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James Madison and the Problem of Founding

Published online by Cambridge University Press:  05 August 2009

Gary Rosen
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Extract

Though indebted to the social compact for the basic features of his political thought, James Madison found the doctrine inadequate in one essential respect: its failure to provide an account of founding. Of course, this is no simple oversight in liberal political philosophy. It reflects deep misgivings about prudence—especially when understood in its “architechtonic” sense as the height of practical reason—and the inequalities that it implies. Madison addresses this problem in Federalist, Nos. 37–40, his fullest treatment of the activities of the Federal Convention. Here he defends the classical notion of prudence, describing its relationship to the modern science of politics and suggesting how it can be reconciled with modern egalitarian principles.

Type
Research Article
Information
The Review of Politics , Volume 58 , Issue 3 , Summer 1996 , pp. 561 - 596
Copyright
Copyright © University of Notre Dame 1996

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References

1 Letter to Edmund Randolph, 10 January 1788, in The Papers of James Madison, ed. Hutchinson, William T., Rachal, William M. E. et al. (Chicago: University of Chicago Press, 1962–1977; Charlottesville: University Press of Virginia, 1977–), 10: 355Google Scholar. Hereafter Madison's Papers will be cited by volume and page number as follows: PJM, 10: 355.Google Scholar

2 Madison was not much of one for philosophical name-dropping, but both Hobbes and Locke do make the occasional appearance in his writings. As a young man, Madison quoted Hobbes in his commonplace book, and at Princeton he cited both Hobbes and Locke in his notes on “logick.” See Commonplace Book, 1759–1772 (exact date uncertain), PJM, 1:16Google Scholar; and Notes on a Brief System of Logick, 1766–1772 (exact date uncertain), PJM, 1: 35Google Scholar. In his maturity, Madison included the works of both writers in the books that he recommended for purchase by Congress. Only Locke, however, is mentioned by name in Madison's own writings—on three occasions, to the best of my knowledge. See Report on Books for Congress, 23 January 1783, PJM, 6: 85Google Scholar; and, for references to Locke, “Spirit of Governments,” 20 February 1792, p. 183; “Helvidius,” No. 1, 24 August 1793, p. 203; and Letter to Thomas Jefferson, 8 February 1825, p. 349, in The Mind of the Founder: Sources of the Political Thought of James Madison, ed. Meyers, Marvin (Hanover, NH: University Press of New England, 1973).Google Scholar

3 See, for example, Federalist, No. 40, p. 265; No. 43, pp. 295, 297; No. 44, p. 301; and No. 51, p. 352, in The Federalist, ed. Cooke, Jacob E. (Middletown, CT: Wesleyan University Press, 1961)Google Scholar. (Hereafter all citations from The Federalist will be by essay and page number of this edition, e.g., Federalist 40: 265.) In addition, see Madison's, ”Memorial and Remonstrance against Religious Assessments,” ca. 20 06 1785, PJM, 8: 299–300Google Scholar; and speech on Citizenship, 22 May 1789, PJM, 12: 179–82Google Scholar. Also see his speech in the House of Representatives introducing amendments to the Constitution, 8 June 1789, pp. 164, 168; and “Report on the Virginia Resolutions,” 1799–1800, pp. 232–37, in Mind of the Founder.

4 Leviathan, ed. Macpherson, C. B. (Harmondsworth, England: Penguin Classics, 1985), p. 211.Google Scholar

5 ibid., p. 687.

6 ibid., p. 183.

7 Charles Beard does not mention any of the essays in this series in hisAn Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1913)Google Scholar, despite their obvious relevance to his thesis, nor do they receive serious consideration in Fame and the Founding Fathers, ed. Colbourn, Trevor (New York: W. W. Norton, 1974)Google Scholar, the collected writings of Douglass Adair. More recent commentators also give Numbers 37–40 short shrift. There is no sustained discussion of them, at least as they relate to the role and significance of the Federal Convention, in Carey, George W., The Federalist: Design for a Constitutional Republic (Urbana: University of Illinois Press, 1989)Google Scholar; White, Morton, Philosophy, The Federalist, and the Constitution (New York: Oxford University Press, 1987)Google Scholar; or Wills, Garry, Explaining America: The Federalist (London: The Athlone Press, 1981)Google Scholar. The notable exception is Epstein, David, The Political Theory of The Federalist (Chicago: University of Chicago Press, 1984).Google Scholar

