Criminal Justice & the Rule of Law Democracy & Elections Surveillance & Privacy

Madison’s Vacillations—And Ours: Seeing a Founder, an Opposition Leader, a Muddle-Through Executive, and a Wartime President in Ourselves

Benjamin Wittes, Ritika Singh
Thursday, November 28, 2013, 7:24 AM

Americans vacillate over national security and government power. We want an effective intelligence community, but we do not want too much surveillance or collection. We want to rein in the NSA, but we also wax outraged when the intelligence community does not connect the dots. We want to capture and interrogate the enemy, but we want to close Guantanamo Bay. We want to kill the enemy, but drone strikes make us uncomfortable. We berate our political leadership for its exertions of power and also for its forbearance in exerting power.

Published by The Lawfare Institute
in Cooperation With

Americans vacillate over national security and government power. We want an effective intelligence community, but we do not want too much surveillance or collection. We want to rein in the NSA, but we also wax outraged when the intelligence community does not connect the dots. We want to capture and interrogate the enemy, but we want to close Guantanamo Bay. We want to kill the enemy, but drone strikes make us uncomfortable. We berate our political leadership for its exertions of power and also for its forbearance in exerting power. The further we get from the September 11, 2001 attacks, the less tolerance we show of strong government action to prevent future attacks—the very actions we demanded in the wake of the attacks, the very actions that followed bitter recriminations for the inactions that preceded that day. We grow less tolerant, that is, except when an event like the Boston Marathon bombing happens, when we immediately want to know why the government did not do more and know more and act earlier and more decisively.

It is easy to laugh at our vacillations, to regard them either as failures of nerve or as inconstancy with respect to the values we profess as a society. Yet the truth is that they are honorable struggles, ones that reflect genuinely competing and not-always-compatible concerns in a political culture that is genuinely committed to limited government and personal liberty even as it often perceives the need to take muscular actions to protect itself—and those principles—from those who would do it harm. These vacillations are also very old. The contemporary literature and case law on the relationship between government security powers and civil liberties routinely echoes back to the Civil War and before. The Founders themselves struggled with the problems of creating a government—and an executive branch within that government—with power adequate to protect security yet with power bounded in such fashion as not to menace the liberty of people or the sovereignty of states that made up the union. They profoundly disagreed with one another about how to optimize security goods while also constraining federal power and while not granting imperial powers to the presidency within the national government. Sometimes, these struggles—so closely relate to our own—took place within the personalities of individual founders over time. And perhaps no leader of prominence in the Founding period vacillated more than did the Father of the Constitution himself. James Madison went back and forth over the course of his long career—as the Constitution’s principal theoretician, as an opposition leader, as Secretary of State in an administration committed to shrinking federal power, and finally as a wartime and post-war President—about how security should inflect the powers we invest in government. In Madison’s vacillations, we see fascinating harbingers of our own. Last week, we attended a conference at Madison's old estate, Montpelier, on Madisonian thought in contemporary public policy and governance. We presented this essay, a version of which will become a chapter in a book Montpelier and Brookings are putting together on the subject. It is very long for a blog post, but it's Thanksgiving and a long weekend, and some readers may find the following reflections on Madison's career and our contemporary struggles engaging. In it, we look at Madison’s rather uneven trajectory on this subject of security and executive and federal power, and we try to relate that trajectory to our contemporary struggles. We trace the evolution of his attitudes through four discrete periods of his career, periods in which his role changed significantly and his attitudes changed—sometimes sharply, sometimes to lesser degrees—along with them. We then look at the question of how we should understand these shifts, which a cynic might regard as reflecting hypocrisy but which we argue reflect more-honorable movements between values and goods that blend in different concentrations in different circumstances. Finally, we look at our own era---attempting to map Madison’s different sensibilities onto different strains of our own attitudes towards the relative importance of empowering government to protect security and restraining excesses of governmental power. We suggest that the various strains of Madisonian thought on the subject still persist in our contemporary dialog, each playing a discernible role in the post-9/11 debate over the governance of security.

