Mr. Meese, Meet Mr. Madison

Attorney General Meese has argued that the Supreme Court should show greater respect for the original intent of the framers of the Constitution. But is this demand itself consistent with the intentions of the most important and influential framer of 1787, James Madison?


The Ambiguity of Intent

THE CONSTITUTION TURNS TWO HUNDRED NEXT year, and Americans will be asked to celebrate the remarkable Convention that met in Philadelphia during that famous hot summer of 1787. Yet events may be conspiring to make the Constitution an object not just of celebration but also of controversy. For the past year, a flurry of op-ed pieces and other essays have debated the merits of Attorney General Edwin Meese’s call for a return to “a jurisprudence of original intention.” Now, however, with the retirement of Chief Justice Warren Burger, his replacement by Justice William Rehnquist, and the appointment of Antonin Scalia, the Supreme Court, which has often been narrowly divided on crucial questions, seems about to make the fundamental change in direction that Meese and many other conservatives have long demanded.

Whether such a change will in fact occur is another matter—especially since the same reorientation was supposed to result from the four appointments that Richard Nixon made during his first term. But whatever happens, the growing influence of conservative legal scholarship, coupled with real controversy over many of the Court’s most significant decisions, guarantees that the issues Mr. Meese has raised will remain the subject of public debate for some time.

What is this debate about? Taken at face value, the idea of a jurisprudence of original intention is simply that a judge interpreting the Constitution or a law should adhere as closely as possible to the expressed ideas and purposes of its framers. In this sense, original intent would explicitly tell judges how they should read the laws they apply and enforce: narrowly and with great restraint. But in a more fundamental sense, the question that conservatives are raising is not How do judges judge? but, rather, What role should the judiciary play within the constitutional system? For, conservatives argue, if judges can freely ignore the intentions both of the original framers of the Constitution and of legislators, they can substitute their own preferences or values for the decisions of popularly elected officials. As the branch of government least accountable to the public, the judiciary should hesitate before imposing its opinions on the political departments.

At another level, of course, conservative complaints spring from strong objections to key decisions of the past three decades—those controversial rulings involving abortion, mandatory busing, affirmative action, the rights of the criminally accused and convicted, school prayer, and aid to religious schools. In its rulings in these areas, conservatives argue, the Supreme Court has violated the original intent of the Constitution in three ways. First, the Court has often ignored or distorted the original meaning of the Bill of Rights and the Fourteenth Amendment, the textual sources that most clearly identify the rights the Constitution explicitly protects. Second, the Court has established new rights that the written Constitution does not even mention — most flagrantly in its rulings on abortion. Third, by creating new rights and by imposing radical remedies (like busing) for past wrongs, the Court has attacked the constitutional principle of the separation of powers. No longer content simply to decide individual cases, the federal judiciary has set itself the task of making broad social policy, a responsibility that properly belongs to the elective branches of government. A judge may properly strike down laws that promote segregation or administrative rules that confine prisoners in excessively vile conditions. But when he takes over the management of a school system (as Federal Judge W. Arthur Garrity did in Boston) or mandates the expenditure of public funds to alleviate jail overcrowding, he acts as judge, lawmaker, and administrator together—and that concentration of power, James Madison wrote in Federalist 47, “may justly be pronounced the very definition of tyranny.”

This attack on the undemocratic nature of the judiciary turns on its head the position that conservatives have traditionally favored. Conservatives once relied on the courts to protect the rights of property against regulation by progressive majorities in the state legislatures and Congress. Now they hope to restrain “the unfettered and inevitably arbitrary wills of an elite few”—which is how Terry Eastland, Meese’s spokesman at the Justice Department, characterizes the Court—so that democratic majorities in the states can presumably restore prayer to the schools, restrict abortion, suppress pornography, and fill the jails to overflowing. And since these social issues would largely fall under the control of the states, the attack on activist judges also clothes itself in the garb of federalism.

This reversal has led many liberals to accuse Meese of opportunism. Anthony Lewis has argued that “what really interests the present Attorney General is not judicial philosophy but particular political results,” while Arthur Schlesinger, Jr., suggests that the “shamelessly selective" way in which Meese applies his theory to actual cases proves that he is “the biggest chameleon of the lot.” What respect does Meese show for original intent, some liberals have wondered, when he declares that the President need not faithfully execute a law whose constitutionality he questions? Meese’s complaints about judicial activism would vanish, they suspect, if the Court were to strike down the War Powers Act, or if new appointments produced a reliable majority of conservative justices willing, say, to eliminate affirmative-action programs root and branch.

