Liberty Commentary

James Madison Speaks

by Attorney Wilton Strickland, LDL

James Madison, “the father of the Constitution” and fourth President of the United States, is another founder whose words offer us an urgent reminder of first principles.  He was the only president to see battle while serving in office (during the War of 1812), and as his nickname suggests, he played a key role in drafting the Constitution and persuading the States to ratify it.  As part of the ratification campaign, he co-authored the Federalist Papers, which I encourage anyone who truly wishes to understand the Constitution to read.  I will not reprint any of the Federalist here, but I will share some of Madison’s other writings and correspondence to demonstrate, once again, that we the “extremists” are the ones who seek to restore sanity.

First, even though Madison criticized the old Articles of Confederation as unworkable and fought to establish a more powerful federal government, he believed that states should nullify federal laws that exceed the Constitution’s scope, and he drafted a resolution for Virginia’s General Assembly to do just that during the Adams administration.  If nullification is good enough for the father of the Constitution, then surely it is good enough for us:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants enumerated in that compact, and that in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

That the General Assembly doth also express its deep regret that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of powers in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration, which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.

A frequent refrain we hear today is that nullification is unwarranted because the Solomonic judiciary can right every wrong.  Our experience has proved this argument to be laughable, and Madison refuted the argument in the Virginia resolution itself:

But it is objected that the judicial authority is to be regarded as the sole expositor of the [C]onstitution, in the last resort . . . .  On this objection it might be observed first, that there may be instances of usurped power, which the forms of the [C]onstitution would never draw within the controul of the judicial department: secondly, that if the decision of the judiciary be raised above the authority of the sovereign parties to the [C]onstitution, the decisions of the other departments, not carried by the forms of the [C]onstitution before the judiciary, must be equally authoritative and final with the decisions of that department.

But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases, in which all the forms of the [C]onstitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it.  The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the [C]onstitution; and consequently that the ultimate right of the parties to the [C]onstitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.  [emphasis added]

Another modern curse that Madison warned against was governmental interference in private property, either by punitive taxes or regulations that punish excellence and stifle dignity:

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses.  This being the end of government, that alone is a just government, which impartiallysecures to every man, whatever is his own.

That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.  What must be the spirit of legislation where a manufacturer of linen cloth is forbidden to bury his own child in a linen shroud, in order to favour his neighbour who manufactures woolen cloth; where the manufacturer and wearer of woolen cloth are again forbidden the economical use of buttons of that material, in favor of the manufacturer of buttons of other materials!

A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.

Madison identified the greatest source of governmental oppression and intrigue in terms all too familiar now:

The whole field of political sciences rich as it is in momentous truths, contains none that are better established or that ought to be more deeply engraven on the American mind, than the two following:  First.  That the fetters imposed on liberty at home have ever been forged out of the weapons provided for defence against real, pretended, or imaginary dangers from abroad.  Secondly, That there never was a people whose liberties long survived a standing army.

Of our modern political class, which sees itself uniquely fit and entitled to rule over the unwashed masses, it can be said that Madison had their number.  After all, petty tyrants are the rule rather the exception:

One of the divisions [among men] consists of those, who from particular interest, from natural temper, or from the habits of life, are more partial to the opulent than to the other classes of society; and having debauched themselves into a persuasion that mankind are incapable of governing themselves, it follows with them, of course, that government can be carried on only by the pageantry of rank, the influence of money and emoluments, and the terror of military force.  Men of those sentiments must naturally wish to point the measures of government less to the interest of the many than of a few, and less to the reason of the many than to their weaknesses; hoping perhaps in proportion to the ardor of their zeal, that by giving such a turn to the administration, the government itself may be degrees be narrowed into few hands, and approximated to an hereditary form.

Like Jefferson, Madison lived long enough to witness the courts do violence to the Constitution.  This especially stung Madison because he had worked hard to create a clear, objective set of rules featuring an amendment mechanism that allows Americans to update the Constitution as they see fit, but which a handful of black-robed sentinels have usurped:

But it was anticipated I believe by few if any of the friends of the Constitution, that a rule of construction would be introduced as broad and as pliant as what has occurred.  And those who recollect, and still more those who shared in what passed in the State Conventions, through which the people ratified the Constitution, with respect to the extent of the powers vested in Congress, cannot easily be persuaded that the avowal of such a rule would not have prevented its ratification.  It has been the misfortune, if not the reproach, of other nations, that their governments have not been freely and deliberately established by themselves.  It is the boast of ours that such has been its source and that it can be altered by the same authority only which established it. It is a further boast that a regular mode of making proper alterations has been providently inserted in the Constitution itself.  It is anxiously to be wished therefore, that no innovations may take place in other modes, on of which would be a constructive assumption of powers never meant to be granted.  If the powers be deficient, the legitimate source of additional ones is always open, and ought to be resorted to.  [emphasis added]

Madison had one of his finest hours when, as president, he vetoed a “public works” bill of a sort that would spark no controversy today (unless the president vetoed it as Madison did).  In 1817 Congress designated federal funds for internal improvements such as roads and waterways, but Madison would have none of it because nothing in Article I, Section 8 of the Constitution authorizes such legislative action.  I quote the veto message verbatim in order to illustrate how Madison demolishes the tired, modern rationalizations for federal excess, as well as to highlight the absence of similar integrity and self-restraint in our modern presidents.

Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.

The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.

“The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce with a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

To refer the power in question to the clause “to provide for common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

A restriction of the power “to provide for the common defense and general welfare” to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.

If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.

I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.

Last, it is worthwhile to note that Madison outlined three categories of governments, two of which have darkened the pages of almost all human history, and the third which embodied the American experiment.  One is tempted to ask which category our modern America falls under.

First.  A government operating by a permanent military force, which at once maintains the government, and is maintained by it; which is at once the cause of burdens on the people, and of submission in the people to their burdens.  Such have been the governments under which the human nature has groaned through every age.  Such are the governments which still oppress it in almost every country of Europe, the quarter of the globe which calls itself the pattern of civilization, and the pride of humanity.

Secondly.  A government operating by corrupt influence,; substituting the motive of private interest in place of public duty; converting its pecuniary dispensations into bounties to favorites, or bribes to opponents; accommodating its measures to the avidity of a part of the nation instead of the benefit of the whole:  in a word, enlisting an army of interest partisans, whose tongues, whose pens, whose intrigues, and whose active combinations, by supplying the terror of the sword, may support a real domination of the few, under an apparent liberty of the many.  Such a government, wherever to be found, is an imposter.  It is happy for the new world that it is not on the west side of the Atlantic.  It will be both happy and honorable for the United States, if they never descend to mimic the costly pageantry of its form, nor betray themselves into the venal spirit of its administration.

Thirdly.  A government, deriving its energy from the will of the society, and operating by the reason of its measures, on the understanding and interest of the society.  Such is the government for which philosophy has been searching, and humanity been sighing, from the most remote ages.  Such are the republican governments which it is the glory of America to have invented, and her unrivalled happiness to possess.  May her glory be completed by every improvement on the theory which experience may teach; and her happiness be perpetuated by a system of administration corresponding with the purity of the theory.