One Man, Four Periods

We remember Madison as one of the greatest theoreticians—perhaps the greatest theoretician—of government in history. But Madison was not principally a theorist, at least not in the abstract sense. He was a practitioner, a politician, and a person who had to think through governance questions because a society in which he played a leadership role over a number of decades required formative governance decisions. His theoretical views stemmed from uncommonly deep study of the history of governance, constitutions, and political arrangements in other countries. But this study flowed less from academic interest than from the need to react to the circumstances and of the young country he was helping to build. These circumstances changed substantially over the course of his public life, and Madison’s views and approaches changed with them. Madison the president faced different problems from those faced by Madison the prospective imaginer of the ideal constitutional arrangement for a far-flung, decentralized country with an inadequate constitutional arrangement. Madison the opposition leader imagined federal power differently than did Madison the concerned citizen of a country with virtually no central leadership. For present purposes, we have broken Madison’s career into four distinct periods. We use for nearly all narrative matters Ralph Ketcham’s indispensable biography of Madison. We also use Ketcham’s book as as a roadmap for his thinking on issues of executive power and security during these four periods of his public life, though we have also drawn on the sources Ketcham cites to flesh out these points:
  • First, during the pre-Convention and Convention period, Madison advocated for a stronger federal government.
  • Second, during the era of Federalist government, Madison expressed anxieties with what he saw as excesses of federal power under Treasury Secretary Alexander Hamilton and President John Adams—and grave concerns with civil liberties abuses in the name of security.
  • Third, in Madison’s period first as Secretary of State under President Thomas Jefferson and then as President, he attempted to govern under the Republican vision of limited federal power and a highly-restrained executive within the federal system—though practical exigencies often forced him to make peace with powers he had once decried and he did so without particular apology.
  • Finally, as president during and after the War of 1812 with Britain, Madison had to govern as wartime commander in chief. Although he tried mightily to do so with a narrow conception of his role and showed remarkable restraint with respect to civil liberties in wartime, he also ultimately expanded the reach of the federal government and helped institutionalize key military and security powers that had once given him great anxiety.

Madison as Founder

When Madison envisioned the ideal government for the nascent United States, national power played a key role in what he saw. As part of the Virginia delegation to the Constitutional Convention in 1787, he was one of the most vocal supporters of a strong Union. Both behind the scenes in the years leading up to the Convention and during the bitter debates of the convention itself, Madison maintained that a strong federal government and a successful Union were inextricably linked and that the authority vested in the government by the Articles of Confederation was insufficient to carry out the business of the country. One of the key motivations behind his desire to strengthen the federal government—though by no means the only one—was concern about security. He was wary of humiliation by foreign powers and observed that absent federal power, the states would continue warring with one another—as they frequently did over issues of commerce—leaving countries like Spain, France, and England free to exploit the divisions between them. In a letter to Jefferson in 1785, Madison wrote angrily about the trade policies of Great Britain, which rendered the United States a “passive victim[] to foreign politics.” According to Madison, the only way to correct this wrong was “harmony in the measures of the States,” with “acquiescence of all the States in the opinion of a reasonable majority.” This might seem like mere concern about trade policy, except that Madison clearly saw the problem as creating something of an existential threat to the union. As he wrote portentously in the letter: “I apprehend danger to [the] very existence [of the Union] from a continuance of defects which expose a part, if not the whole, of the empire to severe distress.” Madison believed that egregious “trespasses of the states on the rights of each other” threatened to provoke international conflict. They may have arisen because of the lack of regulation over trade and the absence of uniformity in the currency. But as he wrote in one of his most famous pre-convention essays, the tensions, particularly to the extent they involved “subjects of foreign powers,” could drag “the Union in foreign contests." If America were to comport herself effectively abroad and prevent herself from being exploited at home by foreign actors, she would have to speak with one, unified voice. The decentralized structure of the Articles of Confederation had other problems. The states routinely violated international law and treaties when it suited their purposes—to such an extent that Madison worried during the convention that “complaints [were coming] from almost every nation with which treaties have been formed.” Leaving this self-serving state behavior unchecked would surely bring about “foreign wars,” he argued, and “a rupture with other powers is among the greatest of national calamities.” An effective central authority was needed to ensure that “no part of a nation shall have it in its power to bring [that] on the whole.” America also had to be able to defend herself if she were invaded or attacked by foreign powers, and the experience of the Revolutionary War---during which George Washington had insufficient independence from the Continental Congress and the Congress had insufficient power to fund his army---offered a cautionary lesson that a more robust federal power would be necessary. During the Virginia Ratifying Convention on June 16, 1788, Madison elaborated on the problem:
[W]here is the provision for general defence? If ever America should be attacked, the states would fall successively. It will prevent them from giving aid to their sister states; for, as each state will expect to be attacked, and wish to guard against it, each will retain its own militia for its defence. Where is this power to be deposited, then, unless in the general government, if it be dangerous to the public safety to give it exclusively to the states?
The “safety of the Union,” Madison had insisted at the federal convention, depended on the ability of the government to “repel foreign invasions.” The young country also faced no shortage of internal security concerns on its shores. During the federal convention, Madison made the case that the country had to be able to suppress insurrections and preserve internal security. He pointed to violence in Massachusetts at the time and the existence of slavery, and the resulting possibility of slave revolts, as evidence of potential instability that might require federal power:
The insurrections in Massts. admonished all the States of the danger to which they were exposed. Yet [there are] no provisions for supplying the defect of the Confederation on this point. According to the Republican theory indeed, Right & power being both vested in the majority, are held to be synonimous. According to fact & experience, a minority may in an appeal to force be an overmatch for the majority. 1. If the minority happen to include all such as possess the skill & habits of military life, with such as possess the great pecuniary resources, one third may conquer the remaining two thirds. 2. one third of those who participate in the choice of rulers may be rendered a majority by the accession of those whose poverty disqualifies them from a suffrage, & who for obvious reasons may be more ready to join the standard of sedition than that of the established Government. 3. where slavery exists, the Republican Theory becomes still more fallacious.
The great arguments for federal power in the Federalist Papers, some of which sound themes of security as well, were generally written by Alexander Hamilton, but there is no doubt that Madison shared these concerns. If the story had stopped here, we would remember Madison---at least on this point---as a theoretician of expanded federal power.

