Monday, June 2, 2014

James Madison: Architect of the Constitution? // Ray Raphael // Balkinization

Did your heart sink when you saw that Gordon Wood had lavishly praised Lynne Cheney's new biography of James Madison?  Madison, of course, accommodated slavery - owned them  through his presidency and held 100 at his death.  But in the Federal Convention of 1987 he was quite a bit to the left of where he ended up a decade or so later.  It is clear if you read his Notes of the convention that he was arguing for broad national powers, not the cramped version of federal power today's conservatives celebrate as gospel. - gwc
Balkinization: James Madison: Architect of the Constitution?:
by Ray Raphael

Viewing Madison as the architect of the Constitution has political overtones. Madison’s ideological evolution, from his expansive nationalism in 1787 to his advocacy of strict construction and states’ rights in the 1790s, can be and is manipulated into a distorted view of the Constitution’s meaning.
If the alleged architect of the Constitution said the powers of the federal government are limited to those that are “expressly delegated” in the Constitution and states have the right to “interpose” between the people and the federal government, enemies of federal power backdate these words, implicitly but erroneously, to 1787. Once there, they become proof positive that the Constitution favored the states. Madison-the-Architect said so.
This unwarranted notion has penetrated to the core of our public discourse. It informs constitutional jurisprudence at the highest levels and affects national policy.
In their dissent to the 2012 Affordable Care Act decision, Justices Scalia, Kennedy, Thomas, and Alito complained that the “power to tax and spend for the general welfare” has unfortunately come to extend “beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers.”[18] The words within parentheses speak volumes. “What Madison thought it meant,” in this context, stands for “what the founders thought it meant” and finally “what the Constitution really means.”
On this view, Madison supposedly favored a strictly limited government, so that is what the document must prescribe. However misguided, Madison-the-Architect mythology is embedded within the default logic of constitutional reasoning, and it tilts that reasoning subtly yet significantly toward the right.

Ray Raphael’s latest book is Constitutional Myths: What We Get Wrong and How to Get It Right (The New Press, 2013). 

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