Father James and the Levy Thesis

An important question is why would James Madison, “the Father of the Constitution” become, in the words of Leonard Levy, “the Father of the Bill of Rights?” Recall that Madison was the author of the Vices of the American system as well as the Virginia Plan and Federalist 10.  None of these Pro-Constitutional documents call for a bill of rights.

The most obvious answer to why Madison would be the father of both the Constitution and the Bill of Rights is “politics.” Over the last 75 years, the word “politics” in historiography has been associated with “self interest,” and possibly “unprincipled,” and contradictory conduct. And when it comes to Madison’s conduct, historians have a gold mine of possible contradictory conducts to explore, the most famous of which is why the author of The Federalist of 1787 is also the author of the Virginia Resolutions of 1798? But we have the same question here at the very founding itself: hasn’t Madison contradicted himself in becoming the father of the Bill of Rights when just a year earlier he declared that a bill of rights was unnecessary and improper? This idea of a contradictory Madison is reinforced by contemporary constitutional scholarship that emphasizes that the Amended Constitution is different from and supersedes the original Constitution. It doesn’t help that Madison referred in letters to his friends that the project to secure the Bill of Rights was “nauseous” and “wearisome.”

The low-ground answer to the question of why Madison took the lead on promoting a bill of rights in the House essentially rejects statesmanship as an explanation for Madison’s leadership. Madison’s position, according to this view, is based in the lower motives of narrow self-interest, especially political survival. Once again, Levy is a good representative of this interpretation. Denied the opportunity to become Senator Madison, House candidate Madison promised to take the lead on a bill of rights in order to defeat his opponent Monroe — a Limitation Antifederalist in a district drawn in his favor — in a closely held House election. The strategy was successful: he defeated Monroe by a vote of 1308-972. Madison was simply delivering on his electoral promise as a practical politician.

And some of Madison’s allies in the First Congress seem to confirm Levy’s thesis. Senator Robert Morris writes the following to Francis Hopkinson on August 15, 1789: “The House of Representatives … are now playing with Amendments, but if they make one truly so I’ll hang. Poor Madison got so cursedly frightened in Virginia, that I believe he has dreamed of amendments ever since. This however is, ad Captandum [to play the crowd].”

Representative Abraham Baldwin wrote to Joel Barlow on June 14, 1789: “A few days since, Madison brought before us propositions of amendment agreeably to his promise to his constituents. Such as he supposed would tranquillize the minds of honest opposers without injuring the system.… We are too busy at present in cutting away at the whole cloth, to stop to do any body’s patching. There is no such thing as antifederalism heard of. Rhode Island and North Carolina had local reasons for their conduct, and will come right before long.”

We have emphasized earlier that 1) the actual ratification of the Constitution, 2) Madison’s quest for a unanimous ratification, 3) and the exchange between Madison and Jefferson about a bill of rights, both before and after the ratification of the Constitution, were critically important to Madison’s statesmanship in the First Congress.

And part of that statesmanship was to 4) moderate the strong Federalists to see the importance of taking the lead on behalf of a bill of rights. Edmund Randolph writes to Madison as early as June 30, 1789 that his strategy seems to be working: “The amendments, proposed by you, are much approved by the strong foederalists here and at the Metropolis [Richmond]; being considered as an anodyne to the discontented.”

His strategy was also to separate the more dogmatic Antifederalist leaders like Mason, Gerry, Henry, and the two Senators from Virginia from the rank and file Limitation Antifederalists. In the process 5) he provided the context for North Carolina and Rhode Island to join the union. Fellow Constitutional Convention delegate William R. Davie wrote to James Madison on June 10, 1789 that this strategy also seemed to be working:

You are well acquainted with the political situation of this State [North Carolina], its unhappy attachment to paper money, and that wild skepticism which has prevailed in it since the publication of the Constitution. It has been the uniform cant of the enemies of the Government, that Congress… would never propose an amendment themselves, or consent to an alteration that would in any manner diminish their powers. The people whose fears had been already alarmed, have received this opinion as fact, and become confirmed in their opposition; your notification however of the 4th. of May has dispersed almost universal pleasure, we hold it up as a refutation of the gloomy prophecies of the leaders of the opposition, and the honest part of our antifederalists have publicly expressed great satisfaction on this event.

That is the high ground defense of Madison’s persistent prudence. This prudence comes through in his June 8, 1789 speech where he distinguishes between rejecting hostile amendments and supporting a friendly bill of rights incorporated within the body of the Constitution itself. And the persistence is shown by his determination to practically “will” a bill or rights into completion by the end of the First Session. And Madison’s actions show that he interpreted “the republican principle” at its deepest level to be what he called in The Federalist “the deliberate sense of the community.” The “American Mind” was Jefferson’s expression for Madison’s “Sense of America.”

Contents

Introduction

Introductions, the documentary history of each amendment, and major themes about the adoption of the Bill of Rights.

From Political Liberty to Social Freedom

Using artwork, see how the idea of rights has changed throughout American history.

View Feature

Documentary Origins and Politics of the Bill of Rights

Interactive chart showing the origins of each of the rights in the Bill of Rights.

View Interactive

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