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  Brutus ignored the power to amend the Constitution, since the amendment process was intentionally made so difficult both to initiate and complete. Amendments to rectify judicial usurpation were likely to be rare. The upshot to Brutus was that for Supreme Court justices, exercise of this virtually uncontrolled power “will enable them to mould the government, into almost any shape they please,” and “will operate to a total subversion of the state judiciaries, if not, to the legislative authority of the states.”20

  Brutus 15 was published on March 20, 1788. Publius, this time in the person of Hamilton, did not take up the judiciary until May in Federalist 78; but in his opening paragraph, he once again made plain that he was writing as a response. After noting that “the propriety of the [ judicial] institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent,” Hamilton wrote, “to these points, therefore, our observations shall be confined.”21

  Although he listed three general areas of dispute, he dismissed the first, “the mode of appointing judges,” in a single sentence as “the same with that of appointing the officers of the Union in general,” which he had already discussed at length. The second question, “tenure by which they are to hold their places,” and the third, “the partition of the judiciary authority between different courts, and their relations to each other,” were discussed at length.

  Hamilton, to reassure the people of New York, described the judiciary far differently than John Marshall would in the Virginia ratifying convention. Referring to Montesquieu, Publius noted “that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.”22

  But weakness was not impotence. Later, in Federalist 78, Hamilton at last took up the subject of judicial oversight and was unambiguous in his opinion. “No legislative act, therefore, contrary to the Constitution, can be valid,” he asserts bluntly. Then, lest anyone assume that he was taking Blackstone’s view, Hamilton added:

  If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.23

  This is the single most powerful enunciation of the power that Marshall would later claim for the Supreme Court to appear anywhere in any record of the constitutional period. And yet it remains only Hamilton’s opinion. Hamilton had not even been present in the Convention when the Supreme Court’s powers, as defined in the Committee of Detail, were hashed out.

  To a major degree, the Brutus/Publius debate, as well as many of the other ideological tussles during ratification, turned strict construction on its head. Federalists, who intended that the Constitution be applied with a degree of breadth not specifically delineated in the text, often donned the mantle of strict construction to assure the general population that the new central government would not go too far; Anti-Federalists, who intended to limit the powers of government to the narrowest possible interpretations of the wording of each article, argued from broad constructionism to demonstrate that it would.

  In Federalist 78, as Brutus warned, Hamilton returned to the Federalists’ broad construction roots to grant to the Supreme Court a power that was not in any way made explicit in the Constitution. His reasoning, however, was clear. The courts, he was trying to convince skeptical New Yorkers, represented “the people,” and judicial nullification gave “the people”—us— power over the legislature—them. Hamilton dispelled any doubt regarding this point in the next paragraph of Federalist 78.

  Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.24

  However, just when it seemed clear that the Hamiltonian vision of judicial review would be just as Marshall would later insist it was, Hamilton added a qualification. This passage is not cited nearly as often as the ones preceding, although it should be.

  It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. . . . The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.25

  For all their lofty intellectualism, as the New York convention began on June 17, 1788, the Publius essays appeared to have been an exercise in futility. The Clintonians enjoyed a seemingly insurmountable advantage. With Rhode Island, North Carolina, and New Hampshire safely on their side (or so they thought) and Virginia expected to reject the plan as well, Clintonians seemed satisfied to go through the motions of debate, then simply vote the Constitution down.

  In the first weeks, everything seemed to go according to plan. To open the proceedings, Federalist Robert Livingston gave a long, impassioned speech about the benefits of the new Constitution, culminating in a motion to forgo the question of amendments until the document itself had been through a clause-by-clause discussion. Believing the Constitution doomed in any case, Anti-Federalists acquiesced to Livingston’s motion.

  The convention droned on, with long speeches and little action. Delegates evoked everyone from Montesquieu to Falstaff, while Hamilton tried desperately to persuade less doctrinaire Anti-Federalists of the benefits of the Constitution to their state, their country, and their wallets.

  During the course of debate, amendments were regularly proposed in violation of the earlier agreement, nine alone to Article III. All were aimed at limiting judicial power, but none addressed the possibility of the Supreme Court nullifying an act of Congress.

  When word arrived on June 24 that New Hampshire had ratified without amendments, Clintonians were stunned, but were also aware that without Virginia and New York there could effectively be no United States. When, however, word arrived of Virginia’s ratification on July 2, Anti-Federalists were thrown into disarray and Hamilton had the opening he had been praying for.

