American Enterprise Institute

The American Revolution and the Constitution

That Honorable Determination Notes

  1. Federalist, no. 39 (James Madison).
  2. Richard Hofstadter, The American Political Tradition and the Men Who Made It (Alfred A. Knopf, 1948).
  3. In 1913, historian Charles Beard published An Economic Interpretation of the Constitution of the United States, in which he argues that the framers designed the Constitution to protect their own selfish economic interests, diverging from the democratic spirit of the Revolution and Declaration of Independence. In 1980, historian and activist Howard Zinn published A People’s History of the United States, which, like Beard’s interpretation, argued that the Constitution was the product of elites at the expense of the working class. To the economically underprivileged, Zinn added the categories of race, ethnicity, and sex or gender, claiming that the wealthy, white, Anglo-Protestant males who dominated politics in the founding era excluded such folk from the halls of power.
  4. Federalist, no. 10 (James Madison).
  5. Gordon S. Wood, Revolutionary Characters: What Made the Founders Different (Penguin Books, 2007), 164; and Federalist, no. 10 (Madison).
  6. Martin Diamond, “Ethics and Politics: The American Way,” in The Moral Foundations of the American Republic, ed. Robert H. Horwitz (University Press of Virginia, 1977), 59. See Patrick J. Deneen, Why Liberalism Failed (Yale University Press, 2019).
  7. Thomas Jefferson to Henry Lee, May 8, 1825, Founders Online, https://founders.archives.gov/documents/Jefferson/98-01-02-5212; and James Madison to William Cogswell, March 10, 1834, Founders Online, https://founders.archives.gov/documents/Madison/99-02-02-2952.
  8. Abraham Lincoln to Henry L. Pierce and Others, April 6, 1859, in The Collected Works of Abraham Lincoln, ed. Roy P. Basler, vol. 3, 1858–1860 (Rutgers University Press, 1953), 376.
  9. Federalist, no. 9 (Alexander Hamilton).
  10. Thomas Jefferson to James Madison, September 6, 1789, Founders Online, https://founders.archives.gov/documents/Madison/01-12-02-0248.
  11. Thomas Jefferson to Henry Tompkinson [Samuel Kercheval], July 12, 1816, Founders Online, https://founders.archives.gov/documents/Jefferson/03-10-02-0128-0002.
  12. Jefferson to Tompkinson.
  13. See Federalist, no. 49 (James Madison); Federalist, no. 50 (James Madison); and James Madison to Thomas Jefferson, February 4, 1790, Founders Online, https://founders.archives.gov/documents/Madison/01-13-02-0020.
  14. See Federalist, no. 49 (Madison).
  15. Federalist, no. 49 (Madison).
  16. Federalist, no. 49 (Madison).
  17. Federalist, no. 51 (James Madison).
  18. James Madison to Thomas Jefferson, October 24, 1787, Founders Online, https://founders.archives.gov/documents/Jefferson/01-12-02-0274.
  19. James Madison, “Public Opinion,” in Colleen A. Sheehan, The Mind of James Madison: The Legacy of Classical Republicanism (Cambridge University Press, 2015), 245. See also Colleen A. Sheehan, James Madison and the Spirit of Republican Self-Government (Cambridge University Press, 2009). Compare Jack N. Rakove’s excellent discussion of legislative deliberation in Jack N. Rakove, A Politician Thinking: The Creative Mind of James Madison (University of Oklahoma Press, 2017), 54–95. Here Rakove argues that Madison viewed legislative debate and deliberation as a crucial component of republican government. Allowing for the consideration of diverse opinions and interests, Madison saw deliberation as essential for achieving consensus and making informed decisions that reflect the will of the people.
  20. Federalist, no. 51 (Madison).
  21. James Madison, “A Candid State of Parties,” in Sheehan, The Mind of James Madison, 268.
  22. James Madison, “Spirit of Governments,” in Sheehan, The Mind of James Madison, 257.
  23. Thomas Jefferson, “First Inaugural Address,” speech, US Capitol, Washington, DC, March 4, 1801, Founders Online, https://founders.archives.gov/documents/Jefferson/01-33-02-0116-0004.
