James Madison’s rethink: The Constitution’s multiple ambiguities would allow it to evolve

James Madison
Portrait by John Vanderlyn
James Madison

My bad. I should have put this up on Friday, for Constitution Day.

What was the original intent of the single most influential framer of the Constitution about how much power the federal government should have, and what was his original intent about whether future generations should be bound by the original intent of the framers?

We can’t really know. But we can learn a lot by reading “The Quartet,” by historian Joseph Ellis, or by attending a talk Ellis will give about the book next week at the University of Minnesota.

Ellis will speak about the book on Sept. 28, at the University of Minnesota’s annual “Paul and Joan Nagel Lecture.” (The Nagels, now deceased, were friends of mine and I will attend, as a tribute to them but also, in this case, to hear Ellis, because reading “The Quartet” has given me a fresh reason to think through the myth that binds us.)

“The Myth That Binds Us” refers, self-importantly, I fear, to  my own small book on Constitutional history written originally as series of articles for the Strib in 1987 for the bicentennial of the Constitutional Convention. But the title also tries to convey two of the key arguments of that long-ago project. First, that a great deal of what we think we know about the Constitution is more myth than reality. Second that the Constitution functions as a bible for our 229-year-old system of government. It “binds us,” kind of like the way a holy book binds a religious denomination, because it is believed to hold the answers to all our questions and the solutions to all our problems. Like a bible, if you believe in it, you can find in the Constitution answers to what troubles you, or believe that you have found them.

But if you bring a skeptical, logical mind to the search, you will find something else, as James Madison did (according to Ellis’ book).

Disappointed with draft Constitution

Madison, who is known as the Father of the Constitution, was disappointed with the draft produced at the Constitutional Convention. He had wanted a much stronger national government, relative to the states. Specifically, he thought it was vital that the federal government be empowered to veto state laws. Madison left the Constitutional Convention feeling like something of a failure, because he had failed to get that power into the draft Constitution that was sent out to the states for ratification.

And then he had a rethink, and felt much better. He realized, and wrote in a letter to Thomas Jefferson, that the document had enough flexibility in it to allow for a much more powerful federal government than anyone could imagine at the time, or so argues Ellis in “The Quartet.”

Ellis identifies four men (hence “The Quartet”) who did more than anyone else to get the Constitution written and ratified, by hook and by crook, in a country that saw itself as much more a loose federation of states than a unified nation.

The four are George Washington (who chaired the Constitutional Convention and whose prestige from the War for Independence was essential to getting it ratified), Madison, Alexander Hamilton and John Jay. (Madison, Hamilton and Jay were the three pseudonymous authors of the “Federalist Papers,” a series of essays published in New York during the campaign for ratification. All members of the quartet, except Jay, were delegates to the Constitutional Convention in Philadelphia in the summer of 1787. Jay became first secretary of state (on an acting basis) under the newly formed federal government created by the Constitution, and then became the first chief justice of the brand-new U.S. Supreme Court that was also created by the Constitution.

To back up a step to the starting point of Ellis’ book, he argues that in coming together to issue the Declaration of Independence in 1776, the representatives of the 13 colonies did not have a vision of turning themselves in to a new independent nation. Rather the 13 colonies, which had relatively little to do with one another before then, saw themselves as a group of “independent states” that were joining together temporarily to overthrow British rule, and would then proceed into the future as 13 free and independent states joined loosely together for purposes of limited cooperation.

Here’s what the Declaration of Independence actually says, suggesting that Ellis was correct about how the states viewed their relationship (and note the lower case in “united” below as they declared themselves to be not a new nation but “Free and Independent States.”)

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States.

‘Quartet’ wanted stronger federation

The Articles of Confederation, the governing document during the revolution and the early years following it, created a very weak nation, or maybe not a nation at all, perhaps something more like Europe is now under the European Union. The members of Ellis’ “quartet” all saw a need for a much stronger federation with a much stronger federal government. And they made it happen, although Ellis finds that the kind of federalizing change the Constitution brought probably did not have majority support in the country at the time.

(Ellis also mentions, in passing, one of my favorite bits of skullduggery utilized by the Framers. The Articles of Confederation, ratified by all the states soon after the Declaration of Independence was issued, said that nothing in the document could be changed without agreement of all the states. That was the law of the land. And the meeting, which we have come to call the Constitutional Convention and which assembled in Philadelphia in 1787, was expected to recommend a few changes to the document and submit those changes to the states with the understanding that the Articles couldn’t be changed without unanimous 13-way agreement, because that’s what the Articles of Confederation said.

