Adrienne Koch famously described Madison and Jefferson’s fifty-year political relationship as the “great collaboration.” Gordon Wood later called theirs the greatest collaboration in American political history. Few scholars would disagree with these assessments. The Federalists themselves were accustomed to refer to Madison as the General and Jefferson as the Generalissimo of the emerging Republican Party, two Virginians in lockstep on questions of genuine republicanism and the dangers of Hamiltonianism. Both took strict constructionist views regarding Hamilton’s proposal for a national bank in 1791; both questioned the constitutionality of the President’s proclamation of neutrality in 1793; and both vehemently argued against the constitutionality of the Alien and Sedition Acts of 1798.
Nevertheless, there were constitutional issues on which the two collaborators did not agree. It is those issues that I highlight here, noting that the fact that they could disagree on such issues while maintaining their collaborative spirit underscores the strength of their friendship and respect for one another.
The Greatest Threat to Individual Liberty
During the 1780s, Madison became increasingly disenchanted with the direction of post- Revolution America. Whether it was legislation calling for the support of churches in his native Virginia or currency legislation favoring debtors over creditors in Rhode Island, Madison feared that majorities were abusing the rights of minorities. Like Washington, Hamilton, Jay, and other leaders, Madison saw the need to create a stronger national government to thwart the rise of unrestrained democracy, which, they believed, threatened the very republican principles for which Americans had fought and died. Shays’s Rebellion was the tipping point for many of these nationalists, including Madison, who was already preparing to lead the effort in Philadelphia for a strong national government that would restrain the democratic excesses of state governments. As Madison’s Virginia Plan suggested, the greatest danger to liberty was found in the passions of the people, whose representatives in state legislatures often trampled the rights of minorities.
While Madison and his supporters in the Convention failed to achieve everything they wanted, they left Philadelphia with a Constitution that significantly limited the influence of state and local governments and established safeguards that would protect the property and religious rights of minorities. As The Federalist Papers stressed, the new Constitution, despite its flaws, was an instrument designed to bring order and peace to the new Republic by, among other things, limiting the influence of majority factions.
Although Jefferson shared Madison’s concern over the ineffectiveness of the Articles and wanted a stronger national government to regulate commerce, he was always more fearful of government’s intrusion upon the rights of individuals than of any excesses of democracy. Steeped in the Whig tradition of Sidney, Gordon, and Trenchard, Jefferson was constantly on the lookout for signs of governmental overreach. Ironically, this member of the Virginia planter-elite rhapsodized about the virtues of the common person, the republican yeoman, as the foundation of a truly great republic.
When apprised of Shays’s Rebellion, Jefferson’s response could not have been more different from Madison’s. In a letter to Madison, Jefferson wrote, “I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.” For him, actions such as that of the Shaysites showed the strength of a republic and should not be condemned. Therefore, it comes as no surprise that Jefferson was lukewarm in his praise of the new Constitution. Like Henry, Randolph, and others, he was critical of the powers and the unlimited number of terms granted to the president; in this office Jefferson saw the seeds of hereditary monarchy. While he acknowledged that the new Constitution in which Madison was so invested had its good points, Jefferson was hesitant to wholeheartedly endorse a document that had the potential of undermining individual liberty, confessing to Madison that “I own that I am not a friend to a very energetic government . . . it is my principle that the will of the Majority should always prevail.” Such unabashed faith in majoritarian democracy was in marked contrast to Madison’s fear of the tyranny of the majority.
The Need for a Bill of Rights
Jefferson’s main criticism of the new Constitution was its lack of a bill of rights, which he felt was needed to protect the people from government infringement on their rights. He was so adamant that a bill of rights modeled on the Virginia Declaration of Rights be adopted that, in a February 6, 1788, letter to Madison, Jefferson opined that, once nine states ratified the Constitution, the remaining four should withhold ratification until such a bill was included. Given the extraordinary powers vested in the president and the centralization of taxing authority in Congress, Jefferson contended that an enumeration of individual rights was essential. There was nothing that Madison could say in defense of the omission of a bill of rights that could alleviate his friend’s anxiety.
