Jack Rakove  00:00

But I think part of Madison's genius was that he did understand that if you came better prepared than others, and you set the table, and you had a coherent agenda of action, even it's not comprehensive, it's subject to criticism, it's subject to revision, you have to convince others that it's going to be right. But I think Madison understood that you could elevate the ambitions of the convention by presenting them with a really bold outline.

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Colleen Shogan  00:24

In the summer of 1786, 12 commissioners from five states met in Annapolis, Maryland. They hoped to reform the Continental Congress' power to regulate trade. James Madison was among them. For the normally cautious Madison, time was of the essence. Regional factions were forming at home. Foreign intrigue threatened the nation from abroad, and Congress was largely powerless. The State of the Union was far from strong, yet without enough commissioners in attendance, the Annapolis Convention adjourned after only four days. But it did last long enough for Madison and others to plan for a much bolder meeting in Philadelphia the next year. As today's guest, Dr. Jack Rakove argues, Madison was at the heart of the Constitution's creation, although not necessarily in the ways we might expect. So what can we learn from Madison's role as the Constitution's chief strategist? I'm Colleen Shogan, and this is In Pursuit, a podcast that explores lessons from America's past to write the history of America's future. Episode Four: "The Grand Strategies of James Madison." Jack Rakove, welcome to In Pursuit. 

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Jack Rakove  01:48

Happy to be here. 

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Colleen Shogan  01:49

Thank you for joining us. Now Americans tend to think of James Madison as the Father of the Constitution. You argue something somewhat different. How do you think we should think of him in relation to the Constitution? 

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Jack Rakove  02:03

I have a big objection against the concept of a document like the Constitution can have a single father. It was the product of three and a half months of deliberations with some prior preparations. There were many members of the convention who contributed significantly to its form, both by proposing motions and argue about motions. You know, the very end of the convention, Governour Morris was kind of the one man Committee of Style who whipped the articles, adopted the resolutions adopted to that point into their final shape, and Madison lost most of the proposals they valued the most. He was dead set against giving the states an equal vote in the Senate. He lost that. He wanted to give the national government a negative on all state laws. He wanted to create a council revision comprising the president the Supreme Court that would have an advisory role in legislation. Those were all critical proposals of Madison, and he lost all three, so to call him the father, given how many people participated in the actual drafting of the text, it strikes me it's an easy term to use, but it's not a very accurate one. Or to use Madison's language, you might say it lacks perspicuity. But since I spent a lot of time thinking about Madison over the years, literally for the last half century, I think there's a much better way to think about him. I think he was the leading strategist of constitutional reform. He was the one who I think thought most clearly and deeply about all the different steps that had to be completed to produce a written constitution and then to get it ratified in a way that would prove satisfactory to the American people, not only the short run, but over the long run as well. So asking what were the elements of his constitutional strategy seems to me to be a better question, particularly for scholars, but I think also for ordinary viewers. Asking, What does it take to strategize the adoption of a constitution? Just seemed to me to be a kind of better framework for analysis. 

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Colleen Shogan  03:52

Tell us, ow did James Madison start to think about politics? Where did he start to learn about politics? What sparked his original interest in all forms of constitutionalism, and I'm a political scientist, so should we consider James Madison as the first American political scientist? 