Madison the Opposition Leader

Madison’s enthusiasm for a strong federal power, however, did not survive the decade the followed ratification of the Constitution, and his anxieties about executive authority in the security sphere played an important role in his changed views. Scholars have long debated how greatly his attitudes really shifted, and whether they are or are not reconcilable. But at a minimum, the change was considerable. Over a period of less than a decade, he went from urging federal supremacy—including the authority of the national government to veto state laws—to leading the opposition to exertions of federal power and interpreting federal authorities under the Constitution narrowly. One of the major reasons for the change was the vision of executive power promoted by the Federalist powerhouse, Alexander Hamilton. Under President Washington, Hamilton had become Secretary of the Treasury. Madison’s relationship with Hamilton—previously cordial and cooperative because of both men’s aspirations for a strong Union at the convention—began to fray as Hamilton’s ambitious plans for the country’s finances gave Madison heartburn. In his famous Report on Public Credit, Hamilton proposed establishing the public credit of the country using measures that Madison considered unconstitutional. Madison believed, as Ketcham summarizes his view, that the secretary’s plan was a vast overreach of federal authority and that it “would result in an unrepublican concentration of power and dynamic of government.” Madison’s discomfort was further heightened by Hamilton’s plan to create a national bank. He now saw the darker side of strong, centralized federal executive authority, and he worried that the most cherished republican values---separation of powers and limited federal power---were quickly eroding. This attitudinal shift away from federal authority and towards suspicion of concentrated presidential power inflected Madison’s view of security matters. In the period leading up to the Jay Treaty with Great Britain, the man who only a few years earlier had argued for a strong central government capable of speaking with a single voice on foreign affairs now objected to Hamilton’s views of executive hegemony in foreign affairs. Hamilton, a staunch admirer of Great Britain despite his role in the Revolutionary War, wanted to preserve British maritime hegemony because the young American economy depended so heavily upon it, and he wanted a strong U.S.-British relationship. Madison, by contrast, took the view that a strong France would serve as a counterweight to British arrogance and that the rivalry between them would allow the United States to prosper. In a series of articles signed “Pacificus” and published in the summer of 1793, Hamilton defended robust executive prerogatives in foreign affairs, stating that the president had the power under the Constitution to make and interpret treaties, receive ambassadors, and otherwise act as the primary executor of the laws of the United States. Madison, however, vigorously opposed this interpretation of executive power. Responding under the name “Helvidius,” he wrote that the Hamiltonian view struck at the “vitals of [the country’s] constitution, as well as at its honor and true interest.” He argued that the treaty power “is not an execution of laws [and] does not presuppose the existence of laws” to execute. “It is, on the contrary, to have itself the force of a law, and to be carried into execution, like all other laws, by the executive magistrate.” In other words, making a treaty is a legislative act. “To say then that the power of making treaties, which are confessedly laws, belongs naturally to the department which is to execute laws, is to say, that the executive department naturally includes a legislative power. In theory this is an absurdity—in practice a tyranny.” Similarly, “a declaration that there shall be war, is not an execution of laws” but is an “enacting, as a rule for the executive, a new code adapted to the relation between the society and its foreign enemy.” In Helvidius No. 4, Madison continued to warn of the dangers of executive prerogative in matters of security, saying that:
In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.
Even as tensions grew internationally and the country’s security interests began to suffer, Madison refused to cede more power to the executive to prepare for war. According to Ketcham, when news arrived of British misbehavior—of impressment of American ships and fomenting of unrest among Indians in the West—Madison did not support the army and navy increases called for by Hamilton and the Federalists. Almost two decades later, as president, Madison would take a very different view of how to respond to what turned out to be persistent irritants in the U.S.-British relationship. Madison held the same line during the Whisky Rebellion in the summer of 1794. Despite the quite-real and quite-troublesome domestic unrest that was taking place in western Pennsylvania, Madison did not want governmental force to be the answer---and specifically opposed it---believing  it would set an unhealthy precedent of central high-handedness in enforcing the law. The same Madison who only seven years earlier had cited domestic insurrection as one reason the Constitution should create a strong central government now argued in a letter to James Monroe that insurrections usually caused an “increase [in] the momentum of power.” Madison was certain that had the rebellion not ended on its own terms, “a formidable attempt would have been made to establish the principle that a standing army was necessary for enforcing the law.” The insurrection, once the justification for federal power, had now in Madison’s view become a lesser threat than the power to put it down. When John Jay returned from London, having negotiated a treaty governing the terms of American commerce with Great Britain, Madison and his allies were enraged. Just as they had feared, Jay’s Treaty was---in their view---far too favorable to Britain and wholly insufficient in addressing American maritime grievances. Along with his fellow members of the House of Representatives, Madison called for President Washington to make public the papers of the negotiations related to the treaty. The Hamiltonians again contended that such a request threatened executive prerogatives in foreign policy. Some of political Madison’s opponents went even further, accusing him of being unprincipled; during the Constitutional Convention, they argued, Madison had urged adoption of the powers President Washington was now claiming. Madison pushed back, saying that this interpretation of executive authority threatened simple republican government. According to Ketcham, Madison believed that if the House of Representatives did not have these powers, it would not be able to “deliberate as the people’s representatives nor protect their interests.” The apogee of Madison’s period as an anti-Federalist opposition leader arose not over issues of state versus federal power or issues of federal separation of powers, but over a classic conflict between civil liberties and governmental security authorities. The Alien and Sedition Acts, passed under President John Adams in 1798 as the United States was on the verge of war with France, took place during a period in which Madison had stepped back from political life. While he was disquieted by Adams’s calls for domestic military preparedness as tensions with France grew, he only re-entered national politics because he found the Sedition Act so appalling. The Sedition Act criminalized criticism of the federal government and its policies, making it a crime to “write, print, utter or publish . . . any false, scandalous, and malicious writing against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute.” Madison quickly became one of the primary opponents of the law, and as a member of the Virginia Assembly, he authored the famous Virginia Resolution in 1798 and the Report on the Resolutions in 1800---both of which assailed the Sedition Act on constitutional grounds. Interestingly, Jefferson---who concurred in Madison’s disapproval of the Alien and Sedition Acts, and who authored the Kentucky Resolutions---was too extreme in his opposition for Madison’s liking. Jefferson touted state supremacy over the powers of the federal government and argued that each state legislature had the right to oppose those federal laws it deemed unconstitutional---an argument that presaged later southern pro-slavery arguments that states had “nullification” powers with respect to federal laws to which they did not consent. Although Madison also strongly advocated for limited government power and fully agreed that the Alien and Sedition Acts were unconstitutional, he framed his arguments largely in free speech terms and balked at veering so far from his original positions on a unified country. In short, by the time the Jeffersonians assumed power in 1801, Madison had developed significant anxieties along three separate axes that have echoed down through the ages in discussions of security policy. He had become worried that the federal government had too much power vis a vis the states and the people. He had become worried that the executive branch had too much power vis a vis the legislative branch given whatever quantum of power the federal government as a whole might have. And he had become worried that Congress was transgressing the Bill of Rights in its legislative enactments. While Madison the Founder had dreamed of a powerful central government capable of securing the country, Madison the opposition leader grew fearful of the Leviathan.

