• We The People Podcast

Madison vs. Mason

September 12, 2019

James Madison and George Mason, both Virginian Founding Fathers, diverged on some of the biggest debates of the Constitutional Convention—including the proper distribution of power between national and local government, the future of the slave trade, and whether or not the Constitution should have a Bill of Rights. Exploring these debates and their impact on the Constitution – scholars Colleen Sheehan and Jeff Broadwater join host Jeffrey Rosen. They dive into the core of the constitutional visions and ideas of Madison and Mason.

Next Tuesday, September 17th, is Constitution Day – the anniversary of the signing of our constitution back in 1787. To learn more about the National Constitution Center’s Constitution Day programming, including the launch of our upgraded Interactive Constitution, visit constitutioncenter.org/learn.

FULL PODCAST

PARTICIPANTS

Colleen Sheehan is Visiting Scholar at the University of Colorado-Boulder and Professor of Political Science at Villanova University. Professor Sheehan is the author of numerous books, including James Madison and the Spirit of Republican Self-Government and the forthcoming The Cambridge Companion to the Federalist (Co-Edited with Jack Rakove). Professor Sheehan is a member of the National Constitution Center’s A Madisonian Constitution for All Commission, and has written on Madison and the Media (in a soon-to-be-published essay).

Jeff Broadwater is emeritus Professor of History at Barton College in Wilson, North Carolina. He is the author of George Mason, Forgotten Founder and James Madison: A Son of Virginia and a Founder of the Nation.

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 


Additional Resources


This episode was engineered by David Stotz, with editing from Greg Scheckler and Jackie McDermott, and produced by Jackie McDermott. Research was provided by Lana Ulrich and John Guerra.

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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center. And, welcome to We the People, a weekly show of constitutional debate.

 The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. September 17th is Constitution Day, the anniversary of the signing of the US Constitution in 1787. In celebration of Constitution Day, we devote this episode of We the People to profiles of two of the most influential figures in shaping the Constitution, James Madison and George Mason.

 If you had to pick two figures to exemplify the fundamental debates over the Constitution and whether or not we should have a Bill of Rights, uh, Madison and Mason seem like a good place to start. And, we have convened, uh, two of America's leading scholars on Madison and Mason to help us understand whose constitutional legacy and ideas were most influential, and how they differed, and how they complemented each other.

 Colleen Sheehan is visiting scholar at the University of Colorado Boulder and Professor of Political Science at Villanova University. Professor Sheehan is the author of many books including the superb James Madison and the Spirit of Republican Self-Government, which I recommend so strongly to We the People listeners, and the forthcoming Cambridge Companion to The Federalist, co-edited with Jack Rakove. Professor Sheehan is a member of the National Constitution Center's Madisonian Constitution for All Commission and has written about Madison in the media in a soon-to-be published and very illuminating essay.

 Colleen, it is wonderful to have you on the show.

Colleen Sheehan: [00:01:43] Thanks, Jeff. It's great to be here. I'm always happy to do anything with the National Constitution Center and the work that you're doing there for civic education in America. I appreciate it.

Rosen: [00:01:54] And, Jeff Broadwater is Professor of History Emeritus at Barton College in Wilson, North Carolina. He is the author of George Mason, Forgotten Founder, which I just had the great pleasure of reading this summer and also so strongly recommend to We the People listeners, as well James Madison: A Son of Virginia and a Founder of the Nation. Jeff, it is an honor to have you on We the People.

Jeff Broadwater: [00:02:16] Thank you. It's an honor to be on the program.

Rosen: [00:02:18] Colleen, I'm gonna begin with a large question, perhaps the largest question in constitutional law. But, I know you can help distill the essence of it for our listeners. We're here to contrast Madison and Mason. What were the core of Madison's constitutional ideas and what was the core of his constitutional vision?

Sheehan: [00:02:37] Ah, well, I guess, if I had to summarize it as tersely as possible, I would say that his constitutional vision was about self-government, which included, uh- uh, both liberty and stability, the idea that you need a stable government in order to protect the rights and liberties of the people so that they'll have the opportunity, uh, to govern themselves. Uh, Madison that- that the history of the world was a history of- of humanity sighing, uh, for the chance to be their own masters.

