James Madison, the Majority,
and Judicial Supremacy
  Who Trusts Whom?

Part of James Madison's great legacy to us is his interpretation of the Constitution; yet, today many misunderstand Madison's viewpoint.  They have read Madison's Federalist 10 and 51 (in the back of every U.S. government textbook) and think that Madison is opposed to majority rule and afraid of representative democracy.

Madison was in fact an avid supporter of Republican government, "in which the majority rule the minority."  In 1787, shortly before the convention, he writes George Washington that the majority "alone have the right of decision."  Fifty years later he writes that the "characteristic rule" of a republican system is that the "major will is the ruling will."  He fears that the majority might oppress the minority, but he worried about this in the same way that he worried that an elite in power might oppress the majority.  No government is perfect:

The problem to be solved, is not what form of Government is perfect, but which of the forms is least imperfect: and here the general question must be between a republican government, in which the majority rule the minority, and a government in which a lesser number or the least number rule the majority.

Madison preferred the republic "as all of us agree."

His commitment to majority rule does not allow him to cede final authority to interpret the Constitution to the judiciary. In a speech to the House of Representatives in 1789 he said:

I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial; but I beg to know upon what principle it can he contended that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments.

Twenty years later he wrote Jefferson:

In a government whose vital principle is responsibility, it never will be allowed that the Legislative and Executive Departments should be compleatly subjected to the Judiciary, in which that characteristic feature is so faintly seen.

Jefferson also supported majority rule and judicial supremacy, and did so with more vehemence, as we might have expected.  During the trial of Aaron Burr for treason, President Jefferson wrote:

I observe that the case of Marbury v. Madison has been cited, and I think it material to stop at the threshold the citing that case as authority, and to have it denied to be law.

These quotes below are intended as introduction to Madison's thoughts on majority rule and judicial supremacy.  They are offered in more or less chronological order from earliest to latest.  Anyone who is interested in Madison's thoughts would benefit from reading the complete documents from which the quotes are drawn.  If you know other quotes relevant to Madison and majority rule or judicial supremacy, please suggest them to us (devin@bents.net).

Additional quotes are available at this site in Great Quotations of James Madison and a History/Life of James Madison in his own words.

There is no maxim, in my opinion, which is more liable to be misapplied, and which therefore, needs more elucidation than . . . that the interest of the majority is the political standard of right and wrong.  Taking the word "interest" as synonymous with "ultimate happiness," in which sense it is qualified with every necessary moral ingredient, the proposition is no doubt true.  But taking it in the popular sense, as referring to immediate augmentation of property and wealth, nothing can be more false.  In the latter sense, it would be the interest of the majority in very community to despoil and enslave the minority of individuals; and in a federal community, to make a similar sacrifice of the minority of component States.  In fact, it is only re-establishing, under another name and a more specious form, force as the measure of right . . . .
Letter to James Monroe, Octr 5th, 1786 (Madison, 1865, I, pages 250-251)

I think myself that it will be expedient . . . to lay the foundation of the new system in such a ratification by the people themselves of the several States as will render it clearly paramount to their Legislative authorities.
Letter to Thomas Jefferson, March 19, 1787 (Madison, 1865, I, page 285)

The great desideratum, which has not yet been found for Republican Governments, seems to be some disinterested and dispassionate umpire in disputes between different passions and interests in the State.  The majority, who alone have the right of decision, have frequently an interest, real or supposed, in abusing it.  In Monarchies, the Sovereign is more neutral to the interest and views of different parties; but unfortunately, he too forms interests of his own, repugnant to those of the whole.
Letter to George Washington, April 16, 1787 (Madison, 1865, I, page 288-289)

To give the new system its proper validity and energy, a ratification must be obtained from the people, and not merely from the ordinary authority of the Legislatures.
Letter to George Washington, April 16, 1787 (Madison, 1865, I, page 290)

The people at large was in his opinion the fittest in itself [to select the Executive].  It would be as likely as any that could be devised to produce an Executive Magistrate of distinguished Character. The people generally could only know & vote for some Citizen whose merits had rendered him an object of general attention & esteem.  There was one difficulty however of a serious nature attending an immediate choice by the people.  The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election, on the score of the Negroes.  The substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections.
Constitutional Convention, July 20, 1787 (Madison, 1900-1910, IV, pages 7-8),

Among the numerous advantages promised by a well Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.  The friend of popular governments, never finds himself so much alarmed for their character and fate, as when he contemplates this dangerous vice.
Federalist, no. 10

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote: it may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution.
Federalist, no. 10