Lewis and Schlesinger are in effect interpreting Meese’s remarks according to their view of his intentions. Ironically, in doing so they illustrate one of the key difficulties with the Attorney General’s position. Establishing the intention behind any action is a tricky business—as Meese or any other attorney surely should know. It is difficult enough to gauge the intent even of a single person— whether it be Edwin Meese in his Bar Association address of 1985 or James Madison in 1787. The task grows geometrically more complex when we try to ascribe intent to groups of people—especially men who were acting two centuries ago, who left us incomplete records of their motives and concerns, and who reached their decisions through a process that fused principled debate with harddriven bargains.

Justice William Brennan presented objections of this kind in an address last year at Georgetown University, in which he dismissed Meese’s “doctrinaire” position as “arrogance cloaked as humility.” In the first place, Brennan noted, our historical sources typically offer only “sparse or ambiguous evidence of the original intention” of the framers of the Constitution. (Here he echoed the late Justice Robert Jackson, who once wrote that the historical records were “almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”) Nor is it even clear, Brennan added, whose intent deserves the greatest weight. The Constitution and the Bill of Rights were the joint work of the fifty-five delegates to the 1787 Convention and the ninety-odd members of the First Congress. But they became supreme law only after being ratified by hundreds of convention delegates and legislators in the states—and arguably it is their understanding of what they were approving, not that of the framers, that we ought to respect.

Justice Brennan has a different idea of the role that history should play in jurisprudence. Rather than recover the “static meaning” that the Constitution had “in a world that is dead and gone,” judges must trace the distance between the framers’ time and our own, and then apply the great underlying principles of the Constitution to the modern problems that our litigious society asks the courts to resolve. And while judges should ordinarily defer to the expressed will of the legislature, they cannot make majority rule the only basis of decision. For within the larger scheme of our system the great duty of the judiciary is to protect individual and minority rights against improper actions by popular majorities.

HOW SHOULD AN INFORMED AND REASONABLY IMpartial citizen respond to these claims? The great difficulty is that the Constitution does not tell us how to resolve disputes over its meaning. Nowhere does it explicitly endorse the idea of judicial review, the doctrine that gives the judiciary the special function of protecting the Constitution against violations by other branches of government—by Congress, the President, or the states. Nowhere does it say whether later interpreters should follow their best understanding of the original intentions of the framers and ratifiers of 1787-1791 (or 1865—1868, in the case of the critical Civil War amendments), as Attorney General Meese proposes, or whether they should seek to apply its general principles to new realities, as Justice Brennan argues in response. Nowhere does it tell us whether we should read what scholars call the “silences” of the Constitution as freeing us to interpret the document as we see fit or as withholding from the judiciary the broad power that its detractors insist the judiciary has usurped.

In all that has been written on this subject in recent months, little has been said about the historical Constitution itself. Vet one cannot talk about original intent without taking history far more seriously than the current disputants have so far done. That is precisely why the approach of the Constitution’s bicentennial may serve an unexpectedly useful purpose. Because the debate between Meese and his critics may remain academic until we learn whether our aging justices will outlast our aging President, perhaps the bicentennial offers a convenient occasion to turn the discussion back to its eighteenth-century roots—to ask how and why the Constitution was made, and even how its framers thought it should be interpreted. And by the same token, the existence of serious controversy over the meaning of the Constitution may prevent next year’s celebration from degenerating into the kind of pageant that the new patriotism otherwise promises it will become.

Founding Father

ONE, PROOF OF THE DANGERS OF ALLOWING LAWyers to meddle with history can be found in the efforts that both Attorney General Meese and Professor Laurence Tribe, a leading liberal scholar at Harvard Law School, have already made to enlist James Madison on their respective sides of the current controversy. In what are virtually textbook examples of “lawoffice history,” Meese and Tribe both manage to get the point half right. The Attorney General rightly notes that Madison believed that judges should interpret the Constitution according “to the sense in which [it] was accepted and ratified by the nation,”in 1788, while Professor Tribe correctly observes that Madison held that the intentions of the framers “could never be regarded as the oracular guide in expounding the Constitution.” Neither cites, much less tries to resolve, the apparent contradiction in Madison’s opinions.

Unlike his good friend Thomas Jefferson—who had the habit, Madison once wrote, of “expressing in strong and round terms, impressions of the moment” — Madison liked to savor his distinctions. The one he sought to develop here is among his most puzzling. And because that is the case, his attempt to explain how the Constitution should be interpreted offers a usefully ambiguous starting point for asking what an appeal to original intent means in practice.

