Introduction 

by John C. Koritansky

 Although we pragmatic Americans tend to be somewhat resistant to matters of form, recent changes in the world and in our domestic politics have brought forth a new attentiveness to questions concerning the basic structural features of our government: e.g. separation of powers and checks and balances among the branches.  Americans observe the nations of Europe, and also the former members of the Soviet Union, groping towards new, “loose confederations.”  For any of us who have the slightest awareness of the experience of our own nation under the Articles of Confederation, the intentions of the Europeans or the former Soviets must seem vague and unschooled.  We are therefore more inclined to be conscious of the distinctive features of our own federal union and its claim to be something special: neither a completely consolidated union nor a confederation as the world has always known it.  So pervasive and seemingly intractable has the problem of a large industrial society become that we have to wonder, has the country finally come to a point where we are simply not able to govern ourselves responsibly under our present forms?  Ideas like the one to limit legislators’ terms, or to give the executive a much freer hand in shaping the budget, go directly to the basic issues of checks and balances of the presidential/congressional system of government.  It is not surprising, then, that we are witnessing a rejuvenation of interest in constitutional scholarship.  Professor Frisch’s statement contributes to this renewal.  He provides us with not only a clarification regarding the intention of the framers as to the meaning of one or another of their authoritative phrases, but a reflection upon the differences in constitutional and political philosophy among them.

Professor Frisch sets forth a structure of perspectives on the Constitution among James Madison, Thomas Jefferson, and Alexander Hamilton as being “Three-Cornered.”  This means at least three things.  First, as he points out explicitly, the Constitution was not really finished in 1789.  Its meaning in the crucial respects regarding the limits of federal power and executive/legislative balance remained to be determined and were largely determined by the political controversy among these three men.  Second, what is very likely the commonplace understanding of the relationship among these three figures is not true.  That is, Frisch seeks to amend our view of the great, titanic competition between Hamilton and Jefferson in defining the alternative readings of the Constitution, with Madison perhaps vacillating somewhere in between or collapsing into Jeffersonianism.  Madison, according to Frisch, was a “consummate trimmer,” but nevertheless represents a genuine third alternative that deserves consideration along with the others.  Finally, to say that the relationship is “three cornered” means that even today it is not simply possible to resolve the differences by adopting any one of the three.  Frisch’s own provisional position is probably closest to Hamilton’s, but with the recognition that his endorsement of “limited energetic government” requires continual clarification.

Professor Frisch describes the differences among the three figures in several specific areas: the question of the power to incorporate a bank, the need for a Bill of Rights, the neutrality proclamation, the Kentucky and Virginia Resolutions of interposition, and the Louisiana Purchase.  The positions taken over each issue all throw light on one underlying question, namely, was Jefferson correct in accusing Hamilton of being a “monocrat” or “monarchist,” of paying only the slightest lip service to the notion of limited government but being ready to sweep the limits away when they should interfere with the ambitions of an American Caesar?  It is a good question.  Madison had not originally thought that it reflected the most important danger to the new nation but he was eventually persuaded by Jefferson the danger was real enough.  Nevertheless, Madison seems to have remained more aware than Jefferson of the great difficulty of restricting governmental power through “parchment provisions” whether of positive or negative form.

Professor Frisch shows that it was this difference between Madison and Jefferson that effected the way that each thought that the limits on power in the Constitution could actually be enforced.  For example, while Madison had no doubts regarding the unconstitutionality of the Alien and Sedition Acts as exceeding federal powers, Madison would not go as far as Jefferson’s Kentucky Resolution in calling for a nullification of federal laws that the state deemed unconstitutional.  Madison appears to have intended that if enough states joined Virginia’s publicly stated opinion that the Alien and Sedition Acts were unconstitutional, the American people would be called to function as a sort of substitute for the “Council of Revision” that Madison had proposed unsuccessfully at Philadelphia, and they would repeal the law.

In a related example, a very striking one, Frisch shows that Madison was more like Hamilton than like Jefferson in trying always to find a legally permissible remedy for the occasional inconvenience of Constitutionally limited executive powers.  Only Jefferson among them dared to argue the propriety of violating the Constitution when the public convenience required it, as in the case of his purchase of the Louisiana territory for the United States.  There seems a clear connection between Jefferson’s affording himself a strict “plain meaning of the words” constructionism and his flirtation with illegal executive prerogative.

In these and in each of the other carefully selected instances that Professor Frisch discusses, we are brought to think through the broad question of the monarchism that may lie at or near the heart of our American institutions and the implications of that for the practical meaning of federal republicanism.  It is an issue that remains very much alive today, for our own country and for other states that may look to us for useful lessons.

John C. Koritansky

Hiram College

The Hamilton-Madison-Jefferson Triangle: Their Three-Cornered Perspectives on the Constitution

By: Morton J. Frisch

Introduction:

It is rather interesting that, while Hamiltonianism and Jeffersonianism have been used as terms to characterize movements of thought in America, there has been no comparable term to elevate Madison’s name to a movement.  Madison’s contributions to the thought and statesmanship that made the American Constitution were singularly impressive, but there is no movement comparable to Hamiltonianism or Jeffersonianism associated with the father of the Constitution.  There is no Madisonianism, as it were, floating on the stream of history.  Madison distanced himself from Hamiltonianism by referring to the distance in “the general complexion of their political theories” at the time of their collaboration on The Federalist and from Jeffersonianism by moderating Jefferson’s more radical stances in their collaborative efforts on the Kentucky and Virginia Resolutions.[1]  Madison believed in limited energetic government, but also, and in marked contrast to Hamilton, in sharply limited and clearly defined executive power.  One could reasonably assume therefore that he achieved a kind of equilibrium between the Hamiltonian and Jeffersonian movements of thought without having generated a movement of his own.  But he was not above Hamilton and Jefferson.

