Wednesday, June 04, 2014

Quoting Madison

This article talks about how we quote Madison on the Constitution, but Madison is very contradictory:
The publication of Lynne Cheney’s new blockbuster biography of James Madison revives one of our most cherished founding myths: Madison was the “father” (assertive textbook version) or “chief architect” (modification for a more sophisticated audience) of the Constitution. The New York Times headline writers selected “American Architect” to announce Gordon Wood’s review of Cheney’s book. This honorific appellation calls forth Madison’s claim to fame and his tug on our hearts.

Much is at stake here. If Madison were truly the chief architect of the Constitution, what he said and wrote (in 1787) bears heavily on the meaning of that document. Through the informal doctrines of original intent and original meaning, so pervasive in our political culture, Madison’s views become scripture. Then, if we casually omit the key words “in 1787,” what he did, said, or wrote at any time in his career wind up guiding Constitutional interpretation. Madison conceived the Constitution. Madison believed thusly, so that’s what the Constitution says. Our public policy, to follow the Constitution, must follow James Madison. By applying this sloppy syllogism, pundits, politicians, and Supreme Court justices can redirect the course of the nation. It all starts with that initial premise: James Madison, American Architect.

Was Madison the (chief) architect of the Constitution? An architect lays out a plan that that will be put into effect. Even metaphorically, this does not describe James Madison’s relation to the United States Constitution.

In fact, Madison did not always get his way at the Federal Convention of 1787. By one tabulation, he offered an opinion on 71 motions but lost out on 40 of these.1 This is not to denigrate Madison in any way; perhaps we would have been better off if other framers had followed his advice more often. But if Madison had had his way, the edifice created by the Convention would look very different than it does.

Why does this matter according to the author?
Viewing Madison as the architect of the Constitution has political overtones. Madison’s ideological evolution, from his expansive nationalism in 1787 to his advocacy of strict construction and states’ rights in the 1790s, can be and is manipulated into a distorted view of the Constitution’s meaning. If the alleged architect of the Constitution said the powers of the federal government are limited to those that are “expressly delegated” in the Constitution and states have the right to “interpose” between the people and the federal government, enemies of federal power backdate these words, implicitly but erroneously, to 1787. Once there, they become proof positive that the Constitution favored the states. Madison-the-Architect said so.

This unwarranted notion has penetrated to the core of our public discourse. It informs constitutional jurisprudence at the highest levels and affects national policy. In their dissent to the 2012 Affordable Care Act decision, Justices Scalia, Kennedy, Thomas, and Alito complained that the “power to tax and spend for the general welfare” has unfortunately come to extend “beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers.”18 The words within parentheses speak volumes. “What Madison thought it meant,” in this context, stands for “what the founders thought it meant” and finally “what the Constitution really means.” On this view, Madison supposedly favored a strictly limited government, so that is what the document must prescribe. However misguided, Madison-the-Architect mythology is embedded within the default logic of constitutional reasoning, and it tilts that reasoning subtly yet significantly toward the right.

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