Lets pick up where we left off on wednesday. The main argument i was trying to make then focused on James Madisons role as the agenda maker for the philadelphia convention, and the particular argument i wanted to make is as madison prepares himself, i think the key item he worked on in his agenda is the idea that a system of federalism based upon the voluntary compliance of the states with the recommendations, the resolutions, the requisitions that came from the Continental Congress, was never going to work. When he reasons about this, he does so in a very interesting way. He combines a set of empirical observations about what took had taken place back in the 70s and lessons americans like him had learned since 1776. How washington functions. He takes a step back, and then what he does is to think abstractly, and what we can see a, at least implicitly, theoretic framework where he comes up with the idea that because states have different interests and different interests within each state, we will always have some incentive to run against washington, to run against National Directives and national policies, and that even where states have a common interest, if you mistrust what other states are going to do, you will have this repetitive drug on the federal system. So, the federal system is not going to function efficiently. He said, this will never fail to render federal measures abortive. From that position he reaches the conclusion that what needs to be done is you need to have a system that is going to operate by law, not by recommendations. If it operates by law, you might therefore, have to create a National Government that looks like a regular government in the full sense of the term, meaning it has to have an independent legislature, an independent executive and an independent judiciary. Once you reach that point, you are in a position to start drawing lessons from the experiences that americans have been accumulating over the past decade. And madison among others have accumulated quite a bit of experience as he had been highly active in both national and state politics. Many of the insights he brought to the constitution project in 1787 came out of lessons he was drawing in the process of being a member of the congress of philadelphia and then later, princeton, and then also the virginia general assembly, which starts to eat in richmond in the middle of the 1780s. Best starts to meet in richmond in the middle of the 1780s. Madison launches into a whole new topic, three items which he lists as the multiplicity, the immutability and the injustice of the state legislation. When he gets to the injustice question, he has a wonderful passage in which he says multiplicity and immutability though bad enough in themselves are second to the injustice question, which is the idea that legislatures ruling in the state ruling in justly. That the majority who will in such governments are the safest guardians of both of the public good in the public right. That the legislatures are both best guardians are both the guardians of public good and private rights. In other words madison has reached the position where he is really starting to question the fundamental premise of majority rule. He is looking for ways to deal with what he sees as the vices the fractious majority, which is not going to be respectful editor of the public good, what is the true Public Interest on the one hand, or private rights. This is where he first thought out the analysis many of us know better from federalist 10. There are different sources of these vices. Some are the legislatures. He talks in a fairly compressed way about what is wrong with state legislatures. He said, the more frequent if not fatal source of action lies in the people themselves, and that is the point he starts which, about the way in if we are going to build a republic, we cant assume we will have a collection of citizens who will always support the private interest or public good. We have to assume they act on the basis of passion and selfinterest. We needhat is the case, to think of a way to improve the quality of our deliberations. So i raise this point because it seems to me, start with the it is criticalnk to figure out what is the significance of madison having worked out this agenda. I cant resist putting this slide up. Firsthand knowledge of madison, i always like the way my Leather Jacket goes with this answer. [laughter] this was taken when i taught in washington in the spring of 2008. I have been easy it ever since. It appears in my all personal slide of my 50th High School Reunion from last fall. This, of course, is Independence Hall at the Pennsylvania State house. So, what difference does an agenda make . It is important to understand at the outset that it was not set ab initio, from the beginning, exactly what the constitution was going to do. There wasnt circulation of ideas. There was a little bit. But there wasnt a circulation as to what the real agenda for philadelphia was going to be. Madison had worked it out, and the acting secretary of war had sent a plan of his own to george washington, the little circle of Army Officers who have their own notion of what might be gone, done, but there is not an extensive discussion about exactly what it is the convention was going to do. Can imagine, situating ourselves at the time, that there were any number of possibilities that might have been available. You could do something very much like the new jersey plan, which was introduced in midjune 178,7 i Willam Paterson put the slide up. Lets just add some additional powers to those already possessed by the Continental Congress under the articles of confederation. Maybe we dont have to change the structure of government at all. Or if we add a few powers come up maybe that really needs to be done. Position. T a bad that position says, actually, we shouldnt expect the American People to be willing to go too far, we should cut them some slack. I have lived through a long and expensive war. They are trying to recover. There was significant commercial depression in the 1780s. So maybe we should cut them some slack. On the other hand if you are a rabid nationalist, say