The great tension in American history, on the level of thought (which had clear ramifications for practice), was that between Hamilton on the one hand and Jefferson and Madison on the other.  Hamilton and Jefferson and Madison were locked in a battle over the basic character of the Constitution.  The American Constitution was left uncompleted in 1789, for it needed additional making or doing.  In that uncertain founding, none of these individuals were enthralled with that document as it came off the drawing board.  Hamilton wanted a stronger executive to counteract an over-powerful legislature and Jefferson believed that the President had too much power without constraints on the possibility of reelection.  Madison, on the other hand, was concerned that the central government lacked a power vested in the national legislature to veto state laws, an ingredient which, in his view, was essential for establishing its supremacy over the states.  But because of their varying degrees of involvement in its construction, Hamilton and Madison labored vigorously in their respective state ratifying conventions to secure the new Constitution’s approval, whereas Jefferson merely acquiesced in it.  As a matter of fact, Madison’s efforts to secure a bill of rights can be understood, at least in part, as an attempt to forestall a move toward a second constitutional convention conceivably aimed at revising the basic structure and powers of the new government.  Hamilton and Madison regarded the Articles of Confederation as fundamentally unsound, while Jefferson would have settled for amendments to that constitution, or at least that is what he said.[2]

Jefferson, from the point of view of his philosophy, understood written constitutions as restricting the practices and policies of governments from deviating from a clearly defined and limited concept of powers.  He argued accordingly that the government under the new Constitution could do nothing which was not either specifically granted as a power or was not absolutely necessary to carry out the enumerated powers.  The clause which gives Congress broad power to make all laws which are considered “necessary and proper” for carrying the enumerated powers into effect was regarded by Jefferson, although he never said so in so many words, as fatal to the doctrine of strict construction in which American liberties were supposed to rest.  He feared that Hamilton’s loose interpretation of the word “necessary” in the necessary and proper clause during the debate over the Bank bill would establish a precedent for unlimited national powers and obscure the real basis of political authority.  Madison, following that lead, said in no uncertain terms, in a speech in the House of Representatives in opposition to the Bank bill, that those favoring the bill had “consented to the ratification of the Constitution on different principles and expectations” than his own.[3]  He elsewhere explained that the powers implied in the enumerated powers have an immediate and appropriate relation to them, as a means necessary and proper for carrying them into execution.  He saw no difference between unlimited powers exercised under the name of unlimited powers and those exercised under the name of unlimited means of carrying limited powers into execution.[4]

Madison could be said to share Jefferson’s understanding that the Constitution is the explicit delegation of sharply defined powers.  He believed, pursuant to this line of thought, that executive power must remain within precise limits.  Madison’s alienation from Hamilton, an alienation which Hamilton found hard to understand, involved the latter’s construction of executive power.  Madison claimed that Hamilton’s reading of the executive power clause in Article II introduced “new principles and new constructions” into the Constitution which were intended to remove “the landmarks of power,” a criticism that concerned Jefferson as well.[5]  But his perspective was somewhat different from that of Jefferson, for we merely have to remember his role in the ratification of the Constitution as well as his correspondence with Jefferson at that time to recognize that their thought was clearly distinguishable.  The difficulty of defining the difference between Madison and Jefferson is particularly great because Madison bowed to Jefferson’s leadership, but it would be a mistake to think that he was a conceived Jeffersonian.  He can be most clearly distinguished from Jefferson by the fact that he had more appreciation, certainly in theory, for the necessity of energetic government.  He simply could not accept Jefferson’s almost complete depreciation of political power, a difference which explains his more moderate stances on practical political issues.  It is very difficult to see and perhaps even more difficult to understand, but Madison’s thought moves between the boundaries drawn by Hamilton and Jefferson.  He was in between them.  He was a consummate trimmer.

Constitutional Principle and Constitutional Practice

Hamilton had never dreamed it possible that there could be a conflict between Madison and himself.  Madison is reported later in his life to have said: “I deserted Colonel Hamilton, or rather Colonel H. deserted me; in a word, the divergence between us took place—from his wishing to administration, or rather to administer the Government (these were Mr. M’s very words), into what he thought it ought to be; while, on my part, I endeavored to make it conform to the Constitution as understood by the Convention that produced and recommended it, and particularly by the State conventions that adopted it.”[6]  Hamilton, as Secretary of the Treasury in the new American regime, was required to submit the principles of the American Constitution to the test of day-to-day administrative practice.  He did not understand the problem, therefore, so much in terms of molding circumstance to principles (that is, making the government conform to the Constitution, as Madison had stated it), but rather in terms of flexibly applying principles to circumstance, or of making accommodations to practical political necessities.  As Hamilton wrote to Rufus King in 1798: “You know…how widely different the business of Government is from the speculation of it, and the energy of the imagination, dealing in general propositions, from that of execution in detail.”[7]  The problem of statesmanship for him was mainly a matter of determining what kinds of arrangements and policies under given circumstances would be the best means of securing the collective and permanent interests of the political community, and that would require a flexible constitution of powers.  What appeared to Madison as unconstitutional was for Hamilton a different view of what constitutionalism requires, which is all the more incredible in view of the fact that they had previously engineered the greatest collaborative effort in the history of political thought.

Hamilton recommended that “in construing a Constitution, it is wise, as far as possible, to pursue a course, which will reconcile essential principles with convenient modifications.”[8]  No one was more aware than Hamilton of the fact that principles are fixed, but political practice is necessarily fluid.  It is the fluidity of practice that requires the modification of principle.  “In my reasonings on the subject of government, I rely more on the interests and opinions of men, than on any speculative parchment provisions whatever.  I have found, that Constitutions are more or less excellent, as they are more or less agreeable to the natural operation of things: I am therefore disposed not to dwell long on curious speculations, or pay much attention to modes and forms; but to adopt a system, whose principles have been sanctioned by experience; adapt it to the real state of our country; and depend on probable reasonings for its operation and result.”[9]  Hamilton repeatedly emphasized the difficulty of applying principles and the danger of applying them too rigidly to specific situations.  Madison by contrast, wanted “a system of administration corresponding with the purity of theory.”  He wrote to J.K. Paulding in 1831 that “the criticism to which [Hamilton’s] share in the administration of [the new system] was liable was, that it had the aspect of an effort to give the instrument a constructive and practical bearing not warranted by its true and intended character.”[10]  Madison’s strait-minded concern for the Constitution, as Hamilton saw it, would have the effect of depriving the Constitution of its capacity to avail itself of experience and of accommodating its principles to circumstance.  Hamilton perceived that, when the Constitution was submitted to the test of practice, many things would have to be worked out in the course of time that could not have been accounted for in the original document.  But although Hamilton argued a broad rule of constitutional construction, he firmly believed in constitutional principles.

The Debate over the Proper Construction of Constitutions

Jefferson was convinced in his own mind that monarchical power was established in the American Constitution, or at least the seeds of it, under the guise of executive power with indefinite re-eligibility, and in a letter written to James Sullivan in 1797 he came close to saying that the American regime was a mixture of monarchy and republicanism.[11]  Jefferson was surely dead serious when he wrote that the object of Republican opposition to the Federalist administration was, among other things, not to permit the Constitution to be construed into a monarchy.[12]  He revealed more than he realized when he said that the revolution of 1800 was as real a revolution in the principles of government as 1776 was in its form.[13]  The revolution of 1800 was for Jefferson a revolution in the principles of government in which the last vestiges of monarchism were removed.

