>> From the Library of Congress in Washington, DC.
>> This is a part of our series of --
for Members of Congress on great American Presidents
and we're very grateful that our expert is willing
to have a little meeting for staff members and others
who were not included in this member's only last night
to hear something about the preeminent expert really
on the man who's widely referred to as the Father of our Constitution.
Anyhow, James Madison held three different public leadership
positions, each for eight years; eight years as a Member
of Congress followed by eight years as Secretary of State,
which is [inaudible], then finally two terms or eight years
as President of the United States, and even after that,
eight years as Director of the University
of Virginia after Jefferson's death.
His submission of the so-called Virginia Plan,
which is part of the things that we have on display today,
I think some in the members room it was brought out,
outlined the three branches of government; legislative, executive,
and judicial and served as a foundation of the Constitution
as did his notes on the Federal Constitutional Convention,
which are also on display.
So it's a whole lot of price --
original manuscript documents of which we have the mother lode here
in the library, will be kept on display for any of you who want
to visit them in the member's room afterwards.
Madison also pushed all the Amendments of the Constitution
through Congress in its first year, ten being ratified by the states,
composing the Bill of Rights.
He was the longest living of the Founding Fathers,
dying just 10 years after Jefferson and Adams did
in 1836 at the age of 85.
Now the library's three buildings on Capitol Hill as most
of you know are named respectfully for Jefferson and Adams,
and the most recent one for Madison himself,
located just across Independence Avenue,
and is the nation's official memorial
to this great and unique President.
So we're delighted to have with us today the expert navigator
of the enormously rich and complex Madison legacy,
the Sanford Professor, Pulitzer-prize winner, Jack Rakove.
So we're moderating today's discussion will be Jim Hutson,
Director, as many of, you know, of the library's manuscript division
and himself as scholar and eminent scholar of the Founding Fathers.
I know that Jack Rakove is --
has worked a lot with Bud Bayland [assumed spelling] who's
on the Scholar's Council and is one of the great scholars
of the American Founding Fathers.
Jim Hutson worked with Ed Morgan,
who is another great scholar of this period.
So ladies and gentlemen, please welcome Jack Rakove and Jim Hutson
to tell us all about James Madison.
[ Applause ]
>> Jim Hutson: Thank you.
What we're going to do, we'll -- I will ask Jack.
I will question Jack for about a half an hour
and then we'll open the floor to the audience for some questions.
I will try to ask some of the questions
that were presented last night.
The format of these programs which have been so successful is
that David Rubenstein, who is, as you well know,
a local philanthropist and business man, has been very generous
to the library, has been funding these
and he's also a superb interviewer and a man of great depth
of knowledge about virtually everything including
American history.
He questions -- he's asked questions of the visiting scholars and again,
for about 30 minutes and then turn the floor over to Members
of Congress who have asked questions.
And they've been very good questions.
I thought there were some really good ones last night.
So I thought one good question was about Madison's religion.
We had two documents on display last night; Madison's document
in which he had successfully amended the Virginia Bill of Rights,
changing the terminology from full toleration of religion
to free exercise, and then a famous memorandum that he wrote in 1785,
and against a program promoting the [inaudible] by Patrick Henry
and George Washington, of which George Washington approved called
the General Assessment Program in Virginia,
where everybody would be taxed
to support the church of their own choice.
If they didn't want to pay it to the church,
they could pay the money to education.
It seemed like a pretty good idea at the time,
but Madison wrote a very powerful indictment of the scheme.
The question Jack was asked; he answered it in two ways.
One was what was Madison's religion, and you might ask how does
that differ really from Jefferson or Adams who were --
>> Jack Rakove: So it is a good question.
In some ways it's a puzzling question,
and what makes it puzzling is the fact that Madison is deeply private
about what his religion was.
So, you know, we know that Madison grew up within the Church of England
and we know that he continued
to worship you know modestly or moderately within it.
But my sense is that he writes very little bit about it.
His idea, and the fact that he says so little about what he believed;
the fact that he doesn't you know, profess the, you know,
the kind of the central doctrinal tenets of Christianity,
I think suggests pretty strongly to me that like many members
of his generation, he was moving or had moved in the direction
of deistical -- or you could say Socinian convictions,
meaning that they know as much respect as he might have paid
to Jesus as a moral prophet,
that would make him very much like Thomas Jefferson.
He probably had radical doubts about Jesus' divinity.
But the key part of this, and perhaps this is where, you know,
Jim was going to go is to ask how Madison's privacy
about his personal belief relates to his deeper understanding
about the place that religion should play
in American culture and American politics.
And here what I think tends to unite Jefferson and Madison,
though with somewhat different attitudes, is that I think
that both believe very muchly
that religion was essentially a private matter.
It was something he wanted to preserve as arguably as the first
of the rights we possess as individuals.
But there was best practice the more it was left to the private sphere
and the left it is was regulated, supported and forced,
moderated in any way by government.
So I think the way in which it's tough
to answer definitively what did Madison think about the nature
of divinity, salvation, etcetera, it's actually tied pretty closely
to his public philosophy,
to the idea that what makes religion really important is the idea
that it truly -- well, it makes the free exercise of religion,
let's say freedom of conscience and the free exercise of religion
so important, is that that writer
of those rights really recognized the --
what [inaudible] call the sovereign autonomy of the individual.
