Schwartz on May 30, 1787 @WisconsinLaw

David S. Schwartz, University of Wisconsin Law School, has published May 30, 1787 as Univ. of Wisconsin Legal Studies Research Paper No. 1801. Here is the abstract.

In Federalist 39, James Madison characterized the proposed Constitution as "partly national, and partly federal." The federalism debates that have dominated constitutional law and politics from the beginning of the republic to the present play out the tensions between, and relative weights of, these "national" and "federal" elements. The history of U.S. constitutional politics is one in which the nationalism of the Philadelphia Convention was rhetorically downplayed in the ratification debates, and then significantly rolled back by erstwhile Anti-Federalists who became ascendant after the election of 1800. The dominance of the Anti-Federalist-influenced Jeffersonian Republican party after 1800 habituated our constitutional order to an ideology of federalism that, to this day, exaggerates the Constitution's original commitment to its "partly federal" character. Our understanding of U.S. federalism and its history is doomed to incompleteness, if not distortion, without a proper account of the evolution the word "federal" in our constitutional order, from its origin as a descriptor of the decentralized Confederation system to a descriptor of today's predominantly centralized national government. This essay offers a first step toward a semantic or etymological history of the word "federal," by describing and analyzing the first significant appearance of the words "national" and "federal" at the outset of the Philadelphia Convention. I argue that, to the Framers, "federal" referred to the Confederation system that they believed was a failure. On the first day of substantive debate "May 30, 1787" the Framers decisively rejected a "federal" constitution in favor of a "national" one. This decision guided their deliberations for the rest of the Convention, only to be swept under the rug by the rhetorical strategy of the pro-ratification "Federalists."

Download the article from SSRN at the link.

Koppelman on Madison's Non Sequitur: A Comment on Vincent Phillip Muñoz, Religious Liberty, and the American Founding @AndrewKoppelman

Andrew Koppelman, Northwestern University School of Law, is publishing Madison's Non Sequitur: A Comment on Vincent Phillip Muñoz, Religious Liberty and the American Founding in American Political Thought: A Journal of Ideas, Institutions, and Culture. Here is the abstract.

Vincent Phillip Muñoz’s book, Religious Liberty and the American Founding, is a marvelous piece of historical reconstruction, bringing to vivid life the intellectual world of the framers. He gives the reader a sharply etched picture of their natural rights philosophy. But their world is not ours, and they relied on premises that we cannot share and which cannot now be the basis of public law. Today, when courts interpret the First Amendment’s religion clauses, they must articulate a rationale that will not be unintelligible or repulsive to many citizens. The interpretation also ought not to inflame the very divisions that the clause was intended to prevent. The fundamental problem is that the framers believed both that we are endowed with natural rights and that the government is incompetent and untrustworthy to adjudicate religious questions. Their natural rights philosophy, however, ultimately rested on religious foundations if it rested on anything at all. Muñoz offers us a valuable window into the world of Madison. But that world is not our world. If religious liberty is to remain a shared ideal in contemporary America, it will have to be under a different description than the one that Muñoz skillfully recreates. It must not presuppose theistic premises that many Americans reject.

Download the article from SSRN at the link.

Aimonetti on Colonial Virginia: The Intellectual Incubator of Judicial Review @JustinAimonetti @UVALaw

Justin W. Aimonetti, University of Virginia School of Law, has published Colonial Virginia: The Intellectual Incubator of Judicial Review at 106 Virginia Law Review 765 (2020). Here is the abstract.

What is the historical origin of judicial review in the United States? Although scholars have acknowledged that British imperial “disallowance” of colonial law was an influential antecedent, the extant historical scholarship devoted to the mechanics of disallowance is sparse. This limited exploration is surprising. Not unlike modern judicial review, the guiding question imperial overseers considered when disallowing colonial legislation was whether it was ‘repugnant’ to the laws of England. In response, this Note’s first contribution is to explain the process by which the so-called repugnancy principle was enforced against inferior colonial law. Even fewer scholars have attempted to connect the ultimate repugnancy assessment to the historical context surrounding disallowed colonial laws. This Note’s second contribution is thus to augment existing literature by exploring colonial Virginia’s specific experience under imperial supervision. Among the scholars that have explored the connection between colonial disallowance and the origins of judicial review, some have documented the link between imperial legislative review of colonial legislation and James Madison’s proposed constitutional solution to the problem of unrestrained state legislatures in the aftermath of independence. What remains to be explored, however, is how Madison explicitly drew on the history of imperial review of colonial Virginia’s laws as he argued at the Constitutional Convention for a federal power to “negative” state laws. Accordingly, this Note’s third contribution is to reveal that the historical practice of imperial review in Madison’s native Virginia animated his proposed solution to check the unrestrained popular will of state legislators. Although his proposed solution was ultimately rejected at the Convention, that rejection was conditioned on the judiciary possessing the power of judicial review. By exposing this hidden link, this Note demonstrates that colonial Virginia rightly may be regarded as the intellectual incubator of judicial review.