 And so, right before the Constitutional Convention and in preparation for it, he spent quite some time writing up a piece called Vices of the Political System of the United States in which he looked at the defects, uh, of the United States' government under the articles of confederation. And, his goal was to see if we could find a way to correct those defects, especially the problems of instability, injustice, and confusion as he put it later on, and federal is number 10. And so, in correcting these kinds of, uh, problems of- of a government that split its powers between a central government and state government or what's called federalism, uh, Madison thought that if we did this properly, we could find a way for the first time in history for the people to really have a fair trial at the experiment in self-government.

Rosen: [00:04:17] Jeff Broadwater, George Mason will be less familiar to our listeners. Tell us why many scholars think that he was among the most influential members of the Constitutional Convention, his Virginia Declaration of Rights, both influenced Madison when he wrote the Bill of Right, uh, as- a- as well as, uh, Jefferson when he wrote the Declaration of Independence, um, why was Mason so influential and what was the core of his constitutional vision?

Broadwater: [00:04:47] Mason was one of the older delegates to go to the Philadelphia Convention, was already a major figure in American politics. He'd been an early leader in the, uh, resistance to- to British, uh, policy in Virginia before the American Revolution, as you mentioned was the principal author of the Virginia Declaration of Rights, which, generally considered, is the first modern Bill of Rights, uh, also the principal author of the Virginia Constitution, which one .... was one of the first, uh, state constitutions. Um, and so, he brings a great deal of res- respect and influence to, um, uh ... to the Philadelphia Convention. Um, and, he's particularly remembered for raising the issue of, uh, the lack of a Bill of Rights.

 Um, he didn't sign the Constitution, he was one of three delegates who stayed to the end of the convention but didn't sign the ... sign the Constitution. Uh, and, uh, towards the end of the convention, really, I think, on the next to the last day, he wrote a list of objections to the Constitution. And, his first objection was that there was no Declaration of Rights. I think having written the Virginia Declaration of Rights gave him a- a great deal of credibility to- to- to raise that issue. And, he goes onto become one of the, uh ... one of the- the handful of really impressive A- Anti-Federalist leaders. He's a leader of the Anti-Federalist at the Virginia Convention that had been called to ratify the Constitution in Virginia. Um, now, I would say that, uh- uh, he, um ... his- his differences with Madison ... his philosophical differences weren't huge. But, they were important.

 Uh, I think Madison thought that he could construct a national government that would ... that would, um, uh, be representative of its people, would act responsibly, would serve as a check on the state government. Um, and, Madison ... or Mason ... it's easy to get the two confused. Um, Mason, I think, was just ... was less optimistic about that. And, he- he was more distrustful of government at any level. Um, uh, and, sometimes, we think of Anti-Federalists as advocates of states rights, as people that were simply, um, uh, opposed to giving greater to the central government. And, there's some truth to that. But, one of the things that was most interesting to me as I studied Mason's career, Mason was just concerned about corruption at even the- the county level as he was about- about the national level. I might wanna talk about that, uh- uh- uh, later, but I think ... I think the different ... one of the differences between Madison and Mason was simply Mason- Mason did have more of a local orientation than Madison did. But, he was simply more, uh, pessimistic, I'll say, about the ability, uh- uh, to- to create a government at a national, state, or local level that wouldn't ultimately become corrupt and oppressive.

Rosen: [00:07:46] Fascinating. Um, and, as you write in your superb book, like John Adams, uh, you say Mason feared a new republic could founder on unchecked individualism, transient popular majorities, and the inherent virtue of the marketplace, all forces that were sure to lead to corruption as they had in Great Britain. And, uh, Mason opposed the Constitution because he thought it gave too many powers to a popularly elected chief executive. Um, Colleen, let's begin to articulate what the ... what the major philosophical clashes at the convention were. And, if the founders came to, uh, Philadelphia determined to create a national government strong enough to achieve common purposes, such as, uh, common defense and regulating the national economy, they also wanted to be constrained enough to protect liberty. Why don't you jump in and try to ar- articulate the main, uh, differences and similarities between Madison and Mason when it came to those questions? And- and- and, maybe we could start with the Powers of Congress.

