The Madisonian Constitution

Preface

p r e f a c e In drafting the Massachusetts Constitution of 1780, the oldest constitution currently functioning, John Adams spoke to “The Frame of Government,” famously putting forward the axiom that in the commonwealth “the legislature, executive, and judicial power shall be placed in separate departments, to the end that it might be a government of laws and not of men.” Such an understanding, as James Madison would later argue, positions the separation of powers as foundational to the nature of constitutionalism and essential to maintaining its form. Yet, in our own day, this understanding has been taken to illustrate the unique position of the judiciary in upholding a constitution. Notice, however, that this axiom speaks not merely to the judiciary but to the whole of the separation of powers. The Madisonian Constitution attempts to recover this understanding of constitutionalism , which underlies the U.S. Constitution. It is an understanding rooted in political science, oVering what might be dubbed a constitutional perspective, which is not the same as a legal perspective. Indeed, I oVer a Madisonian understanding in contrast to a legalist perspective, which collapses the Constitution into law explicated by the Supreme Court. In sketching a Madisonian vision, I illustrate the importance of diVuse and separate powers to American constitutionalism, which also illuminates the hazards and limits of a legalist mind-set. I should note at the outset, however, that this book does not oVer an exhaustive account of the Madisonian Constitution. Rather, it is preoccupied by the separation of powers and clashes over constitutional interpretation—that is, only a portion of the whole Constitution, though the portion scholars tend to focus on the most. Even in this arena of constitutional interpretation, which is taken to be the essence of the ju­­ dicial duty, the legalist Constitution does not capture the nature of our­ Constitution. This understanding is not James Madison’s alone. The book could plausibly have taken its name from others of the founding generation or even later genera- x     Preface tions. Insofar as I focus on constitutional interpretation within the national separation of powers, Abraham Lincoln might have a unique claim here. Yet, because Madison played such a profound role in theorizing about the underpinnings of modern constitutional government, it is best to situate Lincoln (and numerous others) within the contours of Madison’s vision, rather than the other way around. It was Madison, after all, who had such a heavy hand in making the Constitution of 1787 a real constitution. For comments on various portions of the book, I would like to thank Dean Alfange,Beau Breslin,Bryan Garsten,Shelly Goldman,Gary Jacobsohn,Ken Kersch, Charles Kesler,Sandy Levinson,Wayne Moore,and Keith Whittington.I would like to thank James Stoner in particular. He brought his subtle and penetrating mind— much in the common-law manner he so admires—to bear on the entire manuscript . He oVered numerous helpful suggestions, often capturing precisely what I wanted to say better than I had. In time, I am sure to regret not following more of his wise counsel. I owe a special debt to JeVrey Tulis, whose careful reading of the manuscript was invaluable. His suggestions, comments, prodding, and insight helped me write the book I wanted to write. I would also like to thank Henry Tom of theJohnsHopkinsUniversityPressforhisencouragement,aswellashispatience. Peter Berkowitz and Frank Buckley of the George Mason Law School provided funds to help work on the manuscript and, perhaps more importantly, provided an environment where I made lasting friends. Two individuals bound up with Williams College have been invaluable teachers. James McAllister listened often to my ideas over coVee, lunch, or a stroll around campus. He is a truly extraordinary teacher, who tutored me in the art of teaching Williams’s remarkable students (and much else). He is a good friend to whom I owe far more than I can say. Gary Jacobsohn (my predecessor at Williams) taught by his scholarly example. It was an honor to assume his old position—all the more so as it came with his approval. If I might borrow his language, he provided a model of scholarship to aspire toward. No doubt, as he reminds us about consti­ tutional aspirations generally, there is sure to be a gap between aspirations and­ practice. Much as the Constitution grounds and shapes us, and in ways that we take for granted, so it is with my family. It was my parents who put the scholarly world on my horizon. They...