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01/29/2018

Jessica Lowe: Thank You, Mr. Madison
Michael Ramsey

Jessica Lowe (University of Virginia - School of Law) has posted Thank You, Mr. Madison (Tulsa Law Review, Vol. 53, 2018) on SSRN.  Here is the abstract:

Alexander Hamilton may be fashionable these days, but according to two recent books, it is James Madison whom Americans should thank for — well, for just about everything. Michael Klarman’s The Framers’ Coup and Jeremy Bailey’s James Madison and Constitutional Imperfection persuasively demonstrate Madison’s centrality to the American constitutional tradition. They are very different books. Klarman’s is a sweeping and much-needed narrative history of the entire founding period, from the troubles of the 1780s through the ratification of the first amendments to the Constitution. Bailey’s is a work of political science, and focuses primarily on what came after — on the whole Madison, especially his later career — examining the difference between Madison and what has become known as “Madisonian Constitutionalism.” Both books provide critical additions to the multidisciplinary literature on the American founding, and in their own ways critique the idea of constitutional veneration

Were the Framers elitist? Certainly. But maybe, instead of lamenting the Framers’ coup, we should say thank you, James Madison. Madison’s example provides an important caution about realizing the boundaries between the ideal and the possible. Today, America still has Madison’s imperfect Constitution — perhaps made more perfect by some developments in history, less perfect by others and by the passage of time. Here, a Hamiltonian solution might (ironically for an essay about Madison) be instructive. Not Hamiltonian in the 1790s sense, but in the sense of the popular twenty-first century musical: a reappropriation of America’s founding to seize the many things that it does have to say to twenty-first century America. Americans’ reverence for the founding provides a kind of shared glue, a common narrative, for the nation. This is, of course, also a problem, given the way that, as Klarman lays out, that narrative has been used at various points in American history. But perhaps the solution to that could be not to cede the ground, but to find a way to enthusiastically reclaim it.