Civic Literacy Curriculum
This curriculum guide is intended to cover question 88.
Q88. Which of the following is not something James Madison did?
A. Become known as the “Father of the Constitution”
B. Co-author the Federalist Papers
C. Serve as a member of George Washington’s Cabinet
D. Serve as fourth president of the United States
Background
James Madison (1751-1836) was one of the many Virginians who played a central role in the founding of America. After studies at Princeton (then called the College of New Jersey) with the Presbyterian minister and Declaration of Independence signer John Witherspoon, Madison returned to the family plantation at Montpelier.
A young Madison had helped George Mason work on the Virginia Declaration of Rights and Virginia Constitution of 1776; later, Madison, a protégé of his older neighbor Thomas Jefferson, helped the latter disestablish the Anglican Church in Virginia on grounds of religious freedom, writing the famous “Memorial and Remonstrance against Religious Assessments.” He served both in the Virginia legislature and as a Virginia representative to Congress. Madison brought not only these practical experiences but careful study to the 1787 Constitutional Convention. Madison was generally regarded as one of the best-prepared members of the Convention: he had carefully studied political history, as well as the problems of the Articles of Confederation and the state governments in the 1780s.
Although the finished product was quite different than the one Madison proposed, his influence in first developing the Constitution and then defending it as one of the authors of the Federalist Papers and in the Virginia ratifying convention mean he is often celebrated as the “Father of the Constitution.” Madison himself had advocated a more centralized national government than the Convention’s finished product, which in some ways reflected the more decentralized views of others like Roger Sherman more than his own preferences. Nonetheless, Madison believed himself bound by the Constitution, especially what the state ratifying conventions, far more skeptical of central power, had agreed to; that was what he defended, both in writing the Federalist Papers and in Congress.
As one of the three co-authors of the series, Madison wrote a number of the most important and well-known Federalist Papers. These included No. 10 (on the benefits of an extended – or large – republic), No. 37 (on the challenges that the Constitutional Convention had to overcome), No. 39 (on the distinctive form of federalism embodied in the Constitution), and Nos. 47-51 (on the separation of powers). In these essays, Madison penned some of the most famous lines in American political writing. For instance, in Federalist No. 10, he reminded his readers that “enlightened statesmen will not always be at the helm,” and, in Federalist No. 51, he observed, “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
During the First Congress, Madison led the effort to consider constitutional amendments of the kind requested by the state ratifying conventions. Although all of Madison’s proposed amendments were not ratified, he drafted the amendments that, with some revisions, became the Bill of Rights. As a member of the early Congresses, Madison was initially a close ally of George Washington before becoming more closely aligned with Thomas Jefferson’s views on the Constitution, believing that Alexander Hamilton and his faction were not being faithful to the limits on the federal government that had been agreed on in the writing and ratifying of the Constitution.
As a result, Madison and his mentor Jefferson helped to found the Democratic-Republican Party, which they viewed as committed to defending the Constitution’s meaning. As a key part of this, Madison authored the “Virginia Resolutions” by which the state of Virginia critiqued the Federalist Party’s Alien and Sedition Acts as violating both the Tenth Amendment’s general limits on federal power and the First Amendment’s specific limits on restricting free speech.
Madison eventually succeeded Jefferson as the fourth president of the United States and led the country during the War of 1812. (He also succeeded Jefferson as head of the University of Virginia). Madison, who had been younger than most of the other participants in the Constitutional Convention, outlived them to become the last of the Founders. Although Madison believed that the original meaning of the Constitution as agreed to by those ratifying it, rather than the original intent of those who drafted it in secret, bound the American people, Madison nonetheless prepared his copy of his notes from the convention for release after his death. Even as he similarly criticized slavery and ensured the term slave never appear in the U.S. Constitution, like almost all other Virginia leaders, Madison was a slaveholder, and did not free his slaves on his death.
One of Madison’s final major political acts was coming out of retirement to criticize South Carolina Senator John Calhoun’s doctrine of “nullification,” which Calhoun claimed had been inspired by Madison’s Virginia Resolutions, and by which Calhoun asserted the authority of states to unilaterally veto federal activity. As did the similarly states’ rights committed Andrew Jackson, Madison argued that limiting the federal power to the enumerated powers in the text of the Constitution did not include a veto power in the states, which was nowhere lodged in its text or an inference of that text.
