Madisonian Federalism | Jack Rakove
Articles,  Blog

Madisonian Federalism | Jack Rakove


Colleen and I are gonna try to take about half an hour each this morning to talk about something we called Madisonian federalism. The adjective Madisonian appears a lot these days in
the literature of political science and history. We talk a lot about the Madisonian constitution that we assume the Constitution is inherently a Madisonian document. There is some irony to this, Madison, if you know the history,
Madison lost the proposals he cared most about, did not want to have the Federal
Senate elected by the state legislatures, did not think the state should be
equally represented in the senate. He was not even convinced that
each state should be represented in the senate. He was very partial to his pet
scheme to have a congressional negative on state laws,
which ideally could be used both to protect the national government against
interference from the states and to intervene within the state’s
individually, to protect minorities against unjust aid legislation. He lost on
all these points and we know from letters he wrote to Jefferson that he left Philadelphia being
somewhat disappointed with the results of the convention but being the kind of
politician he was, and as we have a few living and breathing politicians the
room, I’m sure they’ll sympathize with this. He put his disappointment, you know,
behind him and went on to the next issue and kind of recovered his is good senses and became an active politician. But to say
we have a Madisonian constitution in one sense is a little bit problematic because he
lost some of the points he valued most. On the other hand I remain convinced, and I’m pretty sure Colleen would share this opinion, that the architecture of the
Constitution, and really the whole scheme for its adoption, was a very Madisonian idea.
He set out to set the agenda for the for the convention, and even if he didn’t win every proposal he wanted, its overall framework I think was consistent with his thinking. So what
I think the two of us want to do this morning is to try to explain what we’ll
call Madisonian federalism. I’m going to take the lead here and I’m going to
try to sketch the historical background, say something about the Articles of
Confederation, say something about the evolution of Madison’s thinking. I want us to spend a little time with the
one single text, which I think is absolutely essential to understand the
real core, the kind of central premises of what Madison thought he was doing and
then try to say a few words about the convention. And then Colleen will take
over and I think, and talk in something more general terms about Madison’s ideas
about the federal structure. So let’s start with let’s start with the original version of
American federalism, the Articles of Confederation, which were drafted in 1776-1777 ratified by 1781, were in effect for eight years. Essentially is the government that
the people started to say was imbecilic, that was the adjective they liked on the eve of the federal convention. Basically two points I want to make about it, then we’ll
move on fairly quickly. The first one actually has to do with
the question of state sovereignty, which Sot Barber kind of raised at the very end
of the previous session. So if we look at Article 2 of the Confederation, the text
is up here behind us, says each state retains its sovereignty
freedom and independence and every power jurisdiction and righ which is not by
this confederation expressly delegated to the United States in Congress
assembled. There is an affirmation of state sovereignty that was present in
the Articles of Confederation, and one could read this to mean that, you know, that principal was being affirmed in the mid-seventies seventies and you know in
1781. On the other hand the powers expressly delegated to the United States
in Congress assembled included essential sovereign powers. They include the powers over war and diplomacy, which in many ways were the highest powers a sovereign government could do. And so one problem we have here is that while nominally reaffirming a theory of state sovereignty, certainly the
states would have been thought of as being only competent to regulate what
was called the 18th century their internal police, their internal
government, as the only bodies which can legislate directly on the American
Citizens. On the other hand, essential facets of sovereignty had been granted to the national government from the beginning. So it raises questions… it seems to be that the American system has always been a
system of divided sovereignty, that we basically destroyed the concept of sovereignty. Sovereignty historically means within every regime there has to be one unified, ultimate final,
absolutely, irresistible source of power. American Federalism basically destroys
the idea of sovereignty. But we hold on to the term and I think a lot of the
confusion we have about sovereignty comes from the need to try to sort out exactly
how it will be delegated, or allocated, the sovereign powers of government. So that’s point number one. Point number two is… goes to try to identify what was the underlying theory of federalism that
worked under the Articles of Confederation? Before the Federal Constitution was
adopted. The phrase I’d like to use here is this is a system of the vote which requires the voluntary compliance of the states with the resolutions, recommendations and
requisitions. I use those three terms because they’re the relevant language.
The resolutions, recommendations, and requisitions of the Continental Congress,
which was the national government. The states have to voluntarily comply.
