James Madison, in formulating ideas about the role of the federal government prior to the Constitutional Convention came up with the notion that to best protect minorities (not just race) and individuals from the vagaries of state legislatures believed it was necessary for the Federal Legislature to have a Negative over all state laws.
Excerpt from "Original Meanings" by Jack N. Rakove p. 316
"From the analysis, two programmatic conclusions followed, both derived from the arithmetic logic of Madison's theory of factions. First, majorities inimical to rights were unlikely to form or endure at the national level of government. Second, and more important, the true problem of protecting rights was to curb injustice within the individual states, where most laws affecting property and religion (and all other ordinary activities) would still originate. That is why an unlimited veto on state laws was indispensable to preserving private rights against 'vicious' state legislation. Armed with this power, the national government could act as a 'disinterested & dispassionate umpire in disputes between different passions & interests in the State' - that is, within the individual states - and thus curb 'the aggressions of interested majorities on the rights of minorities and of individuals'."
The phrases between the single quotes are from Madison.
What do you make of this given your view of what James Madison thought about the role of the federal government?
Hi My Esoteric, My first thought is that it is a good thing that Madison didn't promote this concept in the Convention. If the Constitution had started with this Federal power, it isn't hard to imagine the scope of power it would have developed by today. My second thought raises the question of why he didn't.
I am interested in the context leading to this blurb, and the quote, so I will add your reference to my reading list. Thanks for the direction.
My readings on Madison leave me with the impression that he moderated, or changed, some of his initial views while actually in the Convention, either for purposes of compromise, or to fit with the structure of the Constitution as it developed. This quote sounds more like it would come from Hamilton than Madison. Perhaps it was the influence of resisting some of Hamilton's ideas that caused him to abandon this one. Hmm.. I will have to read your source to figure it out.
My third thought is that this doesn't jibe with some of his other thoughts that the power of the new Federal government should not usurp state prerogatives. Another, Hmm...
ps. Good news for me. Took time out to check my second favorite book source - Half.com. Got a copy coming for $5. Thanks again for the reading suggestion.
It's easy to forget that the when the document was written it wasn't a country. Just 13 "countries", each with their own desires and wants that got together to form an alliance - a republic wherein each was still able to make their own version of the future.
That isn't really true, is it. The 13 states were organized as a confederation subject to the Articles of Confederation. The Union was intended to be Perpetual but, unfortunately, the Articles were greatly flawed. The flaws were so bad that the Confederation was crumbling into what you just described ... 13 countries tearing each other apart and becoming easy picken's for Europe.
That is why Madison and others worked to convene the Constitutional Convention for he and others foresaw a true War Between the States.
Actually, Madison did push for a complete veto over state laws ... the very end. But on this point he couldn't carry the day. As a result, millions upon millions of individuals and minorities (not necessarily racial) have been terribly hurt by bad state legislative decisions over the intervening 240 years.
It is a great read with tons of insights and quotes, a very thorough job. I am about done with the chapter on Rights (which is where this came from). The final chapter is on Madison himself.
The context is James Madison, in addition from the experience he gained as a state legislature and as a member of the Continental Congress, did extensive study of, among others, was a compare and contrast of each states constitution and how state government evolved after the Revolution was over. To put it mildly, he was horrified by what he saw. It was during this period where he finalized his theory of factions.
"As a result, millions upon millions of individuals and minorities (not necessarily racial) have been terribly hurt by bad state legislative decisions over the intervening 240 years."
LOL And millions upon millions of Americans have been terribly hurt by bad federal actions and/or laws. Prohibition, recent liberal court actions on negative valuable and useful executive orders (in turn negated by the SCOTUS) come to mind. The millions in jail for possession of an ounce of Marijuana, borrowing beyond any reasonable amount, for nothing more than to buy what we want but don't want to pay for. The virtual destruction of social security.
It has worked both ways; sometimes states are ahead in doing the right thing, sometimes the feds are. Neither has a lock on "good" laws or actions.
Once again My Esoteric, you have pushed me into finding new understanding of what I thought I knew.
I was unaware that Madison felt so strongly about the need for "The Negative" federal power, but, I don't think his failure to get that Negative into the Constitution has done the harm you say, (those millions and millions harmed by state laws).
I came across an interesting essay, (James Madison "Godfather of the Constitution"), that proposes that the resulting constitutional construction - the supreme federal power of the Judiciary branch, was in effect a much better "Negative" power than the central-government one Madison proposed. Combined with other state-power limiting specifics in the Constitution, I think I agree with the essay's author. I think the resulting effect was much more in line with the desire of our Constitution than if the central government had the potentially uncheckable power of a veto over all state powers.