Madison in Power

When Jefferson ascended to the presidency, Madison was at his side as his most trusted advisor and counselor---and as secretary of state. In the eight years that followed and well into Madison’s own presidency, the pair governed the country while attempting to adhere to cherished Republican ideals of a restrained executive and a light federal footprint. But they also struggled to reconcile what was a frankly unrealistic vision of federal power with the realities they faced. And those realities shaped a great deal of their behavior in practice. The commitment to scaling back what the Jeffersonians saw as excessive Federalist commitment to central power was sincere. One of Madison’s first acts as secretary of state was to downsize the department---from eight employees to seven---a step Ketcham explains as an “economy move.” The size of the armed forces was reduced too and the judiciary was scaled back under the Judiciary Act of 1801. But like any opponents of governmental power who suddenly find themselves in power, they also had to govern, and to do so without gross hypocrisy, they had to do so only with the neutered tools with which their ideology left them. The trouble was that the country faced genuine problems that required national attention---and sometimes action. British impressment of American ships was still an issue, as was the need to navigate between the ambitions of two great powers---Britain and France---as well as lesser powers like Spain. This navigation did not always prove consistent with the Jeffersonian vision of highly-circumscribed federal and presidential power. Madison’s arguments at the convention about why the country needed central power had merit, after all. The first real test of the administration’s interpretation of federal power arose when James Monroe negotiated the purchase of Louisiana in a deal that, from the point of view of the national interest, could hardly have been better. It more than doubled the landmass of the country, it diminished American involvement in foreign power struggles by removing France from the North American continent, and it diminished its dependence on foreign powers for trade. It was also a bargain. All of this cost a mere $15 million. What the Louisiana Purchase was not, however, was a creature of an executive who saw himself as Congress’s magistrate in international affairs and who adhered strictly to those powers enumerated in the Constitution. It was, rather, the work of an energetic administration which took a leadership role in foreign policy and which saw itself as something of a nation-builder. This disparity caused President Jefferson a lot of grief. He actually wanted to amend the Constitution before moving forward with the Louisiana Purchase, but was talked out of it. Madison, too, struggled with reconciling the twin desires of a restrained executive and sustaining and expanding the Union for many years to come---but he did not doubt that opportunities such as the Louisiana Purchase were consistent with legitimately republican goals. He wrote to John Quincy Adams, Ketcham recounts, that “[T]he Constitution didn’t cover the case of the Louisiana Purchase, but that it was necessary to remember ‘the magnitude of the object,’ and to trust ‘the candor of the country’ to approve the deed.” Later, during his own presidency, Madison also engineered the takeover of what is now Florida and was then two separate territories. Although Spain technically controlled the territory of West Florida, it was almost entirely inhabited by American settlers---who had risen up against the Spaniards. Madison made one of the most muscular executive decisions he would in his time in office, and ordered the governor of the Orleans Territory, William Claiborne, to take over West Florida using as many militiamen as he needed. He then made plans to take over East Florida so a similar crisis would not arise there.  In a letter to William Pinkney, Madison wrote, "The occupancy of [West Florida] was called for by the crisis there, and is understood to be within the authority of the Executive. East Florida, also, is of great importance to the United States, and it is not probable that Congress will let it pass into any new hands." Madison knew that his actions were antithetical to Republican conceptions of presidential power. His justification, as Ketcham explains, was the necessity of thwarting the “extralegal domination of West Florida [by a third party] and excluding foreign powers [from gaining influence] there.” To put the matter simply, Jefferson and Madison had their scruples, but they did not shrink from strong action when the national interest as they saw it called for it. Nor did Jefferson and Madison declare war on all of the institutions of Hamiltonianism they had previously decried. Hamilton’s once-detested national bank was kept in place, and the two did not go out of their way to limit federal borrowing and spending power through constitutional amendment. As Ketcham summarizes:
[T]he Republicans were not blind doctrinaires. They remained cautious about broad construction and desisted on principle from countless acts of aggrandizement about which the Federalists would have had no qualms, while at the same time they recognized that the Constitution was not a strait jacket, but rather was an instrument for governing a nation.
The trouble was that while the Republicans were downsizing the government and its security functions, British policy had not changed. The British had formally authorized---even expanded----impressments of American sailors and generally did not respect the young country’s independence or interests. So ultimately, Jefferson and Madison had to begin making plans to improve the national defense. And the more they sought to confront the British, the more they had to use federal power to do so. On July 2, 1807, the administration issued a proclamation ordering all British ships to leave American harbors, and refusing British shipping aid and supplies. Jefferson ordered Virginia Governor William Cabell to ready militiamen should the British decide to shell American ports. And Madison called for a complete embargo on all American shipping in the Embargo Act of 1807 in the hope that completely freezing trade between the two countries would encourage the British to come to the negotiating table. Enforcing the act proved a frustrating and fruitless endeavor. Secretary of War Albert Gallatin simply did not have the federal muscle to stop smugglers from violating the embargo’s terms. He recognized, says Ketcham, that “Congress must either invest the Executive with the most arbitrary powers and sufficient force to carry the Embargo into effect, or give it up altogether.” The Jefferson administration never mustered the political will to make the embargo effective---if that were even possible. And the policy failed to change British behavior. Nor did Madison and Jefferson put particular muscle into getting Congress to appropriate money for war preparations, and Congress left the country altogether ill-prepared when, a few years later, Madison as president sought a declaration of war. This problem continued into Madison’s presidency, and he never dealt with it effectively. When in 1810 he requested an increase in defense appropriations, Congress---in a Tea Partyesque move in support of a balanced budget---reduced appropriations instead. This ultimately changed as continued tensions with Great Britain rendered war inevitable and a new session of Congress contained many more “War Hawks” who were less reticent about taking decisive action. And Madison also changed. The man who had opposed military readiness during the 1790s for fear of federal power, as Ketcham recounts, now “recommended enlarging the army, preparing the militia, finishing the military academy, stock-piling munitions, expanding the navy, and increasing the tariff to encourage trade and manufactures vital to the national interest.” In an even further departure from his old philosophical commitments, the president understood that “war would require both new taxes and large loans.” But Madison was late to the game, and Congress went with him only so far. It passed six resolutions ordering “an increase of ten thousand in the regular army, a levy of fifty thousand volunteers, altering the militia, full outfitting of the navy, and . . . the arming of merchant ships.” The president still faced vehement resistance both from “Old Republicans,” who opposed measures to increase the army and navy, and from Federalists, who opposed war with Britain. The result, as Stephen Budiansky, author of a naval history of the war, vividly illustrates, was dire under-preparation when war was finally declared in June 1812:
At the start of the conflict, the U.S. Navy had twenty warships, by extremely generous counting; the Royal Navy had nearly 1,000, including some ninety already on station in and around North American waters. The Royal Navy was in fact as large as all of the rest of the world’s navies combined. In 1812 it had 145,000 sailors and marines; it had nearly as many lieutenants (3,100) as the U.S. Navy had seamen altogether (3,600). The imbalance in land forces was, if anything, even more one-sided. At the start of the war, the U.S. Army had fewer than 7,000 soldiers to Britain’s quarter-million regulars under arms.
Madison in this period is a complicated figure---as only someone who has both thought deeply about governance and also tried to govern can be complicated. It is easy to find actions in the Jefferson administration that Madison the opposition leader would have denounced. It is also easy to find broad areas of consistency with the philosophy he expressed in the 1790s. At the end of the day, it is hard to escape the conclusion, however, that his principled commitment to Republican philosophy made him late and weak in displaying the sort of national leadership in the run-up to a conflict which the country needed---and without which it faced war altogether unready. This was at some level admirable. But it was not good leadership.