They have to figure out the best way to implement federal measures. But their
form of voluntary compliance would not have been understood in the same way
let’s say that John C Calhoun, in the eighteen thirties, might have conceived
the nature of a federal system. The idea of voluntary compliance does not mean, did not mean here, originally, that the states were free to accept or reject what the
national government asked them to do. Instead, the states were expected to
figure out the best way to implement national policy. There was no national bureaucracy outside of the army. There was no national
administrative state. The states would be responsible for making all
kinds of decisions as to what would be the best way for a certain policy to go
forward, to legislate directly on their citizens to enforce it. So it’s very different
from saying the states have the right to judge independently, whether or not the
policy should be implemented under the Articles of Confederation they were
expected to implement what the policy was. So that’s where we start we want to go on and say a bit about James Madison, more about the Madisonian constitution. These are actually my two favorite portraits of Madison. The first, the one on the left, was done by Charles Wilson Field in 1792. I
like it cause I think it’s actually the most realistic. It’s the one, that just in
terms of visual representation. The second one was done by Asher Durand, in
1829. This one I love because it it’s kind of, it’s kind of
a haunting image, you know, Madison, the last time he ever left his home at
Montpelier in Orange, Virginia was in 1829. the rest of his life he spent there
completely confined to a single room. So here we go, the cheeks were drawn and somewhat hollow, he is visibly aged but I just love the eyes, there’s a
deep earnestness of expression which I think is meant to reach out to all of us
individually. So anyway, that’s Madison… but a better portrait
actually for the period we’re talking about, for the 1780s is this little
thing was done when Madison was courting Kitty Floyd, a sixteen year old daughter
of fellow congressman from New York. It’s got a little more affectionate portrait this
is the young who becomes the framer of the Constitution in 1787. So let’s leave
him up here for a while, for a few minutes. So Madison went off to the Continental Congress in 1780. He had served a term in the Virginia Convention a term in the Virginia Legislature, was defeated for re-election served a couple of years on the Virginia
Council, an advisory body to the governor and then he was sent off to congress in 1780. Like most members of congress then he stayed until he was term-limited out of
office. Those who like term limits remember the
James Madison was the first guy, to be the first legislator to be term limited out. Which might give us some…draw some inferences as to whether term limits are a good idea or not. He served in Congress for three and a half years without going home once. Very unusual most
delegates would serve three or four months then go home, may come back for a second term. But while he’s there in Congress during the 1780s he formed a set of conclusions about the Articles of Confederation just as they were taking effect. He was
convinced from the outset that they were probably inadequate. And Madison served on a committee that was supposed to figure out what should congress do now that the
articles were finally going to take effect in 1781. One of Madison’s favorite ideas at
this point, was the national government should have the authority to coerce the
states into doing their duty. How would you do that? Well, all the states were coastal, if
you had a couple frigates you could simply close down their leading harbor. And kind of bring them into some condition in which they would have to comply. It’s a pretty naive idea but it
shows the seriousness with which Madison was thinking about these issues.
More importantly Madison became convinced in the early seventeen eighties that the states simply could not be relied upon in, you know, kind of consistent, regular,
efficient way to carry out their federal duty. There are lots of reasons why the
state were in that position really. Many those conditions just go to the
enormous burdens that waging the revolutionary war imposed on the states.