  Sessions were abbreviated from July 4 to 7, canceled entirely on the eighth and ninth, and cut short on the tenth. Then, on July 11, the change of fortunes was epitomized by John Jay’s motion at the opening of the session “that the Constitution under consideration ought to be ratified by this Convention.”26 In response, after four days of acrimonious debate in which Anti-Federalists, once so certain of victory, were forced to accept the inevitability of defeat, Melancthon Smith could only propose that ratification be conditional.

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bsp; Hamilton took control. Using a combination of reason, persuasion, and threat (at one point he indicated that Federalist New York City might secede from the state if the Constitution were rejected), he wooed Clintonians. The governor desperately tried to hold his bloc together. George Clinton, however, while a wily politician, lacked both the charisma and the oratorical skills of Patrick Henry. One by one, his followers defected.

  On July 19, Robert Lansing renewed the motion to ratify conditional to a bill of rights being attached, which passed. Hamilton responded by reading a letter from Madison expressing doubt whether conditional ratification would be accepted by Congress. Samuel Jones, an erstwhile Anti-Federalist, then made a counter-motion four days later to eliminate the words “on condition” and substitute “in full confidence.”27 Jones’s motion passed, 31–29. Three days later, the entire package, including suggested amendments, was approved, 30–27.

  Governor Clinton appended a letter that stated “Several articles . . . appear so exceptionable to a majority of us, that nothing but the fullest confidence of obtaining a revision of them by a general convention, and an invincible reluctance to separating from our sister states, could have prevailed upon a sufficient number to ratify it, without stipulating for previous amendments.”28 He circulated his letter to other states, calling for other outraged legislatures to petition for a second convention. His sentiments were nonbinding, however; and, in any case, the fact that his own state had ratified unconditionally undermined his call and left Clinton railing against the wind.

  SIX

  TRANSITION: CONGRESS IS

  TRANSFORMED AND SO IS MADISON

  WITH THE AGREEMENT OF VIRGINIA AND NEW YORK, eleven states had joined the Union. In all, more than one hundred amendments had been offered, twenty by Virginia and thirty-two by New York, not one of them conditional to ratification.1 While some represented parochial state interests and others concerned the mechanics of government or separation of powers, most were directed at the lack of definition with respect to the legal system, either as regards the broad powers granted the federal judiciary or the absence of guarantees of individual liberties. With Federalists and most of the erstwhile framers on record as opposing amendments, at least until the bugs were out of the new government, the Constitution, exactly as it had emerged from the Philadelphia Convention, would likely remain the supreme law of the land when the newly elected Congress convened. The notion of including a bill of rights at that point seemed simply one more of George Clinton’s or Patrick Henry’s failed attempts to derail ratification and force a second convention.

  North Carolina and Rhode Island continued to resist ratification, but the business of forming a new government was initiated without them. The first order of business was for Congress, still meeting under the Articles of Confederation in New York, to prepare for the transition, thereby setting in motion the machinery of its own demise. The two holdout states remained part of this, the final Confederation Congress, and were thus allowed to participate in proceedings that, unless they relented, would force them to leave the Union.

  Congress had taken the first step on July 2, 1788, when it had appointed the five-man committee to handle the transition. The following week, the committee recommended that on the first Wednesday in December, the states that ratified would appoint presidential electors as specified in Article II; on the first Wednesday in January, the electors would meet and select a chief executive; and on the first Wednesday in February, the first Constitutional Congress of the United States would convene and swear in its first president. On July 14, 1788, Madison reported Virginia’s ratification, and on July 28, the committee proposed putting back by one month each the dates for the appointing of electors, casting of ballots, and convening the new government, making March 4, 1789, the day that the Constitution would become the nation’s governing document. Not until September 13 did Congress vote unanimously to approve those dates and thus set in motion the process of choosing not only presidential electors, but representatives and senators for the new bicameral Congress. Representatives would be elected by popular vote, by district in six states—including Virginia—and on an at-large basis in five. Senators would be selected by state legislatures.

  In Virginia, Patrick Henry, still smoldering after being bested by Madison at the ratifying convention, was determined to even the score, and the grudge he bore may well have been responsible for the Bill of Rights.

  Displaying an apparent generosity of spirit that shocked even his friends, Henry supported Madison to be a part of Virginia’s delegation to the final Confederation Congress. Madison was duly elected by his peers and set off for New York in early July to personally report Virginia’s ratification and to help preside over the change to the new form of government that he had been so indispensable in creating.