Although justifiably referred to as the Father of the Bill of Rights, Madison appears to have never seen the philosophical need for including such an enumeration of rights in the Constitution. In the weeks and months following the Philadelphia Convention, as George Mason, Richard Henry Lee, Patrick Henry, and other Antifederalists argued that such an exclusion put Americans’ rights in jeopardy, Madison maintained, as did James Wilson and Alexander Hamilton, that there was no need for a federal bill of rights since individual rights were already protected in the state constitutions, which remained in effect. As he explained to Jefferson, he did not see the omission “as a material defect.” Moreover, experience had taught him that bills of rights were merely “parchment barriers,” easily breeched by overbearing majorities. The extended Republic, as he argued in Federalist No. 10, offered a better safeguard to individual liberty. During the Virginia ratifying convention, in the face of Henry and Mason’s unrelenting pressure for a declaration of rights, Madison remained convinced that adding an enumeration of rights was unnecessary. It was only later, during his congressional campaign against Antifederalist James Monroe, that Madison began to see the wisdom of adding a bill of rights to the Constitution.
Witnessing the fervor brought to the debate by men whom he respected and fearing that, without taking the lead in introducing a bill of rights in the First Congress, Antifederalists would seize the momentum to call for a second convention, Madison pledged to voters in his congressional district that he would make it his mission to draft and usher through Congress a bill of rights. That he scrupulously kept his campaign promise and relentlessly pushed through the bill amid both congressional opposition and indifference does not change the fact that Madison, unlike Jefferson, never appears to have seen the philosophical need for a bill of rights. His change of position was politically, not philosophically, motivated.
Constitutions Subject to Periodic Change
On September 6, 1789, shortly before leaving Paris for what he believed would be a relatively short leave of absence from his position as minister to France, Jefferson penned a remarkable letter to Madison in which he unequivocally declared “that the earth belongs in usufruct to the living.” Alluding to the Roman law that gave an individual the temporary right to benefit from another’s property, Jefferson argued that each generation should enjoy the fruits of its labors without being under any obligation to the past. This utopian vision had significant philosophical and pragmatic consequences, as Madison was quick to see.
Using calculations based on Buffon’s demographic tables, Jefferson concluded that one generation lasted nineteen years. He thus argued that it was reasonable that all contracts, constitutions, and debts should be voided and new ones negotiated every nineteen years. No generation should be saddled with the laws, agreements, or debts of the past. The concept of generational sovereignty, which was also alluded to in his correspondence with Lafayette during the summer of 1789, certainly fit into Jefferson’s philosophical view of government: No regime should be immune to constant review and change. In a letter dated July 12, 1816, to Virginia lawyer Samuel Kercheval, Jefferson reiterated this point regarding the Virginia constitution. It was obviously a matter that had intrigued Jefferson since at least his time in Paris.
One can only imagine Madison’s visceral reaction when he read his friend’s letter. With the heated debates of the summer of 1787 and the gut-wrenching ratification process still fresh in his mind (not to mention the more recent debate over the Bill of Rights, which was designed to fend off a second convention), the last thing that he wanted to see was the suggestion that constitutions should be revisited every generation. Here was another clear divide between the two Virginians. The progressive Jefferson believed that constant change was necessary to insure the collective and individual welfare of the people while the more conservative Madison, very much in the Burkean tradition, saw much needed stability in the established institutions and laws as long as they did not encroach upon the rights of minorities. Madison’s response, dated February 4, 1790, shows why Madison, despite his occasional disagreements with Jefferson, remained Jefferson’s closest confidante and friend, for it was the model of tact.
While complimenting his friend on his interesting theory, Madison went on to demolish Jefferson’s argument. Not only would chaos ensue if all contracts, laws, and constitutions were arbitrarily voided after a given number of years but one must also remember that many debts incurred by the past were for the benefit of future generations (for example, the debt incurred in the War of Independence). As was his habit, Jefferson set aside the subject, never mentioning it to Madison again. However, that is not to say that the sage of Monticello gave up the idea; on the contrary, as noted in the Kercheval letter, Jefferson continued to believe that future generations should have the ability to decide their own fates.
