James Madison-Checks and Balances to Limit Government Power

Mr. Powell is editor of Laissez-Faire Books and a Senior Fellow at the Cato Institute. He has written for The New York Times, The Wall Street Journal, Barron’s, American Heritage, and more than three dozen other publications. Copyright © 1996 by Jim Powell.

James Madison didn’t originate the idea of checks and balances for limiting government power, but he helped push it farther than anyone else before or since. Previous political thinkers, citing British experience, had talked about checks and balances with a monarch in the mix, but Madison helped apply the principle to a republic. Contrary to such respected thinkers as Baron de Montesquieu, Madison insisted checks and balances could help protect liberty in a large republic.

If one must endure a central government, it seems hard to improve on the highly sophisticated checks and balances provided in the U.S. Constitution, which reflects a good deal of Madison’s handiwork. Stalwart republican Thomas Jefferson embraced it. He told Madison, his best friend: “I like much the general idea of framing a government which should go on of itself peaceably, without needing continual recurrence to the state legislatures. I like the organization of the government into Legislative, Judiciary and Executive. I like the power given the Legislature to levy taxes; and for that reason solely approve of the greater house being chosen by the people directly . . . preserving inviolate the fundamental principle that the people are not to be taxed but by representatives chosen immediately by themselves. I am captivated by the compromise of the opposite claims of the great and little states, of the latter to equal, and the former to proportional influence. . . . I like the negative given to the Executive with a third of either house. . . .”

Madison didn’t have a grand vision of liberty like Jefferson, but he acquired practical insights about how to protect liberty. Madison, recalled William Pierce, a Georgia delegate to the Constitutional Convention, “blends together the profound politician, with the Scholar. In the management of every great question he evidently took the lead in the Convention, and tho’ he cannot be called an Orator, he is a most agreable [sic] eloquent, and convincing Speaker. From a spirit of industry and application, which he possesses in a most imminent degree, he always comes forward the best informed Man of any point in debate . . . a Gentleman of great modesty,—with a remarkably sweet temper.”

Like his compatriots from Virginia, Madison’s record was stained by slavery, an inheritance he could never escape. He tried several business ventures aimed at generating adequate income without slaves, but none worked. Ultimately, he didn’t even liberate his slaves upon his death, as George Washington had done.

Madison, a shy man, was perhaps the least imposing Founder. He stood less than five feet, six inches tall. He had a sharp nose and receding hairline. He suffered a variety of chronic ailments including fevers, gastrointestinal problems, and seizures. “I am too dull and infirm now,” he wrote at 21, “to look out for any extraordinary things in this world for I think my sensations for many months past have intimated to me not to expect a long or healthy life.” The most distracting ailment, Madison recalled much later, was “a constitutional liability to sudden attacks, somewhat resembling Epilepsy, and suspending the intellectual functions. They continued thro’ life, with prolonged intervals.”

But he blossomed when, at 43, he met the 26-year-old, black- haired, blue-eyed widow Dolley Payne Todd. One of her friends reported: “At Night he Dreams of you & Starts in his Sleep a Calling on you to relieve his Flame for he Burns to such an excess that he will be shortly consumed. . . .” They were married September 15, 1794, and for the next four decades were the “first couple” of republican politics, keepers of the Jeffersonian flame.

James Madison was born March 16, 1751, at his stepgrandfather’s plantation on the Rappahannock River, King George County, Virginia. His ancestors had come to America not as persecuted people seeking a sanctuary but as entrepreneurs hoping to profit. He was the eldest child of Nelly Conway, a tobacco merchant’s daughter. His father, James Madison Sr., was a tobacco farmer in Orange County.

Biographer Ralph Ketcham describes Madison as “a sandy-haired, bright-eyed, rather mischievous youth.” He had private tutors who taught Latin, arithmetic, algebra, geometry, history, and literature. Although most Virginians considering college would have chosen William and Mary, it had a reputation as a “drinking school,” and in 1769, Madison left home for the College of New Jersey, which later became Princeton University. Its library was well stocked, and included books by Scottish Enlightenment authors like Adam Smith and Adam Ferguson as well as influential works on natural rights by John Locke and John Trenchard and Thomas Gordon, co-authors of the radical Cato’s Letters. Madison graduated in September 1771.

Madison was drawn to current affairs. He devoured newspapers. He read more books about liberty, such as Josiah Tucker’s Tracts, Philip Furneaux’s Essay on Toleration, Joseph Priestley’s First Principles on Government, and Thomas Paine’s pamphlet Common Sense.

An Early Dedication to Liberty

On April 25, 1776, 25-year-old Madison was elected a legislator to help draft a state constitution for Virginia. Proposals came from Thomas Jefferson and Richard Henry Lee, who were in Philadelphia preparing to declare American Independence. Madison’s first contribution to liberty: a measure which affirmed that “all men are equally entitled to enjoy the free exercise of religion according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless the preservation of equal liberty and the existence of the State are manifestly endangered.”

