CHAPTER TWO
In September 1783, America and Britain signed the treaty ending the Revolutionary War. Madison’s term in Congress ended two months later, allowing him to return to Orange County for the first time in almost three years.
His time away from home encouraged him, if not to move, at least to think of buying land out of state. He took a trip to central New York with the Franco-American hero Lafayette to look at land freed by the war from the Iroquois Indians (most of whom had sided with the British), and he bought 1,000 acres in partnership with James Monroe, a young Virginia congressman. The land lust that most Virginians felt, and the wanderlust that sent many of them to Kentucky and beyond, fluttered in Madison.
But politics kept him anchored to Virginia. Except for one brief period, he would hold elected or appointed office until his mid-sixties. When one job ended, he moved to another. Pursuing a political career required a political base. This was his county, and his state.
Thanks to term limits, Madison could not be sent back to Congress for another three years. So in the spring of 1784, his neighbors elected him to the Virginia House of Delegates, the lower house of the Virginia Assembly, which met in the new state capital of Richmond.
He did not neglect the relations he had formed during the Revolution. The closest, and the most important, was the one conducted at the longest distance, with Thomas Jefferson. In the summer of 1784, Jefferson left America for Paris, where he would serve as a diplomat until the fall of 1789. Keeping in touch with him was not easy. Transatlantic communication in the eighteenth century was almost whimsical in its slowness. Correspondence had to be carried by travelers or friendly captains; there could be all sorts of delays before ships sailed, and Atlantic crossings could take from a few weeks to a few months. Madison began one letter to Jefferson in June 1786, saying that he had just gotten a letter Jefferson had sent him the preceding October. “I began to fear it had miscarried.” Eighteenth-century letter writers on opposite sides of the Atlantic began to fear that their letters were lost only after seven or eight months had passed. They lacked the blessings of Twitter and Skype; what they got in return was leisure to think.
“Seven o’clock, and retired to my fireside, I have determined to enter into conversation with you,” Jefferson began one letter to Madison in October 1785. Distance did not lessen their intimacy: Jefferson wanted his far-off friend to hear his voice; he wanted to see his friend listening. Something had upset the American abroad, and he needed to hash it out. Jefferson was in Fontainebleau, a town forty miles from Paris where the king of France hunted, and where the court attended him when he did so. Jefferson had gone for a walk, “to take a view of the place,” and had fallen into conversation with a woman laborer who showed him a hillside path. She told Jefferson she had two children (she made no mention of a husband) and she earned eight sous, or four pennies, a day—when she could find work, which was not always. As she and Jefferson parted ways, he gave her twenty-four sous, at which she burst into tears. “She probably never before received so great an aid.” This led Jefferson into “a train of reflections” on the cause of his guide’s plight—the unequal distribution of property.
“The earth is given as a common stock for man to labor and live on. If for the encouragement of industry we allow it to be appropriated”— that is, owned by individuals—“we must take care that other employment be provided to those” who own no land at all. “If we do not, the fundamental right to labor the earth returns to the unemployed.” How would Jefferson encourage a distribution of property that would not leave his guide weeping over a twenty-four-sou tip? He made two suggestions: abolishing feudal forms of inheritance that steered an estate to one heir, and progressive taxation. Abolishing feudal forms was advice aimed at France; Virginia had already abolished primogeniture and thus, Jefferson believed, mammoth estates like the king’s at Fontainebleau. But Jefferson’s letter implied two far more radical ideas. Property is only a secondary right, since society allows it “for the encouragement of industry,” and the right to earn a living—“to labor the earth”—precedes it. Such thoughts would call all Virginian, and American, society into question. Jefferson was grappling with a deep political subject—the intersection of work and rights—and he sent his thoughts to Madison because Madison was smart enough to follow him, and bold enough not to dismiss him out of hand.
Madison’s answer shows how he handled such starbursts. He started with praise—Jefferson’s reflections would be “a valuable lesson” to lawmakers everywhere. Then he tried to slow his friend down. He did not even address Jefferson’s suggested solutions because he saw a larger problem: overpopulation. Let land “be shared . . . ever so wisely,” there would nonetheless be “a great surplus of inhabitants.” Madison described the lives that surplus people led: as “idle” landowners, makers of luxury items, servants, soldiers, merchants, and sailors. He admitted that sailors would exist in any country with seacoasts, and he dismissed merchants as not numerous enough to worry about. All the others, he assumed, were pernicious, and he hoped that “simplicity of manners” and “juster government” would thin their ranks. If people did not live luxuriously, there would be no idlers, no servants to serve them, and no makers of luxuries to cater to them; if the government was neither bellicose nor oppressive, it would not need soldiers. Virginia planters had luxuries and servants, of course, but far fewer than aristocrats in Europe. Madison had his own sweeping thoughts, dismissing whole classes of people, but they were extrapolations from life as he knew it; he used them to deflect Jefferson from thoughts that might upset that life.