8 Nicomachean Ethics 1141b26.

9 Smith, J. Allen, The Spirit of American Government (New York: Macmillan, 1907)Google Scholar; Beard, Economic Interpretation of the Constitution; Parrington, Vernon L., Main Currents in American Thought (New York: Harcourt Brace, 1927).Google Scholar

10 See, for example, Roche, John P., “The Founding Fathers: A Reform Caucus in Action,” American Political Science Review 55 (1961): 799–816CrossRefGoogle Scholar; and Jillson, Calvin C., ”Constitution-Making: Alignment and Realignment in the Federal Convention of 1787,” American Political Science Review 75 (1981):598–612.CrossRefGoogle Scholar

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12 See, for example, his Letter to William Short, 6 June 1787, PJM, 10: 31Google Scholar: The Convention contained “in several instances the most respectable characters in the U.S. and in general may be said to be the best contribution of talents the States could make for the occasion.”

13 Letter to Jefferson, Thomas, 24 10 1787, PJM, 10: 208.Google Scholar

14 Federalist, 37:234–35.Google Scholar

15 ibid., pp. 231–32.

16 ibid., pp. 237–39.

17 ibid., p. 233.

18 ibid., 18: 111–13.

19 ibid., 20: 128–29 (emphasis in the original). Cf. Hamilton's, like observations in Federalist, 15: 93–94.Google Scholar

20 See his speeches of 30 May 1787,29 June 1787,30 June 1787, and 14 July 1787, PJM, 10: 18–19, 86–87, 88–90,100–102Google Scholar. This is not to say, of course, that he meant to do away with the states, only that he did not want them to have any direct role in the new government.

21 Federalist, 37: 233–34.Google Scholar

22 Epstein, , Political Theory of The Federalist, pp. 111–18.Google Scholar

23 Federalist, 10: 61; 14: 88.Google Scholar

24 ibid., 37: 238.

25 ibid., pp. 233–34.

26 ibid., pp. 234–35.

27 For the comment on Locke, see “Spirit of Governments,” 20 02 1792, Mind of the Founder, p. 183Google Scholar. For Madison's zoological interests, see his Letter to Jefferson, Thomas, 11 02 1784, PJM, 7: 419Google Scholar; Notes on Buffon's, Histoire Naturelle, ca. 05 1786, PJM, 9: 29–47Google Scholar; and Letter to Jefferson, Thomas, 19 06 1786, PJM, 9: 78–80Google Scholar. The last item is an especially revealing instance of Madison's faith in scientific investigation. It contains a lengthy description of his dissection of a weasel and concludes with the assertion that his own findings “certainly contradict” those of Buffon.

28 Federalist, 37:235.Google Scholar

29 ibid.

30 ibid., 43: 297.

31 ibid., 37: 235–36.

32 Letter to Stuart, Archibald, 30 10 1787, PJM, 10: 232Google Scholar. Federalist, No. 37, first appeared several months later, on 11 January 1788.

33 In both the Nicomachean Ethics (1181b) and the Rhetoric (1360a), Aristotle recommends that legislators, those whose prudence (phronēsis) is “architectonic,” undertake the study of regimes—their numbers and kinds, what preserves and destroys them, and which are advantageous for particular sorts of cities. He recommends, that is, an inquiry like the Politics. Thus, political science (politikē), which he likewise characterizes as “architectonic” at the beginning of the Nicomachean Ethics (1094a27–8), refines and expands the practical understanding of the great political man, providing him with alternatives unavailable to prudence alone.

