From: Hans Eicholz
Date: June 14, 2022
To: G. Patrick Lynch
Cc: OLL
Date: June 14, 2022
To: G. Patrick Lynch
Cc: OLL
Subject: Get Back!...to Madison…More Reasons to read Madison
The Reading Room
Get Back!…to Madison: More Reasons to Read Madison
Pat:
I heartily second your reasons for reading James Madison and want to build on your insight into Madison’s role in the formation of what is often called the First Party System in the United States. There were good reasons for his doing so. One way to explore why he entered into opposition against his former ally, Alexander Hamilton, is to contemplate two texts in conjunction with each other and ask, why do they appear so profoundly different in their implications?
The first text is Madison’s Federalist Essay Number 39, near the end of which he contemplates the role of the Supreme Court in deciding on questions of jurisdiction between the various branches and levels of government, both state and federal. Madison writes:
It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made according to the rules of the constitution and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword, and the dissolution of the compact; and that it ought to be established under the general, rather than under the local governments or to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.
This passage was written sometime between October of 1787 and May of 1788 in the attempt to secure ratification of the Constitution. By 1800, however, the same year that would see Thomas Jefferson elected to the highest office, the situation had clearly changed on a number of fronts.
Reflecting on a whole range of constitutional issues, Madison issued a special report from the Virginia House of Delegates that reviewed many of the principal legislative developments during the first decade under the new fundamental law of the land--issues that ranged from the incorporation of a national Bank to the passage of the Alien and Sedition Acts and the special resolutions issued by the states of Virginia and Kentucky. In this report Madison took what appears to be a very different position on who the ultimate arbitrators on matters of legal jurisdiction should be:
It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The States then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the compact made by them be violated; and, consequently, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition. (See Madison's January 18th, 1800 letter to Jefferson on page 349 of this text.)
What on earth has happened? Was he being inconsistent, or is there a deeper consistency in his understanding of the genius of republican government, a term he often used to describe the spirit if not the letter of the Constitution? Tracing the developments in Madison’s thoughts from the first to the second text, I would argue, is perhaps one of the very best ways to educate oneself about the nature of American government and its history.