Offline Activity
Introduction
The Bill of Rights was not a product of deliberation at the 1787 Constitutional Convention; they rejected George Mason’s proposal to include one. Instead, what became the Bill of Rights resulted from recommendations by the state ratifying conventions, who sought further guarantees of individual and local liberty by adding more explicit limits on federal power. Next, James Madison proposed a series of amendments to Congress, and finally, Congress revised, passed, and sent most of these proposed amendments on to the state legislatures for ratification. In this exercise, students will see how the revision process works by reading these different versions alongside the final Bill of Rights. (Optional supplementary readings are excerpts from James Madison’s speech proposing and explaining his amendments, as well as a collection of his speeches/writings explaining why the ratifying conventions who first recommended the amendments are an important source of ascertaining the meaning of the Constitution).
Required materials
The Teaching Materials for this exercise includes an answer key.
Instructions
- Divide the class into groups of 3-4 based on the students’ individual levels. Group A is the group that needs some extra support. Group B is the core group that has the core knowledge to complete the activity. Group C is the enrichment group that has mastered the material; Group C students are prepared to extend their knowledge. Each group should have at least one student from Group A, one from Group B, and one from Group C.
- Depending on the class, you may wish to have the students work independently.
- Provide each student or pair with the necessary materials. You may consider assigning the readings, especially the optional readings, the night before, so that the students can fill out the worksheet and discuss the material in class
- Explain to each group that they will be reading earlier versions of what became the Bill of Rights, first recommended by the state ratifying conventions and then written into proposed amendments by James Madison, which were then modified by Congress into the Bill of Rights we know today. Each group will read the different proposed amendments, filling out the worksheets and answering the provided questions as they go.
- Recommend that they highlight instances where they find similarities and differences.
- They don’t need to write the entire text of the amendment in the worksheet: for example, “NH, 11th” for the 11th New Hampshire proposal.
- Let them know that they want to look for similar ideas, not identical statements. For example, one similarity is that nearly all of the documents provide for something like the Tenth Amendment reiterating and clarifying that the federal government is one of limited powers written in the text of the Constitution, although the states and Madison use different language to describe this idea.
- Circulate throughout the room as the students complete the worksheets to check for understanding.
- Once everyone has completed the worksheet, use their answers to springboard into a discussion. You might call on different groups or students to explain (for example, how the religion clauses came about). Once you have discussed how the changes were made, turn to the questions on the worksheet as a basis of discussion.
- You might also ask them about the process of revision itself: did the amendments get better by being refined? Or did the need to appease many people with different ideas result in compromises that weakened them?
- The most unique feature of the list of amendments proposed by James Madison is his idea that some of these rights (specifically conscience, press, or trial by jury) could not be restricted by the state governments either. (In other words, Madison was adding to the list of restrictions on the states in Article 1, Section 10, rather than to the list on the federal government in Article 1, Section 9). Such a proposal appears neither in the final proposal by Congress nor in any of the amendments recommended by the states. How is this different?
- If the primary concern was in restricting the federal government, here was a place Madison is proposing to have the federal government impose an additional restriction on the states—perhaps not the best way to appease the states. You may note Madison was ultimately vindicated: the 14th Amendment applies not only those three rights, but the individual rights guarantees in the first eight amendments of the Bill of Rights, to the states.
Discussion Prompts
Background
Unlike other Founders, James Madison does not appear on Mount Rushmore, or an iconic monument in Washington D.C. or on circulating currency. Instead Madison’s monument is generally considered to be the Constitution itself—the term “Madisonian” is often used as an adjective referring to its carefully laid structures and rights.
Prompt 1
James Madison was arguably the Founding Father most responsible for the Bill of Rights. He had many other accomplishments that helped build the American republic. What is one thing that he is well known for? Can you name others?
Prompt 2
Do you think that Madison’s accomplishments receive the acknowledgment today that they deserve? How would you compare his accomplishments to those of other Founders, like Washington, Jefferson, and Hamilton? If there were a monument to Madison in Washington, D.C., what do you think that monument would emphasize most about Madison’s life, and why?