Sheehan: [00:08:52] Well, I think that, um, Jeff Broadwater- Broadwater did a very good job in articulating Mason's view. I would only add that not only was he one of the older delegates, but he was one of the crustier ones, I think, kind of, I don't know if Jeff would agree to that, you know, making Mason, and Elbridge Gerry, and, uh, oh, let's see ... who was it ... who was the fellow, um, who said, “I may take a- a foreign power by the hand,” which Rufus King, uh, responded and- and chided him that, “We were there to get a job done for the Union”? Oh, it was, uh ... it- it was, uh- uh, Gunning Bedford, I think, uh, an appropriate name.

 [laughs]

Rosen: [00:09:35] Wonderful.

Sheehan: [00:09:35] However, the-

Rosen: [00:09:36] I- I have ... I- I have to ask, say another word about Gunning Bedford because he sounds so interesting.

Sheehan: [00:09:40] Ah, yeah. Well, he's from Del- Delaware. And, in fact, his home there ... one of my students from Delaware during, um, uh, a break from the university went to find his old home. And, it's now a Masonic lodge, uh, so I don't think tours, I mean ... it's- it's- it's- it ... the ... you can't tour for, um, its historical value as far as I know. But, I'm not sure, I haven't been there. But, Bedford was a ... was a real interesting character and I always thought he was appropriately named. I myself don't know too many people named Gunning.

Rosen: [00:10:15] [laughs]

 Right.

Sheehan: [00:10:16] Mason and Madison were both from Virginia. And, in many ways, they disagreed about, uh, much of- of what needed to be done in the United States. Uh, they both came to Philadelphia, uh, as part of the Virginia delegation supporting, uh, seemingly the Randolph or Virginia Plan introduced by Edmund Randolph, then-Governor of Virginia, right early on in the convention. In fact, it was, kind of, a preemptive move. Uh, but, some of the major clashes at the convention of which Madison and Mason as well as others, of course, would be a part had to do with how much power the national government should have and how that would affect, uh, both the rights of the states, uh, as well as the liberties and rights of the people. For example, um, the delegation from New York State composed of three members, one of whom was Alexander Hamilton, whom I'm sure many of your listeners will- will know a lot about or- or at least be able to sing- sing, uh, quite a number of songs about him-

Rosen: [00:11:27] Absolutely.

Sheehan: [00:11:28] ... um, and then, uh, Lansing and Yates. Now, Hamilton was one of the people very much pushing for the Constitutional Convention and a full-scale amendment of the Articles of Confederation. Whereas Lansing and Yates were cronies of then-Governor, uh, George Clinton of New York. And, George Clinton was a big fish in the relatively small pond of New York State then and they wanted to keep as much power as possible at the state level, uh, fearful that a national government would, uh, really make them fairly irrelevant, which, by the way, some thought was Alexander Hamilton's plan all along, to make the states as, mm, administrative units as fairly irrelevant compared to the Hercules that America would become. Now, where does ... where does Madison fit into this? Many people think that Madison was [inaudible] Hamiltonian in the 1780s. And, there's- there's a certain sense in which they agreed very much on- on what needed to be done to amend the articles and to put the new fledgling United States on a firm footing.

 But, I don't think Madison was ever quite the nationalist that Hamilton always was.

 Madison always thought there was a- a- a substantial and significant place for the states, uh, not just because of wanting to protect states' rights but primarily because it was ... federalism was necessary to protect the rights and liberties of the people in an extensive republic. Um, it's interesting that, um ... and Jeff will have more to say about this, that- that, um, Mason, too, was also as concerned about too much power being given to the national government and the liberties of the people being in jeopardy. But, I think for very different reasons than Madison thought.

Rosen: [00:13:36] Well, Jeff, tell us more about Mason's view about the dangers of too much national power, um, uh, what- what were his concerns. He'd initially supported the Virginia Plan. But, at the Virginia Ratifying Convention, opposed ratification in part because Congress might make service and the militias unattractive as a pretext for establishing a standing army and he objected to federal control of the militias. So, what was it about congressional and national power in the Constitution that Mason feared?

