One of the hoariest cliches of American constitutional history is that James Madison is the “father of the Constitution.” Wikipedia, an authoritative source on conventional wisdom, states that “[h]e is hailed as the ‘Father of the Constitution’ for his pivotal role in drafting and promoting the Constitution of the United States and the United States Bill of Rights.” To be sure, there are a few dissenters. Akhil Reed Amar, in his recent book The Words that Made Us: America’s Constitutional Conversation 1760-1840, makes the startling (and I think implausible) claim that the “Father of our Country,” George Washington, was also the “Father of the Constitution.” That said, one need not agree with Amar to believe that it is long past time that our Constitution was given a DNA test in order to get more accurate information about its paternity – Unfortunately, the gendered noun is appropriate in this case. It is not at all clear that Madison would emerge as the victor in such a test.
The inflated claims for Madison rest on the undoubted fact that he was a major force behind the move to have the Philadelphia Convention in the first place; moreover, his 1787 memorandum on the Vices of the Political System of the United States no doubt helped consolidate the critique of the system established under the failing Articles of Confederation. And, of course, he was a major architect of the Virginia Plan, introduced at the very beginning of the Convention, that provided the framework for much of the ensuing debate. As for the Bill of Rights, it is certainly true that after expressing disdain for the idea of its necessity, he became the chief proponent at the First Congress. No one should think that Madison is a mere cipher. But that does not necessarily add up to the grandiose claims of paternity that have become part of his legend.
At the very least, we must recognize that if we should regard him as the Constitution’s father, he was extraordinarily disappointed in his progeny from the first moment. Yes, Madison joined with Hamilton and Jay in defending the Constitution in The Federalist. But that is largely because they believed that continuing to be guided by the Articles of Confederation was a recipe for catastrophe. Attempting to maintain it, they argued, would lead to the dissolution of the fragile “United States of America,” which was, after all, only a “confederation” of “sovereign states” come together in a quite limited alliance. It established a “government” without the essential powers of actual governance, including, all importantly, an effective power to tax and to raise revenue to pay for the necessities of government. This included supporting a trained military force that could protect the fledgling nation against a wide variety of enemies both foreign and domestic (such as the various Indigenous Nations that were certainly appalled by the expansionist vision of the triumphant “Americans”).
As every historian knows, Madison was bitterly frustrated by the rejection of his two most important goals at the Convention. The first was proportional representation in the Senate. He was appalled by the so-called “Great Compromise,” which he correctly viewed as capitulation to the extortionate threat by small states to torpedo the whole project of necessary constitutional reform. In Federalist 62, he described the equal allocation of voting power in the Senate as an “evil,” albeit a “lesser evil” to the greater evil of the collapse of the reform project. But an evil is an evil, and no one should believe that he would describe the turn of events as a “Great” Compromise unless “great” is simply synonymous with “magnitude.” That is accurate inasmuch as we live every single day with the awful, and sometimes catastrophic, consequences of a malapportioned Senate that is becoming more so with each passing year. Besides being historically inaccurate, it is unfair to ascribe paternity to James Madison for this truly dreadful feature of the Constitution.
But the Senate is not the only part of the Constitution that generated near despair in Madison over the Convention’s handiwork. There is also the fact that his fellow delegates in no uncertain terms rejected what Madison thought was an all-important national veto power, by which Congress could abrogate any and all state legislation deemed contrary to the public welfare. This, to be clear, has almost nothing to do with “judicial review” as we usually think of it. Judges ask whether state legislation violates the Constitution. But Madison was concerned about something much more important than “unconstitutional” state legislation. He might well have agreed with James Wilson, who at one point cautioned the delegates that even “tyrannical” legislation might not necessarily be “unconstitutional.”
By virtue of his service in the Virginia Assembly, Madison had become dismayed by the factional parochialism that he had seen displayed there and the possibility of tyrannical majorities. Federalist 10 is, in its own way, a devastating critique of federalism. As an empirical matter, states were, according to the Madison of 1787, largely cesspools of factions quick to abuse their powers. Given his normative commitment to governance by virtuous elites committed to the public good, only an “extended republic” could cure—or at least limit—the ravages of the factional politics that so concerned him. The central task of a Madisonian Congress would therefore be to assess the fit between state legislation and the overall national interest. If the former contravened the latter, then Congress could simply veto it. This would be federal pre-emption on steroids! Obviously, he lost this struggle. Perhaps by 1798-99, when he penned the Virginia Resolves, he had changed his mind, but that only makes even more complicated the assignment of constitutional paternity to Madison instead of, say, the less-well-known James Wilson.