(But “the quartet” succeeded in getting agreement at the convention that, rather than crafting a few changes, a whole new document would be written. And they decided to submit it to the states with the understanding that as soon as nine states ratified, the document would take effect in those states. If three or four states didn’t like it, they couldn’t block its adoption and would have to choose between submitting to the new plan or remaining outside of it as separate nations, surrounded by the United States. Ellison refers to this provision as “technically illegal.”

(It’s a bigger betrayal than that of the pre-existing understanding. Two states, North Carolina and Rhode Island, strongly disliked the new Constitution and voted not to ratify it. But both had to take a second vote when it became clear that the newly federalized nation was being formed around them. They still had not ratified when Washington was chosen as the first president and so they had no electoral votes. Rhode Island actually voted the Constitution down the second time as well, but eventually relented. If they had not done so, presumably, Rhode Island would have become a tiny independent nation, outside of, but surrounded by the United States.

(What the Framers of the Constitution pulled off would be roughly equivalent to a group of states today deciding to form a new nation under a new system and deciding that it would take effect as soon as, let’s say, 26 or maybe 30 of the existing 50 states agreed to it, leaving the states that didn’t like it to fend for themselves, notwithstanding the current Constitution which requires three-fourths of all the states, or 38 of the 50, to change anything at all.)

Anyway, just to nail down the one point I started with at the top, Father of the Constitution James Madison left Philadelphia with a feeling of failure, because the national government created by the document seemed too weak to turn the U.S.A. into the colossus he imagined.

Madison’s new revelation

As the campaign over ratification began to take shape, Ellis writes, Madison had a new revelation that made him feel much better. As the opposition to ratification began to emerge, almost entirely from folks who feared federal power, he realized that if he had succeeded at the convention, if the draft had included the kind of explicit power for the national government over the states that Madison preferred, it would not have been ratified even in the nine states necessary. (The vote to ratify was very close in the two biggest states, New York and Virginia, and it was impossible to imagine the project working without those two.)

Madison came to believe that the draft created roughly the strongest federal government that could possibly have been ratified and that it created space for a national government to grow stronger and stronger over the course of time, which is of course exactly what has happened.

The federal government has indeed grown steadily stronger and has seized powers that would have been unimaginable to Madison and that would have been deal-killers during the ratification contests if they had been explicitly enumerated.

Nobody, not Madison nor Washington nor the most radical federal power advocate of the framers – Alexander Hamilton — could have imagined a federal government that would one day build the Interstate Highway system, that would collect more taxes than all the states combined by a huge factor, that would create a perpetual standing military of globe-dominating size and capabilities that did not rely much on state militias, that would create massive universal national social welfare programs like Social Security, Medicare, Medicaid and Aid to Families with Dependent Children.

Language of ‘general welfare’

When the framers included in the list of the powers of Congress the power to regulate interstate commerce and promote the “general welfare,” they surely never dreamt of the level of economic regulation and wealth redistribution programs that would eventually be created.

Small-government conservatives all through U.S. history opposed pretty much all of those things when they were first proposed, not only arguing that they would all be too expensive, would be anti-freedom, but also arguing that such expansion of federal power was not “intended” by the Framers.

And, of course, on that last part, they’re right, or at least have a valid historical argument.

Former Rep. Ron Paul, the sometime Libertarian, sometime Republican and sometime presidential candidate explicitly argued in the 21st century that Social Security and Medicare were  unconstitutional and he has a very good historical/philosophical argument, although the Supreme Court decided in 1937 (Helvering v. Davis, notably in the middle of the Depression) that Social Security was permissible under the “general welfare” clause. The Supremes likewise, on a narrow vote, ruled that the Affordable Care Act was constitutional, although such a plan certainly was nothing the conventioneers of 1787 could have imagined or meant to make possible.

If anyone had told them that the (somewhat questionable) power of the U.S. Supreme Court to interpret the Constitution and strike down state laws would someday be used to guarantee the right of same-sex marriage, the Framers would have been mightily surprised. (Although, just to clarify, that ruling relied on language in the 5th and 14th amendments. I believe the authors and ratifiers of those amendments would have been equally surprised at some of the things to which that language gave rise over the centuries.)

Which brings us, finally, to the question of what the Constitution was and is and might yet become, depending to a significant degree on future Supreme Courts. 

