AS THE NEW YEAR ARRIVED, MADISON WAS NESTLED INSIDE HIS BOARDINGHOUSE, protected from freezing New York by fire and woolen coats, and surrounded by his spread of work. A bound volume of Hamilton’s first three essays had already appeared. The copies had been snapped up in Virginia, and, from everything he heard, Madison felt the papers were already having “a very valuable effect” in Richmond.1
Georgia unanimously ratified the Constitution on January 2, moving the colonies ever closer to the required golden number: nine states. Connecticut followed on January 9 with a massive majority. Five states had ratified the Constitution.
The major anti-Federalist strategists in Virginia included Patrick Henry, George Mason, Richard Henry Lee, and Governor Benjamin Harrison.2 They were a formidable but heterogeneous group. Henry Lee wrote Madison that Patrick Henry was still the undisputed “leader of this band” that opposed “any system, was it even sent from heaven,” that might “strengthen the union of the states.”3 Under Henry’s sway, the whole city of Richmond seemed to have gone crazy; the General Assembly, Madison declared in a letter to Jefferson, was “engaged in several mad freaks.” They included a bill that Madison said was a “child of Mr. Henry, & said to be his favorite one,” which would have prohibited the importation of almost anything not made in America, including rum, brandy, beef, cheese, and candles, while imposing a heavy fine on anyone possessing these foreign goods. Madison darkly noted that the transparently jingoistic bill was garnering, through Henry’s “violent opposition,” a large majority.4
The Federalist Papers were further provoking the “mad freaks.” On January 8, Madison learned about a devious new anti-Federalist effort under way in Richmond—a bill George Mason introduced that would refuse any further payments to Congress until Congress gave Virginia the “fullest indemnification” for Virginia’s help in conquering the Illinois country. The bill was eventually struck down, but not before alarming Madison afresh about a newly ferocious clash between a sort of Virginia nationalism and the new central government.5 Randolph wrote Madison that the Constitution was no longer even spoken of in Virginia. The silence stemmed “not from a want of zeal,” he assured Madison, but from “downright weariness.”6
The ratifying convention, once a distant glimmer, now appeared imminent, and the campaign to haul Madison back to Virginia increased in intensity. Randolph pleaded with Madison, “You must come in,” to secure his role at the ratifying convention. He warned that many in Orange were “opposed to your politicks.” Madison’s election was still certain, he said—reassuring himself as much as Madison—but Madison could not risk it any further by his absence.7
RANDOLPH, MEANWHILE, WAS WRESTLING WITH HIS OWN CONSCIENCE. Bruised by his exhausting confessional in Philadelphia and now out of office, he had been licking his wounds by staying “much at home,” especially because, he told Madison, the “current sets violently against the new constitution.” But he was coming to recognize the repercussions of his iconoclastic opposition for the entire country. “I need not assure you,” he wrote, “that it would give me no pleasure to see my conduct in refusing to sign, sanctified, if it was to produce a hazard to the union.” He attempted to reassure Madison that the “high-toned friends” of the Constitution were “still very sanguine,” and that the bill would “run thro with ease.”8
That Randolph was so self-soothing was cold comfort for Madison, who responded that while every man wanted to make decisions on the basis of his personal judgment—“no man feels more of it than I do”—all men must also be “governed by those with whom they happen to have acquaintance and confidence.” The convention coming up in Richmond was, he wrote, just such a case. He desperately needed Randolph on the Federalist side and told him so.
As for Henry, Madison had much harsher words. “[I] have for some time considered him as driving at a Southern Confederacy,” he told Randolph. Henry was advocating a second amending convention only to “render it subservient to his real designs.”9 In those “real designs” lay Henry’s real villainy—to destroy the federal union.
MEANWHILE, FROM PARIS, JEFFERSON REACTED TO THE SUMMARIES Madison send him about the Constitution with a commingled enthusiasm and chagrin. The sensation of being an ocean away from such crucial events was not easily captured. But in December 1787, he unburdened himself to his friend. He began by offering “a few words on the Constitution proposed by our Convention”—and then went on for several pages. He listed six things that he “liked,” including the three branches of government and the executive veto. He was also, he said, “captivated” by Wilson’s compromise of the Senate to the states and the House to the people.