I mean, the American states were compelled to fight a long and costly and expensive
war against a very powerful enemy. They did not have the, you know, the experience, or really the resources, to know how would you mobilize the whole population to
sustain a war that went on year after year, from 1775 to 1781, and
even a bit past that. Indeed to 1782 but Madison during this period became
convinced that the whole system of relying on the state’s was a system was
just prone to failure. And so that problem
starts to preoccupy him. But there wasn’t much you could do about. it had taken three and a half years to get the Articles of Confederation adopted in the first place, how
you go about it? Merely amending them was not obvious. Congress, in fact, did try to
send out one amendment in 1781, which failed. You should know that too amend the Articles, just as was needed to ratify them, you needed a unanimous vote of all the state legislatures, which was very difficult, not to say almost insuperable. So
it had taken three and a half years to get the Articles ratified and then congress in 1781 and then in 1783, then again 1784, ends out amendments to the states. Madison theory at this point was you need to have, you we should try to follow some kind of
piecemeal set of reforms to the Articles. If we could get one or two amendments
adopted, and try to convince the American people. You could actually amend the
Articles and the skies would not open. The you know, the country could cope, the country could adjust. that’d be the optimal path of reform. The problem was that it proved to be
politically impossible to do this. So medicine was term-limited out of
congress in the fall of 1783. He rides back to Virginia. I think he actually rode back
with Jefferson, if I remember correctly, then he spent the next three years in the
Virginia Legislature, where he was the dominant member. You could have called him the Prime Minister, that would be a bit of an anachronistic term, but he was the
dominant member of the Virginia Legislature. When he’d served in the
national government Congress he thought the principal problem was how do you get
the states to do their duty. When he went back to Virginia the principle problem he faced, was how to get to his colleagues, the state legislators, to do
what they were supposed to do. To recognize the importance of supporting thorough
measures and to take the appropriate actions. And Madison worked
hard at that. He had some successes and some failures. He came away from that
experience deeply disillusioned with the character the state legislators he had
to deal with. And I’ll use a phrase my friend and colleague Gordon Wood likes
to you use, used in one essay. Gordon says. ” what could he do with such clods?” Which I think it’s
a bit pejorative but I think that Madison found that experience deeply
disillusioning. I mean, here Madison was really kind of an early model of a
professional politician, the guy who really had found his life, in politics
dealing mostly with amateur lawmakers you know, both in congress and in the
state’s, most people would serve a term or two, a year or two, there high rates of
turnover, high rates of rotation in the legislature. Nothing like the
professionalization we’ve seen that affects both Congress and state
legislatures now. So Madison was deeply serious about politics. And he was dealing with a bunch of amateurs. And he kept trying to get them to see, you know, what their
duty was with very mixed results. So he tried that in congress, think about how do you get the states to cooperate with the national government and then goes back to the
state, goes back to Virginia, and he thinks about the difficulty of getting his colleagues to realize the importance and the gravity of what they’re supposed to do.
So it comes away from this being deeply disillusioned and the upshot of this is
that didn’t 1786, 1787, Madison starts to formulate his own agenda of constitutional reform. And I won’t go through the history of this because it’ll take too long. But there is one key document which
illustrates this, which since I think of this as kind of a class I’m teaching, you know, with Colleens assistance here , her
following up. So this is this is a famous text in American political history. You can’t really make it out there but
you know, this is the document we know as Madison’s title is Vices of the Political
System in the United States. And colleagues in the field we just call it “The Vices,” right Colleen, that is kind of the shorthand term for this. And you look at it, if you look at the manuscript, you see what I always thought was true from reading it, it’s a working
document. If you’re a modern lawyer this is the equivalent of taking out an
eight by 11 , you know, yellow pad and working an outline of what you want to do. Because as you scroll through it, you see Madison leaves lots of spaces to add additional points
to it. You know, if he has further thoughts there is room to, you know, there’s room to add them
and so on. So I wanted to I want to use this to talk about one item in
particular, it’s the item I passed out, so does everybody have a copy of this attractively
printed little green sheet? So I happen to think that more than Federalist 10 or
any other Madison text, this is the single most brilliant passage of
political writing in the history of the American Republic. It’s where it Madison pulls together his basic formula for explaining why aradical change in the
nature of the American federal system is necessary. So it happens in The Vices, let me take a step back here. The Vices is a memorandum where
custom devices is a member and we’re Madison summarizes what he sees as the
essential failings of the whole political system. It’s not just the Articles of Confederation, the first eight items do deal with the shortcomings the Articles in general, in particular the
shortcomings of the state legislatures. And then in item nine Madison shifts gears
and he starts talking there about the problem of the individual legislation of
the states, taken individually. Not just how did… not just why they’re not adequately complying with their federal obligations. What’s going on with them in terms of their own interior
policy, their own internal police. I’ll try to save a little bit of something about that for the
end because that’s where Madison best explains why he thinks it’s necessary to
have a national negative on state laws. But in this single passage I think is
actually the best example, you know, the most important example of the basic way
in which Madison was reasoning. It illustrates Madison…I like to say this because I’m finishing a book on the subject, it’s not just what Madison thought, it shows Madison
thinking. It shows the activity of creative political thinking. At a moment when Madison is still trying to figure out, what we need to do. So it’s
not just a justification for an outcome it’s the explanation of how you get there.