Many of the things I have mentioned above, that the Framers did not and could not have foreseen, are justified by the belief that the Constitution was not devised as a straitjacket but is an “evolving document” subject to fresh interpretation by every generation. Of course, “literalists” — like the late Antonin Scalia, small-government conservatives and “strict constructionists” — hate that evolving-doctrine stuff, and I understand why and even, to a limited degree, feel their pain.

Assessing prospects for ratification

Which is why I was impressed with Ellis’ conclusion about what Madison realized during the campaign for ratification. At the risk of wearing out my welcome, but in hopes of making the Ellis point about Madison’s big realization, I’ll quote it at some length from “The Quartet.” The first sentence in the excerpt below alludes to Madison “counting delegates,” meaning he was trying to figure out whether the draft Constitution would be accepted by enough of the delegates to the state ratifying conventions in at least nine states:

At the same time that he was counting delegates in his obsessive Madisonian mode, his thought process, or perhaps his way of thinking about the ratification process, was beginning to change as he read the newspaper essays and editorials from multiple states. It gradually dawned on him that if he had gotten what he wanted at the Philadelphia convention, the prospects for ratification of the Constitution would have been remote in the extreme.

In a long and quite extraordinary letter to Jefferson — the fullest and clearest exposition of what the Constitutional Convention had achieved that Madison ever wrote — he described the hybrid creation the Constitution had created as part confederation and part nation. The delegates had, willy nilly, managed “to draw a line of demarcation which would give to the General Government every power requisite for general purposes and leave to the states every power which might be most beneficial to them.”

Left unsaid was that no one knew where that line existed, or what “general purposes” meant. Although it would take Madison several months to develop the full implications of this evolving idea, its outlines were already clear in that letter to Jefferson in late October 1787. The key insight might be called the beauty of ambiguity.

Madison had, misguidedly he now realized, pushed for an unambiguous resolution of the sovereignty question during the convention. Now it was becoming clear to him that the great achievement of the convention, and of the Constitution as well, was to embrace the inconvenient truth that there was no consensus on the sovereignty question, either in the convention or in the country itself. So what they had created, albeit out of necessity rather than choice, was a political framework that deliberately blurred the sovereignty question.

Most historians and constitutional scholars over the last 50 years have agreed that Madison’s preconvention preparation constituted an impressively creative moment that effectively set the agenda for the debate in Philadelphia that summer. Few have recognized that Madison’s post-convention thinking constituted a second creative moment of equivalent or greater historical significance. For it produced a political perspective that had short-term consequences for how the Constitution should be comprehended as the defining document of the new, and eventually not so new, American republic.

In the short run, it meant that the advocates of ratification were defending the blueprint not for a new, wholly consolidated national government but rather for a halfway house that was partially federal and partially confederal. The multiple compromises reached in the Constitutional Convention over where to locate sovereignty accurately reflected the deep divisions in the American populace at large. There was a strong consensus that the state-based system under the Articles had proven ineffectual, but an equally strong apprehension about the political danger posed by any national government that rode roughshod over local, state and regional interests, which were the familiar spaces where the vast majority of Americans lived out their lives.

As Madison now realized, the Constitution created a federal structure that moved the American republic toward nationhood while retaining an abiding place for local and state allegiances. In that sense, it was a second American Revolution that took the form of an American Evolution, which allowed the citizenry to adapt gradually to its national implications.

In the long run — and this was probably Madison’s most creative insight — the multiple ambiguities embedded in the Constitution made it an inherently “living” document. For it was designed not to offer clear answers to the sovereignty question (or, for that matter, to the scope of executive or judicial authority) but instead to provide a political arena in which arguments about those contested issues could continue in a deliberative fashion.

The Constitution was intended less to resolve arguments than to make argument itself the solution. For judicial devotees of “originalism” or “original intent,” this should be a disarming insight, since it made the Constitution the foundation for an ever-shifting political dialogue that, like history itself, was an argument without end.

Madison’s “original intention”’ was to make all “original intentions” infinitely negotiable in the future.

In her review of “The Quartet,” for the New York Times, Michiko Kakutani wrote: “This book could not be more timely, given the recent Supreme Court rulings on gay marriage and health care, and debates over the meaning of the Constitution.” 

Comments (14)

  1. Submitted by Jim Million on 09/20/2016 - 09:01 am.

    Original Intentions Negotiable

    Certainly some…not so sure about “all.”

    • Submitted by Walt Cygan on 09/20/2016 - 11:24 am.

      From the NY Times review

      He (Ellis) closes his book with words from Thomas Jefferson: “Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I know that age well; I belonged to it and labored with it. It deserved well of its country …

      “But I know also, that laws and institutions must go hand in hand with the progress of the human mind.”