Jefferson, a participant in the framing of the Articles, remarked as late as 1786 that “the Confederation is a wonderfully perfect instrument, considering the circumstances under which it was formed.”  He continued: “It has been said that our governments both federal and particular want energy: that it is difficult to restrain both individuals and states from committing wrongs.  That is true, and it is an inconvenience.  On the other hand that energy which absolute governments derive from an armed force, which is the effect of the bayonet constantly held at the breast of every citizen, and which resembles very much the stillness of the grave, must be admitted also to have its inconveniences.  We weigh the two together, and like best to submit to the former.”[14]  Pursuing the same line of thought, Jefferson wrote to James Madison the following year: “I own I am not a friend to a very energetic government.  It is always oppressive.  The late rebellion in Massachusetts has given more alarm than I think it should have done.”[15]  He was willing, as he indicated, to sacrifice energy for liberty.

But despite his satisfaction with the Articles, Jefferson was not reluctant to recommend that, as a matter of course, constitutions be remade every generation.  That recommendation assumes, needless to say, that the decisively architectonic function of statesmanship is a relatively simple task.  Hamilton was less sanguine than Jefferson, for he well understood that serious errors have been committed in organizing (and reorganizing) political societies, and that “bad principles in a Govt. tho slow are sure in their operation, and will gradually destroy it.”[16]  He cautioned that “good constitutions are formed upon a comparison of the liberty of the individual with the strength of government: If the tone of either be too high, the other will be weakened too much.”  The problem therefore in forming systems of government is to find the best possible mode of conciliating those objects so that “the government will reach, in its regular operations, the perfect balance between liberty and power.”[17]  Jefferson ignores the fact that the act of founding a regime requires the greatest circumspection, for a change of regime is the greatest and most fundamental change a political society can undergo.  Hamilton would hold that only when a regime (that is, a regime of liberty) is in a state of complete disintegration, as was the Articles of Confederation, could its transformation into another regime become defensible.

It could be said that the dominant perspective of the American Revolution and indeed the Articles of Confederation was that power tends to corrupt and that absolute power corrupts absolutely.  Jefferson, under the influence of that view, wrote to Edward Carrington during the ratification debates in 1788 that “the natural progress of things is for liberty to yield and for government to gain ground.”[18]  He later wrote to Archibald Stuart that “he would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it.”[19]  But Hamilton was convinced that the abstraction of liberty from government is practically speaking impossible.  He argued in the opening number of The Federalist that “the vigour of government is essential to the security of liberty; [and] in the contemplation of a sound and well informed judgment, their interest can never be separated.”  Hamilton was as fully dedicated to liberty as was Jefferson, but he doubted the soundness of a perspective that placed greater emphasis on liberty than on authority.  He was not a simple believer in liberty.

Hamilton wrote in 1781, from the perspective of the problems of the Confederation, that “in a government formed for durable liberty, not less regard must be paid to giving the magistrate a proper degree of authority, to make and execute laws with rigour, than to guarding against encroachments upon the rights of the community.  As too much power leads to despotism, too little leads to anarchy, and both eventually to the ruin of a people.  These maxims are well known, but never sufficiently attended to, in adjusting frames of government.”[20]  By this, he meant that the only way we could have liberty is by opening our minds to authority, whereas Jefferson’s tendency, with his abstract enthusiasm for revolutions, was to depreciate political authority and thus weaken the force of government.  Hamilton, unlike Jefferson, recognized that stable republican rule could not be based on the notion that only a small portion of power is requisite to government.  In a way Jefferson knew this, but his doctrine made him forget it.  From the perspective of Hamilton, Jefferson ignored the fact that the real problem of politics is not so much the presence of power as its absence.  Jefferson appeared to have believed that government may be more and more replaced by society and indulged in sentimental visions of a society without government.  He looked forward to the perfect freedom of self-government.

Jefferson would have been well satisfied with something less energetic than the American Constitution, like a reconstituted Articles of Confederation.  But it should not surprise us that Jefferson, although inclined toward radical change, was defensive to the Articles, for he was more thoroughly a rebel in thought than in action.  The revolutionary boldness of his thought, as evidenced in the Declaration of Independence, was spectacular, but he remained a revolutionary theorist rather than a founder.  However much Jefferson acquiesced in the new Constitution, he believed that the corruption of freedom is caused by too much government.  He regarded it as particularly unfortunate that there were unresolved questions left by the constitution concerning the extent of executive power, and was convinced in his own mind that a limited monarchy would be reestablished under the guise of executive power with indefinite re-eligibility.

Jefferson feared that great concentrations of power in the more permanent branches of the government threatened freedom and the spirit of freedom in the only part of the world where freedom existed.  His notion that governmental power represents a threat to freedom leads in his thought to the demand for periodic appeals from the constitutional order to the sovereignty of the present generation.  He approached constitutions with the view that they should be reviewed or remade every generation and from this it follows that the constitution is not the highest authority.  He looked at constitutions as the imposition of one generation on another rather than as the permanent framework within which the prudent handling of changing situations could take place through construction.  Jefferson’s most precise formulation on the imperfection of constitutions as constitutions was his statement that “some men look at constitutions with sanctimonious reverence, and deem them like the Ark of the Covenant, too sacred to be touched.  They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment…But I know…that laws and institutions must go hand and hand with the progress of the human mind.”[21]  Jefferson believed that constitutions must change, with different constitutions from generation to generation, not simply because of particular inadequacies in their construction, but because of the change in generations.

It is a rather strange quirk of fate that the author of the Declaration of Independence was not present at the Constitutional Convention or the Virginia ratifying convention.  Madison provided Jefferson, who was in France at the time, with a detailed account of the results of the Convention’s deliberations, an initiative which occasioned a series of exchanges between them on the proposed Constitution.  It could be said that this correspondence, along with the copious argumentation relative to ratification, constitutes a useful supplement to Madison’s notes on the Debates as founding documents.  But that correspondence would hardly make up for Jefferson’s absence from the constitutional proceedings themselves, at least from a Jeffersonian standpoint.  He was, in Madison’s words, “an interested but distant spectator [of the train of events which brought about the important crisis of a general convention, as of those which followed it].”[22]

The Debate over the Bill of Rights

Jefferson seems to have taken it for granted that the Constitution, as originally written and construed, did not contain adequate protections for individual rights.  To the extent that the Constitution was able to establish rights and powers, Jefferson leaned toward rights and Hamilton leaned toward powers, with Madison somewhere in-between.  Jefferson stressed the importance of a separate bill of rights because he thought that the new Constitution was too sparse on limitations on power.  He evidently believed that there was a tendency in all governments to an augmentation of power at the expense of liberty in contrast to the Madisonian view that liberty may be endangered by the abuses of liberty as well as by the abuses of power.  Madison indicated to Jefferson that, in his view, the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the government, and that this was the source of their differences concerning the efficacy of a bill of rights in controlling abuses of power.[23]  But he conceded that a regime of liberty would be incomplete which did not take sufficient account of the liberty of the citizen as well as the liberty of the constitution, for the constitution may happen to be free and the individual not free.

