Jefferson, Madison, and the Making of the Constitution
by Jeff Broadwater.
University of North Carolina Press, 2019.
Hardcover, 296 pages, $30.

Reviewed by Jason Ross

No friendship in American history has been as consequential as that between Thomas Jefferson and James Madison. Their paths first crossed shortly after Jefferson wrote the Declaration of Independence; soon they became inseparable partners in building a new nation. Even after Jefferson’s passing in 1826, their partnership endured. In his last letter to Madison, Jefferson asked, “take care of me when dead.” Madison did so, arranging for the publication of notes that Jefferson had taken from the Confederation Congress’s debates about the Declaration of Independence alongside the notes Madison took at the Federal Convention in Philadelphia of 1787. These indispensable records were published after Madison’s death in a three-volume set then known as “the Madison Papers.” These at last gave Americans a first-hand account of the nation’s formative debates, from the point of view of these two founding friends.

Though Madison and Jefferson saw their legacies as inseparable, if not identical, Progressive-era historians would later tear them apart. Most notably, Charles Beard claimed that the Constitution represented a betrayal of the Declaration’s democratic principles. Though the particulars of his argument have been amply refuted, the sentiment it conveyed continues to have a powerful residual influence on scholarship about the founding era. Still, subsequent historians who have treated Jefferson and Madison as partners confirm the continuities of their political thought and legacies, rather than supporting Beard’s claim of discontinuities. Adrienne Koch reconciles the two in her classic work Jefferson and Madison: The Great Collaboration by raising Madison to Jefferson’s status as an American philosophe. She reached the “inescapable conclusion … that the political philosophy known simply as ‘Jeffersonian’ is actually an amalgam of ideas, which owes very much to James Madison.” Andrew Burstein and Nancy Isenberg, in Madison and Jefferson, sought by contrast “to separate myth from reality,” framing these men less as visionaries of a new form of democratic republicanism and more as practitioners of “hardball politics in a time of intolerance.” They also place Madison’s contributions on an “essential equality” with Jefferson’s, but by devaluing the principles and ideals that these men shared.

With these accounts of the partnership between Jefferson and Madison, one might question whether another assessment of this friendship is necessary. But given the significance of claims that their respective intellectual legacies in the Declaration of Independence and Constitution are incompatible, perhaps the better question is why their relationship has not been explored further. Jeff Broadwater’s new assessment of their relationship, Jefferson, Madison, and the Making of the Constitution is therefore a welcome contribution.

Broadwater resists tendencies either to seek broad ideological explanations of the contributions Jefferson and Madison made to the founding, or to reduce their work entirely to the level of self-interest and partisanship. Instead, Broadwater attends to their words and actions within the immediate context of their intellectual and political world. Their world, first and foremost, was colonial Virginia. Having previously published James Madison: A Son of Virginia and a Founder of the Nation and George Mason, Forgotten Founder, Broadwater is familiar with the Old Dominion as a cradle of revolutionary ideas about liberty. In his latest volume he presents Virginia as a workshop for constitutional formation and innovation, tracing through the drafting of a long line of Virginia founding documents. Though these documents may be overshadowed by the Declaration of Independence and Constitution, they are parts of Virginia’s contribution to the American art of constitutionalism, and they allow Broadwater to tell the old story of “making the Constitution” in a new way.