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Jack Rakove  04:09

You can make a legitimate argument he was, although I think John Adams would probably also want to join in their group, and to some extent, Thomas Jefferson. I mean, you might say we had a generation of nascent political scientists that came of age with the revolution itself. Madison's case, you know, you have to go back to his education. He did his college training at the College of New Jersey, now Princeton University. He was taught by John Witherspoon, who had a major impact on American higher education in the revolution period. Was himself a delegate to the Continental Congress. Madison entered public life pretty early. He was a member of the Fifth Provincial Convention in the county of Virginia, which wrote the state's first constitution, or I suppose I should say the Commonwealth's first constitution, in May 1776. Madison was not the most active player. He was a member of the committee that framed the Constitution and the Declaration of Rights. He was a young man there. George Mason was probably the dominant figure in writing the document. But Madison did have one big success. He altered the religion article in the Virginia Declaration of Rights actually was not quite part of the Constitution. It's a kind of companion text to it. It's not formally part of it, but since it's a compliment to it, so Madison alters the religion article that turned it from a tolerationist position to a free exercise position toleration. This means the government is going to grant you the privilege or the right to be tolerated, but what it can grant it can also revoke free exercise, implies that it's a right that belongs to us. So Madison had that initial experience, and then what happened with him? He served in the first Virginia Legislature. He was defeated for election in 1777 and became part of Virginia Council of State in Council of State. Then in 1780 he went off the Continental Congress. He served there three and a half years without going back to his Montpelier plantation. Madison was actually the first victim of term limits in congressional history, which is sort of mildly ironic statement. But after he was term limited out of the county of Congress in October 1783 he went back to Virginia, and he joined the House of Delegates as a representative from Orange County, where the Montpelier plantation was located. He served there three years. Was a dominant figure in the Virginia Legislature, so Madison had a remarkable body of political experience behind him. Three and a half years without a single break, attending the county of Congress within three years as a dominant member of the lower house of the nation's most populous province or state, and he was always a very careful student of collective deliberation. He wasn't all that much of an executive power guy. All his formal political experience until he became Secretary of State in 1801 was really spent in legislative or quasi legislative bodies. And I think from that experience, it taught him a number of things about how to become a legislative strategist, how to try to organize deliberations. You know, how to, in a sense, get the jump on other legislators who are likely to be less industrious than you were. And also, the last point I'd add here is that Madison had, I think, profound and sophisticated memories of what the experience of constitution making back in 1776 had been like. And I think he understood that in 1776 the Americans had spent too much time thinking about the past, thinking about the grievances they'd suffered under the imperial rule of Great Britain, and had not spent enough time thinking about the issues that arise once you made the legislature and not the executive, the dominant branch in government.

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Colleen Shogan  07:24

Well, in particular, his time when he was in Continental Congress. How do you think that affected what he advocated for eventually, when the time for the Constitutional Convention comes, how did that frame his view of what the challenges facing the new nation were?

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Jack Rakove  07:39

The most important lesson that Madison drew involved the basic relationship between the Continental Congress and the states. The fundamental problem was that the Continental Congress, although it looked like a legislature, could not pass legislation, as we use that term. It could not pass statutes binding individuals. It could not impose penalties or sanctions on the people who had to implement its decision. So the basic theory of the Articles of Confederation was that the Continental Congress would propose what we would say, resolutions, requisitions and recommendations that the state legislatures would voluntarily or would freely administer. And I think the basic theory is, the states do have legislatures. They're mostly a bunch of amateur lawmakers, but they did have formal statutory authority, and so they could enact legislation with penalties attached that would, in fact, induce, or, some extent, compel behavior. So the theory is that Congress lacks the wisdom to be able to frame legislation that you can implement on a comprehensive basis across the nation. So you'll tell the states what needs to be done, and the states will implement that legislation in the way that seems most efficient or most effective within their boundaries. And when Madison sat down in 1787 with the convention about to convene, and really a pretty early phase in the process, then he writes out this document, The Vices of the Political systems basically summarizes his overall critique of what was wrong. I think the most fundamental flaw is he realized that system would never work.

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Colleen Shogan  09:12

So when Madison arrives at the Constitutional Convention, he doesn't just arrive with no plan in place. This is where I think your idea that he was the chief strategist really comes into play. He understands that the person or delegates that set the terms of the debate will actually in some ways control or greatly influence the outcome. Tell us about how he sets the terms of the debate. 

