James Madison, Part 2

Jan Paynter: There’s a terrific essay on Madison by Stanford Professor of Political Science on Law, Jack Racove, who penned James Madison and the Constitution. And again, as I mentioned earlier, here he really hones in on the way Madison really shines a light on the way government ought to work and in reading this essay you also learn a great deal about the light of his own intellect, always concerned with the corrupting influence of self-interested motives in government, which is fascinating. And there’s another one I just wanted to mention that I know you know well. UVA History Professor Peter Onuf’s The Age of Jefferson and Madison. Now this gives you a really good feel for the debates, if people want to read more about this, that resulted from the Constitution fears of protracted wars, rifts in Congress, as we see graphically demonstrated today. So many, many reasons to read about this remarkable man and wonderful that you are doing this great work in Montpelier. We’re thrilled to have you come and share this with us today.

C. Douglas Smith: Sure. What I would say is there is a real renaissance in Madison literature right now and it’s an exciting time to be interested in many of the founders but definitely Madison. Jack Racove is one of the leading voices of course on Madison and constitution making out of Stanford and he’s on our Board and he really is able to peel apart what this has meant for contemporary society as well and of course Peter Onuf who’s a local celebrity always has a strong handle not just on Jefferson and Madison but the relationship of Jefferson and Madison and what that meant in the founding. Jefferson and Madison have a 50 year friendship that’s really quite important not just for them personally but for us as a country because together they build an alliance and a political partnership that not only spans the founding itself but multiple presidencies and then later in the retirement this deeper sense of the agrarian lifestyle, the higher order, the higher calling of what it is to be not just an American but a human. I think Jefferson and Madison find a real nexus there and that’s what you’re speaking to about.

Jan Paynter: Absolutely. I think that’s precisely what is so captivating about reading the original documents is the strong sense of commitment and dedication but also the ability to deftly, logically go through the arguments on both sides and reach consensus which you talked about earlier which is a tremendous skill which again many of us are looking to rediscover today.

C. Douglas Smith: Yeah. You don’t know how much I appreciate that you said consensus and not compromise. It’s—compromise is difficult for people because so often our priorities are about lines in the sand.

Jan Paynter: Well, and the implication is you’re giving something up.

C. Douglas Smith: Exactly. Exactly. I’ve got a—as I stand on the front porch of Montpelier, there’s this beautiful view of the Blue Ridge and I’ve just got to imagine that James is looking west and he’s not sure all that’s out there but he knows that there’s something greater out there and it’s not riches, it’s not about taking land over, it’s about the potential of the human spirit. I think you can only do that from being on that western edge of America at the time. They were in the middle of kind of nowhere but it’s that idealism that fuels America. We love idealists. We grow out of an idealism and we will be a great America as long as we never lose that idealism.

Jan Paynter: We ought to talk about Madison’s very specific focus on freedom of religious belief because it plays a huge role in his thinking. So talk a little if you would about the essay in pamphlet form entitled Memorial and Remonstrance Against Religious Assessments. What was it—what did it mean?

C. Douglas Smith: So this is something that happened in Central Virginia which was that the Danbury Baptists in of course Anglican Virginia, they were really in many ways being persecuted both through taxation and they were also—their pastors were getting captured and beaten. It was really a horrible time and Madison witnesses that and realizes as a person of conscience himself that that’s just really not right. You really can’t persecute someone because of their faith or lack of faith. And he starts really a lifetime crusade to make sure that there is religious freedom. Many people will remember that Thomas Jefferson is the primary author of the Statute of Religious Freedom but what people don’t realize is that for that to pass the Virginia General Assembly it was actually Madison that had to shepherd that through the General Assembly itself. Very dedicated to religious freedom. And in fact, if you come to Montpelier and you take the tour, one of the things that will often surprise people is that there are so many images that are connected to faith that aren’t just Christof centric. You’ll see Confucius, you’ll see some of the Classics and images of mythology. In one room we actually have a bust of John Carroll, the first Catholic Bishop in America. I can’t imagine what it’s like being an Anglican walking through Mr. Madison’s home and you see a papist in the corner and the reality is that Madison has everyone on their toes thinking about what it is that is factions and differences of people because what he’s going to hit home again and again during the constitutional writing process and even afterwards is not how are we different but really how are we the same.

Jan Paynter: Yes. And freedom of conscience was very important to him and it did I think, from what I understand, really transcend focus on any particular religion and there were many people that wanted to actually have programs specifically educating people about Christianity and he backed off and said, ‘No, no, no. Let’s not do that.’ I think it might have been Patrick Henry who was talking about that.

C. Douglas Smith: Well, of course, Patrick Henry himself a rabid preacher.

Jan Paynter: Yes, yes. Of course.

