Reviewed by Scott Douglas Gerber, Ohio Northern University Pettit College of Law. Email: s-gerber [at] onu.edu.
Kevin R. C. Gutzman, Professor of History at Western Connecticut State University, has written a fine single volume political biography of James Madison. There are a lot of books about Madison – too many, perhaps – but Gutzman provides a splendid account of Madison’s long and distinguished public life. The principal lessons I took from Gutzman’s tome are how much Madison contributed to the history of the United States and how modest Madison was about his contributions. I already knew the first lesson. The second was interesting to learn. Gutzman concludes his book by comparing Madison’s grave to that of his mentor Thomas Jefferson:
One finds at Madison’s grave that here, as in so much else, he differed markedly from his great friend who now lies buried twenty miles away. There is no stone inscribed with Madison’s preferred titles from among the long list he had earned, including Co-Author of the Constitution, Author of the Bill of Rights, Co-Author of The Federalist, Co-Author of the Virginia Declaration of Rights, Founder of the Republican Party, Author of the Virginia Resolutions of 1798 and Report of 1800, Rector of the University of Virginia, President of the American Colonization Society, and Sponsor of the Virginia Statute for Religious Freedom – not to mention all the political offices he held, mostly to great effect (p.362).
It is an impressive feat that Gutzman manages to cover so much ground in 363 pages of text. His book is divided into eight chapters. Several of the chapters describe events that are very familiar to students of the American Founding: Madison’s leading role in the Philadelphia Convention of 1787 that produced the U.S. Constitution (chapter 3), his magnificent contributions to The Federalist during the ratification debates of 1787-1788 (chapter 4), and his shepherding of the Bill of Rights through the First Congress in 1789 (a substantial portion of chapter 6). To borrow a lawyer’s term of art, some of the other chapters served to “refresh my recollection” about events that I had not thought seriously about since college, such as Madison’s supervision of the Louisiana Purchase as Jefferson’s secretary of state, the quagmire during his own presidency that was the War of 1812, and the groundbreaking ceremonial role that his wife Dolley played as First Lady of the United States, both during the presidency of the widower Jefferson and, of course, of Madison himself. The fact that so much of Gutzman’s story is a familiar one is not meant as a criticism: Gutzman’s goal was to write an effective trade book about Madison and he has succeeded nicely.[*336]
Trade book or not, Gutzman provides fresh insights into several other matters. In chapter 1, for example, he convincingly documents by way of correspondence between Madison and a college classmate the origins and deeply felt commitment Madison had for religious freedom. Gutzman quotes the following from a 1774 letter written by the then twenty-three year old Madison to an equally young Pennsylvania attorney, William Bradford (later the second U.S. Attorney General):
You are happy living in a land where those inestimable privileges are fully enjoyed and public has long felt the good effects of their religious as well as Civil Liberty. Foreigners have been encouraged to settle amg. you. Industry and Virtue have been promoted by mutual emulation and mutual Inspection, Commerce and the Arts have flourished and I can not help attributing those continual exertions of Gen[i]us which appear among you to the inspiration of Liberty and that love of Fame and Knowledge which always accompany it. Religious bondage shackles and debilitates and unfits it for every noble enterprize every expanded prospect. How far this is the Case with Virginia will more clearly appear when the ensuing Trial is made (pp.6-7).
Madison practiced what he preached in religious affairs. At twenty-five, he helped strengthen the Virginia Declaration of Rights guarantee of religious freedom by successfully offering language amending George Mason’s already pro-liberty draft, while in 1785 he published his Memorial and Remonstrance Against Religious Assessments, which Gutzman aptly characterizes as “lay[ing] out the whole American Enlightenment case for religious freedom” (p.44). In 1786 Madison led the effort to ensure passage of the celebrated Statute for Religious Freedom, which disestablished the Church of England in Virginia and denied any claim of state power in religious life. Indeed, Madison’s commitment to religious freedom was manifested throughout his public life, including in the First Amendment of the U.S. Constitution and a February 21, 1811, presidential veto of “an Act incorporating the protestant Episcopal Church in the Town of Alexandria in the District of Columbia.”
Unfortunately, Madison was not as consistent about slavery. Gutzman describes many occasions throughout Madison’s public life in which Madison expressed unease about race relations in the United States, not the least of which was during his long stint as president of the American Colonization Society, an organization devoted to sending free blacks from the United States to Liberia. But like many of his contemporaries, Madison was unwilling to deny himself and his family the benefits that slavery provided to them. Gutzman writes:
Why had Madison not freed his slaves in his will? Because he wanted his wife to enjoy their service for the balance of her life. George Washington, similarly motivated, famously provided in his will that his slaves would be free at Martha’s death. What the father of his country had neglected to notice was that such a provision [*337] gave the people preparing Martha’s meals, giving her water, tending her house, etc., every incentive to desire her death. She had tried to rid herself of the slaves right away. Other members of the Virginia elite, then, avoided providing for their slaves’ freedom at their wives deaths (p.360).
