Noah Feldman: The Three Lives of James Madison (HD)

thank you so much we are now have the great pleasure of hearing from the author of an acclaimed new biography of James Madison Noah Feldman he will be interviewed by the in-house counsel of the National Constitution Center my phenomenal colleague Lana Ulrich Lana among her many wonderful accomplishments here has made it possible for those of you who need CLE or continuing legal education credit to get it just by watching these phenomenal programs either in person and online and for that we're incredibly grateful to her please join me in welcoming Lana Ulrich and Noah Feldman [Applause] right good morning and welcome to Bill of Rights Day my name is Lanna Ulrich and I'm in-house counsel here at the National Constitution Center and my guest today is Professor Noah Feldman author of the three lives of James Madison Noah is the Felix Frankfurter professor of law at Harvard Law School he specializes in constitutional studies with emphasis on law and religion constitutional design and the history of legal theory and is the author of seven books he also a senior fellow of the Society of fellows at Harvard and a columnist for Bloomberg view Noah thank you for being here it's my great pleasure thank you for having me great this book is quite an achievement it's terrific congratulations thank you and so I guess I'll start by asking you are a constitutional law professor what led you to wanting to write a biography of James Madison well for constitutional law professors and maybe anyone interested in the Constitution Madison is kind of our Einstein he's the figure who transformed the field more than anyone else and that's not just domestic US constitutions but it's all constitutions everywhere all written constitutions and so I thought I was about to turn 40 and I thought to myself I want something to really sink my teeth into that I'll spend my middle 40s on and win lose or draw I've written something fat can you hold it up there I'll show us and that's the end that's edited down and considerably so you know the but the bottom line is that I wanted to do something that I thought would be hard and long and maybe good and it was definitely hard and it's definitely long and now it's up to you guys to decide whether you think it's good but that's why I wanted to do it I wanted to really dive in to the essential question of where did it all come from where did our Constitution come from who were the key people behind it who made the world that we now live in and you know one of the fascinating things about that is that it turned out that although writing the Constitution is the thing Madison is most famous for it was not the only thing of huge fundamental importance that he did and that's why it ended up being called the three lives of James Madison and only the first life is the constitutional life that is to say the creation of and the other two have to do with playing out the Constitution as it had been designed great so tell us a little bit more about the three lives what led you to choosing to divide Madison's life up in that way you know when you write a biography you have to struggle with the fact that the person actually lived a life and said stuff and wrote letters to people and had friendships and and made enemies and so not it's not always the case that that life will divide itself into acts or stories or arcs but it happened to be that in Madison's case it just really did because in this first first life during which he was single for the entirety of it he he was a very shy guy and had only one failed romance in his early 30s until he met dolly and in that first life he produced this incredible Constitution and it was really a remarkable act of genius creativity on a par with Einstein's great moments of creativity transformational and he knew it and he wanted other people to know it too but then having created this amazing Constitution that among other things was designed to solve the problem of political parties forever so we would not have any more political parties he discovered when he entered Congress that that part of the Constitution hadn't worked and he ended up founding the Republican Party alongside Thomas Jefferson to fight Alexander Hamilton's Federalist Party and that became a completely different world for him having imagined that the Constitution would let reasonable people sit around and debate at a high level he discovered he needed a partisan newspaper he needed to accuse the other side of fake news you know he needed to create a national political organization of the kind that he had claimed the Constitution would preclude from ever coming into existence and he believed that he was doing this in the Second Life because the threat that Hamilton's Federalists meant to the United States was nothing less than the death of the Republic and the death of the Constitution and so that was how serious the threat had to be for him to justify breaking from his belief that political parties were terrible and to create a political party that would end all political parties and which sort of did for some period of time we can come back to that and then in his last life he spent 16 years running u.s. foreign policy he was Secretary of State under Jefferson for eight years and he was president for eight years and in that extraordinary 16 year period he tried to do for foreign policy what he had done for the Constitution that is create a unique Republican version small our Republican version of foreign policy based around a question how do you make other countries do the stuff your country wants when you believe as an absolute principle that you cannot have a standing army and you cannot have a substantial Navy and he thought he'd solved that problem originally because he thought that economic sanctions were the magic answer but he discovered in the run-up to a war of 1812 that that wasn't quite enough you also needed some some military threat and maybe even some military force and that made him a wartime president our first declared war as the United States as a nation was actually the war of 1812 under Madison and he found himself in a world he was completely unprepared for namely fighting a war of the kind he believed that the United States should never fight and that turned out to be a fascinating story also in which we barely got out of it with our independence intact and Madison barely got out of it with his popularity intact and yet he ended his career as the most popular president of any of the first four or five Wow yeah I don't think many of us think of Madison as president I think you think of more of him as founding father and his role of the constitutional convention but that was definitely a significant aspect of his life well let's dive a little bit more deeply into his first life though you start off the book explaining a little bit about him as a college student at Princeton and tell us a little bit more about how his experience at Princeton and some of his earlier experiences shaped his religious liberty views and whether or not his religious liberty views found their way and into the Constitution at all yeah it's a fascinating fact about Madison that the topic that brought him into public life and that he cared the most about throughout the