James Madison, the Federal Negative, and the Making of the U.S. Constitution On June 8th, 1787, at the Constitutional Convention in Philadelphia, delegates from across the United States began discussing a curious proposal to expand federal power over the states. James Madison of Virginia had suggested that the new constitution include a federal negative, which would give Congress the authority to veto any law passed by a state legislature. He viewed this as a critical safeguard against unchecked power at the state level. In late May, Madisons Virginia delegation had presented a plan for the constitution that included a watered-down version of the federal negative. Now, in June, Charles Pinckney of South Carolina revived the original version, calling it the corner stone of an efficient national Government. Not everyone agreed with Pinckneys assessment, however. Opponents charged that Madisons federal negative would allow Congress to enslave the states and let large States crush the small ones.Indeed, the question of how much power – and what types of power – to vest in the federal government went to the very heart of the debate that unfolded in Philadelphia that summer. The Constitutional Convention of 1787 capped a tumultuous period in American history. In 1783, after eight years of war, Britain formally recognized its former colonies as the independent United States of America. Within just a few years, however, the triumphant Americans found themselves facing calamities on many fronts, ranging from federal insolvency and widespread economic recession to an armed rebellion in western Massachusetts. Said George Washington, the hero of the Revolutionary War, I am really mortified beyond expression that in the moment of our Acknowledged Independence we should, by our conduct, verify the predictions of our transatlantic foe, and render ourselves ridiculous and contemptible in the eyes of all Europe. Sharing Washingtons frustration and embarrassment, James Madison came to believe that the economic and social turmoil plaguing America in the mid-1780s could be traced to defects in the Articles of Confederation, which had been adopted as the nations governing document in 1781. After extensive research on past republics and confederacies, Madison concluded that the theory of state sovereignty underlying the Articles was deeply flawed: lodging nearly all power in the states was a recipe for disaster. What was needed, Madison argued, was an entirely new constitution that would create a strong but limited central government with well-defined powers, including the power to veto state laws. Whether Madison could persuade his fellow delegates at the Constitutional Convention was Professor David Moss and Research Associate Marc Campasano prepared this case. This case was developed from published sources. Funding for the development of this case was provided by Harvard Business School and not by the company. HBS cases are developed solely as the basis for class discussion. Cases are not intended to serve as endorsements, sources of primary data, or illustrations of effective or ineffective management. Copyright © 2016, 2017 President and Fellows of Harvard College. To order copies or request permission to reproduce materials, call 1-800-545- 7685, write Harvard Business School Publishing, Boston, MA 02163, or go to www.hbsp.harvard.edu. This publication may not be digitized, photocopied, or otherwise reproduced, posted, or transmitted, without the permission of Harvard Business School. 716-053 James Madison, the Federal Negative, and the Making of the U.S. Constitution far from clear, but there could be little doubt how much was at stake as the new nation struggled to find its footing in Philadelphia. Toward a New Nationa The United States began as thirteen British colonies located along the eastern seaboard of North America. The region possessed an abundance of natural resources – especially land – and the typical colonist lived well by world standards. One prominent historian maintained that as of 1774 the colonists living standards were probably the highest achieved for the great bulk of the population in any country up to that time. Between 1650 and 1750, the population of the North American colonies increased from 50,000 to nearly 1.2 million, even as the Native American population fell sharply, particularly as a result of disease. By 1770, the colonial population had nearly doubled again, reaching over 2 million (see Exhibit 1). More than three-quarters of the colonial population worked in agriculture, and about two-thirds of white male farmers owned their own land. Blacks, nearly all of whom were slaves, comprised about one-fifth of the colonial population as of 1770. Although slavery was legal in all of the colonies, most slaves worked in the South, typically cultivating rice and tobacco for export. Cotton was not yet an important crop. Although disputes occasionally arose between the colonies and the mother country, before the 1760s they were few and far between. The British Government controlled trade and foreign policy, but otherwise left the colonists a great deal of authority over their own affairs. Although in principle most colonies were run by governors appointed by the British crown, in practice the colonies elected assemblies enjoyed considerable power and discretion. Apart from a few import duties that were set in Britain, these assemblies decided local tax policy themselves. The colonists were legally required to trade within the British Empire in most cases but still benefitted from guaranteed markets for their agricultural products, from access to English manufactured goods, and from the protection of the British military. Taxation without Representation This mutually beneficial relationship began to deteriorate only as the British felt new financial pressures in the 1760s. After concluding a very long but ultimately successful war against French and Native American forces on North American soil in 1763, the British Government determined that the colonists were vastly under-taxed. Compared to citizens of the British Isles, the American colonists paid next to nothing in taxes. British officials, who faced a dramatically enlarged national debt after the French and Indian War, believed that the Americans should begin to share the costs of their own defense (see Exhibit 2). In 1764, therefore, the British Parliament passed the Sugar Act, which placed new regulations on the colonial sugar trade and imposed heavy taxes on a number of popular colonial imports, including wine and silk. Although some New Englanders attempted to fight the edict by refusing to buy British goods, their non-importation campaign failed to achieve widespread acceptance. The colonists response was far more dramatic the following year, when the British passed the Stamp Act, which levied taxes on nearly all types of colonial documents from newspapers to licenses. Incensed colonists reacted violently, burning effigies of British officials and physically threatening tax collectors. In most a Portions of this case borrow heavily from David Moss, Constructing a Nation: The United States and Their Constitution, 1763- 1792, HBS Case No. 9-795-063 (Boston: Harvard Business School Publishing, 1994). 2 James Madison, the Federal Negative, and the Making of the U.S. Constitution 716-053 ˇ places, the colonists tactics effectively blocked implementation of the Stamp Act. The non-importation campaign also took on new life during the crisis and began exacting a heavy toll on British exporters. In the emerging rebellion, the colonists coalesced around the principle of no taxation without representation. The British Parliament had seized the power to tax from the monarchy in the Glorious Revolution of 1688, and this right was often celebrated as a foundation of British freedom and parliamentary democracy. The colonists viewed the new taxes in North America as a violation of these same ideals because they had no elected representatives in Parliament. The British government strenuously disagreed, claiming that the colonies did have a voice in Parliament through the principle of virtual representation. This idea, championed by Chancellor of the Exchequer George Grenville, suggested that each Member of Parliament represented the entire empire, not only those who voted him into office.8 Although Parliament bowed to political pressures at home and repealed the Stamp Act, the conflict was by no means over. British military commanders in North America began redeploying troops from the interior to the coastal cities in response to the colonists increasingly organized resistance. Meanwhile, Parliament passed the Townshend Acts in 1767, which levied a variety of new taxes on colonial imports, riling the colonists once again. By 1770, tempers were so short in Boston