American Compact: James Madison and the Problem of Founding
A Lucid and Thoughtful Analysis
SEPTEMBER 01, 2000 by DAVID UPHAM
At the time of independence, virtually all Americans believed, with the authors of the Declaration of Independence, that government derives its “just powers from the consent of the governed.” Yet the principle of popular sovereignty does not indicate how a people can be organized so that they may exercise their right to establish new government. A people cannot spontaneously assemble and adopt a plan of government. Some individual or group must first assume the authority of submitting a formal proposal before the people. In light of the principle of popular sovereignty, then, on what basis can this proposing authority be justified?
That theoretical difficulty was faced by the constitutional convention that met in 1787. One of the main objections leveled against the convention was that, in proposing the Constitution, it had acted without popular authorization. In effect, while the established popular government in Congress had directed the convention to propose revisions to the existing national constitution, the Articles of Confederation, the convention recommended a complete abolition of the Articles and the adoption of an entirely new constitution.
According to Gary Rosen, managing editor of Commentary, James Madison met those objections by setting forth a theory of popular government that substantially modified the prevailing social contract theories. While previous contractarians had assumed that a people in their pre-political state had the capacity to institute government on their own, Madison argued that the establishment of government requires an initially aristocratic action: namely, a proposal made by a small number of individuals who possessed those virtues (especially prudence) necessary for good deliberation.
Rosen notes that unlike the multitude, these few “were capable of arriving at an independent view of the Constitution that was based on something more than the exigencies of the moment.” Consequently, they could “do for the people what [the people] could not do for themselves.” Madison argued that the Philadelphia convention had served this vital purpose. In this way, Rosen says, Madison introduced into modern social compact theory a feature of classical political philosophy; for the justification of the framers’ right to propose, like that of the right to rule in classical thought, was derived not from the will of the many, but from the superior virtue of the few.
At the same time, Rosen notes, Madison remained a committed republican. He believed that no individual or group was so virtuous that it should be entrusted with the interests and rights of a people without being regularly accountable before this same people. Moreover, he held that both the people’s expectations and their spirited desire for rule had to be accommodated. In fact, this spiritedness, if rightly directed, would benefit the endurance of good government. Through their ratification of the Constitution, the people would understand the government as a work of their own making and would consequently possess, in Rosen’s words, “[a] constitutional passion, an unthinking attachment to the Constitution as an end in itself.”
According to Rosen, it was Madison’s understanding of the Constitution, “an understanding that gave proper attention to both the prudence of the founders and the claims of the people,” that explains his subsequent disagreements with Jefferson and Hamilton. Jefferson, the strict majoritarian, proposed that new constitutional conventions be held at least every 19 years. Madison argued that such conventions would both undermine the popular reverence for the Constitution and would be unlikely to enjoy the degree of prudence manifest in the 1787 convention. At the same time, Madison opposed Hamilton’s “loose construction” of the Constitution, according to which the federal government could assume any general power of sovereignty without reference to a specific power granted by the Constitution. Madison held that such an interpretation actually did violence to the people’s will as expressed through their ratification of a written charter. The federal government could not rightly exercise any power unless it were granted to them by the people, either formally, through a constitutional amendment, or informally, through a popularly endorsed precedent. It was for this reason that Madison initially opposed as unconstitutional the establishment of a national bank, but later signed into law the second charter of the same bank while president, for the bank had been repeatedly approved by the people’s representatives in Congress.
There are two major weaknesses in Rosen’s analysis. On the one hand, he overestimates the degree to which Madison’s compact theory was influenced by that of Thomas Hobbes. Contrary to Rosen’s claim, Madison did not share Hobbes’s understanding of the “law of nature” as a law of physical rather than moral necessity. On the other hand, Rosen suggests that Madison located prudence in the republic solely in the constitutional convention. Yet Madison surely expected the prudence of both the people and their elected representatives to play an enduring and vital role in the new republic.
Despite these difficulties, Rosen successfully demonstrates that Madison deserves to be studied as a political theorist and vindicates Madison against the prevailing view that he was a man of inconstant principle. Rosen’s analysis is lucid and thoughtful. This book merits serious attention.
David Upham is a doctoral student in politics at the University of Dallas.