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What James Madison Really Thought About Article V — Why the Father of the Constitution Rejected Nullification

Published in Blog on November 08, 2023 by Jakob Fay

James Madison is often regarded as the “Father of the Constitution.” In his enlightening “Notes on the Debates in the Federal Convention,” he recorded that when Col. George Mason of Virginia argued for adding a state-led convention process for proposing amendments to the Constitution, “[t]he motion… was agreed to nem: con,” Latin for “no one contradicting,” or “unanimously.”

Yet, according to a recent Common Cause webinar, “When some 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 was he opposed?

Historian Gordon Wood has identified (and debunked) what he calls the “James Madison Problem” (a name derived from the so-called “Adam Smith Problem,” which referred 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 so as 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 was called, “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. Part two of this series will examine whether the fourth president of the United States, as is often asserted, truly endorsed nullification, and if so, what role, if any, he believed inter-state conventions should play in staving off federal encroachment.

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