that nervous British troops fired on an unruly group of demonstrators, killing five of them. The Boston Massacre only further inflamed the colonists feelings of injustice and mistrust. After yet another tactical retreat in 1770, involving the repeal of most of the Townshend duties, Parliament passed the Tea Act in 1773. The Tea Act offered special advantages to British traders who re-exported tea to the colonies. Its primary purpose was to eliminate smuggled Dutch tea from the American market and thus bolster Britains troubled East India Company. As a byproduct, it also severely undercut New England merchants who had enjoyed a lucrative trade in smuggled tea, and it effectively re-imposed an existing tax on tea imports, which the smuggling operations had circumvented. Convinced that these new British rules further infringed on their independence, the colonists again resorted to violence. They threatened incoming ships carrying tea, and, one night in December, dramatically dumped 105,000 pounds of British tea cargo into the Boston Harbor. Outraged at the Boston Tea Party, the Royal Government immediately shut down Bostons port and attempted to place Massachusetts under military rule. Declared King George III, The die is now cast. The Colonies must either submit or triumph.9 As the King suspected, dissent was now spreading rapidly and threatening to become a full-scale rebellion. In September 1774, representatives from twelve colonies (all except Georgia) met in Philadelphia for a Continental Congress, which quickly revived and intensified the non-importation campaign. Massachusetts citizens began establishing their own governmental institutions the very same year. The growing resentment between the Americans and the British came to a head on April 19th, 1775, when the first shots of the American Revolution were fired just outside of Boston, on the Lexington town green. To their astonishment, British military leaders soon discovered that the American rebels – though highly unconventional and undisciplined by traditional standards – constituted a formidable challenge. Managing the War Effort By the time the American colonists formally declared their independence from Britain on July 4, 1776, the philosophical question about what form of government was best had become a pressing practical one. British administrative structures began crumbling in the early 1770s as the rebellion took hold, leaving the colonists little choice but to erect new governmental institutions. Revolutionary 3 716-053 James Madison, the Federal Negative, and the Making of the U.S. Constitution leaders in most states established ad hoc legislative bodies in order to raise taxes and form militias. Through the pivotal year of 1776, seven states adopted formal constitutions, and most of the others soon followed. By embracing these new legal frameworks, Americans had discovered a way to legalize revolution.10 Significantly, all of the state constitutions were grounded on the principle of popular sovereignty and, in most cases, extended suffrage to all white males who owned at least a small amount of property.11 Although most governmental authority and responsibility remained firmly lodged at the state level, the Continental Congress played an important role in coordinating the war effort against Britain – for example, by creating the Continental Army and appointing George Washington of Virginia as its Commander-in-Chief. Over the course of the war, the army never reached the full strength that many national leaders envisaged.12 The American people largely distrusted centralized military power, especially given their experience under British rule. Reflecting this anxiety (and adding to the challenge of managing the war effort), the Americans fielded at least fourteen distinct force structures during the war: the thirteen state militias and the Continental Army.13 Financing the war effort proved equally challenging, especially because it was unclear whether the Continental Congress had the legal authority or the popular support necessary to levy taxes. Perhaps as a consequence, Congress initially financed the war at least in part through extensive issues of paper money (see Exhibit 3). The bills, known as Continentals, were ostensibly backed by future tax revenues rather than gold or silver. From 1775 until 1780, when the printing stopped, Congress had issued well over $200 million in paper currency, triggering severe depreciation and bringing the phrase not worth a Continental into common parlance (see Exhibits 4 and 5).14 The scientist and statesman Benjamin Franklin, however, argued that the inflation was not such a bad thing: The general Effect of the Depreciation among the Inhabitants of the States, has been this, that it has operated as a gradual Tax upon them. … Thus it has proved a Tax on Money, a kind of Property very difficult to be taxed in any other Mode; and it has fallen more equally than many other Taxes, as those People paid most who being richest had most Money passing thro their Hands.15 Although issues of paper money covered a large portion of federal spending until 1780 (see Exhibits 3-6), the Continental Congress also financed the war through borrowing – particularly from France, Spain, and Holland, but also from domestic creditors. Because investors were naturally wary about loaning large sums to a new government, interest rates rose as wartime borrowing accelerated.16 Like Congress, most states initially tried to avoid levying taxes, relying instead on paper money to finance the war effort. As inflation rose, however, many states finally began imposing higher taxes. In some cases, wartime taxes exceeded those collected under British rule, provoking citizens to protest, evade payment, and even sometimes riot. Ultimately even these higher taxes proved insufficient, forcing states to rely on extensive borrowing and, in some cases, continued use of the printing press to finance the war.17 Forging a Confederation As early as 1775, a number of political leaders, including Benjamin Franklin, had suggested that the authority of the Continental Congress should be grounded in a written constitution. Lawmakers began working on such a document in June 1776, based on the general understanding that the states would be left to manage their internal affairs while Congress would handle foreign affairs. Several significant points of contention emerged during the drafting process, however, including whether more populous states would have more votes in Congress and whether slave populations would be counted when calculating each states share of wartime expenses. 4 James Madison, the Federal Negative, and the Making of the U.S. Constitution 716-053 As the summer of 1776 came to a close, the drafting process was largely put aside – in part because several core issues remained contentious, but also because the military situation was becoming increasingly dire.18 British forces seized control of New York City in September, and the city became a stronghold for colonists loyal to Britain. General Washington fled with his troops to Pennsylvania, but over the winter captured Trenton and Princeton in New Jersey. In October 1777, the British took Philadelphia, the nations capital, but this victory proved costly to the British in both money and lives as a result of their generals poor coordination and George Washingtons clever maneuvering. Although Washingtons army faced starvation conditions at Valley Forge in Pennsylvania that winter, the Americans strategic position had already begun to improve in October of 1777, when the American General Horatio Gates succeeded in halting a British army descending from Canada in the Battle of Saratoga.19 That same month, members of the Continental Congress resumed work on a governing document. Worsening inflation as well as the potential for an alliance with France renewed the desire for a formal accord to undergird and clarify Congresss authority. Lawmakers ultimately resolved their differences by agreeing that each state would have one vote in the unicameral Congress, war expenses would be distributed based on the value of each states land and improvements, and Congress would not manage state boundaries or western lands. Representatives finally completed drafting the document, called the Articles of Confederation, in mid-November 1777.20 As the war gradually turned in the Americans favor, individual states began ratifying the Articles. Virginia moved first, approving the document near the close of 1777, and Maryland completed the process as the last state to ratify in early 1781.21 Just seven months later, the British Commander Lord Cornwallis found himself surrounded by American forces and their newfound French allies, and he surrendered to General Washington at Yorktown, Virginia, on October 19, 1781.22 Although