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Jack Rakove  09:38

There's something half accidental about this. The Convention was supposed to convene on May 14, 1787. The Pennsylvanians were there because they were the hosts. The Virginians were there because they had issued the formal invitation to the other states in the aftermath of the Annapolis Convention. Had all the other delegates arrived on time, had the convention convened as scheduled the delegates probably would have had to spend some time sorting out what their agenda of action was going to be. They probably would have had some fairly open ended discussions about what they wanted to do. So I think Madison understood that, in effect, a remarkable opportunity had been granted. The Virginia Plan became the basis of the Convention's initial deliberations. No one could control the course the convention would take. I mean, it's an open ended body. It's acting on parliamentary procedures. But I think part of Madison's genius was that he did understand that if you came better prepared than others, and you set the table, and you had a coherent agenda of action, even, you know, it's not comprehensive, it's subject to criticism, it's subject to revision. You have to convince others that it's going to be right. But I think Madison understood that you could elevate the ambitions of the convention by presenting them with a really bold outline. As I said before, you know, if you've ruled out the idea of retaining the Continental Congress, a new Congress has to be empowered to legislate in the full formal sense of the term, to pass laws, ordinary statutes, not recommendations of states, but statutes binding everyone's behavior. It also means you have to have a bicameral legislature, and a big part of Madison's agenda, and actually, the thing he fought hardest again was most disappointed over was he really believed that you had to have proportional representation in both houses of Congress.

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Colleen Shogan  11:15

Another famous compromise is, of course, the Three-Fifths Compromise, which not directly unrelated to what we've just been talking about. So remind our listeners what that was, and how did Madison justify it? 

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Jack Rakove  11:27

Well, Madison was the original author of the Three-Fifths clause, sometimes called the Federal ratio, actually going back to 1783. So in 1782, 1783 when you know Madison's heyday in Congress, there was a big debate over having a whole new program of revenue to provide some kind of regular sources of income for the Continental Congress, therefore, from the Union. There's a very complicated formula where the obligations of each state were supposed to be calculated on the basis of the value of their improved property. The wholly unworkable formula is basically driven by the New Jersey delegates. So they wanted to move to a simpler, also more enforceable policy. There are several different proposals they made, but one was that the expenses of the Union should be apportioned among the states in part on the basis of population. That raises the question, how do you think about African Americans, or how do you think about the enslaved population of the South? And then you get these kind of complicated arguments. You know, it's very hard for us to justify because we find all Three-Fifths Clause offensive as a matter of principle, but in practice, it really was a political bar. A political bargain between northern and southern states. It's part of a set of negotiations about, let's have a comprehensive revenue package that will satisfy the collective body of interest. So the same question arises in 1787, we're going to have a bicameral legislature. There are two ways in which you could have proportional principles of representation. One is you just do it by population, but the other is, you may do it on the basis of property. And you know, it's the whole basis of the southern economy. It's not the ownership of land, it's the control of labor. I mean, land is easy to get in the South. When we read it today, we think it has a kind of racist quality. It really did not. And it's not a way of saying Africans or African Americans, are point six of the value of Caucasians, or whatever. It was just a formula for portion representation. The flip side of it was it would also, in addition to becoming the rule for portioning representation of the house, which eventually would have a role in the Electoral College as well, but it was also going to be the formula for allocating direct taxes.

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Colleen Shogan  13:21

But it's probably fair to say, I mean, I understand what you're saying, that that's not necessarily the same way that we view racism, but it's probably fair to say that Madison and some of the other framers of the Constitution probably didn't view representation in the same way that we view representation today, as representation of the Whole body politic that we view today. Were they particularly concerned about representation of enslaved Africans in the United States?

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Jack Rakove  13:49

Enslaved African Americans, It sounds cruel, I don't mean in that sense, but basically, have no civic identity. They exist as property. They're chattel slaves. They have no rights. Occasionally, through quirks of the law, they acquire a bit of a legal identity, but they're so marginal as not to matter. But I mean, Colleen, I would disagree in one fundamental sense. And you know, I've actually, I've written, been the main author of amicus curiae briefs in three reapportionment cases, three gerrymandering cases that have reached the Supreme Court, the Framers, actually, I think the whole generation were attached to idea which actually originates in England during the Civil War of the 1640s a representative assembly should be in their language, a mirror, a miniature, a portrait or a transcript of the larger society. Now, how you define the larger society remains the issue. For good and obvious reasons, we would not define it the way they did. But if you put that, I won't call that a quibble, because it's a substantive point,. but if you put that point to one side in effect, what you wind up with is they did believe a representative assembly should resemble whoever defines the body politic, should resemble it as closely as possible. It should literally re present the body politic, the citizenry, in the Legislative Assembly.

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Colleen Shogan  15:04

Another problem that Madison had was how to ratify the Constitution. Can you talk about that?