Madison’s distinction can be restated in this way: In trying to interpret the Constitution a judge should ignore whatever he may learn of the original intentions of its authors, the delegates to the 1787 Convention, but he should defer to the popular understanding of the Constitution that prevailed at the time of its ratification. The distinction has one great advantage. It is consistent with the idea that the Constitution derives its force from the consent of the governed. (One can ask, though, whether a consent given in 1788 expresses popular sovereignty more effectively than the “inevitably arbitrary wills of an elite few” justices can claim to do today.)

Yet if Madison’s position has its logic, it creates as many problems as it solves. Why should we assume that those who merely ratified the Constitution grasped its meaning better than those who wrote it—or those who have since seen how it works in practice? The debates of 1787-1788 elicited a range of opinions about its likely effects. Some of these predictions were quite sensible, but others nicely illustrate what the late Richard Hofstadter called “the paranoid style in American politics.” And how can we possible discover what the anonymous voters and obscure local leaders who were passing judgment on the Constitution thought? Did they read The Federalist with the same insight that students of political theory now bring to it? And if we treat The Federalist as our best evidence of how the Constitution was understood—as so many commentators have done—do we not find ourselves again relying on the intentions of the framers, since Madison and Alexander Hamilton wrote all but a handful of its eighty-five essays?

Madison’s objections to giving any weight to the framers’ intentions present a more serious and perhaps fatal problem with a jurisprudence of original intention. Simply put, the appeal to original intent cannot be justified on its own terms. There is no reason to believe that the framers thought their intentions should guide later interpretations of the Constitution. They never considered publishing the journal of their deliberations, which would at least have provided a curious public with a skeletal history of the evolution of the text. Nor did Madison allow his notes of the debates at Philadelphia to appear in his lifetime—even though disputes over the meaning of the Constitution arose as soon as the new government was organized, in 1789.

There are many ways to set about examining the current controversy from the distant vantage point of the framers. But the one that perhaps best reveals the range of possibilities, difficulties, and ironies that the quest uncovers is to view the making of the Constitution from the perspective of Madison, the framer who is now regarded, as Michael Kammen has noted, “as the most profound, original, and far-seeing among all his peers.” He is, in fact, the member of the Convention whose intentions we know best, and whose ideas now dominate our own understanding of the founding.

Madison the man hardly cut a commanding figure. He lacked the stern charisma of Washington, the restless ambition of John Adams, and the engaging charm of Jefferson. He was less cosmopolitan than Franklin, less bold than Hamilton. Thomas Paine was a far more pungent writer, and Patrick Henry a far more stirring orator. What set Madison apart and enabled him to exercise a special influence of his own was the relentlessly logical intellect that he brought to bear on all public questions. Once he was done examining an issue, even his opponents found it hard to avoid viewing it from the perspective he had fashioned.

Madison had just turned twenty-four when the Revolutionary War broke out, in April of 1775. Three years had passed since the completion of his studies at the College of New Jersey (now Princeton University), but Madison remained a directionless young man with little ambition. In our own time, he would have been a natural candidate for graduate school.

The Revolution changed all that. Slowly Madison found in public life the commitment and fulfillment that the management of a plantation or a legal practice could never have provided. From the moment of his election to the Orange County Committee of Safety, in late 1774, until the end of his presidency, in 1817, his active involvement in politics never flagged. And even in retirement, his concern with the Republic and res publica—public affairs—continued unabated, until his death in 1836 marked the passing of the last of the Revolutionary patriarchs.

For a number of reasons, virtually every attempt to explain the Constitution centers on Madison. To begin with, he played the most critical role throughout the course of events that led to the writing, adoption, and amendment of the Constitution. From the moment he entered the Continental Congress, in 1780, no one was more actively engaged in the efforts first to ratify and then to amend the Articles of Confederation, the country’s original federal charter. When the delegates to the Federal Convention assembled in May of 1787, the ideas that Madison had incorporated in the fifteen-point Virginia Plan set their basic agenda. He quickly assumed a leading role during the debates that followed, forcing his colleagues to view the problems of republican government from the elevated heights he had scaled. And once the Constitution was ratified, Madison (now in Congress) took the lead in drafting the amendments that eventually formed the Bill of Rights.

Even more important, our understanding of what the framers intended is largely derived from Madison: from his speeches and writings as well as from the invaluable notes he kept of the debates at Philadelphia. The most profound statements of the theory of the Constitution, scholars agree, are found in his contributions to The Federalist, especially in papers 10 and 51, the seminal texts of American political science.