[A] pure democracy by which I mean, a Society consisting of a small number of citizens, who assemble and administer the Government in person, can admit of no cure for the mischiefs of faction.
Federalist, no. 10

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.
Federalist, no. 10

In the next place, as each Representative will be chosen by a greater number of citizens in the large than in the small Republic, it will be more difficult for unworthy candidates to practice with success the vicious arts, by which elections are often carried; and the suffrages of the people being more free, will be more likely to center on men who possess the most attractive merit, and the most diffusive and established characters.
Federalist, no. 10

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests. the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression.  Extend the sphere, and you take in a greater variety of interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.
Federalist, no. 10

In the extent and proper structure of the Union, therefore, we behold a Republican remedy for the diseases most incident to Republican Government.
Federalist, no. 10

[W]e may define a republic to be . . . a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior . . .
Federalist, no. 39

Ambition must be made to counteract ambition.  The interest of the man must be connected with the constitutional rights of the place.  It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature?  If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.  In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
Federalist, no. 51

As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.  In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?
Federalist, no. 63

In the State Constitutions, and, indeed, in the Federal one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally lasr in making the decision, it results to them, by refusing or not refusing to exercise a law, to stamp it with its final character.  This makes the Judiciary Department paramount to the legislature, which was never intended and can never be proper.
Remarks on Mr. Jefferson's "Draught of a Constitution for Virginia," sent to Mr. John Brown, Kentucky, October, 1788 (Madison, 1865, I , page 194)

That there be prefixed to the constitution a declaration --

That all power is originally vested in, and consequently derived from the people.

That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

Proposing Bill of Rights to House, June 8, 1789

The prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.

It may be thought all paper barriers against the power of the community are too weak to be worthy of attention . . .  yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one mean to control the majority from those acts to which they might be otherwise inclined.
Proposing Bill of Rights to House, June 8, 1789

I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial; but I beg to know upon what principle it can he contended that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments.  The Constitution is the charter of the people in the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them.  If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.
Speech before House of Representatives, Elliot's Debates (in the American Memory collection of the Library of Congress), June 16, 1789, pages 382-383

[W]hatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution.  As the instrument came from them it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions.  If we were to look, therefore; for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.
Speech before House of Representatives, Farrand's Records (in the American Memory collection of the Library of Congress), April 6, 1796, page 374

[T]he right of electing the members of the government constitutes more particularly the essence of a free and responsible government.  The value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively.
Madison's Report on the Virginia Resolutions (in the American Memory collection of the Library of Congress), 1799-1800

[W]hat a lesson to America and the world is given by the efficacy of the public will, when there is no army to be turned against it.
Letter to Thomas Jefferson, February 28, 1801 (Madison, 1865, II, page 171)

In a government whose vital principle is responsibility, it never will be allowed that the Legislative and Executive Departments should be compleatly subjected to the Judiciary, in which that characteristic feature is so faintly seen.
Letter to Thomas Jefferson, June 4, 1810 (Madison, 1865, II, page 479)

I am not unaware that my belief, not to say knowledge, of the views of those who proposed the Constitution, and, what is of more importance, my deep impression as to the views of those who bestowed on it the stamp of authority, may influence my interpretation of the Instrument.
Letter to Henry St. George Tucker, December 23, 1817 (Madison, 1865, III , page 54)

It has been the misfortune, if not the reproach, of other nations, that their governments have not been freely and deliberately established by themselves.  It is the boast of ours that such has been its source, and that it can be altered by the same authority only which established it.  It is a further boast, that a regular mode of making proper alterations has been providently inserted in itself.
Letter to Judge Roane, September 2, 1819 (Madison, 1865, III , page 145)

A Government like ours has so many safety-valves, giving vent to overheated passions, that it carries within itself a relief against the infirmities from which the best of human Institutions cannot be exempt.
Letter to General La Fayette, November 25, 1820 (Madison, 1865, III , pages 189-191)

Such is the plastic facility of legislation, that, not withstanding the firm tenure that judges have on their offices, they can, by various regulations, be kept or reduced within the paths of duty; more especially with the aid of their amenability to the legislative tribunal in the form of impeachment.  It is not probable that the Supreme Court would long be indulged in a career of usurpation opposed to the decided opinions and policy of the legislature.

