, that commercial shackles are generally unjust, oppressive and impolitic – it is also a truth, that if industry and labour are left to take their own course, they will generally be directed to those objects which are the most productive, and this in a more certain and direct manner than the wisdom of the most enlightened legislature could point out.30

If the general principle that “commerce ought to be free, and labour and industry left at large to find its proper object” is a good one, Madison said, the only question remaining is to discover the exceptions to this rule that must be considered because of particular circumstances. Speaking directly to the representatives of the northern states, whose interest it was to promote the manufacturing industry, he said: “The states that are most advanced in population and ripe for manufactures, ought to have their particular interest attended to in some degree.”31 Though manufactures may arise without any encouragement from government, as has happened in some of the states, in other states import duties and regulations have advanced the industry, and these manufactures ought not to go out of business because of the establishment of a new general government. To neglect those industries already established and turn their labor into other channels would be cruel, for the shift from one employment to another is neither easy for men nor without injury to them. It is therefore prudent for 30 31

“Import and Tonnage Duties,” PJM 12:71. Ibid., PJM 12:70 (emphasis added).

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government to offer a fostering hand to some of those existing manufactures that would otherwise fail.32 However, Madison contended, it was also proper for the members of the legislature to consider the means to encourage agriculture, which is justly considered “the great staple of America.” The agricultural industry cultivates the spontaneous productions of nature and has “manifest preference . . . over every other object of emolument in this country.” Furthermore, America is unrivaled in the world in agricultural resources and potential productivity, and this is not the case with manufactures. The establishment of a beneficial or at least more equitable commercial policy with other countries, particularly Great Britain, would take fully into account American preeminence in agriculture and other nations’ dependence on its produce. In Madison’s view, agriculture was the most beneficial object of human employment for the United States and the industry most productive of real wealth in a nation. Governmental encouragement of manufactures artificially diverts human industry from a more to a less beneficial course and therefore ought to be limited to prudential considerations regarding existing establishments that would otherwise perish.33 A nation whose citizens depend for their livelihood on the manufactured production of superfluities and the whims of fashion and fancy, Madison claimed, is one in which one class of citizens lives in servile dependence on another. “In proportion as a nation consists of that description of citizens, and depends on external commerce, it is dependent on the consumption and caprice of other nations.”34 Madison did not share Hamilton’s dream that America become an industrial prodigy. The way of life of the husbandman, he argued in 1792, is “the most truly independent and happy.”35 A nation predominant in agriculture is most favorable to the health, virtue, intelligence, competency, liberty, and safety of the greatest number of individuals. A manufacturing nation, by contrast, courts the dangers of wantonness and waste, inviting into its environs the wretchedness of the Bridewells and Bedlams.36 As population increases, a proportion of the inhabitants of a

32 33 34

35

36

Ibid., PJM 12:72. Ibid., PJM 12:70–72. “Fashion,” PJM 14:258; cf. “Notes on Government,” PJM 14:164–65; “Dependent Territories,” PJM 17:559–60. “Republican Distribution of Citizens,” PJM 14:246. For an extensive and excellent treatment of Madison’s ideas on political economy see Drew R. McCoy, The Elusive Republic: Political Economy and the American Revolution (Chapel Hill: University of North Carolina Press, 1992). “Republican Distribution of Citizens,” PJM 14:244–46; “Fashion,” PJM 14:257–59.

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nation will gradually and naturally shift their employment from agriculture to the manufacturing, mechanical, and commercial industries, but this diversion ought not to be artificially encouraged. Rather, “it ought to be seen with regret as long as occupations more friendly to human happiness lie vacant.” Domestic manufactures would develop naturally, he said, at the stage when “hands [are] not called for by agriculture.”37 The idea of jump-starting the manufacturing and mechanical industry in order to encompass within the extended republic a greater number and variety of interests and enhanced rivalry of parties was not part of Madison’s vision in the 10th or any other Federalist essay.38 It is in fact contrary to his anticipations in that work. There was no reason for him to believe that, when writing essays for The Federalist, anything but the natural course of economic development would affect the choice of occupations of American citizens or the commercial character of the republic. Domestic manufactures would develop naturally, he contended, at the stage when agricultural labor reaches a surplus.39 In the Party Press Essay “Parties” Madison argued against governmental measures that encourage further divisiveness in society, claiming that such a policy is not consistent with republicanism. In “Property” he added to this discussion the claim that such measures violate both the rights of property and the rights of persons. Property is not secure, he asserted, when unequal taxes burden one kind of property and reward another; nor is it protected when part of the citizenry is denied the free exercise of their faculties and the free choice of their occupations. Building on Federalist 10’s claim that the rights of property originate in men’s free exercise of their diverse faculties, he argued that the individual’s free use of his faculties and choice of occupation not only constitute his property in the common meaning of the word, but are the “means of acquiring property strictly so called.”40 When understood in this context, it is not difficult to comprehend Madison’s alarm when Hamilton unveiled his “Report on Manufactures.” The protection of these different faculties, Madison had written in The Federalist, “is the first object of government.”41 37 38

39 40 41

Federalist 41:230. See Alan Gibson, “The Commercial Republic & the Pluralist Critique of Marxism: An Analysis of Martin Diamond’s Interpretation of Federalist 10,” Polity 25:4 (Summer 1993), 497–528, especially 506–9, 513. Federalist 41. “Property,” PJM 14:267. Federalist 10:46.

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Stemming from the free exercise of his faculties, man has a property “in his opinions and in the free communication of them.”42 When the power of government is excessive and unjustly interventionist, no man is secure in his opinions or in the effective communication of them. This is a particular danger in a large republic, since the size of a nation has the effect of making communication and the discovery of a united purpose more difficult. If public opinion is to exert adequate and proper control on the government, it must have sufficient channels through which it can be expressed, formed, and enlightened. The work of collecting, coalescing, and shaping public opinion is accomplished by a variety of conditions and processes, including state and local governmental bodies, educational institutions and the learned professions, the circulation of newspapers throughout the nation, the exchange of views between representatives and their constituents, and deliberation among the representatives at the seat of government. From Madison’s perspective, the sum total of the Federalist initiatives of the 1790s constituted an agenda clearly intended to undermine republican principles and practices. Inspired by Hamilton’s vision of economic and political greatness for America, the Federalists supported a slavish dependence on the British commercial empire and the creation of a system that promoted inequality of property by governmental fiat and tied the interests of the favored opulent class to the national government. Madison believed that this clever scheme would have the effect of strengthening and consolidating the powers of the national government and undermining the constitutional and practical limitations placed on its authority. The concentration of power at the national level would diminish the power of the state governments. Since a single national legislature is not competent to regulate all the objects of government over so large a territory, the power of the national executive would unduly grow; this would open the way for legislative corruption and render less effectual the voice of the people and their control on the legislature.43 This would have the eventual effect of transforming the executive office into one of “unlimited discretion,” in opposition “to the will and subversive of the authority of the people.”44 By the close of the 1790s, with the passage of the Alien and Sedition Acts, Republicans saw only too vividly what they had vaguely feared earlier in the decade: if successful, Federalist measures would produce a “universal silence,” leaving the national 42 43 44

“Notes on Government,” PJM 14:166. “Consolidation,” PJM 14:138. “The Union: Who Are Its Real Friends?” PJM 14:274.

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government to act independently of the will of the society and free to pursue a “self directed course.”45 Madison’s opposition to the Hamiltonian-led Federalist agenda was not the result of inconsistency, nor was Jefferson responsible for the political estrangement between the two leading Publii. As noted earlier, in the case of the influence of a bill of rights on the formation of public opinion as well as Madison’s advocacy of commercial discrimination against the British, he had formulated and publicly expressed his views on these matters before Jefferson’s return from France and prior to Hamilton’s stint as secretary of the treasury. Madison did not, as some scholars contend, seek to insulate national politics from public opinion in the 1780s and then develop “a new feeling for the legitimacy of majorities” and embark on a “new course of theorizing” in the 1790s.46 Rather, in his writings subsequent to The Federalist period he continued to work through the problem of majority faction and to build upon, further formulate, and hone his conception of the politics of public opinion, ultimately placing it at center stage. Madison had as little confidence that enlightened statesmen would always be at the helm as he had that a simple or aggregate majority of the community would always and only demand those things consistent with natural and political right.47 Majority faction is the greatest threat and requires the most intense theoretical scrutiny in all polities in which majority opinion actually does reign supreme. In the 1780s, Madison focused his mental energies more on solving the problem of majority faction than minority faction because he was committed to the principle of majority rule and he envisioned the majority as ultimately determining the law in America. He did not change his mind about this in the 1790s. In the battle with Hamilton and the Federalists, he fought against minority schemes that he believed would undermine the formation and force of the public voice and substitute an independent 45 46

47

“Consolidation,” PJM 14:138. Jack N. Rakove, James Madison and the Creation of the American Republic (Glenview, Ill.: Scott Foresman/Little, Brown Higher Education, 1990), 100; Elkins and McKitrick, The Age of Federalism, 266; Alan Gibson, “Veneration and Vigilance: James Madison and Public Opinion,” Review of Politics 67:1 (2005), 5–35. For the view that Madison relied on enlightened leadership, or the “better sort” of men, see Robert A. Dahl, A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956), 1–33; James Roger Sharp, American Politics in the Early Republic: The New Nation in Crisis (New Haven, Conn.: Yale University Press, 1993), 2; Garry Wills, Explaining America: The Federalist (Garden City, N.Y.: Doubleday, 1981), 179–264; Gordon Wood, “Interests and Disinterestedness in the Making of the Constitution,” in Richard Beeman, Stephen Botein, and Edward C. Carter, eds., Beyond Confederation: Origins of the Constitution and American National Identity (Chapel Hill: University of North Carolina Press, 1987), 91–93.

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governmental will. And he fought to establish in practice what he had conceived at his writing desk. I doubt that he was as surprised about the political realities of the new administration with men such as Hamilton and Adams in power as is often thought. He knew a fair amount about their views, though he did not know for certain how their ideas would play out vis-a-vis the ` decisions that had been made at Philadelphia and endorsed by the people. Once he saw that the Federalists were bent on ignoring the understanding of those who adopted the Constitution and intent on severing the government from the will of the people, he reacted to their agenda. At the same time, he remained committed to achieving and vindicating majority rule, the architectonic challenge that marked his vocation as the leading philosophic mind of the American Founding. The philosophic divergence between Madison and Hamilton did not originate in the 1790s, though their prior differences were clearly exacerbated by political events in the formative years under the new Constitution.48 Certainly, the decisions made in Philadelphia in 1787 and ratified by the people influenced Madison’s understanding of the American political system, but this is fully in accord with his unerring commitment to the idea of the Constitution as the encapsulation of the sovereign voice of the people.49 The accusation of inconsistency would in fact be warranted if he had taken the reverse tack, that is, if he had not heeded the authoritative intent of the people, who he believed alone infused the Constitution with life and validity. From Madison’s perspective, Hamilton’s lack of respect for the authoritative opinion that informed the Constitution and his determination to substitute his own economic and political vision despite the decree of the sovereign public constituted the crux of their political division. The disagreement between Madison and the Federalists, and in particular with Hamilton, was a battle over the very character of republican

48

49

See Madison to Jefferson, August 11, 1788, PJM 11:227. Regarding the joint authorship of The Federalist, Madison told Jefferson that “Though carried in concert the writers are not mutually answerable for all the ideas of each other there being seldom time for even a perusal of the pieces by any but the writer before they were wanted at the press and sometimes hardly by the writer himself.” In the “Detached Memoranda,” Madison wrote that although at the outset he and Hamilton had sent their essays to each other before they went to press, they soon abandoned this because of the “shortness of time” and also because “it was found most agreeable to each, not to give a positive sanction to all the doctrines and sentiments of the other, there being a known difference in the general complexion of their political theories” (Rakove, James Madison: Writings, 769). Cf. Lance Banning, “The Hamiltonian Madison: A Reconsideration,” Virginia Magazine of History and Biography 92 (1984), 3–28. See Banning, Sacred Fire of Liberty, 171, 191.

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government and the extent to which the people are capable of governing themselves. Hamilton did not think Madison’s solution of the extended republic and representation went far enough to prevent the problem of majority tyranny. Madison thought Hamilton’s measures substituted private interest for public good and undermined the sovereign authority of public opinion. Interestingly, scholars have generally attributed the vision of a modern commercial republic composed of diverse and rival economic interests actuated by the untutored passion of acquisitiveness to James Madison. But this was not, nor ever had been, Madison’s vision of republicanism. It is closer to Hamilton’s.50 In fact, Hamilton fits better the description that has traditionally been reserved for Madison, while Madison was a more unhesitating democrat than is generally believed. Hamilton is the chief American theorist of the modern commercial republic, Madison the philosophic architect of the politics of public participation and republican self-government in America. 50

For example, Martin Diamond attributes to Madison the theory that a large republic supplies the remedy for faction only if it is also a commercial republic (“Ethics and Politics: The American Way” in Robert H. Horwitz, ed., The Moral Foundations of the American Republic, 3rd ed. [Charlottesville: University Press of Virginia, 1986], 54–55; “The Federalist,” in Leo Strauss and Joseph Cropsey, eds., History of Political Philosophy [Chicago: Rand McNally, 1972], 648). However, I would argue that Diamond’s presentation of the commercial republic theory is actually a much more apt interpretation of Hamilton’s political and economic thought. According to Diamond’s interpretation, Madison’s scheme replaces the historical battle between the haves and have-nots with a new factional struggle based on the diversity of economic interests. This required magnifying the operation of interest (and taming or devitalizing passion and opinion) so that citizens would divide themselves on the basis of narrow and particularized economic interests, thereby allowing the society to evade the fatal kind of factionalism caused by opinion and class interest in the past. Rejecting any attempt to refine and improve the citizens’ opinions of the advantageous and just, Madison instead accepted as “irredeemably dominant” the self-interested passions sown in human nature. In light of this, he sought to channel the powerful passions and interests of the society by way of shrewd institutional arrangements rather than engage in the futile attempt to form the character of the citizenry. While the theory of the commercial republic presented by Diamond and attributed to Madison actually describes much of Hamilton’s thought, it does not aptly characterize Hamilton’s vision in one important respect. Hamilton’s theory of the commercial republic did not merely rest on a multiplicity of rival interests to produce the common good, nor did it advance the notion of a multiplicity of factions. At the New York Ratifying Convention, Hamilton proclaimed that the objective was “to abolish factions, and to unite all parties for the general welfare” (“New York Ratifying Convention: First Speech of June 25 [Francis Child’s version],” PAH V:85). Like Necker, Hamilton sought to achieve public confidence and unity of national sentiment via the effects of a good administration. Cf. Gibson, “The Commercial Republic & the Pluralist Critique of Marxism”; Banning, Sacred Fire of Liberty, 261, 62–63, 368, 471, n. 66; Charles R. Kesler, “Federalist 10 and American Republicanism,” in Saving the Revolution: The Federalist Papers and the American Founding (New York: Free Press, 1987), 14–18.

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Madison did not differ with Hamilton, Adams, Ames, Sedgwick, or any of the other Federalists about the need to filter the interests, passions, and opinions of the citizens or about the need to achieve a reasonable, impartial, and durable will in government, but he very much disagreed with them about who or what legitimately gives voice to this will and whether the process involves modifying the actual views of the citizens. Hamilton and Adams attempted to solve the problems of the predominance of partial interests, the contagion of passion, and the danger of demagoguery in the legislature by establishing a system of institutional counterbalances within government. Hamilton added to this the beneficial effects of a diversified, commercial, and industrial nation. The Federalists sought to achieve a reasonable and permanent will via an independent and energetic executive whose administration would advance the interest of the nation and inspire in the people an opinion of confidence and a habit of obedience. By contrast, Madison’s solution was to call the representatives to stand before the bar of public opinion. He sought to establish an equilibrium of passions and interests in the society in order to reduce the likelihood of majority faction, as well as to shape an environment conducive to the formation of a public will tempered and modified by the commerce of ideas. Hamilton relied on the people to pursue their own material advantage and to support a government that benefits them economically. Neither he nor Adams saw wisdom in encouraging political hyperactivity among the citizenry, which only invites demagoguery and civil unrest, as the French example too perfectly illustrated. For Madison, the citizens’ political duties were substantial and ongoing. They did not end at choosing the better sorts of men to represent them; their guardianship over public affairs was not an intermittent responsibility. Both the Federalists and Madison relied significantly on an educated elite to accomplish their ends. However, in the one case, it was a type of statesmanship that sought to inspire in the citizenry respect for and confidence in the government more than it sought to teach them their rights and responsibilities. In the other case, it was a kind of civic leadership that aspired to cultivate civic understanding, refine mores and manners, and educate the people for their indispensable role in a free and self-governing republic.

6 Madison and Jefferson An Appeal to the People

On March 28, 1797, James and Dolley Madison began the journey from the United States capital at Philadelphia to the Madison family home at Montpelier, Virginia. Three and a half weeks earlier, on March 4, Thomas Jefferson had taken the oath of office for vice president of the United States. Though Jefferson originally contemplated not traveling from Monticello to Philadelphia for the inauguration ceremonies, perhaps because he thought the office as “insignificant” as Adams had, he ultimately decided to make the trip out of respect for the public, as well as to dismiss reports that he considered the second station beneath him. Jefferson and Madison were now trading places. Madison had remained on the scene of national politics and at the helm of the Republican Party throughout the Washington administration, while Jefferson had resigned his post as secretary of state in the second term and resettled in Virginia. Now it was Madison’s turn to return home. Finally, he could devote his attentions to the woman he adored, his wife of only three years. Adding color and vivacity to his life, Dolley Payne Todd Madison had changed her husband from a reticent bachelor to a man at ease with domestic life. Gone were the late nights poring over ancient musty texts in a rented room more than 200 miles from home. Gone was a life dedicated almost exclusively to philosophy and politics. Despite his elevation to the second highest office in the nation, Jefferson too expected extensive periods of domestic quiet. Since the vice presidency would require only nominal duties, he thought he would likely spend most of his time “above the storms” at Monticello.1 Jefferson’s anticipation of a calm and easy tenure of office had much to do with his confidence in John 1

Compare Jefferson to Adams of December 28, 1796, in PTJ 29:235, in which he describes politics as “riding in the storm,” and Jefferson to Maria Cosway, of October 12, 1786, in

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Adams’s ability to lead the nation in the right direction. In general, he still associated Adams with the spirit of ’76 and anticipated good working relations with his old revolutionary friend and ally. He was, admittedly, anxious about the monarchical influence in America, and particularly about the Federalists’ attachment to Great Britain and animosity toward France, but he believed that the new president would be able to avoid war with France and restore “general harmony” to the nation. With Adams, he hoped the American vessel would be put back on its republican tack and the nation would return to the path of “regular liberty, order, and a sacrosanct adherence to the Constitution.”2 In early 1797, Jefferson even began strategizing Republican support to give Adams another presidential election victory in 1800. If Adams could be induced “to administer the government on it’s [sic] true principles, & to relinquish his bias to an English constitution,” he wrote Madison, it might be in the public interest “to come to a good understanding with him as to his future elections.” This might be the only sure way to prevent “Hamilton’s getting in.”3 The very first thing Jefferson did when he arrived at the nation’s capital was to call upon Adams. Adams returned the visit the following day, March 3. Their discussion centered on America’s relations with France and the choice of ministers to send there. In addition to Charles Cotesworth Pinckney and Elbridge Gerry, Adams wanted Madison for the special mission. Jefferson doubted Madison would accept, but out of politeness to Adams agreed to broach the subject with him. At a dinner party hosted by former President Washington, Adams and Jefferson met again a few days later. At the close of festivities, they took their leave together and Jefferson

2 3

PTJ 10:447, in which Monticello is Jefferson’s edenic retreat, situated high on a hilltop and “above the storms.” Jefferson to James Sullivan, February 9, 1797, PTJ 29:290. Jefferson to James Madison, January 1, 1797, PJM 16:440. In this letter Jefferson enclosed a letter he had written to John Adams of December 28, 1796, but had not yet sent. It contained a warning about machinations to “cheat” Adams out of his succession by his “arch-friend of New York,” i.e., Hamilton. He requested Madison to have it delivered to Adams or to return it to him if for any reason he thought it should not be sent. In his reply of January 15, 1797, Madison offered a number of reasons why the letter ought not be delivered, including that, given Adams’s “ticklish” temperament, he might misconstrue Jefferson’s intent and the probability that the course of the Adams administration would “force an opposition from the Republican quarter” (PJM 16:455–57). According to Nicholas P. Trist, a prot´eg´e of Madison (and who, incidentally, studied law under Jefferson and married his granddaughter Virginia Jefferson Randolph), he and Madison together read Jefferson’s letter of January 1, 1797, when he was visiting Montpelier in December 1827. When they came to the end of the first paragraph, in which Jefferson talked about supporting Adams’s reelection to the presidency as a “barrier against Hamilton’s getting in,” Madison “stopt, shook his head, and said ’Hamilton never could have got in’” (PJM 16:441, n. 3).