34 See Nicomachean Ethics 1094M2–28.

35 Federalist, 9: 51–52Google Scholar. Cf. Madison's, remarks in Federalist, 14: 84–85, 88–89; 47: 324; and 63: 427–28.Google Scholar

36 Federalist, 51: 349Google Scholar. Madison refers to prudence in its grand, political sense elsewhere in The Federalist as well. Thus, in concluding his account of the motives of representatives under the Constitution, he writes: “It is possible that these may all be insufficient to controul the caprice and wickedness of man. But are they not all that government will admit, and that human prudence can devise?” (57: 387). At the same time, and not unexpectedly, Madison speaks of prudence in the democratized sense to which we are accustomed, particularly as it applies to business matters. Here it summarizes such bourgeois virtues as sobriety, caution, and foresight: “An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once by all prudent people as a speedy victim to his own unsteadiness and folly.” “What prudent merchant will hazard his fortunes in any new branch of commerce, when he knows not but that his plans may be rendered unlawful before they can be executed?” (62: 420, 421). This transformation of the meaning of prudence, well underway in Madison's time, may explain why he tends to use the word “judgment” when speaking of the intellectual virtue appropriate to politics. For an exhaustive listing of Madison's usage of “prudence,” “prudent,” and “prudently” in The Federalist, see The Federalist Concordance, ed. Engeman, Thomas S. et al. (Middletown, CT: Wesleyan University Press, 1980), p. 440.Google Scholar

37 See Adair, , “‘That Politics May be Reduced to a Scienc’: David Hume, James Madison, and the Tenth Federalist,” in Fame and the Founding Fathers, pp. 93–106Google Scholar; Branson, Roy, ”James Madison and the Scottish Enlightenment,” Journal of the History of Ideas 40 (1979): 243–49CrossRefGoogle Scholar; and Wills, , Explaining America, pp. 179–264.Google Scholar

38 See his Notes for a Speech Favoring Revision of the Virginia Constitution of 1776, 14 or 21 June 1784, PJM, 8: 78Google Scholar; Speech on the Term of the Executive, 17 July 1787, PJM, 10: 103–104Google Scholar; and Federalist, 47. For useful general discussions of Montesquieu's place in the debate over the Constitution, see Muller, James W., “The American Framer' Debt to Montesquieu,” in The Revival of Constitutionalism, ed. Muller, James W. (Lincoln: University of Nebraska Press, 1988), pp. 87–102Google Scholar; and Shklar, Judith N., “Publius and the Science of the Past,” Yale Law Journal 86 (1977): 1286–96.CrossRefGoogle Scholar

39 Federalist, 20: 128.Google Scholar

40 See, respectively, Draper, Theodore, “Hume & Madison: The Secrets of Federalist Paper No. 10,” Encounter 58 (02 1982): 34–47Google Scholar; and Epstein, , Political Theory of The Federalist, p. 101.Google Scholar

41 See Morgan, Edmund S., “Safety in Numbers: Madison, Hume, and the Tenth Federalist,” The Huntington Library Quarterly 49 (1986): 95–112.CrossRefGoogle Scholar

42 Letter to Trist, N. P., 02 1830, in Letters and Other Writings of James Madison (New York: R. Worthington, 1884), 4: 58Google Scholar. Hereafter Madison's Letters will be cited by volume and page number as follows: LJM, 4: 58.Google Scholar

43 Federalist, 47: 323–31.Google Scholar

44 “Helvidius,” No. 1, 24 August 1793, Mind of the Founder, p. 203.

45 Wills, , Explaining America, pp. 28–33.Google Scholar

46 Cohler, Anne M., Montesquieu's Comparative Politics and the Spirit of American Constitutionalism (Lawrence, KS: University Press of Kansas, 1988), p. 149Google Scholar. For her strained defense of the dominant influence of Montesquieu, see pp. 148–69.

47 Thus, for example, he cited both thinkers by name in an early paper on money and its value in circulation (though dismissing their views as “manifestly erroneous”). “Money,” 09 1779–03 1780, PJM, 1: 302–309Google Scholar. I would include under the heading of political science questions relating to “political economy”—that is, to the place of commerce in the political order of a liberal republic—in which case Adam Smith should also be added to the list of major influences on Madison. For a valuable discussion of this subject (despite a gross overstatement of Jefferson and Madison's attachment to classical models), see McCoy, Drew, The Elusive Republic: Political Economy in Jeffersonian America (New York: W. W. Norton, 1980).Google Scholar

48 Letter to Trist, N. P., 02 1830, LJM, 4: 58.Google Scholar

49 Letter to Biddle, Nicholas, 23 02 1823, LJM, 3: 302.Google Scholar

50 “Spirit of Governments,” 20 February 1792, Mind of the Founder, p. 183.

