As members of the First Congress convened in early April 1789 to begin the process of implementing the Constitution, James Madison knew better than anyone the challenges that lay before them as they attempted to put into effect an innovative system of government based on a text that had different meanings to different people: “We are in a wilderness without a single footstep to guide us.” We the People may have ratified the Constitution, but they were far from unanimous in understanding what had been ratified. It was left to those elected by the people and chosen by the state legislatures to give meaning to the parchment text. And no one was more central to this task than the Virginian, whom John Quincy Adams was to call “The Father of the Constitution.” This essay will explore Madison’s interaction with the Constitution, what “originalism” meant to him, and how he went about interpreting the Constitution when facing the myriad issues that arose in the early years of the Republic.
Madison, like Jefferson, has often been referred to as a strict constructionist. But what does that mean? Madison certainly understood that the meanings of words change, so he was never bound to interpret the Constitution based on a strict adherence to language. If, on the other hand, interpretation is to be based strictly on intention, whose intention gives meaning to the text? In his 1795 speech in the House during the Jay Treaty debate, Madison clearly stated that those in the ratifying conventions, not the framers, held the key. Thus, one must look to how the ratifiers viewed the Constitution to discover its true meaning. Unfortunately, a quick perusal of the records of the ratifying conventions makes clear that there was no consensus as to what each article and section actually meant. It then becomes apparent that, for Madison, interpretation often came down to pragmatism. Any ideological principle of strict or broad constructionism was secondary to the establishment of a sound government that maintained its republican principles. As he himself stated in Federalist 44, “No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized.” In other words, Madison was not averse to broadly interpreting the Constitution when confronted with situations which demanded one to be flexible. A brief examination of how he interpreted the Constitution at key moments in the history of the Early Republic will, I believe, show that Madison was never an ideologue committed exclusively to either a strict or a broad interpretation of the Constitution. Rather, he was a practical politician in the best possible sense, determined to build a country having a firm foundation that could withstand the inevitable trials that would confront it.
The Power of the President To Remove Officers
The first great constitutional debate in Congress occurred in May 1789, when the House took up a bill to organize the executive branch. Madison moved to create three executive departments (foreign relations, war, and treasury), each one headed by a secretary “who shall be appointed by the President, by and with the advice and consent of the Senate; and to be removeable by the President.” The last phrase became a point of contention, for, aside from impeachment, the Constitution did not provide for the removal of officers. William Loughton Smith of South Carolina asserted a strict constructionist interpretation, saying that Congress did not have the constitutional authority to give the president such power. Since the Senate had to consent to appointments, it was clear under the Constitution that the Senate had to consent to any removal. Moreover, it should be left to the judiciary to settle any disputes that should arise over the removal of an officer.
Taking a broad constructionist approach, Madison disagreed, arguing that, in the interest of effective government, the president had to have the authority to remove anyone whom he deemed inefficient, insubordinate, or utterly incompetent. As for allowing the judiciary to settle the matter, Madison noted that no department held priority over the others in declaring its sentiments. The majority of the House sided with Madison, and an amended version of the bill was narrowly passed by the Senate, thus ensuring that the president could remove officers as necessary without the Senate’s involvement. Reasoning from a pragmatic perspective, Madison, who feared an overreaching Senate more than a despotic president, embraced the principle of implied executive power in this instance.
The Bank Bill
Perhaps no case is more instructive when examining Madison’s interaction with the Constitution than his response to the incorporation of a bank. When Hamilton first proposed incorporating a national bank, Madison led the opposition. In his House speech of February 2, 1791, Madison noted that the Federal Convention had rejected giving Congress the power of chartering corporations. He also pointed to the ratification debates in Virginia, Pennsylvania, and North Carolina where Federalists had agreed that any power not provided for in the Constitution was to be retained by the states and that the federal government could not, by “remote implication,” assume such power. This meant, for Madison, that the eighteenth clause of Article I, Section 8 (the “necessary and proper” clause), which he had staunchly defended in Federalist 44, could not be used as the basis for passing the Bank Bill. By referring to contemporary expositions of the Constitution, Madison laid out a fundamentally strict constructionist argument, which, as his colleagues in the House quickly noted, was contrary to the position that he had taken in the removal debate of 1789 and in Federalist 44.
