Indians in Madison's Constitutional
Jacob T. Levy
Next to the case of the black race within our bosom, that of the red on our borders is the problem most baffling to the policy of our country. 1
“What”—they [the Indians] may say—“have we to do with the Federal Constitution, or the relations formed by it between the Union and its members? We were no parties to the compact and cannot be affected by it.” And as to a charter of the King of England—is it not as much a mockery to them, as the bull of a Pope dividing a world of discovery between the Spaniards and Portuguese, was held to be by the nations who disowned and disdained his authority? 2
One portion of Madison's views (and of his life) receives too little attention: his views about and his activity regarding American Indians, specifically the conflict between states and the federal government over Indians. 3 Madison had, I suggest, a consistent view over the course of decades as to Indians and the constitutional order.
Besides biographical interest, there are two purposes in laying out those views and the circumstances in which he held them. First, I contend that contemporary law and practice violate Madison's understanding, and that we are today moving in an anti-Madisonian direction with regard to Indian policy.
Second, I believe that Federalist No. 10, though important, does not exhaust Madison's views on the management of diversity. Madison himself did not, and we should not, treat Federalist No. 10 as a kind of hammer that makes every instance of diversity look like a nail. There is room within the Madisonian system to recognize a kind of plurality that should not be assimilated to the analysis of faction.