Madison as Wartime President

Madison’s story at the helm of government during the War of 1812 is one of remarkable restraint. His conduct, as we describe in detail in a paper entitled, James Madison, Presidential Power, and Civil Liberties in the War of 1812,” generally speaking defies the notion that presidents violate civil liberties in wartime and use wars to aggrandize executive powers. This was particularly striking, as we lay out in that paper, because the War of 1812 saw the most concerted domestic opposition to any war it has ever fought. Historian Donald R. Hickey describes it as “America’s most unpopular war,” noting that “it generated more intense opposition than any other war in the nation’s history, including the war in Vietnam.” The Federalists of the New England states were especially strident in their opposition. The federal government faced concerted resistance to efforts to collect taxes, recruit military officers, mobilize militias, enforce court orders, regulate trade, and even deploy the army and navy. Some of the activity was frankly treasonous: Federalist leaders marshaled state resources to oppose federal policy, openly sided with the enemy against Washington, and at one point gathered in a convention that contemplated the dissolution of the union. What’s more, the country was in a pretty dire situation. The War of 1812 did not go well for the United States, which was lucky at the end to scrape by with a stalemate; at one point, the British even marched to Washington and burned down the White House, leaving the president a homeless refugee. Yet despite the unquestionable domestic impediments he faced, Madison rejected on principle proposals to repress internal dissent, staying true to the position that he had taken toward dissent and criticism of public officials while the Federalists were in power. The Sedition Act had been deployed barely a decade earlier against members of his own political party by the very same Federalists who were now opposing the president’s policies. And other leaders of the time saw the Sedition Act as a useful precedent. But Madison rebuffed all such suggestions. He also showed a remarkable unwillingness to detain U.S. nationals in military custody or to subject them to military trials. In fact, during the War of 1812, Madison deferred to habeas judgments not only by federal courts but by state courts ordering the release of U.S. citizens suspected of spying for the enemy. What’s more, he seems to have willingly accepted that the military lacked the authority to detain such people and try them before military tribunals except with congressional authorization. Madison’s conduct during the War of 1812, in short, was that of a president who did the minimum---who did not take strong executive actions to ensure an American victory, and who was willing to incur and tolerate risks for principle. The federal government’s weakness was, in part, a reflection of Madison’s own philosophical commitments, and the inertia of the executive was a reflection of his core beliefs about executive power in a republic. Madison’s adherence to the proper role, as he conceived it, of the republican executive, arguably held the country back from winning the War of 1812 more decisively. Yet at the end of the day, the one president who ever sought to fight a war without augmenting federal power ultimately took critically important steps to do just that---though notably not at the expense of civil liberties. As Budiansky writes,
[T]he war’s outcome almost instantaneously forged a new consensus at home that embraced a standing army and navy as an essential expression of American national strength, prestige, and diplomatic influence in both the Western Hemisphere and Europe. Two decades earlier, Alexander Hamilton had promoted that characteristically Federalist view of military power. . . . That kind of thinking had been anathema to Republicans. But now all of the speeches about militarist “adventurism” and “tyranny” evaporated almost overnight and Republican opposition to the navy was hardly to be heard. In a passage that Alexander Hamilton himself might have written, Madison acknowledged in his message to Congress announcing the end of the war that a chief lesson of the conflict was that “a certain degree of preparation for war is not only indispensable to avert disasters in the onset but affords also the best security for the continuance of peace.”
In the wake of the war, Budianksy recounts, Congress authorized an increase in the navy, allocating “$1 million a year over eight years for construction of a substantial fleet.” It bolstered the army, and authorized reforms to its structure. Under James Monroe, Madison’s successor, West Point was revived. Republicans had moved away from the “short-lived era of military power as conceived by the framers of the Constitution---who thought armies and navies would be raised only when needed and promptly disbanded at the end of a war---to a more modern conception of military power as an inextricable component of national foreign policy even in peacetime.”