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spoke of Madison’s unwillingness to go to France. In embarrassment, Adams responded that certain objections had been raised to Madison’s nomination for the mission. According to both the president and vice president, this event, only a few days into the new administration, marked the beginning of a breach between them and foreshadowed the resumption of partisan wrangling in the late 1790s. At this juncture, Jefferson remained in Philadelphia for only ten days. When he returned to the capital on May 11, 1797, for a special session of Congress, the relative general goodwill of the past March had been disrupted. Before he left Monticello, an alleged copy of a letter he had written to Philip Mazzei more than a year prior appeared in the Minerva, Noah Webster’s New York paper. The copy, though inexact, had a partisan tone and reawakened the enmity many Federalists felt toward Jefferson and his republican ideas. In the spring of 1797, Jefferson acknowledged an “uneasiness” in his relationship with President Adams that, he suspected, resulted from the machinations of the monarchical faction led by Hamilton. The president’s address to Congress on May 16, which Jefferson interpreted as increasing the possibility of war with France, deflated his former confidence in Adams. He concluded, probably unfairly, that Adams had changed his stance and was now encamped with the “ultras.” According to Dumas Malone, if Jefferson “had not already turned decisively against Adams he now did so.”4 At any rate, by the summer of 1797, a rift between the two was unmistakably evident. Historian John Murray Allison describes their relationship at this time thus: The younger man now looked upon the older one as so much under the influence of chauvinists and warmongers as to render most improbable any lengthy extension of peace with honor. The older man, if he still believed in Jefferson’s integrity, now thought of him more than ever as one whose talents were spurred and directed by a relentless and potentially dangerous ambition.5

Neither man was immune to gossip, whether on the giving or the receiving end, and surely the propensity of the younger to speak openly in “private” communications and the tendency of the elder to feel acutely the sting of wounded pride had something to do with the rupture of 1797. Just as certainly, the mounting effects of party politics lent to the deterioration of trust and the rise of suspicion between them. 4 5

Dumas Malone, Jefferson and the Ordeal of Liberty (Boston: Little, Brown, 1962), 316. John Murray Allison, Adams and Jefferson (Norman: University of Oklahoma Press, 1966), 178.

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With Madison now gone from Philadelphia, the burden of Republican leadership fell on Jefferson. In the early 1790s, after his return from France, Jefferson became the symbolic leader of the Republican Party, but it was Madison who led the philosophic and political cause.6 In the summer of 1797 Jefferson assumed leadership of the Republicans, and from this point on the party gradually took on a somewhat different tone and a more active partisan mission. Throughout the remainder of the Adams administration, Jefferson directed events much like a conductor leads an orchestra. Situated at center stage, his position as vice president afforded him a better view of the position and needs of the party than was available to any other Republican. He saw his job as organizing and preparing the ensemble for its future performance; if he had done his work properly, his task on concert night would be for the most part pro forma. Jefferson’s style was to allow a great deal of autonomy to the various Republican forces throughout the nation, though he provided a general directive influence that would be evident only at a later date when all the parts came together to produce a successful performance. On the eve of the election of 1800, he could be seen standing before his party, baton in hand, directing the finale and anxiously awaiting the public’s reaction to the republican concert he had orchestrated. In contrast to Madison’s leadership of the Republican Party, Jefferson’s style was more indirect and, at the same time, more politically savvy. Madison had spent much of his time in the early 1790s in careful study and preparation, on which he relied to deliver well-honed speeches on the floor of the House of Representatives and to pen terse but powerful opinion tracts for the newspapers. His victories frequently resulted from the respect that others naturally gave to the best researched and most reasoned argument. Jefferson, by contrast, tended to study in fits and starts, often losing concentration partway through the task at hand. While Madison occasionally met socially with colleagues to hammer out political bargains, Jefferson was the master of the political dinner party and tended to operate almost exclusively behind the scenes. Jefferson’s work offstage, as it were, was executed with the panache of someone born for backroom politics. His strong suit was people. He had one of those personalities that engages others and draws them in with a magnetic allure. He was at once polished and natural, urbane yet casual, captivating others at the same time that he put them perfectly at their ease. I do not think his charm was manufactured; he was a good listener and 6

See Noble E. Cunningham’s excellent study on the origins of the Republican Party in The Jeffersonian Republicans: The Formation of Party Organization, 1789–1800 (Chapel Hill: University of North Carolina Press, 1957).

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naturally genial and sociable, finding pleasure in company and amusement in the ways of the world, which goes a long way toward explaining why he and Franklin – though not Adams – were such hits on the Parisian circuit. Given his desire for amiability and dislike of personal discord, though, he was not always frank with others. As second in command to Adams, Jefferson vowed that he had no intention of using his official position to influence executive decisions, and in this he was as good as his word. In his official capacity he had little to do but to preside over the forms of the Senate with impartiality. This suited Jefferson just fine. He also understood the first of his official duties to be the preservation of the Constitution that secured the union of the states. This left him free to criticize the administration and, if need be, to guide and mobilize opposition to it – in an even more energetic way than he might have done while in the appointed position of secretary of state. Given the independent election of the first and second offices of the executive in the 1790s, that is, prior to the establishment of the party system in America and the ratification of the Twelfth Amendment, Jefferson believed he was at liberty to use his position to influence the nation at large and to lead the public in any way not inconsistent with the Constitution. Jefferson’s actions from 1797 to 1800 were essentially those of an opposition leader. Such a use of the vice presidency had not before been seen, nor has it occurred since in American politics. In 1796 Fisher Ames predicted Jefferson’s performance in the office: In a Senate that will bring him into no scrapes, as he will have no casting votes to give, responsible for no measures, acting in none that are public, he may go on affecting zeal for the people; combining the antis, and standing at their head, he will balance the power of the chief magistrate by his own. Two Presidents, like two suns in the meridian, would meet and jostle for four years, and then Vice would be first.7

Ames’s prophecy of “Two Presidents” during the Adams administration was uncannily close to the mark. Prior to Jefferson’s return to political life, the disagreement between Federalists and Republicans had become increasingly acute as a result of the fight over the Jay Treaty, though this conflict was largely confined to the halls of Congress. The Republican “Party” was not a systematic and orderly structure, but rather a loose arrangement distinguished by its general opposition to policies of the Federalist administration. The arrangement essentially 7

Fisher Ames to Christopher Gore, December 17, 1796, in William B. Allen, ed., Works of Fisher Ames, as Published by Seth Ames, 2 vols. (Indianapolis: Liberty Classics, 1983), 2:1208.

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consisted of a small group of men, with Madison and Albert Gallatin in the House of Representatives forming the center, joined by a few key figures from other states. They were supported by a handful of partisan newspapers and, to a degree, by local political clubs (or “democratic-republican societies”), which Washington and other Federalists associated with the Republicans. There was as yet no mechanism for the nomination of candidates for office; “candidates” were chosen through informal agreements of key local leaders, though in the strict sense candidacy was not avowed.8 In 1797, with Madison now absent from the seat of government, Albert Gallatin assumed the Republican leadership in the House of Representatives. Given Gallatin and Jefferson’s alliance in principle and policy, there was little the latter needed to do to direct the able Republican congressman. Instead, Jefferson spent much of his time during these years energetically pursuing the self-appointed task of Republican reporter to prominent men of the Republican persuasion throughout the country, including, of course, James Madison. Often he returned from Congress and hastily recorded the latest political events to his correspondents, thereby providing them with the most updated information that could be gained through an infrequent post. In his letters sent round the country, Jefferson clearly sought to influence moderates he considered hopeful allies and to reassure solid Republican affiliates. He was training his forces and building a national coalition. If any one event can be said to mark the beginning of the transition from the Madisonian to the Jeffersonian Republican Party and to a new organizational emphasis, it was the letter Jefferson sent Aaron Burr in June 1797.9 Though an alliance with Burr had previously been initiated, it was not strong and may in fact have ceased. Jefferson recognized the importance of Burr and New York if the Republican Party was to succeed in the nation as a whole. He called upon Burr to help restore the equilibrium that had been disrupted by executive encroachments and to take part in reviving the “spirit of 1776.” Burr responded by setting up a meeting with Jefferson, 8 9

Malone, Jefferson and the Ordeal of Liberty, 273. Stanley Elkins and Eric McKitrick claim that in the 1790s Madison and Jefferson intended to establish a two-party system in the United States (The Age of Federalism: The Early Republic, 1788–1800 [New York: Oxford University Press, 1993], 296). James Roger Sharp argues that the Federalists and Republicans were in fact “proto-parties,” each of which aimed to vanquish the other (American Politics in the Early Republic: The New Nation in Crisis [New Haven, Conn.: Yale University Press, 1993], 7–9). Sharp’s view more accurately describes the way in which Madison, Jefferson, and Hamilton conceived of their respective party’s mission during this era. Nonetheless, during his vice presidency, Jefferson built a party apparatus and used it to win the election of 1800, setting the pattern for party politics in America from then on.

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Monroe, and Gallatin in Philadelphia within a week’s time. Except for the absence of Madison, “the inner Republican circle had been re-formed.”10 Jefferson, however, became the galvanizing center of this circle in a way that the unassuming Madison had never been. The period from 1797 until the last year of the Adams administration was beset by the break in Franco-American relations, the XYZ affair, the passage of the Alien and Sedition Acts, and the publication of the Kentucky and Virginia Resolutions. During these years the Federalist Party attained and held the dominant position in government. In Jefferson’s view, the dominance of the Federalists was unnatural, for they were not representative of the opinions of the majority of American citizens. Writing to John Taylor in June 1798, he counseled “patience till luck turns.” Rule by the minority party is only temporary; the people will in time recover from the spell cast by the Federalists, and the true principles of government will be restored.11 “This is a game,” Jefferson declared, “where principles are at stake.” With the passage of the Alien and Sedition Acts Jefferson’s patience had run out. Both his official and private civic duties required him to oppose such gross violations of the Constitution vigorously, yet he considered open protest by the vice president inexpedient. As in the Cabell incident of 1797,12 Jefferson’s chosen mode of opposition was via the state legislatures. He drafted the Kentucky Resolutions, and he called upon Madison to pick up his pen once again in service of the rights and liberties of the American people. In response, Madison drafted the Virginia Resolutions. The Kentucky Resolutions, however, went far beyond the vocal criticism and dissent expressed in the Virginia Resolutions. Jefferson’s resolutions boldly proclaimed the Alien and Seditions Acts “unauthoritative, void, and of no force.” His reasoning was: [T]o this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party[;] . . . as in all other cases of compact among 10 11 12

Malone, Jefferson and the Ordeal of Liberty, 324. Jefferson to John Taylor, June 4, 1798, PTJ 30:389. In the spring of 1797 Samuel Jordan Cabell, a Republican representative from Virginia who had publicly and vehemently attacked the Adams administration, was “presented” by the grand jury of the federal circuit court of Richmond for endeavoring to disseminate ungrounded calumnies against the federal government during a time of public danger. In response, Jefferson submitted a petition to the Virginia state legislature condemning the presentment and requesting legislative redress. The House of Delegates passed a resolution declaring the presentment “a violation of the fundamental principles of representation . . . an usurpation of power . . . and a subjection of a natural right of speaking and writing freely.” See Adrienne Koch, Jefferson and Madison: The Great Collaboration (New York: Oxford University Press, 1964), 182–84.

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powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.13

The Kentucky Resolutions assured the other states that Kentucky remained sincerely anxious for the preservation of the union of the states, but that it would not submit to the exercise of undelegated and unlimited power by the national government. Since the members of the national government are chosen by the people, “a change by the people would be the constitutional remedy,” Jefferson wrote. But when unauthorized powers are assumed, “a nullification of the act is the rightful remedy,” for “every State has a natural right in cases not within the compact.” Nonetheless, out of respect for the other states, Kentucky wished to communicate with the other parties to the compact, who were “solely authorized to judge in the last resort of the powers exercised under it.” Rebuking the Federalist mantra of the need for public confidence in government, Jefferson proclaimed, “free government is founded in jealousy, and not in confidence.” It is jealousy, not confidence, that sets constitutional limitations on the exercise of power. In the United States, the Constitution has prescribed “the limits to which, and no further, our confidence may go.” The intensity of Jefferson’s reaction to the Sedition Act was due to at least three factors. First, he was committed to states’ rights and loathed what he viewed as the unconstitutional usurpation of power by the national government. Second, the Sedition Act’s negation of the fundamental right of free speech – the bedrock of a free republic – left him in a political panic. Third, Jefferson had in mind the long-term detrimental effects the act would have in respect to the improvement of the human mind and the progress of the human condition. “What is once acquired of real knowle[d]ge can never be lost,” Jefferson wrote to his friend William G. Munford in 1799. “To preserve the freedom of the human mind then & freedom of the press, every spirit should be ready to devote itself to martyrdom; for as long as we may think as we will, & speak as we think, the condition of man will proceed in improvement.”14 13

14

“Resolution Adopted by the Kentucky General Assembly,” November 10, 1798, PTJ 30:550. Cf. “Jefferson’s Draft of the Kentucky Resolutions of 1798” [before October 4, 1798], PTJ 30:536; “Jefferson’s Fair Copy of the Kentucky Resolutions of 1798” [before October 4, 1798], PTJ 30:544. Jefferson to William G. Munford, June 18, 1799, PTJ 31:126–30. Cf. Koch, Jefferson and Madison, 180–81. According to Koch, Jefferson viewed the Sedition Act as a “denial of one of the philosophic principles he held most sacred. Knowledge and freedom of inquiry – the submission of man-made truths to man-made confirmations or disproofs – were valued by him not only as a means but also as a noble human end.” For Jefferson, these beliefs were connected with a “faith in scientific methods of establishing hypotheses and in supporting

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In the Virginia Resolutions, Madison deliberately refrained from declaring acts of the national government null and void. Nonetheless, the Virginia Resolutions do represent the radical boundary of Madison’s constitutional thought, manifesting an anxiety for free government that could, if pushed too far, result in a declaration of the right of revolution. By August of the next year desperation had enveloped Jefferson, who made explicit a threat of disunion; in response, the arguments in Madison’s Virginia Report of 1800 were very carefully set forth, making crystal clear a sincere attachment to and cultivation of the union of the American states.15 Whatever alarm for republicanism Madison may have felt two years prior, he was not buying into Jefferson’s heightened panic or menacing tone, nor did he endorse Jefferson’s arguments. Neither the Virginia Resolutions nor the Virginia Report claim sovereign authority for a state or the states, the anachronistic account that attributes a Calhounian view of states’ rights to Madison notwithstanding.16 That the people had, by their sovereign authority, established a partition between the national and state governments was sufficient to insist on respect for the constitutional limitations on power. But Madison had an additional reason to stress the importance of the federal character of the American republic: he considered the state (or “local”) governments essential to the collection and articulation of the public voice. Without a due degree of power at the state level of government, the extent of the territory would make it impossible for the people to communicate effectively and convey a united voice by which to control government. Conversely, “the most arbitrary government is controuled where the public opinion is fixed.”17 As Madison had written in The Federalist, in cases of unconstitutional

15 16

17

them by firm clusters of ‘facts.’” Cf. T. V. Smith, “Thomas Jefferson and the Perfectibility of Mankind,” Ethics 53:4 (1943), 293–310. Koch, Jefferson and Madison, 194–211. Adrienne Koch and Harry Ammon, “Virginia and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties,” William and Mary Quarterly 5:2 (1948), 145–76; cf. PJM 17:247. For a different perspective on the controversy, see John Patrick Diggins, John Adams (New York: Henry Holt, 2002), 110–19. Diggins claims that Madison’s and Jefferson’s opposition to the Sedition Act stemmed less from the concern for freedom of speech and the press and more from a defense of states’ rights. He agrees with David McCullough – and with Adams himself – that the Alien and Sedition Acts should be seen as “war measures” in a time “of fear and insecurity.” Moreover, Diggins argues, the entire episode can be viewed as “an embarrassment to Madison,” who had taken “the exact opposite position” in 1787. Jefferson too flip-flopped on the sovereignty issue, originally a vehement defender of it, but as president more than willing to execute the Louisiana Purchase and impose the embargo. “But in the heated controversies surrounding the Adams administration, theoretical consistency succumbs to party politics without so much as a blush.” PJM 14:192.

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usurpation by the central government, the state legislatures may “sound the alarm to the people, and . . . exert their local influence in effecting a change of federal representatives,” thereby “annul[ling] the acts of the usurpers.”18 Madison applied the theory of the importance of the states in marshaling public opinion to practice in his battle to overturn the Alien and Sedition Acts. Both the Alien Act and the Sedition Act, he declared, constitute clear violations of the United States Constitution; in the one case the national government assumed a power not granted by the Constitution, and in the other it exercised a power expressly forbidden by the First Amendment. What is particularly interesting in his discussion of the Sedition Act is that over and above his charge of unconstitutionality – which he believed must decide the matter – he also provided an explanation of the reasoning that informs the American Constitution in this matter. In free governments, he argued, “it is the duty as well as right of intelligent and faithful citizens, to discuss and promulgate [the proceeding of government] freely, as well to control them by the censorship of the public opinion, as to promote a remedy according to the rules of the constitution.”19 In a large republic in which the central government possesses extensive powers and where the great body of the people is far removed from the seat of government, the state governments serve as “intermediate” bodies. The purpose of the Virginia Resolutions, he explained, was to utilize the states as vehicles to excite public reflection and mobilize public opinion.20 Furthermore, the difficulty of circulating knowledge about governmental proceedings throughout the large nation and of maintaining responsibility to the people by public officials requires a particularly high degree of liberty of the press.21 He believed the Federalists’ measure restricting freedom of the press was based on a different and nonrepublican political model, yet another manifestation of their proclivity to imitate the British. Driven by a desire to “extend the ground of public confidence,” the Federalists would place a censorial power in the government over the people.22 Madison’s concern was that the government demonstrate responsibility to the people; in “republican government . . . the censorial power is in the people over the government, and not in the government over the people.”23 A free press “alone can give efficacy to [the 18 19 20 21 22 23

Federalist 44:254; cf. Federalist 46:266. PJM 17:342. PJM 17:348. PJM 17:341. PJM 17:346. PJM 15:391; cf. 11:163; James H. Read, Power versus Liberty: Madison, Hamilton, Wilson, and Jefferson (Charlottesville: University Press of Virginia, 2000), 69–70.

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national government’s] responsibility to its constituents,” he wrote. It is the means for freely examining public characters and public measures, and for the free communication of opinions, that is “the only effectual guardian of every other right” in a free society.24 Both the Kentucky and Virginia Resolutions represent attempts to remedy the problem of usurped constitutional power via an extraconstitutional appeal to the people of the several states, though the Kentucky Resolutions were fitted with a hair trigger that Jefferson came dangerously close to releasing. Invoking the right of the citizens of a particular state to declare an act of the general government null, void, and of no force, Jefferson set forth a constitutional doctrine that could undermine the republican union Madison had worked for over a decade to explicate and cement. Jefferson’s doctrine must have been as much of a political nightmare for Madison as Hamilton’s and Adams’s antirepublicanism. Like Jefferson, Madison was an adherent of the right of revolution, and in fact the reader of the Virginia Resolutions can sense just how much he was struggling to find a constitutional ground short of revolutionary politics. Still, he did not invoke the right of revolution or in any way imply that the people of a single state retained any sovereign standing inherent in the theory of constitutional government. In later years, when the idea of perpetual union was under attack from John C. Calhoun, he explained in no uncertain terms what he did not say quite as candidly when Jefferson was living, at least not in any extant letters or memoranda of private conversation.25 There is no reversion to the parties of the compact to decide constitutional questions, he declared; there is only the constitutional processes or, barring the success of these processes, the right of revolution. Once ratified, the Constitution represents the supreme authority of the sovereign people; whether that be the people of the nation or the several states, it does not matter, since both are a legitimate authority in accord with the republican principle of consent of the governed. The subject of an appeal to the people to remedy usurpations of constitutional power or to make effectual the ongoing sovereignty of the people was hardly a new subject of discussion or concern for Jefferson and Madison in 1798–99. It had occupied Jefferson’s attention in the Notes on the State of Virginia and in the draft constitution for Virginia, which he appended to 24

25

PJM 17:189–90, 345. Cf. Robert W. T. Martin, The Free and Open Press: The Founding of American Democratic Press Liberty, 1640–1800 (New York: New York University Press, 2001). See Madison, “Notes on Nullification,” 1835–36, in Marvin Meyers, The Mind of the Founder: Sources of Political Thought of James Madison (Hanover, N.H.: Brandeis University Press, 1981), 418–42.

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the Notes and which had attracted Madison’s attention at least since 1788 (and probably before), when he responded to Jefferson’s draft constitution in Federalist 49. A convention to rewrite a new constitution is necessary to correct the defects of the present one, Jefferson argued in the Notes. It should include laws that “bind up the several branches of government,” which, when overstepped, “become nullities,” thereby rendering “unnecessary an appeal to the people.”26 By an “appeal to the people” in Query 13 of the Notes, Jefferson explicitly stated that he meant a “rebellion.” His primary concerns were that the current state constitution was not authorized by delegates chosen by the people to represent them in their sovereign capacity and that it lacked sufficient barriers among the several departments of government, leaving the legislature, on which the executive and judicial branches were dependent, with a clear path to assume unlimited power. “Must the people rise in rebellion,” he asked, “on every unauthoritative exercise of power by the legislature?” – “[O]r their silence be construed into a surrender of that power to them?” No, he answered, in republican government there is no presumption of any intention to surrender the people’s rights on every infraction of those rights.27 In his 1783 Draught Constitution for Virginia, Jefferson proposed not only constitutional barriers among the departments of power, but also that a convention should be called whenever two-thirds of any two of the three branches deemed it necessary to alter the Constitution or correct breaches of it. This provision represented the attempt to avoid extraconstitutional appeals to the right of revolution by setting in place a regular method to correct usurpations of power. It was aimed particularly at the legislature, whose predominant authority in republican government would be controlled by the extraordinary authority of the people’s delegates assembled in convention. Six years later, Jefferson mentioned to Madison that in the draft constitution he “had once a thought of proposing,” he had “endeavored to reach all the great objects of public liberty.” He also admitted that the plan was probably “imperfectly executed.”28 He had not intended to include in it a bill of rights, he said, but this deficiency would have been corrected by other provisions. At the federal level under the new Constitution, a bill of rights is indispensable for limiting the acts of the general government, and especially for controlling the formidable power of the legislative branch, “the principal object of my jealousy.” 26 27 28

Notes on Virginia, Query 13, WTJ 2:178. Ibid., WTJ 2:171. Jefferson to Madison, March 15, 1789, PJM 12:14.

