THE PREPARATION FOR PHILADELPHIA ENERGIZED MADISON LIKE A TONIC. He was back in good health.1 Although he expected a “very full and respectable meeting,” he did worry that he should not indulge such “sanguine expectations.” There were too many opinions and prejudices, too many “supposed or real interests” among the states. The “only ground of hope,” he wrote his father, was the simple, inarguable awfulness of the status quo—the “existing embarrassments and mortal diseases of the Confederacy.”2
His monastic research was on two parallel projects—the first negative, the second positive, and both perfectly complementary to each other. The first would root out every last one of the existing system’s vices. The second, on the other hand, would unite all his findings into a design for how the nation could remake itself. The first project would become Madison’s celebrated memorandum, “Vices of the Political System of the United States.” The second would become his constitutional blueprint, the “Virginia Plan.” The scale and scope of both ventures thrilled Madison as befitting Virginia’s own greatness. “I will just hint,” he told Randolph, at “my ideas of a reform,” but couldn’t help but boast. He promised they would “strike so deeply at the old Confederation” that they would lead at last to “systematic change.”3
He began his “Vices” essay in February, taking notes on the first of what would be forty-one pocket-size pieces of paper.4 He finished in April. Like his speech for the forced contribution, and his Memorial and Remonstrance, and his campaign to reform Virginia’s antiquated code, and his attack on paper money, he employed his Method.
Find passion in your conscience. Focus on the idea, not the man. Develop multiple and independent lines of attack. Embrace impatience. Establish a competitive advantage through preparation. Conquer bad ideas by dividing them. Master your opponent as you master yourself. Push the state to the highest version of itself. Govern the passions.
In “Vices,” he deployed a diverse arsenal of weapons to attack the confederacy’s well-known vulnerabilities while exposing new ones—all while laying the foundation for the Virginia Plan. His approach was deceptively simple. He walked through twelve individual vices of the American political system. Each vice, on its own, was debilitating to the confederacy. But together, they were devastating.
He began by charging the states with violating the country’s own Articles of Confederation, an “evil” that was, he said, “fatal.” His next four vices were pinprick attacks. The states were making treaties with Indians, developing compacts among themselves, and raising their own troops, as Massachusetts had in response to Shays. They were passing laws that violated international peace treaties, such as the treaty with France. And they were routinely trespassing on each other’s territories. All this, he concluded, was making public projects impossible, whether uniform laws on naturalization, literary property, or the building of canals.
He then spun to a fresh, more expansive topic, attacking prevailing republican theory as “fallacious” for holding that “right and power being held in the majority” were “synonymous.” The might of the larger states, he pointed out, did not make right; the small states needed protection, especially if a majority wouldn’t support them, which was their untenable predicament at the present moment.
He then turned to his great objective: coercion. “A sanction is essential to the idea of law,” he analogized, “as coercion is to that of Government.” That the Articles of Confederation contained “so fatal an omission” stemmed, from the states’ “mistaken confidence” that “justice,” “good faith,” “honor,” and “sound policy” would, on their own, prevail. He pivoted to a litany of deficiencies plaguing the states themselves. He castigated the multiplicity of laws among all the states as a “nusance of the most pestilent kind.” He declared that the “luxuriancy of legislation” was a “general malady.” He reviled the dangerous “mutability” among the states’ laws, which only seeded chaos as they were repealed and superseded.
Those were just the first ten vices, ranging from sweeping to specific, from annoyance to threat. But they were all really just a prelude for Madison’s thundering conclusion—the “injustice of the laws of States.” The foregoing problems, he stated, raised the most alarming defect of all: the absence of the “fundamental principle of republican Government”—of majority rule—in a new country where the states were actually part of a national whole.
Politicians, he coolly observed, are usually motivated by ambition and personal interest, rather than the common good. And the people themselves often join in a “common passion,” becoming a majority and crushing the minority. Indeed, mass action can make people worse off, as “individuals join without remorse in acts, against which their consciences would revolt if proposed to them under the like sanction, separately in their closets.” The answer, he said, was to expand the republic; the “enlargement of the sphere” would dissipate individual passions, thereby controlling the Daniel Shays of the country. Through a “modification of Sovereignty,” the broad new nation—ever expanding toward the frontier he had known so well at Mount Pleasant—would have no choice but neutrality between factions, preventing majorities from dominating minorities and factions from undermining the nation itself.
It was a bold, counterintuitive case for expanding the empire and sweeping all thirteen states into a truly common government for their own sake. With that brilliance in place like a centering jewel, he concluded his “Vices” memorandum on a mysterious, longing note. The country would need elections that would “extract from the mass of Society” the “purest and noblest characters.” These enlightened leaders, he promised, would “feel most strongly the proper motives” for public service, and would be “most capable to devise the proper means of attaining it.”5
He plainly counted himself as one of those crucial figures—as one of those statesmen.
