SPEAKER_00 0:10

Hello and welcome to the Jefferson Madison Letters. I'm Charlie Jett, coming to you from our studio in beautiful downtown Chicago. One letter at a time, we're following the 50 year friendship that helped build a republic. It is October 17, 1788. James Madison is thirty-seven years old in New York, serving out the last days of the dying Confederation Congress, a body that can barely raise a quorum. Thomas Jefferson is forty five, an ocean away in Paris, America's minister to France. Ten months have passed since Jefferson's ringing letter. A Bill of Rights is what the people are entitled to. And since then everything has changed. The Constitution is ratified. The new government starts up in March. The great question left hanging is the one Jefferson raised. Will there be a declaration of rights? Madison has been thinking hard about it, and what he sends across the Atlantic is one of the most honest letters in the whole correspondence. He doesn't flatter his friend. He doesn't pretend to agree. He lays out point by point why he has, quote, never thought the omission a material defect. This is Madison at his most characteristic, cool, systematic willingness to follow an argument into uncomfortable territory, even when the man at the other end of the letter stands on the other side of it. And as he writes, nothing is settled. Down in Virginia, Patrick Henry's men control the legislature and are about to do everything in their power to keep Madison out of the new government entirely. Whether the Constitution gets a bill of rights, whether Madison will have any hand in the answer, no one knows, least of all Madison. So let us sit with him at his desk, the ink still wet, the question not yet decided even in his own mind. A note before I read What follows is an extract. The letter opens with congressional business and speculation about the first elections. I'll pass over that. The heart of it is Madison's reasoning on a Bill of Rights, and every word of that is Madison's verified against founders online. He begins by stating his real position which is subtler than the simple opposition. He writes My own opinion has always been in favour of a Bill of Rights, provided it be so framed as to not imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any reason than it is anxiously desired by others. I have favored it because I suppose it might be of use, and if properly executed, could not be of disservice. Lukewarm at best in favor, but mainly by his own admission, because the other people want it. Then he gives his reasons, four of them, and the fourth is the one that history remembers. He writes Experience proves the inefficacy of a bill of rights on those occasions when its control is most needed. Repeated violations of those parchment barriers have been committed by overbearing majorities in every state. Parchment barriers words on paper that a determined majority simply tramples. And then Madison makes the point that his is real contribution, an insight that cuts deeper than Jefferson's. He writes Wherever the real power in a government lies, there is the danger of oppression. In our governments, the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of government contrary to the sense of its constituents, but from acts in which the government is the mere instrument of the major number of the constituents. Read that again, because it's one of the most important sentences in American political thought. The danger, Madison says, isn't a tyrant on a throne, it's the majority itself, using the government as its instrument against the minority. He even tells Jefferson gently that they watch different doors. Your mind, he says, has contemplated abuses of power issuing from a very different quarter. Jefferson fears the ruler. Madison fears the mob. But here is what is easy to miss. Madison doesn't end in pure skepticism. He asks his own question What use then, it may be asked, can a Bill of Rights serve in popular governments? And then he answers it. Over time, he says, those declared truths, and I quote acquire by degrees the character of fundamental maxims of free government woven into the national sentiment. Listen closely and you will hear a careful man leaving the door open. So what does Madison assume? He assumes that paper is weak and power is strong. Madison's whole frame is hard headed realism. A right is only as good as the force willing to defend it, and a written guarantee by itself commands no force. He has seen it firsthand. He tells Jefferson that, and I quote, in Virginia I have seen the Bill of Rights violated in every instance where it has been opposed to a popular current. So he assumes the burden of proof falls on the person claiming that words on parchment will hold. It's the assumption of a man who has set in legislatures and watched majorities do as they please. So what does Madison fear? He fears the tyranny of the majority, his great theme, the engine of Federalist No. ten in private letter form. But notice the precise mechanics of the fear. In a monarchy, he explains, the people's latent force stands ready against the king, so a charter of rights gives them a banner to rally to. In a republic the majority is the power. Political and physical force vested in the same hands, so when the majority itself turns oppressor, there is no larger force left in the community to appeal to. That's what makes the fear so cold. It isn't that rights will be attacked. It's that in a popular government there may be no one to call. So what do they take for granted that we no longer do? That nothing would reliably enforce it. Weighing what could give a Bill of Rights teeth, Madison never reaches for the answer we reach for first, the courts. Judicial review existed in 1788 mostly as an argument. A few state courts had asserted it, and Hamilton had sketched it in Federalist seventy eight just months before, but it was not yet settled as a fact of American life, and Marvury versus Madison lay fifteen years off. We take for granted that the Bill of Rights holds because judges enforce it. Madison in this letter does not count on that, which is exactly why the parchment looks so flimsy in his hands. The remedy existed on paper, but it had not yet been proven in power. So what's missing? The judiciary, and Jefferson will name it. In this whole letter, Madison never mentions the courts as the force that could stand behind the parchment. Jefferson notices the gap. In his reply next spring he will tell his friend directly that among the arguments for a declaration of rights, Madison has omitted the one that weighs most with him, and I quote, the legal check which puts it into the hands of the judiciary. Now, honesty requires a caveat, the legend usually skips. What actually moves Madison to champion amendments is really politics as much as philosophy, promises made in Virginia's ratification fight, and a hard congressional campaign in which he pledges to his own voters. Baptists, anxious for religious liberty among them, that he will carry amendments into the first Congress. He makes that pledge before Jefferson's reply can reach him. But Jefferson's letter gives the pledge its intellectual spine, an answer to Madison's own strongest objection. The politician was already committed. The philosopher still needed a reason. Jefferson supplies it. Well it takes a particular kind of honesty to argue hard against the thing you'll later be famous for building. Madison wasn't being contrary. He was demanding a reason. Show me why this will work, not just why it sounds noble. He found the weak point in the idea of a bill of rights, and he refused to paper it over. The Republic is lucky he did. An objection stated that clearly can be answered. Well that's our fifth letter. Next time Jefferson's reply of march fifteenth, seventeen eighty nine, where he tells Madison he has omitted the argument that weighs most with him when he writes The Legal Check which puts it into the hands of the judiciary. The answer to parchment barriers turns out to be judges, and with that, the Bill of Rights begins to grow its teeth. Today's letter is verified against Founders Online, the National Archives edition of the Founders' Papers James Madison to Thomas Jefferson, October 17, 1788, in the Papers of James Madison, Volume 11. You can read every word for yourself. Well, thank you for joining us. I'm Charlie Jett, and until next time, stay informed, stay engaged, and stay curious.