In his “Notes on the Debates in the Federal Convention,” James Madison, the Father of the Constitution,” recorded that when Col. George Mason of Virginia proposed adding a state-led amendments convention to the Constitution, “The motion… was agreed to nem: con,” Latin for “unanimously.”
Yet, according to a 2022 webinar from Common Cause, a left-wing organization opposed to Convention of States, “When... Members of the first Congress proposed holding an Article V convention to draft the Bill of Rights, James Madison led the opposition, expressing concern that a new convention might upset the Constitution’s carefully balanced compromises [emphasis added].”
So, which is it? Did Madison support the Article V process (as his “ay” vote at the 1787 Convention would suggest), or did he oppose it?
Historian and author Gordon Wood has identified and debunked what he calls the “James Madison Problem” (a name derived from the so-called “Adam Smith Problem,” referring to the seeming incompatibility between the renowned economist’s “Theory of Moral Sentiments” and “Wealth of Nations”) — the popular argument that the country’s fourth president’s evolving and (allegedly) inconsistent political views render him impossible to decipher.
As Greg Weiner, Ph.D., Professor of Political Science at Assumption University, put it, the “long-running debate… centers largely around the status of public opinion in Madison’s thought: whether, in other words, it was to be regarded as an object of concern or a salutary force, whether Madison changed his mind on that question between helping to frame the constitutional order and serving within it and, finally, whether, if he did so, his motives were opportunistic.” He added that the “standing of public opinion remains challenging terrain for interpreters of Madison.” Does the same apply to his stance on George Mason’s proposal, too?
The answer to whether the Virginian statesman supported or opposed calling an Article V convention is — both. But his views on the topic were far more complex than Common Cause gives him credit for. Indeed, a thorough examination will reveal that this crucial Founding Father, although he, on a certain occasion, objected to the use of the Article V convention procedure, was overwhelmingly in favor of it. Madison’s qualified opposition, as we will see, seems to have been rooted in the context of the precise moment in which his contemporaries sought to convene a convention, not in the efficacy of the process itself.
Unfortunately, Common Cause’s misleading claim about Madison converges well with another inaccurate but prevalent belief about this enigmatic man — the assertion that he embraced nullification, the controversial theory that states can annul federal law, as a remedy to federal overreach. Groups that oppose the calling of an amendatory convention often tout nullification as the Founders’ prescribed means for curbing the growth of the national government. Madison, in particular, has often been cited as an ostensible defender of this convoluted doctrine, popularized by the vicious racist John C. Calhoun, who argued that slavery was a “positive good,” not, as many of the Founders believed, a “necessary evil.” However, to characterize Madison as radically pro-nullification is as misleading as labeling him anti-Article V.
We will examine each of these misconceptions in turn.
1. Madison’s position on Article V
Madison’s perceived opposition to the “Convention for the purpose of amendments,” as he called it, extends as far back as the 1787 Convention, where he seems to have been the only delegate to question Mason’s proposal (although it nevertheless was adopted with no one, not even Madison, dissenting).
He records in his notes that, prior to adding the convention clause, Mason “thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.” In response to this well-reasoned concern, “Mr. Govr. MORRIS & Mr. GERRY moved to amend [Article V] so as to require a Convention on application of 2/3 of the Sts.” At this point, Madison spoke up.
“Mr. MADISON,” the debate notes indicate, “did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on the like application.” In other words, he seems to have had more faith than Mason that an “oppressive” national government might remain responsive to the needs of the people and states. Notably, however, the comment seems to have been more of an observation than a complaint, for the notes continue: “He saw no objection however against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum &c. which in Constitutional regulations ought to be as much as possible avoided [emphasis added].” Clearly, he did not oppose the idea in theory (and evidently so, for he ultimately voted for it); he only questioned whether it was strictly necessary (and even this opinion seems to have eventually altered). Therefore, his stance should be interpreted no differently than how historians have traditionally interpreted the fact that he also (initially) opposed a bill of rights — he did not object to the intent behind one; he merely did not believe it was needed. Nevertheless, as his perspective evolved, he eventually went on to become the “Father of the Bill of Rights.” Likewise, there is no reason he cannot be just as positively associated with Article V — if, of course, he gave any subsequent indicator that he endorsed the process. Fortunately, he did.
Here, we must recall why Madison, among others, opposed a bill of rights. While anti-Federalists, including Mason, flatly refused to affix their signatures to the new governing document if it did not contain one, Madison contended that a bill of rights was not needed as “the government can only exert the powers specified by the Constitution.” Many on Madison’s side of the debate cautioned that an enumerated list of freedoms, which inevitably could not be exhaustive, might eventually be misconstrued to deny or disvalue any rights of the people that were not specified. As Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, described, the Federalists “argued that a bill of rights would be dangerous. Enumerating any rights… might imply that all those not listed were surrendered. And, because it was impossible to enumerate all the rights of the people, a bill of rights might actually be construed to justify the government’s power to limit any liberties of the people that were not enumerated.” In Madison’s words, “It has been objected… against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure.” It was with this firm persuasion that Madison disapproved of the earliest attempt to convene an amendatory convention.