gee, why dont we start over and get rid of the states . Why do we need rhode island or delaware . Kind of accidental communities we just became states for really no good reason, as far as i can tell. [laughter] we also have states of different sizes. Maybe we should think about the optimal size of the state . Maybe try to equalize the states, that would be radical. Maybe get rid of states altogether. Hamilton thought about doing that. We will get to hamilton momentarily, too. [laughs] in between, there is the strategy that medicine works out, which i think was quite flawed. A, it says we need a government in the full sense of the term, so we should rethink all the essential characteristics of republican government, may be bas based a little bit on reading the sources we should know our montesquieu, our locke, bs, so we dont go wrong in some respects, machiavelli. That is the experience they can have behind it, thinkers and doers and actors. That is what they can draw on to have some strategy of reform. So, of course, what follows also from the analysis of the sources allascism in states, his airing of doubts about the wisdom of major rule per se is the idea that maybe the most important thing we can do is give the National Government some authority to intervene within the states individually, not just to strengthen the National Government against the states or to make it independent givee states, but actually congress what he calls the negative we would call it a veto on all state laws. So they have that negative, they can use it to protect themselves against interference from the states. We will look at this in a couple weeks when we talk about mcculloch versus maryland, the great case of 1819. Could also use that power to intervene within the state to protect minorities within the state, against the unjust legislation being passed by majorities. This is a really expansive agenda. It opens up about as many topics as you can imagine anyone could have discussed at the time short of abolishing the states, which would have been a political nonstarter, so not worth talking about. Even though i think would not have been a bad idea. It is hard to imagine a more expansive agenda. That is why it makes sense to think of madison as a key figure, despite what his thinking was on particular items. You have to look out for certain abilities being there. You are not going to hold this the whole time . Put that down. Anyhow. Ok. The next item under the agenda is the other thing i will say, it comes out in a letter to 16,ge washington for april which you also read for today, madison says the first thing we have to do is to solve the problem of representation. Medicine was firmly committed to majoritarian principles in both houses of congress. You need a legislature to act on behalf of the American People, and not just through the states, it has to be bicameral. Ofison insists on some rules proportionality has to apply in both houses as opposed to allowing each state to have an equal vote. So madison says we have to , figure this out first before we decide which powers the National Government will like to will exercise. Other delegates dont agree. Like John Dickinson of delaware, said, why do we do it the other way . Why do we start by figuring out what powers we make gift of the nationalis National Government . Maybe we dont have to alter the structure, alter the role of voting. A different position. He said, we cant agree on what powers we are going to give until whether or not we determine the allocation of representation will be respected or not. That is what drives the first six or seven weeks of the convention. That is why when you get to the debates in philadelphia, which we know from a madisons note, we see that one issue, the apportionment among the states in both houses is ready the one dominant issue until you get to socalled787, and the great compromise. Compromise gets me to the three myths about the constitution, which are the real subject of todays lecture. So here are three questions that we are going to consider. This is fairly familiar stuff. We deal in effect with article one, article two, article 3 we deal with the articles relating to congress, relating to the executive, the article related to the judiciary. If we have more time, there are other things we could talk about. Under the federalism category article 4, 5, and so on. Three agreements, the three suppositions which are the most common when we think about what happened in philadelphia. Lets start by outlining and try to talk about each of them individually. By the way, if you have questions, it is fine. Go. Can tell i am ready to if i am looking too fast can let you might win to interrupt me or stop me or even challenge my suppositions, bio means. I actually had a chance to say to senator barroso i had dinner with him a few months ago. I said, why does wyoming have two senators . Just very serious guy, he didnt pick up on the question. Anyhow [laughter] the first one i think is the most familiar one. Here is the, supposition giving each state on equal vote in the senate was a true compromise in the best sense of compromise onue representation, where is the 3 5 clause over slavery was a moral failure. I suppose i could have added it was politically unnecessary. So that position i am going to argue is, i am very much against giving each state an equal vote in the senate. I am kind of with madison on this. Go back to my prior slide, maybe not so bad a position to be, and i will try to explain why. If i say that i like the 3 5 clause, i want to make it clear from the beginning, i am not defending slavery, not arguing that africanamericans are. 6 of caucasians or others. That is actually not what the three first class does. Is that it is a very significant basis for are veryding the there real, very significant basis for understanding there is a much deeper and longer lasting compromise was meant to be incorporated into the 3 5 laws. Clause. It was true in the case of the state vote. I will explain as i go on. Again, i am not defending slavery. I dont want there to be any misunderstanding. I think in political terms, the 3 5 clause case is