the war was not yet officially over, it was now rapidly winding down, and the victorious Americans increasingly turned their attention to matters of domestic governance. A Firm League of Friendship The Articles of Confederation, which announced that each state retains its sovereignty and that together the states would form a firm league of friendship with each other, vested limited authority in a national Congress without creating either a chief executive or a judiciary. Specifically, the Articles conferred upon Congress the authority to borrow as well as the exclusive power to declare war, to enter into treaties and alliances, to settle disputes between the states, to regulate weights and measures, and to oversee a national postal system. Nowhere, however, did the Articles grant the national government superiority relative to the states or the means to compel them to follow its laws. Although the Articles placed relatively few restrictions on the states, there was a clear attempt to prevent them from discriminating against each others citizens. The people of each state, the document declared, shall be entitled to all privileges and immunities of free citizens in the several States; and … shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof.... Significantly, the Articles also left virtually all control over both foreign and interstate commerce with the states, rather than with Congress. While permitting the various states to collect taxes and impose tariffs, and requiring the federal government to honor its war debts, the Articles did not grant Congress the power to levy taxes. Instead, according to the Articles, All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be 5 716-053 James Madison, the Federal Negative, and the Making of the U.S. Constitution defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State. Finally, in terms of representation, the Articles granted each state delegation one vote in Congress and mandated that the members of each delegation (who could not hold office for more than three years out of six) shall be annually appointed in such manner as the legislature of each State shall direct. On important bills, nine votes out of thirteen would be necessary for passage, and unanimous consent of the states would be required in order to amend the Articles themselves. A Critical Period Although 1781 was a glorious year for the young United States, with the victory at Yorktown and the ratification of the Articles of the Confederation, the struggle to establish a viable nation had only just begun. Indeed, the new nation faced enormous challenges after the war came to a close. One of Harvards student commencement speakers in 1787, John Quincy Adams, declared that during this critical period, Americans found themselves groaning under the intolerable burden of ... accumulated evils.23 Similarly, John Jay of New York had warned in a letter to George Washington the previous year, Our affairs seem to lead to some crisis, some revolution—something that I cannot foresee or conjecture. I am uneasy and apprehensive; more so than during the war. … The case is now altered; we are going and doing wrong….24 Anxiety was in the air during this critical period, and with good reason. Congresss Limited Power One of the first major problems to become apparent, even before the war officially ended, was the appallingly weak financial position of the new federal government. Congress had accumulated $27 million in debt during the war.25 Yet under the Articles it was unable to impose national taxes or force the states to provide funds. In 1781, Congress collected only $422,000 of $5 million requested from the states, with no contribution at all from Georgia, North or South Carolina, or Delaware.26 Two years later, after persistent attempts to put Congresss fiscal house in order, Superintendent of Finance Robert Morris asked to be dismissed from his position, writing in frustration, It can no longer be a doubt to Congress that our public credit is gone.27 Congress could not pay its expenses, or its debts, without reliable income. Soldiers expecting payment for their wartime service were particularly alarmed, and several officers in Newburgh, New York, even threatened mutiny until George Washington himself intervened, delivering a moving speech to his officer corps in defense of the republic. Although a frightened Congress temporarily calmed the waters by enacting an expansive military pension in 1783, Pennsylvania soldiers who were tired of waiting for compensation literally ran Congress out of Philadelphia later that same year.28 Lacking funds well into the decade, Congress repeatedly defaulted on its debt obligations, both foreign and domestic.29 At the urging of anxious creditors, Congress began transferring some of its debt burden into the more capable hands of the states. Several states had already been contributing to cover a portion of the debt since 1780, and many state leaders viewed the assumption of the national debt as an expression of the right to take care of [their] subjects.30 By the middle of the decade, Pennsylvania, Maryland, and New York alone had assumed $9 million dollars of the national debt. Because states had the authority to tax their citizens, most were more successful at managing this debt than Congress had been. Congress did resume some interest payments in 1784, but paid creditors in new certificates rather than specie (i.e., gold or silver). These certificates—essentially a replacement of new debt for old—were naturally unpopular with recipients and quickly depreciated in value.31 6 James Madison, the Federal Negative, and the Making of the U.S. Constitution 716-053 Congresss weakness under the Articles was also evident in its inability to enforce the terms of the Treaty of Paris, the peace agreement between Britain and the United States that officially brought the war to a close in September 1783.32 With Congress lacking any real coercive power, the states defied important provisions of the treaty designed to protect loyalists from abuse and ensure payment of private debts to British creditors. Furious about these blatant violations, the British retaliated by keeping troops garrisoned in frontier forts on American soil, also in clear contravention of the treaty.33 Beyond treaty violations, the states frequently flouted the Articles of Confederation – for example, by enacting laws that discriminated against out-of-state merchants. As a case in point, New York laid heavy duties on New Jersey and Connecticut merchants who shipped their products to New York City, provoking retaliatory sanctions from the affected states.34 In fact, numerous states had begun imposing tariffs on their neighbors, dramatically impeding interstate commerce.35 Beggar-thy-neighbor policies at the state level also sharply limited American effectiveness in negotiations over international trade. Because Congress lacked the power to impose tariffs and thus to retaliate against trade protection, it lacked the necessary bargaining power to negotiate a reasonable trade treaty with a foreign power. In fact, the British Government simply refused to negotiate with Congress at all, recognizing early on that Congress was virtually powerless and that the various states could easily be played off against one another. The result was that British goods poured into the states while American exports to Britain remained severely depressed by pre-war standards (see Exhibit 8). American commercial interests actively looked for alternative markets, particularly in Continental Europe, but they faced the same obstacles again and again. As John Adams, the American liaison to Great Britain (and John Quincy Adamss father), struggled to respond to Britains aggressive posture, he fretted that a sound commercial standing for the United States would never be secured until Congress shall be made supreme in foreign commerce.36 Immediately after the war, several nationalist politicians who worried about the consequences of an enfeebled Congress had suggested enhanced powers for the national government. In his role as Finance Superintendent, for example, Robert Morris of Pennsylvania proposed several amendments to the Articles that would have authorized national taxes, and James Madison of Virginia supported an amendment to grant Congress the power to employ the force of the United States as well by sea as by land to ensure compliance with national laws.37 Such proposals, however, consistently failed to win the unanimous consent of the states that was required to amend the Articles (Rhode Island, sometimes referred to as Rogue Island, was a frequent dissenter), and the nationalists energy soon faded after 1783, at least temporarily.38 Other critics of Congress, meanwhile, harbored even more radical ideas for restoring order. In the middle of