Download the article from SSRN at the link.

Tillman on the 1792 Madison-to-Pendleton Letter: A Time for Reconsideration, Reflection, and Response? @SethBTillman

Seth Barrett Tillman, National University of Ireland, Maynooth, Faculty of Law, has published The 1792 Madison-to-Pendleton Letter: A Time for Reconsideration, Reflection, and Response? Here is the abstract.

In a 1995 Stanford Law Review article, Professors Akhil Reed and Vikram David Amar argued that the U.S. Constitution’s Succession Clause and its “officer”-language does not permit legislative officer succession. They concluded that the nation’s first succession act—passed by the Second Congress—which put the Senate’s and House’s presiding officers in the line of presidential succession—was unconstitutional. The modern presidential succession statute also puts legislative officers in the line of succession, and so the Amars concluded that it too was unconstitutional. In reaching their conclusion, they opined on the Succession Clause’s history, text, purpose, etc. The largest part of their argument was of a more intuitive variety: i.e., argument based on so-called “constitutional structural.” The Amars supported their intuition, in substantial part, by claiming James Madison shared their intuition. Or, to put it more precisely, they renewed an argument which, according to the Amars, was first put forward by James Madison in a letter to Edmund Pendleton (hereinafter the “Madison-to-Pendleton Letter”), and then they claimed Madison as high authority for the position they put forward. My object in this short paper is limited: it is to show why the Amars were wrong to rely on James Madison. The argument they put forward is their intuition, and not Madison’s. The Amars’ argument may be right on the merits (i.e., legislative officer is unconstitutional) and it may be wrong (i.e., the first succession act and its modern successor are both constitutional)—but the Amars’ claiming the mantle of Madison in support of their position is and always was largely historical error. The intellectual stakes here are not only reasonably high, but also peculiarly timely. The meaning of the Constitution’s Succession Clause and its “officer”-language is always two heartbeats away from contemporary relevance. That issue is always of at least some concern, even absent hype and the more idiosyncratic concerns of cloistered academics. Today, the presidential succession issue is relevant not merely because we are two heartbeats away, but also because we are one impeachment and one heartbeat away from applying the 1947 Presidential Succession Act—which puts the two presiding legislative officers, i.e., the Speaker of the House and the Senate President Pro Tempore (“SPPT”), in the line of succession. Finally, the Amars’ article and the Madison-to-Pendleton Letter are the key (modern) article and the key (premodern) historical evidence discussed in the academic debate over the Constitution’s “office”-language. That debate no longer resides exclusively in the halls of the academy—it has moved into the federal courts which are now litigating civil claims brought against the President under the Foreign Emoluments Clause. That latter clause applies to “Person[s] holding any Office of Profit or Trust under [the United States].” How we resolve or should resolve the issue of whether the President holds an office of profit or trust under the United States will depend, in part, on the rightness (or wrongness) of the Amars’ analysis, the meaning of the Succession Clause and its “officer”-language, and the meaning of the Madison-to-Pendleton Letter. Finally, I add that over ten years ago, I hypothesized that: “There is some reason to believe that [in the Madison-to-Pendleton Letter] all Madison was doing [was] reporting prior debate. Viz., each of ‘Madison’s’ four arguments in his letter to Pendleton had already been expressed on the floor of the House by speakers other than Madison in prior debate.” Today, I intend to make that claim good.

Download the article from SSRN at the link.

Halberstam on the History and Philosophy of Federalism(s) in the United States and Europe @UMichLaw

Daniel Halberstam, University of Michigan Law School, has published 'A People for Certain Purposes': On the History and Philosophy of Federalism(s) in the United States and Europe as U of Michigan Public Law Research Paper No. 619. Here is the abstract.

This brief guide to the philosophy of federalism provides an original analysis distinguishing the flurry of competing conceptual accounts of federalism in the United States and Europe. It draws out and critically examines the theories of sovereignty and federalism of James Madison, James Wilson, John C. Calhoun, Hans Kelsen, and Carl Schmitt, all with a view to understanding the kind of federation we have in the European Union today.

Download the article from SSRN at the link.

Macias on Utilitarian Constitutionalism: A Comparison of Bentham & Madison @SIUSchoolofLaw

Steven J. Macias, Southern Illinois University School of Law, is publishing Utilitarian Constitutionalism: A Comparison of Bentham & Madison in volume 11 of the NYU Journal of Law & Liberty (2018). Here is the abstract.