51 Letter to Jefferson, Thomas, 8 02 1825, Mind of the Founder, p. 349.Google Scholar

52 Federalist, 38: 239.Google Scholar

53 Cicero, , De Re Publica, trans. Keyes, C. W. (Cambridge, MA: Harvard University Press, 1928), pp. 111, 113.Google Scholar

54 Federalist, 38: 241.Google Scholar

55 Madison thus offers testimony to the fact that the “self-conscious” creation of constitutions—as opposed to their growth or development—is not an eighteenth-century invention, as Charles Howard McIlwain argues in his influential book. See Constitutionalism: Ancient and Modern (Ithaca: Cornell University Press, 1940), pp. 14, 23.Google Scholar

56 Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1967), pp. 25–26.Google Scholar

57 Federalist, 38: 239–41.Google Scholar

58 ibid., 37: 238.

59 ibid., 38: 241.

60 ibid.

61 Remark of Pierce Butler, 5 June 1787; Speech of Gunning Bedford, 30 June 1787, in Notes of Debates in the Federal Convention of 1787 Reported by James Madison, ed. Koch, Adrienne (New York: W. W. Norton, 1966), pp. 73, 229.Google Scholar

62 See “Lycurgus,” in Plutarch's Lives, trans. Dryden, John (New York: Modern Library, n.d.), p. 53.Google Scholar

63 In addition to the passage cited in the preceding paragraph, see Federalist 2: 9; 20: 128Google Scholar. Several of these points are suggested by Kesler, Charles R., “The Founders and the Classics,” in The American Founding: Essays on the Formation of the Constitution, ed. Barlow, J. Jackson, Levy, Leonard W., and Masugi, Ken (New York: Greenwood Press, 1988), p. 83.Google Scholar

64 Epstein, , Political Theory of The Federalist, p. 32.Google Scholar

65 Federalist, 38: 240.Google Scholar

66 ibid., p. 246.

67 ibid., pp. 242–43.

68 Cf. Gorgias 464; Laws 720b-e; Niomachean Ethics 1141b23–4, 1104a9; and “Lycurgus,” p. 53.

69 See Salkever, Stephen G., “Aristotle's Social Science,” Political Theory 9 (1981): 500–503CrossRefGoogle Scholar. For a brief, helpful discussion of the differences between Plato and Aristotle in the use of this analogy (and the source of my cites above), see p. 508 (note 50).

70 Federalist, 39: 250, 251.Google Scholar

71 ibid., p. 253.

72 Kesler, , “The Founders and the Classics,” p. 84.Google Scholar

73 Federalist, 37: 233.Google Scholar

74 ibid., 39: 250.

75 Letter to Monroe, James, 21 06 1786, PJM, 9: 82Google Scholar. Cf. Federalist, 18: 114Google Scholar, where Madison compares the Achaean and Amphyctionic leagues and notes “a very material difference in the genius of the two systems.”

76 Federalist, 51: 351–3.Google Scholar

77 ibid., 14: 84.

78 Letter to Pendleton, Edmund, 24 02 1787, PJM, 9: 295.Google Scholar

79 Federalist, 39: 250.Google Scholar

80 Epstein, , Political Theory of The Federalist, p. 119.Google Scholar

81 See Leviathan, pp. 239–41, and Second Treatise, p. 354, in Two Treatises of Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1988).Google Scholar

82 Hobbes utterly suppresses this aspect of the social compact, but it is visible in Locke's right of revolution. See Pangle, Thomas L., The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke (Chicago: University of Chicago Press, 1988), pp. 257–61.Google Scholar

83 Federalist, 57: 387.Google Scholar

84 ibid., 43: 297.

85 ibid., 39: 251.

86 See his “Vices of the Political Systems of the United States,” 04 1787, PJM, 9: 348–57.Google Scholar

87 Federalist, 42: 283.Google Scholar

88 ibid., 51: 253; 55: 374; 63: 425.

89 ibid., 37: 233.