the military pension dispute, Colonel Lewis Nicola wrote to George Washington about the officers grievances. Most famously, he suggested that an American monarchy be erected with Washington as king. Washington responded that if Nicola had any regard for your Country, concern for yourself or posterity—or respect for me, to banish these thoughts from your Mind and never communicate, as from yourself, or any one else, a sentiment of the like nature.39 Recession and Rebellion Amidst such political turmoil – and perhaps in part because of it – the American economy soon took a turn for the worse. Historians continue to debate the extent of the economic downturn in the mid 1780s, but nearly all agree that it was a difficult period and some believe that the downturn may have been extremely sharp. The most pessimistic estimates suggest that per capita GNP fell by more than half. If so, then the economic collapse in the mid-1780s was even worse than that experienced between 7 716-053 James Madison, the Federal Negative, and the Making of the U.S. Constitution 1929 and 1933 (the worst phase of the Great Depression). According to two scholars of the period, While the extent of the reduction in gross national product remains uncertain, it is clear that per capita product fell and that it fell enough to affect all levels of society.40 One consequence of the downturn is that many individual debtors found it difficult to make good on their obligations. Their woes were only compounded by the fact that the federal government, as well as a number of states, had fallen behind on servicing their own debts, leaving many former soldiers who had accepted bonds and certificates as payment for their wartime service in a tough financial squeeze. Many of these former soldiers had no choice but to sell their government certificates to speculators at deep discounts. In Massachusetts, for example, a farmer who had served in the Revolutionary War complained in a local newspaper that neither vendors nor workers would accept the government notes at par. [T]he necessities of my family, he lamented, obligated me to alienate [the notes] at one quarter part of their original value.41 Adding to the burden, many state governments raised taxes to pay off war debts, pushing numerous taxpayers with heavy financial commitments of their own to the breaking point.42 With countless farmers petitioning for debt relief, several state legislatures responded around 1786 by issuing substantial amounts of paper money, thereby allowing debtors to repay their debts in inflated currency. Rhode Island took the policy to its logical extreme, inducing rapid inflation and imposing penalties on creditors who refused to accept payment in the sharply depreciated paper money. Within a year, Rhode Islands paper dollar was worth only 16 cents in gold.43 Although other states exercised more restraint, creditors across the country claimed that their property was being confiscated as a result of the inflationary policies.44 In Virginia, James Madison warned that paper money affects the Rights of property as much as taking away equal value in land.45 In contrast to Rhode Island, neighboring Massachusetts remained committed to both fiscal and monetary conservatism. The state legislature raised taxes to repay its debts and resolutely avoided a policy of inflation. The resulting pressure on small farmers was enormous, and many lost their property in court-ordered foreclosures. One former Revolutionary officer, Daniel Shays, was so angry about the plight of farmers in the state that, starting in the late summer of 1786, he helped to lead a growing rebellion in western Massachusetts, its ranks eventually surging to over 2,000 men. One goal of the rebels was to prevent the courts – through either force or intimidation – from seizing the delinquent farmers property. Although rumors circulated that the rebels intended to unseat the state government, nothing of the sort ever happened and the uprising was ultimately put down in early 1787. There is little doubt, however, that the newly elected legislature in Massachusetts heard Shays message, for they quickly passed a variety of relief measures including a moratorium on debts.46 In the minds of many Americans, moreover, the crisis in Massachusetts epitomized all that was wrong with the new Confederation. Economic elites who had never been very comfortable with the idea of broad-based democracy wondered whether they were headed for a future of class warfare and even mob rule. George Washington saw the whole episode as a terrible embarrassment: To be more exposed in the eyes of the world and more contemptible than we already are, is hardly possible, he lamented.47 Particularly after the nations extraordinary triumph over the British, what could explain its shocking fall from grace in the eyes of so many Americans, including the hero of the Revolution himself? Madisons Diagnosis This question of what had gone wrong captivated James Madison, a Virginia statesman who had been active in both national and state politics throughout the revolutionary and postwar eras. Born in 8 James Madison, the Federal Negative, and the Making of the U.S. Constitution 716-053 1751 into an affluent slaveholding family,b Madison has been described as possessing a keen and inquiring mind coupled with a voracious intellectual appetite.48 He attended the College of New Jersey, which later became Princeton University, and went on to study with its president, John Witherspoon. Although physically diminutive and reserved in personality, Madison had a penchant for politics and political battles. Frustrated upon returning from New Jersey in the early 1770s that his own Virginia Anglican Church was a source of intolerance against other denominations, he furiously denounced its diabolical, hell-conceived principle of persecution.49 Not long afterward, as the rebellion against Britain took hold, Madison began to assist county and state governments, and at the age of 25 helped to write Virginias state constitution.50 Elected to the Continental Congress in 1780, Madison had borne witness to its various deficiencies, and he was disappointed when his nationalist projects failed to take hold. After rejoining the Virginia legislature in 1784, he and his allies successfully defeated proposals both to declare Christianity the state religion and to expand issuances of paper money. Nevertheless, the mere existence of these movements likely contributed to his growing unease about the direction of American politics.51 In March 1784, Madison asked his friend Thomas Jefferson, then in Paris on a diplomatic mission, to send him whatever books may throw light on the general Constitution and droit public [public law] of the several confederacies which have existed.52 Madison reasoned that by understanding why past confederations had succeeded or failed, he could better identify what ailed the American confederation. By January 1786, he had received two trunks of books in English, French, and Latin at Montpelier, his familys plantation estate.53 Sitting in his library, Madison began working through the books, conducting a thorough historical review spanning thousands of years. The lessons he gleaned would shape his thinking on the young American republic as well as his arguments at the Constitutional Convention in Philadelphia the following year. History as a Guide The books on Madisons reading list included, among others, recent French works in the Enlightenment philosophe tradition and numerous classical Greek texts.54 The confederations he surveyed ranged from the Amphyctionic and Achaean confederacies of ancient Greece to the Belgic confederacy in the Netherlands (also known as the United Netherlands), which was still in place in the 1780s. Madison took careful notes on each confederations structure and operations, specifically commenting on the deficiencies he perceived in each. He noted that several confederation governments had been unable to control their members, even in policy areas where they held explicit authority. For example, he pointed out that Athens and Sparta had waged their many wars against each other while co-members of the Amphyctionic confederacy, despite the federal authoritys prerogative to mediate such conflicts.55 The central authority of the Belgic confederacy, meanwhile, had to consult 52 different cities—and sometimes procure their unanimous consent—when negotiating any treaty, causing long delays and easy manipulation by foreign powers. With each member city able to hold up the whole, the confederacy proved exceedingly slow in enacting policies. Madison believed that such [a] weak constitution must necessarily terminate in dissolution for want of proper powers.56 b Although Madison would later speak out against slavery, he never freed his own slaves. Significantly, he also wrote a precursor to the infamous Three-Fifths Compromise as a proposed amendment to the Articles of Confederation, though the provision was not adopted. 