Nullification
In the summer of 1798, in the midst of the Quasi-War, the Federalist-controlled Congress passed, and President Adams signed, the Alien and Sedition Acts, four laws meant to stifle pro-French sentiment and anti-administration rhetoric. The most controversial of the acts was the Sedition Act, which called for fines and imprisonment for any libelous statement against members of the administration and Congress. Clearly meant to silence the Republican press and such foes of the Federalist agenda as Benjamin Franklin Bache and James Callender, the Sedition Act raised serious First Amendment issues, which the Republicans were quick to note. Leading the opposition, albeit behind the scenes, were Vice President Jefferson and the recently retired Madison.
In the late summer of 1798, the two Virginians appear to have met at Monticello with other leading Republicans to plot strategy. The result was the Kentucky and Virginia Resolutions, clandestinely drafted by Jefferson and Madison, respectively. In general, these resolutions asserted the right of states to declare as unconstitutional any federal law that violated the compact with the states. While it would appear that Madison and Jefferson were marching in lockstep in their opposition to governmental overreach, a closer look at the two resolutions suggests that they held fundamentally different views of what a state could do. The Kentucky Resolutions, brought before the Kentucky legislature on November 8, 1798, by John Breckinridge, openly asserted, in the original Jeffersonian text, that a state can nullify any law that it deems unconstitutional: “Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” Since this language was considered too incendiary, the legislature removed all reference to nullification prior to passing the Resolutions. (The 1799 Kentucky Resolutions, responding to criticism of the original Resolutions, contain the reference to nullification.)
John Taylor of Caroline presented the Virginia Resolutions to the Virginia legislature, which passed them in December 1798. While condemning the Alien and Sedition Acts, Madison’s language was much more temperate than that of Jefferson. Asserting that the states were in compact with the federal government, the third resolution maintained that a state had the right to declare a federal law unconstitutional and could “interpose” in such an event. Madison never argued that an individual state could void a federal law; by “interpose” he meant that states could act collectively to respond in some unstated manner to what they considered an unconstitutional law.
Both the Kentucky and Virginia Resolutions called on the legislatures of the other states to join in condemning the Alien and Sedition Acts, with the intent being that a unified outcry would result in the repeal of the acts. After the majority of the state legislatures refused to endorse the Resolutions, Madison returned to the Virginia House of Delegates and later authored the Report of 1800, a pamphlet which defended each section of the Virginia Resolutions. However, understanding the ramifications of nullification, he maintained that, though having the right to call a federal law unconstitutional, no individual state could actually declare such a law null and void. Madison would hold this position for the rest of his life even though it meant a very public feud with his former ally, and nullification proponent, William Branch Giles.
The Great Collaboration
From their early collaboration in passing the Virginia Statute for Religious Freedom to their joint efforts in establishing the University of Virginia, these Founding Brothers, as Joseph Ellis would call them, helped shape not only the early American Republic but also the America of the twenty-first century. Without the collaborative efforts of the two Virginians present-day America would assuredly be much different. Nevertheless, as I have endeavored to show in the preceding paragraphs, it is both historically inaccurate and unfair to paint them with a broad brush, to suggest that their thinking was always in harmony.
Jefferson and Madison were independent thinkers whose unique perspectives on power and liberty led them to postulate constitutional views that were at times in conflict. Their friendship and mutual respect, however, allowed them to accept these differences of opinion on important issues and continue to work together for the ultimate benefit of future Americans. Given the partisan rancor that currently engulfs the American political landscape, where ideologies rather than the common good dictate policy, perhaps the greatest legacy of Jefferson and Madison’s collaboration is the example they have given us of how one can maintain civility and political decorum in the face of disagreement, if only we will pay heed.
Gregory Spindler is a retired educator (Classics, English, Humanities); he is currently focused on the intellectual history of the Early Republic, including an in-depth look at “John Adams as Political Thinker.”
Cover Image by Ben Henschel.