Madison, under the influence of Jefferson, had come to have a somewhat more positive view of bills of rights, seeing them as an auxiliary precaution against encroachments on civil liberties, although he did not recommend the adoption of a separate bill of rights as an addendum to the Constitution.  He wanted to incorporate the Bill of Rights (which he had assembled) into the main body of the Constitution, declaring that “there is a neatness and propriety in incorporating the amendments into the Constitution itself; in that case the system will remain uniform and entire; it will certainly be more simple when the amendments are interwoven into those parts in which they naturally belong.”[24]  Madison saw no reason “to give up the form by which the amendts when ratified would have fallen into the body of the Constitution, in favor of the project of adding them by way of an appendix to it.”[25]  He wanted to avoid a form which would emphasize a distinction between the Constitution and the Bill of Rights.

No one argued more persistently than Jefferson that the Constitution would be incomplete without a bill of rights, and he made the case to Madison especially in a letter of March 15, 1789.  His argument was that it becomes necessary in order to protect the liberties of the citizen against the abuses of governmental power, for it will be the text by which all acts of the government will be tried.[26]  Madison had previously indicated to Jefferson that his own opinion had always been in favor of a bill of rights, provided that it was so framed as not to imply powers for the government not meant to be included in the enumeration.  He confessed the efficacy of a bill of rights in controlling abuses of power, stating that such a charter could serve on occasion to counteract subversions of liberty.[27]  Madison finally came around full circle to the Jeffersonian viewpoint in the debate over the Bill of Rights in the House of Representatives.  If the amendments were incorporated into the Constitution, he argued, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated in the Constitution by the declaration of rights.”[28]

There is much food for thought in Hamilton’s remark that the Constitution itself is in every rational sense, and to every useful purpose, a bill of rights.[29]  It could be argued that he likened the Constitution to a bill of rights because it contained a limited codification of fundamental procedural rights, such things as one would find in a bill of rights, supplemented by a provision for the extension of judicial power to matters of equity as well as law.  The guarantee of trial by jury in criminal cases, the bans on ex post facto laws and bills of attainder, the narrow definition of treason and the provision for the writ of habeas corpus would tend to support Hamilton’s claim that the minimum restraints acceptable in free government were already written into the Constitution.  But what is beyond doubt, when Hamilton stated that the courts would serve to mitigate the severity and confine the operation of “unjust and impartial laws,” is that he was writing from the perspective of equity in its role as a complement to law.[30]  It was his understanding that the judicial power, by being extended to equity, was authorized to correct or ameliorate the harshness or rigidities of the statue law.  Not only does the Constitution contain certain specified exceptions to the legislative authority, which is the province of the courts to oversee in their work in construing laws, but in Hamilton’s view its judicial provisions authorize the courts, in applying the law to particular controversies, to correct discriminations in the law.  Whatever reservations he may have had about bills of particulars, he contemplated the possibility of courts of justice performing a role in protecting individual liberties.  It would be untrue to say, therefore, that Hamilton understood the constitution simply as a bill of powers.

The Debate over Washington’s Neutrality Proclamation 

Hamilton sensed that the final structure of the unfinished Constitution might well be determined by the way in which he would advance his broad constructions of certain clauses in that document during his tenure in office.  It was doubtless true that the open-ended character of some of the constitutional provisions provided an occasion for extending the powers of government beyond their specified limits without changing the ends of government.  The Constitutional Convention had left largely undefined the precise manner in which legislative and executive authorities would share their divided responsibilities in the conduct of foreign relations, not to mention the fact that the relationship between executive power and republican government was not fully thought through at that time.  When Jefferson read Hamilton’s defense of the Neutrality Proclamation of 1793 in the newspapers, relieving this country of obligations incurred under a 1778 treaty with France, he virtually implored Madison to attack it.[31]  Although he had previously acquiesced in its issuance, it now became clear to him that Hamilton was using the neutrality issue to extend the area of executive control over foreign affairs.  It was not so much the Neutrality Proclamation itself as the constitutional interpretation Hamilton advanced in its defense that was the object of Jefferson’s great concern.  Jefferson regarded it as particularly unfortunate that there were unresolved questions left by the Constitution concerning the extent of executive power, especially in foreign affairs, and therefore we can understand somewhat better why he reacted so strongly to Hamilton’s broad construction of executive power.

Although there is no specific power in the Constitution authorizing the President to issue a proclamation of neutrality, part of Hamilton’s defense of that action was that the President’s power issues from the general grant of executive power which includes that of controlling foreign relations.  This construction, he argued, is supported by the language the Constitution uses, for the general grant of executive power in Article II refers presumably to more than the enumerated executive powers that follow.  Hamilton maintained that the general grant of executive power leaves the full range of executive powers to be discovered by interpreting the general grant “in conformity to other parts [of] the constitution and to the principles of free government.”  It would have been difficult for the Constitution to have contained “a complete and perfect specification of all the cases of Executive authority,” he reasoned, and therefore it left a set of unspecified executive powers that must be determined by an inference from the more comprehensive grant.[32]  It is against this very orientation that Madison’s Helvidius criticism was directed.

Hamilton interpreted the enumeration of legislative powers in Article I as more limiting than the general grant of executive power in Article II.  It was assumed by him that general powers implied more than the enumerated powers which followed in Article II.  The executive power was to be limited only by the exceptions or qualifications expressed in that instrument.  Madison, on the other hand, emphasized that the President had not been given any specific power to declare neutrality.  He was, theoretically speaking, a purist.  It could not be clearer that his attachment to Jefferson was at the root an attachment to the purity of republican theory.  Madison favored the creation of an executive with rigorously limited powers, following what he believed to be the standard of the Constitution.  Even when he was arguing for the President’s broad removal power in the first Congress, it was based on what he understood to be a fair construction of the Constitution which consists with liberty, rather than on a liberal construction of executive power.[33]  Madison’s alliance with Jefferson against Hamilton was formed, at least in part, to put an end to what was perceived as the monarchising tendencies in the Hamiltonian programs and policies.  They were convinced that it was Hamilton’s intention to create an unlimited executive.