9 716-053 James Madison, the Federal Negative, and the Making of the U.S. Constitution Vices of the Political System of the United States Having completed his historical investigation of confederations from around the world, Madison began preparing a critique of the new confederation in America. The resulting 1787 document, entitled Vices of the Political System of the United States, identified a range of national failings and attributed them to deficiencies radically and permanently inherent in … the present System.57 He began by highlighting the states persistent violations of the Articles of Confederation, such as their breaches of international treaties and their regular refusal to honor Congresss requests for funds. Although Madison criticized the states for these actions, he mainly faulted the Articles for denying the national government the capacity to enforce its policies. The authors of the Articles, he wrote, had trusted too much that the justice, the good faith, the honor, [and] the sound policy58 of the state legislatures would obviate the need for such enforcement power at the federal level. A sanction is essential to the idea of law, as coercion is to that of Government, he explained, and without either he believed the existing system had little to recommend it.59 Even the state legislatures constitutional actions, Madison lamented, had often undercut the national interest. He complained that the states had regularly failed to pursue concert in matters where public interest require[d] it, particularly in setting uniform commercial policies.60 Instead, they had passed laws to limit interstate trade or to support debtors at the expense of out-of-state creditors, which pit states and citizens against each other in a manner Madison called destructive of the general harmony.61 In the final section of Vices, Madison went beyond merely listing the countrys problems and proposed an explanation as to why there had been so much injustice in the states laws (see Appendix).62 In doing so, he rejected the traditional assumption – perhaps most strongly associated with Montesquieu and his studies of the ancient Greek republics – that republican government worked best on a small scale.63 Madison began by observing that all communities contained various factions such as economic classes, religious groups, and political parties. If a single faction, or a small concert of factions, won control of a legislature, what [was] to restrain them from unjust violations of the rights and interests of the minority, or of individuals? Madison suggested that small republics, with less competition among political groups, were more vulnerable to this problem of tyranny of the majority. In large republics, by contrast, [t]he Society becomes broken into a greater variety of interests, of pursuits, of passions, which check each other, whilst those who may feel a common sentiment have less opportunity of communication and concert. With diverse factions tempering each others influence, he suggested, a larger republics legislature would enact sounder and fairer policies. Implicit throughout Vices was Madisons longing for constitutional reforms that would strengthen the national government and expand its influence over the states. He clearly articulated his desire to grant Congress powers of sanction and coercion.64 But his frustrations about the states failure to work together implied that the federal government required not only greater enforcement power, but also a broader span of authority. Notably, he wished to see an enlargement of the sphere of democratic policymaking to weaken the influence of faction, implying a shift in power from the state to the national level.65 Such changes would be impossible under the current system, however, because the states sovereignty, freedom, and independence were enshrined in the Articles of Confederation.66 Madison thus intimated that only fundamental changes to the nations constitution— or perhaps a completely new one—would be sufficient to correct the republics flaws. 10 James Madison, the Federal Negative, and the Making of the U.S. Constitution 716-053 Vision for a New Constitution By the time he completed Vices, Madison had begun describing potential constitutional reforms in his correspondence with other national leaders.67 Together, these proposals comprised a program that would lead to such a systematic change in American governance, he wrote, that it would replace, rather than merely alter, the Articles of Confederation.68 Madisons proposed system would be built on a due supremacy of the national authority and would leave the states with enough power to be subordinately useful.69 To that end, he sought to grant the national government positive and compleat authority in all cases which require uniformity, such as the setting of trade regulations and customs rates.70 This federal supremacy would extend to new judicial and executive branches of the national government, each superior to the analogous state institutions. To further bolster the national governments authority, Madison proposed a right of coercion against delinquent states that would enable the federal government to carry out its laws by force.71 As a further check on the states, Madison proposed that Congress hold a veto over state laws in all cases whatsoever.72 He explained his reasoning in a letter to Jefferson: The effects of this provision would be not only to guard the national rights and interests against invasion, but also to restrain the States from thwarting and molesting each other, and even from oppressing the minority within themselves by paper money and other unrighteous measures which favor the interest of the majority.73 Madison believed that this veto, which scholars call the federal negative, was essential to Congresss supremacy under his model.74 Without this defensive power, he warned, every positive power that can be given on paper will be evaded and defeated.75 In addition to suggesting new powers for Congress, Madison also recommended modifications to its structure and mechanisms of representation. His proposal would split the existing unitary Congress into two houses: one elected by the people or state legislatures and another to consist of a more select number, holding their appointments for a longer term.76 Within those houses, Madison desired a change [to] be made in the principle of representation to foster greater equality between the states.77 Although each state was nominally equal in Congress under the Articles one-state-one-vote system, the larger states had always enjoyed more clout in national affairs due to their legislatures greater weight and influence.78 Madison hoped to see these inequalities reduced under a system…which would operate without the intervention of the State legislatures.79 The Constitutional Convention of 1787 An emerging national consensus for constitutional reform would soon give Madison the chance to present his ideas on a national stage.80 In 1785, as the individual states struggled against Britains trade laws, support had grown for an amendment to the Articles of Confederation that would grant Congress new powers over international trade. At Madisons recommendation, a convention met the following September in Annapolis to discuss such an amendment, but only five states sent representatives who arrived in time to participate.81 Although the conference remained brief because of sparse attendance, the conferees suggested that another meeting be held the next year to discuss a wider array of constitutional issues. Congress sat on this recommendation for months. Some observers say that it was ultimately propelled to action only by fears of general unrest stemming from Shays 11 716-053 James Madison, the Federal Negative, and the Making of the U.S. Constitution Rebellion. Whatever the cause, Congress in February 1787 formally called for a new convention in Philadelphia for the sole and express purpose of revising the Articles of Confederation.82 Madison was one of 55 delegates who attended the Convention that began on May 25. George Washington presided over the Convention, and every state except Rhode Island sent a delegation. Seated in a central location from which he could easily hear all members and take detailed notes, Madison was a leading contributor to the discussions.83 Throughout the debates, he shared the theories he had derived from his extensive study of republics and confederacies, and peppered the debate with arguments he had rehearsed in Vices of the Political System. Georgia delegate William Pierce described Madison as blend[ing] together the profound politician, with the Scholar… the best informed