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Jack Rakove  15:10

Yeah, it's a major issue, and it is one of Madison's intellectual or, I should say, political preoccupations. You have to go back to 1776 or actually, let's say 1770s there is a legal principle that says "leges posteriores priores contrarias abrogant," "later laws contradicting earlier ones abrogate them." I think actually goes back into Canon Law. And the idea here is the Articles of Confederation were ratified by the state legislatures, and all 13 states had to ratify them. That's why it took three and a half years to ratify it, becau se Maryland, for its own reasons, Maryland, held out until 1781 and what happens when you get in the 1780s there are three occasions when the Continental Congress sent out amendments to the articles to the States. There's an early one in 1781 which Rhode Island torpedoes. There's another one the revenue package that we talked about earlier, which includes the early version of Three-Fifths Clause, which never got unanimous state vote. And then 1784 Congress sent out two amendments relating to foreign commerce to the states, and none of them ever attained the unanimity rule. And then what happens in 1786, 87 is eventually 12 of the 13 states agree to send delegations to the federal convention Wednesday. Rhode Island, sometimes known as Rouge Island, also called in the 18th century the "home of Jews, Turks and infidels," because in its practices of radical religious disestablishment, Rhode Island refused to send a delegation. And if they refuse to send a delegation, what chances that they're going to ratify the Constitution? So I think, in fact, Rhode Island's decision had a powerfully liberating effect that it said we have to abandon the unanimity rule. So that's step one. But step two is, if you've come to the point where you believe that you really need to have the supremacy of federal law over state law, you need to have some clear and decisive method of establishing what is the legal, constitutional basis of federal supremacy. If the state legislatures remain the ratifying parties, you're vulnerable to the "leges posteriores priores contrarias abrogant," one state legislature cannot bind its successors. So at that point, you need to come up another method, and the method to come up and come out of Massachusetts. It's too complicated story to tell in det here, but it took Massachusetts basically four years to write and ratify a new constitution after 1776 and the end result was that the Constitution had to be ratid by a convention that was called specially for that purpose. It couldn't act legislatively, and then the document produced had to be ratified by the people of Massachusetts meeting in their town meetings. It's a kind of confusing procedure, because the convention that wrote the constitution, didn't fully explain what form the ratification by the town meeting should take. So they have a kind of jumble of replies. Basically, they throw them up in the air and say, well, it looks like it's ratified. That set a crucial precedent. But Madison had a deeper concern here, which was, if they want to have it ratified, you need to set up some form of popular ratification. So that is, you set up a quasi legislative body, or deliberative body that is not a legislature in the strict sense of the term. They are elected by the people. In most states, the electorate for the ratification conventions in 1787-88, was larger than the ordinary electorate for the state legislature. So there is a bit of a kind of social compact aspect with their process, but you want to keep the process finite. And so what Madison does is he says the people can speak in a loud and a proud voice, but they can only say one of two words: 

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Colleen Shogan  18:37

yes or no, 

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Jack Rakove  18:38

Yes or no. They have to approve the Constitution in its entirety. They can recommend amendments for later consideration, but they can't make their approval to the Constitution dependent upon the prior adoption of the amendment. So I think this again, comes back to the idea of Madison as a constitutional strategist. He wanted to come up with a mode of ratification that would satisfy his subtativecriteria,

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Colleen Shogan  18:59

And there's not going to be a second constitutional convention, right? I mean, that's what his friend Edmund Randolph wanted. He said, Well, we'll just come back again and we'll gather all the changes and edits that people want, and we'll have another convention. Madison said, Well, this is going to go on forever, right? There's never going to be an end.

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Jack Rakove  19:15

When we read Madison's correspondence, first and foremost, we read his letters to and from Thomas Jefferson, who really was his closest political ally, but when he writes Randolph, he refers him as my dear friend. When he writes Jefferson, it's always dear sir. There's a more formal mode of address. And you know, Madison worked really hard to convince Randolph that he was wrong. And actually, your listeners can look this up online. There's a wonderful letter that Madison wrote to Randolph on January 10, 1788, in which Madison describes his views of public opinion. It's a somewhat skeptical letter. Madison believed that, you know, every citizen had a right to consent, but he's very nervous about the process by which ordinary citizens reach decisions. So I think Madison, he really was concerned. You know, if you have a second convention, you don't what's going to happen, just as nobody knew what was going to happen to the first convention. So let's say you send delegations back. They may come with instructions for their state legislatures, and once they know what's been proposed, they can say, we'll accept this, but we're not going to accept that. If we lose that, we'll take a walk.