Madison claimed, moreover, that the Neutrality Proclamation constituted an infringement on the legislative power, since its issuance might practically foreclose Congress’ option to wage war or not.  Congress always has a right to declare war, but, he reasoned, the President’s claim of the right to judge national obligations under treaties would put Congress in a position in which it would find it difficult to exercise its right.[34]  Hamilton’s position would be that the truth of this inference does not exclude the executive from a right of judgment in the execution of its own functions.[35]  He admitted that the right of the executive, in certain cases, to determine the condition of the nation, by issuing a proclamation of neutrality, might very well affect the power of the legislature to declare war, but he saw that as no argument for constraining the executive.  “The Legislature is free to perform its own its own duties according to its own sense of them—though the Executive in the exercise of its constitutional powers, may establish an antecedent state of things which ought to weigh in the legislative decisions.”[36]  Hamilton’s argument was that the executive has broad authority in conducting foreign affairs, including the right to interpret treaties, declare “peace” or “neutrality,” and even take actions that might later limit congressional options in declaring war.  But that view of the Constitution was, in the view of Madison, something conceived in error.

Madison stressed the inconveniences and confusion likely to result from Hamilton’s view of concurrent powers in the hands of different branches of government.  He argued that “a concurrent authority in two independent departments, to perform the same function with respect to the same thing, would be awkward in practice, as it is unnatural in theory.  If the legislative and the executive both have a right to judge of the obligations to make war or not, it must sometimes happen, though not at present, that they will judge differently.”[37]  Hamilton not only foresaw and expected such clashes between the legislative and executive to occur, but he thought them beneficial.  He would argue that these clashes arise not because the Congress and President share executive power, but because they disagree over policies and clash in the exercise of their concurrent authorities.  “While…the Legislature can alone declare war, can alone actually transfer the nation from a state of Peace to a state of War—it belongs to the ‘Executive Power,’ to do whatever else the law of Nations cooperating with the Treaties of the Country enjoin, in the intercourse of the of the U[nited] States with foreign Powers.  In this distribution of powers the wisdom of the constitution is manifested.”[38]  The potential for conflicting assertions of power was recognized by Hamilton, for he spoke of “the competition that ever subsists between the branches of government,” the competition that keeps powers limited.[39]  He did not regard the conflict between the branches as debilitating.

The Debate over the Kentucky and Virginia Resolutions

The Jeffersonian opposition to the Federalist program of centralization took the form of a demand for a strict or literal interpretation of the powers granted by the Constitution to the central government.  Madison believed that the national government was sovereign in certain clearly defined areas, while the powers not delegated to the national government, or what could be clearly implied from the delegated powers, belonged to the states.  He systematically chose neither the national government over the states nor the states over the national government, stating that the Constitution is “in strictness, neither a national nor a federal constitution, but a composition of both.”[40]  He later wrote that “those who deny the possibility of a political system, with a divided sovereignty like that of the U.S., must choose between a government purely consolidated, & an association of Govts purely federal.”[41]  It is conceivable that the position Madison took in the Virginia Resolutions along with Jefferson in the Kentucky Resolutions (that is, the right of states to interpose declarations of unconstitutionality to preserve their share of sovereignty) derives from his notion of the divisibility of sovereignty (which, in turn, rests on the compact theory of the formation of government).

The Kentucky and Virginia Resolutions, passed by those respective legislatures in opposition to the Alien and Sedition laws of 1789, were the first statement by either Madison or Jefferson of the theoretical principles on which the doctrine of states’ rights was constructed.  In his Report on the Virginia Resolutions, Madison stated the doctrine as follows: “The States…being 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, that as parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.”[42]  Madison and Jefferson believed that the great danger to the American Government would come from the passage of laws which exceeded the limits of the powers delegated, and that these laws would be legitimized by strained constitutional constructions.  Madison perceived the Alien and Sedition laws as an attempt to convert a limited government into an unlimited government.

Madison presented interposition in the Virginia Resolutions as the right of states to make declarations of unconstitutionality against laws of the United States which exceeded their delegated authority.  Jefferson in the Kentucky Resolutions maintained that the states, as sovereign parties to the constitutional compact, created the central government as their agent to perform limited and defined functions.  By this formulation, each state, in all disputes arising under the Constitution, has a right to judge infractions of the compact (i.e. usurpations of power by the central government) and, in Jefferson’s original draft of those Resolutions, the mode and measure of redress as well.  But in the Virginia Resolutions, Madison never mentioned the right of states to resist measures of the central government, only their right to interpose declarations of unconstitutionality.  He did not, moreover, view the government created by the compact as a mere agent for a confederation of sovereign states, but as a national government authorized to make laws for the government of them.

The Virginia Resolutions represented a modification of Madison’s earlier thought in that they signified his clear recognition that the continuous involvement of the states is required in resisting the tendency toward consolidationism, and therewith the states assumed an increased role for him in maintaining the constitutional balance.  But the position he took in those Resolutions had consequences which went far beyond the debate over the Alien and Sedition laws, that is, his statement that the states have the right to “interpose” declarations of unconstitutionality, whenever in their view the central government oversteps its bounds by construing its powers too broadly, supplied the premise from which the doctrine of nullification could later be drawn.  Hamilton, in a letter to Theodore Sedgwick, referred to “the tendency of the doctrines advanced by Virginia and Kentucke to destroy the Constitution of the United States,” but Madison did not appear to recognize in those Resolutions any risks involved for the regime.[43]

John C. Calhoun borrowed the earlier states’ rights’ formulation of Madison in order to bring about the repeal of the Tariff of Abominations of 1828.  South Carolina’s Nullification Ordinances of 1832 declared the tariffs of 1828 and 1832 unconstitutional.  The doctrine of nullification, first formulated in the South Carolina Exposition and Protest of 1828, found its basis in the compact theory of government articulated in the Kentucky and Virginia Resolutions, for nullification was presented by Calhoun as a means for states to check encroachments in order to preserve their own share of sovereignty not surrendered under the constitutional compact.  The essence of nullification was in its assertion that a state had the power to nullify national laws which exceeded their sphere of constitutional authority.  But Madison maintained that there was no connection between the nullification doctrine and the Kentucky and Virginia Resolutions.  Even though Kentucky and Virginia had declared the Alien and Sedition laws unconstitutional, Madison argued that these Resolutions were never meant as a prescription for action, and he made a studied attempt to distinguish the later from the earlier doctrine.