okay. So this is the item in which Madison criticizes the whole idea of having a
system of federalism based upon the voluntary compliance of the states with
national measures. That’s the object of the criticism. So he starts…
let’s read this together, he starts by stating a problem. The title
was, Want of Sanction of the Laws of Coercion in the government the Confederacy. A
sanction is as essential the idea of law as coercion is to that of government. In other words, if you can’t enforce it, if you have no mechanism to compel the, you know, the
responsible of bodies to do what they’re supposed to do, the whole system of government is going to be defective. The federal system being destitute of both wants the
great vital principles of a political constitution. Under the form of such constitution it is, in fact, nothing more than a treaty of amity, commerce and alliance
between so many independent and sovereign states. That’s the statement of
the problem. That’s the statement of the problem. Then Madison asks his first question, From what cause could so fatal
an omission have happened in the Articles of Confederation? He starts off by giving us
two answers. The first is a reflection on what these were like back in the
mid-seventies seventies when the state constitutions, The Articles of Confederation were being framed. He says from a mistake in confidence that the Justice, the good
faith, the honor, the sound policy of the several legislative assemblies would render superfluous any appeal to
the ordinary motives by which the laws secure the obedience of individuals. A conference which does honor to the
enthusiastic virtue of the compilers as much as inexperienced in the crisis
apologizes for their errors. So what’s Madison doing here, I like to ask my students how is Madison reasoning here? and say it’s a trick question. If I say it’s a trick question they
won’t get it. He is reasoning like a historian. He’s asking how did people think at the
time, what were we thinking at the time, when the Articles were adopted? But the
basic answer then, is at that point, the key word here is, his use of the word virtue, we
relied upon the enthusiastic virtue, meaning we expected citizens and
legislators to do their duty. Virtue is a key word in eighteenth-century
political writing. Virtue is the obligation of a citizen not to prefer
your self interest but to do what you’re responsible for doing. And so what Madison is saying, back then, we were all republicans, at this point I want to emphasize lowercase
R, we were all republicans who we believed in republican principles of
self-government. We didn’t think there was any need of coercion because we’re patriots, we’re all going to do the right thing, so there’s no need there’s no need for
compulsion. So it was a sense… it seemed at the time it seemed like a sensible
judgement. We didn’t think you know what would happen if that republican virtue
began to ebb. Then Madison offers a second historical reflection, says, the
time which has since elapsed has had the double effect of increasing the
light and tempering the warmth with which the arduous work may be revised. It
is no longer down to the unanimous and punctual obedience of 13 independent bodies to the acts of the federal government ought not to be calculated on. Even during the war when
external dangers applied, in some degree, the defect of legal coercive sanctions. How imperfectly did the state’s fulfill their
obligations the Union. In time of peace we see already what is to be expected. So
here Madison is again reasoning like a historian, except now he’s not reasoning about what
happened in the past, why do they do it a certain way ten
years ago. Now he’s saying, what have we learned since? What are the lessons of
experience? And what we’ve learned, It was hard enough to make the system work during the war, when
there was a great external danger, now this is that it’s peacetime we shouldn’t be surprised that it has grown even more difficult to make the system work. And then Madison asks
another question. If I just say, when Madison asks a question it’s not rhetorical
its analytical. He’s asking a question because he’s identified a problem that
deserves an answer. He says how indeed, could it be otherwise. And at this point
the student should think this is where, I hope you guys have studied a little political
science or economics, because you should look at how Madison’s reasoning here. He now gives us, rapid fire, he gives us three deeper structural explanations of why a system of federalism based
upon the voluntary compliance of the states with national recommendations resolutions and requisition is doomed to
failure, So he gives us three reasons very quickly, in the first place every general
act of the Union must necessarily bear unequally hard on some particular member or members of it. Secondly, the partiality of the members to their own interest and rights a
partiality which would be fostered by the courtiers of popularity, will naturally exaggerate the inequality where exists, and even suspect it where it has no existence. Thirdly, a distrust of voluntary compliance of each other may prevent
the compliance of any. Although it should be the latent disposition of all. Now, if
you guys have studied economics, I don’t know if this is true of political science, you should recognize,, I’ll try to suggest here, what Madison is doing here is engaging in what we now call game
theoretical reasoning. It’s game theoretic in this sense, let’s take a federalism as
a game. We have a national government trying to get it to the states to comply. In the states you have to make the
decision, are we going to comply or not, are we going to play the federal game. Are we going to do what we’re supposed to do. Or maybe we want to shirk or opt out of our obligation. And now Madison gives three reasons for saying why this game is not… this is not
to be winning game, this is not a win-win situation. This is a very
problematic game we’re playing. So what are the three reasons, states have different
interests they won’t be equally vested in the outcome of any decision. Secondly, within every state we’re likely to find individual politicians, he was thinking mostly of Patrick Henry, in
Virginia. Actually Sot I had to give the Patrick Henry lecture at Johns Hopkins with a Henry descendent there, if you’re Madisonian that was a tough thing to do. Jefferson says of Henry what we have to
wish for is his death. to kind of get him out of the way so I
