Using the Emoluments Clause to sue the President reinforces congressional weakness, and there is a better way.
A new political biography questions his status as an authoritative expositor of the Constitution.
During the nineteenth century, historians typically placed James Madison in Thomas Jefferson’s shadow. But in twentieth century scholarship Madison emerged as a towering figure in his own right, in some respects superior to his friend Jefferson. Since his “rediscovery” Madison has received generally favorable treatment from biographers and historians – his presidency excepted, and even that phase of his career has gained some defenders. Irving Brant’s four-volume biography (1941-1961), Ralph Ketcham’s 1971 biography, Drew McCoy’s The Last of the Fathers: James Madison and the Republican Legacy (1989), and Lance Banning’s The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (1998) were all penned by authors who clearly admired Madison even when acknowledging his limitations and failures. Madison’s explorations of political faction, majority rule, and public opinion have commanded the attention of political theorists and empirical political scientists. His passionate defenses of religious liberty and freedom of speech and press became key texts as courts began to rescue the Bill of Rights from its nineteenth century dustbin. The recent comprehensive restoration of his home, Montpelier, complete with state-of-the-art visitor center and archaeological researches, suggests that Madison may even have acquired a popular following (though on this score not yet in Jefferson’s league).
Kevin Gutzman’s James Madison and the Making of America is one of two new biographies of Madison published in 2012, the coincidence of which might suggest a continuing wave of Madison-popularity. But Gutzman’s overall assessment of Madison is decidedly more negative than the studies noted above. Gutzman has high regard for Madison’s record on religious liberty (pp. 4-9, 40-48), calling the successful enactment of the Virginia Statute for Religious Freedom (1786) “Madison’s greatest accomplishment” (p. 48). He acknowledges the rhetorical and tactical skills Madison displayed during the contest over ratification of the U.S. Constitution (pp. 133-237). But Gutzman is skeptical about Madison’s constitutional theorizing, which he portrays as muddled, inconsistent, and opportunistic. Madison was not the “father of the Constitution” (as Madison himself recognized) but in Gutzman’s view merely an “unhappy witness at its C-section birth” (p. 136); and in some respects, Gutzman suggests, Madison misunderstood the document. Gutzman’s treatment of Madison’s presidency is scathing (pp. 307-333): Madison’s military and diplomatic failures are described in great detail while his principled refusal to suppress domestic opposition to the war goes unmentioned. Gutzman nowhere discusses Madison’s pathbreaking argument for freedom of speech and press in his Report of 1800. The book’s final chapter portrays a retired Madison who allegedly misunderstood or misrepresented the true character of the Virginia Resolutions he himself had authored in 1798 (pp. 274-276, 344-351). If much recent Madison scholarship has been sympathetic to its subject, James Madison and the Making of America sounds a pronounced counter note.
This is almost exclusively a political biography: Dolley Madison turns up only occasionally, and Madison’s extended family, personal finances, agricultural projects and so on are hardly mentioned. (This is a defensible choice, since those aspects of Madison’s life have been well treated elsewhere.) Madison’s relationship with his own household slaves does receive some attention (pp. 37, 359-361) because of its obvious relevance to his wider views on slavery (pp. 23-24, 227-228, 355-359).
In place of Madison’s family life, Gutzman provides abundant detail on his political family, so to speak: the Virginia political elite to which Madison belonged and whose shifting political moods he had always to take into account in order to accomplish his national objects. One of the strengths of James Madison and the Making of America is that one always knows what Patrick Henry, George Mason, Edmund Randolph, John Taylor, Edmund Pendleton, Thomas Jefferson, and other Virginia politicians are up to in any matter affecting Madison’s political agenda. The way in which Virginians’ hopes and fears about navigation rights to the Mississippi River intersected with their hopes and fears about the proposed Constitution is especially well treated (pp. 21-25, 56-61,198-199, 223-225).
Scholars of the Founding recognize that Madison did not get everything he wanted at the Federal Convention: he failed, for example, to get proportional representation in both House and Senate, a federal negative over state laws, and a multi-branch “council of revision” to judge the constitutionality of laws. Gutzman’s detailed narrative of motions, votes, and alliances at the Convention (pp. 49-131) shows Madison losing at least as many key constitutional battles as he won. Nevertheless some Madison scholars, including Lance Banning in The Sacred Fire of Liberty, have emphasized Madison’s capacity to learn and change in response to the arguments of others, and ultimately to revise his own constitutional vision in deference to the specific provisions adopted by the Convention.