In his Report on the Resolutions, Madison represented the Kentucky and Virginia doctrine merely as a criticism of unconstitutional action.  He referred to the Virginia Resolutions as only “expressions of opinion unaccompanied with any other effect than what they may produce on opinion by exciting reflections,” and the same would presumably apply to the Kentucky Resolutions.  Madison argued that the right of a state to declare a law unconstitutional did not have a nullifying signification, only a declaratory one, inasmuch as a declaration of unconstitutionality does not have the effect of nullifying a law.  His contention was that the purpose of the Resolutions was only to call upon the states to recognize and announce a principle.[44]  But Madison could not disguise the fact that the right of a state to declare laws of the United States unconstitutional, whether called “interposition” or “nullification” (Jefferson used the latter term in his draft of the Kentucky Resolutions of 1799), is more than a mere protest.  We was unwilling to admit that the terms “interpose” or “interposition” as well as “nullification” have precise meanings, inasmuch as their essence, is suspensive or preventative and not merely declaratory of opinion.  It is doubtful whether Madison ever really allowed himself full consciousness of what he (or Jefferson for that matter) had written in the Kentucky and Virginia Resolutions.

It would be very difficult for Madison to defend the right of states to interpose declarations of unconstitutionality in view of his earlier stance in the Constitutional Convention that Congress ought to have a veto on legislative acts of the states.  He recommended there an indefinite power in the national legislature to negative acts of the states as “absolutely necessary to perfect system.”[45]  He even went out of his way to explain in great detail in a letter to Jefferson why he believed this to be a crucial requirement for a political system like that of the United States.[46]  The most plausible explanation of Madison’s eventual shift away from extreme nationalism rests in the fact that he simply did not anticipate, at the time of the drafting of the Constitution, the possibility of an enlargement of the powers of the central government through broad constructionism.  He had not adequately understood how far enumerated powers imply other powers, an implication strengthened by the necessary and proper clause, and that a train of implied powers can lead to encroachments on state prerogatives.

Madison argued in his Report on the Virginia Resolutions that the necessary and proper clause “is not a grant of power to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those otherwise granted are included in the grant.”[47]  He never denied that the necessary and proper clause gave power, but only such powers as were absolutely necessary for the execution of the enumerated powers.  Whatever meaning the necessary and proper clause may have, that “meaning must…be limited to means necessary to the end, and incident to the nature of the specified powers.”  Madison was opposed to any notion of inferring unenumerated powers from the general nature of the government, for unlimited congressional discretion would have the effect of changing the Constitution.[48]  He had, however, fought to keep the word “expressly” out of the constitutional context in the House debates over the Tenth Amendment because, as he maintained at that time, it is impossible to confine a government to the operation of express powers.[49]  He admitted that there must necessarily be discretion with respect to the means inasmuch as a constitution cannot possibly enumerate all the means by which the powers of government are to be carried into execution.  But he was nevertheless concerned that the government might abuse its discretion as to its choice of means under the necessary and proper clause.[50]

Madison wanted to leave as little to implication as possible.  Strict constructionalism was no mere flight of fancy on his part, but a matter of conscious commitment.  He abhorred ambiguities as far as the constitutional context was concerned without fully realizing that the necessary and proper clause is simply a means for introducing much needed flexibility into a limited and written constitution.  The very presence of the necessary and proper clause in the Constitution leaves open the possibility that it can be construed to give additional powers to the central government over and above those expressly enumerated.  As a matter of fact, Madison defended the reasonableness of that clause in The Federalist on the ground that “had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as a means of executing the general powers would have resulted to the government by unavoidable implication.”[51]  In other words, he suggested that, in the absence of the necessary and proper clause, these matters would have been left to construction and inference.  Madison wanted the necessary and proper clause, but not such a loose construction as might invite inferences about powers unenumerated in the constitutional text.

Jefferson wrote in 1803 that “our peculiar security is in the possession of a written constitution,” but written constitutions by their nature invite the need for construction and interpretation.[52]  What he appeared not to have thought through was the fact that a limited constitution does not rule out the possibility or necessity for construing and even extending specified powers so as to insure its adaptability to changing needs and circumstances.  The necessary and proper clause is only declaratory of that flexibility the Constitution requires by granting Congress discretion to choose the appropriate means to give effect to its enumerated powers.  But once the necessary and proper clause becomes effectively detached from the Constitution, through strict constructionism, necessary and proper laws for executing enumerated powers are virtually eliminated.  However narrow Madison’s understanding of the Constitution may have been, he was consistent enough to grant the necessity of the necessary and proper clause.  He acknowledged that “in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object and be often properly varied whilst the object remains the same.”[53]  But he remained essentially a strict constructionist.

The Issue of the Louisiana Purchase

In 1803, Jefferson took the position that the Constitution had not given the general government the power “of holding foreign territory and still less of incorporating foreign nations into our Union,” but he nevertheless proceeded with the Louisiana Purchase.[54]  Since he read the Constitution in such a way that precluded annexing new territories, his rationale for making the purchase was that an executive may pursue a course of action dealing with a situation perceived as an emergency, even at the risk of circumventing the Constitution.  The core of the Jeffersonian argument was that the laws of necessity are of higher obligation than the written law, since a scrupulous adherence to the written law would be to sacrifice the end to the means.[55]  It is hardly necessary to say that the argument from necessity, the argument that places ends above means, stated in its most radical form, is the doctrine that the end justifies the means.  Jefferson’s suggestion that emergencies justify departures from the Constitution necessarily follows from his narrowly conceived constitutionalism which would have kept the government in a virtual strait-jacket.

Jefferson formulated a doctrine of emergency power which permitted a President to violate the Constitution in a dire national emergency.  He argued that an executive may pursue a course of action dealing with a situation perceived as an emergency, even at the risk of circumventing the Constitution.  Hamilton rejected this view altogether.  He had cautioned in The Federalist against “fettering the government with [constitutional] restrictions that cannot be observed, because…every breach of the fundamental laws, though dictated by necessity,…forms a precedent for other breaches, where the same plea of necessity does not exist at all, or is less urgent and palpable.”[56]  Hamilton thus forces us to reflect on the possibility that the future executives might use and extend the practices and principles applied by Jefferson to situations far more constitutionally objectionable than those in which he invoked them.