Madison ended his letter on a safer subject, with his measurements of the weasel.
But Jefferson could not leave the earth and its owners alone. Three years later he wrote Madison from Paris, attacking the subject from a different direction.
“I set out on this ground, which I suppose to be self-evident, that the earth belongs in usufruct to the living; that the dead have neither powers nor rights over it.” This, with its echo of the Declaration (“self-evident”) was Jefferson at his most terse. Except for the phrase, “in usufruct”—a legalism meaning the right to use property for a certain time—Jefferson’s words could be chiseled in stone, or shouted on the hustings.
Jefferson then tried to give his insight some concrete shape, by turning to the actuarial tables. When a man became an adult at age twenty-one, he could expect to live for thirty-four more years, according to contemporary calculations. Jefferson proposed to make that span of time a yardstick for financial obligation. No generation “can validly engage debts beyond what they may pay in their own time, that is to say, within thirty-four years of the date of the engagement.” Virginia planters had good reason to worry about the debts they had engaged, as tobacco prices sank throughout the late eighteenth century. But Jefferson wanted to apply his thirty-four-year sunset rule to laws, too. “No society can make a perpetual constitution, or even a perpetual law. . . . If it be enforced longer, it is an act of force, and not of right.
“Turn this subject in your mind, my dear Sir,” Jefferson concluded. “At first it may be laughed at, as the dream of a theorist; but examination will prove it to be solid and salutary.” Jefferson feared his thoughts were laughable, but he was also compelled by them. He put himself in Madison’s hands.
Madison’s answer to these suggestions was wiser than his reply to Jefferson’s earlier letter, but it followed the same trajectory of praise and criticism. Jefferson had made “many interesting suggestions” and seen “sublime truths . . . through the medium of philosophy.” But Madison would also consider them with “the naked eye of the ordinary politician.”
He raised three objections. First, constitutions were strengthened by their “antiquity”; scrapping them every thirty-four years would make them flimsy. Second, the past is not only a burden, for the dead pass on improvements as well as debts. (Madison did not specify any, but it is easy to think of ways that even the earth itself is improved: roads and bridges built, trees planted.) Third, if people expect a clean sweep every thirty-four years, they will game the system in the run-up to every deadline.
Instead, Madison proposed an alternative way to think of time and rights: “tacit assent . . . may be inferred where no positive dissent appears.” If men continue to obey an old law, they have given it their consent, as much as if they had voted for it themselves.
Then he raised his most important objection to Jefferson’s scheme of generational autonomy. The continuity of laws and debts is not the only thing sustained by “tacit assent.” Majority rule depends on it, too. “On what [other] principle does the voice of the majority bind the minority?” How could there be any laws if every law had to be passed unanimously, and repassed in every generation?
These exchanges were not “merely” theoretical. Nor should they be scored as if Jefferson and Madison were playing a tennis match, in which we root for either the poet or the realist. Jefferson and Madison were revolutionary politicians trying to define the freedom they had helped win. Jefferson was searching for freedom’s furthest ramifications; Madison was helping him test what was right or practical.
Much of Madison’s correspondence with Jefferson was quite practical—news flashes, gossip—keeping his friend in touch with Virginia politics, especially when it touched on Jefferson personally.
Both men had a stake in religious freedom in Virginia. In 1779 Jefferson, just as he was about to become governor, had offered a bill whose key provision declared “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” Jefferson’s bill would have extended Madison’s language on “free exercise” in the Declaration of Rights and given it the force of law.
After the Revolution, Virginians took up the politics of religion once again. In 1784 Patrick Henry called for a tax to support religious instruction. His bill appeared to have something for everyone—Virginians could earmark their taxes for the church of their choice—but Madison was determined to stop it anyway. He had opposed “emoluments” for the Anglican Church in 1776; he did not want them given to every church now.
His first move was to get Henry out of the assembly, by kicking him upstairs to the governorship.3 His second move was to stir up opposition to Henry’s bill. In the summer of 1785, Madison wrote “A Memorial and Remonstrance Against Religious Assessments,” which was circulated throughout the state. (He did not sign it, because he wanted the support of Henry’s allies on other matters. No point in burning bridges.) He employed a range of voices, from pious to alarmist. Madison the theologian explained that Christianity “disavows a dependence on the powers of this world.” It would be un-Christian, then, for the state to subsidize churches. Madison the rabble-rouser warned that “the same authority which can force a citizen to contribute three pence . . . may force him to conform . . . in all cases whatsoever.” Churches that accepted state help today would be smothered by state control tomorrow.
Recounting the story in a letter to Jefferson, Madison wrote that his polemics “produced all the effect that could have been wished.” When the legislature met in the fall of 1785, “the table was loaded with petitions and remonstrances from all parts” of the state.