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A few months later, in September 1789, Jefferson took up a related issue in his correspondence with Madison. Written during his tenure as minister to France and influenced by his experiences there, this letter has since become one of his more famous scribblings, generally referred to as the “Earth Belongs to the Living” letter. Madison did not read this letter right away. In fact, he did not read it for almost five months, because Jefferson kept it, rewrote it, and only finally sent it early the next year, after he had returned to the United States. The uncommon hesitation on Jefferson’s part resulted, I believe, from two concerns. One was the fundamental importance of the topic to the politics of self-government, and the other was Jefferson’s awareness of the keenness of Madison’s mind. Jefferson wanted to get the logic right. He anticipated that his thoughtful and philosophically careful friend might not be fully persuaded of the generational theory of sovereignty he was proposing. He was right. In this celebrated letter Jefferson argued that “the earth belongs always to the living generation.” He applied this idea to property rights, public debts, laws, and constitutions. The dead have no right to bind the living generation, he argued, nor can the living burden posterity with the public debt they incur. Moreover, each generation has the right to make its own constitution and laws, an idea that Condorcet also incorporated into his political theory.29 Jefferson grounded his reasoning in higher law principles, arguing that the living majority is morally answerable not to past generations, but only to the laws of nature and of nature’s God. He intended this theory to have a practical result: the establishment of the actual and ongoing sovereignty of the people. Calculating a new generation to emerge about every nineteen years, Jefferson argued that every constitution and every law would naturally expire at the end of each generational period. If “the will of the majority could always be obtained fairly & without impediment,” he claimed, this would not be necessary. But even with the various checks on government, the people’s representatives in the legislative councils are too often influenced by personal interest, bribery, and factious views. The power of repeal is not 29

Whether the theory of generational sovereignty was originally Jefferson’s brainchild or he learned it from either Richard Gem or Condorcet is a matter of some dispute. Iain McLean, for example, argues that Jefferson derived “both its formulae and its modes of reasoning from Condorcet, not (as the editors of the Jefferson Papers believed – Boyd et al 1950 –, 15: 390ff) [from] Richard Gem” (“Thomas Jefferson, John Adams, and the D´eclaration des Droits de l’Homme et du Citoyen,” in Robert Fatton, Jr., and R. K. Ramazani, eds., The Future of Liberal Democracy: Thomas Jefferson and the Contemporary World [New York: Palgrave Macmillan, 2004], 17). See also Iain McLean and A. B. Urken, “Did Jefferson or Madison Understand Condorcet’s Theory of Social Choice?” Public Choice 73:4 (1992), 445–57.

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a sufficient equivalent, he contended, for every act of government and every constitution that binds the will of the living to the decrees of the dead is an act of force and not of right. Whereas in the draft constitution of 1783 Jefferson presented the case for ad hoc constitutional conventions to correct unlawful assumptions of power by governmental officials, in 1789 he presented the more radical call for the periodic dissolution of constitutional charters, and presumably the periodic reconstitution of new governments via convention. Madison’s criticisms of Jefferson’s proposals are contained in Federalist 49 and in his February 4, 1790, response to his friend’s letter. In the Federalist essay Madison began by praising his friend’s “original, comprehensive, and accurate” turn of thinking and his “fervent attachment to republican government and . . . enlightened view of the dangerous propensities against which it ought to be guarded.”30 In essence, Madison argued, the dangers Jefferson feared are correct, but the specific provision he proposed to remedy them is defective. Madison disagreed with Jefferson’s advocacy of frequent appeals to the people through constitutional conventions for a number of reasons, including his belief in the impracticality of the idea of generational conventions, the danger of interregnum, the loss of veneration for government, and the encouragement of factions that would result from frequent conventions. In sum, the ad hoc appeals Jefferson proposed would simply not provide the remedy Jefferson sought, and they would create vast new problems of their own. Interestingly, in Federalist 49 Madison’s use of the phrase “an appeal to the people” is synonymous with constitutional conventions. But it also reminds the reader of the identical wording used by Jefferson not in the draught constitution but in the main text of Notes on the State of Virginia. As we have seen, in the Notes Jefferson does not mean by “an appeal to the people” a constitutional remedy to governmental usurpation but rather “a rebellion.” Madison’s choice of words in The Federalist indicates the propinquity of constitutional conventions and revolutions. Constitutional conventions cannot be limited to specific objects of alteration because, according to the argument of Federalist 40, “in all great changes of established governments, forms ought to give way to substance.” Publius’s argument is this: [A] rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness. . . . ”31 30 31

Federalist 49:281. Federalist 40:220–21.

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In theory, Madison believed, constitutional conventions cannot be limited in their objects; they are tantamount to refoundings, the most extraordinary and perilous of all lawful political acts. In practice they are often irregular events that, like rebellion or revolution, shake the foundations of a nation. Such experiments are consequently “of too ticklish a nature to be unnecessarily multiplied” and should be reserved for “great and extraordinary occasions.” The charge of keeping the various departments of government within their constitutional boundaries – the subject of Federalist essays 49 and 50 – ought generally to be treated as a routine rather than an extraordinary political task. In Federalist 50 Madison made the case against periodic submission of the Constitution to the people’s delegates assembled in convention for the purpose of correcting abuses of governmental power. In his 1790 reply to Jefferson’s letter regarding generational sovereignty, he argued against periodic constitutional expiration and refounding. As he had in Federalist 49, in this letter he tactfully but soundly criticized Jefferson’s failure to temper theoretic reasoning with the lessons of experience. If carried to its logical conclusion, Madison said, the theory of a new convention every nineteen years would result in a continuous constitutional convention. Moreover, “the improvements made by the dead form a debt against the living,” who derive benefit from them. Nonetheless, he claimed, he did not mean “to impeach either the utility of the principle in some particular cases; or the general importance of it in the eye of the philosophical Legislator.” The principle should be “always kept in view as a salutary restraint on living generations from unjust and unnecessary burdens on their successors.”32 Madison was not simply flattering his older and more distinguished colleague. In 1792, for example, he applied this principle to the idea of national debt in his Party Press Essay “Universal Peace.” Still, this was a “particular case,” and as we shall discuss, Madison’s criticisms constituted a civil but certain warning against the spirit of philosophic speculation. The diverse perspectives of Madison and Jefferson on generational sovereignty and the calling of constitutional conventions to correct governmental abuses or revert to first principles have often been cited by scholars as evidence of the temperamental differences between the two men, with Jefferson the more impetuous and Madison the decidedly more cautious and careful thinker. For many scholars, these issues also reveal a fundamental philosophic disagreement between the two friends, with Jefferson’s faith in the common man juxtaposed against Madison’s less democratic – perhaps 32

Madison to Jefferson, February 4, 1790, PJM 13:21.

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undemocratic – mind and temperament, at least in the 1780s and prior to Jefferson’s return from France and alleged influence over him.33 The case for Jefferson’s optimism in the capacity of the people for self-government and Madison’s lack of democratic faith can be summarized as follows: Jefferson favored frequent appeals to the people; Madison staunchly opposed such appeals, except in the most extraordinary circumstances. Jefferson wanted government to obey the will of the majority; Madison wanted the people to venerate the government. Jefferson believed the people were capable of enlightened reasoning and was sanguine about their ability to control government and govern themselves; Madison relied on institutional arrangements to control government and believed that to expect enlightened reason from the people was folly. Instead, he argued, “the most rational government” will seek to enlist the people’s “prejudices . . . on its side.”34 This interpretation neglects Madison’s explicit expression of agreement with the philosophic principles Jefferson set forth. In the draught constitution for Virginia and the “Earth Belongs to the Living” letter, the central idea upon which Jefferson grounded his arguments was that the fundamental and ongoing sovereign authority in the American republic remains always with 33

34

According to Robert Wiebe (The Opening of American Society: From the Adoption of the Constitution to the Eve of Disunion [New York: Alfred A. Knopf, 1984], 38–39), Madison’s appeal to “the reason of the public” in the 49th Federalist was actually a way for the gentry to free themselves of their “sovereigns.” His notion of public reason and public opinion was the equivalent of “community values,” not of an actual power in political life (38–40). For Garry Wills, Alan Gibson, and Gary Rosen, the argument of Federalist 49 demonstrates the passivity of Madison’s concept of public opinion. Wills contends that Madison encouraged “an almost abject trust [in] governmental power” (Explaining America: The Federalist [Garden City, N.Y.: Doubleday, 1978], 27). Gibson claims that this essay demonstrates Madison’s advocacy of civic veneration of government, as opposed to the civic watchfulness and vigilance he came to endorse in the 1790s (“Veneration and Vigilance: James Madison and Public Opinion,” Review of Politics 67:1 [2005], 5–35). “Madison’s solution,” Rosen argues, “was a kind of constitutional passion, an unthinking attachment to the Constitution as an end in itself” (American Compact: James Madison and the Problem of Founding [Lawrence: University Press of Kansas, 1999], 137). Indeed, Madison’s “safe expression of consent . . . lacked the grandeur of the political right of nature, defended by Jefferson in all its breadth,” but it was consistent and practical. It prevented “temporary governing majorities” from mistakenly thinking of themselves as the “sovereign majority of the social compact” (136–37). Like Gibson, James Roger Sharp claims that the importance Madison placed on the role of public opinion in the 1790s is a change from the stance he took in The Federalist, though even in the 1790s, Madison’s conception of public opinion possesses a static quality – it is “a fixed entity that was supportive of republicanism but essentially inert” (American Politics in the Early Republic, 45). Federalist 49:283.

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the people.35 Madison was no less committed to the principle and practice of popular sovereignty than Jefferson; indeed, the same central idea informs the Virginia Resolutions and his responses to Jefferson in The Federalist and in personal correspondence. The disagreement between the two men was not over the principle of popular sovereignty or the importance of the active participation of the people in republican politics. It was not over what constitutes the rightful authority to rule in free governments. On this they were in complete agreement.36 “The basis of our government being the opinion of the people,” Jefferson maintained, “the very first object should be to keep that right.” Indeed, he declared, “Public opinion” is the “lord of the universe.”37 “In a Government of opinion, like ours,” Madison asserted, “the only effectual guard must be found in the soundness and stability of the general opinion.” It is the “only real sovereign.”38 What Madison and Jefferson disagreed about was not whether public opinion is sovereign, but how the sovereign authority of public opinion is best gathered and actively expressed in republican government. Jefferson called for an appeal to the people through the politics of constitutional conventions. Madison believed such measures ought to be reserved for extraordinary occasions and instead emphasized the importance of appealing to the people through the ordinary and ongoing politics of public opinion. Whereas Jefferson sought to establish a recurrent constitutional road to the decisions of the people, Madison sought to establish a political practice in which the settled decisions of the people would control and direct government. Madison’s cure was not to pit the extraordinary authority of the people against the ordinary deliberative processes of majority decision making, but to hold the government dependent on and answerable to the sovereign public. Madison rejected Jefferson’s reliance on convention politics not because he opposed the active participation of the citizenry in political decision making, but because he believed that constitutional conventions would seldom cure the problem of governmental tyranny that Jefferson hoped they would – that in fact, they would tend to be composed of the very legislative 35

36

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The arguments of the Kentucky Resolutions are inconsistent in this regard. On the one hand, Jefferson argues that the people are sovereign and that in the case of an unconstitutional exercise of power by the national government they have constitutional recourse via the election process. On the other hand, he empowers the citizens of one state (i.e., a minority) with the authority to void acts of the official representatives of the constitutional majority. See Lance Banning’s insightful study of the two Virginians and their ideas in Jefferson and Madison: Three Conversations from the Founding (Madison, Wis.: Madison House Publishers, 1995). Jefferson to Edward Carrington, January 16, 1787, PTJ 11:49; Jefferson to William Short, April, 13, 1820, WTJ 15:246. Madison to Edward Livingston, July 10, 1822, WJM 9:101.

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members whose tyrannical conduct was often the issue. In any case, convention politics would “inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself,” and “the passions, therefore, not the reason, of the public would sit in judgment.” In the original act of establishing the Constitution of the United States, as in any future constitutional conventions that might be called, the process of decision making consists of a relatively simple two-step procedure of proposal and ratification. Although supermajorities are required in each of the two phases of the amendment process, the procedure itself is not encumbered with multiple layers of deliberative activity, as the passage of ordinary legislation is. Under such circumstances, opinions are too often driven by passion and may easily give way to jealousy and party spirit. Despite the wide berth of territory, in such a situation the nation tends to divide into two major camps; in the case of a question of overstepping constitutional limits, the very leaders involved in the action will probably compose the leadership of one of the vying parties. In essence, calm reflection and deliberate choice are not the usual accompaniments to the act of founding or refounding. Given the ultimate and unchecked sovereign authority of the people in framing and ratifying amendments – in other words, the theoretical and practical impossibility of imposing limits on the alterations that may be instituted – one ought not to be sanguine about such constitutional roads to the decisions of the people. The relatively unencumbered process is an invitation to decisions made on the basis of party passions and partial interests.39 39

According to James Roger Sharp, Madison’s deliberate and repeated appeals to the people in the 1790s were inconsistent with his criticism of frequent appeals to the people in the 49th Federalist essay (American Politics in the Early Republic, 45). In Federalist 49 he warned against frequent appeals to the people on constitutional matters because this would deprive the government of “veneration” and “stability.” Although Madison’s argument in this essay was about constitutional and not legislative issues, in the first administration legislative issues ultimately depended on how one interpreted the Constitution, Sharp argues. I read Madison’s argument in Federalist 49 differently. Madison is discussing constitutional questions in this essay, but his point is not whether the issue being addressed is a constitutional or legislative one, but whether the remedy sought in such cases should involve a constitutional appeal to the people, that is, an appeal to the people in their constitutional capacity via constitutional conventions. Madison rejected frequent constitutional appeals of this sort to enforce the prescribed boundaries of governmental power. He did not, however, reject the idea of appealing to the people for their opinion on legislative or constitutional questions. This is an entirely different matter. See also the provocative, but I think fundamentally erroneous, interpretation of Troy E. Smith, in “Divided Publius: Democracy, Federalism, and the Cultivation of Public Sentiment,” The Review of Politics 69 (2007), 568–98. Smith makes the same mistake Sharp does in his reading of Federalist 49, confusing Madison’s warning about too frequently relying on constitutional conventions with the influence of public opinion on constitutional and policy decisions. As a result, Smith essentially limits the public’s check on governmental abuse of power to elections (585) and ignores Madison’s

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It is as important to see that Madison reserved a constitutional path to the decision of the people as it is to understand why he severely restricted it. Madison supported the right of the people to alter their constitution because he agreed with Jefferson that the absence of such provision would make the government “one of force and not of right.”40 He agreed with Jefferson’s general philosophy that “no society can make a perpetual constitution, or even a perpetual law.” He further agreed that “the earth belongs always to the living generation” and that no generation should slough off its debts on its children and grandchildren, but neither should a people forget what they owe to past generations who have sacrificed for their well-being. Because all human beings are created equal, consent of the governed is necessary to found government and establish constitutional law. Prudence teaches, however, that in the absence of explicit revocation of the constitution, tacit consent must be inferred. Otherwise, no person upon reaching his maturity could, without his express consent, be bound by the decisions of the majority. By establishing a constitution via convention, the people have in their most sovereign capacity prescribed laws by which they solemnly agree to abide. They may change their constitution, but only by means of the constitutional prescriptions to which they have consented. Madison reminded Jefferson that majority rule is not a principle of natural law, but rather one that results “from compact founded on utility.” In essence, he told Jefferson, your theory is built on the false premise that the equality of human beings and the principle of majority rule are equally simple deductions of the law of nature. But this cannot be true if, on the basis of the law of nature, there are some rights that are inalienable and for the defense of which the right of revolution can be rightfully invoked. Indeed, it is a contradiction of the idea of human equality to equate the will of the majority with the precepts of the law of nature, thereby allowing power to act as a substitute for right. The living majority is the sovereign authority of the nation, but its sovereignty is derived from a constitutional compact or pledge that has created a “moral person,” and this moral person is as answerable to the laws of nature as each individual.41

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repeated arguments and emphasis on the influence of public opinion in the ordinary course of republican politics. Had Smith paid more attention to Madison’s arguments in Federalist 51 and the Party Press Essays (regarding the primary dependence on the people and the primary importance of public opinion), he would likely not have concluded that Hamilton favored an appeal to the public on constitutional and disputed policy questions and Madison did not – or did only as a last resort. Madison to Jefferson, February 4, 1790, PTJ 16:150. “James Madison, “Notes on the Social Compact,” The James Madison Papers, The Library of Congress American Memory, Series 1: General Correspondence and Related Items, Image 1188. http://memory.loc.gov/ammem/collections/madison_papers/mjmser1.html.

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Jefferson’s “confusion” in the “Earth Belongs to the Living” letter educed from Madison a firm demonstration of the locus of his error, though it did not elicit a lengthy lecture or any suggestion of moral condemnation. Madison knew of Jefferson’s propensity to evolve theories in his mind, sometimes working them out less rather than more. He also knew that Jefferson himself had clearly set forth the principles of right in the Declaration of Independence, and better than any other man in America could probably have done. It would have been impertinent to have said more or to have said it any more bluntly than he did in his response letter. If he had, it may have led to embarrassment and awkwardness on Jefferson’s part that might never be wholly forgotten and that might have changed the course of their friendship. To avoid this, Madison consciously exercised gentlemanly restraint in the face of Jefferson’s philosophic errors and excesses. Had the latter been more of a philosopher – had he been more ruled by the head and less by the heart – Madison might have been more outspoken and aggressive in his argument. But he knew his friend’s temperament as well as anyone, and while he might gently chide him for his speculative spirit, he did not test his pride or quarrel with his intentions or general principles. Madison’s gentle exposure of the contradictions and problems in Jefferson’s theory of generational sovereignty did not end the latter’s commitment to it, which he pursued up to the last years of his life.42 His lack of concern about the dangers Madison pointed out stemmed from two particular philosophic perspectives that he endorsed and that Madison did not. These were the extreme version of the “moral sense” philosophy prominent among some eighteenth-century Scottish thinkers, and the ideas of “progress” and “perfectibility” introduced by Rousseau and developed by various French theorists, most notably Condorcet. In regard to the moral sense, Jefferson believed that justice is instinct and innate, [and] that the moral sense is as much a part of our constitution as that of feeling, seeing, or hearing; as a wise Creator must have seen to be necessary in an animal destined to live in society.43

To his favorite nephew, Peter Carr, he explained that while the moral sense is somewhat susceptible to the guidance of reason, on the whole it is an innate and independent faculty. It is “a small stock” of reason that is needed 42

43

See, for example, Jefferson to Washington, May 14,1794, PTJ 28:74–75; Jefferson to Samuel Kercheval, July 12, 1816, in Merrill D. Peterson, ed., The Portable Thomas Jefferson (New York: Viking Press, 1975), 552–61; Jefferson to Thomas Earler, September 28, 1821, WTJ 15:470–71. Jefferson to Adams, October 14, 1816, WTJ 15:76.

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for the operation of the moral sense, he argued, “and even less for Common sense.” “State a moral case to a ploughman and a professor. The former will decide it as well, and often better than the latter, because he has not been led astray by artificial rules.”44 Despite these kinds of statements, Jefferson also believed deeply in the importance of education. Moreover, according to Jean Yarbrough, he did not believe that the moral sense “spontaneously result[s] in virtuous actions” but rather requires “a long process of development and habituation before [it] produce[s] the steady inclination to virtue that is called character.”45 Unlike some of his French compatriots, he did not think that theoretic and scientific knowledge necessarily brought in their wake moral understanding. Still, there were occasions when he seems to have flirted with the idea, and it should come as no surprise that the flirtation can be directly traced to the time he spent in France. Two years before Jefferson traveled to France to take up the post of American minister to the court of Louis XVI his beloved wife died in childbirth, leaving him doleful and despondent. In time, France mended his sorrow and renewed his spirit. Maria Cosway won his heart; French philosophy captured his mind. Like Franklin before him, Jefferson became a regular in Parisian social and philosophic circles, exchanging ideas with the leading French aristocrats and intellectuals of the time, including Lafayette, Condorcet, La Rochefoucauld, and Brissot de Warville. Indeed, the American minister from Monticello joined members of the French revolutionary circle as they worked out their ideas for the new government. Jefferson’s theory of generational sovereignty was inspired by “the course of reflection”

44 45

Jefferson to Peter Carr, August 10, 1787, PTJ 12:15. Jean Yarbrough, “Jefferson and Property Rights,” in Ellen Frankel Paul and Howard Dickman, eds., Liberty, Property, and the Foundations of the American Constitution (Albany: SUNY Press, 1989), 65–83. On Jefferson’s moral sense philosophy, see Adrienne Koch, Philosophy of Thomas Jefferson (New York: Columbia University Press, 1943), and compare Koch’s discussion of Jefferson’s conception of the moral sense to Garry Wills’s in Inventing America: Jefferson’s Declaration of Independence (Garden City, N.Y.: Doubleday, 1978). See also Ronald Hamowy, “Jefferson and the Scottish Enlightenment: A Critique of Garry Wills’s Inventing America: The Declaration of Independence,” William and Mary Quarterly 36:4 (1979), 503–23. On the importance of education to Jefferson, see, for example, Jefferson to William C. Jarvis, September 28, 1820, in Willson Whitman, ed., Jefferson’s Letters (Eau Claire, Wis.: E. M. Hale and Company, 1940), 338–39; Gilbert Chinard, “Jefferson Among the Philosophers,” Ethics 53:4 (July 1943), 255–68. Chinard argues, erroneously I think, that despite the personal friendships Jefferson formed with various Frenchmen during his time in France, there is “no strong evidence . . . that he received much from them besides . . . invaluable mental stimulation, or even that he was eager to become thoroughly acquainted with their theories” (261).