Signed into law by President Washington only after Hamilton’s brilliant argument based on his interpretation of the “necessary and proper” clause, the bill chartered a national bank for twenty years, at which time Congress would be asked to either renew the bank’s charter or allow it to expire. Thus it was in 1811, during the first term of President Madison, that the bank’s charter came up for review. Although his secretary of the treasury and close advisor Albert Gallatin favored re-chartering the bank, Madison remained silent on the matter and the Republican Congress effectively allowed the bank’s charter to expire.
When the subsequent war years made clear the necessity of a national bank, Madison, who “out-Hamiltoned Alexander Hamilton” in the words of John Randolph of Roanoke, led the charge for a new bank charter. In his seventh message to Congress in 1815, Madison urged the congressmen to make the bank a priority. A more favorable House and Senate heeded his words, and the Second Bank of the United States was chartered in 1816. Once again, the pragmatic Madison, foregoing any strict construction ideology, did what he believed to be in the best interests of the country without undermining the integrity of the Constitution. In defending his change of position from 1791, Madison referred to precedent as a factor in determining the constitutionality of an act. The fact that the First Bank of the United States had functioned appropriately for twenty years without any question of impropriety established, for Madison, its constitutionality.
The Proclamation of Neutrality and the Jay Treaty
When France declared war on Britain on February 1, 1793, America felt the repercussions. In fact, several important constitutional issues emerged as Washington attempted to steer the fledgling country away from involvement in the fighting. On April 22, 1793, the President, after listening to the debates among his cabinet officers, issued a Proclamation of Neutrality. While Madison certainly agreed with the need for America to remain out of the conflict, he questioned the constitutional right of the chief executive to make a unilateral pronouncement on neutrality without consulting Congress, given Congress’s power to declare war. Responding to Hamilton’s seven-essay “Pacificus” defense of the Proclamation and the President’s right to make it, Madison, writing as “Helvidius,” took his case to the American people in five essays. His main argument was from a strict constructionist perspective: A president has only the powers explicitly given to him in the Constitution. Assuming any other prerogative of office made him, in Madison’s opinion, no different from a monarch, a clear reference to Hamilton’s own words in Federalist 69, where the Secretary of the Treasury had demonstrated the differences between the English monarch and the American president in matters of war and treaties.
For all intents and purposes, Hamilton was the decisive winner in the battle of essays. Hamilton’s Pacificus articles appear to have turned the tide of public opinion in favor of Washington’s Proclamation, something he remained proud of throughout his life. On the other hand, Madison, who had to be prodded by Jefferson to write the essays (“For God’s sake, my dear Sir, take up your pen, select the most striking heresies, and cut him to pieces in the face of the public”), never thought highly of the Helvidius pieces. In truth, he was fighting an uphill battle not only against Hamilton’s persuasive broad constructionist interpretation of executive power but also against the persona of Washington.
As the war in Europe dragged on, America’s neutral position was becoming more difficult to maintain. Fearful of an unwanted war with Britain, Washington took the bold step in May 1794 of sending Chief Justice John Jay to London as a special envoy to seek a treaty that would resolve the main issues causing friction. While the resultant treaty did little to appease Americans, besides ensuring an unsteady peace and British agreement to remove troops from the Northwest Territory, the ensuing debate over the treaty raised important constitutional questions. And at the center of the debate was Madison.
Called into special session in June 1795, the Federalist-controlled Senate voted along party lines to ratify the treaty, which Washington signed in August. Once the House, now with a Republican majority, convened in December, Madison immediately raised barriers to the treaty on constitutional grounds. First of all, the House had the constitutional right to participate in any debates involving foreign trade since it shared with the Senate commercial oversight. Secondly, since the treaty involved monetary appropriations, the House had the right to determine if public funds were being used judiciously, and, to do this, it had to have access to all relevant paperwork dealing with the treaty, including the instructions given to Jay and any other communications. As Hamilton, who wrote thirty-eight essays on behalf of the treaty titled “The Defence,” readily saw, such an interpretation of the House’s role in treaty-making would make the constitutionally ordained executive-Senate relationship moot; moreover, Hamilton, using Madison’s earlier originalist argument against him, noted that, at the Federal Convention, both Gerry and Mason opposed the Constitution in part because of its giving exclusive treaty-making powers to the executive and the Senate.