  24. Jefferson, “First Inaugural Address.”
  25. Thomas Jefferson to Spencer Roane, September 6, 1819, Founders Online, https://founders.archives.gov/documents/Jefferson/03-15-02-0014.
  26. James Madison, “Notes on Vices of the Political System of the United States,” in Sheehan, The Mind of James Madison, 198.
  27. Madison, “Notes on Vices of the Political System of the United States,” 201.
  28. Madison, “Charters,” in Sheehan, The Mind of James Madison, 247.
  29. Federalist, no. 51 (Madison).
  30. Federalist, no. 51 (Madison).
  31. James Madison, “Property,” in Sheehan, The Mind of James Madison, 263.
  32. Madison, “Property,” 263.
  33. Montesquieu’s “The Spirit of the Laws”: A Critical Edition, trans. W. B. Allen (Anthem Press, 2024), bk. 11, chaps. 2–3.
  34. Thomas Jefferson to James Madison, September 6, 1789, Founders Online, https://founders.archives.gov/documents/Madison/01-12-02-0248.
  35. James Madison to Thomas Jefferson, February 4, 1790, Founders Online, https://founders.archives.gov/documents/Madison/01-13-02-0020.
  36. Madison to Jefferson, February 4, 1790.
  37. James Madison, “Essay on Sovereignty,” December 1835, Founders Online, https://founders.archives.gov/documents/Madison/99-02-02-3188.
  38. Madison, “Essay on Sovereignty.”
  39. Federalist, no. 39 (Madison). The claim that Madison further limits “republican” government to representative government and thus excludes democratic processes such as referendum and recall does not fit with his overall argument in the Federalist Papers. It mistakes Madison’s solution to the problem of republican government for his definition of republican government. Madison uses “republic” to mean “popular” government. However, he argues that to rescue popular government from “the opprobrium under which it has so long labored” will require an extensive territory and representation. See Federalist, no. 10 (Madison).
  40. Notes of Debates in the Federal Convention of 1787 Reported by James Madison (Ohio University Press, 1984), 32.
  41. Notes of Debates in the Federal Convention of 1787 Reported by James Madison, 117.
  42. Notes of Debates in the Federal Convention of 1787 Reported by James Madison, 321.
  43. Notes of Debates in the Federal Convention of 1787 Reported by James Madison, 322.
  44. Notes of Debates in the Federal Convention of 1787 Reported by James Madison, 395.
  45. US Const. art. IV, § 4.
  46. Williams claims that although the meaning of “guarantee” is critical to understanding the clause, it has been given scant attention. Moreover, the term is “something of a constitutional anomaly.” It does not appear in the main documents before the drafting of the Constitution, the Constitution itself, or any of the earlier amendments. “In the absence of more definitive clues regarding the term’s originally understood meaning,” Williams writes, “most scholars” have either declared the term “hopelessly ambiguous” or ignored the problem of defining it. Ryan C. Williams, “The ‘Guarantee’ Clause,” Harvard Law Review 132, no. 2 (2018): 608, https://harvardlawreview.org/print/vol-132/the-guarantee-clause/. It should be noted, however, the term is employed 25 times in the Pacificus–Helvedius debates, penned by Hamilton and Madison, respectively. The first American Dictionary by Noah Webster, though not published until 1828, defines the terms “guaranty” and “guarantee” using examples from the Pacificus–Helvedius exchange and the Franco-American Treaty of 1778 (which was at issue during the debate over Washington’s Neutrality Proclamation). An American Dictionary of the English Language [. . .] (1828), under “guarantee,” “guaranty.”