But most important, the issues that Madison struggled with were, finally, the same issues that we are being asked to consider today. Can the rights of individuals and minorities be safely trusted to the will of democratic majorities within the states, or will they be better protected by the presumably more enlightened officials of the national government? Can any constitution enumerate all the rights and liberties that deserve protection? How much latitude may judges exercise in interpreting the Constitution, and what weight are they obliged to give to the intentions and understandings of its adopters? Madison pondered the first two of these questions in great detail in 1787-1788, and the third in the years to follow, especially as he monitored the growth of judicial power that the great Chief Justice John Marshall did so much to foster—originally in the landmark 1803 decision Marbury v. Madison (the suit that most clearly established the principle of judicial review).

It is easy enough for both sides of the current controversy over constitutional interpretation to appeal to Madison’s authority. Like today’s liberals, Madison doubted that individual rights could be safely left to the judgment of democratic majorities. But like the conservatives, he had serious reservations about the political capacity of the judiciary. Indeed, when, in 1821, he criticized the Marshall Court for “mingling with their judgments pronounced, comments & reasonings of a scope beyond them,” he might just as well have been attacking Professor Ronald Dworkin’s argument that judges should decide cases not according to constitutionally sanctioned rights but rather in the light of broad principles of moral philosophy.

For the historian, however, the deeper challenges are to explain the complexity and nuance of Madison’s thought, and—still deeper—to recapture what was experimental, and thus tentative and uncertain, in everything that he and his colleagues sought to accomplish. It is this self-consciously experimental nature of the Convention that, ultimately, makes the search for its definitive “original intention” so problematic.

“The vices of the political system”

MADISON CAME TO PHILADELPHIA THE BEST PREpared of any of the delegates. He had spent the preceding months diagnosing what he called “the vices of the political system of the United States” and reviewing the history of the great republican confederacies, both ancient and modern. His readings, he recalled, had failed to satisfy his curiosity about “the process, the principles, the reasons, and the anticipations”—in a word, the intentions—“which had prevailed in the formation of . . . the most distinguished Confederacies,” and this frustration led him to keep a detailed record of the debates. But what Madison set out to preserve, once a quorum appeared, on May 25, 1787—eleven days late—was the fate of his own intentions. For he approached the Convention in the grip of a great intellectual passion, with the same exultation that in 1776 had led John Adams to rejoice at being “sent into life at a time when the greatest lawgivers of antiquity would have wished to live.”

Three sets of major issues that Madison knew the delegates would act on should be familiar to everyone who can recall school lessons on the Constitution. First, to free the union from its “imbecilic” dependence on the good will of the states, the new government required independent power to make and execute its own laws and to raise its own revenues. It proved far easier to forge agreement on these points than on a second set of issues, which involved balancing the conflicting interests that the delegates represented: small states and large, slave states and free, northern merchants and southern planters.

But the time and energy that the prolonged maneuvers over these claims commanded might better have been devoted to a third set of issues: how to divide power among the three independent branches of the new government. Here the delegates drew their major lessons from the new constitutions that most of the states had written at the time of independence. The central feature of these constitutions—as Gordon Wood has shown in his brilliant study The Creation of the American Republic, 1776-1787—was their concentration of power in the legislatures, and especially in the lower houses. How to prevent these sovereign bodies from running roughshod over both the state constitutions and the two weaker branches of government—the executive and the judiciary—had emerged as the great question of American constitutionalism.

Most of the framers shared Madison’s concern about the failings of the state constitutions. What set Madison apart was the depth of his analysis of both the source of the problem and its potential solution. More than any of his colleagues, he believed that the time had come to rescue not only the union from the states but also the states from themselves. It was in his brilliant assessment of the problems of republican government within the states that Madison most directly challenged the position that conservatives affirm today—namely, that claims to individual and minority rights not explicitly protected in the text of the Constitution are better left to the judgment of democratic majorities within the states than to the arbitrary will of federal judges.

The simple truth, he thought, was that incompetent lawmakers were passing too many laws, and that these poorly drawn acts were in turn being revised or repealed before anyone knew how well they were working. More alarming still, the “injustice" of the laws that had been adopted since 1776 suggested that the will of the majority could not be regarded as “the safest guardian both of public good and private rights.” Self-interested or “factious” majorities within the assemblies or among the people at large were giving free rein to their impulses, undeterred by any of the moral restraints that one might hope would check such “vicious” behavior—honor, or a sense of the public good, or even religion, whose effects on public policy Madison strongly distrusted.