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on the fundamental principles of politics and society in which he and his French friends routinely immersed themselves.46 One of these fundamental principles concerned the idea of progress and the effect that this has, or ought to have, on constitutions and the institutions of government. “Laws and institutions,” Jefferson wrote in 1816, must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change with the change of circumstances, institutions must advance also and keep pace with the times.”47

Jefferson likened his conception of progress and the perfectibility of the human mind to the ideas of Condorcet, who had set forth his theory on the subject in Esquisse d’un tableau historique des progr`es de l’esprit humain (Sketch for a Historical Picture of the Progress of the Human Mind). “I am among those who think well of the human character generally,” Jefferson wrote, and “I believe also, with Condorcet . . . that [the human] mind is perfectible to a degree of which we cannot as yet form any conception.”48 In fact, Jefferson believed that this was one of the central issues that separated the first political parties in America. “One of the questions . . . on which our parties took different sides was on the improvability of the human mind in science, in ethics, in government, etc.,” he wrote in 1813. One side held that there are no known limits to that progress, while the other side denied that improvement over the principles and institutions of our ancestors was likely or even possible. But we “possess . . . too much science not to see how much is still ahead of [us], unexplained and unexplored. [Our] own consciousness must place [us] as far before our ancestors as in the rear of our posterity,” Jefferson explained to Adams, whom he knew would wince at such ideas.49 Jefferson’s agreement with Condorcet’s views on progress and perfectibility places him in the most progressive and radical school of thought at the time. While there were many who believed that progress in scientific understanding is possible, and indeed that they lived in a time in which they were witnessing the accumulation of an amazing store of scientific knowledge, Condorcet and Jefferson also believed that humanity itself can be improved over time, both intellectually and morally. Moreover, Jefferson argued at 46 47 48 49

Jefferson to Madison, September 6, 1789, PJM 12:382. Jefferson to Samuel Kercheval, July 12, 1816, in Peterson, ed., The Portable Thomas Jefferson, 559. Jefferson to William G. Munford, June 18, 1799, PTJ 31:127. Jefferson to Adams, June, 15, 1813, in Whitman, ed., Jefferson’s Letters, 286.

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one point, improvements in science can have the effect of inculcating virtue and improving the morals of men. In speaking before the Congress of the United States in 1821 to protest the book tax, Jefferson said: The value of science to a republican people, the security it gives to liberty by enlightening the minds of its citizens, . . . [and] in short, its identification with power, morals, order and happiness . . . are considerations [that should] always [be] present and [bear] with their just weight.50

But whatever influence Jefferson believed science may have on the progress of morality, he did not claim that “the rules of our moral conduct [are] a matter of science.”51 God would have been a “pitiful bungler” had he designed things this way, because “for one man of science, there are thousands who are not.” Instead, God endowed us with a moral sense of right and wrong that we may live together in society. While it may be difficult to fathom the seemingly effortless mixing of French rationalism and Scottish moral sense philosophy in Jefferson’s mind,52 in the eighteenth century there were some who did not think there 50 51 52

Jefferson, “Memorial on the Book Duty,” November 30, 1821, in Merrill D. Peterson, ed., Public Papers of Thomas Jefferson (New York: Library of America, 1984), 476. Jefferson to Peter Carr, August 10, 1787, in Paul Leicester Ford, ed., The Works of Thomas Jefferson, 12 vols. (New York: G. P. Putnam’s Sons, 1904), 5:324–27. According to Gordon Wood, “the importance of this domesticated modern virtue [of the moral sense] to Jefferson’s thinking, can scarcely be exaggerated.” Jefferson’s “faith” in democracy and the common man was part of his “optimistic” and “rosy temperament,” even perhaps his “Pollyanna” innocence (see Revolutionary Characters: What Made the Founders Different [New York: Penguin Press, 2006], 106–7, 114–15). While this assessment is not inaccurate – throughout most of his life Jefferson was the eternal optimist – it does represent a tendency among scholars to attribute Jefferson’s ideas to his native sanguinity and to some extent to neglect the philosophic perspectives he endorsed. For a more nuanced treatment of Jefferson’s philosophic vision, see Darren Staloff, Hamilton, Adams, Jefferson: The Politics of Enlightenment and the American Founding (New York: Hill and Wang, 2005), especially ch. 4; cf. Andrew Burstein, The Inner Jefferson: Portrait of a Grieving Optimist (Charlottesville: University Press of Virginia, 1995). One of the reasons for such different treatments of Jefferson’s thought is that his views are often not consistent, and sometimes they are blatantly contradictory. Moreover, he often seems breezily unaware of any incongruence in his theory or at least not particularly concerned about it. Jefferson’s adoption of both the moral sense doctrine and the theory of progress and perfectibility would seem to be an example of this, representing the embrace of two mutually exclusive strands of Enlightenment thought, as Gertrude Himmelfarb describes these diverse “roads to modernity” in her recent work on the “Enlightenments.” The Scottish moral sense school was grounded in a teaching about social virtue and moderation, she argues, while the French theory of perfectibility was rooted in a kind of rationalism and romantic idealism that led to the Terror (The Roads to Modernity: The British, French, and American Enlightenments [New York: Alfred A. Knopf, 1994], passim). Despite Jefferson’s incorporation of aspects of both of these streams of thought, however, Himmelfarb discusses only the Lockean and

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was a necessary contradiction between the two doctrines. Rousseau was the leading voice in this regard, arguing both for the existence of an instinctive moral sense and for a theory of progress and perfectibility.53 Another was Condorcet. Condorcet seems to have adopted Adam Smith’s theory of moral sentiments, viewing them as the foundation of virtue and rights.54 His wife, Sophie de Grouchy, published a translation and commentary on Smith’s Theory of Moral Sentiments in 1798 in which she interpreted “Smith through the lens of Rousseau” and read “Scottish moral philosophy through the prism of French political experience.”55 Condorcet agreed with the Scottish moral philosophers’ criticism of the egoistic philosophy of the seventeenth and eighteenth centuries. He took particular aim at his fellow Frenchman, Helv´etius, who reduced the motives of men to self-interest. “I am not of the opinion of Helv´etius,” he wrote, “because I admit, in man, a sentiment whose force and influence he does not seem . . . to have suspected . . . .”56 Condorcet’s acceptance of the existence of a natural sentiment of compassion in man was not, however, a full-fledged endorsement of the Scottish moral sense school. The Scots erroneously attributed “to the human soul a new faculty, distinct from those of sensation and reason, tho’ at the same time combining itself with them” rather than looking to an analysis of “our actual faculties,” which provide morality with “a basis sufficiently solid and pure.”57 In contrast to the notion of a separate moral faculty or sixth sense, Condorcet (and his wife as well) pursued Rousseau’s analysis of the faculty of experiencing pain and pleasure, concluding that the origin of morality and the foundation of justice are “deduced from the nature of our feeling,” which “may not improperly

53

54 55 56 57

Scottish influences on Jefferson and neglects the influence of Condorcet and the French philosophers on him (200–1). For Rousseau’s notion of perfectibility see Discourse on the Origin of Inequality, in The Social Contract and Discourse on Inequality, Lester G. Crocker, ed. (New York: Washington Square Press, 1967), passim; for Rousseau’s adherence to an innate, instinctual moral sense see Emile, or On Education, Allan Bloom, trans. (New York: Basic Books, 1979), 286– 90. Rousseau argues that acts of morality result from the combination of conscience and imagination. Conscience is the “instinct” of the soul; it is “innate” and “independent of reason.” Just as passions are the “voice of the body,” conscience is “the voice of the soul.” Emma Rothschild, Economic Sentiments: Adam Smith, Condorcet, and the Enlightenment (Cambridge, Mass.: Harvard University Press, 2001), 211. Evelyn L. Forget, “Cultivating Sympathy: Sophie Condorcet’s Letters on Sympathy,” http://society.cpm.ehimeu.ac.jp/shet/kenkyukai/claeys&forget/forget2.doc. Quoted in Emma Rothschild, “Condorcet and the Conflict of Values,” The Historical Journal 39:3 (1996), 682. Marie-Jean-Antoine-Nicolas Caritat, Marquis de Condorcet, Outlines of an Historical View of the Progress of the Human Mind (Liberty Fund, Inc.: The Online Library of Liberty, 2008), 83–84. http://olldownload.libertyfund.org/EBooks/Condorcet_0878.pdf.

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be called our moral constitution.” It is only through reason and the development and progress of civil society, however, that this instinct becomes virtue, that is, “an active compassion which interests itself in all the afflictions of the human race.”58 In his examination of the historical development of the human mind, Condorcet claimed to have discovered that all errors in morals and politics are grounded in “philosophical mistakes, which, themselves, are connected with physical errors,” or in other words, ignorance of the laws of nature. Accordingly, Condorcet believed in the possibility of developing a science of politics and morality, which, along the same lines as the physical sciences, cannot be disturbed by human passions and interests. Improvements in the precision of language will overcome errors of reasoning, which will spur men to reflect upon their conduct and lead to advances in moral practice “not less than that of science itself.” In subjecting human conduct to conscience and reason, Condorcet argued, virtually every human being may possess the “principles of a strict and unsullied justice, those habitual propensities of an active and enlightened benevolence, of a delicate and generous sensibility, of which nature has implanted the seeds in our hearts, and which wait only for the genial influence of knowledge of liberty to expand and to fructify.”59 The false philosophy of pride and selfishness set forth by Helv´etius and others, Condorcet claimed, was finally exposed and shattered by the truth of “the infinite perfectibility of the human mind.” Jefferson spent many an evening at the salon of the Condorcets during his time in Paris. Like his French amis, and perhaps influenced by their views, he saw no inconsistency in blending together Scottish moral sense philosophy and the theory of progress and human perfectibility. Like Condorcet, Jefferson attacked Helv´etius’s reduction of human motivation to self-interest. By “interest” Helv´etius meant not only economic interest, but all that may bring us pleasure or remove pain. Jefferson agreed with him that “good acts give us pleasure,” but he believed that Helv´etius “fell one step short of the ultimate question.” How does it happen that such acts give us pleasure, he asked? “Because nature hath implanted in our breasts a love of others, a sense of duty to them, a moral instinct, in short, which prompts us irresistibly to feel and to succor their distresses.”60 58 59 60

Ibid., 7. Ibid., 101, 118; cf. 122 regarding Condorcet’s advocacy of a “universal language.” Jefferson to Thomas Law, June 13, 1814, WTJ, 14:141. On the one hand, Jefferson claimed that the moral sense has been impressed on our hearts so that our moral precepts “shall not be effaced by the subtleties of our brain” (Jefferson to James Fishback, September 27, 1809, WTJ 12:315). Further, he declared that “morals were too essential to the happiness of man,

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Jefferson sought to remove the obstacles that hinder the exercise of man’s moral constitution and impede the path of human progress and perfectibility. To this end, he called strenuously for the elimination of all religious shackles, the abolition of primogeniture, the eradication of all hereditary class distinctions, the establishment of universal free trade, and the implementation of generational sovereignty via periodic constitutional conventions (all of which Condorcet advocated as well). His goal was to unshackle the mind from the chains of ignorance that enslave it and to release the benevolence of human nature. The core of Jefferson’s philosophy of freedom is set forth in the Virginia Statute for Religious Liberty, whose opening lines capture the essence of his view of what it means to be human. In language his atheist friend Condorcet would not have endorsed, Jefferson wrote: “Well aware that Almighty God hath created the mind free.” He continued: “The plan of the Holy author, who being Lord of both body and mind, yet chose not to propagate [religion] by coercions on either, as was in his Almighty power to do.” In Jefferson’s original draft, which was modified by the Virginia assembly, he also argued that although God did not propagate religion by coercion on body and mind, He did choose “to extend it by its influence on reason alone.” This argument follows another in the draft of the Virginia Statute that was dropped in the final version, viz., “that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds.” Jefferson believed that human freedom is located not in the unrestrained will, but in the will that conforms to the dictates of the moral sense as well as to the precepts of the natural law. The idea of the law of nature is the rule of reason, which the Creator implanted in the nature of man. According to natural law tradition, God did not bargain with human beings, saying, I will give you freedom if you will to be risked on the uncertain combinations of the head. . . . [Nature] laid their foundation, therefore, in sentiment, not in science” (Jefferson to Maria Cosway, October 12, 1786, PTJ 10:450). On the other hand, he offered a great many tributes to the power of reason and its predominant role in republican self-government. “No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth” (Jefferson to John Tyler, June 28, 1804, in Whitman, ed., Jefferson’s Letters, 222; see also Jefferson to George Mason, February 4, 1791, PTJ 19:241). Moreover, the reason that God gave man constitutes “the umpire of truth” (Jefferson to Miles King, September 26, 1814, WTJ 14:197). On at least one occasion, he seemed to view the head and the heart as equals: “The true fountains of evidence [are] the head and heart of every rational and honest man. It is there nature has written her moral laws, and where every man may read them for himself” (Jefferson, “Opinion on the Treaties with France,” April 28, 1793, PTJ 25:609). Whether Jefferson’s views are merely inconsistent or there is a fuller explanation that would resolve the seeming contradictions in his thought deserves a fuller explanation than I am able to offer in these pages.

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give me obedience. He simply gave human beings freedom of the mind outright. This extraordinary gift was not in the form of a contract or transaction, though by the very nature of the gift a moral debt accrued to human beings, making them accountable for the way in which they use their freedom.61 Human beings have the capacity for moral liberty and self-government as well as the duty to exercise their freedom in accordance with their reason and conscience. This debt of moral accountability applies to societies of men as well as to individuals. In his first inaugural address, Jefferson celebrated the “sacred principle” that the “will of the majority is in all cases to prevail,” reminding his fellow citizens, however, that in order for their “will to be rightful,” it “must be reasonable.” Violations of the rights of others are acts of oppression that result from those “who feel power and forget right.” Jefferson thus makes two fundamental claims in his inaugural address: that the will of the people is sovereign and that the sovereignty of their will is conditional and depends upon its subordination to natural law. These two claims do not always coincide, but they are nonetheless both required if the standard of moral freedom set by the Virginia Statute is to be met. Similarly, both are required to meet the standard of the Declaration of Independence, which is encapsulated in the idea that “all men are created equal.” Jefferson’s inaugural message is in fact a continuation of the teaching of these two documents, reminding the sovereign people of America that their right to power is legitimate only if it is grounded in reason and the recognition of their moral duty to protect the equal rights of all human beings. This is why it is not merely the right but also the duty of the people to alter or abolish a government whose design is to reduce humanity under the force of despotism. Madison and Jefferson were as much in agreement about the moral basis of majority rule and popular sovereignty as they were in disagreement about the nature of the moral sense and the doctrine of human perfectibility. Unlike Jefferson, Madison rejected the notion of inevitable progress toward universal human knowledge and perfectibility. In contrast to Condorcet, he did not believe that language can perfectly express ideas, that e´ vidence has the power to conquer human passions and interests, or that all human beings 61

This idea undergirds Jefferson’s famous lines in the Notes on the State of Virginia: “God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?” Jefferson’s question in this famous passage is clearly made for public consumption. I have no doubt that Jefferson believed that liberty was the gift of God; he did not, however, believe that there is a personal God who takes an active stance on the justices and injustices of this world.

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can become philosophers.62 Madison’s warning in Federalist 49 against expectations of a race of philosophic kings, and his plea to recognize that patriotic prejudice and salutary opinion are the most that can be expected from many citizens, were directed at those overly optimistic souls enamored of the dream of historical progress. It should be emphasized, as well, that Madison’s warning is given in the Federalist essay that is organized around a critique of Jefferson’s views on the efficacy of “an appeal to the people” to remedy oppressive acts of the government. For Madison, passion and interest are as much a part of man’s nature as the capacity to reason, and they are all too often resilient to the power of conscience or evidence. Madison’s philosophic realism did not, however, translate into pessimism regarding the capacity of mankind for self-government. It is as important to recognize that he rejected the atomism and materialism of his time and that he strenuously disagreed with what he considered the utopian notions of Saint-Pierre, Rousseau, and the Marquis de Condorcet. His goal was not the vain anticipation of universal philosophic wisdom or universal peace but the more tempered one of enlightened and salutary opinion. His invocation of “the reason . . . of the public” that should sit in judgment in republican government is just such an enlightened opinion, akin to Montesquieu’s notion of “impure reason” or the esprit that results from a complex set of phenomena in a given society. While enlightened opinion lacks the intellectual rigor of philosophical wisdom, it may have a similar effect in producing stability, order, and relations of justice in political life. Like Jefferson, Madison believed that it is the right of the majority to rule, but that the procedural right to rule is conditional upon its accord with the substantive moral precepts of natural law. They were in full agreement about the fundamental problem of force and right (or what Madison tended to term “power and right”) in republican government. The difference is

62

In Federalist 37 Madison explained the unavoidable inaccuracies associated with language as the vehicle for the expression of ideas: “The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.”

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that Madison sometimes emphasized the case of an unjust majority in his theoretic analysis and at other times underscored that of a just majority whose voice is not sufficiently heeded by government, while Jefferson almost exclusively highlighted the latter problem. This makes perfect sense given their diverse views on the nature of man and what is or is not needed to moderate the force of the ignoble passions and selfish interests. In Madison’s view, the power of passion and interest, as well as the power of opinion, are sown in the nature of man. Thus, the problem of placing power and right on the same side in popular government is not solved simply by removing the unjust societal practices that skew the moral sense and obstruct the mind’s freedom. History is no panacea for the causes of injustice. Instead, historical progress depends on the difficult and eternal human challenges that can be met only by free and conscious moral choice. In free societies, improvements depend on the constant forming and reforming of public morality and public opinion in an environment conducive to the conditions of freedom. Madison too believed in the existence of the conscience, but he did not make the leap to the notion that it was instinctual and in little, if any, need of reason. For him, conscience was neither a sixth sense nor a kind of premoral instinctual, animalistic aversion to pain, tantamount to the sentiment of compassion. Instead, he adopted the more moderate conception of conscience associated with traditional natural law teaching. In “Memorial and Remonstrance” he associated the freedom of conscience with the moral duties such freedom imposes upon human beings, following his teacher, John Witherspoon, in this regard. The obligation of every human being to God is higher than his duty to his country, he asserted. Freedom of conscience is an inalienable right because “what is here a right towards men, is a duty towards the Creator.” Before human beings are members of civil society, they are subjects of the “Governor of the Universe,” and not even a majority in society has the legitimate right to interfere with a man’s allegiance to divine authority. Madison’s claim for religious and moral liberty is thus an aspect of his understanding of the hierarchy of obligations and responsibilities of human beings. “A just government,” Madison wrote, will protect “every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property.”63 The best encapsulation of Madison’s understanding of the fundamental moral responsibility in human and political life is to be found in his short 63

See the thoughtful essay by Peter Augustine Lawler, “Religion, Philosophy, and the American Founding,” in Thomas S. Engerman and Michael P. Zuckert, eds., Protestantism and the American Founding (Notre Dame, Ind.: University of Notre Dame Press, 2004), 180–81.

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essay entitled “Property,” published in the National Gazette in 1792. This essay captures Madison’s conception of the dependence of the Constitution on the natural law principles of the Declaration of Independence. In this article he argued that there are two senses of the word “property.” In regular usage, “a man’s land, or merchandize, or money is called his property.” In another and even more fundamental sense, “a man has a property in his opinions and the free communication of them. . . . [A]s a man is said to have a right to his property, he may be equally said to have a property in his rights.” “Conscience is the most sacred of all property,” Madison declared; it is “a natural and inalienable right.” He continued: To guard a man’s house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man’s conscience which is more sacred than his castle, or to withhold from it that debt of protection, for which the public faith is pledged, by the very nature and original conditions of the social pact.

“Every good citizen,” he declared, must be “a centinel over the rights of the people.” The public trespass on private right by a majority is in fact an encroachment on the rights of all. Every member of a republican society owes “a debt of protection” to the rights of every other member, which is required “by the very nature and original conditions of the social pact” to which “the public faith is pledged.” Accordingly, “the very nature” of the American Constitution imposes on every citizen a positive obligation to recognize and respect the rights of others. Madison’s argument in “Property” reveals the moral debt that is at the basis of his compact theory of government. This debt results from the first principles of natural law and the idea that all human beings are created equal; it imposes on members of a constitutional society the obligation to protect other human beings in their equal rights to life, liberty, and selfgovernment. The “debt of protection” of which he speaks is the moral debt of humanity that results from the original gift of freedom. It simultaneously dictates the right of a people to govern themselves and their moral obligation to govern according to a standard of right higher than mere human will. Madison looked upon the great experiment in constitutional government that originated in the United States as a “revolution” no less great than that for which Americans fought and died at Concord and Lexington, at King’s Mountain and Bennington, and at Brandywine and Saratoga. Marking a new and triumphant epoch in the political practice of the world, it established “the legitimate authority of the people” as the only just basis of government. As the expression of sovereign authority, Madison taught that public opinion

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is bound by the fundamental principles of right that justify its power.64 Its authority derives from a sacred trust that imparts to the majority not only the right to govern, but the obligation to govern according to the moral principles that legitimate its rule.65 For over five decades Thomas Jefferson and James Madison worked together to establish the principles and practices of freedom and selfgovernment firmly on American soil. Their legacy to Americans is encapsulated in the Declaration of Independence and the United States Constitution. In their twilight years, after each had served two terms as president and was resettled in Virginia, they could be seen riding the roadway between their two homes, anticipating the genial companionship and lively conversation that always marked their hours together. The road between Monticello and Montpelier is today called “Constitution Way,” which perfectly captures the connection that binds the two men and their greatest efforts. The road leads from the principles of the Declaration of Independence to the provisions of the Constitution, linking them together in an unbroken chain of ideas. Madison understood his work at the Constitutional Convention of 1787, in the ratification debates, and in the 1790s to be in the service of establishing and vindicating the cause of popular government in America. His commitment to the experiment in self-government was not merely self-proclaimed, however; it was the way in which the author of the Declaration of Independence also understood Madison’s life work. Toward the close of his life, the eighty-two-year-old Jefferson wrote to Madison, then a young seventy-five: The friendship which has subsisted between us, now half a century, and the harmony of our political principles and pursuits, have been sources of constant happiness to me through that long period. . . . It has also been a great solace to me, to believe that you are engaged in vindicating to posterity the course we have pursued for preserving to them, in all their purity, the blessings of self-government. . . . 66

In response, Madison also reflected on the many years of close friendship and joint political labors: You cannot look back to the long period of our private friendship & political harmony, with more affecting recollections than I do. If they are a source of pleasure to you, what ought they not to be to me? We cannot be deprived of the happy consciousness of the pure devotion to the public good with which we discharged the 64 65 66

See “Charters,” PJM 14:192. Theoretically, the majority relinquishes its moral and constitutional authority if it exercises its power licentiously. Meyers, Mind of the Founder, 395–96. Jefferson to Madison, February 17, 1826, in Adrienne Koch and William Peden, eds., The Life and Selected Writings of Thomas Jefferson (New York: Modern Library, 1972), 728.