entire very long trajectory of his career was religious liberty and the reason that's so fascinating is that Madison was not particularly pious in the ordinary sense of the word he was a Christian who almost never attended church he wasn't a radical free thinker of the Franklin Jefferson type necessarily but he wasn't very interested in substantive theology or institutional religion yet his very first act in public that made him a figure in Virginia was a tweak to the Virginia Bill of Rights guarantee of religious liberty that shifted Liberty from toleration of minorities to equality for everybody regardless of religion so a major change and he was only 25 and it made him very very well known so why why was this young guy so interested in religious liberty and I think the answer does lie in his experiences at Princeton so he was from Virginia from the Piedmont and young man from Virginia did not go at the time to Princeton later Princeton became a very southern school it really wasn't to a huge degree at the time there were several reasons but the main reason he went there was for the weather and in fact I used that as the opening line of my book he came to New Jersey for the weather you know I don't think anyone has ever written that sentence before and it was because he believed as many people believed at the time that William and Mary which was in Williamsburg Inn in Virginia was a place where you could get malaria yellow fever especially if you were not from a lowland place already and he was from from the Piedmont so he wasn't from the lowlands and he thought it would be safer he wouldn't get sick if he went to New Jersey but he discovered in New Jersey this extraordinary institution at the time the only really impressive university in North America in the 1760s and 1770s and I say that with all due respect to Harvard and Yale but they were kind of puritanical backwater still in that period Princeton was a kind of wormhole into the European Republic of Letters in the Scottish enlightenment and while he was there Madison was also on some strange dimensions kind of a minority for the only person in only time in his life because he was a rich kid from Virginia most of the people there were what were called middling sorts that was a technical term in those days middling they were the children of shopkeepers artisans who were trying to turn themselves into gentlemen that was the word they use and of course it was all men at the time by going to university that's why you went to university to become a gentleman and they were also heavily Presbyterian in a Presbyterian College and he was just plain old ordinary Church of England the Presbyterians were very focused on religious liberty because of their history in Britain he therefore was as it were a dissenter within a dissenting community and that seems to have spurred in him this lifelong concern for for religious freedom so let's talk a little bit more about his specific role the Constitutional Convention let's start with his national vision for the United States where did that come from how did that conflict with some of the other founders who were a little bit more concerned with state sovereignty and then also compared to Hamilton who even suggested we abolish the states altogether Madison came to the idea of the need for a national Constitution in 1784 or 85-86 which was a time of extraordinary crisis in the new United States it's no exaggeration to say that the country such as it was was falling apart and the reason was as far as Madison was concerned that when independence was declared from Britain all of the states became traitors and rebels and they had to stick together to survive the war you know that's the old line we must all hang together or surely we all hang separately but as the war ended that actually created a tremendous danger and the danger was as Madison saw it and others saw it at the time too that these states which had never thought of themselves before 1776 as a single country in fact the word country at the time meant your state this very important thing to realize when you start to read 18th century documents when someone refers to my country he's always talking about his state never about the United States so the danger was that these individual little Republic's these 13 little Republic's that were in a federation we're going to have so little in common so few overlapping interests and no central need to cooperate that they would fly off into different directions and each become their own little States now that might have been fine in theory but it was gonna be a disaster in practice and the main renewed was gonna be a disaster in practice was trade so here's another thing I figured out when working on the on the book that I never sort of thought of before the way you have to think of the British Empire in the 18th century the French Empire too is sort of like the EU it was in large measure a free trade entity if you were part of the British Empire you could trade freely with any other part of the British Empire and the British Empire was global when the United States declared independence it left that trade union it was sort of brexit version a version of brexit and suddenly the economy of the US which depended heavily on trade with British ports was in serious jeopardy because you could no longer trade freely with all of the places where you had been doing all of your business so what the country needed was a trade policy to pressure Britain and then eventually France to open its ports to US shipping and you couldn't create a unified trade policy if the people from Rhode Island just to use one example which they used a lot would always wait for the other states to declare they were going to act in concert and then cheat Rhode Island cheated and you know people in the 18th century and every other colony they and the kind of state they really hated Rhode Island you know it wasn't just the Rhode Island didn't ratify the reasons rhode island eventually didn't ratify the constitution until everybody else had done is they were waiting to see if there would be some benefits from cheating and this was a kind of logical shipping maneuver you know if everybody else says we're not gonna ship say okay we'll do it so Madison's first idea about why we needed a National Constitution was the central government had to be able to coerce the states force them to all be on the same page for trade and that is what began to make him a nationalist the fear of the whole thing falling apart means meant you need to pull it to the center and this eventually became a frame of gravitational metaphor you wanted something in the middle like the Sun they would exert tremendous gravitational pull over the planets the state's so they didn't fly off in different directions and that's where he was thinking when he went into the Constitutional Convention that is what was fundamentally defining his vision when he arrived so he was a very strong nationalist there he may not have said like Hamilton how many people here have seen the musical or or heard about the musical so you know I mean Hamilton was a guy who deserved a hip-hop musical about him you know he was pansexual he was enthusiastic he left no good thought unsaid or unwritten again and again and again and