Returning to Common Cause’s misguided claim about Madison, we read that he “led the opposition” against “an Article V convention to draft the Bill of Rights [emphasis added].” Therefore, as Madison already opposed a bill of rights (for the reasons laid out above), it becomes apparent that his dissent, in this case, centered on what the convention aimed to do, not the convention itself. Similarly, for example, Convention of States activists vehemently oppose California Gov. Gavin Newsom’s calls for an Article V convention proposing gun control amendments. This does not, of course, infer that they do not support the convention process but rather that they object to Newsom’s particular application. Likewise with Mason. The statement from Common Cause, featured in a webinar “discrediting” present-day attempts, spearheaded by Convention of States, to convene the first-ever convention, is wildly misleading.
Others have also pointed out that Madison began voicing his qualms about this particular convention proposal before the first Congress had been convened and before the Constitution was even fully ratified. In this regard, his misgivings seemed to have been twofold: (1) How, he wondered, could delegates appropriately amend the functions of Congress — or any branch of the new government, for that matter — having had practically no time to see such functions, as then constituted, in action? And (2), he feared that a convention might jeopardize the proposed Constitution’s chances of passing in undecided states.
In a letter to Edmund Randolph, he confessed his concerns that a convention, at that point, “would end in something much more remote from your ideas and those of others who wish a salutary Government, than the plan now before the public [emphasis added].” At the time, the Constitution was nearing the threshold at which point the document would take effect and an Article V convention could be convened, despite multiple states having not yet ratified the document. It was about these states that Madison was primarily concerned. In a similar letter to Thomas Jefferson, dated 12 days later, he acquiesced that if a convention occurred, “It is not to be expected that the States which have ratified will reconsider their determinations.” In other words, he only worried that amending the Constitution might dissuade the last remaining holdout states from signing on.
All these factors eventually expired — all 13 states ratified the Constitution by 1790, and James Madison himself went on to pen and champion the Bill of Rights (including the Ninth Amendment as a safeguard against his initial misgivings; “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” the amendment states). With these obstacles removed, “The Father of the Constitution” could now freely express his more positive opinions about Article V.
At this point, the topic of Madison’s thoughts regarding amendatory conventions crosses over into another thorny topic — his thoughts regarding nullification.
2. Madison’s position on nullification
As The Heritage Foundation scholar Christian G. Fritz, Ph.D., notes, “Proponents of this doctrine invoke the authority of James Madison to defend the claim that the Constitution empowers states to nullify laws passed by Congress.” However, his essay explains, “Madison emphatically rejected the attempt by a single state to nullify national laws…. he rejected any constitutional basis for nullification.”
Modern proponents of this doctrine are dogged by several problems. For one, the theory is permanently seared in the nation’s memory as being associated with slavery and the Civil War, making advocating for it an uncomfortable proposition. More practically, nullification (if even valid) does little more than kick the can down the road, effectively sentencing future generations to deal with the problem the nullifiers themselves could not. It might be useful for temporary respite, but it is far from the cure its supporters make it out to be.
Neither of these concerns is inherently offset by whether or not James Madison endorsed nullification. Nevertheless, there is a gaping divide between caricatures of the Father of the Constitution as someone who frequently lauded the states’ ability to abrogate the supreme law of the land and Heritage’s claim that he “rejected any constitutional basis for nullification.”
Madison himself once warned, in an oft-debated letter to Edward Everett (the same orator who infamously spoke for two hours before Abraham Lincoln’s Gettysburg Address), that nullification would “speedily put an end to the Union itself.” Critics have countered that he was referring specifically and exclusively to John C. Calhoun’s “made-up… version of nullification” and that, therefore, his words do not necessarily reflect his thoughts on the topic more broadly. Be that as it may, it does not follow, as a matter of course, that he endorsed nullification, either. As Heritage contends, it seems that what modern readers have so often interpreted as nullification in Madison’s writings is something altogether different — the right of interposition.
“Often confused and wrongly associated with nullification, Madison’s concept of interposition encouraged a spirited vigilance consistent with a proper understanding of American constitutionalism,” reasoned Dr. Fritz, legal historian and law professor.
“Interposition sought reversal of national laws that some thought unconstitutional or simply wrongheaded. It involved many potential instruments and actions to maintain the Constitution’s health. It could involve individual citizens or groups of citizens. It might also involve the state legislatures, not acting as the sovereign but as an instrument of the people to communicate concerns about the national constitution.
Alexander Hamilton identified that role in Federalist No. 26. He described the state legislatures as naturally ‘jealous guardians of the rights of the citizens’ of the state. In the new federal system, the state legislatures, observed Hamilton, could ‘sound the alarm to the people' when the national government exceeded its rightful powers.