But he rapidly moved on to add “what I do not like.” First was the absence of a bill of rights. To have such a bill was, he said, the natural right of people “against every government on earth, general or particular, & what no just government should refuse or rest on inference.” He also disliked that the president could, on paper, serve for life. That, he argued, could create a new American emperor, pope, or king.
Jefferson took his “few words” much further to launch an astonishing aside about Shays’ Rebellion, which was then over a year old. “The late rebellion in Massachusetts” had created “more alarm than I think it should have done,” he said. He told Madison to do the math. One rebellion in thirteen states in eleven years would equate to “but one for each state in a century & a half.” “No country,” wrote Jefferson, “should go so long without one.” He even praised the Shaysites’ “moderation” and their “almost self extinguishment.”
And then he really crossed Madison, exposing the fault lines between their two philosophies and their different visions for the nation, by declaring, “After all, it is my principle that the will of the Majority should always prevail.”10 He wrote this to James Madison, whose avowed ambition was to protect minorities at all cost. There was a deep canyon between these two poles. But to the immense credit of both men, it was bridged by respect.
In the months to come, Jefferson’s opinion about Shays’ Rebellion spread, as wisdom from a distant oracle. On May 28, 1788, just before Virginia’s ratifying convention began, a friend who had seen a copy of Jefferson’s letter asked Madison querulously, that even though it seemed to contain the man’s handwriting, “Can this possibly be Jefferson?”11
IMAGE 21.1. THOMAS JEFFERSON, BY REMBRANDT PEALE. COURTESY OF THE LIBRARY OF CONGRESS.
THE COUNTRY’S SITUATION WAS UNSTABLE, SHIFTING BY THE DAY. IN JANUARY, Madison felt the virus of Henry’s opposition might infect North Carolina as well. As Virginia’s sister state, a rejection of the Constitution there would, he worriedly told Randolph, “endanger the Union more than any other circumstance that could ever happen.” He spoke candidly. “My apprehensions of this danger,” he confessed, “increase every day.”12
In the coming weeks, he hurled himself into the task of stopping that event however he could, from his stubborn redoubt in New York. On January 11, Madison composed Federalist Number 37, a majestically twisting essay that swore readers to the creed of stability (“essential to national character,” he said) and energy (“essential to that security against external and internal danger” and to the “prompt and salutary execution of laws”). The “real wonder” of Philadelphia, he wrote, was its virtual unanimity. It was “impossible for the man of pious reflection not to perceive in it,” he declared, a “finger of that Almighty Hand” that had blessed the country repeatedly in the revolution’s critical stages.
But certain men of “sinister nature,” he said, had decided to oppose the Constitution—they must “be culpable.” With the march to final judgment in Richmond beginning, Madison was essentially sanctifying the Constitution. Anyone standing in his way was also standing in the way of a blessed young nation.13
IN NUMBER 38, WHICH MADISON JOTTED OUT SOON AFTER, HE CONDEMNED the anti-Federalists for holding up perfection as their standard while recklessly failing to offer an alternative, let alone to admit the crippling failures of the confederacy. He was angry, and even a little shrill. From the “lifeless mass” of the confederacy, he argued, had grown an “excrescent power,” which generated the dangers natural to such a “defective construction of the supreme government of the union.” America was like a patient with a “disorder daily growing worse.” Skilled doctors had prescribed medicine, but squabbling naysayers were intervening—though they could neither “deny the necessary of a speedy remedy” nor “agree in proposing one.” If the quacks’ fix was taken, the “dissolution of usurpation” would be the “dreadful dilemma”—a cure even worse than the disease.14
THAT PROVOCATIVE ESSAY, ALONG WITH THE DOZENS OF OTHERS BY Hamilton and Jay, was reprinted, bound into books, and sent into an eager public’s hands. Archibald Stuart wrote Madison that Publius’s “greatness is acknowledged universally.”15 Madison redoubled his work. In response to the specter Henry was conjuring up of an insidious, distant, rapacious power, Madison wrote Number 39. He methodically spelled out how the Constitution would actually work in practice. It was “essential,” he said, that the new government be “derived from the great body of society, not from an inconsiderable portion, or a favored class of it.” He ripped apart the charge that Philadelphia was an illegitimate conclave, deftly explaining that the convention had effectively required the “assent and ratification of the people” through their “deputies for the special purpose.”
