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March 21 , 2001:
Examining James Madison and the Constitution
A report on Princeton's conference February 22-23

By Jeff Davis GS

Leading James Madison scholars from around the continent, including Supreme Court Justice Antonin Scalia, gathered for a conference on February 22-23 to discuss Madison's impact on the interpretation of the U.S. Constitution.

Gordon Wood, professor of history at Brown, began the conference by considering whether the Madison of the 1780s, a fervent nationalist who discounted the states as "subordinately useful," could be reconciled with the Madison of the late 1790s, a strict constructionalist who seemed to be an advocate of states' rights. Unlike most scholars, who maintain that Madison's views on government changed markedly over time, Wood contends that Madison was consistently an ardent nationalist who despised powerful states dominated by the executive. By taking Madison's views only in the context of his own era, and not as if he were an enlightened individual speaking to the ages, Wood portrays Madison as an old-fashioned, classical thinker. He sees Madison's initially staunch support of nationalism to be the result of Madison's belief that popular majorities in the states were the source of the problem with government at the time, as evidenced by the threat posed to democracy by the multiplicity, mutability, and injustice of many state laws. Wood maintains that Madison's later support for states' rights was not a shift in his views but instead a practical response to the threat of the U.S.'s becoming, under the guidance of Alexander Hamilton, a powerful, war-making state similar to Britain and France. Madison feared modern fiscal-military states because he despised war, which he saw as the cause of debt and taxes, too powerful an executive, and suppression of the people.

Instead, Madison favored commercial discrimination manifested in economic sanctions, such as those he advocated while president. Wood concluded that Madison's consistent support of nationalism without a powerful executive would be more apparent if scholars spend more time investigating Madison as president rather than Madison as the author of the Constitution.

On Friday morning, Jack Rackove, professor history as Stanford University, gave a seminar on "Reading Madison's Mind." After prefacing with a summary of Madison's early background, Rackove focussed his analysis on Madison's "Vices of the Political System of the United States," the first draft of what would later become the celebrated Number 10 of The Federalist. Rackove explained that while Madison frequently theorized, his abstract thoughts on politics were the techniques he used to determine the problems with government and possible solutions, not ends in themselves. As he focused on Madison's thoughts on whether a system of Federalism based on voluntary compliance could ever work (a copy of the relevant text was supplied to the audience), Rackove highlighted the game-theoretic formulation inherent to Madison's thinking. Madison used this approach to convince himself of the correct course of action, thereby employing theory as an analytical tool to facilitate his understanding of a problem. Rackove concluded by stating that Madison should be recognized not only as Princeton's first graduate student but also as the first in a distinguished line of game theoreticians from Princeton. The audience seemed amused by this conclusion and pleased with Dr. Rackove's insights into Madison's thought process.

The third talk was given by Jennifer Nedelsky, a professor at the University of Toronto. While the talk ostensibly considered "James Madison and Constitutionalism," the connection to Madison was tenuous. After stating that she would discuss how republican solutions could be found to the inherently republican problem of equal protection of people and property, Nedelsky began discussing how other countries, such as Canada and South Africa, have attempted to protect property and participation with alternatives to the American system of judicial review, maintaining that these alternatives can be seen as developments of Madison's original ideas.

After a break for lunch, John Stagg *73, professor of history at the University of Virginia, spoke on whether Madison was the founding father of the CIA. Since the U.S. annexed the former Spanish colony of West Florida soon after Madison sent secret agents to the colony in 1810, Madison's action has been interpreted as one of the first and most successful covert operations based on the notion that the agents were sent to foment rebellion in the colony. Stagg contends that although Madison believed that West Florida had been included in the Louisiana Purchase made by the U.S. in 1803, President Madison actually sought the least radical way to assert the U.S. claim to West Florida and specifically gave orders against advocating rebellion and the use of force. Although cited by some recent federal officials as an example of how to conduct a perfect covert operation, Stagg pointed out that this was in fact a very poor example since almost nothing went as intended. In answering his final rhetorical question as to whether a founding father like Madison could sanction the CIA, which instills an enormous amount of power in the executive, he concluded by reminding the audience that "James Madison was not Richard Nixon."

Pauline Maier, professor of history at MIT, next spoke on Madison and American Federalism. Mentioning that in two recent rulings that states are immune from prosecution, the U.S. Supreme Court had also asserted the sovereignty of the states, she briefly traced the idea of sovereignty and outlined Madison's ideas on state sovereignty. In a dynamic speech Maier demonstrated that Madison, as well as other notable contemporaries, did not believe that states were sovereign. She argued that, beginning with the Articles of Confederation, the states were never sovereign since, for example, they retained only the powers not specifically delegated by the Articles and lacked the power to declare war and make peace. After returning to the recent Supreme Court decisions for the conclusion of her talk, Maier stated that state sovereignty, as used by the Court, has no relationship to the historical concept of sovereignty as used by Madison. She explained that the states did not need to be declared sovereign to be immune from prosecution, as evidenced by a relevant passage in Number 81 of The Federalist. After finishing her vigorous talk with the qualifying statement that truth in history is almost always open to question, Maier received a long round of applause.

Following Maier's talk, the Honorable Lloyd Axworthy *72 joined the conference presenters on a summation panel to discuss the most significant issues that had been raised.

The highlight of the conference, however, was the presentation of an engaging paper on Madison's views of Constitutional interpretation by U.S. Supreme Court Justice Antonin Scalia.

By tracing Madison's involvement with the National Bank to illustrate Madison's views on Constitutional interpretation and his fear of despotic democracy, Scalia determined that Madison was an originalist since he would believe that the meaning of the Constitution should always be the same as when it was ratified. In his complex talk interspersed with humorous asides, Scalia further contrasted intentionalism from textualism and concluded that Madison, like Scalia, is a textualist. Scalia briefly mentioned some of the virtues of his Constitutional interpretation and declared that while textualism will not prevent tyranny by the majority, it will not facilitate it. An evolving Constitutional interpretation, however, will advance such a vice.

Finally, Scalia declared his admiration of and approbation for Princeton's most distinguished alumni. Madison, the first president from Princeton, was the most prominent textualist, while Woodrow Wilson, the second Princeton president, was the inventor of the ëliving Constitution.' After his talk, Scalia adroitly fielded questions from the audience for a full 30 minutes. In his responses, Scalia poked fun at those who believe in a "living Constitution," mentioning that, for such people, every issue is an open question and that judicial precedents are absolutely irrelevant if the meaning of the Constitution changes over time. Finally, Scalia explained that a textual interpretation is the most flexible and warned that continually adding rights to the Constitution adds rigidity and "impoverishes democracy." The several rounds of applause he received culminated in a sustained, standing ovation from the audience.

You can reach Jeff Davis at davisj@princeton.edu