Just a note along the lines of your point. The author writes that Madison lost out on 40 of 71 major points he proposed for the new Constitution. He may have been more in-sync with Hamilton then I thought.
"From the analysis, two programmatic conclusions followed, both derived from the arithmetic logic of Madison's theory of factions.
First, majorities inimical to rights were unlikely to form or endure at the national level of government. Second, and more important, the true problem of protecting rights was to curb injustice within the individual states, where most laws affecting property and religion (and all other ordinary activities) would still originate.
That is why an unlimited veto on state laws was indispensable to preserving private rights against 'vicious' state legislation.
Armed with this power, the national government could act as a 'disinterested & dispassionate umpire in disputes between different passions & interests in the State' -
that is, within the individual states - and thus curb
'the aggressions of interested majorities on the rights of minorities and of individuals'."
I have looked at the question of federal law over states' rights before but not in light of Madison, and I think you have it right, Kathryn. Being a state legislative employee for nearly 30 years and watching states attempt to trample on individual rights in the name of religion and other Constitutional rights, my conclusion is that states' rights are rights of states to discriminate against people who do not hold majority views.
Maybe it was an important stipulation at the time. He was a man of his time, as they all were. Perhaps some will look back and condemn the way many today want the government to redistribute wealth with the belief that The Constitution meant to provide for the "general welfare," LITERALLY!
Not sure Madison was thinking for wealth distribution when he wrote that. But, I suspect his idea of "general welfare" is just what he said - preventing majorities with nefarious purposes from infringing on the rights of individuals and minorities.
general welfare = overall well-being
health, safety, nourishment, ability to make ends meet, put a roof over one's head.
whatever stands in the way of these things.
infringing on states rights …?
do people around here believe in state's rights
"general welfare = overall well-being"
That is correct. But what it does NOT mean is that every point (specific individual) in the nation must have that well-being. Only that the nation as a whole must. The "health, safety, nourishment, ability to make ends meet, put a roof over one's head" for every person is not the responsibility of the government.
Right. "Promote the general welfare" actually means: ______________"
"Must Have"? no, not "must have" but more correct is "fair opportunity to have", in terms of health, safety, nourishment, ability to make ends meet, put a roof over one;s head.
But "fair" means "equal" here, and man is not equal even before poor decisions. And nothing government can do can or will change that.
Hi Wilderness, following My Esoteric's lead, and keeping the focus on Madison's thoughts and intentions, here is a blurb from the essay I noted above"
"Madison might agree with his good friend Tom Jefferson's adage that we are all created equal, but Madison knew that as we go through life we become very different. We are raised differently (instilling in us different values), we acquire different amounts of property (wealth), and we form different opinions. What's more, we constantly look for ways to protect our property, or promulgate our values or defend our opinions. This is why we shift in and out of different attachments with like-minded people (there is safety, and power, in numbers) and this is why Madison was convinced that in a large republic one faction would not stay in place long enough, or grow large enough, to pose a threat."
As you can see Madison was fully aware that the application of "equal," (as in all men are created equal), only applied to birth and opportunity. And when it is further noted that Madison's concept of the danger of factions addressed property owners and the wealthy, and, the poor and landless, as equal concerns, you can see he most definitely wasn't of today's progressive wealth redistribution mind.
Except for the inclusion of "fair," which I don't recall Madison noting, I think My Esoteric has it right.
I don't know. Madison recognizes that life and nature aren't fair - that we are not equal - why would he then decide that government should supply equal opportunity? Knowing it isn't possible, why would he say it should be done?
Or am I, as happens too often, missing the entire thread here?
Hi Wilderness. I think you might have a case of "forum blindness," as in, in this issue, the proposition that neither Madison nor the Convention, ever addressed an "equal" quantifier, is unlike most of these forum's threads that deal, almost ponderously so, with "equality.". My take is that Madison did not advocate anything like today's progressive philosophy of "equality for all" - except in the concept of opportunity.
The issue related to opportunities, and the effects of factions on those opportunities. It seems that all, (yes, a dangerous statement), the founders concerned understood that inequality was a natural and insurmountable human characteristic, so their task was to find the best way to mitigate the dangers inherent in those characteristics.
I am most impressed by their acceptance, vs. challenge, of the fact that human nature is what it is, and must be considered in real solutions. Our Constitution reflects those thoughts in many areas. Particularly
in leaving the supreme power of determination to the Judiciary branch as the most important one, because it would be the one most relevant to the times, - in my opinion.
:Supply"? strange use of that word. Guarantee seems more appropriate.
I used the "fair" rather than equal because I knew how Wilderness would respond. Start with Locke's "state of nature" and his observation that when people leave that state and join together to form a society, out of necessity they must create a gov't to which they surrender some of their rights to gain protection. Locke understood there were bad people in the world who take advantage of others.