And that secondly, that if you dis-establish religion,
which Madison sets out to do and what Jim said a few minutes ago
about his opposition to the General Assessment Bill in Virginia back
in the mid 1780's, I think to me, that's the first great example of,
and a very powerful example of what the whole American theory
of the nature of government would be, because in a sense,
what you're saying is here's religion,
an area that's far too important and far too controversial for any state
to renounce its authority over.
I mean historically, particularly let's say in the 16th, 17th,
18th century Europe, it would be crazy or foolhardy to say
that the state is an authority to regulate religion or for
that matter, no authority to promote it.
So I think the radical position was no, the fact of the opposite.
Nothing would better demonstrate what it means to live
under a government of delegated powers than to say here's an area
that states have always regulated and we're going to privatize it.
It would become an area of voluntary activity both for individuals
and both for members of churches.
And so I think beyond Madison's individual convictions,
there's this really important, critically important set of issues
about how does your position both on free exercise
and on dis-establishment correlate to larger theories
of republican government.
>> Jim Hutson: Yes and the one remark Jack made last night
that I don't think registered with the audience was
that Madison also thought that free exercise would promote
political stability.
How was he -- how was that going to happen.
>> Jack Rakove: Right.
Yeah, good follow up.
So that's -- so yeah, that's an interesting point
of difference I think between Jefferson and Madison.
So I think Jefferson, after the revolution,
got somewhat disillusioned by the kind of revival of --
well, the revival of revivalist religion in America
that historians called the second great awakening.
Jefferson, I think had said you know back in the 1780's, we'll all be --
or Christians will all be Unitarians.
That turns out not to be true.
And of course there's, you know, the growth of religious enthusiasm
in the form say of the you know, of the great spread of the Baptist
and Methodist denominations was something
that actually troubled Jefferson in various ways.
Madison was much more philosophical about this because as he suggests
in Federalist 10 and Federalist 51 --
for those of you who remember those great texts, the great diversity,
the great source of security for liberty will be to have a diversity
of interests, and the best example of how diversity
of interests will operate will lie in the realm of religion.
So I think Madison is much more philosophical.
The argument here is that particularly at the national level,
or more likely the national level than at the state level, the larger,
the more complex, the more diverse a society is,
the more difficult it will be
to form what he called fascist majorities;
majorities who would rule in defiance of the public good
but also of private rights.
So Madison saw in the fertility of Protestant disputation,
if I can use that expression, in 19th century America,
like theories of just turned Protestants loose to read the Bible.
This is my version.
[Inaudible].
Just turn them loose to read the Bible and they'll find lots
of things to disagree about, which in fact has happened.
And their disagreements will actually be a source of liberty
because it will prevent the formation of, you know,
what Madison called fascist majorities.
So again you see the link between how he thinks about religion
and how he thought about public life, political life more generally.
>> Jim Hutson: One more question.
George Washington and many of Madison's colleagues believed
that religion was a source of stability in another way.
>> Jack Rakove: Right.
>> Jim Hutson: You know in Washington's farewell address,
he talks about religion being an indispensible support
for political prosperity.
That is to say, it would promote a moral, responsible population.
Did Madison buy into these kind of views or not?
>> Jack Rakove: That's a tough question.
It's one of the things not only like a couple
of sensitive topics Madison saw on race --
>> Jim Hutson: Yeah.
>> Jack Rakove: -- where he's fairly careful
and doesn't reveal all that much.
I'm not sure he would go as far as Washington went.
There are a few passages,
particularly in his writings from 1787.
If you remember the argument from Federalist 10 or if you look
at the antecedent documents, which are by the way out on display,
you know in the room, you know, back there;
The Vices of the Political System , and I think also in the letter --
no, maybe not in the letter to Washington,
but in the letter to Jefferson.
So when Madison reflects on religion,
he does share a certain prejudice against what was called in the 17th
and 18th century, priest craft.
He's suspicious of organized religion
and he's not wholly convinced that religion will serve
as an effect break via [inaudible] and the vicious impulses,
the fascist impulses of individuals.
I mean I like to think on his better days, he was probably optimistic
about it and he probably was not wholly convinced of it, so.
>> Jim Hutson: Well, one final question,
the last question asked last night, the questioner was trying again,
and concerning religion and public policy,
was talking about the Federalist;
somehow they're reflecting Calvinistic views.
>> Jack Rakove: Right, right, right.
>> Jim Hutson: What he meant I think was the kind of wickedness
of the general population.
Did Madison see this in the 1780's going what was going
on in state legislatures?
Is that a fair -- was that question completely off base or not?
>> Jack Rakove: Well no.
It's not off base at all because I mean the whole basis --
I mean the founding basis of Madison's political theory,
what makes -- part of what makes Madison the creative political
thinker he was, is that he takes the conception, you know,
the kind of well entrenched conception that if you want
to have a republic you need virtue of citizens and virtue
of citizens means the ability
to subordinate private interest to public good.
So Madison, effectively by 1787, tosses that notion out.
He says in effect, Americans are like other people.
We act on the basis of opinion.
We act on the basis of passion, but what's most important is we act
on the basis of interest.
We're self interested.
We're prejudiced.
We have pride in our own opinions whether
or not those opinions are well formed or not.
He thinks about it psychologically.
The tougher part of this, and the hard question
to answer definitively is could you align,
at least in the religious context is, can we align this notion
about opinion, passion and self interest and the self serving nature
of our political behavior with sin.