At the outset, Broadwater disputes Beard’s claim that the Constitution betrayed the Declaration of Independence. The difference between them is “more apparent than real.” How does Broadwater reconcile the two documents? Primarily, he places the Declaration in the tradition of American constitutionalism, and reframes Jefferson as a leading practitioner of that American art. He begins with Jefferson’s 1774 paper A Summary View of the Rights of British America. This document, he observes, exemplified American constitutional argumentation from the late eighteenth century, resembling “common law litigation” more so than any effort “to discover metaphysical truths.” By contrast to the abstract doctrine of natural rights that scholars today extract from the Declaration of Independence, Jefferson’s Summary View built on an argument (which Broadwater traces back a decade earlier to the Virginia attorney Richard Bland) appealing to a “natural right to emigrate and to establish ‘new societies’ as their founders saw fit.” Jefferson held that the Saxons had exercised this right in migrating to and establishing England; the settlers of British America emulated their noble ancestors in establishing settlements in the wilderness of North America. Because they had established these settlements at their own risk and expense, Jefferson concluded, colonial Americans owed nothing to the British people or crown; the allegiance of the respective colonies to the British Empire was voluntary and contractual. Broadwater recognized this as “the flash of nationalism that would become central to Jefferson’s thinking: ‘We consider ourselves as bound in Honor as well as Interest to share one general Fate with our sister colonies …’” Broadwater does not say so directly, but here Jefferson imaginatively constituted a people, bound together not by race or religion, but by the shared labor of making a government.

Broadwater shows that Jefferson’s Declaration of Independence, like the Summary View, had its origins in the English legal tradition. Though today we see the Declaration as a philosophic statement, Broadwater clarifies that the term “‘declaration’ … had a technical meaning in English law,” whether as a “written complaint initiating a civil lawsuit,” as a “statement of policy by a representative assembly,” or as “an official statement with implications under international law, such as a declaration of war.” According to Broadwater, Jefferson’s document had features of all three of these forms. The Declaration of Independence also drew from the Summary View’s creative redefinition of the relationship between the colonies and the British empire, by which colonial leaders were persuaded that “‘our connection had been federal only,’ or in other words, through the British monarchy.” Jefferson’s Summary View allowed Americans to criticize the king directly, and Broadwater suggests that the appeal to equality in the Declaration of Independence allowed Americans to criticize kingship directly. The equality passage “can be read as a rejection of hereditary privilege and an aristocracy of birth,” and within the context of a federal empire in which Jefferson asserted all of the constituent parts were equal, the appeal to equality amounted to “a statement repudiating Britain’s right to rule the American colonies …” Jefferson’s Declaration insisted that the “people” for whom it spoke would recognize themselves as democratic.

We now remember Jefferson’s role as a founder almost wholly due to his authorship of the Declaration, but Broadwater reminds us also of Jefferson’s ambition to revise the legal codes of a newly independent Virginia. “Between 1776 and 1779, Jefferson introduced more bills than any other Virginia lawmaker, making those years arguably the most productive period of a remarkably productive life.” In this work Jefferson thought as a founder who was constituting a people on new principles. Broadwater points out that Jefferson, through bills prohibiting primogeniture and entail, establishing public education, and codifying freedom of religion, sought to form “a system by which every fiber would be eradicated of ancient or future aristocracy; and a foundation laid for a government truly republican.”

In demonstrating that Jefferson played a leading role in the development of American constitutionalism, Broadwater blunts the Beardian assertion that the Declaration of Independence is incompatible with the Constitution. Nor does Broadwater’s argument diminish Jefferson in any way, though it does lend itself to the conclusion that we have asked too much of Jefferson’s memory. In elevating Jefferson to the status of a philosophe, we may inadvertently signal our own wishes to elevate him to the status of a philosopher-king, and to elevate his Declaration of Independence to a moral statement that transcends the amorality of our merely political Constitution.

Beard is not the only Progressive-era historian whose shadow looms over our understanding of the relationship between Jefferson and Madison, the Declaration and the Constitution. Broadwater tacitly takes the skeptical stance toward Madison that was first adopted by Max Farrand. In assembling what historians today take as the definitive account of The Records of the Federal Convention, Farrand stripped apart Madison’s Papers, calling Madison’s account of the founding unreliable, and placing Madison’s notes alongside partial accounts of the Convention’s debates taken by other delegates. One chief claim Farrand made for demoting Madison’s notes from the Convention is that historians who relied on them had “overemphasize[d] the slavery questions in the Convention.” Farrand was exhausted with this topic, pleading in 1904, “Is it not time to break away from the traditions that have been handed down to us from the days of the slavery struggle?” And though Farrand did not say so, a careful review of his edition of the debates in the Federal Convention demonstrates that virtually all we know about the Convention’s debates on slavery we know from Madison; conversely, we learn almost nothing about the Convention’s debates on slavery from any other source.