Gutzman’s picture is a very different one. He portrays a Madison recklessly opposed at the Convention to smaller states’ fair and principled demand for equal representation regardless of population, and blind to the way in which his own supposedly principled arguments amounted to special pleading for the interests of his state (pp. 90-94, 105-112). In Gutzman’s account, the constitutional project survived the convention only because Madison and other high nationalists were reigned in by cooler heads who respected state sovereignty. The cumulative effect of Gutzman’s narrative is to cast doubt on Madison’s stature as a reliable expositor of a Constitution so remote in spirit from his own projections.
Gutzman quotes at length from Madison’s constitutional writings while at the same time signaling his own skepticism. For example, Gutzman notes Madison’s argument in the Federalist that a weak federal government may sometimes be more dangerous to liberty than a strong one, because under a weak constitution “powers requisite for the public safety” will be unavoidably usurped. Gutzman then comments: “Madison oddly concludes that… large grants of power are safer than small,” as though this proposition were self-evidently absurd (p. 154). Madison’s proposition may be right or wrong (his friend Jefferson had a very different view) but it cannot be easily dismissed.
Central to Madison’s thought was that the Constitution established a form of government that (as he put it in Federalist No. 39) was neither wholly “national” nor wholly “federal” but partly national, partly federal: the Constitution treated the American people in some respects “nationally” as a single, united political community, and in some respects “federally” as an affiliation of distinct political communities. For this reason, Madison argued, full sovereignty was located neither in the federal government nor in the government or people of any individual state, but in this diffuse, partly national, partly federal American people itself. Madison held to this position for the rest of his life, and reiterated it in 1830 in response to nullifiers who insisted on the full sovereignty of each state.
Gutzman summarizes Madison’s “famous argument” about the partly-national, partly-federal character of the Constitution, but makes clear he is not persuaded. Madison, for instance, had argued that the representation rule in the House of Representatives was a “national” feature because each state is allocated voting power in proportion to its share of the American people as a whole (adjusted, of course, by the three-fifths rule for counting slaves); while representation in the Senate was a “federal” feature because each state, regardless of population, was given equal voting power. Gutzman replies that representation even in the House is “a federal feature, not a national one” because each congressional district lies wholly within the boundaries of a state (p. 165). He scoffs at Madison’s “naively or disingenuously” arguing in Federalist 39 that a federal tribunal can impartially decide questions concerning the constitutional boundary between state and federal authority (p. 166).
A central tenet of the nullification doctrine that Madison publicly denounced in the last years of his life was that each state has the right to decide for itself when the federal government has overstepped its constitutional boundaries, and to proceed to act upon that judgment. James Madison and the Making of America is not a treatise of constitutional law, but embedded in the biography is a narrative favoring the nullifiers’ view of the Constitution at the expense of Madison (who Gutzman also claims played both sides of the fence in this matter).
Ratification of the Constitution was a close contest in Virginia, and some delegates to the state’s ratifying convention proposed to ratify the Constitution only provisionally, conditional upon its being amended in the manner directed by Virginia. Madison rejected conditional ratification because it meant in effect each state rewriting the Constitution as it wished, producing as many as thirteen different ratified constitutions. Madison insisted that the proposed Constitution be voted up or down without conditions; once ratified it could be amended as provided for in the document.
However, some delegates at the Virginia convention apparently argued that, even without conditional ratification, the state could make its own understanding of the Constitution binding upon both the federal government and other states. Gutzman reports George Nicholas arguing that according to the “law of contracts,” each individual party to a contract (in this case each of the thirteen states) is “exonerated” from the obligations of the contract if its provisions are later construed in ways that diverge from how that party “understands its meaning, signification, and intent.” (How this argument differed in substance from conditional ratification is left unclear.) Gutzman treats this argument, which clearly paves the way for nullification, as sound constitutional law (pp. 233-235). In any event, Madison himself never made this argument. For Madison the ultimate meaning of the Constitution was determined by how the American people in the aggregate understood its provisions, not how it was understood by the legislature or people of any one state.
The next episode in the nullification narrative comes in 1798, when in response to the Alien and Sedition Acts some members of the Virginia political elite, including Thomas Jefferson and John Taylor, argued that each individual state had the right to declare federal laws “not law, but utterly null, void and of no force or effect.” Madison worked hard, and successfully, to have this nullification language dropped from the final version of the Virginia Resolutions of 1798, and replaced by language asserting the right of states, in the plural, to “interpose for arresting the progress of the evil.” Gutzman argues that the wording change was of no great significance: Taylor and others were merely indulging Madison by removing nullification language without affecting the nullificationist purpose (pp. 274-275). I was unpersuaded that the Resolutions’ actual wording counted for so little.