C. Douglas Smith: So that should be no surprise. Henry and Madison have a bit of a life-long conflict that goes on.

Jan Paynter: They do.

C. Douglas Smith: Of course Patrick Henry speaks at the Virginia Constitutional Ratifying Convention and it’s really he and Madison that have to go toe to toe and there are times when you’re not sure that Virginia will ratify this U.S. Constitution but in the end Madison wins the day probably—although historians might dispute this—but I might say probably because Patrick Henry simply spoke too many times.

Jan Paynter: There’s a lesson there.

C. Douglas Smith: Too much and too long.

Jan Paynter: Yeah. Yeah. One of the things that I found interesting, Madison warns also along with the dangers of citing particular religions and really privileging them in the nation, he warns against monopolies of all kinds. He warns against excessive riches which might have a corrupting influence. In many ways he’s tremendously prescient in terms of anticipating some of the issues that we have today.

C. Douglas Smith: Well, part of this is this kind of Scotch and Scottish Enlightenment of course in his background. I won’t say—it would be unfair to say that Madison might suggest that too much wealth is too much and we have to be honest, his family very much was a landholder. At any time he may have had as many as 100 slaves working the plantation. He himself was really for the day quite wealthy, although certainly after he passes away Dolly does not find herself in any opulence at all but that’s a different story. But for Madison, I think what he’s most concerned about is this concentration of wealth.

Jan Paynter: Oh, precisely, yeah.

C. Douglas Smith: They’ve just left Great Britain and the last thing they want to do is go back to a system of gentry.

Jan Paynter: Well, and coming from a great deal of wealth, you’re going to have certain insights into the abuses and the drawbacks so in a sense he was a good person to speak to that and rather brave I think. Define for us again a little bit the terms Federalists and Anti-Federalists. You mentioned this earlier. Who were they and what was the nature of the strenuous differences between them and also, and you eluded to this, where did Madison align himself in the debate and how did his thinking evolve and change?

C. Douglas Smith: Sure. Well, the Federalists of course and maybe the most popular Federalists are John Jay, Hamilton himself and James Madison because they wrote the Federalist Papers. The Federalists really wanted to see a much more unified, much more centralized government in many ways where the Anti-Federalists were quite happy to have state interests leading what was a very nascent expression of government. And the Anti-Federalists really didn’t want to have power ceded to any kind of a central authority. They were quite happy, in some ways, to work as tribes. One of the things we do at the Center for the Constitution is we work with international groups from around the world. They’re talking about their own constitutions and they actually often will remark that the way that the Anti-Federalists were acting, it felt a little tribal sometimes. And so these tribes, these states, really had a battle with those that wanted more centrality and in the end not only did Madison and his compatriots create the U.S. Constitution but they then had to defend it and they did so through a series of anonymous publications called the Federalist Papers. And of course the Anti-Federalists came out and they would argue this as well. It’s amazing, at the time, how much the newspapers were used to pit these intellectual arguments.

Jan Paynter: The Pamphleteers really did rule the day and there was that ongoing national conversation and what do we have today? We have Facebook, Twitter, we’re seeing what’s going on with the candidates so it’s a different kind, as I said to Bob Gibson in an earlier program, of pamphleteering that we’ve evolved into but in a way it’s the same thing. There’s a lot of back and forth. One of the things I wanted to just mention because I was really fascinated were some of the pieces that Madison wrote in the Federalist Papers. There was one that I was particularly fascinated entitled “Who are the Best Keepers of Peoples’ Liberties?” that was written in 1792 and here, and this goes to what we were talking about, Madison writes in a way as devil’s advocate from both Federalists and Anti-Federalist points of view. And I thought that that was really fascinating because he did have a synthetic and analytic mind and both of those things come into play, which is something that’s quite unique—his ability to see things in the round was really his great skill. And I notice as he speaks to people in the convention that he is very respectful and careful but also very canny in the way that he makes his point while giving everyone their due.

C. Douglas Smith: Absolutely. Well, there’s this—so as an example of that, there’s this great story. Of course Thomas Jefferson and James Madison worked hard to create the University of Virginia. Madison was rector for quite a while. In fact he used to have board meetings out at Montpelier from time to time.

Jan Paynter: Interesting.