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trusts committed to us. And I indulge a confidence that sufficient evidence will find its way to another generation, to ensure, after we are gone, whatever of justice may be withheld whilst we are here. The political horizon is already yielding in your case at least, the surest auguries of it. Wishing & hoping that you may yet live to increase the debt which our Country owes you, and to witness the increasing gratitude, which alone can pay it. . . . 67

The bond that more than any other united Madison and Jefferson in friendship was their mutual dedication and labor to secure the blessings of liberty and self-government to their countrymen. Acknowledging the debt his fellow citizens owed Jefferson, Madison knew that his friend had devoted himself to his country without any expectation of a return. He had done precisely the same. They understood that the legacy of the Founders is a debt that can be repaid only by a citizenry whose gratitude is manifested in their faithfulness to the principles of self-government. Such a debt is never really repaid, however, for as long as the principles of the Declaration of Independence live in the spirit of the American Constitution, they call on each new generation to rededicate itself to the moral terms of the original compact. So it is that the more the debt of the American Founding is paid, the more it is due. 67

Madison to Jefferson, February 24, 1826, in James Morton Smith, ed., The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison 1776–1826, 3 vols. (New York: W. W. Norton, 1995), 3:1968.

7 The Spirit of Republican Government

In the March 13, 1791, note Jefferson sent Madison asking him to join him for “a wade in the country,” he also invited Madison to stay at his larger and more comfortable residence in Philadelphia. Jefferson had transported a large shipment of books to Philadelphia and was renovating space in his new lodgings to house them. His library would soon be open, he told Madison, and “you will often find a convenience in being close at hand to it.”1 Madison declined Jefferson’s offer, having just settled into his “harness for compleating the little task” he had allotted himself. “My papers and books are all assorted, around me,” he said. “A change of position would necessarily give some interruption – & some trouble on my side whatever it might do on yours.”2 Clearly, Madison had chatted earlier with his friend about his planned undertaking. Jefferson understood that it was a fairly extensive research project and that Madison would need to consult some volumes from his collection. I believe Madison’s “little task” was not the correction of the Convention Notes, as has generally been assumed – which would not require access to Jefferson’s library or, in fact, the use of any books at all – but the much broader scholarly task he undertook in the “Notes on Government.” Madison’s inquiry in the “Notes on Government” led him on a journey far afield from Philadelphia and America, to the world of the classics as depicted in the great books of Western civilization. In the “Notes” Madison cited a plethora of classical works in political philosophy and history, including Xenophon, Plato, Aristotle, Thucydides, Strabo, Dionysius Halicarnassus, Livy, and Plutarch. The “Notes” also include references to modern authors 1 2

Jefferson to Madison, March 13, 1791, PTJ 19:551. Madison to Jefferson, March 13, 1791, PJM 13:405.

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such as Montesquieu, Gibbon, Robertson, Pownall, Moyle, Franklin, contributors to the Encyclop´edie m´ethodique, Publius, and Madison himself (including his Party Press Essays of 1791–92, a citation he apparently added to his “Notes” at a later date). The vast majority of references, however, are to Jean Jacques Barth´elemy’s Voyage du jeune Anacharsis en Gr`ece dans le Milieu du Quatri`eme Si`ecle avant l’`ere vulgaire (Paris, 1788), an erudite multivolume work that took Barth´elemy over thirty years to write. Jefferson sent Barth´elemy’s work to Madison in 1789, and Madison included the volumes in the booklist he made up in August 1790 for shipment to his new residence in Philadelphia.3 Sometime prior to the fall of 1791, probably in the spring of that year, Madison engaged in a close reading (or perhaps a more methodical rereading) of Barth´elemy’s work, taking extensive notes on the texts and incorporating his comments and citations into an outline on the subject of government.4 Madison’s study of Barth´elemy’s opus was clearly a time-consuming intellectual task. One can imagine him burning the midnight oil for the better part of a month or two during the recess that followed the adjournment of the First Congress. This is a rather remarkable undertaking for Madison at this time, given the very practical political concerns of a man whose life during this period was dominated by public service. Nonetheless, the de facto leader of the new House of Representatives of the United States donned

3

4

In 1789 Jefferson remarked to a friend that Barth´elemy’s work was one of “the most remarkable publications we have had in France, for a year or two.” It is “a very elegant digest of whatever is known of the Greeks,” he continued, though “unuseful . . . to him who has read the original authors, but very proper for one who reads modern languages only” (Jefferson to Joseph Willard Paris, March 24, 1789, PTJ 14:697). Like Jefferson (who purchased a set of Barth´elemy’s work for himself as well), Madison also read Greek. Nonetheless, Madison found Barth´elemy’s Voyage to be of great assistance in his study of Hellenic thought and culture, utilizing both the author’s keen insights into classical political philosophy and his references to primary materials. According to the editors of The Papers of James Madison, Madison composed the “Notes on Government” (or what they refer to as “Notes for the National Gazette Essays”) between approximately December 19, 1791, and March 3, 1792 (PJM 14:157). Given the considerable research and specific references that characterize the “Notes,” I believe that Madison likely worked on the project for several weeks. Besides the late winter/early spring of 1791, the only other periods when Madison was in Philadelphia and had access to his (and Jefferson’s) books, and when he would have had time for the project, were between August 23 and September 2, 1791, and after October 22, 1791. In his brief return to Philadelphia in the summer, however, his friends were keen to spend time in his company and conversation, and there is no reason to believe he did not oblige them (see Jefferson to Madison, August 18, 1791, PJM 14:71). Upon his return to the capital in the fall of 1791, his time was immediately taken up with public responsibilities (see Madison’s letter to his father, James Madison, Sr., October 30, 1791, PJM 14:90).

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his scholarly togs and immersed himself in the literature of the classics. He surely must have had a compelling reason to pursue such an intellectual project at this particular stage of his career. If I am correct in dating his composition of the “Notes on Government” to the late winter/early spring of 1791, Madison’s concentrated period of scholarly activity immediately followed his vigorous opposition to Hamilton’s bank bill, his mounting anxiety about the Federalists’ attempt to mimic the British economic and political system, and his concern that the government was turning a deaf ear to public opinion in America. It also followed on the heels of Adams’s serial publication of the Discourses on Davila (the fourth volume of A Defence of the Constitutions of Government of the United States of America) in Fenno’s Gazette of the United States. Four years after the publication of his first volume of the Defence, Adams was still harping on the fatal consequences to any political order that concentrates power in one center instead of dividing sovereign authority in a tripartite and balanced system of government that incorporates the rival interests of society into its constitutional structure. Only a third party could supply the disinterestedness of an “umpire” or “impartial mediator,” Adams argued. “A simple sovereignty in one, a few, or many, has no balance, and therefore no laws.”5 Although Madison had not yet reached the state of alarm that would seize him about a year later, he was at this juncture sufficiently concerned about the influence of Adams’s aristocratic ideas on public opinion and Hamilton’s flawed and dangerous conception of republicanism to set for himself the “little task” of making a “more thorough investigation” into the workings of republican government than he had previously done.6 While Madison’s 1791 studies were in part motivated by a desire to refute Adams’s one-dimensional treatment of ancient and modern republicanism in the Defence, his immersion in the classical texts of political history and political philosophy was also due to his serious scholarly temperament. His goal was to investigate the causes that preserve or destroy the various forms of government, particularly republican government, as well as to provide a sketch of the well-constituted republican order. In Barth´elemy’s work, Anacharsis’s long and arduous voyage through ancient Greece had brought him face to face with the permanent political questions identified by the great Hellenic oracles of political wisdom. In the spring of 1791, Madison became a fellow traveler with Anacharsis on his voyage to the classical world. 5 6

Adams, Davila, Defence, vol. IV, WJA 6:323, 396, 431. “Notes on Government,” PJM 14:159.

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Upon its release, the Abb´e Barth´elemy’s work became an overnight international success. In Paris, leading socialites hosted fashionable parties built around the Anacharsis theme, with guests arriving draped in Greek garb and met by a display of fare fit for the classical citoyen, including the sumptuous cuisine of the Mediterranean as well as a selection of thin and no doubt unappetizing Lacedemonian broth. A number of children were even christened with the name “Anacharsis,” among them the famous revolutionary Anacharsis Cloots and the third son of Jefferson’s friend and Madison’s acquaintance, the Brissot de Warville (born in 1791). Although Barth´elemy presented The Voyage of Anacharsis in the fictional narrative style popular in the eighteenth century, his work was not meant simply to entertain; it contains more than 2000 references to primary classical texts intended for the benefit of men of letters. According to the Chevalier de Boufflers, whose oration formally marked Barth´elemy’s induction into the Acad´emie française in 1789, Anacharsis made Greece live once again. He captured the ideas, the wonder, and the splendor of a civilization that knew no rival in the annals of humanity, and in his portrait he showed his countrymen the way to freedom. In the abb´e’s work, the chevalier wistfully continued, one senses that the principles of the Greeks are his principles, that their knowledge lives in his spirit, and that their virtues reside in his heart. The Voyage of Anacharsis tells the story of a Scythian (whose mother was Greek, and from whom he learned her native tongue) who journeyed to the Hellas prior to the birth of Alexander. From his residence in Athens, Anacharsis traveled extensively throughout the Greek republics and colonies for twenty-six years, finally quitting the Hellenic world upon its enslavement by Philip of Macedon, at which time he returned to Scythia and wrote an account of his travels. During his lengthy sojourn, Anacharsis studied the history, literature, art, music, mathematics, religions, economics, philosophy, ethics, and politics of the Greeks and engaged in discussions with the leading minds of the time, including Xenophon, Plato, Aristotle, and Demosthenes. Barth´elemy choose this era for his voyage imaginaire for two reasons: it marked the apex of Hellenic civilization and the age in which the political face of Greece was forever altered.7 Between the time of Pericles and that of Alexander, Anacharsis witnessed the flourishing of Greek art and culture and the simultaneous loss of Greek freedom. The elation Anacharsis felt upon first setting foot in Thebes and the wonder and edification that filled his mind during these years are, in the end, exchanged for sadness and resignation. The Scythian’s dream of the golden age of Greece was Barth´elemy’s 7

Voyage 1:xiv.

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dream for a republican France. But Barth´elemy learned from Aristotle that there is a fundamental paradox in political life and that the golden age could not last. While civilization can make a home in large states, freedom cannot. Conversely, small states, in which freedom and civilization can coexist, are forever at the mercy of large military empires. Although the virtue of the citizen-soldiers of the free Greek republics triumphed over the powerful Persian Empire in the early battles, in the final analysis, Alexander’s victory over the Persian Empire led to the death of Greek liberty.8 If Anacharsis emerged from his travels to the classical world dispirited by the fragility of free government, Madison emerged from his journey reinvigorated and inspired with a new hope for republicanism. Instead of conceiving of the republican polity and the empire in mutually exclusive terms, Madison envisioned combining the strengths of each into a new model of free government. Unlike anyone who had gone before him, he envisioned the possibility, and the desirability, of a republican empire. This, more than anything else, is Madison’s stunning contribution to the science of politics. He rejected the views of those who employed the language of republicanism but were willing to give up the freedom and participation of the citizen. He refused to settle for some version of mixed government (and the diminution of republicanism) to ensure constitutional liberty in large modern nations. He believed instead that the authority of public opinion, which Aristotle had identified as the central source of freedom and stability in the classical polity, must be reclaimed and reconfigured to fit the realities of the modern world. He was convinced that he had discovered a way to achieve both the liberty of the constitution and the liberty of the citizen in a large territory. Rather than modifying the meaning of freedom to fit a new version of republicanism, he modified the size of the territory, making it even larger, to accommodate an older version of republicanism and to reclaim its core principles. With the volumes of Anacharsis spread about him in his little room at Fifth and Market, Madison found new inspiration for the grand old quest of republican self-government. Madison’s “Notes on Government” are recorded in a bound notebook of ninety-nine numbered pages, prefaced by a table of contents containing thirteen headings or chapters.9 Eight of these chapter headings concern 8

9

See Leo Strauss, Lectures on Aristotle’s Politics, Lecture XI:13–14, University of Chicago, autumn 1967, unpublished. I am grateful to Joseph Cropsey for granting me permission to cite Professor Strauss’s lectures. These are designated “Notes for the National Gazette Essays” by the editors of PJM; see PJM 14:157–69. Many of the pages of the notebook are blank, ostensibly because Madison originally intended to work more on this project than he was able to do, at least at the current

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the various “influence(s) . . . on Government,” including the influence of the size of the nation, public opinion, education, religion, and slavery. This section of the “Notes” is followed by four chapters that examine the structure of government, including attention to separation of powers, governmental checks, and federalism, and a final chapter that provides a kind of model plan for a free and healthy republic. The central argument of the “Notes” is contained in the fourth chapter, the “Influence of Public Opinion on Government.” Public opinion is the pivotal element in Madison’s schema, the central locus at which the other influences on government interact to produce the republican desideratum that Madison is seeking. As we have seen, in the Party Press Essay “British Government,” which is based on chapter 4 of the “Notes,” Madison argued for the predominant influence of public opinion (over and above the separation and balancing of powers) in achieving stability and maintaining free government. In the outline “Notes” he carried his investigation beyond its application to the British model and situated it within the broad context of classical political philosophy and the problem of regime preservation, consulting in particular the analysis of Aristotle in Book V of the Politics. “Theoretical writers” such as Plato contend that there is a natural rotation in government from monarchy to aristocracy to democracy and then back again to monarchy.10 In modern times “more practical” writers such as Jonathan Swift have adopted Plato’s view.11 In Politics Book V, chapter 12, however, Aristotle took issue with Plato’s rather rudimentary claim. “It appears from Aristotle that under the influence of public opinion, the rotation was very different in some of the States of Greece,” Madison wrote. Viewed within the context of the thematic primacy of public opinion that Madison developed in the “Notes on Government,” this commentary on Aristotle is quite staggering, at least to the generations of students who have assimilated the traditional interpretation of Madisonian political theory. First, Madison’s insightful observation demonstrates that his study of Aristotle’s Politics was anything but cursory. Second, and most significantly, Madison’s appeal to Aristotle’s analysis of the force of public opinion to

10 11

juncture. The portion of the notebook filled by Madison equals approximately eleven typeset pages. PJM 14:162. Aristotle’s criticisms of Plato’s theory of the cycle of regimes refer to Plato’s account in Book VIII of the Republic. For Jonathan Swift’s thoughts on the rotation of governments, see A Discourse of the Contests and Dissentions Between the Nobles and Commons in Athens and Rome (Oxford: Clarendon Press, 1967). Whether Swift’s arguments are serious or satirical is a point of dispute.

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help explain his own views on the subject is a matter of considerable consequence, and it has never been explored. Third, Madison’s remark indicates that he disagreed with contemporary writers (for example, Jacques Peuchet in the Encyclop´edie m´ethodique) who claimed that public opinion was a new political force in the modern era. Finally, Madison’s interpretation of Aristotle is diametrically opposed to that of John Adams’s commentary in the first volume of the Defence (which he had brought with him to Philadelphia and which, I believe, he consciously sought to refute in the “Notes”). According to Adams, there is a natural cycle of regime types, as attested to by such thinkers as Plato and Jonathan Swift.12 What the classical analysis proved, Adams asserted, was the necessity of mixed and balanced government. Adams acknowledged that some of the classical philosophers placed primary reliance on the education of citizens and the formation of character to reduce factional conflict and prevent degeneracy of the political order. He further admitted that Pythagoras and Socrates had “no idea of three independent branches in the legislature” and believed the laws could be effective only if “mankind were habituated, by education and discipline, to regard the great duties of life, and to consider a reverence of themselves, and the esteem of their fellow-citizens, as the principal source of their enjoyment.” This might be effective in small communities, Adams argued, “but the education of a great nation can never accomplish so great an end.” In a nation of millions, “no principles, no sentiments derived from education, can restrain [them] from trampling on the laws.” The only security is to establish “orders of men, watching and balancing each other . . . ; power must be opposed to power, and interest to interest.”13 To counteract the problem of political instability and governmental degeneration to the extent possible, Plato and most leading thinkers throughout the ages recognized “the necessity of permanent laws, to restrain the passions and vices of men . . . and the necessity of different orders of men, with various and opposing powers, prerogatives, and privileges, to watch over

12 13

Adams, Defence, vol. 1, WJA 4:383–89, 462–63. Ibid., WJA 4:557. Adams found the clearest illustration of the classical solution to the problem of the degeneration of governments in passages of Polybius, which he noted were published at the end of Edward Spelman’s translation of Dionysius Halicarnassus’ work, Roman Antiquities (also cited by Madison in the “Notes”). To the extent that some of the classical republics were able to preserve themselves for any period of time, this was due to the attention given to a balance in the orders of society. To demonstrate the truth of this, Adams examined the constitutions of various republics of antiquity, including Sparta, Carthage, Crete, Athens, Corinth, Locris, and Rome.

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one another, to balance each other, and to compel each other at all times to be real guardians of the laws.”14 Citing Aristotle’s critique of the eighth book of Plato’s Republic at Politics V:12, Adams wrote in the Defence: Whether these observations of Aristotle upon Plato be all just or not, they only serve to strengthen our argument, by showing the mutability of simple governments in a fuller light. Not denying any of the charges stated by Plato, he [Aristotle] only enumerates a multitude of other changes to which such governments are liable; and therefore, shows the greater necessity of mixtures of different orders and decisive balances to preserve mankind from those horrible calamities which revolutions always bring with them.15

In the “Notes on Government” Madison implicitly took aim at Adams’s flawed reading of classical political thought, and particularly with what he regarded as his superficial treatment of Aristotle. In the passage at Politics V:12 Aristotle argued that, contrary to Socrates’ assertion in the Republic, there is no simple theory or fixed pattern of regime rotation. There are many causes of stasis in government, just as there are numerous factors that tend toward the preservation of a political order. For example, although tyrannies tend to be of short duration, some have endured longer than others due to the influence of public opinion. The tyrannies at Sicyon, Corinth, Athens, and Syracuse are examples of this. Rather than aiming at the three things generally sought by tyrannies, that is, that the ruled have modest thoughts, distrust each other, and are incapable of action, the successful tyrants of these cities sought “popularity with the many” and thus were able to extend their rule.16 Aristotle further illustrated the power of public opinion to preserve regimes in his discussion of other types of government. For example, at Politics II:11 and VI:5 he explained that although the constitution of Carthage deviates from the best form of government in a number of respects, it is nonetheless a “well-organized regime”; at Carthage “the people voluntarily acquiesce in the arrangement of the regime” and there is no significant “factional conflict.” In a word, “the Carthaginians have acquired the friendship of the people.”17 In this regard, Aristotle argued, Carthage resembles Sparta, despite the fact that they are different types of regimes.18 14 15 16 17 18

Adams, Defence, vol. 1, WJA 4:462. Ibid., WJA 4:508–9. Aristotle, Politics, Carnes Lord, trans. (Chicago: University of Chicago Press, 1984), V:11, 175; 178–81 (1314a15–29; 1315b11–1316b25). Ibid., VI:5, 190 (1320b5–6); cf. 2:11, 81 (1272b29–32). Ibid., II:11, 80–81 (1272b24–33). Cf. Montesquieu, SOL 1:123 and PJM 10:278.

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Madison believed that Adams had fundamentally misunderstood the classical solution to the problem of regime degeneration, which had led to a critical error in his analysis of republican government. While Adams promoted a scheme that pits factionalized orders and interests against each other and achieves stability by balancing these groups within the government – which he claimed was also the solution proffered by the classical republican philosophers – Madison believed the formation of a genuine community of citizens to be the preeminent classical concern. This cannot be achieved in a political system that substitutes mechanical arrangements for civic education and its indispensable role in shaping public opinion. If left uncountered, Madison feared that Adams’s superficial reading of the classics and analysis of republican government would influence others to adopt the same misconceptions and undermine the American experiment in self-government. In the Voyage of Anacharsis Madison discovered or confirmed his analysis of Aristotle’s understanding of the power of public opinion. “The most absolute authority becomes lawful if the subjects consent to establish or support it,” Barth´elemy wrote in his commentary on Aristotle.19 By gaining the “confidence of their people,” Aristotle demonstrated in Politics V:12 that even some tyrannies subsisted for a longer time than is usually the case because the rulers were able to obtain “the esteem or the confidence of the people.”20 This was the case because of the fundamental political fact that “the part of the city that wants the regime to continue must be superior to the part not wanting it.”21 The “unanimous decision” of all of the Greek philosophers and lawgivers, Barth´elemy argued, was that “the solid foundations of the tranquility and happiness of states” are to be found in “the institutions which form the citizens, and give activity to their minds” and in “the public voice when it makes an exact distribution of contempt and esteem.” Without the force of public morality and public opinion, the laws are powerless to maintain the constitution. It is owing to “the moeurs of a people,” Barth´elemy declared, that constitutions are destroyed or their defects corrected, for moeurs “restrain the citizen by the fear of the public opinion.”22 Barth´elemy’s emphasis on the importance of institutions that form the manners and opinions of the citizens is directly derived from the central thesis of Aristotle’s Politics. “The greatest of all the things that have been

19 20 21 22

Voyage 5:62, 225. Ibid., 5:62, 233. Aristotle, Politics IV:12, 136 (1296b16). Voyage 5:277.

