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The Madisonian Constitution

George Thomas


The Johns Hopkins Series in Constitutional Thought

Baltimore: The Johns Hopkins University Press, 2008

Hardcover. xiv-248 pp. ISBN: 978-0-8018-8852-6. $50.00


Reviewed by Raymond Richards

University of Waikato, New Zealand




George Thomas, who was then an assistant professor of political science at Williams College, published this careful study of Constitutional interpretation. He argued that James Madison did not intend the Supreme Court to have sole responsibility for deciding what the Constitution means. The current acceptance of judicial supremacy contradicts the Constitution as established at the country’s founding. The father of the Constitution wanted the three branches of the federal government to act as equal interpreters. Thomas stressed that the other branches are not obligated to accept that the Constitution means what the Court says it does. Madison believed that countervailing power in separate branches was the answer to governmental abuse. To create a government that was effective but controlled, Madison created a complex structure—Patrick Henry famously called it “a crazy machine”—that would achieve the purpose of government: justice.

Constitutional meaning cannot be settled by any one authority, Thomas argued, because the Constitution established no final interpreter. Each branch must assert its own interpretation and compete with the other two. According to the author, the Supreme Court illegitimately claims a dominant position and asserts a view of the Constitution that twists the document into tricky legalities, “narrowing and distorting the constitutional mind-set” [36]. Similarly, advocates of popular constitutionalism, who insist that the people’s will should be paramount, ignore the fact that the document says no such thing. As Madison explained in Federalist No. 10, the main danger addressed by the Constitution was majority tyranny. An elite of judges should not enjoy the inordinate power to define Constitutional meaning and neither should a majority of voters. Madison wanted the branches to argue in order to decide Constitutional meanings, rather than have them settled by only the Supreme Court, Congress or the president.

In successive chapters Thomas discussed four historical episodes to show how Constitutional interpretations emerged from clashes within the national government. After calling Abraham Lincoln’s first inaugural address the most important act of constitutional interpretation for the nineteenth century, Thomas described how President Lincoln and congressional Republicans tried to extend rights to all races. The Supreme Court weakened their efforts by maintaining themes from antebellum thinking, especially in the Slaughterhouse and Civil Rights Cases.

The next three cases concern the rise of the administrative state and challenges to it. Thomas argued that the three branches followed the Madisonian Constitution during the Progressive period, contesting meanings, especially over Congress’s power under the commerce clause and with regard to the meaning of due process and liberty of contract. Progressives tried to recast the Constitution as a living document with evolving meanings. Shifting coalitions on the Supreme Court sometimes agreed with the Progressive effort but sometimes disapproved on the basis of antebellum visions or natural rights liberalism. Thomas called the battle between President Wilson and Senator Henry Cabot Lodge over the Treaty of Versailles “a nearly perfect illustration of Madison’s ‘living’ Constitution” [92].

Third, the author discussed the New Deal and the “Constitutional Revolution of 1937”. The New Deal was less a unique constitutional moment than part of the ordinary flow of US constitutional development. President Franklin Roosevelt saw constitutional meaning as part of an evolving, progressive consensus. He tried to “revolutionize the judiciary” by infusing it with legal realism. However, the president’s plan to overcome the Madisonian Constitution by packing the court was rejected by the polity in Madisonian terms; it was seen not as an attempt to modernise the court but as an effort to subordinate the judiciary to the executive. Roosevelt’s purge campaign in 1938 started a similar battle. In the midterm elections of 1938, FDR urged voters to support ideologically “pure” New Dealers. A solid, liberal Democratic Party would overcome the separation of powers. The purge campaign failed. Parties continued in Madisonian rather than Wilsonian terms, so that conflict and compromise among the three branches was still necessary.

Thomas jumped four decades for his fourth episode, arguing that the election of 1980 was the most important since 1936 in terms of constitutional importance. Ronald Reagan was the first president since FDR to insist that he had the authority to interpret the Constitution in his own right—but in the opposite direction from Roosevelt. Flatly rejecting the view that he was bound by the Supreme Court’s interpretation of the Constitution, Reagan challenged the validity of the New Deal state by reinvigorating the notion of a limited government of only specified powers. However, every justice Reagan appointed to the Court and every justice appointed by George HW Bush insisted on judicial supremacy. Congress was inconsistent, asserting its power on occasion by ignoring Court opinions, but not flatly rejecting the Court’s claims to judicial supremacy. Reagan succeeded in shaping constitutional culture to favour decentralisation, but this variation merely reflected the ebb and flow of constitutional change rather than a revolution, according to Thomas.

Thomas’ effort usefully describes historical clashes over the meaning of the Constitution, but loses value when it argues for a norm. His approach is similar to the interpretation known as originalism because he argues that the intention of the Founding Fathers is the only legitimate course today. Thomas believes he knows what James Madison wanted and that Madison should be the perpetual authority for settling issues of Constitutional interpretation. Appraising the book could thus easily transform into an exercise in arguing the value of originalism as opposed to a living Constitution. Critics of The Madisonian Constitution could point out that James Madison was not infallible and that his eighteenth-century thinking might not be suitable for circumstances in the twenty-first century.

Moreover, The Madisonian Constitution should be read alongside The Executive Unbound: After the Madisonian Republic by Eric A. Posner and Adrian Vermeule (Oxford University Press, 2011). They argue that the United States has become an administrative state through a steady growth of power in executive agencies to the point of dominance. Congress plays a secondary role to the executive, and the Supreme Court has become marginal. The president is constrained not by the separation of powers but by the need to seem bipartisan and concern with elections. Executive dominance developed out of necessity, they maintain. Both books cannot be right. Finally, The Madisonian Constitution needed better proofreading. For example, a paragraph on page 154 contains both “has lead many scholars” and “the American’s with Disabilities Act.”




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