The final act of the nullification drama came in 1830, when advocates of nullification had begun quoting both Jefferson’s Kentucky Resolutions and Madison’s Virginia Resolutions of 1798 in support of the doctrine. Madison admitted that Jefferson’s Kentucky Resolutions lent some support to nullification, but strongly denied that the Virginia Resolutions endorsed the nullifiers’ claim that a single state could declare a federal law unconstitutional and proceed unilaterally to act on that judgment. Nullifiers responded by claiming that Madison had reversed himself, and/or misrepresented the meaning of the Virginia Resolutions. Gutzman echoes this charge (pp. 350-351). There is an extensive literature on this question for readers interested in pursuing the matter further. I also refer readers to Law and Liberty’s debate on the meaning of the Kentucky and Virginia Resolutions, one that I participated in with Madison scholars Colleen Sheehan and Todd Estes.
Madison was not the “Father of the Constitution.” But his legacy is so intertwined with it that shifting interpretations of the Constitution typically entail shifting views of Madison and vice-versa. To Madison’s mid-twentieth century biographer Irving Brant, for example, Madison’s nationalist side was unproblematic; what required explanation was Madison’s occasional indulgence of state sovereignty. James Madison and the Making of America suggests that the political landscape has shifted: for Gutzman it is the national side of Madison’s “partly national, partly federal” vision that appears problematic, and state sovereignty that provides the constitutional bedrock. I do not share Gutzman’s view of either Madison or the Constitution. Nevertheless this biography can provoke us to rethink Madison’s enduring legacy, and to examine afresh the Constitution toward whose birth and continued life he made an essential contribution.
 For a thoughtful defense of Madison’s presidency, see David J. Siemers, Presidents and Political Thought (University of Missouri Press, 2009), 74-103. For a much more negative assessment of Madison’s presidency see Garry Wills, James Madison (Henry Holt, 2002).
 For an example of Madison’s influence on contemporary political science, see Robert A. Dahl, A Preface to Democratic Theory, expanded edition (University of Chicago Press, 2006). Madison’s understanding of public opinion is examined in Colleen Sheehan, James Madison and the Spirit of Republican Self-Government (Cambridge University Press, 2009) and Alan Gibson, “Veneration and Vigilance: James Madison and Public Opinion, 1785-1800,” The Review of Politics, Vol. 67, No. 1 (April 2005), 5-36. On Madison’s ultimate commitment to majority rule, see Greg Weiner, Madison’s Metronome: The Constitution, Majority Rule, and the Tempo of American Politics (University Press of Kansas, 2012).
 The other is Jeff Broadwater, James Madison: A Son of Virginia and a Founder of the Nation (University of North Carolina Press, 2012).
 See for instance Catherine Allgor, A Perfect Union: Dolley Madison and the Creation of the American Nation (Henry Holt, 2007).
 Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Cornell University Press, 1998), 200-201.
 On Madison’s argument that it was sometimes possible to make government both more powerful and more free, see James H. Read, Power versus Liberty: Madison, Hamilton, Wilson, and Jefferson (University of Virginia Press, 2000), 25-53.
 Madison to Edward Everett, August 28, 1830. The Writings of James Madison, ed. G. Hunt (New York: G.P. Putnam’s, 1910), Vol. 9: 402.
 A good introduction is the April 17, 2012 Liberty Forum exchange, “Sound the Alarm to the People: James Madison, Thomas Jefferson, and the Principles of 1798,” with commentary by Colleen Sheehan, Todd Estes, and James Read: http://libertylawsite.org/liberty-forum. For defense of Madison’s consistency, and of his claim that the Virginia Resolutions did not support nullification, see Drew R. McCoy, The Last of the Fathers: James Madison & the Republican Legacy (Cambridge University Press, 1991), 119-170; and Read, Majority Rule versus Consensus: The Political Thought of John C. Calhoun (University Press of Kansas, 2009), 39-52. For elaboration of the claim that Madison later obscured the nullificationist import of the Virginia Resolutions, see Gutzman, “A Troublesome Legacy: James Madison and the ‘Principles of ‘98’”, Journal of the Early Republic Vol. 15, No. 4 (Winter 1995), 569-589.