  47. Jonathan Toren, “Protecting Republican Government from Itself: The Guarantee Clause of Article IV, Section 4,” NYU Journal of Law & Liberty 2 (2007): 385, https://www.law.nyu.edu/sites/default/files/ECM_PRO_060952.pdf. Madison also discusses the problems of unions in which some states are republican and others not in his 1792 National Gazette essay “Universal Peace,” criticizing Rousseau on this point, specifically. “Among the various reforms which have been offered to the world, the projects for universal peace have done the greatest honor to the hearts, though they seem to have done very little to the heads of their authors,” Madison argued. “Rousseau, the most distinguished of these philanthropists, has recommended a confederation of sovereigns, under a council of deputies, for the double purpose of arbitrating external controversies among nations, and of guaranteeing their respective governments against internal revolutions. He was aware, neither of the impossibility of executing his pacific plan among governments which feel so many allurements to war, nor, what is more extraordinary, of the tendency of his plan to perpetuate arbitrary power wherever it existed; and, by extinguishing the hope of one day seeing an end of oppression, to cut off the only source of consolation remaining to the oppressed.” James Madison, “For the National Gazette, 31 January 1792,” Founders Online, January 31, 1792, https://founders.archives.gov/documents/Madison/01-14-02-0185.
  48. According to Amar, “It is hard to see how other big clauses—from Section One of the Fourteenth Amendment, for example—are so different from the Republican Government Clause in their potential breadth, and their need for judicial mediating principles.” Akhil Reed Amar, “The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem,” University of Colorado Law Review 65, no. 4 (1994): 753, https://scholar.law.colorado.edu/cgi/viewcontent.cgi?article=2016&context=lawreview.
  49. Amar, “The Central Meaning of Republican Government,” 750–51.
  50. Madison to Jefferson, October 24, 1787, quoted in Amar, “The Central Meaning of Republican Government,” 763.
  51. Amar, “The Central Meaning of Republican Government,” 765 (cleaned up). Here Amar cites Thomas Jefferson to Baron F. H. Alexander Von Humboldt, June 13, 1817, https://founders.archives.gov/documents/Jefferson/03-11-02-0361. Compare Akhil Reed Amar, “Popular Sovereignty and Constitutional Amendment,” in Responding to Imperfection: The Theory and Practice of Constitutional Amendment, ed. Sanford Levinson (Princeton University Press, 1995), 89–90.
  52. Amar does acknowledge that for Madison, “not everything a majority does is lawful.” It must follow certain procedures and niceties, rather than operate by brute force, he argues. Amar, “The Central Meaning of Republican Government,” 769. But this hardly answers the purpose, since majority factions can follow unjust procedures as well as just ones and still achieve their vicious ends. In another article on popular sovereignty, though, Amar cites Wilson’s belief that a majority was “not entitled to do simply whatever it pleased,” for they are beholden to “God and natural law.” Akhil Reed Amar, “The Consent of the Governed: Constitutional Amendment Outside Article V,” Columbia Law Review 94, no. 2 (1994): 501, https://scispace.com/pdf/the-consent-of-the-governed-constitutional-amendment-outside-a256qx8bqb.pdf. This leaves the full force of popular sovereignty intact, according to Amar, since the people remain the only source of earthly authority. The reference to Wilson’s appeal to the higher-law standard by which to measure the people’s authority begins to fill in Amar’s popular sovereignty argument, but it would be fuller and stronger in terms of Wilson’s, Jefferson’s, Madison’s, and the founders’ sense in general, if there were substantially more discussion of the conditions of the social compact, consent of the governed, and majority rule.
  53. Madison, “Notes on Government,” in Sheehan, The Mind of James Madison, 139–40.
  54. Federalist, no. 43 (James Madison).
  55. Federalist, no. 43 (Madison).
  56. The classical response to this requires understanding that natural right is part of political right; legal right is part of political right as well. Natural right refers to principles of justice and moral order that are inherent in nature and can be discovered through reason. In contrast, legal right is constructed by human societies and can vary depending on the laws and conventions of a particular time and place. Political right is the point of coincidence.
  57. Madison, “Property,” 263.
  58. Federalist, no. 43 (Madison).
  59. Thomas Jefferson to James Madison, February 17, 1826, Founders Online, https://founders.archives.gov/documents/Jefferson/98-01-02-5912.
  60. James Madison to Thomas Jefferson, February 24, 1826, Founders Online, https://founders.archives.gov/documents/Jefferson/98-01-02-5934.