Jefferson argued for the narrowest possible construction of the Constitution which in the strict sense seems to require an adherence to law so rigid as to exclude construction entirely.  Hamilton believed that great latitude must be allowed in the interpretation of the fundamental law, saying that “constitutions should consist only of general propositions: the reason is, that they must necessarily be permanent, and that they cannot calculate for the possible changes of things.”[57]  He relied therefore on liberal construction of the constitutional text, for much of the meaning of the Constitution comes through construction, but not for fulfilling more extended objects than the Constitution provided for.  But Jefferson was a great enemy of construction (that is, liberal construction) because “construction …would make [the government’s powers] boundless….Let us not make [the Constitution] a blank paper by construction.”  His alternative would be: “Let us go on then perfecting it, by adding, by way of amendment to the Constitution, those powers which time and trial are still wanting.”[58]  Hamilton, although he took the necessity of construction as a matter of course, never meant that the Constitution was infinitely flexible with a view to grants of power or that new purposes of government could be incorporated into the fundamental law through construction.  He would say that the purposes or objects of government embodied in the fundamental law must be the standard of constitutional construction.

In the Louisiana Purchase, Jefferson was brought face to face with a situation which embarrassed him to no end.  In order to escape his doctrinal strait-jacket which prevented him from construing the Constitution other than literally, he formulated a doctrine of emergency power.  Though he may not have intended it that way, that doctrine laid the groundwork for escape from virtually all constitutional restraints.  It is rather remarkable that Jefferson, who was no friend of executive power, at least not by commitment, should be driven, in his defense of the Louisiana Purchase, to expand executive power out of all proportion through his doctrine of emergency power.  He come close to recommending that a government can do almost anything it pleases, something which Hamilton would vigorously deny.[59]  The narrow constitutional perspective by which Jefferson was guided, and within which he functioned as President, made it extremely difficult for him to work within the Constitution.

Jefferson even went so far as to argue that his refusal to attempt to justify the Louisiana Purchase in terms of existing constitutional provisions and his subsequent appeal for a constitutional amendment authorizing such purchases would in fact set an example against broad constructionism.[60]  He seems to have been convinced by his own argument that the regime would be better preserved if necessary departures from the Constitution were openly admitted rather than attempting to clothe them with constitutionality through construction.  But Madison, taking the forms—the parchment barriers—more seriously, was more sensitive than Jefferson to assuming extra-constitutional powers in emergencies.  He was thoroughly convinced, moreover, that the Constitution already provided the necessary power to acquire new territories.  The Constitution clearly does not sanction executive prerogative, since by definition prerogative is that power which goes beyond or contrary to the law, and no matter how broadly executive power over foreign affairs may be construed, the executive has no authority to operate beyond and therefore in violation of the Constitution.

Summary and Conclusion

Hamilton and Jefferson were too diverse to work together in harmony; they utterly contradicted each other.  Their different constitutional perspectives produced different policies.  Their respective understandings of the strengths and weaknesses of the Constitution differed too much to allow for a harmonious resolution of their practical differences.  For Jefferson, there must be a change in the direction in which the Constitution was moving, since Hamilton introduced an administration which had, from his perspective, the appearance of absolute government.  It was his intention to purge the Constitution of its monarchical elements, for, as the full outlines of the American regime materialized in Hamilton’s policies and programs, Jefferson parted company completely, at least on the level of thought, with the Caesarism he found implicit in the Washington administration.  Jefferson went a very long way toward accusing Hamilton of being a monarchist committed to the conversion of the Constitution, a viewpoint to which he was deeply attached even while not quite believing it.  But in the most incredible of circumstances, what was a rigid opposition between them dissolved under the pressure of Aaron Burr’s spurious attempt to capture the Presidency in 1800.

It is difficult to determine exactly what Hamilton had in mind when he said in 1801 that Jefferson was no enemy to the power of the executive and that he had generally been for a large construction of executive authority with no reluctance to act upon it in cases which coincided with his views.[61]  But it might be suggested that this statement was written at a time when Hamilton was making an effort to convince members of his own party to support a Jeffersonian Presidency against Burr.  The utmost one can say is that Jefferson was not always in every respect and enemy of executive power, but he was not that friendly either.  He had in fact objected, during the Washington and Adams administrations, to giving broad powers to the President over foreign affairs, no matter what his later practice as President may have been.  Hamilton was not reluctant later on to describe Jefferson, after he assumed the Presidency, as a politician who “furnishes frequent opportunities…of combating his opinions at one period by his opinions at another,” and who “takes up or lays down an article of faith, just as may suit a present convenience.”[62]

It is in relation to the imbalances of the unfinished Constitution that Hamilton, Madison and Jefferson set their courses to remodel the institutions of government so that the equilibrium which in their view that instrument intended could be better secured.  The Washington administration afforded the opportunity for their opposing understandings of the constitutional provisions to face the test of political practice, unmasking from their respective perspectives what they perceived to be the Constitution’s strengths and weaknesses.  There is no reason for assuming that political controversy, even on the highest levels, is necessarily always debilitating.  The controversies of the first Washington administration, which focused on the kinds of power that had been exercised (legislative and executive) and the degree to which power could be legitimately exercised (whether it was necessary and proper), took the form of disputes over how the Constitution should be construed.  The argument over the constitutionality of the national bank provided an opportunity for articulating alternative constructions of the necessary and proper clause in relation to the enumerated powers of the national government, an issue which found further clarification or resolution through the Marshall Court.  The debate over Washington’s Neutrality Proclamation, moreover, established the constitutional basis for the exercise of broad executive powers in foreign affairs, an emphasis which was not at all clear prior to that debate.  The debate had wider implications than the neutrality issue, for, as a result of that debate, the President was acknowledged to have implied unenumerated powers in the area of foreign affairs over and above those expressly enumerated in the executive article.

Christopher Wolfe suggests that Hamilton construed the Constitution in light of the maximum requirements of efficient government whereas Madison’s standard was the minimum requirements of efficient government justified only on very narrow republican grounds.  He concludes that the essential difference between them was rooted in the fact that Hamilton placed more emphasis on the efficient character of the Constitution and Madison on its republican character.[63]  But it should not be forgotten that the motivations of Hamilton and Madison were both republican, with the difference that Madison tended to regard strict adherence to the letter of the law as the measure of republicanism.  What was paramount for him was that the rule of law established by the Constitution, limiting the government by the restrictive provisions of that document, was the controlling regime factor.  Madison viewed the necessary and proper clause in such a way that its terms tended to confine rather than enlarge the enumerated powers, whereas Hamilton placed more emphasis on the importance of the constitution to extend governmental power.  The necessary and proper clause on its face could be construed as an extension of power or a limitation on power, for if it means absolutely and indispensably necessary, it could be construed as a limitation on power.  The essential difference between Hamilton and Madison concerned not the fact that the government had some discretion with respect to the means of carrying out its enumerated powers, for everyone agreed on that, but whether the necessary and proper clause was an extension of power or a restriction on power.  Madison was concerned that abuses of power invited by Hamilton’s construction of the necessary and proper clause would, by a process of accretion, transform a limited constitution into an unlimited one.  He stated in opposition to the Bank Bill that the terms necessary and proper gave no additional powers to those already enumerated.[64]  Hamilton argued that the necessary and proper clause should be recognized for what it is, as a means for establishing the enumerated powers, broadly construed, but he never contended that this clause added to the Constitution any new or independent power not already in the Constitution.[65]