AS HE TORE DOWN THE ALREADY CRUMBLING PILLARS OF THE CONFEDERACY, Madison simultaneously worked on the problem of what to erect on the ruins. He devised a fifteen-item-long blueprint that he included in a letter he sent to George Washington on April 16, 1787, advising the general that he had “formed in my mind some outlines of a new system” and that he would “take the liberty” of sending them “without apology, to your eye.”
He told Washington, “A national Executive must also be provided,” but was delicate in sending that idea to the man who would probably become that executive, hastening to explain that he had not formed his own opinion about the “manner in which it ought to be constituted” or the “authorities with which it ought to be cloathed.” Washington himself would fill in many of the details—as president.
The legislative department, Madison said, should be divided into two branches, one chosen quickly, with rapid succession, and the other with a slower rotation, to “leave in office a large majority of old members.” That would become the Constitution’s bicameral legislature, the House and the Senate.
He wanted, he said, a middle ground between state sovereignty and a federal republic, through one legislative chamber that would give each state the same representation regardless of population. That would become the Senate.
The judiciary, he told Washington, needed “national supremacy.” While not in the Constitution, that would emerge in another twenty-five years as the doctrine of judicial review, announced by Chief Justice John Marshall (one of Madison’s allies) in Marbury v. Madison in 1812.
The federal militia, Madison said, needed to be governed by the federal government. That would become Article I, Section 8, Clause 15’s authorization that the federal military “execute the Laws of the Union, suppress Insurrections and repel Invasion,” and Article II, Section 2’s authorization for the president to command the state militias “when called into the actual Service of the United States.”
But Madison focused with greatest intensity on coercion: the subject that had preoccupied him for four years, since 1783, when he had tried to convince Thomas Jefferson to support a new amendment empowering Congress with great new authority over the states.
At the very least, he said, the new national government needed to be “armed with positive and compleat authority in all cases which require uniformity”—such as regulation. That would become the new Constitution’s “Supremacy Clause,” which declared, in the instance of conflict, all federal laws were supreme to all state laws.
But he also urged Washington to support a “negative in all cases whatsoever on the legislative acts of the States.” That meant not that courts would strike down state laws when they conflicted with federal ones, but that Congress could itself peremptorily strike down state laws. Without such a congressional veto on state laws, he warned, the states would “continue to invade the national jurisdiction,” to “violate treaties,” and to “harass each other with rival and spiteful measures.” While the “great desideratum” was a “disinterested & dispassionate umpire in disputes between different passions & interests in the State,” no such umpire existed, or would ever exist. Congressional laws must simply rule over the states.
Madison urged Washington to support a stronger, even more militant enabling authority for the coercive rights of the federal government. The “right of coercion,” he told the general, “should be expressly declared.” Congress must be able to subjugate any state government, any militia—any resistance whatsoever—not just by laws and the courts, but by the federal military, federal personnel, and the collective will of national leaders signing, and binding themselves to, the new constitution.
He took pains to spell out how the right would work in practice; it would probably never actually need to be enacted, he explained, because of the “difficulty & awkwardness of operating by force on the collective will of a State.” The right would still exist. And all parties would know about it.
Looking ahead, he told Washington, he saw three signal obstacles.
First, the convention in Philadelphia would have to agree with the constitution that emerged. Second, Congress would need to approve the new constitution. And finally, the states would need to ratify the constitution. He admitted that these barricades would “inspire despair in any case.” But it was the last step that would be at once the most difficult and the most pivotal.6 The constitution must be ratified by “the people themselves,” wrote Madison, and not by the legislators in their elite assemblies. Only such a process, by reflecting and absorbing the vicissitudes of public opinion, would “give a new System its proper validity and energy.”7
Madison, in other words, knew exactly what he was getting into with the states’ ratification of the Constitution. It was, without question, the path most fraught with peril. But he also believed the journey, and the victory, would forever bind the nation.
But that noble aim was also certain to bring him again into a collision with Patrick Henry, the undisputed master of Virginia’s people.
ON MAY 2, MADISON LEFT NEW YORK FOR PHILADELPHIA. AFTER THREE days of late spring travel over rutted roads, he arrived in the city of so many of his dreams and victories and dashed hopes. He was nervously thrumming with anticipation. He hoped for, he said, a “full and respectable showing” from the states. But he knew Rhode Island, defiant and uncooperative as always, had already decided to stay away, and he also knew that both Maryland and Connecticut seemed wobbly. But he was far more worried about “Disagreement in opinion among those present” than the absence of one or two states.
“The nearer the crisis approaches,” he confessed, “the more I tremble.”8