again and if it was on his mind he said it and so he was openly saying we don't need the states in fact at the convention he openly said the British monarchy is the only form of government that will ever work in our country and that's what we should do everyone sort of looked at him that didn't make it into the into the musical Madison would not have gone that far publicly but he was fully prepared to accept a national government when he was in Philadelphia at the convention that would have minimized the role of the states to the point where they didn't manage matter all that much Madison also had the idea of the National veto as well how did that play into his nationalistic vision that was for him the single most important aspect of the Constitution that he lost so as you probably know the so-called Virginia Plan which was the outline of a constitution that Madison had prepared in the run-up to the convention that was introduced in the first week of the convention it did ultimately become the basic blueprint for the Constitution that emerge and that's why we think of him as this the most important constitutional draftsman there were you know two major tweaks to his original plan one was equal representation in the Senate Madison thought that was ridiculous he didn't think that Delaware and Rhode Island should have the same number of Delegates as Virginia did in the Senate and he went into the convention thinking that the small states would be forced to accept proportional representation but he didn't think through the fact that they voted in the convention based on equal representation of all the states so when New Jersey staged a walkout from the convention and said okay we're walking with all the small and medium-sized states Madison realized he'd have to compromise on that he didn't like it but he did it the other change was the loss of a central component of the blueprint and that was that Congress would be able to veto any law passed by any state that it didn't like now why well one reason is that Madison had also in the 1785 86 begun to distrust state legislatures he did not think that you could trust the people who were running the states to do a good job of it and he was very worried about what he came to call the tyranny of the majority and to be precise the majority were ordinary people who were mostly debtors and the minority who was being terrorized against were property holders who were mostly creditors so the idea of the tyranny of the majority which we like to think of in our modern post-world War two context as a phenomenon where we're concerned about racial or religious or other minorities was originally about that poor unprotected minority of rich people but in order to protect those people from state legislators that could issue paper money devalue the currency and then make people's debts easily paid right it's the reason that you really like inflation only one time in your life and that's when you have a mortgage all right that that's when it's good to have good to have inflation under those same exact circumstances Madison desperately feared what state legislators would do and so he wanted Congress to be able to stop the states from doing that and that was crucial to his picture of why a national government was better than a state government he believed the national government would be less likely to take the side of the creditors against the debtors he had a whole theory about why and that theory goes under the heading of enlarge their union the bigger the country the less likely he believed it would be that factions or parties or small groups of self-interested people could capture the government at the center that was the the grand theory so if that was gonna work it had to matter wait for Congress to be much preferable to the state legislatures was a nice idea in theory but when Madison went to the convention he thought well let's use this to solve the problem of the bad state legislatures so how's it gonna solve the problem by letting Congress veto whatever the state legislatures are gonna do that's bad and in Philadelphia at the convention he raised it again and again and again seven times I won't say again seven times and he was defeated every time and he's tried to water it down by saying okay maybe they'll only be able to veto a couch will only be able to veto unconstitutional actions taken by the states nope no buy-in and that's because the other people in the room were not on board with the exception maybe of Hamilton and one or two others James Wilson governor Morris were not on board with the idea of a national government that could dictate to the states and even ultimately control their actions that is to say Madison was at the extreme nationalist wing of the convention and he never really fully gave up on this idea when the Bill of Rights was being drafted he threw in you know most of the rights that Madison put into what became the Bill of Rights or the first ten amendments most of them were built on ideas that the states had submitted to Congress in the wake of ratification because a lot of the states during ratification said what we really would rather not ratify this without some rights and others said well if you know ratify now it'll never get ratified so the compromise was lists some rights you like and put them in a letter to Congress so Madison used most of most of those but he made up one of his own that nobody had proposed and that was the idea that in the Bill of Rights it should say that no state could violate certain very basic rights like the right to religious liberty which he cared a lot about and the right to freedom of the press that had no relationship to what anyone else wanted that went down also but it was a reiteration of his idea from the convention namely some way for the national government to block the state legislatures from doing nasty stuff so he really really really did not want to give up on that and just to add one last you know sort of twist on this he had a further reason for thinking that Congress should be in charge of the states and that is by the time the convention was over it was clear that they had created a new hybrid form of government that had never existed before in which the states retained some sovereignty over their own citizens but Congress and the federal government now also exercised sovereignty over those same citizens this is what Justice Kennedy who's got a good ear for a phrase that will last called he says somewhere Justice Kennedy says in a case called the term limits case the framers split the atom of sovereignty I'm not sure he means all of the implications of the end of that metaphor but that's what Justice Kennedy said so when you break something that everyone believed was unbreakable because sovereignty is supposed to mean one guys in charge or some entity is in charge so how can you break up sovereignty into multiple parts that's high risk and Madison felt there had to be in government somewhere a last word and he wanted the last word to be with Congress and that was to some degree prescient because by the time the Civil War came along there was a dispute about where the last word lay did the last word live at the state sort of the last word lie with the United States and it took the 14th amendment and the