Henry’s bill died; in its place, the legislature took up Jefferson’s old bill for religious freedom. But before victory, maneuvering. Jefferson had written a philosophical preamble, in his most sweeping style: “Well aware that the Almighty God hath created the mind free,” it began. But the state senate objected to some phrases about the supremacy of reason. After some back-and-forth, Madison, in the House of Delegates, accepted a few cuts. “They did not affect the substance,” he told the bill’s author, “though they somewhat defaced the composition.” But Madison did not want “to run further risks, especially as it was getting late in the session and the house growing thin.” Only after all the votes were taken and victory was achieved could Madison wax philosophic himself. “I flatter myself [we] have in this country extinguished forever the ambitious hope of making laws for the human mind.”
The distant friends were establishing a template for their relationship—Jefferson the philosopher and strategist, Madison the reality check and right-hand man. As time passed, they would, like an old couple, occasionally switch roles—Jefferson pulling wires, while Madison stayed on the sidelines, if not in the clouds. But the template would serve them for years.
George Washington was separated from Madison by an obstacle as great as the Atlantic Ocean—his eminence as a hero. Yet Madison managed to cross that barrier. One of his earliest tasks after he reentered the assembly in 1784 was to find some way for Virginia to thank the great man for “his unremitted zeal” in the cause of liberty. A committee, on which Madison sat, resolved to commission a statue “of the finest marble, and best workmanship.” In Paris Jefferson got the great French sculptor Jean-Antoine Houdon to do the job, and the statue Houdon carved is a masterpiece of calm, self-contained grandeur: an image of fame and force of personality, controlled by republican will. Madison was at Mount Vernon when Houdon visited to observe his subject, and he wrote the inscription for the pedestal.4
Madison’s entrée to Washington’s affections came not from statuary, however, but from inland navigation. Washington was obsessed with connecting the Potomac and the Ohio Rivers by canals and portages. The stakes were huge: the furs and crops of middle America could reach the outside world cheaply only via water—up the St. Lawrence past Montreal, or down the Mississippi through New Orleans. Why not convey them, thought Washington, on the Potomac?
He was personally invested in the project, as the owner of thousands of acres of western land that would attract renters or buyers only if the Potomac were developed. He would reap a double benefit if Alexandria, next door to Mount Vernon, became a major port. But he believed America’s investment in inland navigation was even greater. Settlers were already streaming west over the Appalachians. If their business went through British Montreal or Spanish New Orleans, why should they stay loyal to the United States?
In November 1784 Washington went to Richmond to lobby the assembly for improvements to the Potomac. A bill was introduced, sponsored by Joseph Jones, the six-footer with whom Madison had shared a bed when Congress was crammed into Princeton. But after Jones left the legislature to take a seat on the Governor’s Council, Madison took over management of the bill.
Developing the Potomac was not in fact dear to Madison’s heart. His preferred method of opening the interior to trade was to wrest control of the Mississippi from Spain, a dream he believed blessed by both demography and providence. “Nature has given the use of the Mississippi to those who may settle on its waters,” he wrote Lafayette, in the holier-than-thou tone that the subject of expansion often drew from him. But drawing closer to George Washington was even dearer to Madison’s heart, and so he took on the Potomac project.
The father of his country and the delegate from Orange County worked well together. Washington supplied prestige and persuasion; Madison got the legislative work done. “Your own judgment in this business will be the best guide,” Washington acknowledged in a letter to his young partner. As a result of their labors, the Potomac River Company was chartered in the spring of 1785, with Washington as president. Madison’s first visit to Mount Vernon followed in the fall. After he left, Washington extended an open-ended invitation to further collaboration: “if anything should occur that is interesting, and your leisure will permit it, I should be glad to hear from you on the subject.” He signed this letter, “Affectionately.”
One bit of business arose immediately. At Madison’s urging the assembly had given Washington fifty shares in the Potomac River Company, valued at more than $22,000. But such a direct benefit struck Washington as unseemly. Madison drafted a letter for him, asking the assembly to give the profits of his shares to charity. Then Madison served on the committee that made the necessary changes to the gift, and that praised Washington for this “fresh and endearing proof” of his disinterestedness. It was not the last time Madison would act as Washington’s ghostwriter or draft the responses to his own ghostwritten words.
When he was in Congress, Madison had tried to give it more power by amending the Articles of Confederation; hotter heads, including his colleague Alexander Hamilton, had tried to use the army to force the process. Both efforts had failed. But by the mid-1780s, the two men were looking at regulating interstate commerce as another route to change.