passed over that part. Anyhow, within every state we might well find politicians
who want to run against Washington. But, you know, with state Legislators sitting here, I’m not saying this is your position, but this is how Madison was thinking, some state lawmakers will
have their own incentives. They may be good incentives, they may be improper
incentives but they will have some separate incentives,so we have to
worry about that. And third, but I think it’s the best example, even when we all agree on the policy, in the abstract, if we doubt whether others are going to comply, why,
you know, why should, why should we be the first ones to go forward, why should we support federal policy if
we wind up bearing the cost, other states may may not bear their burden. This is a very
powerful analysis, if you think about this, it really is game theoretical reasoning. Game theory exists in kind of latent form at this time and I want to go to this (unintelligable) and so on
But Madison is kind of intuitively reasoning this respect, and so he reaches
this basic conclusion. Here are causes and pretexts which would never fail to render federal measures abortive. This is the correct decision. The critical decision that comes out of this, you know, when you think about Madisonian federalism is that you need to create a federal system, that in
effect is going to cut the states out of the loop. It’s going to make the
national government independent of the states. The way the Articles of Confederation worked was congress would in enact general policies. The states were expected to carry those policies out
using their discretion to figure out the best way to do it within their own
boundary. So the enforcement of national measures always depended upon the
voluntary compliance of the states. The states were supposed to comply, That was their obligation under the Articles. It wasn’t something they could vote up or
down, they’re expected to comply but to do so in the most effective manner. Madison is saying here, this system is doomed to failure. This form of federalism will never work. It’s
always going to be prone to break down. What we need is a different form of government.
That other form of government means that the national government be able to legislate
directly not on the states, but on the American people. And is it’s going to legislate directly on the American people it has to look like a government in the normal
sense of the term. It has to have the legislature, the legislature therefore should have two branches, two houses because that’s, you know, that’s the American expectation we’re tied to bicameralism, for better for worse. It should have two houses. We should have an independent executive, it should have independent judiciary. It has to be a
government in the full sense of the term. So I think that this is the shortest
version of the Madisonian theory of federalism, I don’t know if Colleen agrees with this or not, we’ll find out shortly, but the basic argument is any system of federalism of based upon
the voluntary compliance to the states with national measures, is going to be
doomed..is going to be prone to break down or failure. So we need created a national government
that’s fully empowered to do its own business in which the states to no
longer part of the loop. Now this doesn’t include the whole use the funding power
in modern American federalism, to kind of induce, you know, coerce, I can’t say coerce, but to induce through on technique or another the states do what they’re supposed to do. But it is, but it
does show the radical quality of Madison’s thinking. So that’s, you know, Madison’s first thing, to have the working federal system. Madisonian federalism means, we need to create a national government that is wholly independent of the states, that does not rely upon the
states for enforcement. Madison’s own preference was not every state would
need to be represented in the senate and so on. The other critical part of this that
Madison comes up with is the negative on state laws. This is
Madison, you know, on the basis of this analysis and other factors
Madison was convinced that the states could still continue to pose a real
threat, real danger, to the effective enforcement of national policy. He also felt
that the were highly prone to continue to enact laws
are not only, they not only shirked their federal duty but they would actively, you
know, kind of violate the rights of individuals and minorities within their
states. So Madison’s own favorite proposal probably, perhaps the one proposal
he valued most, was to give the national government, give Congress a negative on
state laws. Meaning Congress, they have the right to veto state legislation. But (unintelligible)
Madison in a lot of ways, truly was a radical thinker. That Madison went off to frame the Constitution 1787 had very radical ideas about the nature of the federal
system you want to create. You want to create a national government that is totally independent of the states…firstly, and secondly would have the ability, the capacity, to be able
to in effect, put the states in their place, to negative their laws, in part
because he thought a lot of state laws would continue to interfere with national policy. But also could you worry about the rights of individuals and minorities within the states. He thought, I think correctly, this may not
accord with your theory perfectly well, but he thought, I think in some ways correctly, that the greatest dangers to individual and
minority rights within the republic would arise not at the national level
but at the state level, he wanted to create a national government that would be capable of overturning state laws, in case they interfered with the national policy and
B in case they actually violated the rights of individuals and minorities. So as I sometimes like to say, that, you know, you can make a plausible case that the most Madisonian part of the Constitution is nothing that was written in 1787 or 1788, it’s actually section one of the 14th amendment. It’s actually the incorporation doctrine. It’s actually the idea that the national government should play an active role in supervising and overturning state legislation when it’s
perceived to violate the rights of individuals or minorities. Those are very Madisonian arguments. At least for the Madison of 1787- 1788. So that’s some
fairly radical stuff I think im putting out here. Let me try to wrap this up, I think with, you know, several points to be made about what actually happened at the convention.