What kinds of rights did Madison fear that these majorities would violate? Some of his concerns would warm the heart of the most ardent Republican. In 1787 Madison was particularly anxious to protect the rights of property against unjust laws arising from “the lower orders" of society. Alarmed by the passage of paper-money laws and by Shays’ Rebellion (an uprising of debtor farmers in Massachusetts), he foresaw a day when “power will slide into the hands” of “those who will labour under all the hardships of life, and secretly sigh for a more equal distribution of its blessings”—when, for example, the number of Virginia tenant farmers, which was growing, would be sufficient to pass laws breaking up the great estates of Madison’s own class.

Yet the rights of property hardly exhausted his fears. Madison was no less intent on protecting the rights of religious dissenters and nonbelievers against even the weak forms of established religion that still survived in six of the states. In 1785 he had led the opposition to a Virginia bill to levy taxes to support all “teachers of the Christian religion”—a measure that, in the context of the time, can be fairly equated with the kind of non-discriminatory aid to religion in general which many conservatives now argue that the establishment clause of the First Amendment was not meant to prohibit. In his view, the private exercise of religion was to be entirely free from both regulation and support by the government.

Rights of property and conscience, as well as the body of civil liberties that had come to be recognized as part of the Anglo-American legal tradition, were thus among Madison’s central concerns. But what is perhaps most striking about his thinking on this subject is that he strongly resisted the idea that any constitution or bill of rights could ever fully identify the entire range of liberties that deserved protection. Bills of rights had been part of many of the state constitutions of 1776; Madison’s first notable action in public life had been to secure an amendment to the most famous of these, the Virginia Declaration of Rights. But by 1787 he and virtually every other framer of the Constitution believed that such statements, however carefully drawn, had little worth. Bills of rights were not self-enforcing; they were mere “parchment barriers” (he later wrote Jefferson) that “overbearing majorities in every state” had repeatedly violated, and that “an infinitude of legislative expedients” could always find ways to circumvent.

How to prevent majorities within the community or the legislature from violating individual and minority rights was thus Madison’s overriding concern in 1787, and it was reflected in virtually every major facet of his constitutional thought.

The great discovery that Madison carried to Philadelphia was that laws destructive of private rights were far less likely to be enacted in an extended national republic than within the smaller spheres of the states. Because a national republic would embrace so many diverse and shifting interests, the danger of the wrong kinds of coalitions forming and enduring among the community at large would be greatly reduced. And the new Congress, he predicted, would consist of legislators far more enlightened and scrupulous than the petty demagogues who controlled the state assemblies. (This, of course, was the theory that took its mature form in The Federalist papers 10 and 51.)

But Madison was prepared to trust congressmen only so far. From his ow n experience of state government he had concluded that “the real source of danger to the American constitutions” was the “powerful tendency in the legislature to absorb all power into its vortex.” What he accordingly feared in 1787 was that both the national executive branch and the judiciary would prove not too strong but too weak. Alone, neither could resist the legislature, which could claim to speak for the will of the community. To give the executive branch and the judiciary the influence and political strength they separately lacked, Madison proposed that they should be allied in a Council of Revision. This Council would “examine" every act of Congress before it took effect, and its “dissent" would “amount to a rejection” unless Congress overrode this veto.

This remedy would secure the national government against “the mischiefs of faction,” Madison believed, but within the smaller spheres of the states, which would still conduct much of the ordinary business of government, majorities rooted in economic interests or religion or other passions would continue to violate private rights. To deal with this residual danger to liberty Madison formulated his most radical proposal: to give the national government a “negative” (or veto) over every state law, to be exercised in the first instance by the Council of Revision, with Congress (or perhaps just the Senate) retaining a right of final judgment. Of all the intentions that Madison voiced at the Convention, this was the most original and, to his mind, the crucial one. Armed with such a power, the union could protect itself against the interfering laws that the states might pass. But more important, the negative would further enable the national government to act as a “dispassionate and disinterested umpire in disputes” within each of the states, curbing “the aggressions of interested majorities on the rights of minorities and of individuals.”