Nor do I think that Congress, even seconded by the judicial power, can, without some change in the character of the nation, succeed in durable violations of the rights and authorities of the states.  The responsibility of one branch to the people, and of the other branch to the legislatures of the States, seem to be, in the present stage. at least, of our political history, an adequate barrier.
. . .
But what is to control Congress when backed, and even pushed on, by a majority of their constituents? . . .  Nothing within the pale of the Constitution, but sound arguments and conciliatory expostulations addressed both to Congress and to their constituents.
Letter to Judge Roan, May 6, 1821 (Madison, 1865, III, page 219)

As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character . . . [T]he legitimate meanings of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be . . . in the sense attached to it by the people in their respective State Conventions, where it received all the authority which it possesses.
Letter to Thomas Ritchie, September 15, 1821 (Madison, 1865, III, page 228)

If . . . the powers of the General Government be carried to unconstitutional lengths, it will be the result of a majority of the States and of the people, actuated by some impetuous feeling, or some real or supposed interest, overruling the minority, and not of successful attempts by the General Government to overpower both.
Letter to John G. Jackson, Dec. 27, 1821 (Madison, 1865, III, pages 243-247)

The will of the nation being omnipotent for right, is so for wrong also; and the will of the nation being in the majority, the minority must submit to that danger of oppression as an evil infinitely less than the danger to the whole nation from a will independent of it.
Letter to Thomas Jefferson, Feby 17, 1825 (Madison, 1865, III, page 483)

Power, wherever lodged, is liable, more or less, to abuse.  In governments organized on Republican principles it is necessarily lodged in the majority; which sometimes from a deficient regard to justice, or an unconscious bias of interest, as well as from erroneous estimates of public good, may furnish just ground of complaint to the minority.  But those who would rush at once into disunion as an asylum against offensive measures of the General Government, would do well to examine how far there be such an identity of interests, of opinions, and of feelings, present and permanent, throughout the states individually considered, as, in the event of their separation, would in all cases secure minorities against wrongful proceedings of majorities.  A recurrence to the period anterior [prior] to the adoption of the existing Constitution, and to some of the causes which led to it, will suggest salutary reflections on this subject.
Letter to Thomas Lehre (not sent), August 2d, 1828 (Madison, 1865, III, page 635-6)

[M]en cannot be justly bound by laws, in making which they have no share.
Letter to Joseph C. Cabell, January 5, 1829 (Madison, 1865, IV, page 2)

[T]he Constitution of the United States was created by the people of the United States composing the respective states, who alone had the right . . .
Outline, September, 1829 (Madison, 1865, IV, page 19)

The right of suffrage is a fundamental article in republican constitutions.  The regulation of it is, at the same time, a task of particular delicacy.  Allow the right exclusively to property, and the rights of persons must be oppressed.  The feudal polity alone sufficiently proves it.  Extend it equally to all, and the rights of property or the claims of justice may be overruled by a majority without property or interested measures of injustice.  Of this abundant proof is afforded by other popular governments and, is not without examples in our own, particularly in the laws impairing the obligations of contracts.
Notes on Suffrage, written at different periods after his retirement from public life (Madison, 1865, IV, page 22)

In a just and free government . . . the rights both of property and of persons ought to be effectually guarded.  Will the former be so in the case of a universal and equal suffrage?  Will the latter be so in the case of a suffrage confined to the holders of property?
Notes on Suffrage, written at different periods after his retirement from public life (Madison, 1865, IV, page 22)

Under every view of the subject, it seems indispensable that the mass of the citizens should not be without a voice in making the laws which they are to obey, and in choosing the magistrates who are to administer them. 
Notes on Suffrage, written at different periods after his retirement from public life (Madison, 1865, IV, page 27)

No notice has been taken . . . of the fact that the present charges of usurpations and abuses of power is not that they measures of the Government violating the will of the constituents, as was the case with the alien and sedition acts, but that they are measures of a majority of the constituents themselves, oppressing the minority through the forms of the government.  This distinction would lead to very different views of the topics under discussion.  It is connected with the fundamental principles of Republican Government, and with the question of the comparative dangers of oppressive majorities from the sphere and structure of the General Government and from those of the particular Governments.
Letter to E. Everett, April, 1830. (Madison, 1865, IV, page 72-73 )

As the people of the United States enjoy the great merit of having established a system of Government on the basis of human rights, and of giving it a form without example, which, as they believe, unites the greatest national strength with the best security for public order and individual liberty, they owe to themselves, to their posterity and to the world, a preservation of the system in its purity, its symmetry, and its authenticity.