C. Douglas Smith: So there’s this great story where Jefferson is writing back and forth to Madison about what books might be in the library and Jefferson suggests some titles and Madison says, ‘No, you can’t just have those that you agree with, Tom, because if we want our graduates to be able to argue and win the day, they need to understand both sides of the argument.’ And you see this with much of what Madison does. He’s not reading just those that he agrees with. He’s also reading those he disagrees with because knowing the arguments and anticipating the questions is really—that’s part of the task at hand. And so knowing what the Anti-Federalists were going to really pick apart and then putting that out there actually diffuses that power and it allows Madison to enumerate answers to each of those as well, as you say. Well, you mentioned some of the pamphlets and then Religion Remonstrance. So much of that—We think of that as religious liberty but so much of that is also tax policy.

Jan Paynter: Oh sure. Sure. Size of how much the churches owned.

C. Douglas Smith: Yeah. Well, and why we have a state church.

Jan Paynter: Precisely.

C. Douglas Smith: And this is the huge challenge is it’s not about saying, ‘Okay, we will recognize you, other person of faith.’ It’s that, ‘Hey, we need to be prepared for people not to be people of faith.’

Jan Paynter: Well, this is where again he is a man way ahead of his time because we obviously—everyone knows we have a far more secular society than we did at that time and widening the tent is very, very important.

C. Douglas Smith: I’ve never read any studies but there are—So in religious history of the U.S. there is this Campbell Stone movement. So it’s kind of like the first homegrown faith out of the Christian tradition here in the U.S. The more they move west as part of this western expansion, the less dogmatic and structural they get. And so if you think about it, Madison and Jefferson, they’re kind of on the Wild West early on.

Jan Paynter: That’s true.

C. Douglas Smith: And so what you’re getting is less structure, less expectation, less orthodoxy and how that morphs is really quite interesting because then you have everything from the holiness, which is a more extreme, to nearly faithless or seemingly spiritual but don’t box me in. I wish we could put Madison and Jefferson and some of these cats in a room and say to them, ‘What are you thinking here? Intellectually you’ve done a lot of thought about this,’ and what Madison could say is, ‘Look, I’m a child of the Enlightenment and the reason I’m not going to articulate what my perspective is on any dogma, faith or otherwise, the reason I’m so selective about articulating my perspective is because I don’t want anybody to box me in and I don’t want anybody to think that I’m boxing them in.’ It’s kind of like freedom, it’s about expression and it’s about exploring, exploring, exploring.

Jan Paynter: It is exploring. One of the things that we didn’t get to is Madison’s interest in rights not covered and the 9th Amendment, which is actually quite a bug bear for a number of Supreme Court justices but I think it’s a really fascinating one because you’re basically saying, ‘Any rights that are not enumerated are also covered. It provides for the future, different peoples and rights that might be necessary to be considered.’ It also goes to the fight between the two factions that we discussed earlier, which is the Federalists and the Anti-Federalists which is Hamilton might say, ‘Okay, rights are implied by the Constitution.’ On the other side they would say, ‘Well, but if you don’t bring them up, states might ally them and this is a problem for people.’ So the 9th Amendment really addresses that.

C. Douglas Smith: So let’s be honest. So the U.S. Constitution set 27 Amendments. The first 10 are the Bill of Rights. I don’t know if you’re a golfer but you have a Mulligan in there twice—prohibition. So really only 15 times have we changed the Constitution, many of those related to enfranchisement, bringing more people into the system. And I think we all agree that having women vote—it took us 133 years but it’s a very positive step. Madison went into the Convention and he didn’t really—he wasn’t keen on enumerating the rights because once you’ve written something down, you’re kind of leaving something out and the states had their Bills of Rights and so do we really need them.

Jan Paynter: But he evolved on that quite a bit.

C. Douglas Smith: That’s a great way to say it. He does. He evolves in that and I think what he comes to understand is that he not only needs to evolve intellectually but he needs to publicly evolve on that in order to get this thing to pass. And this is important because the Articles of Confederation were a real loser. It was a problem.

Jan Paynter: And there’s the idealist and the pragmatist working in tandem again which is a fascinating tension.

C. Douglas Smith: And where many of us would have slunk away and said, ‘We lost,’ what does Madison do? He becomes the primary architect and author of what we know as the Bill of Rights today. Not all of his amendments got through but those first 10 did.

Jan Paynter: That is so fascinating that he takes ownership of that. I think that’s—it’s exciting and I love hearing about the 9th Amendment because I just think it’s the dog that never barks in the Supreme Court.

C. Douglas Smith: Yeah. Someone could say a lot of things about the Supreme Court. Of course at the—Madison could have never imagined that of course because at the time the 3rd Article, the Supreme Court, the judiciary, was really the least formed. It’s the shortest of the three branches as described in the U.S. Constitution. It’s not until that pinnacle case Marbury vs. Madison that every law student learns on their first day of law school, it’s not until that Court actually seizes some of that power around judicial review that the court really gets powerful. And of course we see that today. Today the Court is arguably the most important and powerful of the three branches. I think people could argue that is that judicial review.

