Madisons role as the agenda maker for the philadelphia convention, and the particular argument i wanted to make is, as madison prepares himself for the convention in the weeks just before it was due to meet in midmay 1787, 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 had taken place in the mid1770s and lessons americans like him had learned since 1776 by watching how the system functions. He takes a step back, and when he takes a step back, what he really does is to think abstractly, and what we can see at least implicitly again theoretic framework where he comes up with the idea that, because states have different interests and different interests within each state will always have some incentive to run against washington, to run against national directives, national policies. Even where states have a common interest, if you are mistrusful about what other states are going to do, you will have this repetitive net drag on the federal system. So, the federal system is never going to function efficiently. Under such a system, 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 will operate by law, not by recommendations. And if it operates by law, you have to create a National Government that looks like a regular government in the full sense of the term. It has to have an independent legislature. It has to have an independent executive. It has to have an independent judiciary. Once you reach that point, then you are in a position to start drawing lessons from all the experience the americans have been accumulating over the past decade. Madison, among others, had accumulated a lot of those lessons because he had been highly active in both national and state politics. Many of the insights i think he brought to the constitution making project in 1787 come out of lessons he was drawing in medias res, in the process of being a member of two deliberative bodies, the Continental Congress in philadelphia, and then later princeton, and then also the virginia general assembly, which starts to meet in richmond in the middle of the 1780s. There is one other point we didnt get to, which ill just mention in passing. At the very end of that essay on the vices of the political system of the united states, madison launches into a whole new topic. He has three items, which he lists as the multiplicity, the mutability, and the injustice of state legislation. When he gets to the injustice question, he has a wonderful passage in which he says, multiplicity and mutability, bad enough in themselves, are secondary to a deeper question, which is the idea that legislatures ruling in the states are ruling unjustly. He says this calls into question the fundamental premise of republican government, that the majority who rule in such governments are the safest guardians both of public good and of private rights. That the majorities who rule in such governments are the safest guardians both of public good and of private rights. In other words, madison has reached the position in the spring of 1787 where he is really starting to question the fundamental premises of majoritarian rule. He is looking for ways to deal with what he sees as the vices, to use the language of federalist 10, the vices of the factious majority, which is not to going be respectful to the public good, what is the true Public Interest on one hand, or private rights. This is the point where he first works out the analysis many of us know better from federalist 10. He says, well, there are different sources of these vices. Some are the legislatures. He talks a bit, in a fairly compressed way, about what is wrong with state legislatures. The more frequent, if not more fatal source of the action comes from the people themselves. That is the point where he starts talking about, if we are going to build a republic, we cant assume we will have a collection of virtuous citizens who always subordinate private interest to public good. We have to assume the people act on the basis of opinion, passion, and selfinterest. If that is the case, we need to think of a way to improve the quality of our deliberations. So i raise this point because it seems to me that, to start with the outline for today, i think it is critical to figure out what is the significance of madison having worked out this agenda . I could not resist putting this slide up. I have firsthand knowledge of madison. I always like the way in which my Leather Jacket goes with the statue. This is up in the National Constitution center. This photo was taken when i taught at stanford washington in the spring of 2008. A student snapped it for me, and i have been using it ever since. It appears in my own personal site and my 50th High School Reunion from last fall. Ill speak somewhat authoratively for madison. This of course is Independence Hall at the Pennsylvania State house. So what difference does an agenda make . I think it is really important fir ys to understand at the outset that it was not said ab initio, from the beginning, exactly what the convention was going to do. There wasnt much circulation of ideas. There was a little bit, but there was not much circulation of ideas as to what the real agenda for philadelphia was going to be. Madisons hadnt worked out and henry knox, who was the secretary of war, had sent a plan of his own off to George Washington. There was a little circle of Army Officers who had their own notion of what might be done, but there is not extensive public discussion about exactly what it is the convention was going to do. And we can imagine, thinking retrospectively or situating ourselves in the time, that there were any number of possibilities that might have been