Jeremy Bentham (1748–1832), the father of modern utilitarianism, had much in common, ideologically, with James Madison (1751–1836), the father of the U.S. Constitution. This Article is an attempt to bridge the literature on the two figures and to show that knowledge of Bentham’s constitutional theory is useful in understanding the intellectual environment that produced the U.S. Constitution. Although lawyers’ knowledge of Bentham might be limited to catchphrases such as, “nonsense upon stilts,” or concepts associated with modern surveillance technology like the Panopticon (his design for a prison), Bentham was a serious legal and political philosopher. His interests extended to the United States, so much so, that he engaged in serious analysis of the U.S. Constitution and communicated with leading American politicians, including Madison, Benjamin Franklin, John Jay, Aaron Burr, and John Quincy Adams. This Article demonstrates the similarities of thought between Bentham and Madison and argues that the Constitution is best viewed as a document inspired by, and compatible with, the rationalism represented by English utilitarianism.

Download the article from SSRN at the link.

Lowe on Madison's Importance To the American Constitutional Tradition

Jessica Lowe, University of Virginia School of Law, is publishing Thank You, Mr. Madison in volume 53 of the Tulsa Law Review. Here is the abstract.

Alexander Hamilton may be fashionable these days, but according to two recent books, it is James Madison whom Americans should thank for — well, for just about everything. Michael Klarman’s The Framers’ Coup and Jeremy Bailey’s James Madison and Constitutional Imperfection persuasively demonstrate Madison’s centrality to the American constitutional tradition. They are very different books. Klarman’s is a sweeping and much-needed narrative history of the entire founding period, from the troubles of the 1780s through the ratification of the first amendments to the Constitution. Bailey’s is a work of political science, and focuses primarily on what came after — on the whole Madison, especially his later career — examining the difference between Madison and what has become known as “Madisonian Constitutionalism.” Both books provide critical additions to the multidisciplinary literature on the American founding, and in their own ways critique the idea of constitutional veneration Were the Framers elitist? Certainly. But maybe, instead of lamenting the Framers’ coup, we should say thank you, James Madison. Madison’s example provides an important caution about realizing the boundaries between the ideal and the possible. Today, America still has Madison’s imperfect Constitution — perhaps made more perfect by some developments in history, less perfect by others and by the passage of time. Here, a Hamiltonian solution might (ironically for an essay about Madison) be instructive. Not Hamiltonian in the 1790s sense, but in the sense of the popular twenty-first century musical: a reappropriation of America’s founding to seize the many things that it does have to say to twenty-first century America. Americans’ reverence for the founding provides a kind of shared glue, a common narrative, for the nation. This is, of course, also a problem, given the way that, as Klarman lays out, that narrative has been used at various points in American history. But perhaps the solution to that could be not to cede the ground, but to find a way to enthusiastically reclaim it.

Download the article from SSRN at the link.

Olree on Madison's Vision of Religious Liberty

Andy G. Olree, Faulkner University School of Law, has published A Madisonian Vision of Religious Liberty at 7 Faulkner Law Review 19 (2015). Here is the abstract.

James Madison thought and wrote a great deal about issues of religious liberty. Some of his stances are well-known, while others ought to be better known. His theory of religious liberty resists easy categorization by the partisans in our current debates over church and state. While Madison himself claimed to stand for “total separation” of religion and government, his stances differed in important ways from those of many of today’s “strict separationists.” At the same time, he firmly rejected state attempts to support religious truths and practices — even broad “Judeo-Christian” ones — as well as state attempts to acknowledge the privileged place of religion in our history and culture. This invited essay, written for the 2015 Faulkner Law Review Symposium on “The Meaning of Religious Liberty in the Anglo-American Tradition,” summarizes and documents Madison’s understanding of religious liberty, with specific reference to concepts such as religious toleration, natural rights of conscience, religious exemptions in law, and establishments of religion. Along the way, the essay draws attention to points of agreement and disagreement between Madison and John Locke.

Download the essay from SSRN at the link.

Ferejohn and Hills on Publius's Political Science

John A. Ferejohn and Roderick M. Hills, Jr., both of NYU Law School, have published Publius's Political Science. Here is the abstract.