Jan Paynter: It is and I’m not sure what Madison would feel about that if he were around today.

C. Douglas Smith: Well, probably after Marbury vs. Madison not too well.

Jan Paynter: Yes. Yes. Precisely.

C. Douglas Smith: Madison’s always going to want so much power in the legislative branch because for him he really wants the people involved—that self-determination, that representative government, that republican form of government—and yet he understood that even that had its issues. You can’t run a country by committee, particularly our committees currently in Washington. So he and his peers put in this very elegant system, this balance of three branches—executive, legislative, judicial. And the way they do it horizontally and then vertically with the states and state power is really tremendous. It was groundbreaking.

Jan Paynter: It is really fascinating. I know he was also concerned about executive overreach possibilities and in the Constitution and this is something Hamilton liked because of course he wanted to be heading up the bank but you have the necessary and proper clause which I think gave Madison a great deal of pause because again, you might end up with a somewhat sovereign or perhaps a British-like system and this is something obviously people were quite averse to.

C. Douglas Smith: I think people have often wondered whether Hamilton wouldn’t have been, eh, okay with a more British-like system but…

Jan Paynter: Oh, yes, I think so.

C. Douglas Smith: There’s this great—you talk about executive power—there’s this great point in the Convention where they’re talking about executive power and it’s all around who gets to declare war and even Hamilton agrees that declaring war is clearly in the hands of the people—in the legislative branch. So that’s why in the Constitution only the people, only the legislative branch can declare war but who is it that carries that out? Who’s the executioner of that war? That is of course the executive. That keeps you from running a war by committee.

Jan Paynter: Well, it’s fascinating because the War of 1812 you have people picking French and British sides. Madison was a little bit less comfortable but he was brought round on the war in the end.

C. Douglas Smith: Well, the War of 1812 is very difficult for Madison. He’s a legislator.

Jan Paynter: Exactly.

C. Douglas Smith: He is about building the consensus, getting the perspectives. He wants to really challenge himself and challenge one another with the different perspectives and that’s why in those Federalist Papers he’s able to kind of lay out the two sides of the argument. Well, the War of 1812, he’s not a legislator, he’s an executive and it’s gets clutchy because Madison is accustomed to kind of geeking out on all the perspectives. But as an executive, you have to make decisions and so it took a while for Madison to really step into that role as executive. Now, what do we know about Madison that we can celebrate around the War of 1812? Well, he’s the only president since then who has never suspended habeas corpus during war time. We can be very, very proud that he’s the only president to have actually fought in a battle, Second War of Independence, 1812. He kind of goes into Bladensburg to beat back the British. Thank goodness the British didn’t get him. That would have been unfortunate. They did burn Washington which was incredibly unfortunate.

Jan Paynter: And the library.

C. Douglas Smith: But we also know that he helped this country survive that war and of course with Andrew Jackson’s great work down in the Battle of New Orleans ushered in an era of good feelings that really helped this country survive and really rebuild itself after the War of 1812.

Jan Paynter: Now he is a tremendous guiding spirit. Doug, thank you so much for taking time with us again and I hope you come back because I’d like to talk more about Madison.

C. Douglas Smith: Thanks so much.

Jan Paynter: Finally today, as we are all aware, we reside in a rather polarized, embattled, and institutionally divided republic. The current democratic debate touches on so many of the issues thoughtfully considered in Madison’s Corpus. Issues of voting rights, Supreme Court jurisdiction, the separation of powers, Second Amendment questions, income disparity, religious freedom, banking excesses, state sovereignty and always, always the unending wars. Perhaps we owe it to ourselves and to our children to visit with the writings of our fourth President and reenergize the spirit behind our Union. James Madison remains one of our democracy’s best and truest friends. I would like to thank our guest, Douglas Smith, for so generously giving of his time today to advance our understanding of the work of the Montpelier Foundation and the Robert Smith Center for the Constitution. Thank you at home for joining our conversation. If you would like more information concerning the topic under discussion today, we invite you to take a look at our website at politicsmatters.org. We will be posting a number of books, articles and relevant links on many of the issues under discussion today there for you. You will also find a complete archive of all prior Politics Matters programs which you may watch in their entirety anytime. We will be posting extended versions of the interviews on our site as well and will be continuing to add more content. You can also go to WVPT’s extensive video archive and watch the programs there as well. As always, we are very interested in hearing from you with any ideas, questions and concerns for future programs. We encourage you to email us at jan@politicsmatters.org. We are on PBS WVPT on the second and last Sunday of every month at 11:30 am. Thank you again and until next we meet, I’m Jan Paynter and this is Politics Matters.