Madison worked with Thomas Jefferson who shared his passion for religious liberty. The two men began meeting frequently after Jefferson was elected governor of Virginia. They both loved books, ideas, and liberty, and they remained best friends for a half-century.

In 1784, Madison persuaded the Virginia legislature to enact Jefferson’s “Bill for Establishing Religious Freedom.” He defeated Patrick Henry’s proposal that the state subsidize the Anglican church. Madison declared government money corrupts. Christianity, he noted, “flourished, not only without the support of human laws, but in spite of every opposition to them. . . .”

During these debates on religious freedom, Madison got a key idea for protecting individual rights: “. . . freedom arises from that multiplicity of sects which pervades America, and which is the best and only security for religious liberty in any society.”

Meanwhile, in December 1779, Madison had been appointed to the Continental Congress which, meeting in Philadelphia, performed legislative, executive, and judicial functions during the Revolutionary War. The government was broke and financed the war effort with vast issues of paper money known as “continentals,” which triggered ruinous runaway inflation. Madison became the most articulate advocate of an alliance with France, and he supported Benjamin Franklin who was lobbying King Louis XVI for help. Madison participated in negotiations with Spain, which controlled Louisiana, aimed at assuring vital American access to the Mississippi River.

Madison served in Congress under the Articles of Confederation, ratified March 1, 1781. It was a voluntary association of states. Congress depended on voluntary contributions, not taxes. If people in a particular state didn’t approve what Congress was doing, they kept their money, and that was that. Although states squabbled with each other, they were bit players in world politics, unlikely to become entangled with foreign wars. Amending the Articles required unanimous consent—the general rules people lived by couldn’t be upset easily. Voluntary cooperation worked well enough that the states defeated Britain, the world’s mightiest naval power, and they negotiated tremendous territorial concessions.

Madison, however, was frustrated at what he considered the irresponsible behavior of states. He objected to their trade wars and continued paper money inflation—a result of Revolutionary War costs. Devious New Englanders tried to arrange a monopoly on codfish sales to Spain in exchange for giving up American rights on the Mississippi River, which would have devastated people in the Kentucky territory. Madison believed things would be better if Congress could function as a centralized government. Just 12 days after ratification of the Articles, he conceived the dubious doctrine of implied power: if a government agency were assigned a particular responsibility, it could assume power it considered necessary to fulfill that responsibility even if the power wasn’t enumerated in a constitution.

A “Fatal Omission”?

Madison, incredibly, insisted that to be legitimate, a government must coerce people. “A sanction is essential to the idea of law, as coercion is to that of Government,” he wrote in his paper Vices of the Political System of the United States (April 1787). The Confederation, he continued, “being destitute of both, wants the great vital principles of a Political Constitution. Under the form of such a constitution, it is in fact nothing more than a treaty of amity of commerce and alliance, between independent and Sovereign States.” Madison called the lack of coercion “a fatal omission” in the Confederation.

On February 21, 1787, Madison and Alexander Hamilton, Washington’s former assistant who believed passionately in a powerful central government, persuaded Congress to name delegates who would revise the Articles of Confederation.

Madison got George Washington to attend the National Convention, where he served as presiding officer. This meant serious business would be done, convincing distinguished citizens that they, too, should attend. Benjamin Franklin would be present as well, lending his international prestige to the gathering.

Madison arrived in Philadelphia May 3, 1787. He was to be among 55 delegates from 12 states (Rhode Island refused to send delegates). The delegates included attorneys, merchants, physicians, and plantation owners. Thirty-nine delegates had served in the Continental Congress, and they were inclined to seek more power than permitted by the Articles of Confederation.

A quorum of seven states was present by May 25th. Proceedings began on the first floor of the Pennsylvania State House. During the next four months, delegates met six days a week from late morning till early evening. Details of what went on were kept secret at the time. “I chose a seat in front of the presiding member, with the other members on my right & left,” Madison recalled. “In this favorable position for hearing all that passed . . . I was not absent a single day, nor more than a cassual fraction of an hour in any day, so that I could not have lost a single speech, unless a very short one.” Madison was a major influence, rising to speak 161 times through the Convention.

The Virginia Plan

Defying explicit instructions to revise the Articles of Confederation, Madison launched the debates by helping to draft the “Virginia Plan,” which called for a brand-new constitution. It described a two-branch national legislature. The House would be elected directly by the people, the Senate by the House. Seats would be proportionate to population. There would be a national executive and a national judiciary, both chosen by the legislature. Madison insisted the proposed national government must be the supreme power with a “negative” over state legislatures. Large states supported this plan.

