RECAP: “The Prescient Mind of James Madison,” A Mini-Symposium

When it comes to the question of how favorable the U.S. Constitution was to the institution of slavery—and of the motivations of the founding generation on this subject, in general—two scholarly camps have formed. On one hand, there are neo-Garrisonians, partisans of 1619 who interpret the Constitution as directly (see: Fugitive Slave Clause) and indirectly (see: Insurrection Clause) hospitable to slavery and, in fact, as a life-sustaining force that dovetailed with the motives that led to slavery flourishing in the first place: greed, racism, Christian triumphalism, and moral indifference. And then there are neo-Lincolnians, partisans of 1776 who concede that the Constitution gave some accommodation to slavery but who frame this accommodation not only in terms of the press of necessity and compromise but also through the lens of the founders’ full expectation, anticipation, and hope that the Revolution had set the union on a course toward universal, if gradual, abolition.

In laying out his vision of Madison’s perspective on “Slavery at the Constitutional Convention,” and while acknowledging the compelling arguments made by both camps, University of Notre Dame Nancy R. Dreux Professor Emeritus of Political Science Michael Zuckert argued that there are  some ways in which both neo-Garrisonians and neo-Lincolnians miss or overshoot their marks. Neo-Garrisonians, for example, might consider how the Insurrection Clause—a hallmark of federal systems, per Montesquieu—would likely have been in the Constitution even without slavery’s existence in the new nation. Their case for accommodation, that is, might be somewhat overstated. For their part, neo-Lincolnians might not adequately reconcile their position to, or fully grapple with, the degree to which the founders accepted pro-slavery provisions even when such provisions were unnecessary. The case for concession under duress isn’t, then, quite as irrefutable as neo-Lincolnians make it out to be.

Subscribers to a neo-Madisonian perspective, Prof. Zuckert posited, might instead approach the constitutional settlement on slavery in terms of the convergence of federalism and republicanism, as well as the distinction between legality and legitimacy. As for the former pairing, it’s critical to acknowledge two main points: that the national government, as conceived at the constitutional convention, penetrated more deeply into the life of states than had ever before been seen; but also that this intrusion was predicated on a clear, enumerated demarcation of matters of the union and matters of the state. And nearly all 55 delegates in Philadelphia, Prof. Zuckert continued, shared the common assumption that slavery was a local matter—a matter of republican self-government—to be settled at the state-level. This isn’t to say, however, that slavery was entirely left to the states. In a way more readily forthcoming than neo-Lincolnians would have one believe, but also in a way less pro-slavery than neo-Garrisonians would suggest, the Fugitive Slave Clause marked a moment of federal intervention on the issue of slavery that was designed to reduce friction and endorse comity between the states. This was, Prof. Zuckert added, one of the aforementioned unnecessary concessions, but even in acknowledging this, we shouldn’t take it to imply neutrality on the part of the founders. Rather, we should balance this against how their insistent refusal to pen ‘slave’ into the Constitution—their insistence on instead using ‘persons’—reveals a total lack of neutrality, even if it likewise produced the awkward linguistic circumlocutions we see in the text.

As for the second pairing above, Prof. Zuckert argued that the founding generation embraced a theory of political right that was wholly incompatible with slavery and thus rendered it philosophically illegitimate. This theory, of course, by no means permeated through the entire federal system, as the Constitution gave slavery a legally established place in the union. Such a contrast between legality and legitimacy is problematic, to say the least, for the survival of any system, and the antebellum period brought to the fore the disparity (though not, Prof. Zuckert stressed, wholesale incompatibility) between a Constitution that aided slavery and a widespread hope that slavery would pass away. Three responses in particular arose in this era, growing the rift between pro- and anti-slavery forces: the abolitionists moved to make legality cohere with legitimacy (or illegitimacy, as it were); the positive good school of Calhoun and Stephens sought to remake legitimacy to match anomalous legality; and between these, a path of least resistance emerged that maintained the tension of an awkward constitutional order and let the strain between legality and legitimacy boil over into civil war.

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In the 60 character sketches of James Madison in Founders on the Founders, two overriding characteristics rise to the surface: Madison’s timidity and, as Fisher Ames put it, his status as a “book politician.” The latter acknowledgment of his studiousness might be construed as an unambiguous compliment, but at the time, it was not, implying instead—at least in some cases—a deficiency in practical knowledge and worldly affairs. In introducing his talk on James Madison, “Thinking Revolutionary,” Kinder Institute Senior Fellow Alan Gibson said we should appreciate Madison’s native intelligence not only in its own right but also for how it speaks to an analytical altitude, historically comparative penchant, and systematic activity of mind that made Madison the profound and ethical solver of political problems that he was. Considered collectively, Prof. Gibson argued, these qualities might give us a Madisonian methodology.

Particularly when it comes to his theorization of the extended republic, many contemporary ways of analyzing Madison’s political thinking do little justice to the intellectual influences Madison absorbed and the politically scientific approach to problem-solving that he derived from them. Progressive historians, for example, tend to dismiss the period of time that Madison spent reading prior to the constitutional convention, allowing formative figures like Hume to fall unduly out of the frame. The Skinner School, on the other hand, holds fast to the belief that Madison could not have been solving a concrete problem with his extended republic theory because the problem of an extended republic didn’t exist.

As Prof. Gibson showed, such approaches to assessing Madison overlook the two most critical components of his methodology: first, just how engaged in systems diagnosis he was; and second, just how analogical he was. They miss, that is, the way in which Madison pored over ancient and modern history in order both to draw out the central factors that have caused political problems over time and to frame these factors within the unique conditions and context of the American republic…

For more on Prof. Gibson’s unpacking of this Madisonian methodology in terms of issues ranging from public finance, to international law, a recording of the full talk can be found here.