And there is at least one -- there's a book on Madison's political theory
by a guy named Garrett Sheldon, who argues that actually,
well if you push deeply Madison's notion of self interested behavior,
selfishness etcetera, in the end maybe isn't that far from the --
I don't [inaudible] if I want to say original sin conception
of human frailty, but it's not radically divorced from it.
I don't know.
I mean it's a plausible argument.
On the other hand, Madison does not talk about it --
>> Jim Hutson: All right.
>> Jack Rakove: -- in terms of sinfulness, so.
>> Jim Hutson: Right.
I was thinking about state legislators --
>> Jack Rakove: Right.
>> Jim Hutson: -- cheating debtors, creditors.
>> Jack Rakove: Right.
>> Jim Hutson: Major issue.
>> Jack Rakove: Yeah.
>> Jim Hutson: And let's get to the -- get to the Constitution.
Madison served in the Confederation Congress.
What for people who perhaps don't remember from their history books,
what were the Articles of Confederation like
and what was the problem with them?
>> Jack Rakove: Right.
So the critical -- what really --
by the way, actually I read the Articles
of Confederation on the side.
I have two chapters on the drafting
of the Confederation in my first book.
So something I've thought about for a long time.
And not many people would want to make the acclaim,
so I'm proud to be able to do it.
So the critical thing --
so the Articles were drafted back in the mid 1770's.
Congress sends them out to the states in November 1777 right
after the Battle of Saratoga.
They're not ratified until 1781 because of Maryland and its interest
in western lands and too complicated a story to tell here.
But they take effect and as soon as they take effect,
Madison is actually the chair.
I don't know if he's the chair but he's part of the three man Committee
of Congress that's designed to ask how are we actually going
to make the Confederation work.
Madison took a pretty bleak view of the Confederation from the start.
He said we have delinquent states,
states that aren't doing their duty towards what Congress has asked them
to do.
We ought to have some authority to compel or coerce the states
to comply with their federal obligations.
His idea was since all the states were on the seaboard,
if you actually had an adequate navy, you just park a frigate
or two outside the local port.
Be tough for New Jersey,
but for every those state it would work pretty well,
and kind of shut off their commerce until the right thing.
Wasn't a very happy political solution to the problem.
But beyond -- and Madison does start thinking pretty critically
about the whole nature of the federal relationship
and the key point that you or we collectively ought
to understand is the basic mechanism for the Articles to work,
Articles of Confederation to work,
was that Congress would propose recommendations, requisitions
and resolutions to the states.
The states were expected to comply legally
through the force of ordinary law.
Congress could not pass statutes, so the states would have to comply
through the mechanisms of ordinary law and, you know,
using their own judgment as to how best to implement these measures,
carry the national project whatever it was forward.
And that's the system that breaks down
and you find Madison thinking both in 1782, 1783 when he's been
in Congress for a couple years and then again when he prepares
for the Philadelphia Convention.
He comes back and he attacks this notion
of voluntary compliance in the states.
And he comes to understand -- actually I've written about this
and I'm writing about it some more that Madison actually has a kind
of what we would now call the game theoretic analysis of Federalism;
meaning he thinks strategically
about how the states will act vis a vis national measures.
And he comes up with a set of arguments to explain
that while states have very different interests,
so he can't expect them to comply uniformly,
each state will have politicians who will want to run
or who will find it -- he calls the courtiers of popularity --
who want to oppose national measures for their own reasons.
And I call this running against Washington.
And third, in a system like this even
where the states have a common interest,
doubts about each other's compliance will be a net drag
on the whole system.
Why should I go first until I see what other states are doing?
And so think about this in terms
of modern economics or political science.
It's essentially you know, it's what I call quasi quid pro quo proto game
theoretic mode of reasoning.
So he thinks -- I mean I think first he has the observations back
when he served as a delegate in the early 1780's and then
when he thinks more systematically about this and on the eve
of the convention, he formulates his position.
By the way, well you can't say to him it's what's on display,
but if you go look at the Vices of the Political System ,
you know again, which is one
of the documents back here, then look it up on line.
Go to item seven, you know.
If you're really serious about this, write down item seven,
Vices of the Political System and look at Madison's analysis.
You'll see he goes from what's essentially the historical analysis
of what went wrong and what we've learned
since the articles were drafted to the three great --
the three great theoretic propositions I just mentioned.
Then he says this will never fail to render federal measures abortive.
So if that's true, then it leads to the idea that if you can't work
through the states, what you need
to do is give the national government legal authority
over individuals.
>> Jim Hutson: And legal authority to the thing that may be --
this often, we all find surprising is Madison's proposal,
passionate belief that the national government ought
to have a veto of every state law.
>> Jim Rakove: Right.
Something many of us have written about.
You want me to say something about that?
>> Jim Hutson: Yeah, sure.
>> Jack Rakove: Okay.
>> Jim Hutson: I mean but isn't that a key?
That's one of his key proposals in the federal --
for the federal constitution and it does -- it falls flat.
>> Jack Rakove: Right.
>> Jim Hutson: But he tried to work that into the Bill
of Rights sitting in, didn't he?
>> Jack Rakove: In a kind of reduced modified.
Right. So the second key thing is really in some ways kind of comes
out of David Rubenstein's first question, --
>> Jim Hutson: Yeah.
>> Jack Rakove: -- which is how do you think about Madison
as father of the Constitution.
He loses a lot of issues, but on the other hand, he sets the stage
for the whole discussion.