So this is the opening analysis with my other slide here, just to divert you. Well this is just a
way of illustrating Madison’s position. So this item 11 from the memorandum, What Madison says is, just to summarize, his concern, he says if the multiplicity of mutability
of laws proved a want of wisdom, put it in the state legislatures here, 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 principles of a republican government, that the majority rules in such
governments are the safest guardians both of public good and of private rights. So Madison’s theory, in a sense, here is the
national majorities will be safer than state-based majority. Madison worries a lot about the nature of state-based majorities, you know, some ways this actually this picks up on your point when we talk about the disparity in the
current political system. Madison worries about state based majorities being unjust majorities. He thinks actually to form a majority at the national level is going to take a lot more hard work. To reach a consensus at the national level you really have to do
some serious deliberation. At the state, the state level it would be much easier to form a partial, biased, potentially unjust majority. So there is a real calculus
here as Madison thinks about federalism. Okay, so let me go on, I just want to make several main points about the results of the convention, then I’ll turn the gavel, or even better the microphone over to my distinguished colleague and co-editor Colleen Sheehan. So let me just try to
describe three basic results of the federal convention. In a way which I think
they should get us to reflect on what we call your Madisonian federalism. First is
there is one thing that we have to face when when we think about what Madison
set out to do. When we look at the American structure of federalism start with the Constitution, the most important text as article 1 section 8 which gives us the
enumerated powers of Congress. There was no similar, if you look at the state
constitutions there’s no enumeration of powers, the states have a general power to
legislate. At the national level we do have enumeration, and the idea of enumeration
implies a notion of limitation. It’s a little hard to figure out exactly how Madison
thought about this. At the start of the convention he endorsed a kind of general
formula to say that, you know, in effect to give congress a potentially open-ended
legislative power, in effect to do whatever is necessary for the collective
public good. But in August 1787 the convention moved to a very different
formula and article 1 section 8 is an enumeration of the powers of Congress. And it’s a little hard to say, did Madison really believe that the congress should have a general legislative authority to do whatever is necessary for national Or is that just kind of a place holder not to be worked out until different rules of representation had been determined. A lot
of this pivots on the debate about the Senate. The upshot is we do get Article 1 Section 8 which gives us enumerated powers of Congress. And we do get the tenth amendment, which some people think is significant. Other people, like myself, think it’s actually fairly trivial, it just restates what’s already in the
constitution. But there is a kind of ambiguity about just how expensive a legislative power did Madison want to vest in Congress. Do you really want
congress have an open-ended legislative authority, or is that kind of a placeholder until you worked out other issues about how the states would be represented and then you could decide on enumeration or not. Second thing, Madison did lose the points
he valued most He did not want the senate, the original
Senate, to be elected by the state legislatures. He thought, I don’t mean to
say anything that you would regard as insulting, but he thought that the state
legislatures at that time were the central source of the vices of American
politics. They were made of amateur lawmakers, they came and went, most state law makers would serve a session or two then they would go back to their private
lives. He felt they were dominated by demagogic politicians like Patrick Henry.