Public opinion, petitions, and protests as well as instructions to political representatives were some of the ways interposition could facilitate faithful execution of the Constitution. Interposition could also involve resolving a constitutional controversy by seeking revision of the Constitution itself. James Madison described each of these options as ‘the several constitutional modes of interposition by the States against abuses of powers.’”
Fritz’s thesis aligns well with what Mason said about the two competing doctrines in his 1834 “Notes on Nullification.” Delineating how the states should respond to laws “regarded as not only dangerous in their tendency, but unconstitutional in their text,” he offered the example of how Virginia responded to the egregious Alien and Sedition Acts of 1798:
“Under these circumstances the subject was taken up by Virginia in her Resolutions, and pursued at the ensuing session of the Legislature in a Comment explaining and justifying them; her main object, evidently being, to produce a conviction every where, that the Constitution had been violated by the obnoxious acts and to procure a concurrence and co-operation of the other States in effectuating a repeal of the acts. She accordingly asserted and offered her proofs at great length, that the acts were unconstitutional. She asserted moreover and offered her proofs that the States had a right in such cases, to interpose, first in their constituent character to which the government of the United States were responsible, and otherwise as specially provided by the Constitution; and further that the States in their capacity of parties to and creators of the Constitution, had an ulterior right to interpose, notwithstanding any decision of a constituted authority; which however it might be the last resort under the forms of the Constitution in cases falling within the scope of its functions, could not preclude an interposition of the States as the parties which made the Constitution and as such possessed an authority paramount to it.
In this view of the subject there is nothing which excludes a natural right in the States individually more than in any portion of an individual State, suffering under palpable and insupportable wrongs, from seeking relief by resistance and revolution.”
Notice that in these two paragraphs, in describing what some confuse to be nullification, Madison does not once utter that word. Rather, he details the kind of “spirited vigilance” that Professor Fritz spoke of and which Madison himself called “interposition.” In the very next paragraph, however, he goes on to decry nullification by name, confirming that the two theories cannot be conflated. He continues:
“But it follows from no view of the subject, that a nullification of a law of the United States can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet of anarchy cannot be imagined [emphasis added].”
In layman's terms, Madison firmly believed the states could and should remain vigilant against unfavorable federal laws. He did not believe that nullification, the “fatal inlet of anarchy,” enabled them simply to negate such laws. Interposition required citizen and state engagement and implemented healthy processes of federalism. Nullification, among other perils, was subject to falling prey to populist whims, a political passion Mason famously feared and sought to mitigate. He called “the position that a single State may rightfully resist an unconstitutional and tyrannical law of the United States” a “deformity,” noting that its proponents overlook the “essential distinction between a Constitutional right, and the natural and universal right of resisting intolerable oppression.” There was a difference, in other words, between pushing back against federal overreach — of course, the states should do that — and doing so in such a way that threatened to undermine the supreme law of the land.
So, while Madison rejected nullification as defective and dangerous, returning to his 1830 letter to Everett, we see that he recommended an alternative safeguard against tyranny. First, Madison seems to have understood that the actions of the Virginia legislature in opposition to the Alien and Sedition Acts, as laid out before, were already being misconstrued as acts of nullification. He soundly rejected this. “I do not decline a sketch of the views which I have been led to take of the doctrine in question… and of the grounds from which it appears, that the proceedings of Virginia have been misconceived by those who have appealed to them.” The Constitution, quite simply, “cannot be altered or annulled at the will of the States individually,” he contended.
But what if multiple states agreed that the federal government was in the wrong and could not redress their concerns via interposition? Mason addressed that, too:
“Should the provisions of the Constitution as here reviewed, be found not to secure the Government and rights of the States, against usurpations and abuses on the part of the United States, the final resort within the purview of the Constitution, lies in an amendment of the Constitution according to a process applicable by the States.”
The difference between nullification and the Article V convention process was that the former permitted power to a small minority to invalidate the laws of the whole nation. In Madison’s mind, “to establish a positive and permanent rule giving such a power, to such a minority, over such a majority, would overturn the first principle of free government, and in practice necessarily overturn the government itself.” Article V, on the other hand, necessitated participation from the majority of states. Additionally, it did not simply negate federal law but rather aimed to amend the Constitution itself, thereby preserving the integrity of the supreme law of the land.
That same year, he also pointed out “that as safeguards agst. usurpations and abuses of power by the Govt. of the U.S.... an ulterior resort is provided in amendments attainable by intervention of the States, which may better adapt the Constitution for the purposes of its creation.”
Clearly, James Madison did not favor nullification, preferring instead for the states and people to maintain a careful and constant watch over the federal government. As Christian G. Fritz concludes his lengthy essay, “Whether Madison’s concept of interposition remains a viable and appropriate mechanism today is a question that the present generation of Americans must decide. At the very least, however, Madison would have approved of a vigilant citizenry participating in monitoring the federal constitutional order.” But should that in and of itself prove to be insufficient, he knew, as he wrote in Federalist 43, that Article V enabled “the state governments to originate the amendment[s]” necessary to stave off oppression.
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