Man of any point in debate.84 Madisons outsized influence over the Convention was further enhanced by his Virginia delegation, which presented a preliminary outline for the new constitution, inspired heavily by Madisons own recommendations. The Virginia Plan, as it became known, dominated early discussions at the Convention. The Structure of the New Government under the Virginia Plan The Virginia Plan included Madisons proposal for a bicameral Congress, specifying that the American people would elect representatives to the lower house, who in turn would select members of the upper house from candidates nominated by the state legislatures. State representation in Congress would be proportioned to the Quotas of contribution [taxes], or to the number of free inhabitants.85 The delegates quickly agreed to the bicameral structure, but remained at odds over how to select the members of each house.86 Some delegates worried about giving the people too much power. According to Elbridge Gerry of Massachusetts, the United States already suffered from an excess of democracy. The people of his home state, he asserted, had been misled into the most baneful measures and opinions by pretended patriots, and these episodes had convinced him of the dangers of too much democracy.87 Agreeing that the people were unqualified to choose their congressmen, South Carolinas Charles Pinckney proposed that the selection of the lower house be left to the state legislatures instead.88 Supporters of a popularly elected house, meanwhile, were quick to invoke democratic ideals in its defense. It was only just, Virginias George Mason argued, that every class of the people be represented in the government.89 Madison, responding to Pinckneys proposal, spoke at length on his theory of faction and the virtues of a large republic. He repeated the criticisms of faction-prone state legislatures that he had developed in Vices. Keeping state politics out of the lower house of Congress, he maintained, would enlarge the sphere, ensuring a greater variety of interests.90 Ultimately, Madison and his allies prevailed on this issue: Pinckneys proposal was rejected, and control over selecting the lower house was placed in the peoples hands. The Senate (as the conferees called the upper house) would be built on less democratic principles. Many delegates envisioned the Senate as the more careful and deliberative house, containing the most distinguished characters, distinguished for their rank in life and their weight of property.91 Madison predicted that the Senate, given its makeup, would stand as a vital bulwark against tyranny of the majority, even as American society evolved and (in his estimation) the proportion of poor laborers increased over time: In framing a system which we wish to last for ages, we shd not lose sight of the changes which ages will produce. An increase in population will of necessity increase the 12 James Madison, the Federal Negative, and the Making of the U.S. Constitution 716-053 proportion of those who will labour under all the hardships of life, and secretly sigh for a more equal distribution of the blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. No agrarian attempts have yet been made in this Country, but symptoms, of a leveling spirit … have sufficiently appeared … to give notice of the future danger. How is this danger to be guarded agst on republican principles? How is the danger in all cases of interested coalitions to oppress the minority to be guarded agst? Among other means by the establishment of a body in the Govt sufficiently respectable for its wisdom and virtue, to aid on such emergences, the preponderance of justice by throwing its weight into the scale.92 Although the delegates largely agreed on the desired character of the Senate, there was considerable debate over how members of the upper house should be selected. Mirroring Pinckneys earlier idea for the lower house, John Dickenson of Delaware suggested that the state legislatures should select their senators, asserting that [t]he preservation of the States in a certain agency is indispensable.93 He hoped that the Senate, selected in this way, would be a body through which the states could exert an additional check on federal power. Madison opposed Dickensons suggestion because he preferred a small Senate comprised of just a few elite leaders. Under Dickensons proposal, the smallest states would each have at least one senator and, because Madison and his Virginia colleagues favored proportional representation, larger states would require proportionally larger numbers of senators, as in the lower house.94 The Virginia Plan had ingeniously avoided this problem by granting election of the Senate to the lower house. In this way, votes for senators would be proportionally distributed among the states, while the final number of senators selected could remain small. Although Madison attempted to rally support for his model by reminding listeners of the state legislatures role in the paper money crises, the delegates ultimately endorsed Dickensons method of selection instead.95 Beyond the bicameral legislature, the Virginia Plan also included a new national executive branch with a general authority to execute the National laws. When James Wilson of Pennsylvania moved that the executive be vested in one person, rather than a small council, there was a considerable pause in the discussion. Americans had been ruled by one man before, the King of England, and there was concern that Wilsons proposal might prove to be the fœtus of monarchy.96 Wilson countered that a council would involve nothing but uncontrouled, continued, and violent animosities, whereas a unitary executive would be steadier and more decisive. Wilson also reassured the Convention that the executives powers would be sufficiently limited that he could never rule like a king; instead, he would more closely resemble the governors to whom Americans had already entrusted their state operations.97 In the end, the assembly agreed with Wilson that a single executive would be best, in part because nearly all assumed that George Washington, whom they admired and trusted, would become the first president. Elbridge Gerry of Massachusetts next recommended granting the executive veto power over laws passed by Congress. The Virginia Plan would have conferred this power to a Council of Revision made up of the executive and members of the judicial branch, but Gerry wished to separate the judiciary from the laws it would be asked to rule upon. Delegates had already expressed anxiety about the creation of a single executive, and the prospect of empowering it still further immediately provoked opposition. As a matter of democratic principle, critics resisted enabling any one man to stop the will of the whole.98 They also feared that veto power would, in practice, give the executive nearly absolute control over the entire government.99 This issue, like so many others, was ultimately settled through compromise: the executive would have veto power, but two-thirds votes in both houses of Congress could override it. 13 716-053 James Madison, the Federal Negative, and the Making of the U.S. Constitution National Supremacy? As the delegates gradually worked out the structure of the new federal government, they also had to decide on its role vis-à-vis the states. Indeed, one of the first general principles voted on was that a national Government ought to be established consisting of a supreme Legislative, Executive and Judiciary. Gouverneur Morris of Pennsylvania explained the distinction between a federal and national, supreme government; the former being a mere compact resting on the good faith of the parties; the latter having a complete and compulsive operation. He contended that in all Communities there must be one supreme power, and one only.100 Perhaps not surprisingly, some delegates wondered if the notion of national supremacy over the states went too far. Pinckney even questioned whether this new dynamic was intended to abolish the State Governments altogether, though Edmund Randolph, the leading presenter of the Virginia Plan, assured him that it was not.101 After relatively brief deliberation on the issue, the convention voted to endorse the supremacy provision. A closely related issue was how to draw a dividing line between the powers of Congress and those of the states. The Virginia Plan proposed that Congress have Legislative power in all cases to which the State Legislatures were individually incompetent. Some delegates, however, worried this language was excessively vague. To combat concerns that the convention was running into an extreme in taking away the powers of the States,102 many delegates believed that Congresss authority should be limited by specifically enumerating its powers. Madison largely agreed