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Colleen Shogan  20:17

Now another example of Madison, you know, acting as a strategist is, of course, after the convention, when he is recruited to write some of the essays that become the Federalist Papers. Of course, he writes some of the most famous Federalist Papers, Federalist 10 on faction, Federalist 51 on the separation of powers. Tell us, how does he come to write some of the Federalist Papers? And was this influential? Was this a continuation of his role as chief strategist?

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Jack Rakove  20:45

The idea for writing the Federalist, of course, came from Alexander Hamilton. The essays were originally designed to sway the voters in New York, which everyone knew was gonna be a really divided state because Governor George Clinton, who had a powerful political machine, was an anti-Federalist. So Hamilton recruited John Jay. John Jay was not of the best health during this period. He approached William Duer, or maybe one or two other people. But Madison was still in New York because he was he went back to attending the Continental Congress. He was no longer term limited out so he would retaken his seat early in 1787 so Madison became the second author, because Jay wasn't able to contribute as much as he might have. The hard thing is, no one has ever been able to prove or demonstrate that the Federalist per se itself had any impact, or any kind of consequential impact on the outcome of the debates. You can make a good case that there's a public speech that James Wilson gave in Philadelphia on, I think, October 6, 1787 where Wilson made a number of arguments, became rather controversial, that Wilson's speech, both on the pro and con side, had much more of an impact on the ongoing public debate than the Federalist ever did. But if you try to work on the underlying theory of the Constitution, using that term very broadly, and to think about the kinds of political insights that went into it, Federalist remains far and away the best source.

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Colleen Shogan  22:04

One more thing that Madison offers is, of course, the Bill of Rights. Jefferson pushes him to include the Bill of Rights, to make that part of the Constitution. Was Madison sure that it was necessary.

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Jack Rakove  22:17

No, Madison had some qualms about it. Some of them, I think, are actually fairly serious. They're fairly substantive. To quote the late Ronald Dworkin, our politics has always been about "rights talk." Language of rights has always permeated American political discussion going back to the 18th, arguably the 17th century. But there are different ways in which you can talk about rights and different ways in which you can explain what their sources are. How do they originate? What gives them authority? And so on. And then what happens? I think beginning in 1776 as I said earlier, I think eight of the states did adopt declarations, they usually call them declarations of rights that were either generally accompanied the first eight constitutions, or, in the case of Pennsylvania in 1776 Massachusetts in 1780 were actually part of the Constitution, but it wasn't clear that they created what we would regard as black letter, legally binding rights. The operative verb in many of these statements was not "shall," which is a command, but "ought," which is maybe a moral obligation, but not a legal requirement. So I think one of the things that happened is when you get to 1788, and political pressure builds to add a bill of rights to the declaration and Jefferson, of course, is Madison's correspondence with Jefferson on this ain 1787- 1788, is just a wonderful body of letters to read and reread and also to study. I think that Madison had two concerns, if previously you had not been sure what the real source, you could have multiple sources to say, this is how we know what the right is. You have a written constitution, and you treat a supreme law. You have one optimal source, but if that becomes the optimal source, what happens if a right is omitted? The answer to that is, well, you put in the Ninth Amendment, "the enumeration of certain rights in this constitution shall not be construed to deny or disparage others retained by the people." Of course, you don't know what those other rights are, which is the problem, but so you have an enumeration problem, but you can solve that, possibly with the Ninth Amendment, though we don't have another basis for saying what right really is. Think about the right to abortion would be a great way to conceptualize this. And then the other problem you have, which Madison thought about, and I think I pay more attention to others, is there's an enumeration problem, there's also a textualization problem. If you reduce a right to a literary formula, think about the Second Amendment. You know, by way of example, what happens if the text is wrong, or what happens if there's something defective in the text? I think Madison was particularly worried about rights of conscience, going back to his youth, and what he said about his role in the Virginia Declaration of Rights, that was the first issue we care about deeply back in 1776 and then, of course, he enlarged his sphere of his experience and his observations. But if you think extending religious toleration to dissenting groups or marginal groups might be problematic, you know, maybe it might be dangerous. I mean, if you don't frame that language broadly enough, it might operate not as a source of rights, but actually is a kind of a trap, or not a trap, but the result might be more constrained than what you'd ideally want. Maybe you better just to leave things go unstated. So Madison did have some hang up on this, but he also felt, I think the most important point is he felt, politically, that to bring the whole ratification process to a satisfactory close, even though he had reservations about whether a Bill of Rights was actually necessary. But Madison felt there are a lot of well meaning, if somewhat misguided, anti-Federalists out there who really felt this was necessary, and if you want to get them to sign on to the Constitution, that would be the best way of doing it.

