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The “Madison Problem” Revisited
Published online by Cambridge University Press: 05 May 2010
Extract
James Madison was a “law student or demi-lawyer,” Mary Sarah Bilder writes, with misgivings about his own role in the lawyers' world that he helped bring into being under the new federal Constitution. If Madison was the Constitution's “father,” his offspring seemed somewhat misbegotten. Structurally and ideologically the new regime was “federalist,” Alison LaCroix explains, with courts and lawyers “mediating among multiple levels of government” that retained a significant degree of separation and autonomy. But this was just what Madison had hoped to avoid. The demi-lawyer instead pushed hard for a “republican remedy” for the Confederation's pathologies, a structural solution to the centrifugal tendencies that jeopardized union and republican government. His proposed federal veto and council of revision would have constituted a “republican prerogative, via Congress” to check recalcitrant state legislatures. In effect, LaCroix concludes, Madison “envisioned the legislatures”—state and federal—“operating almost as a single system—a compound legislature comprising inferior and superior bodies.” Convinced by deep study and hard experience that federations must fail, the Madison who promoted the Virginia Plan was an ultranationalist, or anti-federalist.
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- Copyright © the American Society for Legal History, Inc. 2010
References
1. See, in this volume, Bilder, Mary Sarah, “James Madison, Law Student and Demi-Lawyer,” Law and History Review 28 (2) (2010): 389–449CrossRefGoogle Scholar, and LaCroix, Alison L., “The Authority for Federalism: Madison's Negative and the Origins of Federal Ideology,” Law and History Review 28 (2) (2010): 451–505CrossRefGoogle Scholar.
2. Bilder, “James Madison,” 441, 443; LaCroix, “Authority for Federalism,” 459.
3. This and subsequent references to The Federalist are from the Avalon Project at Yale Law School, http://avalon.law.yale.edu/subject_menus/fed.asp.
4. Bilder, “James Madison,” 436; LaCroix, “Authority for Federalism,” 498.
5. Bilder, “James Madison”; LaCroix, “Authority for Federalism,” 453, 504, 505.
6. Bilder, “James Madison,” 436; LaCroix, “Authority for Federalism.”
7. Banning, Lance, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca, N.Y.: Cornell University Press, 1995)Google Scholar.
8. LaCroix, “Authority for Federalism,” 457.
9. LaCroix, “Authority for Federalism,” 488.
10. LaCroix, “Authority for Federalism,” 475, 481, 489, 502.
11. LaCroix, “Authority for Federalism,” 487, 494. Morgan, Edmund S., Inventing the People: The Rise of Popular Sovereignty in England and America (New York: W. W. Norton, 1988)Google Scholar.
12. LaCroix, “Authority for Federalism,” 497.
13. See Madison's essay in the National Gazette on “Consolidation,” December 3, 1791, in Banning, Lance, ed., Liberty and Order: The First American Party Struggle (Indianapolis, Ind.: Liberty Fund, 2004)Google Scholar, http://oll.libertyfund.org/title/875 (accessed on August 18, 2009).