Madison and Jefferson (37 page)

One of Madison’s first pieces of business in the House of Representatives was the Bill of Rights. As one might expect, he found himself in a difficult position. Between the convention and ratification, he had added up the reasons why constitutional amendments were unnecessary. He had dismissed the idea in
The Federalist.
Now, in a strange turn of events, it was
Madison who took charge of the issue in the First Congress, pushing and prodding the unenthusiastic national legislature to add amendments. Without his doggedness, in fact, the Bill of Rights that modern Americans venerate would never have become a part of the constitutional system.
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Madison had neatly summarized his objections in October 1788, after Jefferson directly told him that the omission of a bill of rights was unacceptable. At the time Madison felt that individual liberties were secure under the Constitution, because all rights not enumerated in the document were reserved to the states. He had calculated, too, that the New Englanders would oppose any guarantee of religious liberty. And he judged that the federal system, with its built-in tension between the states and national government, would be able to provide more protection than any of what he called “parchment barriers” might achieve. Finally, and more cynically, he explained that declarations of rights were routinely violated at the state level, and that the real danger came from a majority oppressing a minority—not the central government infringing on those below. For Madison, a bill of rights had no real power in a republic.

Despite this seemingly uncompromising outlook, he was willing to concede that some social benefits were to be had from such a charter. The most promising was that it could be used as a tool to educate the public and shape the opinion and manners of the American people generally. “Political truths declared in a solemn manner” could be woven into the “national sentiment,” he told Jefferson. Although he believed it highly unlikely that the federal government would abuse individual liberties, he conceded that a bill of rights might prove useful in mobilizing the public to resist such encroachments. Otherwise, “parchment barriers” had limited force, and national emergencies might demand the temporary suspension of rights, such as habeas corpus (protection from unlawful detention), if another Shays’s Rebellion were to occur.
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Months went by before Jefferson answered Madison. He did not, as some have suggested, convince Madison to support a bill of rights. But he did provide Madison with ammunition to use before the new Congress. A bill of rights in the hands of a judiciary composed of such independent men as “Wythe, [Williamsburg jurist John] Blair, and Pendleton” (Jefferson’s examples) could be an effective check. Lacking Madison’s automatic trust in the Constitution, Jefferson regarded a bill of rights as a “supplement” to contend with any unforeseen deficiencies in the text. “Half a loaf is better than no bread,” he wrote, certain that a perfect bill of rights was not to be drafted all at once.

Jefferson believed that a bill of rights would reinforce the tension that naturally existed between the federal government and the states. Amendments would enable each to defend its guaranteed powers against incursions from the other. Although bills of rights were not “absolutely efficacious under all circumstances,” he argued that they acted as a kind of architectural “brace” supporting the government. On the subject of rights, Jefferson was at his best, and Madison found his friend’s line of reasoning astute. As a result of their correspondence, he inserted Jefferson’s concern with judicial review into a speech before Congress.
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Though less theoretically committed to a bill of rights than Jefferson, Madison made a campaign pledge in January 1789 to support it, circulating letters to this effect. A man of conviction, he was also a determined politician. He knew that there were still those in Virginia pressing for a second convention. By supporting uncontroversial amendments aimed at protecting individual liberties, he was able to put a stop to the disruptive tactics of Henry’s allies who preferred to see him retired from politics.
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Madison’s maneuver went far beyond electioneering, though. He recognized that the legitimacy of the Constitution rested on the central government’s responsiveness to the ratifying conventions. The Constitution was approved in Virginia because of the implicit quid pro quo that amendments would be introduced soon after. If he had tried to sidestep the issue, Madison would have alienated a large and influential contingent of principled moderates. To ignore their verbal contract would have made most antifederalists permanent enemies of the federal government.
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Madison saw to it that Washington’s inaugural address included a statement sympathetic to amendments. Through the mouthpiece of the first president, he urged Congress to show “a reverence for the characteristic rights of freemen.” Prudently, he announced his plan for amendments very early in the First Congress. Timing was critical, because on the very next day a fellow Virginian, Congressman Theodorick Bland, proposed calling a second constitutional convention.
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In composing his list of amendments, Madison carefully weighed more than two hundred amendments proposed at the various ratifying conventions. But he did more than synthesize when he presented eight amendments to Congress on June 8, 1789. Two were of his own invention: equal rights of conscience along with freedom of the press and trial by jury, and protection of property from state seizure. The rest of the amendments Madison proposed were drawn from the states’ ratifying conventions. These included prohibitions against excessive bail, double jeopardy, and
unreasonable searches and seizures; guarantees of due process of law, a speedy trial, right of assembly and petition, and the right to bear arms (a well-regulated militia). Finally, limits were placed on the size of congressional districts. Any powers not delegated by the Constitution were to be reserved to the states.
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Madison wanted these amendments woven into the body of the Constitution in the various places where each appeared to fit, rather than adding them as a codicil at the end of the document. The “most valuable amendment on the whole list,” he contended, was one he drafted himself to protect
from state exploitation
the equal rights of conscience, freedom of press, and trial by jury. This was Madison’s last attempt to safeguard the rights of the minority against a dangerous popular majority within individual states.
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As it turned out, there was little support in Congress for Madison’s proposals. Federalists chastised him publicly as well as privately, claiming, as one Pennsylvanian wrote, that he was “so far frightened with the antifederalism of his own state” that he had thrown a “tub to the whale.” More than one congressman approved this popular allusion to Jonathan Swift’s satirical tale, in which sailors distracted a whale with a barrel, keeping the beast from destroying the ship. Madison, they said, had offered amendments in order to silence opposition, dispensing imaginary pills to cure antifederalists of their fear of the Constitution. Others dismissed his “water gruel” amendments as useless and unnecessary. Virginia antifederalists had little faith in Madison, believing he had turned a blind eye to other, more substantive amendments designed to curb federal power.
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It would be an uphill battle. His eight proposed amendments first went to a select committee of the House. During the second week of August, they were fiercely debated on the House floor, revised, and redrafted as seventeen amendments. Madison’s old nemesis Roger Sherman, now a Connecticut congressman, insisted that the amendments, when passed, be added at the end of the Constitution. The majority agreed, and Madison deferred to his colleagues. The Senate made twenty-six changes to the House version and reduced the number of amendments from seventeen to twelve, ten of which were finally ratified by the states.
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The first ten amendments to the Constitution did not come about simply. Instead, they define the legislative process colloquially referred to in more recent times as “making sausage.” Madison never looked kindly on butchering and was not at all pleased by the Senate’s alterations. He winced at the loss of what he considered his “most salutary articles,” in particular
the one that dictated against state interference. But he was glad when the whole ordeal ended, writing to the two Edmunds, Randolph and Pendleton, that the work had been “exceedingly wearisome”; he had had to endure “dilatory artifices” and a “diversity of opinions & fancies.”
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Madison backed the Bill of Rights to fulfill promises he had made—not only to his constituents but also to his closest friends and political allies. Like George Mason, Thomas Jefferson was a hard man to please. When he saw Madison’s list of amendments, he gave it only a tepid endorsement. “I like it as far as it goes,” he wrote, “but I should have been for going further.”
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The U.S. minister to France was only one of many Virginians Madison had to consider. New Englander Fisher Ames only slightly overstated the situation when he wrote that Madison was afraid of losing his popularity among Virginia state politicians. Madison depended greatly on the Virginia circle. He listened to their complaints and remembered his promises to them. When he stood before Congress, he never forgot that he was a Virginian first.