Our Several Inner Madisons

Each of these periods of Madison’s career and attitudes sounds in our time as a strain of thought in the post-September 11 period. Unlike Madison, we experience these strains concurrently, not sequentially, and it’s hard to identify any single modern individual who---as Madison did in his time---embodies so many of them. Yet they are all there, wrapped in our discourse over law and security. All of Madison’s periods represent themes that sometimes recede and sometimes come to the foreground in our own thinking. In much of our legislation, for example, we are Madison the Founder---keenly aware of how the absence of certain governmental powers threatens security and planning new structures to empower government to protect us. We think also, of course, in such cases about how to restrain government in the exercises of those powers, but like Madison at the Convention, we approach the project of the Patriot Act or the FISA Amendments Act or the Military Commissions Act or any number of other pieces of legislation with the fundamental idea of empowering government to secure us. We are imagining the structures of power we need to protect the country. At the same time, Madison the opposition leader very much lives too. He lives in the constant resistance to governmental security measures from civil libertarians and dissenting members of both political parties in Congress---all of whom invoke the fear of overweening governmental power that strong counterterrorism measures might yield. He lives in the insistence on the part of the courts on reviewing the constitutionality of certain powers and ensuring that their exercise complies with legal norms. He lives as well in the skeptical press, which presumes as a baseline matter that federal security powers---and executive power within the federal system---are ripe for abuse and threaten other values. He lives in our fear of the structures of power that we build, the limitations we build into those structures, and our occasional dismantling of them. He is the side of us who retreated from the excesses of the early years of the War on Terror---the side of the Bush administration, even when in power, that rebelled against the neo-Hamiltonianism of its most extreme flank. Madison in power---the man who muddled through very conscious of his values but also unapologetic about the Floridas and Louisiana and willing to seek from Congress money for war preparations he once opposed---lives as well. His sensibility is very much the state of the Obama administration. Obama, after all, came into office---much as the Jeffersonians did---promising a restoration of American values in the wake of what it saw as the dangerously-Hamiltonian vision of executive authority promulgated by its predecessor. Like Madison, Obama’s commitment to a retrenchment of executive authority---a greater submission to Congress’s will---was sincere. And like Madison, he took some significant steps that genuinely reflect a more-modest conception of his role. Yet just as Madison did not abandon the national bank, Obama did not fundamentally alter the course of the war against Al Qaeda. Indeed, the Federalists lost every battle but they ultimately won the war with republicanism; though they went extinct as a political party, the Republicans became them. In most respects, the America we live in reflects Hamilton’s vision, not Madison’s, to the extent the two disagreed. And the early Republican administrations, Madison’s included, were pivotal in that developing consensus as to the essential features of national power. Similarly, it was Obama’s embrace of key aspects of Bush’s war that have institutionalized them. Madison made his peace with the national bank. Obama has made his peace with the Authorization for the Use of Military Force (AUMF). Madison the wartime president---the man who desisted in great exercises of power available to him yet ultimately expanded federal power---still infects us too. For just as there were huge steps available to Madison that he did not take, there are steps available to us on which we turn our backs. We turned our backs on coercive interrogation. We, like Madison, have never subjected U.S. citizens to trial before military commissions. We have adopted restrictive rules of targeting for drones strikes that permit targeting the enemy with lethal force in only a tiny subset of the cases where the actual law of targeting would countenance the step. The Obama administration has generally eschewed claims of inherent presidential power, preferring to frame its actions in terms of congressional authorization. The list of things we do not do is actually very long in modern counterterrorism. It exists not only because of constitutional constraints but because, like Madison, we put limits on ourselves in the conduct of our war because of a vision of executive authority and where it comes from. And while we certainly do not go as far as Madison did in that regard, we do not always live at the margins of our power either. At the same time, there is no doubt that---also like Madison---we are building in the long term an edifice of federal war-making power unlike anything we have ever had before and unlike anything we would profess in platonic prospective terms to want. Obama back in May 2013 gave a moving speech about the end of the conflict, in which he insisted that “this war, like all wars, must end.” He even quoted Madison on the subject, warning the public that, “We must define the nature and scope of this struggle, or else it will define us. We have to be mindful of James Madison’s warning that ‘No nation could preserve its freedom in the midst of continual warfare.’” Obama in that speech assailed the idea of perpetual detention at Guantanamo Bay, saying:
history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it.  Imagine a future---10 years from now or 20 years from now---when the United States of America is still holding people who have been charged with no crime on a piece of land that is not part of our country.  Look at the current situation, where we are force-feeding detainees who are being held on a hunger strike. . . . Is this who we are? Is that something our Founders foresaw? Is that the America we want to leave our children? Our sense of justice is stronger than that.
This is the same Obama who ramped up drone strikes, effectively creating a new form of remote warfare. It is the same Obama who has interpreted the AUMF broadly enough to encompass military operations in Somalia and Yemen and whose Defense Department informs Congress that it sees no end to the conflict in the foreseeable future. And it is the same Obama who has defended in court under the AUMF the power to detain on a long-term basis those very Guantanamo detainees whose detentions the president bewails. Like Madison, in short, we refrain from a great many exertions of power but are also building an edifice of power that must concern the side of us that remembers that we were once principled opposition leaders.