The Articles of Confederation allowed each state to levy its own tariffs and tolls, which restrained trade and generated bad feeling. Some states shared navigable rivers: the Potomac flowed between Virginia and Maryland, the Susquehanna from Pennsylvania through Maryland. Who would collect the tolls, and who would pay for maintenance? Other states had no ports—cargo bound for New Jersey came through Philadelphia and New York—which left them at the mercy of their neighbors.
In March 1785 there had been a conference on the subject of Potomac navigation in Alexandria. Madison was supposed to attend for Virginia but didn’t, because Governor Henry, suspicious of interstate ventures, had not announced where or when the meeting was (two other Virginia delegates made it only by chance). Washington, the champion of Potomac navigation, invited the conferees to meet at Mount Vernon, where they agreed to ban interstate tolls and share expenses for lighthouses. At year’s end, Virginia called for a follow-up meeting of commissioners from all the states to consider commercial issues.
The meeting was scheduled in Annapolis, Maryland, the first Monday of September 1786, but it got off to a weak start. When Madison, who was one of Virginia’s commissioners, arrived in Annapolis (this time he knew the time and place), only two other commissioners were in town. A week later, there were only twelve, from five states.
But one of them was Hamilton, who was eager to put the occasion to good use. Madison and Hamilton, so close when they had been working side by side in Congress, had hardly been in touch since the war. Now, as they met again, the Virginian saw that the New Yorker’s aggressive temperament had not changed.
The commissioners decided they were not numerous enough to do more than write a report calling for yet another meeting. The assignment was given to Edmund Randolph, a rising statesman: member of one of Virginia’s first families, cousin of Jefferson, soon to become governor. But Hamilton produced a draft of his own in two days.
In his report, Hamilton flayed the shortcomings of the Articles and requested a meeting the following year, to consider “measures . . . to cement the union of the states.” Madison knew this was too blunt, and he may have guessed that Randolph was irked at being preempted. “You had better yield to this man,” he warned Hamilton, “otherwise all Virginia will be against you.” Hamilton modified his language just enough—the final report asked for a meeting to “render the constitution . . . adequate to the exigencies of the union”—and the commissioners unanimously called for a convention in Philadelphia in May 1787. Then, fearing that more cooks would spoil their broth, they adjourned— so quickly that commissioners going home passed others still struggling to arrive.
No one had asked the Annapolis convention to call for full-scale political reform. In stretching their mandate and then getting out of town, Madison and Hamilton had pulled a fast one—a clever and opportunistic maneuver. But the intent of their maneuver was to appeal to the public: first to the nation’s political class (the report went to all thirteen states and to Congress) and, through them, to the people. Madison’s only quibble with Hamilton was that he had appealed too boldly.
Madison worked in solitude, as well as with his friends. He read up on the experiences of other countries and reflected on his own, and he wrote essays—memos to himself—digesting and arranging what he had learned.
Jefferson had sent him more than two hundred books from Paris—Madison called them his “literary cargo”—which he spent the spring and summer of 1786 studying. Most of the books were the work of historians, from Demosthenes to recent European writers. This reading generated an essay, “Of Ancient and Modern Confederacies,” which he would use over the next few years as a briefing paper for debates or published essays. He covered Greece, the Holy Roman Empire, Switzerland, and Holland. Ancient Greece had been divided into city-states that at different times formed defensive leagues. The Holy Roman Empire—modern Germany, plus a few neighbors—was a collection of countries, still hanging together from the Middle Ages; Switzerland and Holland were unions of semiautonomous provinces. Everywhere Madison found strife and disorder. The cause of all these confederacies’ problems was the absence of compelling and legitimate authority. The lack “of subjection in the members to the general authority,” he wrote about one of his Greek case studies, “ruined the whole body.” Chaos led to collapse, or to bullying by the stronger members, or to foreign conquest.
The following winter, after Madison had had time to reflect on his handiwork at Annapolis, he wrote another essay, “Vices of the Political System of the United States.” Here, he was writing from the news, and his own observation. The states acted against each other, and acted on their own. (He had the cheek to cite Virginia and Maryland’s agreement over navigating the Potomac as an instance of the latter.) The states could not act together on matters of “common interest”: his examples of neglected projects included canals and national colleges. Congress’s laws were dead letters because Congress had no power to enforce them. Here Madison allowed himself a joke: if state laws were mere recommendations, “what probability would exist that they would be carried into execution?”
Madison was short on solutions. Prudence, religion, and character (by which he meant concern for reputation) were not enough to ensure that rulers or people would behave well. But he was already considering another incentive to good conduct. He would bring it forward soon enough.
As one of Virginia’s representatives in Annapolis, Madison had called for a convention in Philadelphia. As a member of the Virginia Assembly in Richmond, he wrote a bill to approve the recommendation he had made. By playing different positions in quick succession, Madison could execute double plays with himself.
With Madison’s input, the assembly picked a slate for Philadelphia that included Edmund Randolph, now governor, Patrick Henry, George Mason, and Madison. The most important man in Virginia and America, George Washington, headed the list.