available. You could do something very much like what the new jersey plan, which was introduced in midjune 1787 by William Paterson i will put up a slide of him in a few minutes. You could do Something LikeWilliam Paterson would have imagined, which 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. If we add a few powers, maybe that will take care of everything that really needs to be done. Thats not a bad position. Thats a position that says, actually, we should not expect the American People to be willing to go too far. We should cut them some slack. They have lived through a long and expensive war. They are trying to recover from the war. There was significant commercial depression in the mid1780s. Maybe we should, you know, cut the American People some slack and not expect too much from them. On the other hand, if you are a rabid nationalist, you could say, geez, why dont we just start over . Lets get rid of the states. Why do we need rhode island or delaware . Those states were always mistakes to begin with, kind of little accidental communities who kind of became states really for no good reason as far as i can tell. We also have states of very different sizes. Maybe we should think about the optimal size of a state. Instead of large and small, maybe we should try to equalize the states. So that would be radical. Maybe get rid of states altogether. Hamilton may not have minded doing that. We will get to hamilton momentarily, too. And then in between, there is a strategy that madison works out, which i think was quite broad. A, it does say, we really need a government in the full sense of the term. And so we should think, we should rethink all the essential characteristics of republican government, maybe base it a little bit on reading in the sources. We should know our montesquieu. We should know our locke. We should at least know about hobbs and machiavelli so we wont go wrong in some respects. But i think more important is the americans have a decade of experience behind them as thinkers and doers and actors together, and that is the experience they can draw on in terms of trying to come up with some strategy of reform. So, in regards to madison, what follows also from his analysis of the sources within the states, his whole i will not say skepticism, but his airing doubts about the wisdom of majority rule per se. Madisons idea is maybe the most important thing we can do is to 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 the National Government independent of the states, but actually to give the National Government, to give congress, what he calls the negative we would call it a veto but what he calls the negative on all state laws. If it had that negative, it could use it to protect itself against interference from the states. We will look at this in a couple weeks when we talk about mcculloch versus maryland, the great bank case of 1819. But maybe we could also use that power to intervene within the states to protect minorities within the states 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 of course would be a political nonstarter, not worth talking about. Even though i think it might not have been a bad idea, you know, short of abolishing the states. It is hard to imagine a more expansive agenda, so that is why i think it really makes a lot of sense for us to think about madison as a key figure, regardless of what his batting average was on particular items. You have to watch out for lilys thing there. You are not going to hold it the whole time . Put it back down. Anyhow. Ok. So finally the last point under the agenda is to the other thing i want to say, and it comes out of that letter to George Washington of april 16 that you also read for today, madison also says the first thing we have to do is to solve the problem of representation. Solving the problem of representation means madison was firmly committed to majoritarian principles in both houses of congress. If you are ever going to have a National Legislature capable of acting on, directly upon the American People and not just through the states, it has to be bicameral. You have to have two houses. Madison insists that some rule of proportionality has to apply to both houses as opposed to allowing each state to have an equal vote. So madison says we have to decide this first before we decide which powers the National Government will exercise. Other delegates dont agree. John dickinson of delaware, who had been the principle drafter of the articles of confederation a decade earlier, said, no, why dont we do it the other way . Why dont we start to by figuring out what powers we want to give the National Government . If they are not that expansive, maybe we do not have to alter the structure, you dont have to alter the rule of voting. Madison has a different position. He says we cannot agree on what powers we are going to give until we determine whether or not principles of justice, in terms of the allocation of representation, will be respected or not. That is what drives really the first six to seven weeks of the convention. That is why when you get into the debates in philadelphia, which we know best of course from madisons notes, what we see is that one issue. How will seats in congress be apportioned among the states in both houses is really the one dominant issue until you get to mid july 1787 and the socalled great compromise. And talking about the socalled great compromise thus 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. I think this is fairly familiar stuff. We deal in effect with article one, article two, article three we deal with the articles relating to congress, the articles relating to the