The final act in this constitutional drama took place in March 1796, when Washington appealed to the House to allocate the funds necessary to implement the treaty. After the administration rejected the House’s request to see documents pertaining to the treaty, with Washington reminding the congressmen, and Madison in particular, that the Convention had explicitly rejected a motion to include the House in the treaty-making process, Madison refused to accept defeat. In an April 6 speech, he made his clearest statement of originalism, announcing before the House that:
As the instrument came from [the framers], it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people speaking through the several state conventions. If we were to look therefore for the meaning of the instrument, beyond the face of the instrument, we must look for it not in the general convention, which proposed, but in the state conventions, which accepted and ratified the constitution.
Madison then proceeded to examine the published records of the three conventions (Pennsylvania, Virginia, and North Carolina) that had most intensely reviewed the treaty powers. Here, however, he ran into the difficulty inherent in such an approach, as he could only admit that there were misunderstandings and confusion in the various convention debates over Article II, Section 2. Undeterred, Madison then went on to discuss the amendments relevant to treaty-making submitted by the conventions to the First Congress without clearly explaining how proposed amendments, which he himself had rejected when finalizing the first amendments to the Constitution, could override the explicit language of the Constitution.
What amounted to a weak attempt at strict construction via the language of the ratifying conventions failed to win over enough congressmen. In the end, Washington received the funds needed to implement the Jay Treaty, and Madison soon would return home to Montpelier and not seek re-election.
The Louisiana Purchase
Historians justifiably focus on President Jefferson when assessing praise or blame for the historic purchase from France. However, one must remember that Madison was Jefferson’s secretary of state and closest advisor, the one man who was able to rein in the passionate idealism of Jefferson. Thus, it is appropriate to review his role in the purchase and his assessment of its constitutionality.
When word reached Washington D.C. in early July 1803 that Edward Livingston and James Monroe had agreed to purchase the entire Louisiana Territory for $15 million, Madison was ecstatic. The republican vision of an “Empire of Liberty” with the vast western lands populated by yeoman farmers was closer to realization. However, Jefferson in particular was concerned about the constitutionality of the acquisition. The Constitution did not explicitly speak about acquiring territory from a foreign power. Both Madison and Secretary of the Treasury Albert Gallatin were confident that the treaty-making powers given to the executive and the Senate covered the purchase. A special session of the Senate, such as the one called by President Washington to approve the Jay Treaty in 1795, could be convened to ratify the treaty and complete the transaction.
Jefferson remained unconvinced. While he accepted the argument that the land could be acquired through the treaty provision of the Constitution, he believed that a constitutional amendment was necessary to bring already settled land into the Union. Madison thus set to work to draft an amendment that Congress could approve and send on to the states for ratification. The wording of the proposed amendment suggests that the Secretary of State did not share Jefferson’s scruples. In fact, it implies that the right of acquisition of Louisiana already existed: “Louisiana as ceded by France is made part of the U. States. Congress may make part of the U.S. other adjacent territories which shall be justly acquired.” When a subsequent message from Livingston indicated that Napoleon was having second thoughts about ceding Louisiana, the administration set aside any thoughts of undertaking a lengthy amendment process and proceeded to present the treaty before the Senate, which quickly ratified it.
Based on the available information, there is little doubt that Madison’s broad construction of executive power was as much a deciding factor in Jefferson’s decision to proceed with the purchase as was Livingston’s frantic message. Had Madison held to the same strict construction interpretation of the Constitution that he had presented in his opposition to Hamilton’s Bank Bill and the Proclamation of Neutrality, Jefferson would have in all probability insisted on a constitutional amendment to make the Louisiana Territory part of the United States, thus placing the purchase, and the “Manifest Destiny” of the United States, in jeopardy.
In his biography of Madison, Ralph Ketcham observes that Madison “did not make dogma of either strict construction or laissez faire.” Nor should we expect him to have done so. Madison was not an ideologue in matters pertaining to the Constitution. While he often took a strict constructionist view, as demonstrated in the debate over the First Bank of the United States and in his veto of the Bonus Bill in his last act as president, Madison never formally repudiated his position in Federalist 44, understanding as much as anyone, including Hamilton, that there would be instances where broad construction was necessary to effect the kind of government that framers and ratifiers alike envisioned. He was a pragmatist first and foremost, devoted to building a republic that would provide the best protection for the rights of all its citizens. Perhaps it is in this respect that Madison most deserves the title “Father of the Constitution.”