Academic journal article Political Research Quarterly

Should We Venerate That Which We Cannot Love? James Madison on Constitutional Imperfection

Academic journal article Political Research Quarterly

Should We Venerate That Which We Cannot Love? James Madison on Constitutional Imperfection

Article excerpt


Scholars have long pointed to James Madison's argument for constitutional veneration in Federalist No. 49 to illustrate what they see as Madison's fear of democratic politics and frequent constitutional reform. This article challenges that consensus, first, by showing that Madison said the opposite several years earlier and, second, by revisiting the historical and textual context of Federalist No. 49. It argues that even as Madison praises veneration he offers serious reasons to be wary of it.


constitutional identity, constitutional change, veneration, Madison, Federalist 49, ratification

Studies of American constitutionalism often rely on one of two well-known dichotomies. The first is the famous contest between Thomas Jefferson and Alexander Hamilton, between a strict construction of the Constitution with an emphasis on consent and a broad construction of the Constitution with an emphasis on sovereignty. The second is perhaps less well worn, but equally important. This dichotomy pits Jefferson against James Madison. Under Jeffersonian constitutionalism, institutions should represent and embody the will of the people, and constitutional change should be frequent because each generation has the right to give its consent to its fundamental laws. Under Madisonian constitutionalism, institutions should mediate the will of the people, and constitutional change should be relatively infrequent because people need a constitution they can "venerate" and tinkering with it every generation would undermine this requirement of government. This article aims to reorient our understanding of Madisonian constitutionalism by qualifying Madison's argument for constitutional veneration.

Madison's Federalist No. 49 is the most well known and most important of his recommendations of constitutional veneration.1 In that essay, Madison criticized a provision of Thomas Jefferson's 1783 proposed constitution for Virginia, which would have provided for a new constitutional convention whenever two-thirds of any two of the three departments called for it. Madison noted that Jefferson's proposal had "great force" because it seemed "strictly consonant" with "republican theory" in that it would refer constitutional disputes back to the people, who "are the only legitimate fountain of power." But Madison also listed "insuperable objections against the proposed recurrence to the people." In particular, Madison argued that appeals to the people would undermine "veneration" toward the law and would at the same time raise regime-level questions that would appeal to the passions rather than to the reason of the public (Hamilton, Jay, and Madison 2000 [hereafter FP], 322-25).

Because Madison so clearly says that prejudice is a necessary substitute for reason, there has been little interpretative uncertainty about No. 49. Scholars have typically found in this essay support for the larger argument that Madison was a "conservative" (Adair 1974; Meyers 1974; Wills 1981, 28; McCoy 1991, 48-49; Burstein and Isenberg 2010, 178). To be sure, scholars are still divided concerning Madison's commitment to democracy and concerning the consistency of his political thought over time.2 But even those scholars who emphasize a more democratic Madison acknowledge the difficulty the essay makes for their case (Gibson 2005, 13; Sheehan 2005). More generally, Federalist No. 49 is the clearest indication for scholars that Madison did not share Jefferson's belief in constitutional change by appeal to the people. Jack Rakove (1999b), for example, appeals to Federalist No. 49 as a counterweight to Bruce Ackerman's (1984, 1991) reading of No. 40, which Ackerman reads as supporting Ackerman's theory of recurring constitutional moments. In a forthcoming article, Dustin Gish and Daniel Klinghard argue that Madison wrote No. 49 to counter what they see as Jefferson's attempt to use his Notes on the State of Virginia to influence the writing and ratification of the Constitution. …

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