He wasn’t very competent, he felt really really lacked the broad vision that you
would need to legislate successfully. So he didn’t want a senate elected by the
state legislatures. He certainly did not believe the equal state vote. He really
wanted a senate that would be a kind of quasi-aristocratic body. It wouldn’t really
represent the states at all. It was really meant to operate as a deliberate body,
to be relative removed from pressure from the states. So Maddison’s federalism,
I think, rested upon this very advanced notion, of having that kind of a
legislature. He lost it and he also lost the negative on state laws. In some ways it
was his favorite proposed the idea that Congress should be able to negative state
laws in an open-ended way whether they interfered with the authority of the national government whether they were, had unjust results for the population the of states. So Madison lost the proposals he valued most and in some ways at least for a short period after
the convention adjourned he was he was deeply disappointed by the results.
Instead what he wound up with was a system, I think, that was much messier,
much more complicated, much, much more difficult to define. Than the one he ideally
would have wished to have created. If Congress had a negative on state law there would be no question that the states
will be relegated to something less than their quasi-sovereign status. If every
state law had to be, you know, was potentially subject to, you know, to
not just a judicial review but to congressional approval there’s no
question that state legislatures would be relegated to a deeply inferior position.
They could not be regarded as being sovereign in any sense the term. But Madison lost that provision. That is one reason why he was deeply disappointed after the
convention injury but then being a working politician got over the
disappointment and, you know, worked to recover from
it. But instead what he got was what he called the compound republic. what he
tried to explain was a system that was inherently messy, inherently hard to describe in it’s operations. If you want to make sense of what the new federal structure
was like you would have to be a real detail-oriented, very… you have to take a
truly prosaic approach you would have to actually spin out the multiple
facets of the federal system. And the result would be not neat but very
messy. There was no simple way to explain what the American system was
like. As Madison uses the phrase later in his life he calls it a real
nondescript. When we say non-descript we just mean kind of something is kinda
blah, but Madison there was, no there was no model, that the American federal
system was followed. The only way you could understand it was to work it out in details and when you did that you would wind up with a truly messy system not
a simple system described. And the example, I won’t go through the details, but if
you go and read Federalist 39, which is Madison classic statement, Madison sets up, gives us a set of criteria for trying to describe is this more of a federal… is this more of a national system meaning is it more of a system in which the national
government going to dominate. Or is it more of a federal system meaning one that’s
based on the reliance in states. Then he goes through a set of operations of who will do
to operate, etcetera, etcetera. He comes up with five criteria. Five is a lot 5. Five criteria is a lot to ask anybody to keep in mind. And his conclusions are inelegant. He says well it’s partly federal partly national, heres it’s federal here it’s national, here it’s really either or both. It’s a very kind of complicated scenario. I won’t go through the details except to say that Madisonian federalism turns out to be a truly messy
kind of entity to try to make any sense of. The only way to make the system work
is you have to be willing to puzzle it out in it’s details. You can’t have big
theories about it. You have to kind of take it, I think, on a case-by-case basis,
power by power, issue by issue basis. And so that’s what alarms Madison most deeply in
his old age. Madison left the presidency in 1817. He has twenty years of retirement back at Montpellier Let’s get the the age of Madison back out, this is Madison in 1829. He spends a lot of time ruminating on American politics, he has a very active
correspondence. People write to ask his advice. And Madison gets very alarmed by
the direction which American thinking was going, by the insistence there be
either national supremacy on the one hand or states rights on the other. I think
what Madison imagined the federal system operating was you had to have the
patience to work it out on a case-by-case, issue by issue, power by
power, basis. The simple theory that said either we have national supremacy
because the Constitution was ratified by convention of states. Where there was some primordial state sovereignty this kind of South Carolina style federalism which can
never be reversed which can never be overturn. Madison understood that those efforts to simplify the federal system, were kind of formulas for disaster. These kind of either or propositions, national supremacy or a kind of a strong states rights position. If
you sincerely American about you know sincerely empirical about how make sense about the system worked, you had to try to figure it out on a case-by-case basis. Issue by issue, power by power, area by
area, you had to do it in good faith. You know, you had to kind of find formulas for
discussion, accommodation. You couldn’t oversimplify because that would create
real problems. So now at this point I’m going to turn the mike over to Colleen and then you know she’ll do her bit, then, I guess after that we’ll take some questions.
I guess after that will you know

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