Civil War to lead us into a constitutional world where we all now believe that somebody we usually think it's the Supreme Court today actually does have the last word about what the Constitution means so that when Roy Moore says well Alabama doesn't have to follow what the Federal Constitution says according to the Supreme Court we should be able to do what we think it means we have a legal answer to that based on the 14th amendment that says no Supreme Court gets to decide so that is a fundamental structural issue that Madison identified and saw as a problem already at the convention and his veto plan was supposed to solve that so he would be today you know he might not have said this term course the ideal entity to solve that but he would definitely see the logic of there being somebody who has to have the final word so he didn't get his national veto but at least he was validated in some way with the way the federal judiciary acts yeah I think that's exactly right and you know he himself was a little ambivalent about the federal judiciary being the relevant actor to do it but I do think that our current constitutional picture in which we believe that the Supreme Court has the last word in his supreme over the meaning of the Constitution is deeply structurally Madisonian I want to go back to what you were saying earlier about Madison's idea of the enlargement of the Republic and this Madisonian structure of government is something that I think a lot of us think about when we think primarily of madison and his role of the constitution in the book you talk about Hamilton's criticisms of this and how Hamilton was saying well if you expand the country and make it larger there's creditors everywhere so how is that going to solve our problem what do you think of Madison or sorry Hamilton's criticisms I think they were pretty clever and pretty smart so remember I was just saying a moment ago that Madison had this grand idea and he thought of it as his grand idea that by enlarging the Republic you would reduce the probability of party and faction and there are some notes of Hamilton's which may have been written while Madison was giving his speech on this maybe he wrote then another time and later editors compiled them there's some uncertainty about that but we have notes in Hamilton's handwriting saying no you know once you have a Congress everyone will be in the same room so if there's a faction of one side creditors let's say they can coordinate their actions right there in Congress now Hamilton was also worried about the possibility of a demagogue coordinating at a national level these were legitimate reasonable concerns but they were also in Hamilton's mind blueprints to some degree of how what he was planning to do once the Constitution came into effect so this is a fascinating thing about Hamilton he didn't do much of the convention he wasn't there for a lot of it he didn't have votes to win many issues within the New York delegation and he got bored and he left came back a little bit the end the minute the Constitution was up for ratification he swung into action and co-wrote the Federalist Papers with Madison and then once Washington was elected and he became Secretary of Treasury Hamilton set out to do for the financial structure of the country exactly what Madison had done for the political structure and that was a National Bank a permanent national debt which he called immortal he wanted it to be immortal he was right about that and a man you Pro manufacturing subsidy policy they would have the effect of hastening the movement of the United States and what he considered the inevitable direction of the Industrial Revolution turned out he was about 75 years early on that but that was the that was his game plan now in order to do this he had to deal with the fact that he knew perfectly well that the vast majority of Americans did not support any of these three elements but he had a political party that he organized that was in Congress where he did have the votes with the backing of Washington whom he was closely allied with that managed pretty effectively to get each of these policies adopted in one form or another that is where Madison realized that Hamilton had been right and he had been wrong Madison was forced to realize that despite the expansion of the government to you know the national level if someone were clever and politically organized they could use political party at the national level to get through their policies and that's why Madison felt he had to create a political party to go back to the people and convince them that they should act together collectively and beat the Federalists now I'm giving you a Madison's eye view of this here that's how Madison saw it Hamilton would have said something different and that's what the Republican Party was supposed to be and to form it Madison had to break the idea that expanding was the solution and he started to say going back to the states as part of the solution thank goodness we have the states because the states can stand up as a bulwarks against overreach by a federal government that's been captured by the bad guys and so Madison tax very far back away from his initial strongly nationalist view towards a much more states rights developed view now Madison was a genius and he could always reconcile these things in some formal way if you'd asked him are you changing your views he would have said no no no I was all I was a centrist at the convention and I'm a centrist now no he was responding to radically trained change political circumstances and so he became much more strongly states rights in the 1790s while he was while the Republicans were being formed in when they were out of power so that was the you know that was sort of part of his ordinary political judgment and it was also it's also part of my story in the book because it's a story in part of moving from innocence to experience and you move from being an innocent theorist to a real-world politician you got to learn from your mistakes and he did mhm I think you also write about how through the process of writing the Federalist Papers when Hamilton and Madison working together Madison became slightly more Hamiltonian Hamilton became slightly more amana Sounion but then of course they went on to form competing political parties and Madison's second life as partisan you talk a little bit about his fight against the Federalists and the Sedition Act and what's interesting about that is Madison drafted the Bill of Rights the First Amendment tell us a little bit about what Madison's thoughts on free speech were and maybe you're on the time he drafted the First Amendment and then maybe if they changed at all during his battle with the Federalists and against the Sedition Act yeah that's a super astute question thank you for asking that it's also appropriate to bill of rights day so as you know Madison was against the Bill of Rights before he was for it you know he thought both at the convention and then in the ratification process especially there was no need for a Bill of Rights at the national level and maybe it would even be a mistake and he was forced to change his view partly because he needed to get elected to Congress in Virginia in a special district that was gerrymandered against him by