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Colleen Shogan  25:33

Well, you've spent, as you said, more than 50 years thinking about James Madison. Can you tell us here and in pursuit. As we enter our 250th year in the United States, we're trying to look back at some of the lives of these individuals and learn things from the past to inform our present and future. What do you think we can learn from James Madison? 

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Jack Rakove  25:56

Well, Colleen, I have to tell you, in my personal life, I have an optimist by nature, probably be the most optimistic person I know. 

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Colleen Shogan  26:02

I am too. 

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Jack Rakove  26:02

But when I think about the looming semi quincentennial, I'm quite depressed, actually. As I told an audience at AEI, at an event back in June, I was asked to lead off the post dinner conversation, what I think was gonna happen, is that I think it's gonna be a disaster. The reason I think it's gonna be disaster is I think our constitutional system is failing. And I really mean failure. One of the subjects I work on actively now is to come up with a theory of constitutional failure, which is, that's exactly what Madison was doing in April 1787, I've had this realization "The Vices of Political System of the United States," which is this critical document to understand Madison's originality, it really helps him to set his agenda. Is basically a study of constitutional failure. Partly, it's the failure of the Articles of Confederation, but it's also the failure of the state legislature as the dominant institutions of domestic governments. So I spent a lot of time thinking about what would happen if we're really in the state of constitutional collapse. And I'm not, as I said, I'm personally optimistic, but from all the evidence in front of us, I just think all the institutions of national government are failing in different ways, the presidency for obvious reasons, both houses of Congress for different reasons. I think the Supreme Court, I think it has its own agenda. You know? I think the district courts and the appellate courts are working as hard as they can to do the right thing and do their job. The Supreme Court's not giving them any guidance. And so I've started to think about, if I'm in a Madisonian position, what would I do? So I have a back project going called "Reflections on the American Political System: Some post Madisonian Reflections." That's the original working title. Now I think of largely in the subtitle, "Some Post-Madison Reflections on Constitutional Failure," which would be a kind of quasi Madisonian analysis. Madison was on point on something where Madison's writings were directly relevant to where we are. I try to build upon his initial insights and where he wasn't, I tried to, you know, provide a fresh analysis of my own, I hope, still working within a Madisonian paradigm. So that's, yeah, that's what I think about. And so that's why I think, you know, the nation is moving into a very critical and disturbing period my philosophy was, historian is predict nothing. It's hard enough explaining the past without being able to predict the future. We're in a very serious position, and that's why thinking critically about, you know, the shortcomings of the Constitution.

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Colleen Shogan  28:13

This has been a terrific conversation to give us the framework to think about that. So we appreciate Jack Rakove for you joining us with In Pursuit. 

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Jack Rakove  28:22

I was really happy to be here 

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Colleen Shogan  28:24

To read Jack Rakove's essay on James Madison and to enjoy other great In Pursuit essays and podcasts, visit in pursuit.org. In Pursuit with Colleen Shogan is a podcast by More Perfect. The series is written and produced by Jim Ambuske. Our theme music is kleos by Charlie Ryan, audio mixing by Curt Dahl of CD squared. Please rate and review the show on your favorite podcast app and tell us which Americans inspire you.

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