Liberty, Prudence, Imperfection, and Law

Unconstitutional Constitution Day: A Federal Holiday that James Madison Would Reject

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.”

9 Responses to “Unconstitutional Constitution Day: A Federal Holiday that James Madison Would Reject”

  1. Harry Beadle

    It could be argued the Constitution itself is “unconstitutional” since those who wrote it had not been authorized to develop an entirely new ruling document, only to remedy problems with the existing Articles of Confederation.

  2. gabe

    Indeed it was, Harry!

    And this is a fine piece. Mr madison must be rolling over in his grave – unless of course there is some Federal prohibition against that to protect ground worms!!

  3. bobcheeks

    Great essay Dr. Gutzman!

    Re: Madison I can add that I’d read that sometime during his presidency he was asked to allocate $25, 000 for some starving Huguenots, who’d fled oppressing French Papists, and were living on the scratch down in Marietta, Ohio with hardly a tree bark to eat. Well, ol’ Madison put the nix on that deal explaining that it wasn’t the business of the general gummint to participate in such silliness.

    If that story’s true the little Virginian wasn’t all bad.

  4. Paul Peterson

    If Madison took such a view of the Constitution and its enumerated powers why did he argue against Congressman Tucker’s motion to add the word “expressly” to the 10th amendment?

  5. Kevin Gutzman

    Madison said in the First Congress that inclusion of that word in the amendment would constrain Congress too tightly. He was too late, however, as the Federalists had already promised–in all of the cases listed in my article, plus others–that the principle was implicit in the UNAMENDED Constitution. For example, Governor Randolph told the Richmond Convention over and over that Congress would have only the powers “expressly” granted. He wasn’t just some guy: he was the chief Federalist spokesman in the Convention.

    Madison and others said repeatedly that the Constitution’s meaning was to be found in the Federalists’ explanation of the document to the ratification conventions. Madison’s leaving the word out of the Tenth Amendment, then, could not operate as deleting a principle that was already part of the Constitution.

    • Paul Peterson

      Largely non-responsive. First, it does not matter what Randolph (who did not sign the Constitution) said since we are talking about Madison. Contrary to the assertion, Madison said in Congress while responding to Tucker that “it is impossible to limit a government to express powers only. Powers by implication must be admitted or else we will be reduced to recounting every minutiae.” That statement does not delete a principle that was already part of the Constitution; it reaffirms a principle that was already part of the Constitution.

      • kevingutzman

        What does signing the Constitution have to do with it? Again, the Constitution’s meaning depends on what the people were told it meant during the ratification process. Federalists assured people of this in the Virginia Convention and elsewhere, notably in THE FEDERALIST. (Madison as Publius, natch.)

        So … Governor Randolph’s repeated assurances to the Virginia Convention, reenforced by George Nicholas’s explanation of the proper approach to constitutional interpretation in the Convention’s last major speech, are probative. (Nicholas was, along with Madison and Randolph, one of the three chief Federalists spokesmen in Richmond.) What anyone said later, even if he had been a major player in the ratification process, isn’t. No one denied during the ratification process that the Federal Government would only have the powers expressly granted, and the people I named in the essay made that argument. Others did as well. Madison couldn’t remove this principle from the Constitution by something he did in the First Congress.

        You have an odd conception of “non-responsive.”

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