Patrick Henry Patrick Henry hated Madison the feeling was mutual and after Madison had won the ratification debate in the Virginia ratification convention Henry convinced James Monroe who was one of Madison's best friends they were co-investors in some real estate in upstate New York they were you know almost like brothers they were close to being brothers with Jefferson as their father figure Henry convinced Monroe who had moderately opposed ratification to run against Madison and then he gerrymandered a district which included very anti federal districts including the one that Monroe was from so in the race between the two of them that followed I mean it's kind of astonishing that Monroe did this but he did in the race between the two of them that fought it was very hard fought in the bitter of winter where they would give these long speeches in the freezing cold Madison used to tell stories about this later he got frostbite on his nose riding back from one of these public outdoor to her meanest he liked to point to his frostbitten tip of his nose when he was telling the stories so in the course of this terrible fight Monroe's supporters made the public argument that Madison believed the Constitution was as perfect as any human creation ever and they claimed he had said this in the Virginia ratifying convention but that the records hadn't yet been published and the problem was it was sort Madison did sort of think that he had never been quite so in politic as to say that his Constitution was the best one devised you know by humans and that it was a little short of a miracle but he thought it and so he had to defend himself and get votes of anti-federalists who had opposed ratification and the way he did that was to promise his constituents that he would deliver a Bill of Rights once he went into Congress nobody else was interested in the Bill of Rights including people who had previously been somewhat anti-federal but Madison was worried a that he wouldn't be reelected if he didn't get it enacted and be that if there were no Bill of Rights it would be used as an excuse for calling a second Constitutional Convention and as he said conventions are ticklish things and he didn't want to have another one he knew it might not go well the next time and so he pushed through the Bill of Rights to satisfy his constituents but I would say he was still not deeply exercised by the beliefs behind it because remember the Constitution really only limited the federal government the Bill of Rights only limited the federal government and Madison still wasn't very worried about what the federal government could do his real worry had been about the state legislatures and the federal Bill of Rights said nothing about that all changed in the Adams administration and it changed specifically with the Sedition Act and the Sedition Act as you probably know was enacted by the Federalists with Adams encouragement during the quasi-war that the Federalists fought against France it was called the quasi workers it was an undeclared war so it was a low-level naval fight over shipping remember I mentioned shipping was the dominant issue and it really was and this was a low-level war with France over shipping and like every president in US history with the exception of Madison I believe this really to be true and I've checked it Adams used war as an excuse to curtail civil liberties the Sedition Act made it a crime a federal crime essentially to criticize the government of the United States or to talk about it disrespectfully and Federalist prosecutors used this to arrest fine and jail Republican newspaper editors all over the country dozens of them I know it sounds shocking you know they had after all just a few years before ratified the first met which guaranteed freedom of the press but the Federalists had an argument about why this was fine they said the phrase freedom of the press only ever meant in the bill of rights the thing that had meant in Britain namely no censorship before you publish all so-called prior restraint no censor but if you publish something and we want to put you in jail for saying it that's not covered by the freedom of the press you laugh but they convicted people repeatedly using this legal theory and they had the most sophisticated Federalist lawyers people like James Iredell who went on to be a very important Supreme Court justice and was famous as a judge for laying out this theory of the for this is very limited here the first amendment that that was the standard view among Federalists and suddenly Madison woke up to the fact that oh yeah there was that thing the first amendment that we did and since this was a law it being targeted specifically in a partisan way at Republicans in an election season by the way in the run-up to the election of 1800 Madison developed the view that the freedom of speech and the freedom of the press were not limited to prior restraint or censorship but protected you against being prosecuted by the government for stuff you wrote or said and he articulated this view extremely clearly and very powerfully and he was backed by Republicans and that is really the first moment when the Bill of Rights or at least the First Amendment of it came to be used as a political tool to make a constitutional argument about government overreach so that's all in the run-up to the election of 1800 which and this is crucially important the Republicans won had they lost this argument might have fallen by the wayside and that whole mode of argument that we are accustomed to using in opposition in our country where the group and opposition says hey the government's violating our constitutional rights might not have caught on if it hadn't been made and succeeded ultimately and so you know the right to free speech came to mean what it meant eventually in the United States in large part because it was deployed by Madison as an argument against the Federalists and thereby came to replace the interpretation of the first member that they had offered with a proto version of what we tend to think of as the true meaning of freedom of the press so you mentioned Madison was president when the Sedition Act was passed right and so the Republicans win the election of 1800 Jefferson becomes president and then Madison succeeds Jefferson and so as President Madison is in this really unique role unique opportunity to exercise the constitutional power that he helped to draft and so I'm curious as president did Madison face any challenges that threatened to his own constitutional views or his own devotion to let's say federal power or executive power if he had one he did and it's really fascinating to see how he dealt with them so one example which is very interesting as it shows Madison compromising was the National Bank now Madison had founded the Republican Party because of his fight with Hamilton over the bank as you all know the Constitution doesn't say anything about giving Congress the right to charter a bank and Madison took the view that if it wasn't in the Constitution it wasn't constitutional congress lacked the authority to charter a bank so he didn't just say that Hamilton was wrong he said that Hamilton's view violated the Constitution itself he lost and sure enough Congress enacted the bank and President signed