His writing was clever, crisp, and reassuring. No new nation was actually being created, he assured his readers; the thirteen states (and the country to come) were becoming only more like themselves. The Constitution, like the nation, was neither “wholly national, nor wholly federal.” The national majority did not control outcomes all of the time; nor did the states. The nation was already a “composition of both.”16 The anti-Federalists, he was making clear, could offer nothing whatever to compete with that.
Back in Virginia, under the pounding artillery of the Federalist Papers, Henry was growing increasingly bellicose.
IN JANUARY 1788, MADISON LEARNED HENRY WAS THREATENING THAT because the other states could not “do without” Virginia, that Virginia could “dictate to them what terms we please.” The former governor was determined, he said, to kill the Constitution by subjecting its ratification to prior amendments. Henry was further asserting that Virginia could enter into foreign alliances on her own, as if it were a separate nation, as if the United States had no claim on Virginia at all.17 There was no reconciling his position and Madison’s; one would have to win, and one would have to lose.
The election of delegates to the ratifying convention was set for early March. Time was running out for Madison to come home to campaign for a seat. But he also needed to cut Henry’s latest assault off at the pass with more essays, which further kept him in New York. In less than two weeks, he wrote five essays at a blistering pace: Numbers 41 (defending the new Constitution’s design for the federal military),18 42 (defending the new government’s sweeping range of powers, from foreign relations to the prohibition of slavery),19 43 (plowing through the Constitution’s “miscellaneous powers,” from copyright to the creation of a federal district for the capitol),20 44 (defending as “completely invulnerable” the Constitution’s clause giving Congress the power to make all “necessary and proper” laws for executing its powers),21 45 (arguing that the states would remain “constituent and essential parts of the federal government”),22 and 46 (explaining that the federal government’s military would never allow for an army of more than twenty-five or thirty thousand men, whereas the states could easily convene a militia of “near half a million of citizens with arms in their hands”23).
He was working desperately hard to convince the public that the states they loved had nothing to fear from the new government, and hoped his words might be enough. But then, in early February, a letter in his father’s familiar hand arrived in the mail.
HE OPENED THE ENVELOPE. ALTHOUGH MOST OF THE MEN OF ORANGE County had originally supported the Constitution, the senior Madison sternly wrote, after visiting Richmond during the Assembly—and hearing the anti-Federalist attacks—they had “altered their opinions.” Even the Baptists—Madison’s favored minority—were “now generally opposed to it.” “I think you had better come in as early in March as you can,” urged his father: Madison’s friends wished him to be there; others would “suspend their opinion till they see you,” but wanted an explanation for Madison’s conspicuous absence. Others, he said more ominously, “wish you not to come” and would even attempt to “shut you out the Convention.”24 In other words, his son needed to be elected a delegate to save the Constitution, and he would now have to fight for the privilege.