with them, but made clear that in any future discussions of such powers he would shrink from nothing which should be found essential to such a form of Government as would provide for the safety, liberty, and happiness of the community.103 With the understanding that specifics might be discussed at a later date, the convention voted at the end of May in favor of the Virginia Plans language on Congress, empowering it to act where the states were individually incompetent. The Federal Negative Madisons proposal for a Congressional veto over state laws – his federal negative – finally took center stage at the Convention on June 8. While his original proposal would have applied in all cases whatsoever, Madisons Virginia colleagues had included a narrower version in the Virginia Plan that limited Congresss veto only to state laws contravening in the opinion of the National Legislature the articles of Union. The Convention had assented to this more limited federal negative early on and without argument.104 On June 8th, however, Pinckney suggested extending the veto to all laws which [Congress] should judge to be improper, in line with Madisons original conception. Pinckney doubted that the Virginia Plans more limited approach would be sufficient to keep the states in line and that a universality of the power was indispensably necessary to render it effectual. He judged the absolute approach that he was proposing to be the corner stone of an efficient national Government, without which Congress would prove unable to enforce its policies.105 Madison seconded Pinckneys motion. He warned that a limited federal negative, intended to nullify only unconstitutional state laws, was liable to become a fresh source of contention between the states and the federal government, as they battled over the question of constitutionality. Perhaps most troubling, while such disagreements might necessitate that Congress impose its decisions by force, Madison questioned whether such federal coercion would be feasible: Could the national resources, if exerted to the utmost, enforce a national decree against Massachusetts, abetted, perhaps, by several of her neighbours? It would not be possible. A small proportion of the community, in a compact situation, acting on the defensive, and at one of its extremities, might at any time bid defiance to the national authority.106 14 James Madison, the Federal Negative, and the Making of the U.S. Constitution 716-053 Fortunately, Madison predicted, an absolute federal negative would eliminate such potentially violent disagreements. The negative would render the use of force unnecessary, he declared. The States could of themselves pass no operative act, any more than one branch of a legislature, where there are two branches, can proceed without the other. But in order to give the negative this efficacy, it must extend to all cases.107 Wilson joined Pinckney and Madison in supporting the absolute federal negative, stressing that excessive state independence threatened national unity. He reviewed the history of American attitudes toward federalism, noting that an early confidence that the United States would bury all local interests and distinctions had gradually dissolved under the jealousy and ambition of the state governments. Leave the whole at the mercy of each part, he asked, and will not the general interest be continually sacrificed to local interests?108 Opponents of the absolute negative expressed horror at the thought of so explicitly sacrificing the states control over their own affairs. Although Gerry of Massachusetts saw the usefulness of vetoing paper money laws, he feared that an absolute negative would allow Congress to enslave the states.109 Delegates also argued that empowering the national government in this way would enable interstate abuses rather than curtail them. Gerry suggested that the negative might dissuade new states from joining the Union, and Delawares Gunning Bedford worried that the more populous states, which would have greater influence in Congress, might use the negative to impose their will on smaller states. He offered his own state as an illustration of the point: under proportional representation, Pennsylvania and Virginia would together control one-third of Congress, while Delaware would control just one-ninetieth. Will not these large States crush the small ones [with the negative] he asked, whenever they stand in the way of their ambitious or interested views?110 With both sides having made their case, the proposal was finally put to a vote at the end of the days session on June 8, 1787. Whether Madisons notion of an absolute federal veto over state laws would live or die was now up to the 55 delegates who together comprised the Constitutional Convention in Philadelphia. 15 716-053 James Madison, the Federal Negative, and the Making of the U.S. Constitution Exhibit 1 Estimated Population of American Colonies and States, 1650-1780 Colony/State 1780 1770 1760 1750 1700 1650 New Hampshire 87,802 62,396 39,093 27,505 4,958 1,305 Massachusetts 268,627 235,308 202,600 188,000 55,941 16,603 Rhode Island 52,946 58,196 45,471 33,226 5,894 785 Connecticut 206,701 183,881 142,470 111,280 25,970 4,139 New York 210,541 162,920 117,138 76,696 19,107 4,116 New Jersey 139,627 117,431 93,813 71,393 14,010 Pennsylvania 327,305 240,057 183,703 119,666 17,950 Delaware 45,385 35,496 33,250 28,704 2,470 185 Maryland 247,959 202,599 162,267 141,073 29,604 4,504 Virginia 538,004 447,016 339,726 236,681 58,560 18,731 North Carolina 270,133 197,200 110,442 72,984 10,720 South Carolina 180,000 124,244 94,074 74,000 6,260 Georgia 56,071 23,375 9,578 5,200 TOTAL 2,631,101 2,090,119 1,573,625 1,186,408 251,444 50,368 Source: Adapted from Historical Statistics of the United States, Millennial Edition Online, eds. Susan B. Carter, Scott Sigmund Gartner, Michael R. Haines, Alan L. Olmstead, Richard Sutch, and Gavin Wright (Cambridge University Press, 2006), Series Eg 1-20 [hsus.cambridge.org]. Note: Massachusetts figures include Plymouth colony and Maine. Exhibit 2 Tax Collections in the American Colonies under the British Revenue Laws, 1765-1774 (pounds sterling) Year Total of 1760s Acts Sugar Act (1764, 1766) Stamp Act (1765) Townshend Act (1767) Navigation Act (1673) 1765 17,383 14,091 3,292 2,954 1766 26,696 26,696 7,373 1767 34,041 33,844 197 3,905 1768 37,861 24,659 13,202 1,160 1769 45,499 39,938 5,561 1,294 1770 33,637 30,910 2,727 1,828 1771 31,761 27,086 4,675 1,446 1772 45,870 42,570 3,300 1,490 1773 42,103 39,531 2,572 2,517 1774 27,995 27,074 921 672 Source: Adapted from Historical Statistics of the United States, Series Eg 420-424. 16 James Madison, the Federal Negative, and the Making of the U.S. Constitution 716-053 Exhibit 3 Funding the War for Independence (millions of pounds sterling, estimated) Source Funds Continental paper money 46 State paper money 64 Congressional domestic bonds 6 Congressional debt certificates 16 Foreign loans to Congress 10 State debt 23 Source: Adapted from Arthur H. Reede, The Financing of the American Revolution (Fairport, NY: Rochester Press, 1996), p. 103. Exhibit 4 Continental Paper Money Emitted Year Currency emitted Value in Gold 1775 $6,000,000 $6,000,000 1776 $19,000,000 $17,300,000 1777 $13,000,000 $4,530,000 1778 $63,400,000 $11,695,000 1779 $124,800,000 $5,964,000 1780 and 1781 $1,592,222 Source: Adapted from E. James Ferguson, The Power of the Purse (Chapel Hill: University of North Carolina Press, 1961), p. 30; and Reede, The Financing of the American Revolution, p. 324. The depreciated values for 1780 and 1781 are unavailable; Reede notes that these years technically saw the issue of a new currency intended to replace the old. Exhibit 5 Continental Currency Required to Buy $1 Specie (gold) Month Price January 1777 $1.25 July 1777 $3.00 January 1778 $4.00 July 1778 $4.00 January 1779 $8.00 July 1779 $19.00 October 1779 $30.00 January 1780 $42.50 July 1780 $62.50 January 1781 $100.00 April 1781 $167.50 Source: Adapted from Ferguson, The Power of the Purse, p. 32. These conversion rates are for old Continental currency, issued before 1780. 