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:
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:
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 (firstname.lastname@example.org).
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 . . . .
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.
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.
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
|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),
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
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
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.
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.
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
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.
In the extent
and proper structure of the Union, therefore, we behold a Republican
remedy for the diseases most incident to Republican Government.
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 . . .
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.
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?
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.
That there be prefixed to the constitution a declaration --
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.
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.
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
[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
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.
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.
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.
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.
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.
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.
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
. . . 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.
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.
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.
be justly bound by laws, in making which they have no share.
Constitution of the United States was created by the people of the United
States composing the respective states, who alone had the right
. . .
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.
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?
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.
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.
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
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.
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
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
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?
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?
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.
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.
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.
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