it into law it had a 20-year run it was a 20 year term and Madison happened to be president when the Bank of the United States came up for reaping by now he'd fought a war in which he realized that you really really really need a bank if you're gonna fight a war because you need some entity to lend money to the government that prioritizes the government and so Madison let it be known in Congress that he would not oppose the reach heart ring of the bank and the formulation that he ultimately used was to say that although he had not thought it was constitutional to begin with both parties had been in office while the bank operated Congress had allowed it to remain in existence the public had used it and engaged with it and so now the Constitution meant something different than it had meant when it was written now I love using this in debates with original lists because if you're an originalist you should in theory believe that what James Madison thought about originalism should matter to your interpretation of the Constitution but most original lists don't now they do have an answer to that I don't want to be totally unfair some religionist originalist will say it doesn't matter what the person who was there believed it matters what the public meaning of the document was when it was first enacted so I you know I want to acknowledge that that argument isn't even as I disagree with it but Madison himself was pure originalist he allowed the time and development and public consensus could change the meaning of the Constitution so there's an example of him being flexible on the other hand it also happened when he was president during the War of 1812 when it was going very badly that the New England states decided to hold a convention in Hartford basically to investigate declaring a separate peace with Britain puffing off and forming their own country this was the thinly veiled purpose of the Hartford Commission and everybody knew it no other US president in wartime would have allowed this meeting to occur faced with somewhat similar circumstances Lincoln suspended habeas corpus and just arrested anybody who disagreed with his administration and kept it up for several years you know it's a totally fascinating debate about whether that's the right thing or the wrong thing to do but most presidents would have done it to save the Republic Madison will let the convention happen he let the Hartford Convention occur and he knew our conventions could go different ways and you expected him to go because that had happened in Philadelphia but he believed so fundamentally in the fundamental rights and liberties that existed under the Constitution that he thought that if he was going to suppress those liberties in order to assure the Republican wasn't worth it and that's kind of extraordinary legacy I think for Madison the depth of his commitment to civil liberties really came out there and so that's an example of being deeply challenged but sticking with your guns that brings to mind your discussion we're now into Madison's third life when he gives his final message to Congress he talked about his legacy being one of constitutional freedom can you talk about that a little bit more yeah I mean so Madison did want to leave office with a message that the Constitution still mattered so I just mentioned that he had been willing to compromise over the bank but by the end of his career Madison really had come to a middle position between the strong nationalism of his days at the convention and the strong states rights views of his late 1790s years in the wilderness he had come really to a centrist view according to which the states mattered and should have a keen existence the federal government should be able to do some of the things that in the past that hadn't been able to do like have a small standing army does he discovered that you couldn't invade Canada with militia that's why the war of 1812 went so badly the war of 1812 was just thought there was a simple game plan it had two words invade Canada and militia from New York State for example 3,000 militia from New York State stood on the Niagara River and refused to cross it's hard to invade without an army so this is part of the reason that war of 1812 went so badly so Madison had learned that the federal government should have some capacity and power but he still believed that it was a government of limited powers and a governor of enumerated powers and so he actually vetoed as his last official act in office a bill that had been passed by the Republicans that called for money to be spent on national infrastructure roads bridges I mean seems popular right last act to veto a law passed by his own party but she then could he could have left it behind for a Monroe but he did this in order to close his presidency on the message that article 1 section 8 that listed the limited powers of Congress was a thing that it really mattered the Congress couldn't do just whatever it wanted which had been Hamilton's view Hamilton's view was the preamble talks about general welfare Congress can do whatever it wants so sort of closer to where our constitutional jurisprudence eventually came in the end up in the New Deal era so Madison's legacy was therefore of a Constitution that would be smack dab in the middle that would limit power that would protect Liberty but would also simultaneously allow the national government to act and that middle ground was and remains extremely popular and as part of the reason that he was so popular at the end of his presidency there was a there's a great letter from Adams to Jefferson written the week that Madison's presidency ended where one former president tells the other living former president that despite all the errors and mistakes that Madison made and Adams didn't like Madison much personally Madison's presidency had gained greater glory for the States then the three previous presidents combined including Washington and that was the judgment of the age and everybody knew it and so the so-called era of good feelings which is sort of an era of one party government that followed Madison's time in in the presidency was a kind of high point naive in retrospect because the civil war was brewing but a kind of high point for non partisan rational government at least in Madison's view that lasted you know well into the 18th late 1820s that's interesting you recently gave a TED talk where you mentioned you were speaking a little bit about partisanship today and compared it to the founding and around Madison to Aaron and suggested that even though much is made of our partisan politics that we are not so different from the partisanship of the founding and so I wonder if that that kind of brings me to some of our audience questions and something I wanted to ask you to do is maybe try to channel Madison a little bit about some of our current constitutional controversies or at least help us think through them through maybe a Madisonian lens and one question talks about calling a convention and so the question is that Jefferson glibly recommended Americans rewrite or revise the Constitution every twenty years did Madison ever seriously consider rewriting or revising the Constitution after 1800 and I just want to add to that that today there has been calls for an article