Henry, the partisan of states’ rights, refused to go. “I smelt a rat,” he explained. More important, Washington did not want to go either. He offered various reasons: He had earned his ease. His health was bothering him (he had rheumatism in his shoulder). There was also the awkward question of what to do about the Society of the Cincinnati, an organization of Revolutionary War officers that would be meeting in Philadelphia at the same time. The society had been criticized as a nest of would-be aristocrats (its membership was supposed to be hereditary), and Washington refused to attend their meeting until the controversy was resolved. But he worried that if he went to Philadelphia for the convention, he might offend the Cincinnati.
Madison spent all winter and spring wooing him. He wooed him with tact. When he wrote Washington in December 1786 to tell him that he was on the list of delegates, he underplayed his own role in putting Washington there. “It was the opinion of every judicious friend whom I consulted that your name could not be spared.... In these sentiments,” he added, “I own I fully concurred.”
He wooed Washington with lobbying. Madison’s three-year time-out mandated by congressional term limits had ended at the end of 1786, and in January 1787 he went back to Congress, which was now sitting in New York City. On his way, he stopped at Mount Vernon to strategize with his host. He wooed Washington, perhaps most effectively, with vote counts. In February, a week after arriving in Congress, he wrote Washington to tell him that all the middle states were sending delegates, “except Maryland which it is said means to do it.” A month later, he reported that New Hampshire, Massachusetts, New York, South Carolina, and Georgia “have come into the measure.” He discussed who their delegates would be (“Col. Hamilton” was one of three New Yorkers). It is astonishing how many people, otherwise intelligent but amateurs in politics, do not understand the importance of counting votes ahead of time. Yet vote counts answer the first questions any politician asks: Who will be in the room? Which side are they on? Madison was supplying Washington this information.
Washington needed the information because his reputation was at stake. He had become the nation’s idol by winning a war for independence, then going home. The legend of Cincinnatus, the Roman who returned to his plow after saving his country, had been reenacted in modern life (Houdon’s statue would show Washington, sword set aside, standing by a plow). If he came out of retirement to reenter politics now, he would need unimpeachable justifications—and he required a reasonable chance of success. If the friends of reform were up for a real fight, then Washington would join it.
Several of Washington’s friends were advising him to do just that, including Henry Knox, his old commander of artillery, and Hamilton. But Madison was his in-state adviser, with his finger on the pulse of Richmond, and of Congress. “I will hope for the best,” Washington wrote Governor Randolph in April, having decided to go to Philadelphia.
The convention was called to meet on May 14. Madison was in Philadelphia on the 3 rd, the first out-of-stater to arrive. He took a room at a boardinghouse he had used as a congressman, a block from the statehouse (now Independence Hall) where the convention would sit, and made reservations for his fellow Virginians. When Washington arrived on the 13th to a hero’s welcome, he was whisked away to the home of Robert Morris, richest man in America. But that was only down the street. Madison wanted all the Virginians together so they could plan their agenda, which he intended to be the convention’s agenda.
The convention did not have a quorum until the 25th; “these delays,” wrote Washington, “sour the temper of the punctual members.” (Rhode Island never sent a delegation, all the New Yorkers except Hamilton walked out early, and New Hampshire came late, so there were never more than eleven states represented at a time.) But Madison and his fellow Virginians put the days of delay to good use.
An ambitious delegate had to come to Philadelphia with a plan, or at least a goal, if he hoped to have an impact. Of the fifty-five men who would attend the convention during the spring and summer, there were a few ciphers, a few chronic absentees, and a few bores and blowhards. But more than half the delegates were proud, powerful, intelligent men, committed to a range of jostling interests. A man would have to know what he wanted, and push for it, if he hoped to get it from his peers.
Madison knew what he wanted, and on May 29, Governor Randolph told the convention what it was. The convention had already held two housekeeping sessions, unanimously choosing Washington as presiding officer, and establishing its rules, the most important of which forbade “licentious publications of their proceedings” (there was to be no transparency in Philadelphia). On day three, Randolph, as Madison put it, “opened the main business.”
After reviewing the defects of the existing government, Randolph offered fifteen resolutions, which became known as the Virginia plan. The first was a feint: “the Articles of Confederation ought to be . . . corrected and enlarged.” The next fourteen went far beyond correction and enlargement.
The Virginia plan called for a national government of multiple branches—a two-house legislature, an executive, and a judiciary. There was also a “council of revision,” composed mainly of judges, which could require the legislature and the executive to reconfirm certain decisions, though it could not block them permanently. (Almost no one liked this idea, and it soon fell by the wayside.)
