On September 16, I received an e-mail from James Madison’s Montpelier titled “What Does Constitution Day Mean to You?” The message encouraged me to attend either of a couple upcoming events sponsored or hosted by the National Trust at the fourth president’s home, including a speech at the National Archives by a famous Yale professor and an on-site pageant featuring James and Dolley impersonators.
Notably absent from the e-mail was any indication that James Madison had any particular constitutional philosophy. I had the impression that the historic house/museum complex’s management hoped for me to join in a celebration of The Constitution in the abstract, and of The Hero into the bargain, without having any idea why I was doing so.
For the whole enterprise is contrary to James Madison’s dearest constitutional beliefs. Although people commonly think of the Jeffersonian principle of states’ rights/strict construction as having been most clearly elaborated by Secretary of State Thomas Jefferson in his “Bank Bill Memorandum” (1791), Jefferson essentially borrowed his argument wholesale from Madison, who had laid it out when opposing Alexander Hamilton’s bill in the House of Representatives.
What did Madison say? He argued that under the Constitution, Congress had only a few powers. Most of them were listed in Article I, Section 8. There was nothing in Article I, Section 8 saying anything about chartering a corporation, much less a bank corporation. Doing so did not fall under the Necessary and Proper Clause, either, because it was not necessary to charter a bank in order to exercise any of the enumerated powers. Therefore, Congress had no power to charter a bank.
This idea did not come to Madison in a fit of partisan logic-chopping two years after the Federal Government’s inception. Rather, he developed it in Federalist #45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” True, the Federalist had limited circulation during, and an even more narrowly distributed effect on, the ratification campaign. However, Madison and his fellow Federalists— most notably including Pennsylvania’s James Wilson, but also William Cushing in Massachusetts, Charles Cotesworth Pinckney in South Carolina, James Iredell in North Carolina, Alexander Hamilton in New York, and Governor Edmund Randolph in Virginia—insistently and persistently struck this note in the ratification campaign. Madison’s friend the governor reiterated the point repeatedly in the Old Dominion’s ratification convention.
In 1790, other Virginians invoked the ratification-era promise that Congress would have only the powers “expressly” granted. Finding no power in the Constitution for Congress to assume the state debts, 1788 Antifederalist leader Patrick Henry and prominent 1788 Federalist Henry Lee pushed the General Assembly to adopt a resolution protesting Assumption on this ground. Such an arrogation so early in Congress’s life augured ill, they said, and Virginia would vigilantly police the bounds of federal power.
Congressman Madison and Secretary Jefferson (along with Randolph, now attorney general) lost the Bank Bill contest in 1791, but that did not mean abandonment of the point. Nowadays, people commonly describe the Virginia and Kentucky Resolutions of 1798 as resting on the claim that the Sedition Act violated the First Amendment. Even a cursory reading, however, shows that Jefferson’s 1791 claim that the Tenth Amendment stated the underlying principle of the Constitution still seemed correct to him in 1798. Yes, the Sedition Act offended First Amendment sensibilities, but the strongest case against it was the absence from the Constitution of any grant of power to Congress to pass such a law.
Madison did not change his mind on this score. In fact, his very last official act as president was to issue the Bonus Bill Veto Message. There, he explained his veto of a bill he had proposed by noting his previous insistence that any such legislation must first be legitimated by a constitutional amendment empowering Congress to spend money on roads, canals, and bridges; absent such an amendment, he concluded, the bill violated the principle that Congress had only the powers enumerated in the Constitution.
The e-mail from James Madison’s Montpelier concludes by saying, “Tomorrow is a day to consider what the Constitution means to you and what it means to be an American. We are the People. Celebrate freedom.” It seems that the Powers That Be in Orange County decided to avoid making any kind of principled statement, which is to say that they decided to avoid educating the people about Mr. Madison. One might have hoped that an institution with the avowed mission of disseminating Madison’s principles would instead have noted that a federal holiday such as Constitution Day perfectly meets James Madison’s definition of “unconstitutional.”