Farrand used Madison’s perceived overemphasis on slavery as partial justification for questioning the veracity of Madison’s account of the Convention. The most recent student of Madison’s notes, Mary Sarah Bilder, agrees that Madison’s account of the Convention is unreliable, except insofar as his comments on slavery demonstrate his guilty participation in the Convention’s evil compromises on slavery. Broadwater, to his credit, does not accept Bilder’s most cynical speculations about Madison and his notes. Still, as Madison takes center stage in Broadwater’s narrative (with Jefferson’s departure in late 1784 to serve as minister to France, Jeffersonian concerns about democratic principle fade into the background, with Madison’s pragmatic consideration of Virginian interests—including about slavery—entering the foreground.

Broadwater observes Madison growing increasingly concerned that “the new republic seemed to be falling short of the lofty goals of the Revolution.” Strangely, Broadwater does not define what Madison believed those goals to be. Instead, he claims Madison operated under “three biases, or convictions”—call them whatever you like, but don’t call them principles. First was the “vision of a viable republican state” that Madison had developed from his wide reading in history and political theory. Broadwater defines this republican vision tersely, as “a strong central government policing parochial local interests, but one beyond the control of a single faction and one checked by its own internal divisions of authority”—saying nothing of Madison’s obsession with the justice of such a system. Second was the parochial interest of the state of Virginia; Broadwater claims that Madison supported the doctrine of proportional representation not for the purpose of mitigating the danger of faction, as Madison would detail in his famous Tenth Federalist, but to defend the interests (including in slaves) of Virginia as the largest state in the union. Third was “a conservative economic policy of sound money and respect for property rights …” It is safe to assume that Broadwater’s reference here to property rights is meant to include the right to property in slaves.

In his James Madison: A Son of Virginia and a Founder of the Nation Broadwater announced that none of Madison’s antislavery words or deeds can be accepted at face value: “With enemies like Madison, slavery needed no defenders.” Here Broadwater suggests that the passing of the reform torch from Jefferson to Madison marked the end of any hope for a settlement of the issue of slavery. In this, he leaves Madison in the familiar position of scapegoat for the founding generation’s failures to solve the problem of slavery. Broadwater rightly notes the mid-1780s represented “a critical moment in Jefferson’s and Madison’s—and the nation’s—relationship with slavery.” In 1784 “Jefferson, with no objection from Madison, considered the expansion of slavery an issue that Congress, not white settlers, ought to resolve, and when it came to congressional authority over slavery in the West, he interpreted the Articles of Confederation loosely.” Broadwater justly draws this conclusion in his assessment of the land ordinance that Jefferson drafted for the Confederation Congress shortly before his departure for France. Among the principles that would have governed the creation and admission of new states out of America’s western territory, Jefferson proposed, “That after the year 1800 of the Christian era, there shall be neither slavery nor involuntary servitude in any of the said States …”

Historians typically love to engage in counterfactuals, but not here. Instead, American historians seem convinced that political failure on slavery at our nation’s founding was inevitable because they are convinced that our founders were, in effect, moral failures. Thus, while Broadwater noted the demise of Jefferson’s ban on slavery, he did not note Jefferson’s ire at its failure. Jefferson wrote to Madison that the provision

was lost by an individual vote only. Ten states were present. The 4 Eastern states N. York, and Penns., were for the clause. Jersey would have been for it, but there were but two members, one of whom was sick in his chambers. South Carolina, Maryland, and !Virginia! [double exclamation points are in Jefferson’s original] voted against it. N. Carolina was divided, as would have been Virginia, had not one of its delegates been sick in bed.

In fact, sixteen delegates voted in favor of Jefferson’s proposal, and just seven against. If not for the convoluted rules of representation in the Confederation Congress, Jefferson’s proposal would have passed, undoubtedly changing, in unimaginable ways, the course of our nation’s history with respect to slavery.