The most striking features of the plan were the scope of the new national government and the source of its power. The national legislature would hold sway over American political life. It could make laws “in all cases to which the separate states are incompetent” and could veto any state law. The new national government would rest on popular choice. The lower house of the legislature was to be elected “by the people,” in a proportional vote based on the population or wealth of their states. The lower house then chose the upper house. The whole legislature would then choose the executive and the judiciary. The new constitution was to be ratified, not by the state legislatures that had sent delegations to Philadelphia, but by state conventions “expressly chosen by the people.”
If the Virginia plan passed, the days of state hegemony, enshrined by the Articles of Confederation, would be over. After the delegates had had a night to think about Randolph’s proposals, Charles Pinckney of South Carolina asked, not unreasonably, “whether he meant to abolish the state governments altogether.”
It is impossible to say for sure who contributed what to the Virginia plan, but its congruence with themes Madison had been developing in his memos to himself, and in letters to friends, shows his dominating influence. In a letter to Washington a month earlier, he had outlined the three branches of government, popular ratification, and the national veto over state laws, which he called “absolutely necessary.” Without the veto, every power given to the national government “will be evaded and defeated. The states will continue to invade the national jurisdiction . . . and to harass each other with rival and spiteful measures.” Just as it was characteristic of Madison to work through others (in this case Randolph), it was characteristic of him to do their work for them ahead of time.
Over the next six weeks, as the convention debated the Virginia plan, he justified it using other fruits of his preconvention homework. Madison was a republican who believed in majority rule. “The majority . . . are the safest guardians both of public good and of private rights,” he had written in one memo to himself, and he said so again and again during the convention: the Virginia plan was “consistent with the democratic form of government”; if the delegates had “justice and the majority of the people on their side,” they “had nothing to fear.”
Yet republican government had its problems, which Madison, as a state legislator and congressman, knew all too well: factionalism and bullying at the state level (the travails of Virginia’s Baptists), impotence and cross-purposes at the national level (unpaid bills, restraints on interstate commerce). Why was the Virginia plan the best way to solve them? Because, as Madison argued on June 6, the plan expanded the arena of political contention. This was the idea he had discovered during his year of reading and writing.
Under the status quo of the Articles, republican government in America existed only within each of the thirteen states. Their joint forum, Congress, was a league of equals, in which the representatives of Delaware (population 59,000) stood toe to toe with the representatives of Massachusetts (population 379,000), Pennsylvania (population 434,000), and Virginia (population 747,000).
The Virginia plan would extend majority rule over the whole country or, as Madison said on June 6, “enlarge the sphere” of government. A national government elected on republican principles, he argued two days later, could “control the centrifugal tendency of the states,” which would otherwise “continually fly out of their proper orbits.” It would also be powerful enough to defend “the weaker party” within any state against persecution. It would not become tyrannical itself because of the very size and variety of the electorate that had chosen it. “So great a number of interests and parties” would ensure that a vicious majority could never coalesce nationwide.
Enlarging the sphere of government for the sake of republican government was a new idea. Most republics in history had been small (Greek or Italian city-states, Swiss cantons); the largest, the Roman Republic, had been undermined by the Caesars and transformed into an empire. But Madison knew from his reading that leagues and confederacies, even those made up of small republics, had not been stable either. America was already large, and since it was determined not to have emperors—the man presiding over the Philadelphia convention had proved that point by going home to his plow—Madison was willing to consider the possibilities of large republics.
Once Edmund Randolph laid out the Virginia plan, Madison led the struggle for it. Although he was content to let Randolph take the first step and the credit, he was willing and able to shoulder the burdens of small-group infighting. He wielded his reading like a weapon. In one speech he cited “the intrigues practiced among the Amphyctionic confederates, first by the kings of Persia, and afterwards fatally by Philip of Macedon; among the Achaeans, first by Macedon and afterwards no less fatally by Rome; among the Swiss by Austria, France and the lesser neighboring powers; among the members of the Germanic body by France, England, Spain and Russia; and in the Belgic republic [Holland] by all the great neighboring powers.” (This was Madison’s own account of his erudition; he seemed quite proud of himself.) On another occasion, he corrected a fellow delegate, Oliver Ellsworth of Connecticut, on the history of proportional representation. “Passing over the German system in which the King of Prussia has nine [votes],” Madison reminded Ellsworth of the Lycian confederacy, “in which the component members had votes proportioned to their importance, and which Montesquieu recommends as the fittest model for that form of government.” Ellsworth, one hopes, took note.
Madison was no orator; there was not an ounce of melodrama in him, scarcely of drama. But he did remind his colleagues of the stakes. “We were now digesting a plan,” he said late in June, which “would decide for ever the fate of Republican government.”