      I’d say “all” is accurate. The founders just didn’t really see themselves as engaged in a quest to define the rules that would be passed down untouched through the ages. They were creating a pragmatic document to create a republic, knowing that ratification was a difficult proposition.

      The book is a fascinating glimpse behind the curtains. Thanks for the article, Eric. Hope to see you next week.

  2. Submitted by Paul Brandon on 09/20/2016 - 10:10 am.

    A must read

    “The Quartet” is a must read for anyone who wants to understand how our political system evolved.

  3. Submitted by Ray Schoch on 09/20/2016 - 10:30 am.

    Never trust a zealot

    …which in this instance means a “literalist.” It’s the political equivalent of religious fundamentalism, and we have ample evidence, both contemporary and historical, of the intellectual bankruptcy and inhumanity of religious fundamentalism. In similar fashion, and constitutionial “literalist” would bind us all to the late 18th century, with crippling, perhaps insurmountable, negative consequences in virtually every area of life.

  4. Submitted by John Webster on 09/20/2016 - 01:04 pm.

    Plain, Honest Men

    A useful corollary to this Ellis book is “Plain, Honest Men” by Prof. Richard Beeman,the best ever history of the Constitutional Convention of 1787. That book makes clear that the Constitution was a series of compromises made by people of diverse geographies, ideas, and interests – it is not holy scripture handed down on Mosaic tablets, and it must take into account changing circumstances, new technologies, etc. For example, the First Amendment applies to Internet communications, even though the Internet couldn’t have been conceived by the Founders.

    At the same time, there is also a danger that the “living constitution” theory could be used to validate judicial supremacy that effectively negates legislative powers. Some liberals want the federal judiciary to invent Positive Rights to health care, income assistance, etc. on the theory that citizens can’t fully enjoy their rights as citizens without adequate economic security. By that thinking, the U.S. Supreme Court could mandate a single-payer health care system (i.e. Medicare for all), bypassing the Congress and the President in decreeing a new law (many years ago, a branch of the ACLU proposed pretty much this thinking).

    The bottom line is that if we want a living Constitution, we also need a sense of restraint in the judiciary or democracy will be destroyed.

    • Submitted by Walt Cygan on 09/20/2016 - 02:17 pm.

      Hmmm

      Have we ever seen the Supreme Court attempt to act in a way to mandate some action? Even if they were to suggest such a mandate, why would the legislative and executive branches pay any attention? I don’t think they would consider themselves bound by such pronouncements from the Court.

      I’m as liberal as the next guy, but I would object to a Supreme Court that acted in such fashion. I would argue that each branch of government needs to act with a sense of restraint. The problem is that since we have a legislative branch that has seemingly dedicated itself to doing nothing, the pressure for action to address current issues of note falls on the executive branch, which can only be restrained to a large extent by the judiciary.

      • Submitted by RB Holbrook on 09/20/2016 - 03:16 pm.

        Yes

        “Have we ever seen the Supreme Court attempt to act in a way to mandate some action?” Off the top of my head, I can think of two times:

        Brown v. Board of Education, 349 US 294 (1955)–Desegregation of the schools must begin “with all deliberate speed.”

        Swann v. Charlotte-Mecklenburg Board of Education, 402 US 1 (1971)–Supreme Court ordered that affirmative steps (busing) be taken to desegregate schools.

        Andrew Jackson may never have made his famous “John Marshall has made his decision; now let him enforce it!” comment. Even so, it comes down to an understanding of the basic idea of the Constitution and the rule of law. I don’t think there is any serious argument that the Executive or Legislative branches can ignore judicial pronouncements.

  5. Submitted by Ron Gotzman on 09/20/2016 - 03:10 pm.

    Hermeneutics

    The problem with some “Liberal – non literalists” is that they try to make the constitution mean what it never meant.

    • Submitted by Paul Brandon on 09/20/2016 - 04:23 pm.

      Do you mean

      like saying that the Second Amendment refers to the National Guard (or earlier state equivalents), not to individual gun ownership?

      • Submitted by Frank Phelan on 09/20/2016 - 06:48 pm.

        I’m Pretty Sure

        He’s talking about deciding presidential elections, instead of counting the ballots of actual voters.

    • Submitted by Ray Schoch on 09/20/2016 - 06:59 pm.

