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James Madison and Common-Law Constitutionalism

Published online by Cambridge University Press:  05 May 2010

David Thomas Konig
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Extract

In 1789 James Madison and Thomas Jefferson engaged in one of their many exchanges on constitutionalism. As with other Jeffersonian flights of philosophy, the younger Madison had to rein in the excesses of his senior partner and collaborator. The issue at hand was Jefferson's famous opinion “that the earth belongs in usufruct to the living.” So confident was Jefferson in the truth of this idea that he called it “self-evident.” Their exchange has received insightful and comprehensive analysis, which needs no revisiting here. Adrienne Koch, whose treatment of this “intellectual reciprocity” is among our most careful, sees it as revealing the essence of the two men, pitting the “more speculative and more daring” Jefferson against “the more astute politician” Madison.

Type
Forum: Comment
Information
Law and History Review , Volume 28 , Issue 2 , May 2010 , pp. 507 - 514
Copyright
Copyright © the American Society for Legal History, Inc. 2010

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References

1. Jefferson to Madison, September 6, 1789, The Papers of Thomas Jefferson, ed. Julian P. Boyd, et al., 32 vols. to date (Princeton, N.J.: Princeton University Press, 1950–), 15:392 (hereafter, PTJ).

2. Ibid.

3. Madison's draft and final reply are in The Papers of James Madison, ed. William T. Hutchinson et al., 17 vols. (Chicago: University of Chicago Press, 1962–91), 12:8–26 (hereafter PJM).

4. Most notably, Koch, Adrienne, Jefferson and Madison: The Great Collaboration (New York: Alfred A. Knopf, 1950), 62–96Google Scholar; and Banning, Lance, Jefferson and Madison: Three Conversations from the Founding (Madison, Wis.: Madison House, 1995), 27–56Google Scholar. The editors of PTJ also provide an insightful assessment of Jefferson's remarks in their “Editorial Note” to his letter, at PTJ, 15:384–91.

5. Koch, Collaboration, 63.

6. PTJ, 15:392.

7. PJM, 13:18.

8. Bilder, Mary Sarah, “James Madison, Law Student and Demi-Lawyer,” Law and History Review 28 (2010): xxxCrossRefGoogle Scholar.

9. Madison, “Address to the States,” 1783 (“cause of liberty”), cited by Koch, Collaboration, 3.

10. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” (U.S. Constitution, art. 3, sec. 1).

11. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the Land” (U.S. Constitution, art 6).

12. LaCroix, Alison, “The Authority for Federalism: Madison's Negative and the Origins of Federal Ideology,” Law and History Review 28 (2010)CrossRefGoogle Scholar.

13. Madison, Federalist 39, in The Federalist, ed. J. R. Pole (Indianapolis, Ind.: Hackett, 2005), 209.

14. Madison, Federalist 37, 196.

15. Madison had used the term “mortal diseases” in proposing the idea of the congressional veto to Jefferson before the Philadelphia convention (James Madison to Thomas Jefferson, March 19, 1787, PTJ, 11:219). Jefferson rejected the idea in his reply: “Prima facie I do not like it. It fails in an essential character, that the hole and the patch should be commensurate. But this proposes to mend a small hole by covering the whole garment” (Jefferson to Madison, June 20, 1787, PTJ, 11:480).

16. Farrand, Max, ed., The Records of the Federal Convention of 1787, 4 vols. (New Haven, Conn.: Yale University Press, 1937), 1:21Google Scholar.

17. LaCroix, “Authority for Federalism,” 505.

18. Stoner, James R., Common-Law Liberty: Rethinking American Constitutionalism (Lawrence: University Press of Kansas, 2003), 19–20Google Scholar.

19. Farrand, Records, 1:243.

20. Stoner, Common-Law Liberty, 19.

21. Also pertinent are Conrad, Stephen A., “The Constitutionalism of ‘the Common-law Mind,’” Law and Social Inquiry 13 (1988): 619–36CrossRefGoogle Scholar; and his “James Wilson's ‘Assimilation of the Common-Law Mind,’” Northwestern University Law Review 84 (1989): 186–219, with further bibliographic acknowledgements at 187–88. In the former essay Conrad develops his ideas in a review of two landmark works that address the ideological and institutional backgrounds of U.S. federalism and constitutionalism: Greene, Jack P., Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607–1788 (Athens: University of Georgia Press, 1986)Google Scholar; Reid, John Phillip, Constitutional History of the American Revolution: Vol. 1, The Authority of Rights (Madison: University of Wisconsin Press, 1986)Google Scholar. Of particular relevance in foregrounding the questions that LaCroix raises is Reid's “Another Origin of Judicial Review: The Constitutional Crisis of 1776 and the Need for a Dernier Judge,” New York University Law Review 64 (1989): 963–89.

22. Stoner expands on this in “The Idiom of Common Law in the Formation of Judicial Power,” in The Supreme Court and American Constitutionalism, ed. Bradford P. Wilson and Ken Masugi (Lanham, Md: Rowman and Littlefield, 1998), 47–68.

23. Hamilton, Federalist 78, 417.

24. U.S. Constitution, art. 3, sec. 2.

25. Hamilton, Federalist 78, 416.

26. Coke, 1 Inst. 97b (“No man is born a master in his craft.”) On Coke as representative of the “common-law mind,” see Pocock, J. G. A., The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1987), 35–38CrossRefGoogle Scholar.

27. Cited by Nordquist, David, “Madison and Philosophy: His Coursework and His Statesmanship,” in James Madison: Philosopher, Founder, and Statesman, ed. Vile, John R., Pederson, William D., and Williams, Frank J. (Athens: Ohio University Press, 2008), 6Google Scholar.

28. Madison, Federalist 37, cited by Bilder, “Demi-Lawyer,” 443.

29. Hamilton, Federalist 78, 416.

30. The term is Meyers's, Marvin, in The Mind of the Founder. Sources of the Political Thought of James Madison, ed. Meyers, Marvin (Indianapolis, Ind.: Bobbs-Merrill, 1973), xviiiGoogle Scholar.

31. James Madison to Edward Livingston, July 10, 1822, cited by Meyers, Mind of the Founder, 429.

32. Hamilton, Federalist 78, 418.

33. Madison, Federalist 49, 274.

34. Bilder, “Demi-Lawyer,” 415.

35. Ibid., 416.

36. Meyers, Mind of the Founder, xix.

37. Bilder, “Demi-Lawyer,” 442.

38. Ibid., 425.

39. See, for example, Konig, David Thomas, “Legal Fictions and the Rule(s) of Law: The Jeffersonian Critique of Common-Law Adjudication,” in The Many Legalities of Early America, ed. Tomlins, Christopher L. and Mann, Bruce H. (Chapel Hill: University of North Carolina Press, 2001), 97–117Google Scholar.

40. At page 20 of the manuscript, accessible at http://memory.loc.gov/cgi-bin/ampage?collId=mtj7&fileName=mtj7page059.db&recNum=305&itemLink=%2Fammem%2Fmtjhtml%2Fmtjser7.html&linkText=6.

41. See his comments on “Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments,” in Elizabeth Street, “Madison's ‘Detached Memoranda,’” William and Mary Quarterly, 3rd ser., 3 (1946): 551–62.

42. Bilder, “Demi-Lawyer,” 390.

43. Ibid., 438.

44. Madison, “Detached Memoranda,” 552–53.