much better than the case for the equal state vote. I want to try and explain where think that. The second supposition is the common supposition is why do we have the Electoral College . Because the framers feared democracy. They were very skeptical and nervous about allowing people to vote for the president. I think that its wrong. As soon as it goes into operation in the significant way in 1796, it was already obsolete under certain suppositions. The first article makes a difference, you realize it is never going to react in any way resembling what people thought it might do. If you think, it was the deciding that a better class of select group of electors to choose the president. The third thing is the point that should be familiar to anybody who is thinking about going to law school, the judicial review of legislation. The idea that courts should apply constitutional standards to legislation in order to determine whether or not legislation is permissible or not. There is a supposition that that was not part of the framers design. But it really came into being out of marshalls great opinion in mcculloch versus maryland or marbury versus madison in 1803. Anything that is bunk. I think marbury versus madison is an interesting case, but not a significant it is for one. Different reasons other than the ones that destroy political scientists. Marbury is a case worth studying , but was it consequential . I dont think so. I think the origin of judicial review lies elsewhere, and i will give a short information. So those are the myths we will three talk about. Lets bring a few characters online so we know who they are. So this is alexander hamilton. Along with madison, he released, along with madison, jefferson, franklin, maybe john adams, kind of the five most powerful minds generation. Rkable hamilton, of course, is famous at the convention for giving his speech on june 18, a famous speech because it is favorable to british constitution and astonishes everyone and has very little impact. Hamilton, in fact, was not all that active a delegate in philadelphia. Much more important was the original author and madisons coauthor in writing the federalist. Two of the new york delegates left early to go back to new york. You guys will become experts on new york over the weekend. And hamilton, he kind of goes backandforth, mostly back to new york during the convention, although he does come back in the end. He goes back to his family. Thinker. Or, major in my view, maybe less a cost additional list, but americas great statebuilder in the 18th century. Once he is there, he makes a great impact. Madison of course here are two other princeton guys. On the left is Luther Martin. Not martin luther. In case there is an idea on the exam, you can get the names in the right order. And william patterson. Martin is from maryland. Martin will be the attorney for maryland in the great case of mcculloch. 30 years later. He gives the famous speech , whiching states rights was probably delivered under the influence of a spirit, which translated, is alcohol. Prof. Rakove alcohol. You can tell from the way patterson describes how martin was talking, humor have gone on a bender in order to get ready to talk. Patterson is a much different guy. He is the son of scotch irish immigrants, had a very small a law practice before the revolution, and then the revolution gives him lots of opportunities. He serves on the first Supreme Court. He was the principal author of the new jersey plank. Then i put a couple of new. Nglanders out here the guy on the left, elders gary, one of the very wealthy merchants who would not sign at the end of the convention. Up from the north shore, boston. And Roger Sherman who figures prominently in the case for the equal state vote. Sherman was actually a merchant who had married well. You you cant quite make it out here, but sherman had an awkwardness to him. Sitting inis this chair . Picky and relax. He just cant relax for the portrait. He is still kind of sitting there, cant quite unwind to allow his portrait to be but painted. Yeah, sherman played a very active role in terms of supporting equal state votes. There are other delegates i could show, but that is enough. A point up here i could talk about later, but not so lets go back. First. I want to talk about the two compromises. So, representation. Compromise, of which we mean essentially the decision to give the states and equal state vote in the senate, was that a great compromise to be admired or not . The other side of the compromise is, of course, the three fisk was, under which the 3 5 clause, under which allocation of direct taxes would be allocated among the states on the basis of the population, with slaves counting as. 6 of free persons. Everybody knows what is meant by that phrase. Ok . If you go back to that letter from madison to washington, the april 16, 1787 letter, madison discusses his political strategy for dealing with the representation question. And does identify the theoretic aspect of his thinking. He says, here is how he thinks or hopes the politics of this issue will play out. He thinks the northern states will favor the idea of proportional representation in both houses, because they have the population advantage now. So it is in their current interest. Imagines, is other people did in the 1780s, which turns out to be a big mistake since madison is not unique in this, he also imagines that the population in the decades after the revolution will work to the advantage of the south. The south will come more into parity with the north in terms of population, and, therefore, correctly,ltivating delegates from the south will recognize that in the long run, this kind of formula will protect and serve their interests. That is not a bad argument. Other southern delegates shared it. In fact, if you try to explain why we have the census every 10 years, it is the southern delegates, led by edmund randolph, who insist, we need a census taken. Rather than leaving it to congress to determine under its own discretion how streets will be apportioned in the house of representatives, the southern delegates, led by governor of course, madison addres