Supplement to the letter of November 27, 1830, to A. Stevenson (Madison, 1865, IV, page 138)

The two vital characteristics of the political system of the United States are, first, that the Government holds its powers by a charter granted to it by the people; second, that the powers of government are formed in two grand divisions -- one vested in a Government over the whole community, the other in a number of independent Governments over its component parts.  Hitherto charters have been written grants of privileges by Governments to the people.  Here they are written grants of power by the people to their Governments.
Supplement to the letter of November 27, 1830, to A. Stevenson (Madison, 1865, IV, pages 138-139)

Another error has been in ascribing to the intention of the Convention which formed the Constitution an undue ascendancy in expounding it.  Apart from the difficulty of verifying that intention, it is clear, that if the meaning of the Constitution is to be sought out of itself, it is not in the proceedings of the body that proposed it, but in those of the State Conventions, which gave it all the validity and authority which it possesses.
Letter to N.P. Trist, December, 1831 (Madison, 1865, IV, page 211)

The only distinctive effect between the two modes of forming a constitution by the authority of the people, is, that if formed by them as embodied into separate communities, as in the Constitution of the United States, a dissolution of the constitutional compact would replace them in the condition of separate communities, that being the condition in which they entered into the compact; whereas, if formed by by the people as one community, acting as such by a numerical majority, a dissolution of the compact should reduce them to a state of nature, as so many individual persons.
Letter to Daniel Webster, March 15, 1833 (Madison, 1865, IV, page 294)

Those who framed and ratified the Constitution believed that, as power was less likely to be abused by majorities in representative government than in democracies, where the people assemble in mass, and less likely in the larger than in the smaller communities under a representative government, inferred also, that by dividing the powers of government, and thereby enlarging the practicable sphere of government, unjust majorities would be formed with still more difficulty, and be, therefore, the less to be dreaded; and whatever may have been the just complaint of unequal laws and sectional partialities of the majority Government of the United States, it may be confidently asserted that the abuses have been less frequent and less palpable than those that disfigured the administrations of State Government, while all the effective power of Sovereignty were separately exercised by them.  If bargaining interests and views have created majorities under the federal system, what, it may be asked, was the case in this respect antecedent to this system, and what, but for this, would now be case in the State governments?
To ______ _____ [Majority Government], 1833 (Madison, 1865, IV, pages 328-329)

It has been said that all government is an evil.  It would be more proper to say that the necessity of any government is a misfortune.  This necessity, however, exists; and the problem to be solved, is not what form of Government is perfect, but which of the forms is least imperfect: and here the general question must be between a republican government, in which the majority rule the minority, and a government in which a lesser number or the least number rule the majority.  If the republican form is, as all of us agree, to be preferred, the final question must be, what is the structure of it that will best guard against precipitate counsels and factious combinations for unjust purposes, without a sacrifice of the fundamental principle of republicanism?
To ______ _____ [Majority Government], 1833(Madison, 1865, IV, page 329)

As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and, consequently, that in the event of irreconciliable interpretations, the prevalence of the one or the other department must depend upon the nature of the case, as receiving its final decision from the one or the other, and passing from that decision into effect, without involving the functions of any other.

It is certainly due from the functionaries of the several departments to pay much respect to the opinions of each other; and, as far as official independence and obligation will permit, to consult the means of adjusting differences and avoiding practical embarrassments growing out of them, as must be done in like cases between the different co-ordinate branches of the Legislative department.

But notwithstanding this abstract view of the co-ordinate and independent right of the three departments to expound the Constitution, the Judicial department most familiarizes itself to the public attention as the expositor, by the order of its functions in relation to the other departments; and attracts most the public confidence by the composition of the tribunal.

It is the Judicial department in which questions of constitutionality, generally find their ultimate discussion and operative decision . . .
To Mr. ______ _____ , 1834(Madison, 1865, IV, pages 349-350)

The amount of this modified right of nullification is, that a single State may arrest the operation of a law of the United States, and institute a process which is to terminate in the ascendency of a minority over a large minority in a republican system, the characteristic rule of which is that the major will is the ruling will.
Nullification, 1835-'6 (Madison, 1865, IV, page 410)

It has been asked whether every right has not its remedy; and what other remedy exists, under the Government of the United States, against usurpations of power, but a right in the States individually to annul and resist them.

The plain answer is, that the remedy is the same under the Government of the United States as under all governments, established and organized under free principles.  The first remedy is in the checks provided among the constituted authorities; that failing, the next is in the influence of the ballot-box and hustings; that again failing, the appeal lies to the power that made the Constitution, and can explain, amend, or remake it.  Should this resort also fail, and the power usurped be sustained in its oppressive exercise on a minority by a majority, the final course to be pursued by the minority must be a subject of calculation, in which the degree of oppression, the means of resistance, the consequences of its failure, and the consequences of its success, must be the elements.
Nullification, 1835-'6 (Madison, 1865, IV, page 417)

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