So the other thing that's --
the other item that I think most scholars agree was really
provocative but also both deeply radical and deeply reactionary
in Madison's thinking on the eve of the convention was as Jim said,
the idea of having a Congressional negative on state laws,
which you could use for either hopefully both of two purposes.
One would be to allow Congress to protect itself
against interfering legislation from the states.
So let's assume -- you know, let's just assume randomly
that the states might not like a particular piece of legislation,
say the Affordable Care Act or whatever.
Take a non-trivial example.
Yeah, they might very well pass laws
that would you know either not comply,
but actually try to interfere with it.
So Madison felt that in the case
of national government should have the authority to negative and maybe
to veto state laws, meaning the states would no longer have any
claim to sovereignty in any sense of the term under that condition.
And then secondly, more interestingly,
from our vantage point, Madison also felt that that power invested
in the national government could also be used to protect individuals
and minorities within the states against unjust legislation.
So it would have two purposes.
One would be to kind of promote national policy, prevent the states
from interfering, but the other would be
to enable the national government to intervene
within the states individually and to do so on behalf of or protection
of rights, which is why -- actually Jim, is one reason why I like to say
that in some ways, the most Madisonian part
of the Constitution is the 14th Amendment, which was, you know,
which was ratified 32 years after his death because depending
on how you read Section One, I read it broadly.
But, you know, the due process, equal protection,
privilege [inaudible] clause of the 14th Amendment are in a sense a kind
of latter day Madisonian device to deal with legislature
within the states that works against [inaudible].
>> Jim Hutson: Especially the term though
that the federal government will have the power to enforce these --
>> Jack Rakove: Right.
>> Jim Hutson: -- in the 14th Amendment.
>> Jack Rakove: Well, you know right.
>> Jim Hutson: Yeah, but this is a -- this is as you point out,
a very radical proposal that probably never had a chance
of passing or never would have passed in America.
>> Jack Rakove: Yeah, and you know it was pretty doubtful though it's
tried twice.
The second time the defeat is narrower than the first,
but it's also -- you know to me, it's very hard
to understand how Madison, coming from a southern state
with somewhat complicated attitudes about race and slavery, you know,
why he ever could've conceived --
>> Jim Hutson: Yeah.
>> Jack Rakove: -- that the states would accept it.
So maybe one way to think about this is that you know regardless
of whether or not he had a good chance of adoption, it shows,
you know, Madison's thinking.
I mean the key point to be made here is that when Madison makes the set
of proposals, he's really enlarging
in a pretty substantial way, the agenda of reform.
Nobody before '77 had been thinking about what do we do in terms
of strengthening the national government; how might we use
that occasion to deal with problems of government
within the individual states.
So that's a big step forward.
>> Jim Hutson: The Madison's proposal
for the new government was called the Virginia Plan.
It was introduced by the governor of Virginia, Edmond Randolph
in the convention, May 29th, I believe.
It was again, I think the members of the audience may know a lot --
perhaps know this, but it was an unusual --
not unusual, but a plan that again did not even come close.
It doesn't resemble what finally emerged.
The House of Representatives in this plan would elect members
of the Senate, who would have been recommended
by the state legislatures and the two would then --
the House and Senate together would elect the President.
That wasn't that unusual because some of the --
in some of the states, the Lower House appointed the Upper House,
the council.
But still, it was -- so it would not have surprised the delegates.
The interesting thing about that Virginia plan, and Jack
and I were talking about this before we went on air here,
was the senate -- and I know he's working on this right now,
but tell us a little bit about what if we --
what Madison actually thought like -- the Senate might represent
or what it might do or --
>> Jack Rakove: Yeah, so it's a really complicated question you
can't figure out entirely, because I don't think Madison worked
out the details how he was going to model this.
But I think one place to begin, and it's an important place to begin,
is that Madison thought of the Senate --
I think, not as a representative institution but primarily
as a deliberative one; meaning he was much more concerned not
with which entities, and it's not clear
which entities he would identify the Senate would embody and represent,
but rather with its kind of institutional qualities,
its characteristics, its capacity to deliberate.
So Madison took very seriously the idea of [inaudible] government.
There's a famous letter not on display, but that Madison writes
in August, 1785 to a colleague, a friend of his named Caleb Wallace
about republican constitutionalism where the first item he discusses --
well, Wallace was in Kentucky, which you know is part of Virginia.
It was getting ready to break off, and he asked if Kentucky breaks off,
what kind of constitution should we form.
And so it's really the first occasion
where Madison reflects actively
on the constitutions that are in the states.
His very first item is what we really need is some device
to provide wisdom and stability in legislation.
And what he's thinking about is --
well, Senate's not the only solution, but he's thinking
about a set of proposals that will somehow improve both the quality
of deliberation.
Really what he means is making sure legislation is well conceived,
that it's well thought.
Literally, that it's well written technically you know,
that it's well designed, well conceived so it's understandable
and you know, comprehensible and therefore enforceable.
And a big part of this was it was his idea of the Senate.
So I think he held to that idea pretty deeply down to 1787.
The problem that arises at the convention is like,
Madison did not want a Senate elected by the state legislatures.
I don't think he assumed that the Senate would necessarily represent
all the states.
Some delegates at the convention say openly that --
you know, discusses quite openly their kind of little asides in many
of their speeches, but it's clear that the idea
that the Senate might not represent all the states was something they
were still working with.
But Madison and his chief ally, this James Wilson from Pennsylvania,
lose a crucial point here very early in the convention.