executive, the articles relating to the judiciary. If we had more time, we could talk about there are other things we could talk about. The federalism category of article 4, article 5, amendments, and so on. There are three myths, or the three presuppositions, which are kind of most common in how we think about what happened in philadelphia. And so lets just start by kind of outlining them. I will go back and try to talk about each of them individually. If you guys have questions, it is fine. You can tell i am in full form here and ready to go. But if i am going too fast and you want to stop me or even challenge my opposition to giving wyoming two senators i actually had a chance to say to senator barrosso i had dinner with him a few months ago. I said, why does wyoming have two senators . Ive never heard a good explanation. I actually said it to him. The guy is completely very serious guy. He did not pick up on the question. Anyhow. The first one i think is the most familiar one. So i think here is the common supposition. Giving each state an equal vote in the senate was a true compromise compromise in the best sense of the term was the true compromise over representation while the 3 5 clause over slavery was a moral failure. I suppose i could have added it was politically unnecessary. So the 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, which is again, go back to my prior slide, maybe not so bad a position to be. Ill try to explain why as we go along. If i say i like the 3 5 clause, i want to make clear from the beginning i am not defending slavery. I am not arguing that africanamericans are. 6 of caucasians or others. In fact, that is not actually what the 3 5 clause does. What i am saying is there are very real there is a very significant basis for understanding a much deeper and longer lasting compromise was meant to be incorporated into the 3 5 clause than was true in the case of the equal state vote. I will explain why as we go along. Again, i am not defending slavery, lest there be any misunderstanding. I think in political terms, the case for the 3 5 clause is in some ways much better than the case for the equal state vote. I want to try to explain why i think that. The second position, thats fairly straightforward. Theres a common supposition that why do we have the Electoral College . Its because the framers feared democracy. They were very skeptical and nervous about allowing the people to vote for the president. I think that that is wrong and i will try to explain how i think we got stuck with the strange device, the Electoral College. As soon as it goes into operation in 1796, it was already obsolete under some suppositions. The first time it makes a difference, you realize it is never going to act in any way resembling what people thought it might do if you think it was designed to get a better class, a select group of electors, to choose the president. The third thing is a point that should be familiar to anybody who is thinking about going to law school. Judicial review of legislation, the idea that courts should apply constitutional standards to legislation in order to determine whether or not acts of legislation are constitutionally permissible or not. There is a common supposition that that really was not part of the framers design or it was only a vague part, if a part at all, of the framers design. It really came into being out of John Marshalls great opinion in the famous case of mcculloch versus not mcculloch marbury versus madison from 1803. I think that is bunk. I think marbury is an interesting case but not a significant one. It figures prominently in legal education, but that is for reasons other than the ones that historians or political scientists ought to respect. Marbury is a case worth studying, but was it consequential . I dont think so. I think the origins of judicial review lie elsewhere, and i will try to give a short account of how that was the case. Those are the three myths we are going to talk about today. Lets bring a few characters online so you know who they are. This is alexander hamilton. You know, along with madison and jefferson, franklin, maybe john adams, though adams i think was a bit of a streak hitter, the five most powerful minds of this remarkable generation. Hamilton, of course, is famous in the convention for giving his speech of june 18, which is a famous speech because it is so partial and favorable of the British Institution and kind of astonishes everyone and has very little impact. Hamilton, in fact, was not all that active a delegate in philadelphia. Much more important in one sense is the original author and madisons coauthor in writing the federalist, because the two other new york delegates left pretty early. Yates and lansing leave the convention pretty early, go back to new york. You guys are all going to become experts on new york over the weekend. Hamilton kind of goes back and forth, mostly back to new york during the convention. He does come back at the end. He goes back to his law practice, goes back to his family. But a major, major thinker, in my view maybe less a constitutionalist, but americas great state builder in the late 18th century. When he is there, he makes an impact. Madison of course went to the college of new jersey, now known as princeton. Here are two other princeton guys. On the left is luther martin. Not martin luther. In case there is an id on the exam, you want to get the names in the right order. And William Paterson. Paterson martin is from maryland. Martin will be the attorney for maryland in the great case of mcculloch 30 years later. He gives a famous two day speech on protecting states rights,