Small states rallied to the “New Jersey Plan,” which aimed to revise the Articles of Confederation with a single legislative body where each state had equal representation. The “New Jersey Plan” accepted the principle that all acts of Congress “shall be the supreme law of the respective States.”

The Convention stalemated on the issue of state representation, and it was referred to a committee which proposed the “Great Compromise”: each state would have equal representation in the Senate, the House would be apportioned by population, and money bills would originate in the House.

As for the executive, Madison hadn’t worked out his ideas before the Convention. The Committee on Detail recommended an executive who would be called “President,” be elected by the legislature, serve a single seven-year term and function as commander-in-chief of armed forces. Once delegates decided that each state would have an equal number of Senators, Madison became convinced that the executive should be elected independently of the legislature. He helped draft the final proposal to have the president selected by electors whom the people choose—the “electoral college.”

Madison’s collaborator, Alexander Hamilton, was the most outspoken critic of democracy at the Convention. After praising Britain’s hereditary monarchy, he declared: “Let one branch of the Legislature hold their places for life or at least during good behavior. Let the Executive also be for life.”

Slavery was an explosive issue. If the Constitution had prohibited it, Southern states would have surely bolted the Convention. Madison successfully pressed for a clause permitting the end of the slave trade in 20 years (1808), and he kept direct support for slavery out of the Constitution. The Constitution provided that the census count slaves (“other persons”) as three-fifths of a person, thereby reducing Southern representation in the House.

The final draft of the Constitution, about 5,000 words, was engrossed and signed by 38 delegates on September 17, 1787. Sixteen delegates had quit the Convention or refused to sign it at the end. It was sent to Congress which, in turn, referred it to states for ratification by conventions of elected delegates. The Constitution would be adopted upon ratification in nine states.

By eliminating state tariffs, the Constitution created a large free trade area, eventually the world’s largest, which made possible America’s phenomenal peacetime prosperity starting in the early nineteenth century. Entrepreneurs could travel freely without the myriad tolls, tariffs, and other obstacles that plagued business enterprise in Europe.

Checks and Balances

The Constitution attempted to limit the power of central government through intricate checks and balances. A key principle was separation of powers: those who make laws, enforce laws, and interpret laws should be substantially independent and capable of limiting each other’s power. The two houses of Congress provide a check on each other. The President can veto legislation, but he can be overruled by a two-thirds majority in both houses. The judiciary can strike down laws considered unconstitutional. Proposed amendments become part of the Constitution when approved by two-thirds of Congress and by legislatures in three-quarters of the states.

Yet the Constitution did establish unprecedented government power in America. The Constitution authorized federal taxes which never existed before. It gave the federal government power to overrule elected state and local officials who were closer to the people. Control over larger territory increased the temptation for U.S. presidents to become entangled in foreign wars, which had the consequence of further expanding federal power. There’s some irony here, since many people supported the Constitution because of dissatisfaction with high inflation, high taxes, and other economic consequences of the Revolutionary War.

Madison accepted Alexander Hamilton’s invitation to help promote ratification in New York State. Between October 1787 and March 1788, Madison wrote 29 essays which, together with 56 more essays by Hamilton and lawyer John Jay, appeared in New York newspapers. The essays became known as The Federalist Papers. All were signed “Publius” after the Roman lawmaker Publius Valerius Publicola who helped defend the Roman republic. In July 1788, the essays were published as a two-volume book. Madison seems to have recognized that by setting up a central government, the Constitution conflicted with ideals of liberty. Not until August 1788 did he finally tell Jefferson about his collaboration: “Col. Carrington tells me he has sent you the first volume of the federalist, and adds the 2nd. by this conveyance. I believe I never have yet mentioned to you that publication.”

Because the Constitution proposed to expand government power, there was substantial opposition, spearheaded by the so- called “Antifederalists.” They included New York governor George Clinton, Revolutionary War organizer Samuel Adams, and Virginians George Mason and Patrick Henry. Respected pro-Constitution historians Samuel Eliot Morison, Henry Steele Commager, and William E. Leuchtenburg admitted “There is little doubt that the Antifederalists would have won a Gallup poll.”

The Antifederalists presented a wide range of often conflicting points against the Constitution. Most important: the lack of a Bill of Rights. Madison considered bills of rights to be mere “parchment barriers” which an oppressive majority could easily ignore. He was convinced that liberty would be best protected in a large republic with many competing interests, where it would be difficult for a single one to oppress the others.

Bill of Rights

Jefferson made clear he opposed the Constitution without a bill of rights. For example, on December 20, 1787, he told Madison he objected to “the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury. . . .” Jefferson added: a Bill of Rights is “what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.” Madison resisted. “I have never thought the omission a material defect,” he wrote Jefferson, “nor been anxious to supply it even by subsequent amendment. . . .”