Perhaps his greatest strength was persistence. He attended every session of the convention—the delegates met six days a week at ten in the morning, adjourning in midafternoon—and spoke at almost all of them, sometimes as often as three or four times in one day. William Pierce of Georgia, the only delegate to leave sketches of his colleagues, credited Madison with “a spirit of industry and application . . . he always comes forward the best informed man [on] any point in debate.” (He is “a gentleman of great modesty,” Pierce added, “with a remarkable sweet temper.” Even while correcting Ellsworth, Madison praised him for his “able and close reasoning.”)
During the Philadelphia convention, Madison had several allies. Washington and Hamilton he knew coming into the convention. A new supporter was one of the Pennsylvania delegates, Gouverneur Morris (no relation to Robert, though they were business partners). Despite a peg leg and a withered arm, souvenirs of various accidents, he was a forceful and compelling presence. “Every species of talent,” wrote Pierce, made him “conspicuous and flourishing in public debate.” He also flourished in private conversation, as the ladies of Philadelphia could attest.
But these were, for various reasons, erratic allies. Morris came on strong as the summer progressed, but he skipped three weeks of June (“fickle and inconstant,” Pierce also wrote of him). Hamilton gave a long, powerful speech in mid-June, of such an extreme nationalist tendency—he recommended an executive elected for life and dismissed the Virginia plan as not radical enough (“pork still, with a little change of the sauce”)—that its only effect was to make Randolph’s resolutions seem moderate by comparison. Lacking Madison’s patience, Hamilton missed all of July and all but one session in August. “I am sorry you went away. I wish you were back,” Washington wrote him forlornly.
Washington himself loomed over the proceedings in impartial silence, less like a god on Mount Olympus than the mountain itself. Whatever he may have said offstage—and he may not have said much, for he could be remarkably tight-lipped in private—his role as presiding officer imposed public silence on him.
Only James Wilson of Pennsylvania—a Scottish tutor turned lawyer and businessman (and who was in the process, even as the convention met, of turning bankrupt)—joined Madison at every session, speaking even more often and generally taking the same side. “No man,” wrote Pierce, “is more clear, copious and comprehensive than Mr. Wilson.”
Madison might have had a dozen allies or none, for his task was in fact hopeless. Almost everyone at Philadelphia wanted change, but the small states—a shifting coalition whose core was Connecticut, New York, New Jersey, and Delaware—were determined to fight a system of national proportional representation, in which they feared being swallowed up. They counterattacked on June 15, with a set of nine resolutions proposed by William Paterson of New Jersey (population 184,000). The New Jersey plan called for a strengthened Articles of Confederation: the states would retain equal representation in a one-house Congress, which was given the power to levy taxes, regulate commerce, and pick a national executive. New York (population 340,000) threw its weight to the small states because its governor, George Clinton, anticipated booming revenues from the port of New York, which he wanted controlled by him, not by the United States. He had made sure that New York’s delegation contained two of his allies—Robert Yates, a state judge, and John Lansing, mayor of Albany—who would outvote Hamilton. Lansing now told the convention that the New Jersey plan “sustains the sovereignty of the states,” while the Virginia plan “destroys it.” After the New Jersey plan was offered, John Dickinson of Delaware chided Madison privately, “You see the consequence of pushing things too far.”
Other states were less concerned with the structure of government than with their own particular interests. Connecticut (population 238,000) was a small state. South Carolina (population 249,000) was larger and expected to grow. But more than 40 percent of South Carolina’s people were slaves—the highest percentage of any state. Slavery was an interest that cut across the large state/small state divide. If slaves were counted in the representation, every slaveholding state, whether large or small, would benefit. (Slaves, of course, would not vote, but would only swell the power of their masters.)
Both Connecticut and South Carolina were represented by hard bargainers. Roger Sherman of Connecticut had taught himself to be a lawyer; one fellow Yankee called him “cunning as the Devil . . . you may as well catch an eel by the tail.” John Rutledge of South Carolina had learned law at the Middle Temple in London; a foreign diplomat called him “the proudest and most imperious man in the United States.” If the devil and the aristocrat made a deal between themselves, and the small states, they might catch the whole convention by the tail.
Madison was aware of the power of slavery as an issue, and he offered a deal of his own that would save the underlying shape of the Virginia plan. At the end of June, in the same speech in which he corrected Oliver Ellsworth, Madison admitted that “the great division of interests in the United States . . . lay between the northern and the southern.” Perhaps proportional representation in one house of the legislature could be based on total population, slaves included, while in the other it would be based on the number of free inhabitants only. “By this arrangement the southern [side] would have the advantage in one house, and the northern in the other.”
But he did not find enough takers. After weeks of increasingly stubborn debate on the issue of representation, the convention on July 2 chose a committee of eleven (one from every state then present) to offer a compromise. Madison opposed the committee to the last, saying that in Congress “he had rarely seen any other effect than delay” from such bodies. He had certainly seen no good effects from committees on which he had not served. Neither he nor Wilson was picked to serve on this one, though Sherman and Rutledge were.