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mentioned with a view to making regimes lasting . . . is education relative to the regimes,” Aristotle argued.23 “For there is no benefit in the most beneficial laws, even when these have been approved by all those engaging in politics, if they are not going to be habituated and educated in the regime.” By education and habituation in the regime Aristotle meant education and habituation in the principle of the regime, which he did not conceive of solely or even primarily in abstract theoretical terms. Rather, civic education was for Aristotle a practice that actively engages the minds and mores of the citizens in the fundamental principle or idea that informs their polity. In the practical science of politics, just as in biological science, the principle of the body politic (like that of the human body) is made known through its manifestation in actual movement or activity. The unmoving principle and the activity (or ethos) of the polity, however, are not directly linked. The former is the final but not the efficient cause of the active way of life of a given people. As Leo Strauss has argued, between the principle and the ethos there is a connecting link or bridge that Aristotle identified, which may be termed the “spirit” of the regime. 24 In other words, the effectiveness of the principle, and of the laws based upon it, depends on the spirit of the constitution, which infuses the thinking and moral habits of the people and gives the regime its particular ethos or character. In and of themselves, the laws do not rule, for every government is constituted by human beings who make the laws and who do so based on a particular view or principle of justice. The spirit of the regime makes the principle an operative principle, which in turn results in the specific character of a given polity. The preservation or destruction of the constitution depends on the maintenance and renewal of the spirit of the regime and the concomitant civic habits of mind and heart. This is what A. D. Lindsay meant when he argued that the principal concern for the classical political philosophers, and indeed for anyone who wishes to understand politics and government, is not the laws per se, but the ideals or principles that are operative in the minds of the citizens and that make them support and maintain their form of government or resist and destroy it.25 And this is precisely what John Adams rejected. According 23 24 25

Aristotle, Politics V:9, 167 (1310b12–14). See Aristotle, Politics VIII:1, 229 (1337a12–17); cf. Strauss, “Lectures on Aristotle’s Politics,” XVI:7–8. A. D. Lindsay, The Modern Democratic State (New York: Oxford University Press, 1962), 37. See also Paul A. Rahe’s perceptive and beautifully written account of the importance to the ancients of cultivating a common way of life in “Between Trust and Distrust: The Federalist and the Emergence of Modern Republican Constitutionalism,” in Kevin L. Cope, ed., 1650–1850: Ideas, Aesthetics, and Inquiries in the Early Modern Era, 14 vols. (New

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to one leading scholar of Adams’s thought, he categorically rejected “the ‘spirit’ or arche that animated many of [the classical] regimes, and he had nothing but contempt for the ancient view of citizenship and virtue.”26 Following the central line of inquiry marked out by Aristotle, and not satisfied by Montesquieu’s treatment of the issue, Barth´elemy sought “to penetrate to the spirit of the laws, and to follow them in their effects.” In “Spirit of Governments” Madison too reclaimed the primary place for the spirit of governments within the science of politics. Like Barth´elemy, he appreciated Montesquieu’s contribution to the recovery of a way to think about politics that was more than the mechanical legalism of Hobbes and that acknowledged the force of human mores and opinion in political life.27 But, again like Barth´elemy, he believed that Montesquieu had stopped short in his analysis and ultimately abandoned the core teaching of the classics. Montesquieu had learned from Aristotle the significance of the principle and the spirit of the laws in governments in general, as well as the predominance of the principle and the spirit of liberty in republics. However, given the seemingly impossible project of reconciling the active participatory liberty of the citizens with stability and moderation, he relinquished the classical republican task of educating the citizens in the spirit of the constitution. Instead, he made liberty the end of modern republicanism and abandoned it as the operative principle of republican government.28 Hence he was able to defend and advance the idea of constitutional liberty without relying on the classical idea of the liberty of the citizen and the cultivation of civic character. Madison believed that he had discovered a way to get past the obstacles that seemed insurmountable to Montesquieu. He was persuaded that it was not necessary to sacrifice the (real) liberty of the citizen to achieve the liberty of the constitution or vice versa.29 Publius described this dual objective thus: “To secure the public good and private rights against the

26 27 28 29

´ York: AMS Press, 2005), 11:375–406. The tropoi or “ways” that constitute the peculiar ethos of the Athenians was for them of greater importance than the laws or institutions; the character of the citizens, not the institutions of government, constituted “the city’s soul” (378–80). Rahe’s overemphasis on institutions and underemphasis on political communication, public deliberation, and the means to shape and refine the opinions and manners of the citizens, at least in the thought of Madison, leads him to qualify more than is necessary the extent to which the American republic was designed to promote a civic paideia similar in purpose (though not necessarily in all means) to that of the classical republicans (401). C. Bradley Thompson, John Adams and the Spirit of Liberty (Lawrence: University Press of Kansas, 2002), 192. See Montesquieu, SOL, especially Book 19. See ibid., 11:5, 156. In his provocative and subtle translation and commentary of Montesquieu’s Spirit of Laws (forthcoming), William B. Allen argues that Montesquieu actually rejected the corporate

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danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.”30 This was the “great desideratum” to which the sage of Montpelier directed his inquiries in The Federalist and continued to direct his intellectual energy in the “Notes on Government.” In 1791 Madison responded directly to Aristotle’s analysis of the force of public opinion in supporting and renewing the spirit of popular government. He also responded explicitly to Montesquieu’s reformulated theory of the spirit of governments. On this particular and fundamental point, he accepted Aristotle’s categories and rejected Montesquieu’s, though he adopted Montesquieu’s doctrine of separation of powers as a partial response to the problems of republican government that Aristotle had delineated. He believed, however, that neither Aristotle nor Montesquieu had fully met the challenge they had marked out. In classical times the means of communication within society were essentially limited to the spoken word, thereby confining the operation of public opinion in a republic to a small territory. As a result, the ease of communication made the problem of stasis or faction an ever-present danger. Aristotle’s response to the problem lacked the institutional precautions Montesquieu would recommend; Montesquieu’s solution failed to attend adequately to the fact that there is always a prevailing opinion in free societies that cannot be controlled merely by resort to political mechanics. It is in the interstice between these two theories that Madison developed his own unique contribution to the theory of republican government. He employed Montesquieu’s method for preserving the liberty of the constitution and at the same time reclaimed the Aristotelian political task that took seriously the liberty of the citizen and the need for civic education in the spirit of the regime.31 He accomplished this, he believed, by rethinking the question of the size of the territory in a new age of communication. As was always understood, it is more difficult for a people to communicate their views in a large territory or empire. This, combined with separation of powers and checks and balances, is favorable to the prevention of majority faction. It is, however, unfavorable to liberty. Madison followed up on this problem and took the argument to the next step. The advent of new means of communication, he argued, made possible the circulation and commerce

30 31

conflict model of government in favor of the liberty of the citizen, thus giving the advantage to justice. Federalist 10: 48. See Montesquieu, SOL, Books 11 and 12.

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of ideas throughout an extensive nation. These avenues of communication act as equivalents to a contraction of the territorial limits and favor liberty in a large republic.32 Still, the task of forming a majority or public opinion in a large republic is much more difficult than in a small one. It requires significant time and energy and necessarily involves a process of deliberation to which the representatives’ and the citizens’ views are subjected. Madison used the factor of territorial size to control the problem of faction, and, in conjunction with modern means of communication, he employed this same factor of territorial size to promote the formation of a deliberative and reasonable public opinion in order to achieve self-government in a republican polity. In contrast to the classical thinkers, and to modern authors such as Montesquieu, William Robertson, and Edward Gibbon, who are referenced in the “Notes,” Madison did not believe that empires necessarily are, or degenerate into, despotisms. Rather, he offered the strikingly bold conclusion that a republican empire can solve the problems associated with republicanism on the one hand and empire on the other. With Montesquieu, Robertson, and Gibbon he supported the idea of a federation of states, but he rejected their model of an alliance of sovereign states. Such an alliance is sustained by a balance of power in the international arena in much the same way that the domestic balance of power achieves stability and the peaceful coexistence among the different and conflicting classes and interests within a given society. In contrast to this, Madison envisioned a sharing of sovereign or constitutional authority between the states and the central government. In the most fundamental sense of sovereignty, however, Madison did not believe it is the province of either the states or the federal government, but that it resides with the people themselves and is expressed in the ongoing will and opinion of the society. The sovereignty of public opinion was not for Madison a mere abstraction or a pseudodemocratic sleight of hand. It was the active expression of the fundamental authority of popular government and the process by which the spirit of republicanism renews itself through civic activity. Contemporary scholars who insist on defining the challenge Madison posed in narrow, analytically sterile terms miss the fundamentally human and dynamically political character of his political thought. For Madison, the “great desideratum” was not to depoliticize and anesthetize the opinions and mores of the citizens and replace the expression of different views of justice with shrewd mechanical arrangements, but to provide 32

“Public Opinion,” PJM 14:170.

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an environment in which the various views of justice can be expressed, enhanced, and, to the extent possible, harmonized.33 Madison’s response to the classical dilemma of polity versus empire and the modern problem of despotic empire was to promote the founding of a federal republican “empire of reason.” He distinguished this from the “overgrown empires” of Persia, Macedonia, and Rome, in which there were insufficient local organs of government to collect and convey public opinion. Consolidated government in a large territory does degenerate into despotism. A federal republican union, grounded in the sovereignty and ongoing politics of public opinion, however, simultaneously derives support from the liberty of the citizens that one finds in the polis and the external strength associated with empire. It provides for the communication and combination of the citizens’ sentiments and views, the prevention of governmental oppression, and the maintenance of governmental dependence on the will of the society. In the long and rich “digression” to Jefferson in his October 24, 1787, letter, which he refers to in the “Notes,” we recall that Madison called for a modification of the sovereignty to achieve the “great desideratum of Government.”34 It has often been noted that the task of modifying the sovereignty in order to achieve impartial government (of which Madison also spoke in “Vices of the Political System of the United States” and in his letter of April 16, 1787, to Washington) refers to the change from confederalism and state sovereignty to union and federal supremacy under the terms of the new Constitution. Madison certainly intended this, but he also meant to accomplish much more than a structural shift of power in the new nation. He did not mean simply a shifting of the locus of authority from the states to the national legislature, thereby placing his confidence in representatives of larger electoral districts who, in all probability, would be less local in spirit, better educated, and of a more, or at least broader, reputable character. He meant also, and fundamentally, the modification of the sovereign opinion of the public, on which he insisted the representatives of republican government must continually depend for their political authority. The extension of the territory, representation, separation of powers, checks and balances, and federalism are essential parts of Madisonian republicanism, but they are leitmotifs to his grand narrative of self-government. The success of the experiment in self-government requires the establishment of a dynamic communicative process throughout the society that both 33 34

See, for example, “A Candid State of Parties,” PJM 14:371–72. PJM 10:209.

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favors liberty and promotes self-control. The environment most conducive to this, Madison believed, is a vast land filled with intelligent, sturdy yeomanfarmers of independent means and virtuous character. No less essential to a well-ordered republic are literate and enlightened private citizens, whose contribution to the health of the citizens’ minds and souls places them in a rank above the manufacturer or merchant or sailor. To this indispensable class of “cultivators of the human mind” and “manufacturers of useful knowledge,” who act as “the agents of the commerce of ideas” and “the censors of public manners,” Madison added the philosopher and the divine. In fact, he placed the latter at the apex of the distribution of occupations and vocations in a republic. They are no less necessary to the new republic than to the old, though in the new world they are without special privilege or official place. The philosopher and the divine have the most difficult but also most important commission of all, for they are tasked with teaching their fellow citizens “the arts of life and the means of happiness.”35 Drew McCoy has remarked that Madison’s analysis of the well-ordered republic in the “Notes on Government” and Party Press Essays reflects classical republican assumptions, particularly evident in his praise of the way of life of the virtuous, independent yeoman-farmer and his negative opinion of industrialization, urbanization, wage labor, and wide disparities of wealth. Madison’s description of the occupations of the citizens of a republic is in fact strikingly similar to a blending of Aristotle’s (and Barth´elemy’s) description of the citizens in the best sort of democracy with that of the middling element in the best practicable polity.36 Despite the classical flavor of Madison’s description of republican citizens, McCoy argues that Madison was also in favor of free trade and commerce and thus was “caught between the claims of classical republicanism and modern commercial society.”37 McCoy’s assessment forms part of a decades-long debate concerning the character of the political thought of the American Founders. Were they classical republicans or modern liberals? Were they allied more with the ancients or the moderns in the battle of ideas between the two conflicting philosophies? Or did they achieve a synthesis of both, however witting or unwitting, however coherent or contradictory such an amalgamation of ideas might be? Reams of paper have been devoted to this debate by numerous scholars. Many have concluded that the synthesis theory must prevail, and some have

35 36 37

“Notes on Government,” PJM 14:168. Aristotle, Politics VI:4, 186–87 (1318b6–1319a19); Voyage 5:62, 257. Drew R. McCoy, The Elusive Republic: Political Economy and the American Revolution (Chapel Hill: University of North Carolina Press, 1992), 134.

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determined that the debate has been exhausted. But as Alan Gibson has shown in his fine study and exposition of this contemporary debate, “even if this [amalgam theory] approach is superior to an either/or formulation, it raises as many questions as it dissolves.”38 Among the issues that remain are whether the contemporary categories of analysis have clarified and improved our understanding of the Founding and whether, in some instances, a more thorough and careful exploration of the individual thought of central figures of the Founding generation is needed. A study of Madison’s ideas in the “Notes on Government” contributes to advancing the latter project and helps us to situate his thought within categories of inquiry that he himself employed. There is no doubt that in practical politics and in all of his major theoretical endeavors throughout his life, including the “Notes on Government,” Madison’s dedication to republican government included the commitment to natural human equality, popular sovereignty, and the rights and liberties of mankind. There is little disagreement among contemporary scholars regarding the modern character of these ideas, though it should be pointed out that in some analyses of classical thought, including Barth´elemy’s, the ideas of popular sovereignty, equality, and liberty are purportedly found in Aristotle’s discussion of the democrats’ perspective and are not simply dismissed by the Stagarite philosopher.39 In part, the contemporary controversy concerns how Madison intended to secure political liberty and implement the principles of republicanism in America. Did he believe that mechanistic governmental arrangements that channel passions and self-interest are a substitute for the traditional methods of quelling faction, making enlightened statesmen and the formation of civic character unnecessary to achieving the ends of political life? Was the political task he envisioned characterized by a lowering of the ends of political life? Or does his analysis of popular government reveal a dependence on the formation of an active citizenry capable of self-government and, at least at critical moments, the presence of enlightened statesmen, thereby reflecting a substantive classical republican component in his political thought? While the synthesis theory historians and political scientists now generally accept is that Madison was part of a Founding tradition that embodied both the need for modern defensive political mechanisms and the traditional emphasis on statesmanship, which of these influences was ascendant remains a point of 38 39

Alan Gibson, “Ancients, Moderns and Americans: The Republicanism–Liberalism Debate Revisited,” History of Political Thought 21:2 (2002), 265. See Martin Ostwald’s excellent treatment of the classical notion of popular sovereignty in From Popular Sovereignty to the Sovereignty of Law: Law, Society, and Politics in FifthCentury Athens (Berkeley: University of California Press, 1986).

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significant controversy. Those whom Gibson labels the “Neo-Lockeans,” for example, have abandoned an earlier emphasis on the selfish, atomistic individualism of an earlier generation of scholars and accepted that liberalism itself has some need for “virtue, community and the common good.” Still, they contend, modern liberalism was the most prevalent influence. Scholars who in the past vigorously advanced the classical republican interpretation now generally maintain “that they had never meant to suggest that republicanism and liberalism were rival and mutually exclusive traditions of political thought.”40 What is generally lacking still, however, is a serious discussion of the component of Madison’s thought that calls for the active role of an enlightened citizenry in republican self-government. In one sense, the shifting and broadening positions of scholars on this issue have added a much-needed recognition of the complexity and nuance that characterize the thought of the Founders. In another sense, however, the “neither/both” synthesis obscures critical distinctions in the history of political ideas. The difficulty stems in part from a definition of liberalism that is exclusively the product of modern philosophy. If we are willing to shed our contemporary parochialism and to think beyond the definitions that are prevalent today, we may be able to gain a perspective on the matter that is perhaps more consonant with Madison’s. In “The Dialogic Community: Education, Leadership, and Participation in James Madison’s Thought,” Bradley Kent Carter and Joseph F. Kobylka argue that we must be especially on guard against employing an anachronistic account of the political problem when judging the character of the Founders’ thought.41 For example, if we insist on direct participation in a small polis and sumptuary laws as necessary conditions for determining Madison’s seriousness about participatory republicanism and the formation of civic character, then, of course, we must conclude that his brand of republicanism does not reflect the classical spirit. I would add that such insistence is also a rejection of the approach of classical political philosophy in favor of modern abstract political theory; the former begins with the actual conditions of political life, with which the latter is unconcerned. According to Carter and Kobylka, Madison puts the problem of community in perspective: a large republic must use representative political institutions, and its citizens will perforce aggregate to make their voice heard. Neither tendency, by itself, leads to loss of community and participation, 40 41

Gibson, “Ancients, Moderns and Americans,” 280–81. Joseph F. Kobylka, “The Dialogic Community: Education, Leadership, and Participation in James Madison’s Thought,” The Review of Politics 52 (Winter 1990), 32–63.

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but it does lead to a redefinition of both. A continental commonwealth cannot be a Greek polis; the assembly of all must give way to representative bodies. Face-to-face forensic discussion must yield to pen, press, and petition; the public interest must form and unite across the miles.42

Envisioning new means for the education of the citizenry in the extended republic, Madison “believed public opinion set the bounds of government and [public] debate, written or spoken, informed and elevated.” He envisioned, in short, “a dialogical community,” based not on possessive individualism or market liberalism, but on “a marketplace of ideas operating in a system premised on shared principles.”43 In addition to avoiding the temptation to conceptualize liberalism in exclusively modern terms, we should avoid adopting a definition of republicanism that is trapped in history. Republicanism and liberalism were not always thought of as mutually exclusive categories. Consider the distinction between classical and modern republics, on the one hand, and classical and modern liberalism, on the other.44 As Harvey C. Mansfield has argued, “republicanism . . . is not a continuous tradition from ancient to modern times,” though some contemporary scholars have applied the term “classical republican” to political orders that in their essence constitute a rejection of the substantive principles of classical republicanism.45 In fact, classical republicanism was in its essence liberal (in the classical sense of the word), and modern republics might retain a place for the principles of classical liberalism.46 Madison and the other Founders did not make a distinction between republicanism and liberalism. Rather, the distinction that Madison often employed was that between ancient and modern, as in ancient and modern republics or ancient and modern confederacies. Usually, he employed these terms to denote historical eras. In contemporary scholarship, Montesquieu’s theory of the British constitution is usually described as modern republicanism, and for good reason, since Montesquieu himself identified Great Britain as a republic, albeit one that was based on a new conception of the republican form.47 Madison, however, denied the name of republic to 42 43 44 45 46 47

Ibid., 38–39. Ibid., 47, 59. See Leo Strauss, Liberalism Ancient and Modern (Ithaca, N.Y.: Cornell University Press, 1968), 26–64, and passim. Harvey C. Mansfield, Machiavelli’s Virtue (Chicago: University of Chicago Press, 1996), 293. Strauss, Liberalism Ancient and Modern, 15. See Montesquieu, SOL 5:19, 70; cf. 11:6.

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the British constitutional model. He did not accept that the republican form of government was so protean an idea that it could be rent from its fundamental principle of liberty understood as active popular sovereignty. He was fully aware that Montesquieu and other balanced government theorists were attempting to redefine the meaning of republicanism, and he explicitly and soundly rejected their project. Madison did not deny the significant contributions made by those who analyzed the mechanics of governmental arrangements, but like the “practical” author Jonathan Swift, he refused to accede to the idea that such balances and weights could serve as substitutes for the formation of a republican citizenry whose opinion is fundamentally determinative of the nation’s ethos. As a reader of Swift’s works, Madison was familiar with the essential distinction between ancient and modern political philosophy. In this sense, he recognized the categories of ancient and modern as substantively and not merely historically grounded. It is important to note, however, that Swift’s description of the quarrel between the ancients and the moderns rejects the modern redefinition of the ends of republicanism. Rather, the categorization illuminates the differing conceptions of the ends of political life and the distinct approaches employed to achieve those ends. In the case of ancient political philosophy, the ends of political life are not synonymous with the summum bonum, but they are conducive to the most honorable and noble human aspirations. In the work of modern political philosophers, there is a conscious lowering of the ends of politics. For example, Hobbes adopted the deductive method of modern natural science, which severs politics from ethics and makes it a science in its own right. This move opened up the prospect of constructing a theory of the modern impersonal state that denies the substantive nature of opinions about justice that so occupied the classical political philosophers.48 Montesquieu’s new definition of republicanism is part of this attempt to construct a political order that is based on the impersonal rule of law in such a manner that its impartiality does not depend on the existence of a dominant, substantive view of justice in the society. To a significant extent, but without the Frenchman’s nuance, Adams adopted Montesquieu’s perspective; Madison feared that others in America might settle for it as well. Madison did not reject their aim to establish an equilibrium or balance in the powers of government, thereby providing greater security to individuals against the concentration of power and governmental oppression. He accepted this uniquely modern view of liberty. What is decisive, however, 48

See Mansfield, Machiavelli’s Virtue, 293.

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is that he did not intend this conception of liberty as individual security to replace the broader and richer view of republican liberty that he discovered in the literature of the classics. The need to form an active citizenry whose ongoing participation in the life of the polity and responsibility for its destiny was no less part of Madison’s republican vision than the doctrine of separation of powers and checks and balances. It was, in fact, the more overarching concern for him. The modification of public opinion and the formation of the character of a republican citizenry is the crux of his political theory; it is the reason that he concentrated so much of his efforts on constructing a political environment that would encourage the commerce of ideas. Madison did not abandon the classical project.49 Instead, he consciously understood himself to be engaged in constructing the political order for which “philosophy has been searching . . . from the most remote ages.” This was, for him, still the most vital quest of humanity and the architectonic political charge. Indeed, it is the timeless quest of the political philosopher and the humane legislator – the former to construct in the mind and the latter to erect in practice a republic that, as much as possible, answers the call of the human spirit. In Madison’s republic, public opinion is the means by which the spirit of the nation is released and its energy communicated to others. It is, in Sayers’s formulation, a “social power” that works to “bring all minds into its own unity.” Public morality and law constantly reshape themselves within the boundaries set by public opinion; majority opinion is ever in the process of reconstructing itself within its perimeters. Public opinion is the social power that can revitalize the republican idea within the minds and souls of the citizens and fortify the nerve that links together the ethos and the aspirations of republican self-government. 49

See Marvin Meyers’s discussion of this issue in “The Least Imperfect Government: On Martin Diamond’s ‘Ethics and Politics,’” Interpretation: A Journal of Political Philosophy 8:3 (1980), 5–15. According to Meyers, the Founders did not consider themselves as part of a “great campaign” against the ancients, though most of them did oppose the modern notion of republicanism that attempted to blend “remnants of the canon and feudal law”; the latter included John Adams and others who held up the corrupt British monarchy as the model for America.