  The minute Madison was out of the state, Henry set to work, determined that none of the members of Virginia’s new congressional delegation in either house would be named Madison.

  Madison, as expected, was immediately nominated by the Virginia legislature to fill one of the Senate seats. Calling in favors, bullying, threatening, flattering, and cajoling—in short, behaving in character—Henry succeeded in blocking his nemesis and instead secured the appointment to the Senate of Richard Henry Lee and William Grayson, both of whom had solid Anti-Federalist credentials. In the words of a biographer, “To humiliate Madison, Henry managed his rejection by the Assembly for a seat in the Senate, referring to him as one unworthy of the confidence of the people.”2 At that point, if Madison was to be a member of the First Congress, he would need to be elected as a representative from a congressional district.

  While at first glance it seemed a certainty that Madison would have no trouble securing a congressional seat from his Orange County home district, Henry was not done. The Virginia legislators were also charged with drawing district boundaries, and Henry persuaded them to sufficiently distort Madison’s district to take in a large Anti-Federalist contingent that rendered the eventual result uncertain. “In an attempt to exclude Madison from the House of Representatives as well, Henry, a master of the ‘gerrymander’ long before that term had been invented, placed Orange County (Madison’s home area) in a congressional district otherwise composed of counties considered heavily anti-federal.”3

  To further nettle his antagonist, Henry persuaded the popular young Anti-Federalist James Monroe to stand against Madison. By late autumn, while Madison remained in New York, Monroe gained substantial support in a district where fear of centralized authority was strong. Exactly what Madison was actually up to in the capital was unclear, since, after September 13, except for sporadic activity, Congress had been inactive. From October 10 until official adjournment on March 2, the lameduck legislature ceased conducting business altogether, only one or two congressmen attending any particular session in order that the government not be seen as having disbanded. Still, as winter approached, Madison feared to leave Congress, as “it will have an electioneering appearance which I always despised and wish to shun.”4 It was a rare political blunder by one of the most astute politicians in American history.

  In early December 1788, Madison finally grasped that his political future was in dire jeopardy and that he should return home without delay. Madison left New York so quickly that he did not even take the time to write to his father and tell him of his departure.5 He arrived in Alexandria on December 17 and traveled on to Orange County two days later. As soon as he arrived, he understood that he had been outmaneuvered by Henry. In the political vacuum that had been created by his absence, Monroe had made immense headway by backing a strong bill of rights. Furthermore, Madison’s opposition to amendments, as reported by Henry’s minions, seemed to be a matter of record.

  Within two weeks, Madison, with typical dexterity, had made a pragmatic switch. On January 2, 1789, he received a letter from a supporter, George Nicholas, confirming to him that Henry “and his tools” had circulated the notion that Madison was opposed to all
amendments. Nicholas urged him to counter. “It gives me pleasure,” Nicholas wrote, “to find by your letter of the 29th of Dec that you have returned home and intend to make your sentiments known to the inhabitants of your district.”6 That same day, Madison wrote to a local minister, George Eve.

  “Being informed that reports prevail not only that I am opposed to any amendments whatever to the new federal constitution, but that I have ceased to be a friend of the rights of Conscience,” Madison began, obviously referring to Henry’s calumny, “. . . but having been induced to offer my services to this district as its representative in the federal legislature, considerations of a public nature make it proper that . . . my principles and views be rightly understood.”

  Madison continued, “Whilst [the Constitution] remained unratified, and it was necessary to unite the states in some one plan, I opposed all previous alterations as calculated to throw the States into dangerous contentions, and to furnish the secret enemies of the Union with an opportunity of promoting its dissolution. Circumstances are now changed. The Constitution is established on the ratifications of eleven States and a very great majority of the people of America, and amendments, if pursued with a proper moderation and in a proper mode, will be not only safe, but may serve the double purpose of satisfying the minds of well meaning opponents, and of providing additional guards in favour of liberty. Under this change of circumstances, it is my sincere opinion that the Constitution ought to be revised, and that the first Congress meeting under it, ought to prepare and recommend . . . the most satisfactory provisions for all essential rights.”7 Within those essential rights, Madison stressed those that relate to “right of Conscience”: in other words, freedom of speech, religion, and association. In what was billed to Eve as a clarification, Madison had in fact staked out completely new ground and reversed a position that, until his return from New York, he had insisted was correct.