v convention by both conservatives and progressives what are your thoughts on that as well how might Madison think about whether or not now is a good time to be calling an article five convention so generally trying to channel the person you wrote a biography about is pretty dangerous thing to do because you have to first of all decide who are you channeling are you channeling that person who lived in the 1790s and 1800's or are you channeling some updated version right does Madison use Twitter you know that's the that's the channeling question but this one question about conventions is the one where it's possible to say with complete confidence what Madison thought and is he was profoundly opposed to any new constitutional convention ever the minute the convention was over he thought thank God we never want to do that again and the reason was that he understood that the convention had produced near unanimity almost all the delegates present agreed to the draft and then they went to a ratification process where the country was split basically down the middle on the Constitution so the lesson he learned was had public sentiment as it actually existed in the country been represented in the convention they would have failed on day one now it's a fascinating side question why was there this huge disparity between the views of the people in you know in Independence Hall and the people out in the rest of the country a short possible answer to that is that nobody really knew that constitutional convention was going to be the Constitutional Convention right they were just going to reform the Articles of Confederation and if you thought the art of the Confederation didn't need much reforming you wouldn't have shown up to that convention at all so the people who showed up were the people who wanted a change towards greater central government in some form and so no wonder they were able to agree and then when they went to the public the public said we never heard of this this wasn't our idea and huge parts of the public strongly opposed so Madison understood that if you had a convention where people were deeply divided it would be almost impossible to reach any form of consensus I think if you think about what a convention would look like today you know heaven help us it's hard enough for us to hold ourselves together as a single country in with the depth of partisan disagreement that we currently have without putting everything on the table and that's why Madison when Jefferson explained him in a letter his brilliant theory about how the dead hand of the past could not control the future and we should understand the earth as being in trust for the living we don't really own our society our culture our land we just hold it in trust for the next generation said Jefferson and therefore you have to revise the Constitution every 19 years and Madison wrote back moderating Jefferson which is one of his life tasks you know that's a brilliant idea but you would never ever be able to do this in practice and you would never want to because if you were gonna put everything up for grabs every 19 years all property rights all forms of government no one would ever invest in anything you'd have no way of knowing that there was any stability to any aspect of your society if you knew that every 19 years the whole thing was gonna be up for grabs and I think that was frankly correct so what would the founders thinking when they included article 5 was there ever an occasion where they maybe not Madison but some of the other founders thought that it would be appropriate I think they understood in light of the fact that they were you know right there in the convention trying to produce a constitution in convention that it would look a little weird if they then said the only way you can change this is by some other way than we're doing it now but I think Madison devoutly hoped that that would never happen and he thought that producing the Bill of Rights in Congress would set the right mechanism for how to change the Constitution and they also of course the other thing to keep in mind about article 5 is it's pretty darn hard to ratify amendments even if they're produced in a conventional form under article article 5 and so the difficulty of ratification would therefore reflect back and cause people to think do we even want to have a convention that's what would happen if you had a constitutional convention you fought it out then you went to the public and you couldn't get it ratified that would also have potentially a dealer Jenna mating effect on the whole system this question asks how does the fact that Madison was a slaveholder affect our view of him and his constitutional legacy well it affects me very much and it's a theme that I read about extensively in in the book that I've written a little bit about in the press too so you know it's no exaggeration to say that Madison was born into the arms of a slave and that a slave closed his eyes when he died he was born on to a plantation with more well over a hundred slaves and he owned slaves at every point and he was in the grips of a profound contradiction around this fact because he also believed and we know this from his private letters that slavery was morally wrong and should eventually be abolished in fact he wrote a letter to his father from Philadelphia when he was leaving Philadelphia to go back this is before the Constitutional Convention he had been serving in the Congress in Philadelphia he was on his way home and he wrote about a slave that he owned personally whose name was Billy who he had brought with him to Philadelphia to be his servant and he wrote to his father I can't bring Billy home because he's been living in Philadelphia where people understand freedom and he will taint all the other slaves on the plantation but he says I I also can't sell him because at this point under the laws of Pennsylvania I he wasn't allowed you weren't allowed to sell a slave Pennsylvania as you probably know engaged in a very complicated process of the abolition of slavery and at this particular juncture you could own a slave if you were a member of Congress who brought your slave with you the children of slaves born in Pennsylvania were already being freed but you couldn't sell the slave you had in Pennsylvania so a Madison says to his father I could you know potentially sell him off to some other deep southern state or maybe to the Caribbean but he says it would be monstrous to punish with transportation there but in other words sending away Billy who only wants the right that we declared ourselves to exist for all humans and fought for and spilled our blood floor in the revolution I mean it's hard to get your mind around this because it's astonishing this is one slave holder telling another slave holder his father that his slave that it would be monstrous to sell his slave into slavery because he is entitled to a universal human right to Liberty just like we are so instead Madison compromised this is a theme of his life for good and for bad and he sold billion to indent indentured servitude which he was allowed to do under Pennsylvania law Billy ended up staying here eventually becoming free at the end of the period marrying and making a life for himself here and Philadelphian to the name