On June 7th when they're like 10 days into the debate,
convention votes very strongly to make the Senate elected
by the state legislatures, which is going to make it hard not
to represent the states individually.
>> Jim Hutson: Right.
Right. What did Madison think of his conception
of the judiciary in the Virginia Plan?
Did he hope and think that this would be a fairly strong body
or did he have suspicions of it --
>> Jack Rakove: Yeah.
>> Jim Hutson: -- like Jefferson did or what?
>> Jack Rakove: No, his suspicions are not as strong as Jefferson's.
I think -- I mean Jefferson was a lawyer, had been trained as a lawyer
and I think he probably thought more deeply about, you know,
what judges should do, although, you know,
Jefferson said they'd be mere machines.
Madison read the law but did not practice it.
I think -- and I think also his views changed significantly
over time, so to talk about this you have to think
about really over a 30 year period.
So I think Madison's starting position was that judges would be
so politically weak in opposition or contrast
to particularly the legislative branch
that they wouldn't be very effective; that they would kind
of lack the temerity or the, you know, the nerves whatever,
to go up against a legislature
which would have the voice of the people behind it.
So he's somewhat skeptical about what they would do politically.
Actually, interestingly, we didn't talk about this,
but one proposal last night or rather other places
but so one proposal which Madison along
with James Wilson was attached was the idea of the Council of Revision,
which was based on the New York Constitution,
which would mean the executive and some select members
of the judiciary, probably the Supreme Court,
would have an advisory role in the enactment of legislation.
And Madison's position on this was that it's better --
again, it goes back to his concern with the difficulties
of getting legislation well drafted.
It's great to say this to a group of Congressional staffers,
that who are privy to all kinds of secrets.
The rest of the decisions we don't know about these days.
In any case, so Madison thought that there'd be kind of a trade off;
that it'd be much better to have judicial advice up front,
ex anti to improve the quality of legislation before it was enacted
than to allow judges to deal with it constitutionally or otherwise
after it had taken effect.
But again, that's another of the pet proposals that's rejected.
So I think as Madison's thinking about this, I mean he does say
in Federalist 39, it's almost a throwaway line near the very end,
but it's a very important position that in matters of federalism
to enforce federal boundaries,
the constitution is established what he calls an impartial tribunal,
which has to be the Supreme Court and that it's going
to resolve these kinds of controversies.
And then I think over the next 30 years, down --
go to the time of McCulloch versus Maryland, the famous bank case
of 1819, I think Madison becomes more
and more attached to that position.
He starts with the assumption of judicial weakness.
He doesn't really change that position in the 1790's
because the federalists control the judiciary.
The judiciary won't act the way he wanted to act.
But I think even notwithstanding his differences with John Marshall
or his positions close to Jefferson, I think Madison comes
to understand the way that Jefferson is very --
still somewhat angry about that the Supreme Court,
particularly if you were a southerner,
may remain the best bastion or the best resource
for protecting southern regional interests.
So he holds that position from Federalist 39.
Again, you have to read Federalist 39 carefully, get all the way
to the end to see what Madison's argued.
But he writes that position, and the older he gets,
the more he sticks to it.
>> Jim Hutson: Right.
Moving very quickly, we know the Constitution had real trouble
getting ratified in the state conventions and they --
the federalists, including Madison, had to promise to pass a Bill
of Rights to get the thing passed.
The Bill -- we need two or three days rather than five minutes,
but the -- again, the audience ought to know
that Madison was no great admirer of a Bill of Rights.
And Jack opened my eyes in an article.
I think you published it in 1986,
where you ran across a phrase he called it nauseous project.
>> Jack Rakove: The nauseous project of [inaudible].
>> Jim Hutson: The Bill of Rights is a nauseous project.
Why was that Jack?
>> Jack Rakove: Why was that Jack?
>> Jim Hutson: No, why did Madison believe that?
>> Jack Rakove: So he says this in a letter you know while the Bill
of Rights is pending in Congress in the summer of 1789.
And I think what he means is it was nauseous to most of his colleagues.
It wasn't nauseous to him personally.
I mean in fact, Madison thinks very carefully.
He actually sets about solving what's a major problem
in American constitutionalism, which there had been Bills of Rights back
in 1776 when states started running constitutions.
But with a couple exceptions,
they weren't really constitutional documents.
They're more parallel documents that accompany the adoption
of the Constitution than legal protections
that are specifically entrenched within the Constitution.
So Madison thinks about that problem and when the time comes
to amend the Federal Constitution, he wants to make sure
that the rights to be protected should be understood not
as statements of principle,
but really as legal commands that are being forcible.
But the other side of this was that, you know,
once the Constitution was ratified,
the changes the anti-federalists wanted to have made,
they knew they weren't going to get.
And this is where our late friend Pauline Maier's book Ratification
Mis really good in stressing it wasn't just
about the Bill of Rights.
The anti-federalists had a whole set of provisions.
They were actually putting measures relating
to taxation would probably be at the top of their list.
So anti-federalists knew they weren't going
to get what they wanted.
Most federalists said we just want the elections.
We dominate the government.
Anti-federalists are moralists in disarray, though not in Virginia.
So why do we really need to enforce?
The promise -- it wasn't really a contract.
It was kind of an agreement.
Status wasn't really entrenched, but I think Madison came
to the conviction that to complete the whole process
of ratification there were a lot of well meaning,
perhaps somewhat misguided anti-federalists out there
who felt very deeply about this issue.