“Publius,” the collective author of The Federalist, was not just a polemicist and normative theorist but also a political scientist. We argue that the political psychology, and institutional predictions that comprise The Federalist are best understood as political science, because the predictions could be – and were – revised in light of “that best oracle of wisdom, experience” (Federalist 15). After outlining some “maintained hypotheses” about human nature that undergird The Federalist, we describe three respects in which James Madison revised, in light of post-1790 experience, Publius’ institutional predictions. The Federalist pressed the view that the national legislature would be the most powerful branch, requiring the Constitution to bolster the implied powers of the executive, limit states’ power, and dampen direct popular participation by the People themselves. After the successes of Hamilton’s initiatives demonstrated the potency of the Presidency during the 1790s, Madison radically revised all three of these institutional predictions, calling for limits on implied presidential powers, a broad construction of states’ reserved authority, and, most dramatically, popular participation through disciplined political parties. Rather than view these revisions as abandoning the political theory of The Federalist, we argue that Madison and Hamilton both retained Publius’s foundational normative assumptions, while revising their predictions about institutional behavior in light of the empirical evidence – precisely the proper response of an empirically oriented political scientist. In this sense, Hamilton’s and Madison’s post-ratification breach was less a retreat by either from Publius’ political theory and more a confirmation of the status of The Federalist as, in part, political science revised in light of political experience.

Download the article from SSRN at the link.

The History of the Full Faith and Credit Clause

Charles M. Yablon, Cardozo School of Law, has published Madison's Full Faith and Credit Clause: A Historical Analysis at 33 Cardozo Law Review 125 (2011). Here is the abstract.

The Defense of Marriage Act (DOMA) has created a new wave of interest in the Full Faith and Credit Clause and its apparent contradictions. Important recent scholarship has shown that American lawyers in the eighteenth century often viewed the term “full faith and credit” as referring to an evidentiary rule. This interpretation ameliorates, but does not actually resolve, the apparent conflict between the first sentence of the Clause, which seems to create a mandatory rule of sister state deference, and the second sentence of the Clause, which seems to give Congress plenary power to abrogate that rule. Rather than seek a chimerical general understanding of the Clause, this Article focuses on James Madison to provide a new and strikingly different historical account of the creation of the Full Faith and Credit Clause. It shows how the Full Faith and Credit Clause was part of a broader plan by Madison and others to curb the ability of states to take acts that were harmful to one another and to the nation, particularly those which, by interfering with vested contract and property rights, jeopardized the country’s economic well-being. Madison purposely sought a Clause that would embody a vague but dynamic deference obligation that could be increased by Congress over time.


Madison’s actions and writings regarding the Full Faith and Credit Clause strongly suggest that he would have considered congressional actions to weaken or abrogate existing deference obligations not just unwise and unjust, but unconstitutional. Unlike powers which appropriately belonged to the federal legislature irrespective of how they were exercised, Madison’s justification for the powers granted under the second sentence of the Clause was based on how Madison expected those powers to be used, namely, to “provide for the harmony and proper intercourse among the states.” What emerges from this analysis is a picture of the Full Faith and Credit Clause that has significant similarities to the “one way ratchet” interpretation which has been used to argue that the DOMA is unconstitutional, but one in which the presumed constraints on congressional action are the product of national interest, political virtue, and natural law as well as the language of the Full Faith and Credit Clause.

Download the article from SSRN at the link.

James Madison's Legal Writing

Thomas Berg, Julie A. Oseid, and Joseph A. Orrino, all of the University of St. Thomas, St. Paul/Minneapolis School of Law, have published  The Power of Rigor: James Madison as a Persuasive Writer as University of St. Thomas Legal Studies Research Paper No. 11-16.

This article is the third in a planned series of articles about the writing qualities and habits of our most eloquent American Presidents. The focus of all the articles is on the lessons modern legal writers can learn from the Presidents. James Madison’s rigor, in both his approach to problems and in his resulting written work, was famous; it was this rigor that contributed to the persuasiveness of his writing. Even though he was not a lawyer, Madison had all the best writing habits that lawyers should emulate – attention to audience, careful preparation, and attention to consequences.

Download the paper from SSRN at the link.


Madison’s rigor, in both his approach to problems and in his resulting written work, was famous; it was this rigor that contributed to the persuasiveness of his writing. “The great little Madison” may have lacked physical presence and personal charisma, but he overcame those limitations to become one of the most influential public figures in American history by cultivating his particular strengths. He had an analytical mind that he developed to see and clearly express arguments, counterarguments, and distinctions. He had, despite poor health, an appetite for work that he used to out-prepare others. And he had a sensitivity to surrounding circumstances that he cultivated to address his audience’s concerns and to envision the practical consequences of various actions.



The article considers why rigor is an essential writing quality, reviews Madison’s life and writing habits, and analyzes three examples of Madison’s writings (The Memorial and Remonstrance, Federalist No. 10, and a letter from Madison to Thomas Jefferson).