It is difficult to see how Attorney General Meese can invoke the true original intentions of the “Father of the Constitution” to confirm his opinion about the proper place of the judiciary. The idea that claims to individual rights could be safely left to the judgment of majorities—especially state majorities—runs directly contrary to everything that Madison thought at the time the Constitution was adopted. The Madison of 1787 would also have opposed the current conservative cry that judges should simply decide cases, not make policy. Far from isolating the judiciary from the political arena, the Council of Revision was intended to bring it into the lawmaking process itself as an advisory body to the legislature. Madison sought thereby to improve the quality of law at its source, so that American legal codes would gain “the perspicuity, the conciseness, and the systematic character” that they otherwise might lack. The judiciary would then actively protect “the community at large” against “those unwise and unjust measures which constituted so great a portion of our calamities.” Thus Madison, who hoped that the judiciary would act “to restrain the legislature from encroaching on the other co-ordinate departments, or on the rights of the people at large; or from passing laws unwise in their principle, or incorrect in their form,” was not an unqualified defender of legislative supremacy.

Nor, finally, can it be said that the principal author of the Bill of Rights believed that judges should protect only those rights that the text of the Constitution explicitly recognized. On the contrary, Madison, James Wilson, and other federalists took seriously the argument that the constitutional recognition of particular rights would imply “that those rights which were not singled out” would be rendered “insecure.” Madison in particular feared that “a positive declaration of some of the most essential rights could not be obtained in the requisite latitude.” Under political pressure and at the urging of Jefferson, Madison finally (but grudgingly) admitted that a bill of rights might help, over time, to instill in the people a greater respect for “the fundamental maxims of free government.” But even as he was shepherding the first amendments through Congress, in 1789, he privately described them (amazingly enough) as a “nauseous project,” required only tor expedient reasons of politics.

Doubtless, Madison would look askance at many of the specific claims of “rights” asserted in recent litigation. It is difficult to imagine him using the First Amendment to protect pornography or invalidating state prohibitions of contraception on the grounds that (in the famous words of Justice William O. Douglas) “penumbras, formed by emanations” from the Bill of Rights established “zones of privacy” into which public authority could not intrude. Equally important, Madison and many of the framers might well have been staggered by the range of remedies that the courts have devised and imposed after finding that individual and minority rights have indeed been violated. It is, after all, one thing to say that judges should simply void laws that clearly infringe upon such rights. But when judges move further and provide practical remedies for the redress of past wrongs—by mandating schemes for hiring minority workers, say, or making teacher assignments to alleviate the effects of segregation—they may act in political and administrative capacities that outrun both the boundaries of judicial competence and the notions of separation of powers to which the framers were so deeply attached.

On balance, however, Madison’s larger concerns lend greater support to Justice Brennan than to Attorney General Meese. His general theory did invite judges and legislators alike to be generous, not frugal, in defining and defending the range of personal rights. Moreover, one can readily project many of his eighteenth-century concerns to the civil-rights issues that lie at the core of the activist jurisprudence of the past three decades. What, after all, was the edifice of Jim Crow segregation that the Court struck down, if not a classic example of how self-interested majorities within the states could trample on the rights of minorities? One could easily argue, too, that Madison would support the “one man—one vote" decisions of the early 1960s: he endorsed the regular reapportionment of legislative seats as early as 1785. And almost certainly Madison would find “nauseous” the current conservative claim, backed only by the most tendentious and selective scholarship, that the First Amendment permits non-discriminatory federal support of religion.

The fact that the critical modern steps in favor of desegregation, reapportionment, and separation of Church and State originated with the judiciary would probably have surprised Madison, but only because he expected that judges would command so little influence and respect. He would not, I think, be disappointed with the results. In each of these areas, expanded rights and liberties have had to be wrenched from the control of groups whose behavior arguably confirmed his prediction that “wherever there is an interest and power to do wrong, wrong will generally be done.” And for better or worse, it is the difficulty of convincing “factious majorities” to do right that suggests why judges cannot confine themselves to invalidating wrongful laws and regulations but often must also go ahead to devise the further remedies that plaintiffs seek. Doubts about the political competence of the judiciary must be weighed, in other words, against doubts about the good faith of legislators and their constituents.

Judicial Review

MOST OF THE FRAMERS AT PHILADELPHIA SHARED Madison’s doubts about the value of a bill of rights, and his innovative proposals fora Council of Revision and a veto over state laws also enjoyed strong support in debate—notably from the Scottish-born James Wilson, who was the leading legal mind at the Convention. The fact remains that neither the Council nor the veto was adopted—and for that reason Madison left the Convention deeply disappointed with its results. Even before it adjourned, he wrote to Jefferson that the Constitution would fail to “prevent the local mischiefs which everywhere excite disgusts against the state governments.”In a second letter, written in late October, he provided an elaborate justification for the veto on state laws, and again predicted that the Constitution would prove “materially defective,” because without that veto power the new government could not protect private rights. Only four weeks later, however, Madison published Federalist 10, which explained why the national government would be free of all those vices that its author privately felt (but did not say) would continue to plague the states.