And if you wanted to get a kind of broad public acceptance
of the Constitution as the government began operation,
if you want to kind of in a sense complete the deal of ratification,
to seal the deal of ratification, it would be great to kind of assuage,
kind of placate a lot of the reservations.
So he worked pretty hard.
I mean most Members of Congress had other priorities,
but Madison worked pretty hard from --
>> Jim Hutson: He ridiculed Madison, his own [inaudible].
>> Jack Rakove: Yeah, right.
There was you know kind of Madison's project
and why is he wasting -- a [inaudible] --
>> Jim Hutson: Yeah.
>> Jack Rakove: -- said the whole thing was a waste of time.
Jim Hutson: Yeah, yeah.
>> Jack Rakove: He also says about the Second Amendment that,
you know -- I don't how many of you I'll offend by saying this,
but when he mentions the Second Amendment,
about the Second Amendment he says he has the Latin phrase Ricum
Teniatus Ameche [assumed spelling],
which means hold your laughter friends,
about its inclusion in the Bill of Rights.
But Madison -- you know Madison was committed
to the overall project and, you know although it took 150 years for us
to start to take the Bill of Rights all that seriously, on the whole,
we think it's been good for us to have it.
>> Jim Hutson: Well, one of the federalists
after it was passed said it was good for nothing.
You know that William Grayson --
>> Jack Rakove: Yeah.
>> Jim Hutson: -- anti-federalist, sorry.
So no one was really very happy with it.
Like given its exalted status today, it's quite a change.
One interesting question came up last night.
Madison and slavery.
>> Jack Rakove: What can I say about it?
>> Jim Hutson: Yeah.
Well, I thought it was -- especially because of the --
at the first session we had in this series,
John Meacham severely arraigned Jefferson --
>> Jack Rakove: Yeah.
>> Jim Hutson: -- for not -- for moral failures and not doing --
not acting on something he had confessedly said was evil and wicked
and finally concluded that Jefferson didn't do
that because it was too convenient to have slaves waiting on him.
What about Madison's view?
>> Jack Rakove: I think Madison
and Jefferson are actually close in a number of ways.
I think most of their ideas about slavery were fairly common.
I do think -- you know, I explain this a lot to my students.
One thing I want to say is you know, one could call Jefferson,
or for that matter Madison, a hypocrite.
But, you know, hypocrisy is not an explanation.
It's not what historians do.
To call somebody a hypocrite is not to explain their behavior,
It's just to characterize it.
So it's not adequate from our perspective to make sense
of what they were doing or what they failed to do,
to characterize or disparage them.
So I think the deeper question is would Madison,
I think as with Jefferson, I think there's no question that they had,
you know, kind of profound moral distaste with slavery.
I think it made Madison very uncomfortable, but unlike Jefferson,
Madison denied a -- Jefferson always just in some ways,
just wanted to be a planter, you know; idealized his life
in Monticello, which would depend upon, you know,
having and exploiting slave labor.
Madison becomes a planter only after he gets married and, you know,
when the estate passes to him and so on, so it's a role that comes
to him rather than what he imagined himself doing.
You know, it's often said by Madison scholars that, you know,
one reason why he wanted to go north each year or why he'd spend most
of his time at Monticello reading is he --
Montpellier reading is he really didn't want to do this.
So that's fine by itself.
I think the deeper issue that one was to face with both Madison
and Jefferson is that I think they took emancipation seriously.
I think they felt it should be the destiny for American slaves
but it left open troubling questions,
and I think the troubling question opens up,
and it's hard for us to accept it these days.
But, you know, historians have to try to read people
in their own time is
if you emancipated the slaves, what would happen then?
And I think the main problem is they're trying to imagine
or they could not imagine how you could have a bi-racial society
founded on republican principles.
That's the logic of colonization; that here you have a set of peoples
who have this -- whose history is in one sense intimately related,
but which has already -- it's already been profoundly distorted.
So Madison is very -- you know, he writes a case about slavery.
I think some of his most important thoughts he keeps private.
He writes I think in 1791, 1792 that he uses slavery
as actually the best example of the fascist majority.
What better example could there be
about how a minority can be exploited than to look
at the racial status of slaves?
But, you know, he doesn't publicize those thoughts.
And I think he's -- you know, if you guys get into the literature,
Drew McCoy's book, The Last of the Fathers is a wonderful treatment
of Madison in retirement and how he thought about slavery
and sessional questions and, you know, the 20 years he spends
in Montpellier after he leaves the presidency.
>> Jim Hutson: Wow.
Some questions from the audience.
>> Jack Rakove: And we have a mike.
>> Jim Hutson: Yeah.
>> At the time that Madison
and the founders were developing the actual picture of government,
the political entity of the United States didn't exist
and it required the consensus of the people who were going to live in it
to come to -- into existence.
I wonder what you think the effect of that volunteerism
versus the power of government to exercise force had
on the institution of government as they created it and how
that would play out in the community which he knew would come
into existence if the government came into existence,
that it'd be raised with the organs and conception of America.
In other words, they created American when America didn't exist
and they had to get consensus all the time to bring it into existence.
But then the following generations would do it without being born
into it just like religion.
And how would they balance that volunteerism to create America
yet with the fact that you're brainwashed into it afterwards?
>> Jack Rakove: Brainwashed?
>> I mean just like religion.
You were born into America versus creating America.