After a two-day break to celebrate the Fourth of July, the committee presented its compromise: one house of the legislature would be based on proportional representation, with each slave counted as three-fifths of a free inhabitant; in the other house, each state would have an equal vote. Slave states and small states alike managed to win special status. Days of wrangling followed, but by July 16 the compromise had been ratified.5
The next morning, delegates from the large states held an informal caucus before the convention opened. Some of them (including Madison? the record does not say) suggested that they offer their own plan of government to America, but most resignedly accepted what had been done. “The time was wasted in vague conversation,” wrote Madison. It was a typical losers’ confab, directionless and dispirited.
Madison was the most dispirited of all. He took the survival of state equality in one house as an unmitigated defeat, an intrusion into his plan of all the weaknesses of leagues and confederacies. He had studied history so thoroughly and reasoned from it so closely, how could he now accept his colleagues’ mistake?
So Madison would not get what he wanted. But that is a common result in politics. One common response is to complain, and Madison did plenty of that, nursing his dissatisfaction through the hot weeks of July and August, on into September, when he grumbled, in a letter to Jefferson, that “the plan should it be adopted will neither effectually answer its national object nor prevent the local mischiefs which every where excite disgusts against the state governments.”
Another possible response to disappointment is to keep going. Maybe something can be saved from the wreck. Maybe the wheel will turn in your favor. Maybe, in response to further thoughts or further developments, you will change your mind.
Madison kept going, even as he kept complaining. His perfect attendance record remained unblemished, even though he began to feel ill. The new legislature, after the compromise of July 16, suffered other changes from Madison’s original plan. It lost its power to veto state laws and to make laws “in all cases” where the states were incompetent (though since the legislature had changed its composition, that was no longer, from Madison’s point of view, such a bad thing).
Madison’s principle of majority rule won a belated victory at the end of August, when the convention agreed that its handiwork should be ratified by a convention in each state, not by state legislatures. “The people,” said Madison, were “the fountain of all power, and by resorting to them, all difficulties were got over. They could alter constitutions as they pleased.”
Throughout these debates, Madison persisted in a task he had begun in May: writing notes of every day’s deliberations. The convention had a secretary, William Jackson, one of Hamilton’s comrades from Washington’s wartime staff. But he recorded only motions and votes. Madison had a more ambitious aim and a motive unique to him. “The curiosity I had felt during my researches into the history of . . . confederacies . . . and the deficiency I found in the means of satisfying it . . . determined me to preserve, as far as I could, the most exact account of what might pass in [this] convention.” The frustrated historian wanted to create the perfect research tool.
So Madison posted himself every morning in front of the head table, where the presiding officer sat. “In this favorable position for hearing all that passed,” he noted everything in his own private shorthand; then “losing not a moment unnecessarily between the adjournment and reassembling of the convention,” he fleshed out his notes. Practice, and increasing familiarity with the thought patterns of the major players, made his job easier. He checked a few speeches with the authors, including one “very extravagant” effort of Gouverneur Morris’s. “When the thing stared him in the face(this was Mr. Morris’s exact expression) . . . he laughed and said, ‘Yes, it is all right.’”
A few other delegates also took notes. Robert Yates of New York kept the next most complete set, but his record broke off in early July, when the states’ rights New Yorkers went home, even more disgusted with the victories that Madison had won than Madison was by the defeats he had suffered. Madison’s record stands alone for completeness.
But Madison was not only serving the muse of history. Information is power, and though he honored the convention’s secrecy pledge by keeping his notes unpublished as long as he lived, he would honor his political alliances by sharing selected information with chosen friends. No one has suggested that Madison distorted his own record; he did not believe in altering the past to control the present. But he did believe in revealing bits and pieces of the past to affect political dynamics, and he had taken care to amass the largest supply of bits and pieces concerning this epochal event.
Madison and his allies enjoyed a last hurrah as the convention wound itself up in early September. Madison, Hamilton (truant no more), and Gouverneur Morris were appointed to a Committee of Style to produce the final version of the document. Morris did all the work, spinning the preamble out of his head, and smoothing and trimming the rest. “A better choice,” wrote Madison decades later, “could not have been made.” On the last day, September 17, Washington broke his silence to suggest a minor revision; it passed without objection. This was also his indirect seal of approval: nothing else needs to be changed; we have done the best we could. Hamilton applied his own quirky seal of approval. “No man’s ideas were more remote from the plan” than mine, he said. “But is it possible to deliberate between anarchy and convulsion on one side, and the chance of good . . . on the other?” If even I am getting on board, it’s time everyone else did, too. He signed for himself, the defection of Lansing and Yates having left him stateless; thirty-eight other delegates, representing all eleven states present, joined him.6
The Constitution then went to the country. Madison’s work on it was less than half done.