But Madison delayed further still, frustrating his family and friends to no end. Their campaign intensified. William Moore lectured Madison about the “disadvantage of being absent at Elections.” “[I] must therefore intreat and conjure you nay commd.” The entire county was on tenterhooks, “anxiously awaiting for an Explanation from you,” he wrote, begging “your Sentiments from your own mouth.”25 With February over half over, James Gordon wrote Madison that it was “incumbent on you with out delay, to repair to this state, as the loss of the constitution in this state may involve consequences most alarming to every citizen of America.”26
Then George Washington himself took up the charge. He informed Madison that many had “asked me with anxious sollicitude, if you did not mean to get into the Convention; conceiving it of indispensable necessity.” He warned that the mighty George Mason would be there, representing three counties. He offered Mount Vernon to his fragile young friend as “a warm room, & a good fire” and a not “uncomfortable antidote” to the chilly, snowy journey he would encounter on his way back to Virginia—which he must make.27
MADISON DEFIED THE PLEAS. HE REMAINED FOCUSED ON PUBLIUS. IN LATE January, he defended the Constitution’s separation of the executive and legislative branches in Numbers 47 and 48. In 47, he said that the anti-Federalists had painted a caricature of powers separated to “destroy all symmetry and beauty of form,” which would allow the “essential parts of the edifice” to be “crushed by the disproportionate weight of other parts.” He laid waste to their argument with logic. He noted that, among all the constitutions currently at work in the states, there was no example where the branches were “kept absolutely separate and distinct.”28 In Number 48, which he wrote the next day, he declared that the departments needed to be “so far connected and blended, as to give to each a constitutional controul over the others.”29 The different departments of government, he explained, needed a nexus imperii, each giving up part of its authority for a share in the larger power. In Number 49, he conceded the “great force” in Jefferson’s argument from Notes on the State of Virginia that the Constitution should be regularly amended. But such “periodic” conventions, he said, posed a familiar peril: They would result in “disturbing the public tranquility by interesting too strongly the public passions.”30 In Number 50, he relentlessly probed even the most innocuous strands of Jefferson’s argument, asserting that not even “periodic” revisions would be acceptable.31
So much for Jefferson’s reckless portrait of free-flowing evolution. The country, Madison was arguing, needed a canal with locks, not a roaring river. Channeling the torrent through governance remained his object. It was the “reason of the public alone that ought to controul and regulate the government,” he declared. “The passions,” he said in Number 49—perhaps his most concise summary yet of his political philosophy—“ought to be controuled and regulated by government.”32 Experience, and the hard needs of a country in formation, would not survive Jefferson’s feckless experimentation.
From Paris, unaware that Madison had been busy savaging his arguments for periodic conventions, Jefferson wrote to ask his friend to “be so good as to continue to mark to me it’s progress”—meaning the Constitution. But Madison would wait until August 10, 1788—nearly a year after he began writing his share of the Federalist Papers—to finally tell Jefferson, still abroad in Paris, about the enterprise. He wrote (in cipher): “I believe I never have yet mentioned to you that publication.”33 Jefferson was Madison’s closest political friend and ally, but their ideas differed so dramatically on the Constitution—particularly on the necessity for a prior bill of rights—that Madison decided to keep him out of this particularly vital loop. In that decision, in that need for control, his emerging philosophy, character, and politics all united.
UNAWARE OF HIS FRIEND’S DAY-TO-DAY CAMPAIGN, JEFFERSON CONFIDENTLY advised Madison to support a peculiar plan he had in mind—that nine states should pass the Constitution and the other four reject it. The balking faction, Jefferson thought, would force the other states to include a bill of rights. “We shall thus have all it’s good,” he said of the new Constitution, “and cure it’s principal defect.”34 Those words would come back to haunt Madison, when Jefferson’s letter would be publicized. Madison hated the idea. Just as Jefferson had refused to support Madison’s measure to provide Congress with clear coercive authority years before, so Madison now stymied his friend through diversion and inaction.
Meanwhile, Madison learned that Massachusetts, despite the opposition of the Shaysites, had passed the Constitution, 187 to 168, and the minority had even remained in “good Temper.”35 Six states had ratified the Constitution. Pressure increased on Virginia, and on Madison, to ratify. He could not dally with Jefferson’s hopelessly idealistic scheme to organize an opposing quarter of the states. He needed to drive the states forward.
BY EARLY FEBRUARY, HE HAD SCYTHED HIS WAY THROUGH DOZENS OF revanchist arguments against the Constitution. But almost all of his Federalist Papers so far had been reactive, merely repulsing the Constitution’s enemies. On February 6, he set out to take the offense instead, with a positive account of the Constitution’s brilliance. In doing so, he crafted a bold declaration that would live for centuries.
For the first time, Madison-as-Publius departed from any obviously organized plan. He wrote, almost apologetically, “I will hazard a few general observations” on the deceptively simple topic of “maintaining in practice” the separation of powers in government.
