faithfully and responsibly, Madison goes out of his way to highlight one way in which the Constitutional Convention did in fact depart at least from “the tenor” of their commission: “Instead of reporting a plan requiring the confirmation of the legislatures of all the States, they have reported a plan which is to be confirmed by the people, and may be carried into effect by nine States only” (Federalist 40). Madison takes special note of this point despite the fact that it is both “the most plausible,” and therefore potentially the most damaging, objection to his argument, and also “the least urged in the publications which have swarmed against the convention.” This objection, according to Madison, “has been in a manner waived by those who have criticized the powers of the convention,” and therefore requires minimal response. Why, one might ask, would Madison make a point of raising what he considers the strongest available objection to his argument when it has already been waived by his opponents? Since doing so appears to run directly counter to ordinary rhetorical considerations, Madison’s raising of the ratification point here serves as an especially clear indication of its vital importance to his own understanding of the legitimacy of the Convention’s ultimate product. Madison’s persistent emphasis upon the necessity of ratification by the people at large is closely connected with one of the most important “broad threads of consistency” in his thought as a whole: his commitment to “the republican principle” or popular sovereignty (Gibson 2002, 335). This commitment, which is perhaps the clearest and most widely recognized unifying principle of Madison’s political thought, drives Madison’s famous determination to find “a republican remedy for the diseases most incident to republican government” (Federalist 10). Since the national government needs to be a real government in order to accomplish its acknowledged goals, and a real government needs to be “republican” if it is to conform to “the genius of the people of America,” “the fundamental principles of the Revolution,” and “the
capacity of mankind for self-government,” the national government needs to be republican (Federalist 39). The first principle of republicanism—the “republican principle”—, moreover, is popular sovereignty. On Madison’s understanding, then, it is absolutely “essential” that the national government rest ultimately on the original sovereign authority of “the great body of the people,” and thus that ratification be clearly obtained from this very “people.” Madison’s application of the principle of popular sovereignty to the government formed by the Constitution—through his insistence on ratification by “the people” rather than the states—constitutes in many ways the root and touchstone of his early “nationalism.” A republican national government founded on popular sovereignty required a national people correlative to it, and the ratification process would serve as the mechanism by which such a people would be crystallized (whether or not a national “society” or people had existed in any sense before). For this reason Madison freely refers to “the people of America” in Federalist 39, and simply to “the people” in a national sense throughout his writings and speeches around this time. Madison’s first proposed amendment to the Constitution, to take one notable example, states that “all power is originally vested in, and consequently derived from, the people.” This proposed amendment goes on to assert that the government formed by the Constitution “ought to be exercised for the benefit of the people,” who possess “an indubitable, unalienable, and indefeasible” right of revolution (Myers 1981, 164). By proposing to explicitly link the new Constitution to the political philosophical principles of the Declaration of Independence, Madison clearly signals the profoundly “nationalist” character of the government formed by this Constitution—the general government rests squarely and solely on a national political society or a national “people.”
“states” ratified the Constitution (234, Madison’s quotation marks). In affirming that the “states” ratified the constitution in the sense according to which “states” = “people” (of the states), Madison is in effect rendering his statements in the Resolutions at least partially synonymous with his statements emphasizing the importance of popular ratification around the time of the Constitutional Convention. By introducing even more complexity and nuance into his already subtle handling of the riddle of the framers in Federalist 39, and providing the most charitable reading possible of his earlier Resolutions, Madison thus attempts to recover his balance on the tightrope. In addition to this careful repositioning, in the Report Madison also elaborates upon the concept of “the people of the states” and its role in his thought in a way that further indicates its coherence and importance. Shifting his focus clearly to “the people” side of this concept and hearkening back to his early “nationalist” arguments, Madison argues that “where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort….” He says further that “It adds to the stability and dignity, as well as to the authority, of the Constitution, that it rests on this legitimate and solid foundation” of consent by the sovereign people of the states (Myers 1981, 234). The parties to the constitutional compact must be “the states” only in the fourth sense of the term, as “the people of the states,” in order to make sense of Madison’s assertion that there is no tribunal superior to their authority. Madison’s statement that the Constitution enjoys “stability,” “dignity,” “authority,” legitimacy, and solidity as a result of this foundational compact also echoes his criticism of the Articles of Confederation in the “Vices,” a criticism largely based on the character of the Articles as a compact between states in the first two or three senses of the term to the exclusion of the fourth.
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