90 “Republican Distribution of Citizens,” 5 March 1792, Mind of the Founder, pp. 184–86.

91 Cf. Epstein, , Political Theory of The Federalist, p. 124Google Scholar; and Politics 1253a1–19.

92 Federalist, 49: 340–41.Google Scholar

93 Speech on Title for the President, 11 May 1789, PJM, 12: 155Google Scholar. Needless to say, Madison's quasi-classical concern for virtue can be overstated. Alexander Landi, for instance, simply cannot support the claim that Madison, “as it were, added Locke to Aristotle” (“Madison's Political Theory,” The Political Science Reviewer 6 (1976): 84 [emphasis in the original]).Google Scholar

94 Federalist, 40: 258, 263Google Scholar. See also 39: 253.

95 “All efforts to restore energy to the federal government have proved ineffectual, when exerted in the mode directed … by the confederation,” announced Hugh Brackenridge in defending the Constitution. Robert Whitehall, speaking for many a fellow Anti-Federalist, thought it clear that the members of the Convention had “set aside the laws under which they were appointed.” See Brackenridge, , Pennsylvania House of Assembly, 28 10 1787, p. 199;Google Scholar and Whitehall, Pennsylvania Ratifying Convention, 28 11 1787, p. 201Google Scholar, in The Founders' Constitution, ed. Kurland, Philip B. and Lerner, Ralph (Chicago: University of Chicago Press, 1987), vol. 1.Google Scholar

96 Federalist, 40: 258–59.Google Scholar

97 See Farrand, Max, ed., The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1966), 3: 574–75Google Scholar for the commission from Delaware; pp. 559–86 for all the states. For Madison's awareness of the problem with respect to Delaware, see his Speech on Proportional Representation in the Legislature, 30 May 1787, PJM, 10: 19.Google Scholar

98 Federalist, 40: 259–60Google Scholar (emphasis in the original).

99 ibid.

100 As William Paterson averred Philadelphia, “the Commissions under which we [act are] not only the measure of our power, they [denote] also the sentiments of the States on the subject of our deliberation.” Speech of 9 June 1787, Notes of Debates in the Federal Convention, p. 95.

101 Federalist, 40: 263Google Scholar (emphasis in the original).

102 See the congressional debate in The Founders' Constitution, 1: 195–8.Google Scholar

103 See Records of the Federal Convention, 3: 566 (Pennsylvania)Google Scholar, 572 (New Hampshire), 574 (Delaware), 577 (Georgia), 579–80 (New York), 581 (South Carolina), 584 (Massachusetts), 586 (Maryland).

104 Federalist, 40: 263.Google Scholar

105 Richard Henry Lee, Speech in the Continental Congress, 27 September 1787; Richard Henry Lee to George Mason, 1 October 1787; Martin, Luther, “Genuine Information,” 1788, in The Founders' Constitution, 1: 196, 201, 203.Google Scholar

106 See “A Republican Federalist,” No. 3, 9 01 1788, in The Complete Anti-Federalist, ed. Storing, Herbert J. (Chicago: University of Chicago Press, 1981), 4: 172–73;Google Scholar and Martin, , “Genuine Information,” 1788, The Founders' Constitution, 1: 203Google Scholar. For Madison's intent to make such “encroachments” on the state constitutions, see his letters to Washington, George (16 April 1787) and Pendleton, Edmund (22 April 1787), PJM, 9: 385, 395.Google Scholar

107 Federalist, 40: 263.Google Scholar

108 ibid., pp. 264–66 (emphasis in the original).

109 ibid., 265–66 (emphasis in the original).

110 ibid., 37: 231.

111 Cf. Leviathan, pp. 227–29 and Second Treatise, pp. 330–32.

112 Federalist, 37: 232.Google Scholar

113 Speech of 12 June 1787, PJM, 10: 49Google Scholar. For other references to this important class, see Speech in the Federal Convention, 5 July 1787; Letter to Thomas Jefferson, 9 December 1787; and Letter to Jefferson, Thomas, 19 02 1788, in PJM, 10: 93,313,519Google Scholar; and also Speech in the Virginia Ratifying Convention, PJM, 11: 95.Google Scholar