For the serious student of “original intent,” Madison’s early disillusionment with the results of the Convention raises awkward questions. To begin with, consider how it affects our reading of Federalist 10. One could argue that this essay still deserves greater weight than Madison’s earlier ideas, since The Federalist describes what was actually adopted, not simply proposed. But then one has to ask whether a public essay written largely to answer objections to the Constitution merits more attention than its author’s private and presumably more honest assessment of the Constitution’s failings.

Other problems remain even after a status has been assigned to Federalist 10. What weight can we assign to Madison’s ideas when his colleagues rejected the conclusions to which he thought they led? Can we even ask whether Madison has been overrated, if not as a thinker, then at least in terms of his final influence on the Constitution?

Yet in fact even in defeat Madison’s intentions are highly relevant to the current controversy over judicial power. For it was in rejecting the Council of Revision and the veto on state laws that the framers most clearly delineated the role of the judiciary in the constitutional system.

Until very recently the hoary question of whether the framers intended the judiciary to exercise the power of judicial review had ceased to be a subject of active scholarly interest. But at some point controversy over the scope of judicial review and the specific uses to which it has been put naturally raises questions about its legitimacy, and these in turn prove difficult to address without considering the evolution of judicial power since 1787. This is not a new concern, provoked only by the oratory of Attorney General Meese. In fact, it was Alexander Bickel, a leading scholar at Yale Law School, who raised most of the critical issues in his seminal book of 1962, The Least Dangerous Branch (whose title was taken from Alexander Hamilton’s classic definition of judicial review in Federalist 78).

Judicial review, one should also note, is a power with multiple uses. At the narrowest, it may simply be the means by which the judiciary defends itself against efforts by the other branches to interfere with its own particular functions. More broadly, judicial review works to protect the Constitution against improper acts by Congress or the President, and the entire federal government against interference by the states. Finally—and what has been the true source of controversy over the past three decades—judicial review has enabled the judiciary to recognize and advance claims of individual rights against the actions of both the federal government and the states.

Madison’s original notion of judicial power had rested on three fundamental assumptions. First, the judiciary by itself would lack the political strength to resist the improper acts of either Congress or the state legislatures. Second, even if the courts did overturn wrongful laws, their rulings would often come too late to undo or remedy the injuries to private rights that would already have been committed. That was why the Council of Revision was to act before a law took effect. But, third, Madison also believed that the final right to judge whether a national or state law was constitutional should belong not to the judges but to Congress. He may have hoped that Congress would rarely override the Council of Revision, but he was too much a republican to allow the least accountable branch of the government to have the final say on the Constitution.

Here at last conservatives can find in Madison’s original position support for their attacks on judicial supremacy. But, ironically, it was precisely on this point that the majority of the Convention turned Madison’s logic and his reservations about judicial power upside down. They believed that the influence and independence of the judiciary would be reduced, not enhanced, if it acquired the advisory functions he proposed. The fatal defect in the Council of Revision was that it would impair the ability of the judiciary to check the other branches. “Judges ought to be able to expound the law as it should come before them,” Rufus King argued, “free from the bias of having participated in its formation.” They argued against the veto over state laws on the grounds that neither Congress nor the Council could possibly review the enormous volume of legislation that the states would submit. In its place—and without debate—they put the supremacy clause, which bound the state judiciaries to enforce the federal Constitution and laws over conflicting state statutes.

By rejecting Madison’s proposals, then, the delegates expressed their confidence in the capacity of the national and state judiciaries alike. But more than that, they revealed that they expected judges to exercise the power of judicial review. “As to the constitutionality of laws, that point will come before the judges in their proper official character,” Luther Martin flatly stated. “In this character they have a negative on the laws.” Martin, the original author of the supremacy clause, may have hoped that only state courts would review state laws; but his colleagues expected that appeals involving federal questions would fall to the national judiciary.

Such statements leave one wondering how anyone could ever have doubted whether judicial review was part of the original constitutional design. True, in 1787 the idea that courts could overturn laws was still a novelty, realized in only a handful of state cases to which little attention had yet been paid. Elbridge Gerry was not announcing a selfevident fact when he informed the Convention that “in some states the judges [have] actually set aside laws as being against the constitution.” Even so, the delegates repeatedly spoke as if they simply presumed that the federal judiciary would be able to overturn both state and national laws.