      As opposed to…

      …”conservative” literalists who have somehow divined the founders’ thoughts? Who gets to decide what the constitution means now, or meant originally? Where do they get that authority? All Eric and Eillis are doing is raising those kinds of questions, and as others have stated, there’s some risk to the society in going too far in either direction.

      Those who state with certainty that they know what the document was intended to mean, or what it means now, seem to me equivalent to the preacher who claims to know God’s will. They don’t, and can’t.

  6. Submitted by Jim Million on 09/20/2016 - 09:06 pm.

    Thanks to All

    newer and different voices here.

  7. Submitted by Paul Udstrand on 09/21/2016 - 09:34 am.

    History doesn’t rely in historians

    It’s might be nice to know that some historian has discovered the fact that Madison came to appreciate the nature of the Constitution, but anyone who studies the actual history of the nation can clearly discern the function the constitution has performed regardless of Madison’s insight at the time. The idea that we need the authority one of the “framers” to make a common sense observation is kind of silly.

    I have to take issue with the idea that Rand or anyone else has a case because the “framers” would agree with him. We’re looking at book wherein a “framer” is described as deciding that expanded federal powers under the stewardship of future generations was the best possible outcome. So when someone says the “framers” would agree with Paul, you have ask: “Which framers?” This habit of conceptualizing the “framers” as some kind of monolithic entity is silly.

    We know they kicked the can down the road regarding the slavery problem, but beyond that we simply have no way of knowing what any of the framers would have thought had they been around decades and centuries later as the nation grew and changed.

    It’s intellectually bizarre to pretend that if we transported “framers” to the 20th or the 21st century they would render judgments and decisions as if they were still in the 19th century. They were intelligent people, they wouldn’t leave that intellect behind. We know they couldn’t “imagine” the issues we’ve faced long after they died, but that actually means that we have absolutely no way of knowing what they would think. We know they never experienced a Great Depression, we can’t know what they would think about the New Deal if they were to experience the Great Depression 100 years after they died. It’s simply epistemologically impossible to determine what some would think about something they never thought about, after they’ve died and are no longer available to interview. Writings left behind cannot give us access to anyone’s intellect, they may only tell us what they thought about what they wrote about, and that’s assuming they never changed their minds and failed to write about THAT.

    In the end questions like whether or not “framers” would agree with Paul, or Obama, or FDR, may be fun thought experiments, but in real terms they can’t be coherent questions.

    It’s true that conservatives tend to convert the Constitution into a scripture of sorts, and THAT requires the deification of it’s authors. The problem is that the framers most certainly were not omniscient and infallible beings so it really doesn’t matter what they would think about any given contemporary issue. I’ll tell you something else the framers probably never “imagined”, they never imagined that decades and centuries after they died people would try to worship them as infallible authors of political scripture.

  8. Submitted by Paul Udstrand on 09/22/2016 - 09:11 am.

    Just a quick follow up on “intent”

    Beyond the epistemological fallacy of pretending to “know” what a framer might think or support 200+ years after they’ve died there is another problem with the whole notion of appealing to framers “intent”.

    The fact is that framers intent is actually irrelevant. Our governance isn’t based framers intent, it’s based on the US Constitution, and there’s a huge difference. For one thing, since the framers weren’t infallible Gods their intent is no more reliable than ours. We know for instance that when the Constitution was ratified many of the framers intended to have slave economies for the foreseeable future. We could argue that those framers would have supported Jim Crow, and in fact that is exactly what Paul and his son argue. But so what? We’re not governed by their intent even if we could know it. Trying to appeal to the framers intent in order to decide whether or not we ought to have a Federal Reserve Bank, or subsidize and build light rail, or allow stem cell research is simply nonsensical as is any public policy argument that claims to be supported by such intents.

    This is why “Originalism” is such an embarrassment. It’s nothing more than egocentric fantasy pretending to be legal theory. Getting back to the conservative tendency to deify the framers and treat the Constitution like religious scripture, you frequently see this behavior often among religious people… they forget that “believing” in something that’s infallible doesn’t make the believer infallible. Originalists are simply pretending that their own thoughts are actually those of of the framers. Such pretenses are clearly ludicrous.

    So while historical observations regarding the framers may be interesting, those observations struggle for relevance in terms of contemporary policy and governance. Arguments about the nature and role of government are ubiquitous among modern democracies no matter who wrote their constitutions. The gridlock we’ve been experiencing in recent decades isn’t build into the US Constitution but it IS built into the mentalities of American reactionary conservatives who delude themselves into thinking they represent the minds of gods. We participate in that delusion at our own peril, and guarantee gridlock when try to share political power with madness.

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