Most admirers of Madison pay relatively little attention to one dreadful feature of the Constitution for which he might claim some genuine credit—the Electoral College. Although Gouverneur Morris and James Wilson both wisely suggested that a constitution presumably based on the theory of popular sovereignty should feature a popularly-elected president, Madison demurred. Even if one believed that “the people at large” were indeed “the fittest” to pick a president, there was, nonetheless, “one difficulty . . . of a serious nature.” Were the president to be picked by actual voters, then this would very much disserve the South. As Madison euphemistically put it, “the right of suffrage was much more diffuse in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes.” The Electoral College, as he put it, it “obviated this difficulty.” The Southern states, having received undeserved extra representation in the House because of the Three-fifths Compromise, would also get equally undeserved extra power to elect presidents because of the design of the electoral college, based as it is on the number of representatives (plus, of course, the two senators). It is not entirely a coincidence that four of the first six presidents were slave-owners from Virginia, including, of course, Madison himself. There continues to be controversy as to whether Thomas Jefferson owed his election in 1801 to the “slavery bonus.” In any event, any serious discussion of Madison’s “paternal role” should include recognition of his vigorous defense of chattel slavery, even if he did applaud the fact that the Constitution avoided the explicit recognition of “property in men.”
But wait. What about the Bill of Rights and his paternity of those amendments to the Constitution? Given his quite vociferous earlier opposition to the very idea of enumerated rights—i.e., “parchment barriers”—as part of the Constitution, he was, at best, a reluctant father. One might well look to his constituents in Virginia who voted for him over James Monroe in part because he promised, for whatever reasons, to support a Bill of Rights. And he surely did so. Even there, though, as at the Convention, his actual potency was limited. Remaining quite dubious about the actual willingness of faction-ridden states to protect important liberties, Madison urged that state powers be limited as well as those of the national government. His colleagues begged to disagree. One might well wish he had prevailed there, as well as in Philadelphia with regard to organizing the Senate and establishing a national veto power. But he did not. He was closer to a father in a television sit-com, spouting big ideas that were brushed aside by his “there he goes again” colleagues, than to a powerful colossus.
What does it mean to call Washington the “Father of our Country” or Madison the “Father of the Constitution”? In the case of the former, one might well believe, as an empirical matter, that without Washington there would have been no independent America. This is, to be sure, a strong form of “Great Man Theory,” and many historians would wish to submerge the figure of George Washington into a nest not only of other political and military figures of the time, but also broader trends of social, economic, or even religious history. But it is hard to gainsay a causal link between the figure of George Washington and the success of the American secession from the British Empire. Indeed, it is even harder to deny that importance regarding the holding of the Philadelphia Convention and its ultimate success. Even if one rejects Akhil Amar’s argument that Washington himself played a significant role in determining what the Constitution actually said, almost no one believes that the Convention, and then its handiwork, would have succeeded were it not for the almost literally unique aura of legitimation surrounding Washington. There was a reason, after all, that he was elected unanimously to the presidency twice.
It is difficult, though, to ascribe the same causal importance to Madison. Would the Convention have failed, or would the Constitution have come out significantly differently, had Madison perished on his way to Philadelphia? Perhaps we would know far less than we do about what happened at the Convention. He did in effect appoint himself the chief notetaker at the Convention, and his ostensible records of the debates, whether entirely accurate or not—Mary Bilder has presented a great deal of evidence that in many aspects he turns out to be a willfully unreliable narrator, even after paying due heed to the fact that it would have been nearly impossible for him to have taken truly complete notes—have become the single most important source of what actually transpired at Philadelphia. But stenographic skills do not establish paternity. The metaphor implies a deep causal connection: Without X, then no Y.
One might, of course, say that without Madison, The Federalist, for which he wrote 29 of the 85 essays, would be importantly different. Perhaps there would have no equivalent of Federalists 10 or 51. Even if that is true, though, one is entitled to ask, so what? Most historians now seem to agree that Federalist 10 in particular was very little read or debated about at the time. It was “discovered” only during the Progressive Era. As Richard Pildes and Darryl Levinson have demonstrated, the vaunted “separation of powers” articulated in Federalist 51 explains extraordinarily little of our actual polity, where “separation of parties” is far more significant. What one might say is that Madison delivers some eloquent warnings about the potential costs of a party system based on factional interests, but then he turns around and becomes one of the organizers of the Democratic-Republican Party in heated opposition to the Federalism of his former co-author Alexander Hamilton. I personally believe that Federalists 37, 40, and 41, all written by Madison, are exceptionally interesting and very much worth pondering today; however, like most of the 85 essays comprising The Federalist, they have basically fallen into oblivion. Most peoples’ knowledge of The Federalist, assuming any at all, is limited to no more than a half-dozen “greatest hits.”
It is past time to cease ascribing constitutional paternity to James Madison (or any other discrete figure). An important person, yes. Someone who deserves to be remembered, along with a host of other figures from the time? Surely. But he should be put in his place, as it were, as only one among many “framers” who, in their own ways—for both good and ill (again, recall the brooding omnipresence of slavery)—contributed to the making of the American Constitution in 1787 and then, just as importantly, in the following years of what Jonathan Gienapp has aptly called “the second creation.” That should be enough.
Sanford V. Levinson is the W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law at the University of Texas Law School and Professor of Government at the University of Texas at Austin. Levinson is also author of An Argument Open to All: Reading the Federalist in the 21st Century (Yale University Press, 2017).