Yet, remarkably, the framers never discussed judicial review systematically or even directly. Virtually all of their comments on the subject were uttered during the debate over the Council of Revision—in other words, over a proposal that was defeated, not the one that was adopted. They defined neither the scope of judicial review nor the basis on which judges would test whether laws were constitutional—the issues that lie at the crux of the current controversy. Resisting the idea that the Constitution should include a comprehensive list of private rights, they never considered whether the federal courts were restricted to protecting only the handful of rights that the Constitution explicitly mentioned. The best we can say is that the delegates considered the various uses of judicial review—ranging from simple self-protection of the judicial function to the voiding of state and federal laws— without definitively determining how or when it might be exercised.

One final point deserves emphasis. Where Madison would have explicitly given Congress the final word on constitutionality, the majority implicitly allowed Congress to override only presidential vetoes, not judicial decisions. Madison conceded as much in October of 1788. By failing to state how disputes over “expounding” the Constitution would be resolved, he noted, the Convention by default left that judgment to the courts, simply because they were the last to act and thus to determine whether a law would be executed. This result, Madison complained, “was never intended, and can never be proper"—but inadvertently or otherwise, it seemed to be part of the Constitution.

This revealing comment again reminds us that the relation between the meaning of the Constitution and the intentions of its authors can never be taken for granted. But more than that, it encourages us to ask how the framers could have treated so vital a matter as judicial review in so seemingly careless a fashion. And this in turn can lead to a more realistic, balanced, and even critical appraisal of the great work of 1787—to a view that still celebrates “the miracle at Philadelphia” but restores the framers, with all their wisdom and political skill, to the imperfect historical context in which they acted.

In theory, the need to balance the legislature should have led the delegates to focus their greatest intellectual efforts on designing the two weaker departments. It should have led them to explore, for example, how the Supreme Court was to exercise its novel and potentially momentous power of judicial review, and to define the nature of the “executive power” that Article II vested in the President. But here, where they had to be most inventive, the delegates also proved most tentative. In practice they shied away from sustained discussions of the substance of executive and judicial power, perhaps because they felt so much more comfortable with the familiar subject of legislative power. And even when they could no longer avoid the subject of the other two branches, much of their discussion centered on issues of election, appointment, and tenure. We can plot in excruciating detail “the tedious and reiterated discussions” (as Madison described them) that led to the establishment of the electoral college, but when it comes to explaining why the Convention finally allowed the President to share the power of treaty-making with the Senate, we have to rely on scraps of debate and circumstantial evidence to account for one of the most historic decisions the framers took.

Some scholars try to close such gaps in what the framers said by attributing to them ideas derived from what it is believed they read in the writings of the Enlightenment, or by tracing their concerns to precedents in the British Constitution. Obviously, the framers did not act in an intellectual vacuum. Yet what is most apparent in their deliberations is not how much they learned from Old World sources but how little they depended on outside authorities once they had set about designing the new government. (Madison once dismissed appeals to such luminaries as Locke and Montesquieu as “a field of research which is more likely to perplex than to decide.”) Only in the crudest sense did the Convention model the branches of the new government on their British counterparts. The Senate was not a House of Lords, and the President was to be neither a constitutional monarch nor a prime minister. And the idea of an independent judiciary took a distinct form in America precisely because our Constitution was to be a concise written charter, not a complex and fluid mass of statutory law, common-law precedent, royal prerogative, and custom such as together made up the British Constitution.

This intense self-awareness of the originality of their achievement stands out strongly in the writings of the framers and their contemporaries, and remains compelling after two centuries. Originality is not perfection, however. Because fears of disunion and domestic turbulence did exert a powerful influence in the late 1780s, the framers and their supporters were eager to describe the Constitution as a document designed to last “for ages to come.” Yet having learned so much from the experience of a mere decade of self-government, and having celebrated their ability to do so, they would, I believe, find it incredible that later generations would not improve upon their discoveries, would not indeed understand the meaning of the Constitution and the liberties they designed it to protect better than they had.

Amid all the platitudes and heroic accolades to which we will be subjected during the celebrations ahead, an awareness of the imperfections and ambiguities of the Constitution or of the limits of the framers’ vision will not be easy to maintain. We can better understand what the framers accomplished by grasping the problems that they failed to resolve than by attributing to them a perfect knowledge and foresight that they never pretended to possess. □