And while Gutzman references a number of Madison’s contemporaries in support of Dolley’s apparent willingness to comply with her husband’s wishes, it is worth mentioning that, as Gutzman puts it, “[w]here Jefferson had been at pains to avoid the image of the slave owner as president, both at the White House and at Monticello, Dolley stationed a slave at each dinner guest’s side” (p.306).
Gutzman likewise does a nice job demonstrating the prominent role Madison played in the early days of the Washington Administration. Not only did Madison give Washington advice on many appointments the first president made, but he wrote Washington’s inaugural, the House response, and Washington’s answers to the House and Senate responses.
Unfortunately, one of the problems of a trade book that tries to cover the entirety of a major figure’s public life in a manageable number of pages is that errors are sometimes introduced. Gutzman’s otherwise fine book is not immune from this problem. To mention two subjects particularly close to my own heart, Gutzman stumbles in his discussion of both the First Congress’s passage of the Bill of Rights and the origins of judicial review in America. With respect to the former, Gutzman nowhere mentions the only original draft of the Bill of Rights known to exist, a draft in Roger Sherman’s handwriting that was discovered among Madison’s papers at the Library of Congress in 1987. It represents not Sherman’s views, but the work of a congressional select committee on which he served, charged with preparing a draft from Madison’s initial proposals. The draft differs from Madison’s initial proposals and the version finally adopted, and these differences provide material increasing our understanding of the Bill of Rights (Gerber, 1996). In short, the draft reveals the danger of interpreting the Bill of Rights solely from Madison’s perspective, which Gutzman fails to appreciate.
Gutzman is also wrong to interpret the origins of judicial review exclusively from the vantage point of the federal courts and the U.S. Supreme Court’s 1803 precedent Marbury v. Madison. As Gutzman puts it, “[w]hile some lower federal courts had already claimed the power of judicial review in previous cases, this was the first time the Supreme Court staked a claim to that power” (p.286). I am flattered that Gutzman cites my 1998 edited collection Seriatim: The Supreme Court Before John Marshall at the end of this sentence, but my more recent work chronicling the origins of judicial independence – and its ultimate expression, judicial review – in the colonial and early state courts is overlooked. For example, Madison’s own state of Virginia had more precedents for judicial review than other any state prior to Marbury v. Madison (Gerber, 2011) and Chief Justice John Marshall, a Virginian, was profoundly influenced by those precedents in deciding what Gutzman calls “the most famous case in American history” [*338](p.286). On a related note, Gutzman is likewise incorrect to assert in his discussion of the 1776 Virginia constitution that the “extreme subordination of the executive and judicial branches of the new government called to mind the relationship of the House of Commons to the House of Lords and the Crown in Britain” (p.13). This statement neglects entirely (1) the importance of separation of powers in the first Virginia constitution and (2) the independence of Virginia’s judiciary (no judiciary dependent on the legislature would have the courage to exercise judicial review as frequently as that of Virginia).
Perhaps surprisingly, scholars continue to find interesting things to write about the so-called father of the Constitution. For instance, in Madison’s Metronome political scientist Greg Weiner of Assumption College challenges the conventional wisdom that Madison disliked majority rule and suggests instead that Madison conceived of government institutions as delaying mechanisms to postpone decisions until after public passions had cooled and reason took hold. Law professor Mary Sarah Bilder of Boston College, in the forthcoming Madison’s Hand, insists that, again contrary to the conventional wisdom, Madison was profoundly interested in law and not simply in politics. She also indicates that his well known fascination with constitutional interpretation traces directly to his larger interest in language. (Bilder previewed her forthcoming book in a 2010 article in Law and History Review.) And while Gutzman’s trade book about Madison does not offer insights as original as those of Weiner and Bilder, it nevertheless provides a terrific account of one of the most important figures in the history of the United States. I happily recommend it.
Bilder, Mary Sarah. 2013 (forthcoming). Madison’s Hand. Cambridge: Harvard University Press.
_____. 2010. “James Madison, Law Student and Demi-Lawyer.” Law and History Review 28: 389-449.
Gerber, Scott Douglas. 2011. A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787. New York and London: Oxford University Press.
_____. 1996. “Roger Sherman and the Bill of Rights.” Polity 28: 521-40.
_____, editor. 1998. Seriatim: The Supreme Court Before John Marshall. New York: New York University Press.
Weiner, Greg. 2012. Madison’s Metronome: The Constitution, Majority Rule, and the Tempo of American Politics. Lawrence: University Press of Kansas.CASE CITED
Marbury v. Madison 5 U.S. 137 (1803).
Copyright by the Author, Scott Douglas Gerber.