Broadwater does not consider the possibility that the failure of Jefferson’s proposal may have been one of several factors contributing to Madison’s conclusion that the Confederation was ill-founded, and inadequate to address the multiple problems that faced the union as a union—including the problem of slavery. Madison, on the other hand, tells us this himself. In his famous “Vices of the Political System of the U.S.” Madison wrote an extensive list of the fundamental flaws of the Articles of Confederation, and of its constituent republics. Most of his contemporaries—Jefferson included—would have stopped with criticism of the Articles, but Madison held that the more pervasive problem lay within the revolutionary ideal of republican government as it was being practiced in the states. The People was its own enemy. Sharpening the point, he argued that “[w]here slavery exists, the republican theory becomes even more fallacious.” Madison’s skeptics—Broadwater, Bilder, and Farrand included—concur that we cannot evaluate Madison’s legacy without reflecting on the failures of the Constitution regarding slavery. They do not recognize that Madison insisted that we reflect on this troubling point.

Madison’s harsh criticism of America’s revolutionary republican ideal as “fallacious” may have lost its power to shock us; more likely, we have assumed we know Madison too well to take his words at face value. But let us imagine how Madison’s criticism would land if it were delivered in the voice of the 1619 Project’s Nikole Hannah-Jones. In fact, does it differ substantively from her claim that “Our democracy’s founding ideals were false when they were written”?

We so identify Madison as the father of the Constitution that we forget that he is also perhaps the most trenchant critic republican government has ever had. But when we do remember Madison’s criticisms of our cherished republicanism, we resent him. Beard, in particular, resented Madison for his failure fully to believe in the virtues of republican government. He pointed to the long-forgotten Tenth Federalist as evidence of Madison’s shocking lack of faith in the people. Broadwater closed the gap that Beard opened between Jefferson’s Declaration and Madison’s Constitution only by giving Jefferson, whom Beard admired for his faith in republicanism, a more prominent role in the story of the founding. Broadwater’s Jefferson is no philosophe; what he learned from France, instead, was about the comparative virtues of fundamentally egalitarian America. This, Broadwater claims, explains why Jefferson’s appetite for reform was satisfied before Madison’s—Jefferson believed America was good enough as it was.

Broadwater does not directly ask Jefferson the question of how an America in which the laws of a majority of states permitted slavery could be deemed good enough. Nor does he note that only Madison seems to have judged that this America was not good enough. Instead, Broadwater’s Jefferson allows us to imagine what would have followed if our nation’s founding been directed, if not by a philosophe or philosopher-king, then by a visionary statesman unencumbered by the often brutish demands of power politics. Broadwater does not say as much, but Jefferson’s contributions to the development of American constitutionalism came largely from his roles in Virginia and were insulated from these demands in a way that Madison’s contributions, made almost exclusively on the scale of the union, were not.

Finally, Jefferson’s image of a wolf being held by its ears can still evoke our sympathy, reminding us of the terrible tragedy of slavery. For Madison, however, republican government itself amounts to holding the wolf by its ears, in the sense that each of us may—and at some point will—be part of a majority faction that can easily devour those who stand in our way. In addressing the dangers of faction he gave special attention to faction based on race, calling it the basis of “the most oppressive dominion ever exercised by man over man.” He insisted that future generations of Americans understand clearly the role that slavery played within our constitutional founding. If race-based faction was the most dangerous and repugnant form of this republican disease, it was not the only form. Madison also recognized that, “so strong is this propensity of mankind, to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions, and excite their most violent conflicts.”

Madison always reminds us that the most fundamental problem in republican government is our own nature. This is a hard lesson to hear, which is why Beard found it so shocking, and why Farrand sought to drown it out. Broadwater’s Jefferson, Madison, and the Making of the Constitution succeeds in correcting Beard by allowing Jefferson and the Declaration of Independence to speak on their own terms. It is less successful in allowing Madison to speak on his own terms.  

Jason Ross is Associate Professor and Department Chair for Government and Public Policy in the Helms School of Government at Liberty University.