>> Jack Rakove: Well so A, I think Madison is a [inaudible]
and believes that, you know, religion is a matter we decide
for ourselves individually as we grow more mature.
So your question has deep philosophical resonance.
It's hard to answer in short order, so let me --
I'll offer one answer which may or may not satisfy you.
So I think one of the remarkable aspects of the adoption
of the Constitution, and there's no doubt Madison is
of instrumental importance in this,
was the idea of how do you make a Constitution the Constitution.
How do you turn it into supreme law and try to say briefly
to the congressmen last night towards the very end of our session.
I think one of the most remarkable aspects of this process is the way
in which the Constitution gets ratified
from the September 1787 to July, August 1788.
That's to say the whole mechanism of forming popular conventions,
which will be elected not -- well, not by the ordinary electorate.
Actually they -- most of the states loosen the suffrage, you know,
the right to vote for delegates to the convention and one state,
the dissenting state of Rhode Island,
they actually have a referendum.
So I think that whole process you know, there are no examples
of how you would do this.
If you go to England in the mid 17th century, the time of the instrument
of government or the so-called, the engagement, the English saw it more
about signing a loyalty oath to abide by, you know,
the government set up after Charles I was executed.
The Americans actually come up without having any precedents
at all, except maybe what's going on in Massachusetts.
The Americans actually devised this wonderfully effective
and very powerful mechanism for getting the Constitution ratified.
They had a bit part of this --
this is something Madison theorizes is you call --
and it comes back actually to Jim's question about the Bill of Rights.
You call state conventions into existence
and you say they represent the sovereign voice of the people.
But when that sovereign voice speaks,
it can only say one of two words.
They can say yes or they can say no.
It has to take the Constitution in its entirety.
When they did this is Massachusetts in 1780, they made a mess of it
because the convention says to the towns okay,
you have to approve the Constitution
but it doesn't tell them how they're going to do it.
And when the convention comes back and they look
at what we call the returns from the towns, they kind of read them all
and then they kind of throw their hands up in the air and say well,
it looks like it's ratified, because there wasn't like a check off box
to say yes we approve it.
You get these disprovateurs [assumed spelling].
So I think Madison thought that problem through.
Now, your larger question, which I could not possibly deal
with if I did have two or three days, involves the nature of consent
over the long run if I understood you correctly.
That's so open ended I'm not going to go there.
I'm just a Madison guy.
[Inaudible] for now, but you can send me an email
and I'll try to respond more fully.
>> Jim Hutson: And more, yeah.
>> Hi. My name is Gail Lalleyfeld [assumed spelling].
I'm a volunteer here.
I also do research here.
My question is on the Second Amendment unless that's not doable
in this context.
A year ago, right after the Sandy Hook thing,
online there was an article,
lots of notes about the Second Amendment being propagated
by Patrick Henry because they were afraid
that the well organized militia brought up in the article
of the first article
of the Constitution might someday come along
and take away their slaves.
I don't know if I can say -- what's [inaudible].
>> Jack Rakove: I can discuss this in general.
So I actually, I do, I've done a lot of you know --
I've done a lot of work on this issue.
I mean I organized a group of historians and I wrote a brief
for DC versus Eller, that actually Justice Stevens cited dissent
and I actually think you relied more
on our brief than the citation alone.
So that's fine.
You know just one cite is enough to be honest about it.
But I, you know I feel very strongly as a matter
of historical argumentation that the Second Amendment was
about the militia for exactly reasons you were intimating.
It wasn't about a private right to bear arms
for purposes of self defence.
It wasn't as Justice Kennedy explained in one
of his enthusiastic moments;
it wasn't about killing bears and Indians.
It wasn't something -- that wasn't something you really needed
to constitutionalize as the Constitution.
You know the debate with one or two exceptions; you know the debate
in 1787, '88 was very much about the militia.
Patrick Henry's concern was, and it's a kind of complicated issue.
Henry's concern was that because Congress would now have a major
oversight capacity in terms of organizing,
arming and disciplining the militia, and because they weren't confident
that the states would commit the resources to maintain the militia
that the militia might atrophy as an institution and if it did,
this is the argument made about southern states;
the southern states' capacity to be secure against --
not so much against Indians
as against slave rebellions would be impaired.
Of course what's nutty about this,
is this is the bush would be a matter of what you know we call
in federalism theory, concurrent powers; an area of governance
where the authority of the state and the authority
of the national government overlap
where the states have the responsibility and the ability --
the responsibility and the capacity to support the militia if they
so choose, but what they do is subject to federal regulation.
So that -- and that's kind of a short answer.
I mean, but, you know for southern states,
the slavery question is part of the discussion.
>> Jim Hutson: Another question please.
>> All right.
I have two question in fact concerning the Bill of Rights.
What is the relation between Madison and George Mason,
and the second question is [inaudible] here and I heard
that there were a lot of other amendments on the floor
and beyond Amendment Three to 12.
Have you ever read the other hundred or were there any other
that was significant for the story of the United States [inaudible].
>> Jack Rakove: Yeah.
So there are a couple of ways to answer that question.
So when Madison drafts the Amendments to the Constitution,
they're not 100% about rights.
There were a couple of other structural things
that he you know considered.
So he relies on a pamphlet that was published in think in Richmond
in November of 1788, which lists all the amendments
that the state ratification conventions had proposed.
And those amendments were added to the [inaudible] rights.
Some of them were quite structural.
Some of them related to taxation,
the point Pauline Maier stressed in her book.