Now to the "fair" part.
It is his belief, and Madison's, that one purpose of gov't is to keep the playing field level in order to let people rise to their natural talents without unfair obstruction from other individuals, organizations, or govt's.
Level Playing Field = Fair
For example, if employers discriminate in hiring, the gov't has the responsibility to make discrimination in hiring illegal.
You got me on the "supply" part My Esoteric. I couldn't find a reference point.
But, I do understand your explanation of fair. And... heaven help me, I also understand your Locke reference. I have read his State of Nature extrapolation, and, as I can hope you have noted from the foundation of my forum participation all these years, I pretty much agree with his thoughts on society.
*You can imagine my enthusiasm for the John Lock character in the TV series, 'Lost'. But damn them for the ending! ;-)
I know it won't promote further discussion, but I must acknowledge that I completely agree with your thought that Madison's perception of our government's responsibilities, relative to "fair," was to keep the playing field level for all.
Geesh, now where do we go?
Your Federalist, and Madison thought threads have reaffirmed my belief in the wisdom of our founding fathers - even the parts that were unexpected surprises for me. (like the "tributaries" one which I will never forget - you nailed me), If I could ever ascribe to wanting a legacy, it would be to be considered a thoughtful person. Like our founders.
GA, "Supply" was referring to Wildnerness' use of it in "why would he then decide that government should supply equal opportunity?"
I find the kind of legacy you want very desirable.
One of the biggest regrets in life is not having found the kind of interest in US political history 55 years ago when I was in high school.
But government, or any else, can't "level the playing field". It isn't possible to do so when nature has provided differing heights, society has added to it and every individual has done the same.
At best, all anyone can do is smooth out the rough spots; the mountains nature provides must be climbed by the individual. Even your example (and it is a good one) can't do it all - a movie casting for Cleopatra will never hire Arnold Swarznegger for the position. We can insist that the bumps we put in the way (Hire a Black!? Never!) be leveled, but that's all.
But Wilderness, whether "government or anyone else" can level the playing field is not the point. That it is government's responsibility to try to do so is.
As I noted earlier, if Madison had gotten his Federal Negative incorporated into the Constitution, can you imagine the extrapolations of that charter that we would be living with now?
Heaven help us. Roe v. Wade would have been but a footnote, rather than a landmark.
Come on bud, give it up. Madison was right. Even though his "Negative" wasn't the ideal solution, his thought of mitigating the power of factions was. And, as far as it goes, My Esoteric's point that it is the government's responsibility to try to maintain a level playing field is a correct interpretation.
As I mentioned earlier, we have summitted this thread. There doesn't seem to be any disagreement to argue with.
I don't know (that Madison was right) - states very often lead the way in the matter of personal rights. Women's suffrage (I think), gay rights, marijuana usage and even abortion come to mind. The feds would shut them all down at the first hint.
It's too easy to sit back and say that the feds were right...a few decades after they agreed with some of the states. And with the current mind set in Congress, every change in party supremacy would result in a change in how states must behave!
I think you have taken my point wrong Wilderness. I am glad Madison's Negative didn't make the cut. I am also glad that our government structure includes, essentially, that same Negative power, in the form of the Judiciary.
Those points weren't meant to say the Feds should lead the way. Or that the Feds should be the arbiter of what good State actions should be. It was only meant as the Judiciary branch of our government potentially being a check against extreme State inequities. And even that only occurred with maturity. We are still remembering our Dred Scott legacy. But, I think that period of maturing was the beauty of the set-up because it stepped right along with the maturity of our nation. I strongly support a 'State's Rights' position, but I am glad there is a potential referee too.
Think back and recall modern historical instances where the Judiciary used that Negative power over a state. I didn't give it a lot of thought, but none come immediately to mind. Now imagine if that Negative power was in the hands of a partisan elected government executive...
Wildnerness' "Women's suffrage (I think), gay rights, marijuana usage and even abortion come to mind. "- all examples of the bad results from a misguided majority telling the minority how to live. The link to states and Madison is the fact that many state legislatures were controlled by those who believed 1) women (and blacks for that matter) shouldn't vote, 2) homosexuality is a choice and is bad, 3) marijuana is so dangerous to the public good that it must be banned, and 4) woman shouldn't have control over their own bodies.
All but suffrage can be traced to the faction of fundamentalist Christianity; no suffrage was more wide-spread but not, initially, ubiquitous. I was stunned to learn in the last 12 months that at the time of ratification at least one State allowed blacks and women to vote. That ended after Andrew Jackson, I believe, took office.
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