Epilogue The Philosopher’s Stone and the Poet’s Reprise

When John F. Kennedy stood on the Capitol steps and took the oath of office as the thirty-fifth president of the United States on that hoary January day, America had only fifteen years before defeated the greatest external threat to freedom the Western world had yet known. By 1961, with the advances in military technology and the increasing threats associated with the Cold War, the world had become a different and a more dangerous place since America’s birth in 1776. “Yet,” Kennedy said, paraphrasing the words of Jefferson, “the same revolutionary beliefs for which our forebears fought are still at issue around the globe – the belief that the rights of man come not from the generosity of the state, but from the hand of God. We dare not forget today that we are the heirs of that first revolution.” And “let every nation know,” Kennedy continued, “that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.”1 Almost a half-century later, with technology keeping stride with the passage of time, our world is now an even more dangerous place. The Cold War may be over, but the threats to freedom and the burden that must be borne by its defenders have not lessened. Following the terrorist attack on the United States on September 11, 2001, President George W. Bush remarked in his second inaugural address that the American “response came like a single hand over a single heart.” “Freedom is the permanent hope of mankind, the hunger in dark places, the longing of the soul,” he said. The hope of our Founders, of Union soldiers, and of the citizens who, 1

Richard D. Heffner, A Documentary History of the United States, 7th ed. (New York: New American Library, 2002), 387.

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still today, marched “under the banner ‘Freedom Now’” were acting on the basis of this “ancient hope.” On what will America’s success or failure against the enemies of freedom depend? Do we have what is required to sustain freedom in our age? Terrorism is one of the threats to freedom in our world today, but it is not the only one. Every political order has a way of life that is ever in the process of growing stronger or becoming weaker. Like individuals, it has a particular ethos or character, a kind of unique identification print; unlike the DNA print of a human being, however, the print of a nation can become clearer and sharper over time, embedding itself in the land, or it can become blurred and distorted, and perhaps expunged. A nation can be destroyed by either outside forces or inner deterioration, but it can be preserved only by strength from within, by a citizenry conscious of its own purpose and commitments. A land that is able to maintain itself must have the courage and strength to fight against that which would destroy it, and even more importantly, it must know what is worth fighting for. If the people of the United States today find common agreement in their commitment to human freedom, it is not because they all mean the same thing by the same words. In fact, on some issues that Americans believe are of fundamental importance, there is a marked difference of views, or at least a lack of consensus and settled opinion within the country. This is the case with economic and foreign policy, as it is with many social and moral issues confronting our nation today. Although the same words and phrases are often invoked in contemporary debates over these same concerns, the American citizenry is essentially divided into two groups with opposing principles. The plea for toleration does not and cannot settle these disagreements. This is a lesson we need to learn. The toleration of one version of freedom too often means the destruction of another. America is, now as much as ever, in need of a good and substantive definition of freedom. But in this, public opinion in the nation does not speak with a single voice, and there are many hands placed over many hearts that do not love the same things. Madison would not have advocated toleration as the remedy for our current civic difficulties. He was not a pluralist or a moral relativist; he never considered toleration a principle of free government. He did not think that a mere aggregation of interests could justly solve the problems of disagreement and conflict within democratic nations, and he never valued toleration in and of itself. In regard to the most fundamental human rights and duties, he looked upon the appeal to toleration as a show of condescension. The duty of free citizens, he believed, is to consult their consciences and to form a

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“common cause” on the basis of republican principles in spite of their many and differing interests and sentiments. This common cause is encapsulated in public opinion, the sovereign authority in all free governments. The issue of the respect due to public opinion was at the core of Madison’s ideas and actions during the Founding era. Indeed, it was the central issue in the dispute between the Republicans and the Federalists in the 1790s. It stamped their divergent views of the expectations for the new constitutional order they helped to frame and the new nation they were working to build. The disagreement shook the foundations of the nascent political order and gave definition to the challenge of self-rule in America. The concerns, insights, and analyses of Madison and the Founders regarding public opinion are no less relevant to contemporary American citizens than they were to citizens of the early republic. The respect due to public opinion is a perennial issue of American politics and a critical question of contemporary democratic theory. With extraordinary advances in communications technology over the past few decades, the potential power of public opinion in the United States is in fact today at its historic height. Yet, as Daniel Yankelovich has perceptively noted, in our age little attention is given to how we might identify and enhance the quality of public opinion. There is an essential difference between “mass opinion” and “public judgment,” he argues, and while we “have learned a great deal about how to measure public opinion (and how to manipulate it) [we] . . . have almost nothing to say about how to improve it.”2 Accordingly, Yankelovich and other “deliberationist” theorists have been working to remedy the lack of attention to the qualitative aspect of public opinion in contemporary studies. The respect due to public opinion depends on whether the processes and conditions of political communications produce an informed and reasonable public opinion, they argue; the formation of public opinion through “collective deliberation is essential to the realization of democratic ideals.”3 Madison would have agreed. Indeed, he was the first democratic theorist in America to make explicit the central importance of public opinion to free government and the conditions that are needed for its proper formation and articulation. Ironically, however, Madison’s theory of public opinion is either neglected by the deliberationist theorists or he is ascribed virtually the opposite view on the subject than the one he actually held. The Founders, including Madison, “tended to take the idea of deliberation in an elitist

2

3

Daniel Yankelovich, Coming to Public Judgment: Making Democracy Work in a Complex World (Syracuse, N.Y.: Syracuse University Press, 1991), 15–23, 1, xi–xii. Benjamin I. Page and Robert Y. Shapiro, The Rational Public: Fifty Years of Trends in Americans’ Policy Preferences (Chicago: University of Chicago Press, 1992), 363.

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direction, disdaining public opinion and attempting to insulate leaders from it,” Page and Shapiro contend.4 Yankelovich, Shapiro, Page, and others have sparked a renewed concern over the quality of civic understanding and the content of democracy in America. At the same time, however, they have divorced the idea of a rational public from one of Madison’s primary concerns, that is, the substantive moral content of public judgment. While Yankelovich claims to consider the ethical as well as the cognitive dimensions of public opinion, a moral standard by which to measure the quality of public opinion is conspicuously lacking in his discussion. Rather, he defines the quality of public opinion by its degree of firmness and consistency and the public’s willingness to take responsibility for the consequences of its views.5 Page and Shapiro justify their claim that collective public opinion is “‘reasonable,’ ‘responsible,’ and ‘rational’” on the basis of its “general stability, differentiation, and coherent patterning of collective policy preferences, and . . . responsiveness to new situations and new information.”6 They concede, however, that even if public opinion is stable and predictable, this does not “dispose of the Founders’ concern that majority opinion might be dangerous to ‘rights’” or that some demands of the majority might be “improper or wicked.”7 Nonetheless, they argue that “in our secular times, skeptical of absolutes and sensitive to trade-offs, it is not easy to specify rights that deserve complete protection against majority rule.” The unwillingness of many contemporary political theorists to make a substantive moral distinction between just and tyrannical public opinion undermines the conditions for popular government set forth by Madison, leaving the majority with no greater claim to rule than the most oppressive despot. In contrast to contemporary democratic theorists, Madison consciously sought to overcome the problem of majority tyranny and to anchor public opinion in the moral principles of republicanism. In attempting to preserve not only the form but also the spirit of republicanism, Madison’s remedy harkened back to the classical concern for forming the minds and characters of the citizens. This separated him from other Founders who believed that the new science of politics allowed modern thinkers to end the futile quest for the Holy Grail of politics. “We may preach till we are tired of the theme,” Hamilton wrote, the classical fervor for virtue and “disinterestedness in 4

5 6 7

Ibid., 363; cf. Lawrence R. Jacobs and Robert Y. Shapiro, Politicians Don’t Pander: Political Manipulation and the Loss of Democratic Responsiveness (Chicago: University of Chicago Press, 2000), 299. Yankelovich, Coming to Public Judgment, 5, 24. Page and Shapiro, The Rational Public, 388. Ibid., 438.

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republics, without making a single proselyte.” The dissimilarity between the ancients and the moderns in the circumstances and manners of society is total, Hamilton argued, and “it is as ridiculous to seek for models in the simple ages of Greece and Rome, as it would be to go in quest of them among the Hottentots and Laplanders.”8 Madison too believed that there were important differences in the circumstances of ancient and modern civil society, one of which was the great strides made in commerce in the modern era, enabling not only the commerce of goods but the commerce of ideas over a vast territorial distance. However, this did not mean for him that the difficult task of forming the character of republican citizens should now be abandoned. It meant just the opposite: that the republican order for which “philosophy has been searching, and humanity has been sighing, from the most remote ages” is not a futile quest at all, but is now, in the modern world, a genuine possibility.9 Madison never meant to imply that he had discovered anything like the Philosopher’s Stone. He understood that the difficulties and dangers of republican government are sown in and spring from the very nature of man. There is, as it were, no formulaic solution or easy fix to the form of political community grounded in the complex nature of humanity and the freedom of mind and will that demands, in every age and for every people, the trial of self-government. This demand is not premised on a guarantee; it is built on an aspiration. Alexis de Tocqueville’s warning about the problem of the tyranny of the majority in Democracy in America has often alarmed readers and prompted a search for a model of government that can resist the omnipotence of public opinion.10 Certainly, Tocqueville was right that public opinion is an unparalleled force in the modern world, a power that cannot be ignored or neglected by those who would attempt to found or perpetuate a decent political order. But Tocqueville’s warning about the power of public opinion is just as much the advice of a cautious but nonetheless hopeful observer about the prospects of democracy in the modern world as it is the counsel of prudence about the conditions of freedom in future ages. Like Aristotle and Madison, Tocqueville understood as well as anyone that there is no panacea that will catapult us into the golden age. To attempt to devise a system that rids us of the aspiration, however, is no less tyrannical than one

8 9 10

The Continentalist, No. 6, July 4, 1782, PAH III:103. “Spirit of Governments,” PJM 14:234. Alexis de Tocqueville, Democracy in America, J. P. Mayer, ed. (New York: Harper Perennial, 1969), 246–61.

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that guarantees its attainment. In politics, the golden age is better thought of as a quest of which each of us is a part and that adds up to something we call a “community.” The journey of the community depends, finally, on the journey of each individual soul. This is the challenge and the paradox of the search for the Philosopher’s Stone. The quest for knowledge is one that requires the greatest of efforts. In some respects, the effort – which is nothing short of the work of making moral choices – is even more important than the knowledge gained. As Shakespeare’s Portia taught, to do is often more difficult than to know what to do: if chapels had been churches, poor men’s cottages would be princes’ palaces. The truth at the core of the Philosopher’s Stone has been uncovered in our time by the young philosopher Harry Potter, and by a noted philosopher or two in times before him. Neither magic nor modern science and technology can produce the prized possession. They cannot solve the mysteries of human life and the universe because the very nature of our being does not admit of such “solutions.” The Sorting Hat put Harry Potter in Gryffindor, not Slytherin, not because Harry was without resourcefulness and a certain amount of unscrupulousness in the way he disregarded the rules, but because he “asked not to go in Slytherin.” You now understand, Dumbledore told Harry, what makes you different from Voldemort. “It is our choices, Harry, that show what we truly are, far more than our abilities.”11 When Robert Frost realized that he would be unable to read the poem “Dedication” at Kennedy’s inauguration, he remarked to the audience, “I think I’ll say, this was to be a preface to the poem I can say to you without seeing it.”12 The poem he could recite without text was “The Gift Outright.” Thus, according to Frost, “Dedication” is the preface to “The Gift Outright.” But “dedication” to what? Frost meant, of course, to offer the new poem to mark the dedication ceremony of John F. Kennedy’s ascension to the presidency. But the poem itself reveals, not surprisingly, that there was more in Frost’s mind than merely the commemoration of the moment. He meant especially to pay tribute to the principles of the American Founding. Frost’s “Dedication” is a dedication to remember and to act upon the understanding of the deed of gift, the gift of freedom, that has been bestowed on humanity. This is what it means, he tells us in “The Gift Outright,” to belong to the land we call America. America’s creed is not only for its citizens, but 11 12

See Alan Jacobs, “Harry Potter’s Magic,” First Things 99 (2000), 35–38. Quoted in Lawrance Thompson and R. H. Winnick, Robert Frost: The Later Years, 1938– 1963 (New York: Holt, Rinehart and Winston, 1976), 281.

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applies to all human beings and calls all to its standard. In being the first people to adopt by constitutional decree the “new order of the ages,” Americans made their nation a harbinger to the rest of world and, as such, are for the time being the caretakers and teachers of the creed. Our task, Frost tells us, is to teach others “how Democracy is meant.” The new order of the ages is “A democratic form of right divine/To rule first answerable to high design.” In 1956 Frost delivered a talk to the graduating class of Sarah Lawrence College, choosing as his themes freedom and self-government. I have never particularly valued the freedom that’s conferred on me, he remarked. “I value myself on the liberties I take, and I have learned to appreciate the word ‘unscrupulous.’”13 There is a certain measure of unscrupulousness in bending a story one is telling, for example – in not being a “sticker at trifles.” I do not mean, Frost said, you should lie – that is corruption – but you should leave out what you don’t want to say. It’s like Toynbee, he said, “when he writes about the history of the world – you know, he leaves Vermont out – unscrupulous.” Frost believed that we should be unscrupulous especially in our thinking. Too much following the rules for its own sake is numb dependence; it is just fretful uncertainty and timidity. There are some questions that we pick up in college, or along the way, that are worth picking up again and again the rest of our lives. We should treat them like knitting that is kept to be picked up at odd moments. We should pick them up not in a spirit of uncertainty and diffidence, but to knit our brows over, “to have ideas about.” I don’t mean just to opinionate about, Frost said. “Opinion is just a pro and con, having your nose counted.” No, I mean things that you form ideas about. “That’s something more.” One of the things I have been knitting about lately, Frost mused, is this thing called “the dream.” It gets thrown in my face every now and again, and always by someone who doesn’t believe it has come true. When I pick it up, “I wonder what the dream is, or why. And the next time I pick it up, I wonder who dreamed it. Did Tom Paine dream it? Did Thomas Jefferson dream it: did George Washington dream it? Gouverneur Morris?

“Lately I’ve decided,” Frost told his audience, that “the best dreamer of it was Madison.” I’ve been reading The Federalist Papers, he said, and I wonder if Madison’s dream is a dream for us today, and for future generations, 13

Robert Frost, “A Talk for Students” (New York: Fund for the Republic, 1956). The original version of Frost’s commencement address, overscored with revisions by the Fund for the Republic, can be found at Princeton University Library.

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or has it gone by? “Can we treat the Constitution as if it were something gone by? Can we interpret it out of existence?” Does it mean something different every day until it wouldn’t mean anything at all to Madison? In the course of his address at Sarah Lawrence College, Frost recited two of his favorite poems, “The Gift Outright” and “Birches.” He implied that the two poems are intrinsically linked, though he left it to his audience to draw the connection. “I should prefer to have some boy bend” the birches and ride them down and take the stiffness out, Frost wrote in “Birches” – a boy, who learned all there was To learn about not launching out too soon And so not carrying the tree away Clear to the ground. He always kept his poise To the top branches, climbing carefully With the same pains you use to fill a cup Up to the brim, and even above the brim. Then he flung outward, feet first, with a swish, Kicking his way down through the air to the ground.

“So was I once myself a swinger of birches,” Frost admitted. “And so I dream of going back to be.” I think of “climbing black branches up a snowwhite trunk toward heaven, till the tree could bear no more, but dipped its top and set me down again.” The boy who swung on birches knew just how far he could bend the tree until it could bear no more. He was spirited in his climb up. But he also knew the measure. He knew not to launch out too soon and bring the tree to its knees, but to let it dip and set him down gently. Madison’s dream, like the New England boy’s, was a dream of ascent to freedom. It was a dream not so much of liberty conferred but rather of liberties to be taken. Madison challenged Americans to climb to the top with poise and then to launch outward, feet first, with a swish. He encouraged us to use our freedom to form ideas, not just to voice opinions pro or con, but to craft our opinions into ideas and knit them into the broadcloth of the public mind. Frost knew that he himself was a bit of a rebel, perhaps even an unscrupulous democrat. But he always respected the measure. “Measure always reassures me,” Frost said. “Now I know, I think I know, as of today – what Madison’s dream was. It was just a dream of a new land to fulfill with people in self-control. In self-control. That is all through his thinking.” Madison’s “dream was to occupy the land with character – that is another way to put it – to occupy a new land with character.” Frost admired the boy who climbed the white birch as high as he could, but knew not to

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launch out too soon or to bring the tree to its knees – like filling a cup to the brim, and even just above the brim, without letting it spill over. Frost offers these vignettes to show us the point of conjunction between freedom and self-control. In these homely illustrations he teaches us the meaning of self-government in a land of seemingly unlimited horizons. Self-government is the idea that makes the land we call America something more than the land. It is the spirit that makes us who we are and it is the measure of what we can become.

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Allen, William B., ed. Works of Fisher Ames, as Published by Seth Ames, 2 vols. Indianapolis: Liberty Classics, 1983. “Justice and the General Good: Federalist 51.” In Saving the Revolution: The Federalist Papers and the American Founding, edited by Charles R. Kesler, 131–49. New York: Free Press, 1987. “The Constitution to End All Constitutions: The Descent of the American Founding into the Twentieth Century, or The Perfect State Is Not Ideal.” Michigan State University. http://www.msu.edu/∼allenwi/presentations/Constitution_to_ End_all_Constitutions. Allen, William B. with Kevin A. Cloonan. The Federalist: A Commentary. New York: Peter Lang, 2000. Allison, John Murray. Adams and Jefferson. Norman: University of Oklahoma Press, 1966. Aquinas, St. Thomas. Summa Theologica. In Aquinas Ethicas: Or, the Moral Teaching of St. Thomas, Vol. II. Edited and translated by Joseph Rickaby Thomas. New York: Benziger Bros., 1896. Aristotle. Nichomachean Ethics. Translated by Martin Ostwald. New York: Macmillan, 1962. Politics. Translated by Carnes Lord. Chicago: University of Chicago Press, 1984. Austen, Jane. The Complete Novels of Jane Austen, 2 vols. New York: Modern Library, 1992. Baines, Paul and Edward Burns, eds. Five Romantic Plays, 1768–1821. Oxford: Oxford University Press, 2000. Baker, Keith Michael. Condorcet: From Natural Philosophy to Social Mathematics. Chicago: University of Chicago Press, 1975. Inventing the French Revolution: Essays on French Political Culture in the Eighteenth Century. Cambridge: Cambridge University Press, 1990. Banning, Lance. The Jeffersonian Persuasion. Ithaca, N.Y.: Cornell University Press, 1978. “The Hamiltonian Madison: A Reconsideration.” Virginia Magazine of History and Biography 92 (1984): 3–28. 185

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Index

Acad´emie française, 159 Adams, John, xiii, xv, 8, 9, 12, 19, 21, 28, 31, 36, 121, 123, 124–127, 162 administration of, 13, 52, 127, 128, 130, 134, 174 on balanced government, 18, 22, 32, 34n5, 35, 158, 162n13, 164 on British constitution, 17, 22, 25, 32, 60 character and personality of, xiv, 32, 33, 40, 128 on citizenship and virtue, 165 Defence of the Constitutions of Government of the United States of America, 33 on republicanism, 29, 31n1, 175n49 view of Franklin and Washington, 33 view of Hamilton, 32 view of Jefferson, xv, 126 and use of British-style titles, 17 agriculture, 42, 48, 104, 114, 117 Alexander, 159 Allen, William B., 9n23, 67n35 Alien and Sedition Acts, 13, 28, 40, 52–53, 107, 113, 119, 130, 131, 132n16, 133. See also Kentucky Resolutions; Virginia Resolutions American Revolution, 4, 78, 85. See also Revolutionary War Ames, Fisher, 123, 128

ancients and moderns, 11, 13, 18, 73, 158, 170, 173, 174, 180 Antifederalists, 16, 31 Aquinas, St. Thomas, 2, 2n5 aristocracy, 6, 17, 21, 36, 44, 59, 161 Aristotle, xvii, xviin11, 2, 14, 71n49, 72n55, 86n5, 156, 158–171, 180 Articles of Confederation, 16 Austen, Jane, 46 Bacon, Francis, 57, 57n3 Baker, Keith Michael, 62, 82n95 balanced government, 11, 22, 23, 32, 35, 35n8, 55, 58–59, 61, 67, 75n71, 76, 77, 84, 158, 162, 174 Banning, Lance, 6, 9, 93n26 Barth´elemy, Jean Jacques, 19, 63, 66, 71, 72, 72n55, 157, 157n3, 158–160, 164, 166, 170, 171. See also Voyage of Anacharsis Beard, Charles A., 4 bill of rights, 13, 16, 17, 95, 107, 108–109, 120, 136 Boufflers, Stanislaus Jean, Chevalier de, 159 Brissot de Warville, Jacques Pierre, 63, 78, 144, 159 British constitution, 12, 18, 22, 32, 36, 46, 47, 58, 61, 66, 79, 81, 83, 161, 173