That goal was a deceptively modest entryway into a sweeping new vista of constitutional theory. The principle of creating “separate and distinct” departments of government, he said, would require “deviations.” Those deviations would consist of giving each department not only separate powers, but the ability to “resist encroachments of the others.” Here, Witherspoon’s warnings, the endless battles with Rhode Island, the machinations of the factions back in Virginia, and the looming force of Henry, all led to a burning imperative: “Ambition,” he wrote, “must be made to counteract ambition.” That need was a “reflection on human nature.” If “angels were to govern men,” neither “external nor internal controls on government would be necessary.” Even if statesmen took over the US Senate, they would err. That was why governance was so crucial. By creating a government “to be administered by men over men,” he explained, the task was to “enable the government to control the governed.” Only then could you “oblige it to control itself.”
As for him, as for Witherspoon before him, conscience was the heart of the matter. Justice, he wrote, was the “end of government” and the “end of civil society.” “It ever has been and ever will be pursued, until it is obtained, or until liberty be lost in the pursuit.”
But how to get there? He prodded his readers toward a fork in the road of his own making. There were only two ways to prevent the evil of a majority’s injustice: The first was to create an authority separate from the majority—as in countries with a king. But that was “at best a precarious security.” And it could not work in the democratic United States.
The other alternative was a society with “so many separate descriptions of citizens” that it would “render an unjust combination of the whole very improbable, if not impracticable.” On this scenario, Madison radiated self-confidence. That second method, he promised, would be “exemplified in the federal republic of the United States.” The “extended republic” of America would be “broken into so many parts, interest and classes of citizens”—so many roiling, shifting passions—that there would be “little danger from interested combinations of the majority.” All were vulnerable; therefore all needed strength. When “even stronger individuals are prompted by the uncertainty of their condition,” they would gladly submit to a government pledged to protect all, including the weak and them.
Nexus imperii. That which binds all becomes the bind itself. He praised the Constitution’s “judicious modification and mixture of the federal principle.” The Constitution’s cantilevered states, nation-state, and internal governmental branches, together, would mirror the balanced factions that not only survival, but justice, required.36 Thus Madison described what he had been seeking since he first returned home to Orange from Princeton—the elusive equilibrium of reason and the passions, of control and governance, of government and the very humans who composed it and were dominated by it, and of those who would lead the state.
The statesmen.
BUT THE NEWS FROM VIRGINIA GREW EVER WORSE. AN AGITATED MONROE wrote from Fredericksburg that while Virginia’s northern counties were supporting the Constitution, the southern counties were starting to tear away. It was “impossible to say,” he said grimly, “which preponderates.” He urgently told Madison, “We expect you in soon” and “shall be happy to see you here.”37
Madison’s cousin the reverend again flatly confronted him, this time about whether the new Constitution was “in reality practicable,” querying the checks rather than the balances, especially the executive veto. Despite Madison’s claim to have resolved this matter, the reverend called the provision just another imperium in imperio that would, he feared, “be the fruitful source of a thousand jarring Principles.” It would “make the new Machine, notwithstanding all the Oil you can give it, to go heavily along.” As for Virginia, he had news Madison did not want to hear. Ratification was, at best, questionable—especially without amendments. That was the last thing Madison wanted to hear.38
After taking a trip through Richmond, Cumberland, Powhatan, Chesterfield, and Petersburg—the towns that comprised the heartland of Virginia—Madison’s friend Edward Carrington wrote him that the “demagogues in opposition” were behaving as if their popularity would increase in proportion to their clamors. He depicted the surge in familiar, diluvian terms—as a “Torrent”—with Patrick Henry the roaring fount. Carrington ominously noted the danger from “weak men.” There was, he said, “no accounting for the effects” that Henry’s “address and Rhetoric” would have among the susceptible masses.39
But Madison’s work in New York was still not done.
AFTER HIS MAJESTIC NUMBER 51, MADISON, IN JUST TWO WEEKS IN FEBRUARY, composed six essays, which all defended the House of Representatives as essential to the Constitution. Numbers 52 and 53 mined history to defend the House’s biennial elections, 55 and 56 justified the number of members in the House, and 58 forcefully argued that the decennial census would allow the House to evolve over time.