William Gardner so you know this capture is Madison's contradiction he knew slavery was morally wrong and sometimes I ask my students you know to compare him to Jefferson and then you really want to ask yourself the following imponderable question which is more immoral to believe that african-americans are or people of African descent are inherently inferior and to hold them as slaves that's a Jefferson view or to believe that people of African descent are equal in capacity and value to white people and hold them as slaves right I mean neither is good okay I'm not defending either but it's a kind of a deep hard question to ask which is more immoral and that immorality Madison's version of this really really follows him throughout his life towards the end of his career he became very focused on a plan that he'd always believed in namely repatriation of Africans of course they were actually born in the United States and they weren't actually being repatriated but resettlement of people of African descent in Africa in Liberia and he became the chairman of the American Colonization Society late in his life which was created to colonize Liberia it never seemed to convince Madison that his actual slaves had no interest in going to Liberia so worried was he about the difficulties of racial integration after emancipation so a deep contradiction in my view in Madison's life and pervaded the Constitution it pervaded the structure of the Constitution the three-fifths compromise the Fugitive Slave Law clause rather you know multiple features of the Constitution which Madison justified on the grounds that they were compromises that were necessary there's two questions that look to compare the skills that so I'll read this one how did the skills and abilities of Madison at the convention compared to his skills as president and a similar question is about how his goals in creating the Constitution compare to his skills demonstrated as chief executive yeah that's a it's a super interesting question I think in both cases his strength was trying to convince people rationally of things and his weakness was that people don't always do what's in their rational best interests according to you so at the convention he tried to offer a rational argument for say proportional representation and the small and medium states just said no he said but you know you admit it's not fair for you to have more representation and they were like ah right so and then at that point Matson had nothing to say he wasn't very good at dealing with other people when they were not being that rational and the same was true during his presidency when he kept on trying to convince the British and the French that it was rational for them to open their ports to US trade they had only the game he kept on trying to show them and for the longest time their reaction was I think it's up to us to decide that you know and in the end he had to turn to the threat of force and ultimately the use of force in the war of 1812 which he knew was not reason force is not an argument from reason and it took that in the end took the threat of force to get the British to change their view in the end so on the bright side he learned as president that you can't always rely on everybody else to be reasonable just because you are but on the downside the cost of that the cost of that recognition was a war and that's a that's a high cost in any presidency is there anything that struck you while writing the book as something that you either never realized about Madison before or was a misconception that you wanted to clear up yeah I think there was probably the greatest misconception that I think most people have about Madison and then I sort of had was that after producing this incredible Constitution he was kind of done you know he had made a global contribution he would be famous for it forever so we could sort of go home and live out the rest of his life without really changing his views you know Madison one of the constant to be venerated he would be thrilled by the existence of the National Constitution Center thrilled because he liked the idea of civic institutions that stood for values of liberty values of federalism and above all the value of rational thought in defense of these things so he would have loved that but he also wanted us to have that little extra special something behind the Constitution where we worship it venerate is a polite word for worship so you know fancy word for worship so it's easy to fall into the mistake of thinking that once the Constitution was done all he want to do was spend the rest of his life saying yay Constitution but that's not how it happened he discovered that his own Constitution was flawed and he needed to fight incredibly hard in both of his next two political lives to try to right the ship of state that was listing in part because the Constitution in fact wasn't perfect and he knew it wasn't perfect and so to me that is really you know that's an extraordinary lesson for anything you might accomplish in life you know even accomplishment like the Constitution is not permanent everything is impermanent we have to earn something like the Constitution and if you want a lesson for our current age I don't think I can get any better than this you up we each generation have to rear in the Constitution right here's the part where Jefferson was right in the debate with Madison Jefferson was right to say that the Constitution at any given moment belongs to us and not to the people who did it a generation or two generations or 20 generations ago the way in which Jefferson is right is that if we don't do a good job of holding our constitution in trust of nurturing protecting cultivating sheltering our Constitution and taking care of it having what some place Madison called a tender care for our Constitution which he thought of as his child he didn't have any other children then it won't be there to pass on or it'll be written down but he won't matter the Constitution has to be rethought re-engaged and read offended in every generation and to me that's the most profound lesson of the rest of Madison's lives that even person who made it had to spend the rest of his life fighting very hard with every ounce of energy and strength that he had to defend that Constitution and that's I think a good way to try to live one's own life in in the world of constitutions absolutely yeah and everyone at the National Constitution Center is just thrilled to hear that we are the living embodiment of Madison's legacy so it's great news the last question and you had to know this question was coming do you think we will see Madison on Broadway anytime soon well my grandmother who was from Philadelphia would say from your mouth to God's ears I I think Madison had a very different character from from Hamilton and I don't know that the hip-hop musical is the right genre for us to express but I think there might be other ways through television and through other media for us to hit on some of the real drama of Madison's life and the real excitement that it contained even if it doesn't have to rhyme [Applause]

Channel: National Constitution Center

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Id: UpjUR_ywMik

Length: 61min 42sec (3702 seconds)

Published: Tue Dec 19 2017