In many ways, the Founder who most closely anticipated modern America in his vision of the country is Hamilton: unrepentantly nationalist in the state-federal divide, commercial and urban in the urban-agrarian divide, and deeply antislavery in the country’s regional divide. But in the security space, it is Madison’s struggles, not Hamilton’s, that presage our own. Madison was by no means the first figure to object to power and then to have to wield it. He is, however, the only member of the founding generation who both participated in the Convention and had to run a war under the Constitution written at it. He is the only  member who both theorized a federal government empowered to protect the nation’s security and then balked at what this looked like in practice---and then had to use those powers while in many ways still reticent about their exercise. He is the only member who both wielded an army and insisted on the right to dissent from the war he led---a mainstay of our modern attitudes toward dissent in security matters. In our essay on Madison and civil liberties during the War of 1812, we reflected on the fact that no president since Madison has really replicated his solicitude for civil liberties in wartime. Subsequent presidents, in very different ways, have pushed the envelope of their power. Madison, by contrast, left his envelope unstuffed. Subsequent presidential behavior, we wrote, reflects the “total victory of the Hamiltonian vision of the executive over the one that Madison championed.” We may speak in Madisonian language about executive power, we argued, but we are all Hamiltonians now in practice. This is true, but it does not mean that the anti-Hamiltonian strains of Madisonian thought and practice on security have died. They may not dominate the way presidents behave and public expectations of the presidency, but they show up constantly in other aspects of political culture. Madison’s concerns for dissent, for example, lie at the heart of modern First Amendment law. And as Jack as argued in a book on the subject, we have developed complex other mechanisms for protecting many of the values Madison embedded in his republican conception of the executive. Madison’s answer to fundamental security concerns differed profoundly from our own. But his struggles across time are a window into our own. In critical respects, he spoke for us---in all of our many diverse and warring voices.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
Ritika Singh was a project coordinator at the Brookings Institution where she focused on national security law and policy. She graduated with majors in International Affairs and Government from Skidmore College in 2011, and wrote her thesis on Russia’s energy agenda in Europe and its strategic implications for America.

Subscribe to Lawfare