We are sufficiently familiar with written constitutions to know that their essential defect is inflexibility, made up for in part, in the case of the American Constitution, by its leading draftsman who worked a kind of open-endedness into the constitutional design.  We have no difficulty in recognizing that much of the meaning of the Constitution comes through implication or construction.  It is reasonable to assume therefore that, in the interest of efficient government, the necessary and proper clause was inserted into the Constitution to extend the meaning or application of its more specific enumerated powers.  There was, however, considerable controversy during the ratification debates over whether that clause could be used to extend the limits of governmental power beyond the limits of a limited constitution.  Madison seems to have recognized the importance of the necessary and proper clause for making necessary and proper laws for carrying the enumerated powers into effect.  But he was unwilling to face the implications of that clause in arguing that the power to establish a national bank could not be reasonably inferred from such enumerated powers as taxing, borrowing, coining money, paying debts and regulating trade.  Hamilton’s looser formulation of that clause than either Jefferson’s or Madison’s explains the difference between his and their understandings of a limited constitution.  Hamilton defined a limited constitution as one which limits the legislature in certain specified ways, but he preferred to define those limits more in terms of checks and balances (i.e., strong countervailing powers) than in terms of strict constructionism, and that separates him in varying degrees from Jefferson and Madison.  Madison maintained that “there is certainly a reasonable medium between expounding a Constitution with the strictness of a penal law, or other ordinary statute, and expounding it with the laxity which may vary its essential character.”[66]  He constantly stressed the need for the mean.  His consciousness was that of a trimmer.

Hamilton’s opinion on the constitutionality of the bank, stressing the elasticity of the necessary and proper clause, may be said to be the reply par excellence to the constitutional thought of Jefferson, and by indirection to that of Madison.  Hamilton observed, in the course of that opinion, that some powers in a federal constitution such as ours are clearly within the power of the national government, some are clearly not so, and some (which are not enumerated but deemed necessary) “leave room for controversy & difference of opinion, & concerning which a reasonable latitude of judgment must be allowed.”[67]  He later wrote to Washington that “there are some things which the General Government has clearly a right to do—there are others which it has clearly no right to meddle with, and there is a good deal of middle ground, about which honest and well disposed men might differ.”[68]  Hamilton had no doubts as to the fact that there are very real limits as to what a limited constitution can do.  It should be said, however, that from his perspective, a limited constitution, under the aegis of the necessary and proper clause, allows considerable latitude in the selection of the means by which national exigencies are to be provided for.  Madison, from another perspective, was constantly prone to overestimate and overemphasize the danger of constructive powers.  It was impossible for him to ever be certain in his own mind that the government might not exceed its limitations as to what could be reasonably inferred from the specific enumerated powers.  The stance he assumed in the Constitutional Convention was constitutional flexibility and constitutional discretion, at least up to a point, but he did not consistently maintain this position thereafter.

Appendix

Hamilton maintained, in his opinion on the constitutionality of the bank, that “whatever may have been the intention of the framers of [the] Constitution, that intention [must] be sought in the instrument itself, according to the usual & established rules of construction.”[69]  Madison concurred that “the legitimate meaning of the Instrument must be derived from the text itself,” but he added that “if we were to look…for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.”[70]  His reasoning was that, since what came out of the Convention was no more than the draft of a plan which was the product of compromise, little in the way of the Constitution’s meaning could be obtained from the sense of that body.[71]  Madison suggested that the state ratifying conventions, where the provisions of the proposed Constitution were scrupulously discussed and debated, would be a more reliable guide in construing constitutional provisions than the constitutional proceedings.

Madison never adequately explained why he preferred the understanding of those who ratified the Constitution over what its framers understood its provisions to be.  It could have been motivated by his continuing concern about the expansion of national power under the Federalist administrations, a direction already anticipated by the anti-federalists in the ratification debates.  The balance of power between the states and the national government, moreover, had been further altered by the post-war decisions of the Marshall Court, particularly that Court’s looseness in construing the necessary and proper clause.  Madison wrote to Judge Spencer Roane after the “necessary and proper” decision was handed down in 1819 that he had never anticipated at the time of the Constitutional Convention that a rule of construction would be introduced as broad and as pliant as what had been stated in that opinion.[72]  Shortly afterwards, he confessed to J.G. Jackson that in the Constitutional Convention he may have allowed greater weight to the need for energetic national power than subsequent reflection would warrant.[73]  Madison was convinced at the time that national authority must be enhanced if republicanism was to survive.  When the ratification debates took place, assurances were made that the anti-federalist concerns about the possibility of expanded national powers under the new Constitution were unfounded, assurances which were bound to place certain constructions on the constitutional provisions under scrutiny.[74]  No wonder then that, later on, when the regime was moving in what he considered to be the wrong direction, Madison would be more favorably inclined toward those constructions advanced in the state ratifying conventions.  He had become increasingly aware of the necessity for advancing the powers and authorities of the states.

Notes

[1] See “Madison’s ‘Detached Memoranda,’” William and Mary Quarterly, October, 1946, p. 545.

[74] See Madison, “The Bank Bill, February 2, 1791,” Papers, XII, 380-1 and his “Report on the Resolutions, 1799-1800,” Writings, VI, 390.

About the Author

Morton J. Frisch is currently a Senior Fulbright Scholar lecturing in American Political Thought and the American Founding at Korea University in South Korea.  His distinguished career in teaching and scholarship has included appointments at Northern Illinois University, Harvard University, the College of William and Mary, the University of Stockholm, Pennsylvania State University, the University of Virginia, and Temple University.

Dr. Frisch holds a B.A. from Roosevelt University of Chicago, an M.A. from the University of Chicago, and a Ph.D. from The Pennsylvania State University.  He has written extensively on American political history and constitutional thought, authoring or editing five books, including the critically acclaimed Selected Writings and Speeches of Alexander Hamilton, American Political Thought: The Philosophic Dimension of American Statesmanship, and The Political Thought of American Statesman: Selected Writings and Speeches.