It was in Number 54, in the middle of this barrage, that Madison advanced into the most controversial territory. He had the unsavory task of defending the Constitution’s three-fifths compromise to achieve ratification in slaveholding states—particularly Virginia. He conceded that “our southern brethren” believed that “representation relates more immediately to persons, and taxation more immediately to property.” He ventured a daring argument for the despicable compromise. The “true state of the case,” he declared, was that slaves “partake of both these qualities.” Because they were at once commanded and owned under law, they were, he said, “degraded from the human rank”—like animals. But he cannily noted that the slaveholding states’ laws also protected slaves against the violence of others—even from their masters. And, he observed, a slave, unlike an animal, could be legally punished for violence.
Those laws were well known in the slaveholding states. He was reminding his readers of the political philosophy they were implicitly supporting by their simple complicity in these regimes. The polity had arrived at an uneasy but definitive recognition, he said, that the slave was “evidently regarded by the law as a member of the society.” The slave was therefore, he declared, a moral person—not a “mere article of property.” Thus he elevated the “great propriety” of the Constitution’s three-fifths compromise. It recognized, he said, the real facts about slaves in the colonies—that they were at once human and property.
His logic was as warped as the misanthropic compromise the men in Philadelphia had hammered out of their reality. But from that grotesquery, Madison extracted a nugget of truth: Even the slaveholding states were coming to recognize, at long last, that African Americans were human beings.40
WITH THE JUNE LAUNCH OF ITS RATIFICATION CONVENTION LOOMING larger every day, Virginia was turning restless and dyspeptic. “Never perhaps was a state more divided” than Virginia on the new Constitution, Madison’s friend John Dawson wrote him from Fredericksburg on February 18.41 At first, Madison wrote to Jefferson, Virginia seemed enthusiastically in favor. But then the tide had taken a “sudden and strong turn in the opposite direction.” Henry’s “influence and exertions,” Madison explained, were to blame. His “very bold language” was resonating on “self-sufficiency”—appealing to Virginians to tear away from the fragile social compact and return, Madison feared, to the bloody state of nature.42
NEARING THE END OF THE SYMPHONIC OUTLINE, MADISON CHARGED toward the Constitution’s summit: the Senate. In Number 62, he proclaimed that the Senate would prevent the country from yielding to the “impulse of sudden and violent passions” and from being “seduced by factious leaders into intemperate and pernicious resolutions.”43 In Number 63, he reached back to Athens and to the horrifying example of Socrates’s murder by a mob. When the people were “stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men,” he explained, they could enact measures which they would later “lament and condemn.” The Senate could arrest such collective madness.
He took special care to address the concern that the Senate would become too “independent and aristocratic.” The resolution to that problem, he explained, lay in the genius of the institution’s design. The popular House, he predicted, would restrain the elite Senate by holding its decisions up in the public arena. And if any senators did become antidemocratic, other elected senators would be forced to provide a “display of enlightened policy” and their commitment to the common good to return to the people’s good graces. Thus, even the country’s statesmen would always be beholden to the people.44 The Senate would be self-correcting.
While on paper, his words contained real emotion. He clearly saw something of himself in the Senate. The higher body inspired him, as he hoped it would inspire the country.
BY MARCH, THE CAMPAIGN TO HAUL MADISON HOME REACHED A FEVER pitch. Joseph Spencer, a Baptist who had been imprisoned in Orange County in 1773 for lacking a license to preach,45 wrote a sweetly misspelled plea to the man who had defended his sect: The “weker class of people” were “much predegessed (prejudiced)” against the Constitution. Unless Madison and his friends “do Exerte yr. Selves Very much,” Spencer warned, “youl not obtain yr. Election in Orange.”46
Madison finally made up his mind. He was needed. He must do his part. He would stand for election once again. And he would confront Patrick Henry in Richmond.
He informed his friends that he would return to Virginia. Washington wrote at once to congratulate him. He said with sympathy that he knew that Madison worried, regarding his anti-Federalist friends in Orange, that he would have to cross “the Rubicon of their friendship.”47
Madison took to the road back to Orange. His first order of business was to stop along the way in Mount Vernon, where he conspired with Washington. The ratification would begin in less than three months. Twelve years of work were about to come to a head. The man he had first worshipped, at whose elbow he sat as councilor, was standing squarely in the way.
He intended to knock him down.