Madison, however, came to realize the Constitution wouldn’t gain acceptance without a bill of rights. The Constitution was ratified in Delaware (December 7, 1787), Pennsylvania (December 12th), New Jersey (December 18th), Georgia (January 2, 1788), Connecticut (January 9th), Massachusetts (February 7th), Maryland (April 28th), South Carolina (May 23rd), New Hampshire (June 21st), Virginia (June 25th), and New York (July 26th), but the Antifederalists still had some aces. They threatened to campaign for a second constitutional convention, which Madison didn’t want.

Madison, elected a Congressman, became the key advocate for a bill of rights. On June 8, 1789, he rose on the House floor and presented his version. He declared: “. . . those who have been friendly to the adoption of this constitution, may have the opportunity of proving to those who were opposed to it, that they were as sincerely devoted to liberty and a republican government. . . .” Madison led the debates and parliamentary maneuvering which involved conferences between House and Senate. The House voted for the proposed Bill of Rights on September 24, 1789, and the Senate followed the next day. State legislatures ratified the Bill of Rights on December 15, 1791.

Madison conceived a limited role for this new government. “The powers delegated by the proposed Constitution to the federal government,” he explained, “are few and defined. Those . . . will be exercised principally on external aspects, as war, peace, negotiation and foreign commerce. . . .”

Madison was shocked at how fast the Federalists, led by President Washington’s Treasury Secretary Alexander Hamilton, expanded central government power beyond the limits he helped set up. As early as November 1789, Madison expressed opposition to Hamilton’s recommendation that the self-interest of wealthy investors should be linked to the central government by issuing bonds—running up a big national debt.

Hamilton convinced President Washington to approve the establishment of a government bank as a convenience for the government, and Madison opposed it because the Constitution didn’t say anything about a bank. Indeed, the Constitutional Convention had specifically rejected a proposal that the federal government charter corporations such as a bank. Madison rejected the doctrine of implied powers which he had previously advocated during his campaign for central government. Implied powers, he declared, struck “at the very essence of the Government as composed of limited and enumerated powers.”

Countering the Federalists

Madison became nearly as radical as Jefferson. Both men praised Thomas Paine’s The Rights of Man (1791), a clarion call for liberty which alarmed the Federalists. Hamilton unleashed nasty attacks against Jefferson in Philadelphia newspapers, and Madison together with James Monroe wrote counterattacks. Madison denounced Hamilton’s view that the President should have considerable discretionary power to conduct foreign policy, even if it undermines Congressional power to declare war. In 1793, Madison spoke out against the military build-up sought by the Federalists. Three years later, Federalists wanted to suppress American societies sympathetic to the French Revolution, but Madison insisted they were innocent until proven guilty of some crime. Federalists warned that aliens posed grave dangers, while Madison introduced a bill which made it easier for aliens to become American citizens. Madison resisted Federalist demands for higher taxes. He denounced the Alien and Sedition Acts (1798), which empowered the government to silence, even deport critics. His was a crucial, courageous voice during the Federalist assault on liberty.

Jefferson won the 1800 presidential election, turning the Federalists out, and Madison became Secretary of State for two terms. Then Madison won the presidency twice himself. These years were marked by frustration as he groped for a way to discourage the warring British and French from seizing American merchant ships. He pursued an embargo which backfired, devastating American port cities. He stumbled into the War of 1812, and the British torched Washington, D.C.—retaliation against the United States, which had torched Toronto. Demands of wartime finance spurred Madison to ask for higher taxes and a second government bank, since the term of Hamilton’s bank had expired. Madison was vindicated on one point, though. He relied on volunteers, not conscripts, and it was American privateers who ravaged the British coastline, forcing the British government to negotiate peace. London merchants couldn’t even get maritime insurance between Britain and Ireland.

Despite his inconsistencies, Madison outlived all the other Founders and continued expressing the ideals of republican liberty. As Jefferson wrote in his most poignant letter, February 17, 1826: “The friendship which has subsisted between us, now half a century, and the harmony of our political principles and pursuits, have been sources of constant happiness to me. . . . It has also been a great solace to me, to believe that you are engaged in vindicating to posterity the course we have pursued for preserving to them, in all their purity, the blessings of self-government. . . . To myself you have been a pillar of support through life. Take care of me when dead, and be assured that I shall leave with you my last affections.”

Madison’s time came a decade later when, in early 1836, he began suffering from chronic fevers, fatigue, and shortness of breath. On June 27th, Madison wrote his final words, about his friendship with Jefferson. During breakfast the next day, he suddenly slumped over and died. He was buried in the family plot a half-mile south of his house.

For all their flaws, constitutional checks and balances endure as the most effective means ever devised for limiting government—a tribute to the insight, industry, and devotion of James Madison.