K-2 Lesson
Newsworthy James Madison
By Stefanie Kelly
Lesson Summary: Students will learn about James Madison and his reputation as the “Founding Father” of the Constitution. Students will create a Federalist Paper advertisement that accentuates the contributions of James Madison.
Learning Objectives:
Students will learn about the contributions of James Madison as the “Founding Father” of the Constitution.
Students will design a “Federalist” newspaper advertisement that supports representative government.
Grades 3-5 Lesson
James Madison
By Morgan Routh
Lesson Summary: In this lesson, students learn about James Madison and summarize the article using “The GIST” strategy.
Learning Objectives: Students will understand the contributions of James Madison to the Constitution and the Bill of Rights and appreciate the importance of the amendment process.
Grades 6-8 Lesson Plan
Founding Fathers
By Sheila Edwards
Lesson Summary: Students will use the “Fast and Curious” method to learn facts about some of America’s Founding Fathers.
Learning Objectives: Students will learn well-known facts about 5 of America’s Founding Fathers.
High School Lesson Plan
The American Founding
By Kevan Ottochian
Lesson Summary: Students will conduct thorough independent research to develop a famous resume on one individual from the American Founding.
Learning Objectives:
- Select one individual from a selected list of patriotic Americans.
- Learn how the historical figure contributed to America’s founding and their enduring legacy plays a role today.
Federalist 47 Annotated
Federalist No. 47
The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts
James Madison
From the New York Packet. Friday, February 1, 1788.
HAVING reviewed the general form of the proposed government and the general mass of power allotted to it, I proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts.
Annotation
Madison shifts from the general design of the Constitution to the specific question of how power is divided among branches.
One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct.
Annotation
Madison identifies the main criticism: the Constitution seems to blend the three branches instead of keeping them fully separate.
In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty.
Annotation
Critics argue that the Constitution does not protect liberty because it does not separate power strongly enough.
The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.
Annotation
The Anti-Federalist concern is that one branch could become too powerful and overwhelm the others.
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded.
Annotation
Madison acknowledges that the principle behind separation of powers is important and widely respected.
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.
Annotation
Key definition: tyranny happens when one person or group holds all government power.
Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.
Annotation
Madison agrees that if the Constitution truly concentrated all power, it would deserve rejection.
I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied.
Annotation
Madison’s main claim is that the critics misunderstand what separation of powers really means.
In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.
Annotation
Madison says the issue depends on the true meaning of separation of powers, not a simplified version of it.
The oracle who is always consulted and cited on this subject is the celebrated Montesquieu.
Annotation
Madison introduces Montesquieu, the political thinker most often used to support separation of powers.
If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.
Annotation
Even if Montesquieu did not invent the idea, Madison says he made it famous and influential.
Let us endeavor, in the first place, to ascertain his meaning on this point.
Annotation
Madison wants to show that Montesquieu did not mean absolute separation with no interaction between branches.
The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry.
Annotation
Madison compares the British Constitution to a model text that Montesquieu studied carefully.
As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system.
Annotation
Madison argues that Montesquieu used England as a model when thinking about liberty and government.
That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn.
Annotation
Madison insists that the best way to understand the principle is to look at the actual system Montesquieu observed.
On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other.
Annotation
Madison’s evidence begins here: even the British system mixes powers.
The executive magistrate forms an integral part of the legislative authority.
Annotation
The executive branch is involved in lawmaking.
He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts.
Annotation
The executive can make treaties, and those treaties can function like law.
All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils.
Annotation
The executive has major influence over the judiciary in the British system.
One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases.
Annotation
The legislature also performs judicial functions, especially through impeachment and appeals.
The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote.
Annotation
Judges may take part in legislative discussion, which shows another form of overlap.
From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,'' or, "if the power of judging be not separated from the legislative and executive powers,'' he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other.
Annotation
This is Madison’s key interpretation: branches do not need to be completely isolated.
His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted.
Annotation
The real danger is total control, not partial influence or overlap.
This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority.
Annotation
Madison gives examples of what true consolidation of power would look like.
This, however, is not among the vices of that constitution.