As autumn arrived and the first session of the First Congress ended, Jefferson packed his trunks and prepared to sail for America, accompanied by his two daughters and the two Hemingses. Patsy and Polly had been taking regular guitar lessons; James had been trained in French cooking. Little is known about Sally’s life in France other than the plausible assertion by one of her sons, eight decades hence, that she first became pregnant by Jefferson there. We do know that her master did a good bit of shopping before leaving Paris: books and political pamphlets, mathematical instruments, linen, a “macaroni machine” (courtesy of his secretary, William Short, who had recently traveled as far as Naples), and an assortment of clothing for Sally. We know nothing more about the pairing of a forty-six-year-old man and his sixteen-year-old servant.
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Madison remained in Philadelphia, thinking Jefferson would be sailing there and they would make the trip back to Virginia together. While waiting, he spent considerable time with Dr. William Thornton, a fellow boarder at the House-Trist residence. He had known Thornton for two years, and was impressed with his wide-ranging knowledge and intense passion for reform. The Edinburgh-trained physician was a man of many
parts: a painter, a poet, a naturalist, and an early promoter of steamboat technology. He would author a treatise on language and design the U.S. Capitol.

Born in the British West Indies, Thornton came from a family that owned a large plantation. He arrived in America in 1786, with a grand scheme to liberate his slaves and lead an expedition of free blacks to Sierra Leone. Raised a Quaker and influenced by British abolitionists, he was not long in America before embarking on a tour of New York and New England, making speeches and looking for recruits and backers for his plan. The year he became acquainted with Madison, he was elected to the American Philosophical Society.

They may have conversed about slavery at the time of the Constitutional Convention, but it was in 1789 that Thornton persuaded Madison to write a memorandum on the viability of colonization. Thornton forwarded it to the president of the recently established French abolition society, Les Amis des Noirs, a group influenced by the Quakers and a group Jefferson had refused to join, despite an invitation from Lafayette.
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Madison wrote the unsigned and unpublished memorandum while Jefferson was at sea. In it he calculated that there were “not less than 600,000 unhappy negroes” in the South. But he was wary of any emancipation plan undertaken too soon or before appropriate measures were applied; he cited the “ill effects suffered from freedmen who retain the vices and habits of slaves.” Neither the general happiness of society nor the happiness of individual slaves was served, Madison wrote, by “humane masters” who unconditionally freed their slaves. He held that differences caused by color were “permanent and insuperable” (just as Jefferson did) and that an integrated society would be virtually impossible in the South.

To the extent that free blacks found themselves trapped in the status of permanent aliens, Madison considered colonization along the west coast of Africa or “some other foreign situation” to be the only practical solution. He presumed that removal to America’s “interior wilderness,” the area beyond white settlement, would expose former slaves to Indian raids. He figured that Indians would resent the blacks’ presence and develop their own “peculiar antipathy” toward them.
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Madison is rarely examined under the sharp lens that history has focused on Jefferson. In spite of his ruminations in
Federalist
54, where the “mixed character” designation made enslavement appear to be a temporary condition, he held on to many of the prejudices that limited Jefferson’s imagination and that persisted across the South. Whether he did so consciously
or unconsciously, the pressure against real social change must have been powerful. All we have to do is to think of James Madison, Sr., the foremost planter in the county. James, Jr., grew up accepting his father’s traditional role in county politics and his supervisory control over extensive lands. The eldest son knew what it would mean if he were to exercise his intellectual freedom in such a way that it threatened his own family, for the sake of bringing justice to African Americans. He had just been through the Virginia Ratifying Convention, listening to the likes of Henry and Mason raising fears of northerners taxing slavery out of existence. Bowing to prejudice afforded psychological protection.