Madison and other federalists did not want to tamper with
or alter the essential structure of the national government,
the thing that they had worked out you know in Philadelphia in 1787.
So Madison purges the amendments of --
the amendments he proposes
of all those structural changes except two minor ones.
One, the first -- the original First Amendment related
to the reapportionment issues,
and the original Second Amendment is now the 27th Amendment,
which is I'd say -- I've written an annotated --
Harper Press published a book I did called The Annotated US
Constitution and Declaration of Independence and the end
of my annotation is like, you know, modern Constitution ends not
with a bang or a whimper but with a bad joke.
And the bad joke is the idea
that you could have an amendment circulating
in the Constitutional ether for 200 years give
or take and then be ratified.
>> Jim Hutson: That was by Michigan in 1992, right?
>> Jack Rakove: That was the last state to ratify.
But yeah because the real source is a kid from --
a kid, is a guy from Texas named Gregory Watson
who came upon the subject as a college student at UT
and then it became an aide to the Texas legislature and got
on the bandwagon and got the thing added.
So anyhow, so Madison works with that list,
so there were two amendments proposed
that were not ratified except one was ratified
in our time, not theirs.
That's -- it is a bad joke on the Constitution to be honest,
but it's a trivial clause, so it doesn't matter I guess.
Time stamp Just the larger question and this is in relation to Mason.
I go out to Gunston Hall, Nevada.
I was just there last fall.
If you guys haven't been there, everybody should go.
But I think Madison and Washington got very fed up with Mason.
You know, Mason was a very smart guy, but he's also kind of cranky.
He was -- he had a strong ego concept.
He gets -- I think he gets a little irritated
by the end of the convention.
They're trying to placate him, but it doesn't work.
So they get -- I think they were actually pretty annoyed with him
for not -- you know, he's been a very active part of convention.
He's been very supportive of the general issue,
but he gets his dander up on a few issues and decides
to become an anti-federalist.
>> Jim Hutson: Yeah, didn't he say that he could write a Bill of Rights
in a couple hours or something like that at the end?
>> Jack Rakove: Yeah.
He'd probably been copying his own, you know, copy the one he'd done
for Virginia, which Madison -- first thing Madison does of course is get
that Bill of Rights significantly amended and the religion article.
>> Time for one last question.
>> Jim Hutson: One more.
>> [Inaudible] both Madison and Jefferson face ruin.
Can you talk a little bit about Madison's situation?
>> Jack Rakove: Well, it wasn't great.
You know it's a nasty situation was compounded by his step-son who was,
you know, Dolly's surviving son from the Yellow Fever epidemic who was --
and I'm blanking on his first name now.
>> Jim Hutson: John, John Payne.
>> Jack Rakove: John Payne, who was a complete wastrel in the style
that had become so popular
in the southern plantation south during the antebellum period.
So that's factor number one.
Factor number two is Jefferson describes Madison
as America's most scientific farmer.
So I think, you know, once he does become a --
you know, once he takes over the plantation
from his father -- his father died in 1801.
Once Madison takes over the plantation and then
of course once he goes there in retirement in 1817,
he was a pretty serious farmer.
So he's working hard to keep the enterprise going, but three, he and,
ou know, most other planters are -- you know, they're locked into a kind
of tobacco crop economy, which is no longer profitable.
They do exist at this debt structure that had been a major part
of the plantation economy since -- if not since time immemorial;
at least for you know a few generations.
And fourth of course, they had leads to the --
you actually see what Drew McCoy talks about in his book The Last
of the Fathers that slaves may well have understood that, you know,
the death of the master might mean not only a change in the, you know,
in the regime on the plantation, it might lead to its breaking up,
which would have horrendous consequences for them of course
because they have no security about the stability
or you know the keeping their families together.
So as Susan Dunn's written about this book, I mean a number
of scholars have written about the break up of the upper south economy,
you know that it's, you know, compared to, you know,
rice and indigo in South Carolina or, you know,
cotton in the great cotton kingdom.
The upper south's -- you know, the agricultural economy is fading
and fading badly, maybe not by the end of the 18th century,
but certainly by the early 19th century.
And, you know, Madison and Jefferson are part of that process.
But then, you know, you have to, you know -- goes back to the question,
you know, Jim missed earlier, you know, you have to reflect
on their position about slavery.
You know, they're -- I mean Jefferson's case,
because Jefferson is such a conspicuous consumer.
You know Jefferson, I mean given the choice between --
I mean Jefferson is kind of an endless projects
of home improvement at, you know, Monticello.
Madison is pretty ambitious for Montpellier.
By the way, since I'm on the board at Montpellier,
you should all visit there and hopefully go --
well, if you haven't been there recently,
you know the house has been reconstructed back
to Madison's period, the DuPont rooms were taken down.
What you see now is the plantation that looks much more
like Madison's mature plantation.
It's a great site and for me, it's a great place to go because as I said
when I said when you go there, it's to my way of thinking,
it's so completely isolated.
I mean it's only 100 miles from where we are now.
Or actually less than that; probably more
like 75 miles from where we are now.
So it's not that far away except for the 18th century.
It's kind of the middle of nowhere.
And so to go there and think about Madison emerging
from this plantation to me is always --
well, personally it's kind of a moving experience
because I associate my scholarship so strongly
with his life and career.
So --
>> Jim Hutson: Well, thanks very much everybody.
It was a good discussion.
[ Applause ]
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