Annotation
Madison says the British Constitution does not actually commit the problem he just described.
The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it.
Annotation
The executive has influence, but not complete power over lawmaking or judging.
The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils.
Annotation
Judges are connected to the executive in some ways, but they do not fully become part of it.
The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort.
Annotation
The legislature has some judicial power, but not full control over justice.
The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department.
Annotation
The legislature has checks on the executive, but not total executive power.
The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning.
Annotation
Madison now uses Montesquieu’s own reasons to prove that complete separation was never the point.
"When the legislative and executive powers are united in the same person or body,'' says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner."
Annotation
Montesquieu warns that if one body both makes and enforces laws, liberty is threatened.
Again: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR."
Annotation
Madison shows that combining judging and lawmaking would allow arbitrary rule.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR."
Annotation
If the judiciary were combined with the executive, judges could act like enforcers without restraint.
Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.
Annotation
Madison concludes that Montesquieu supports preventing total concentration of power, not eliminating all overlap.
If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.
Annotation
Madison turns to the states and argues that none of them keep the branches fully separate in practice.
New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring "that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE BOND OF UNITY AND AMITY."
Annotation
New Hampshire recognizes that some mixing of powers is unavoidable and may even be necessary.
Her constitution accordingly mixes these departments in several respects.
Annotation
Madison uses New Hampshire as evidence that real constitutions combine powers.
The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments.
Annotation
The Senate can act in a judicial role during impeachment trials.
The President, who is the head of the executive department, is the presiding member also of the Senate; and, besides an equal vote in all cases, has a casting vote in case of a tie.
Annotation
The executive participates directly in the legislative process.
The executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department.
Annotation
The legislature has strong influence over the executive branch.
Several of the officers of state are also appointed by the legislature.
Annotation
This is another example of legislative involvement in executive affairs.
And the members of the judiciary department are appointed by the executive department.
Annotation
The executive also has power over the judiciary.
The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty.
Annotation
Massachusetts uses a clearer statement about separation, but Madison still sees overlap in practice.
It declares "that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them."
Annotation
The statement sounds strict, but Madison will argue that the actual constitution still blends powers.
This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention.
Annotation
Madison says the Constitution follows Montesquieu’s true principle as he has defined it.
It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department.
Annotation
The rule is about total takeover, not every form of contact between branches.
In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted.
Annotation
Even Massachusetts, which sounds strict, still allows some overlap.
The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments.
Annotation
The branches check one another through veto power and impeachment.
The members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches.
Annotation
The executive has influence over judges, but that power is shared with the legislature.
Lastly, a number of the officers of government are annually appointed by the legislative department.
Annotation
The legislature still has an important role in staffing the government.
As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the Constitution have, in this last point at least, violated the rule established by themselves…
Annotation
Madison notes an inconsistency in the state constitution: the legislature is doing something executive-like.
The constitution of North Carolina, which declares "that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other,'' refers, at the same time, to the legislative department, the appointment not only of the executive chief,
Annotation
North Carolina claims full separation but still gives the legislature appointment power.
but all the principal officers within both that and the judiciary department.
Annotation
The legislature helps choose top officials in multiple branches.
In South Carolina, the constitution makes the executive magistracy eligible by the legislative department.
Annotation
In South Carolina, the legislature chooses the executive leader.
It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the State.
Annotation
South Carolina gives the legislature broad appointment powers over both executive and judicial offices.
In the constitution of Georgia, where it is declared "that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other,'' we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority.
Annotation
Georgia also mixes powers despite claiming separation.
Even justices of the peace are to be appointed by the legislature.
Annotation
Madison keeps showing the same pattern: the legislature reaches into other branches.
In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments.
Annotation
Madison is not defending the states themselves. He is using them as evidence.
I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed.
Annotation
Madison admits the state constitutions have flaws because they were drafted quickly and by inexperienced framers.
It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper.
Annotation
Madison says some states mixed powers too much and did not enforce separation well in practice.
What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America.
Annotation
Madison’s conclusion: the Constitution does not break the separation of powers principle as critics claim.
This interesting subject will be resumed in the ensuing paper.
Annotation
Madison signals that he will continue the argument in the next essay.