197

198 British government, 17, 23, 28, 58n5, 59–61. See also British constitution Bruy`ere, Jean de la, 63 Burr, Aaron, 53, 129–130 Bush, George W., 176 Calhoun, John C., 134 Carr, Peter, 143 Carter, Bradley Kent, 172 Chastellux, François Jean de Beauvoir, Marquis de, 63 checks and balances, 13, 22, 34, 58, 67, 77, 81, 82, 85, 90, 94, 167, 169, 175 citizenship, 14, 75n71, 166 commerce, 3, 36, 39, 42, 52, 104, 115, 116, 117, 123, 167, 170, 175, 180 commerce of ideas, 85, 94, 100, 103, 104, 105, 123, 168, 170, 175, 180 commercial discrimination, 13, 16, 26, 27, 52, 107, 116, 120 commercial republic, 49, 51n61, 104, 122, 122n50 common law, 53 Condorcet, Marie Jean Antoine Nicolas de Caritat, Marquis de, 39, 40, 55, 57, 63, 67, 68, 70, 71, 71n49, 74–77, 77n77, 79, 80n91, 81–82, 83, 136, 136n29, 143, 144, 145, 147, 147n52, 149, 150, 151 Congress, 8, 16–18, 23, 26, 48, 52, 84, 89, 100, 108, 116, 146 consolidation, 96n35 Constitution, U.S., xiv, 33, 35, 58, 77, 107–111, 112–113, 121, 125, 128, 133, 134, 136–138, 141, 154, 155 Constitutional Convention, 38, 108, 135, 137, 138, 140, 141n39, 142, 149 corruption, 17, 25, 35, 60, 76, 100, 112, 119, 182 Cosway, Maria, 144 Court and Country parties, 58 Declaration of Independence, xv, 33, 143, 150, 153, 154, 155

Index Defence of the Constitutions of Government of the United States of America, 17, 23, 36–39, 158, 163 deliberation, 75, 119 democracy, 5, 9n23, 55, 64, 78, 87, 88, 170, 179, 180, 182 Demosthenes, 159 Diamond, Martin, 4, 86n5, 96n35, 122n50 Dionysius Halicarnassus, 156, 162n13 Du Pont de Nemours, Pierre Samuel, 63, 70 economic development, 118 election of 1800, 8, 32, 53, 127, 129n9 elections, 95, 101, 102n55, 125, 141n39 Elkins, Stanley, 40 Encyclop´edie, 65n22, 69 Encyclop´edie m´ethodique, 63, 65, 65n22, 66, 67n35, 68, 73, 157, 162 England, 27, 28, 34, 51, 52, 60, 62, 115. See also Great Britain Enlightenment, 10, 11, 55, 57, 71, 79, 83 equality, 34, 76, 142, 171 e´ vidence, 69, 70, 75, 75n71, 81, 82n95, 83, 150 executive, 9, 11, 17, 27, 34, 35, 37, 46, 52, 61, 84, 100, 112, 113, 119, 123, 128, 129, 135 extended republic, 4, 13, 45, 88, 94, 100, 118, 122, 173. See also large republics faction(s), 5, 7, 45, 48, 50, 79, 82, 86, 86n5, 88, 89, 92–94, 96, 96n35, 97n37, 98, 99, 103, 114, 120, 122n50, 123, 126, 137, 167–169, 171 federalism, 13, 85, 101, 161, 169 Federalist, The, xv, xix, 7, 8, 9n23, 53, 56, 72n56, 83n99, 85, 88, 88n11, 94, 96, 98, 100, 118, 182 Federalist 10, 85, 92, 97, 100, 118 Federalist 14, 22n17, 85, 97

Index Federalist 39, xix Federalist 40, 137 Federalist 49, 83, 87, 91, 135, 137, 138, 139n33, 151 Federalist 50, 91, 138 Federalist 51, 90, 91 Federalist 63, 89, 98, 99 Federalist Party, 31, 52, 53, 130 Finlay, Christopher J., 104 foreign policy, 8, 27, 51–52, 107, 177 France, 11, 27, 28, 51, 52, 59, 62, 77, 78, 115–116, 125–126, 136, 139, 144, 160 Franklin, Benjamin, 33, 38, 39, 40, 128, 144, 157 free trade, 116, 149, 170. See also commerce freedom, xviii, xix, 34n5, 69, 97, 108, 149, 150, 152, 153, 154, 159, 160, 176, 177, 180, 181, 182, 183, 184. See also liberty French Revolution, 59 Freneau, Philip, 20 Frost, Robert, 1, 1n1, 3n6, 4, 14, 85, 167, 184 funding system, 19, 20, 23, 24, 41, 42, 111 Gallatin, Albert, 129, 130 Gazette of the United States, 17, 20, 158 Genˆet, Edmund, 28 Gibbon, Edward, 157, 168 Gibson, Alan, 5, 92n26, 93n26, 93n27, 171, 172 Great Britain, 11, 18, 26, 28, 33, 51, 52, 114, 125, 173 commercial policies of, 26, 27, 28, 115 Grouchy, Sophie de, 147 Habermas, Jurgen, 64, 64n21 ¨ Hamilton, Alexander, xiii, xv–xvi, 20, 23 on ancients vs. moderns, 179 on British constitution, 17, 25, 32, 47, 60

199 character and personality of, 40, 41 at Constitutional Convention, 44, 46 economic program of, 8, 16, 41, 43, 48, 114 on executive power, 46 foreign policy of, 8, 27, 51 on human nature, 50 on majority tyranny, 45 on manufacturing, 13, 25, 26, 43, 117, 118 on national bank, 8, 16, 42, 109, 116, 158 Pacificus essays, 51, 112, 114 on public debt, 24, 41, 107n1, 111, 116 relationship with Washington, 41 on republicanism, 29 view of Adams, xv, 32 view of Aaron Burr, 53 view of Jefferson, 53, 54, 57 view of Madison, xv, 53, 54, 56, 57, 111 Harrington, James, 38 Helv´etius, Claude Adrien, 147, 148 Helvidius letters, 112–114 Hobbes, Thomas, 11, 166, 174 House of Representatives, 44, 45, 46, 47, 61, 89, 92, 92n26, 94, 98, 100, 102n55, 112, 114, 116, 117, 119, 123, 129, 135, 157, 162, 169. See also Congress; legislature human nature, xiv, xviii, 29, 36, 47, 50, 71, 83, 85, 122n50, 149 Hume, David, 11, 47, 61, 62, 72n54, 83, 87n8, 104 interest(s), 38, 44, 47, 48, 75, 81, 83, 86, 86n5, 87, 87n8, 92n26, 93n26, 96n35, 116, 118, 177 general interest, 29, 43, 44–45, 46, 54, 75, 92, 94, 96–97, 100, 105, 112, 114, 123, 158 self-interest, 5, 6, 25, 30, 46, 47, 49, 49n54, 50, 51, 60, 61, 70, 73, 76, 77, 78, 79, 80n90, 82, 91, 96, 99, 119, 122, 122n50, 123, 141, 147, 148, 150, 152, 164, 168, 171

200 Jay, John, xv, 28, 52. See also Jay’s Treaty Jay Treaty, 28n33, 52, 115, 128 Jefferson, Thomas, 63, 182 and Aaron Burr, 129 on Barth´elemy, 157n3 character and personality of, xiv, 127, 138, 143, 146n52 draft constitution for Virginia, 13, 134, 135, 139 on education, 144 first inaugural address, 150 and French Enlightenment philosophy, 57 friendship with Madison, xiv, xv, 15, 54, 129, 154, 155, 156 on generational sovereignty, 13, 132n16, 134, 136, 136n29, 138, 143, 150 interpretations of, 31, 138, 146n52 as leader of Republican party, 13, 127, 129, 130 legacy of, 154 on majority rule, 150 on moral sense, 143, 146, 148n60, 149 Notes on the State of Virginia, 134, 137, 150n61 on perfectibility, 145, 149 on public opinion, 9n23, 109, 140 on the value of science, 146 vice presidency of, 124, 127, 128, 130 view of Adams, xv, 125 view of Federalists, 130 view of Hamilton, xv, 22, 28 Virginia Statute for Religious Liberty, 149 judiciary, 35, 46, 61, 135 Kennedy, John F. inauguration of, 1, 176, 181 on significance of Robert Frost, 3 Kentucky Resolutions, 28, 130, 134, 140n35 Kobylka, Joseph F., 172

Index La Rivi`ere, Pierre-Paul le Mercier de, 63, 63n16, 69, 75, 76 La Rochefoucauld, Louis Alexandre, Duke de, 144 Lafayette, Gilbert du Motier, Marquis de, 144 large republics, 85, 88, 96, 98, 119, 122n50, 168, 172 laws of nature, xviii, 136, 142, 149 Le Trosne, Guillaume François, 63, 63n16, 65, 69, 76 legislative districts, 89, 92, 93n26 legislature, 44, 45, 46, 47, 61, 89, 92, 92n26, 94, 98, 100, 102n55, 112, 114, 116, 117, 119, 123, 135, 162, 169. See also Congress upper house of, 37, 45, 46, 99 Lerner, Ralph, 36, 51n61 liberalism, 5, 172, 173 liberty, 7, 23, 26, 34n5, 38, 54, 55, 58, 60, 65, 67n34, 71n49, 75n71, 78, 78n82, 80n90, 86, 90, 91, 102n55, 117, 135, 146, 148, 150, 150n61, 153, 155, 160, 166, 167, 169, 170, 171, 174, 183 ancient and modern, 18, 73, 158, 173, 180 of press, 61, 78, 90, 91, 133, 153 religious liberty, 7, 61, 78, 90, 91, 149, 152, 153 Lincoln, Abraham, xviii Livy, 156 Locke, John, 11, 57, 58n4, 62 Mably, Gabriel Bonnot de, 63, 65, 65n28, 75, 76, 81, 83 Machiavelli, Niccolo, 4, 11 Madison, Dolley, 124 Madison, James, xvi–xix, 84 on agriculture and commerce, 26, 26n32, 27, 104, 116, 117 on ancient democracies, 99, 156, 158 on ancient republics, 99, 156, 158, 173 on Aristotle, 72n55, 163, 164, 167 on Barth´elemy, 157, 158 on a bill of rights, 108n2

Index on British government, 17, 18, 19, 22, 22n17, 23, 25, 26, 58, 58n5, 59, 60–61, 81, 90, 158, 161, 173 character and personality of, xiv, 40, 136, 138, 143, 152, 154, 168 at Constitutional Convention, xiv, xvi, 138 on constitutional conventions, 140 on deliberation, 105, 179 and democracy, 5 and Enlightenment philosophy, 10, 57 on factions, 85, 87, 88, 94, 96, 97, 98 and French philosophy, 83 friendship with Jefferson, 15, 143, 154 on funding system, 23, 24, 111 on generational sovereignty, 6, 84, 100, 134, 138, 150 Helvidius essays, 52, 113n24 on human nature, 85 interpretations of, 7, 8, 12, 14, 85, 122n50, 132, 138, 139, 171, 172, 177, 178 as leader of Republican Party, xv, 8, 13, 29, 43, 127 legacy of, 3, 4, 154 on literati, 81, 85, 103–106, 170 on majority rule, 5, 87, 88, 90, 92, 96, 98, 100, 120, 142, 150, 151 on modern commerce, 180 on moral sense, 152, 179 on national bank, 16, 24, 110 on newspapers/media, 98, 104, 106 on public opinion, 9n23, 59, 79, 80, 81, 82, 82n95, 90, 94, 95, 97, 101, 105, 107, 108, 115, 139n33, 140, 153, 158, 160, 164, 175, 178, 179 on public reason, 87, 91, 104, 105 on purpose of freedom, xviii–xix, 183 on religion, 152 on representation, 99 and revolutionary war debt, 107n1 on separation of powers, 58, 90, 94, 99

201 on types of government, 60 theory of republicanism, 11, 85, 160, 169, 179 view of Adams, xv, 9, 17, 18, 21, 22, 30, 32, 33, 38, 121, 125n3, 158, 163, 164 view of Hamilton, xv, 9, 21, 23, 25, 26, 28, 30, 43, 114, 115, 120, 121, 125n3, 158 view of Washington, xv views on a national bank, 109 views on the Federalists, 9, 22, 29, 119 majority rule, 90, 120, 142, 150, 179 Malone, Dumas, 126 Mansfield, Harvey C., 173 manufacturing, 19, 20, 25, 27, 36, 42, 43, 49, 89n11, 104, 107, 115, 116–118 Matthews, Richard K., 102 Mazzei, Philip, 39, 76, 82, 83, 126 McCoy, Drew R., 170 McDonald, Forrest, 49n54 McKitrick, Eric, 40 “Memorial and Remonstrance,” 152 Mercier, Louis-S´ebastien, 63, 63n16, 65, 80n89 Millar, John, 57n3 Miller, Joshua, 6 Mirabeau, Honor´e Gabriel Riqueti, Comte de, 63, 76, 77 mixed government, 11, 34n5, 35, 35n8, 75n71, 160, 162. See also balanced government monarchy, 21, 22, 25, 44, 54, 59, 68, 77, 78, 114, 161, 161n10 monied interest, 42 monied men, 24, 42, 49, 49n54 Montesquieu, Charles de Secondat, 11, 14, 49, 57, 58n4, 62, 67, 76, 77, 83, 151, 157, 166, 168, 174 on British government, 25, 59, 60, 62, 66, 67n34, 78n82, 81, 173 compared to Newton and Bacon, 57n3 Madison’s interpretation of, 57, 58, 59, 60, 61, 62, 79

202 Montesquieu (cont.) on separation of powers, 35, 58, 90, 167 Moreau, Jacob-Nicolas, 63, 65n28, 68, 69, 77, 81 Morris, Gouverneur, 47, 182 Moyle, Walter, 157 Nadham, Marchamont, 37 national bank, 13, 19, 20, 42, 43, 49, 107, 109, 109n8, 111, 116 National Gazette, 7, 8, 11, 20, 21, 60, 61, 109, 153, 157n4. See also Party Press Essays natural law, 142, 149, 150, 151, 152, 153 natural rights, 5, 76, 83, 131 Necker, Jacques, 51, 59, 63, 63n16, 65, 65n28, 68, 69, 78, 81 Nedham, Marchamont, 36, 36n12 Neutrality Proclamation, 13, 27, 51, 112, 115 Newton, Isaac, 38, 57, 57n3 “Notes on Government,” 7, 12, 13, 14, 14n24, 21, 63, 94, 156, 157n4, 158, 160, 161, 163, 167, 169, 170, 171 nullification, 131 opinion publique, 59, 64, 79, 164. See also public opinion Page, Benjamin I., 179 Panckoucke, Charles-Joseph, 63 parties, 5, 22, 26, 31, 61, 66, 76, 79, 81, 86, 87, 92, 96, 114, 118, 134, 141 Party Press Essays, 7, 8, 12, 20–22, 40, 63, 94, 98, 157, 170 “A Candid State of Parties,” 21 “British Government,” 20, 22, 60, 61, 61n11, 90, 161 “Charters,” 20, 21n12 “Consolidation,” 20, 21n12 “Dependent Territories,” 20, 26, 27 “Fashion,” 20, 25 “Government,” 7, 20, 21n12, 161

Index “Government of the United States,” 20, 21n12 “Money” (Parts I and II), 20, 23 “Parties,” 20, 22, 61, 118 “Population and Emigration,” 20, 26 “Property,” 20, 25, 26, 118, 153 “Public Opinion,” 20, 61n11, 95, 97 “Republican Distribution of Citizens,” 20, 25 “Spirit of Governments,” 20, 22n17, 25, 57, 60, 61, 91, 166 “The Union: Who Are Its Real Friends?” 20 “Universal Peace,” 20, 112, 113 “Who Are the Best Keepers of the People’s Liberties?” 20, 38 passion(s), 28, 35, 36, 39, 47, 51, 55, 67, 70, 71, 75, 77, 78, 79, 81, 82, 83, 87n8, 88, 92, 93n26, 96n35, 97, 99, 100, 102, 104, 112, 122n50, 123, 141, 147n53, 148, 152, 162 Pericles, 159 Peuchet, Jacques, 64, 66, 71, 72n55, 72n56, 73, 74, 75, 76, 77, 79, 82n95, 83, 83n99 on Montesquieu, 71n49 on public opinion, 72–75, 78, 162 use of the term police, 73n59 Philip of Macedon, 159 Plato, xiii, xviin11, 156, 159, 161, 161n10, 161n11, 162, 163 Plutarch, 156 Pocock, John, 4 political parties, 8, 31, 145 Polybius, 35, 35n8, 162n13 Potter, Harry, 181 Pownall, Thomas, 157 practicable sphere, 96, 97n37, 98, 100 presidency, 111. See also executive property, 42, 45, 70, 116, 118, 119, 136, 152, 153 public credit, 23, 24, 41, 42, 49, 52, 111 public debt, 24, 111, 136 public opinion, xvii, xviii, xviin11, 9, 9n23, 10, 11, 12, 13, 18, 21,

Index 21n12, 23, 28n33, 29, 39, 50, 51, 54, 55, 59, 61, 62, 62n15, 63, 64, 64n18, 65, 65n28, 66, 67, 68, 69, 70, 72, 72n54, 73, 74, 76, 77, 78, 78n82, 80n89, 81, 82, 83, 85, 89, 90, 93n26, 94, 95, 96, 97, 97n37, 99, 100, 101, 101n54, 103, 104, 105, 107, 108, 109, 110, 111, 113, 119, 120, 122, 123, 132, 133, 141n39, 152, 153, 161, 163, 164, 167, 168, 169, 173, 175, 177, 178, 179, 180 public reason, 10, 59, 70, 75, 83, 87n8, 91, 104, 112, 139n33 Quesnay, François, 69 Rahe, Paul A., 36n12, 96n35, 165n25 Rakove, Jack, 110 Raynal, Guillaume Thomas François, 63, 65 Report of 1800, 132 representation, 13, 18, 44, 45, 85, 89, 90, 93, 94, 95, 97, 98, 99, 122, 130n12, 169 Republican Party, 8, 12, 13, 20, 21, 29, 43, 124, 127, 128 republican synthesis, 5, 170, 171 republicanism, xvii, 3, 5, 7, 9, 11, 12, 17, 18, 19, 21, 22, 23n17, 29, 31, 32, 36n12, 46, 54, 59, 84, 85, 90, 91, 97n35, 102n54, 105, 118, 122, 132, 134, 139n33, 158, 160, 166, 168, 170, 171, 172, 173, 174, 175n49, 179 classical, 31n1, 170, 173 modern, 158, 166, 173 republics, xiv, 18, 19, 35, 39, 50, 77, 78, 86, 114, 159, 160, 162n13, 166, 173, 180 responsibility, 70, 93n26, 99, 101, 102n55, 116, 123, 133, 152, 175, 179 Revolutionary War, 41 rights, 37, 38, 46, 48, 76, 86, 95, 97, 116, 118, 130, 135, 147, 150, 153, 166, 171, 177, 179

203 natural rights, 5, 74, 76, 83, 142, 153, 176 states’ rights, 6, 132, 132n16 Robertson, William, 72, 157, 168 Rodgers, Daniel, 32 Rousseau, Jean-Jacques, 11, 34n5, 64n18, 65, 66, 67, 73n59, 80, 80n90, 98, 143, 147, 147n53, 151 Saint-Pierre, Charles Ir´en´ee Castel de, 151 Sayers, Dorothy L., xvi, xvii, xviii, xix, 175 science, 30, 38, 40, 57, 145, 146, 149n60, 165, 174, 181 self-government, xvii, xix, 3, 7, 29, 34n5, 36n12, 84, 94, 122, 136, 139, 149n60, 150, 151, 153–155, 160, 164, 166, 168, 169, 175, 180, 182, 184 Senate 17, 37, 45, 46, 52, 89, 99, 100, 128. See also Congress; legislature separation of powers, 5, 13, 34n5, 35, 35n8, 37n12, 46, 58, 82, 85, 90, 94, 99, 112, 161, 167, 169, 175 Shakespeare, 181 Shapiro, Robert Y., 179 Sharp, James Roger, 101n54, 129n9, 139n33 slavery, 88n11, 103n55, 161 Smith, Adam, 57n3, 147 social classes, 17, 20, 22, 23, 25, 35, 37, 50, 66, 75, 78, 83, 116, 117, 119, 149, 162, 170 sovereignty, 13, 85, 100, 101, 110, 111, 113, 134, 136, 140, 142, 149, 150, 168, 169 governmental, 83, 85, 101, 113, 134, 150, 169 popular, 5, 77, 83, 85, 110, 113, 140, 150, 171, 171n39, 174 of public opinion, 9, 83, 101, 107, 111, 113, 134, 140, 150, 168, 169 speculation, 24, 41, 42, 43, 138 spirit of government(s), xvi–xviii, 3, 4, 9, 14, 25, 57, 59–61, 66, 91, 95, 164–167, 168, 179, 184

Index

204 state legislation, 92 statesmanship, 123, 171 Strabo, 156 Swift, Jonathan, 11, 161, 161n11, 162, 174 Thucydides, 156 Tocqueville, Alexis de, 3, 66n32, 74, 87, 180 Turgot, Anne Robert Jacques Turgot, Baron de L’Aulne, 33, 34, 34n5, 35, 36, 37n12, 39, 40, 55, 57, 63, 69, 70, 74, 76, 81 tyranny, 7, 10, 45, 53, 54, 55, 74, 82, 87, 88, 90, 91, 93n27, 94, 99, 122, 140, 179, 180 union, 16, 23n17, 26, 48, 97, 100, 101, 128, 131, 132, 134, 169

Virginia Resolutions, 28, 107, 130, 132, 133, 134, 140 virtue, 36, 36n10, 39, 59, 73, 77n81, 102n55, 117, 144, 146, 146n52, 147, 148, 160, 166, 172, 179 Volney, Constantin François de Chassebuf, Comte de, 63 Voyage of Anacharsis, 19, 66, 157, 159, 164 Washington, George, xv, xvi, xviii, 33, 43, 51, 129 administration of, 13, 15, 19, 51, 84, 107, 107n1, 115, 124 view of Hamilton, 41 Witherspoon, John, 152 Wood, Gordon S., 4, 5, 92n26, 146n52 Xenophon, 156, 159

Vauxcelles, Simone-J´erome Bourlet de, ˆ 66 “Vices of the Political System of the United States,” 94, 169 Virginia Report of 1800, 132

Yankelovich, Daniel, 178, 179 Yarbrough, Jean, 144 Zuckert, Michael, 5, 23n17