17 716-053 James Madison, the Federal Negative, and the Making of the U.S. Constitution Exhibit 6 Congressional Spending (excluding foreign expenditures and expansion of floating debt), 1775-1781 Spending Year (Continental currency) Specie (Gold) Value 1775-1776 $20,064,666 $20,064,666 1777 $26,426,333 $24,986,646 1778 $66,965,269 $24,289,438 1779 $149,703,856 $10,794,620 1780 $83,799,556 $3,000,000 1781 $13,654,983 $1,942,465 Source: Adapted from Ferguson, The Power of the Purse, pp. 28-29. Some, but not all, of the spending was funded through currency emissions. The Continental currency values reflect mainly old Continental currency, issued before 1780. Congress issued a relatively small amount of new currency in 1780 and 1781, which traded at a more favorable conversion rate relative to gold. Exhibit 7 Congresss Payments To, and Receipts From, the States during the War of Independence, expressed in specie (gold) value State Paid to state Received from state New Hampshire $440,974 $466,544 Massachusetts $1,245,737 $3,167,020 Rhode Island $1,028,511 $310,395 Connecticut $1,016,273 $1,607,295 New York $822,803 $1,545,889 New Jersey $366,729 $512,916 Pennsylvania $2,087,276 $2,629,410 Delaware $63,817 $208,878 Maryland $609,617 $945,537 Virginia $482,881 $1,963,811 North Carolina $788,031 $219,835 South Carolina $1,014,808 $499,325 Georgia $679,412 $122,744 Source: Robert A. Becker, Currency, Taxation, and Finance, 1775-1787, in Jack P. Greene and J. R. Pole (eds.), A Companion to the American Revolution (Malden, MA: Blackwell Publishing, 2004), p. 394. 18 James Madison, the Federal Negative, and the Making of the U.S. Constitution 716-053 Exhibit 8 American Exports and Imports, with England, 1700-1786 (pounds sterling) Year Exports Imports 1700 395,021 344,341 1710 249,814 293,659 1720 468,188 319,702 1730 572,585 536,860 1740 718,416 813,382 1750 814,768 1,313,083 1760 761,099 2,611,764 1770 1,015,535 1,925,571 1771 1,339,840 4,202,472 1772 1,258,515 3,012,635 1773 1,369,229 2,079,412 1774 1,373,846 2,590,437 1775 1,920,950 196,162 1776 103,964 55,415 1777 12,619 57,295 1778 17,694 33,986 1779 20,579 349,797 1780 18,560 825,431 1781 99,847 847,883 1782 28,676 256,325 1783 314,058 1,435,229 1784 701,190 3,418,407 1785 775,892 2,078,744 1786 743,644 1,431,255 Source: Adapted from Historical Statistics of the United States, Series Eg 429 and 436. 19 716-053 James Madison, the Federal Negative, and the Making of the U.S. Constitution Appendix Excerpt from James Madison, Vices of the Political System of the United States (April 1787) [Section] 11. Injustice of the laws of the States If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights. To what causes is this evil to be ascribed? These causes lie 1. in the Representative bodies. 2. in the people themselves. 1. Representative appointments are sought from 3 motives. 1. ambition 2. personal interest. 3. public good. Unhappily the two first are proved by experience to be most prevalent. Hence the candidates who feel them, particularly, the second, are most industrious, and most successful in pursuing their object: and forming often a majority in the legislative Councils, with interested views, contrary to the interest, and views, of their Constituents, join in a perfidious sacrifice of the latter to the former. A succeeding election it might be supposed, would displace the offenders, and repair the mischief. But how easily are base and selfish measures, masked by pretexts of public good and apparent expediency? How frequently will a repetition of the same arts and industry which succeeded in the first instance, again prevail on the unwary to misplace their confidence? How frequently too will the honest but unenlightened representative be the dupe of a favorite leader, veiling his selfish views under the professions of public good, and varnishing his sophistical arguments with the glowing colours of popular eloquence? 2. A still more fatal if not more frequent cause lies among the people themselves. All civilized societies are divided into different interests and factions, as they happen to be creditors or debtors— Rich or poor—husbandmen, merchants or manufacturers—members of different religious sects— followers of different political leaders—inhabitants of different districts—owners of different kinds of property andc andc. In republican Government the majority however composed, ultimately give the law. Whenever therefore an apparent interest or common passion unites a majority what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals? Three motives only 1. a prudent regard to their own good as involved in the general and permanent good of the Community. This consideration although of decisive weight in itself, is found by experience to be too often unheeded. It is too often forgotten, by nations as well as by individuals that honesty is the best policy. 2dly. respect for character. However strong this motive may be in individuals, it is considered as very insufficient to restrain them from injustice. In a multitude its efficacy is diminished in proportion to the number which is to share the praise or the blame. Besides, as it has reference to public opinion, which within a particular Society, is the opinion of the majority, the standard is fixed by those whose conduct is to be measured by it. The public opinion without the Society, will be little respected by the people at large of any Country. Individuals of extended views, and of national pride, may bring the public proceedings to this standard, but the example will never be followed by the multitude. Is it 20 James Madison, the Federal Negative, and the Making of the U.S. Constitution 716-053 to be imagined that an ordinary citizen or even an assembly-man of R[hode] Island in estimating the policy of paper money, ever considered or cared in what light the measure would be viewed in France or Holland; or even in Massts or Connect.? It was a sufficient temptation to both that it was for their interest: it was a sufficient sanction to the latter that it was popular in the State; to the former that it was so in the neighbourhood. 3dly. will Religion the only remaining motive be a sufficient restraint? It is not pretended to be such on men individually considered. Will its effect be greater on them considered in an aggregate view? quite the reverse. The conduct of every popular assembly acting on oath, the strongest of religious Ties, proves that individuals join without remorse in acts, against which their consciences would revolt if proposed to them under the like sanction, separately in their closets. When indeed Religion is kindled into enthusiasm, its force like that of other passions, is increased by the sympathy of a multitude. But enthusiasm is only a temporary state of religion, and while it lasts will hardly be seen with pleasure at the helm of Government. Besides as religion in its coolest state, is not infallible, it may become a motive to oppression as well as a restraint from injustice. Place three individuals in a situation wherein the interest of each depends on the voice of the others, and give to two of them an interest opposed to the rights of the third? Will the latter be secure? The prudence of every man would shun the danger. The rules and forms of justice suppose and guard against it. Will two thousand in a like situation be less likely to encroach on the rights of one thousand? The contrary is witnessed by the notorious factions and oppressions which take place in corporate towns limited as the opportunities are, and in little republics when uncontrouled by apprehensions of external danger. If an enlargement of the sphere is found to lessen the insecurity of private rights, it is not because the impulse of a common interest or passion is less predominant in this case with the majority; but because a common interest or passion is less apt to be felt and the requisite combinations less easy to be formed by a great than by a small number. The Society becomes broken into a greater variety of interests, of pursuits, of passions, which check each other, whilst those who may feel a common sentiment have less opportunity of communication and concert. It may be inferred that the inconveniences of popular States contrary to the prevailing Theory, are in proportion not to the extent, but to the narrowness of their limits. The great desideratum in Government is such a modification of the Sovereignty as will render it sufficiently neutral between the different interests and factions, to controul one part of the Society from invading the rights of another, and at the same time sufficiently controuled itself, from setting up an interest adverse to that of the whole Society. In absolute Monarchies, the prince is sufficiently, neutral towards his subjects, but frequently sacrifices their happiness to his ambition or his avarice. In small Republics, the sovereign will is sufficiently controuled from such a Sacrifice of the entire Society, but is not sufficiently neutral towards the parts composing it. As a limited Monarchy tempers the evils of an absolute one; so an extensive Republic meliorates the administration of a small Republic. An auxiliary desideratum for the melioration of the Republican form is such a process of elections as will most certainly extract from the mass of the Society the purest and noblest characters which it contains; such as will at once feel most strongly the proper motives to pursue the end of their appointment, and be most capable to devise the proper means of attaining it.