Broadwater: [00:14:06] Well ... and really to, sort of, follow up where Colleen left off, uh, I think there are ... there are a couple of issues that- that answer that question and illustrate one of his- his differences with- with Madison. Now, one is an issue that, uh, would sound pretty or, kind of, ob- ob- obscure to us, Mason believed that a two-thirds vote of Congress should be required to pass laws regulating commerce or foreign trade. Um, he knew that ... or thought that the north ... the northern ... the northern states would have a- a majority in Congress. And, they might pass a legislation that would, say, give a monopoly on American shipping to northern shippers. Uh, he ... and- and, the British had what they called the Navigation Acts, which imposed comparable regulations on- on American commerce. And- and, Madison worried ... or Mason- Mason worried about that. Uh, Madison was not so worried about that.

 Uh, and, I think, uh, if- if I had to make a list of maybe Mason's top three concerns about the Constitution, one was the power to regulate, uh- uh, commerce. Uh, I think, um, uh- uh, Mason supported the congressional power of regulating commerce. I think most people saw that was needed, but he thought it ought to require something like a three-fourths vote or- or, uh- uh, so- some formula that would give- give the south a veto. Um, another difference in this, again, uh, Mason trivial to- to listeners today. Um, Mason thought that appropriation bills, um, should start in the ... in the House of Representatives. That was the people's body. The people elected a House of Representative, uh, and the Senate, uh, should not be allowed to amend or alter, uh ... alter them. The Senate, of course, was selected by state legislators, represented the states, um, did not directly represent the people. Uh, and, he thought that what they call the Origination Clauses are important. Madison thought that was a fairly trivial issue.

 Uh, and then, the big issue with the ... at the ... at the convention ... now, this is less of a philosophical issue about st- s- s- state versus national power headed it with the issue of representation. Uh, Madison- Madison believed, um, very strongly that representation in Congress should be based on population. And, of course, the small states thought that, uh, representation at a ... in at least one House of Congress, uh, should, uh ... well, representation should be equal among the states and at least one House of Congress. Um, and- and, Mason was one of the few large state delegates that supported what became known as the Great Compromise or the, uh, Connecticut Compromise, that he saw ... and I know this is perhaps ironic, he saw that if- if the delegates couldn't reach some compromise on the issue of representation, the convention would break up.

 So, this delegate who ended up opposing the Constitution supported a- a compromise that allowed the convention to finish its work.

Rosen: [00:17:23] Fascinating. Uh, you just identified these three crucial issues, the power of commerce, uh, the question of appropriations bills, which seems more technical but has to do with representation in the Senate, and then broadly this question of representation, uh, all of which will prove to be central to the convention. Colleen, let's put on the table a few other difference between Madison and Mason when it comes to the structural Constitution, uh, how did they agree and disagree when it came to the powers of the president and the judiciary.

Sheehan: [00:17:54] Well, Madison went into the convention without a very clear idea of the executive, um, and his ... and ... except that in terms of the executive and the judiciary he was in favor of what he called the Council of Revision, uh, which he pushed for over and over again at the convention but failed, uh- uh, to get that passed, just could not get the support for. That would've meant ... had he succeeded, uh, in doing that, it would've meant that after Congress ... both Houses of Congress passed a bill, that instead of it going just to the president, uh, to sign it or veto it, it would go to this Council of Revision, which would be composed of the chief executive along with a certain number of members of the United States Supreme Court, maybe four, something like that. So, the council might be, you know, an odd number, maybe something like five.

 I've always found that interesting because of what effect that might have on judicial review, right?

 Would ... still, uh, the Supreme Court would have, I think, uh, appropriately the power of judicial review. But, would they be much less, uh- uh, apt to exercise it since they really already had, uh ... members of their branch really already had their say, uh, in working with the Council of Revision. So, um, that's one of the interesting things about, uh, Madison's view, I think, on the executive and the judiciary.

 Uh, Mason was one of the people who, uh, when they debated the executive and- and they were ... they were ... the convention was all over the place about what to ... how to elect the president, you know, should it be, uh, directly by the people, maybe even by lot ... by lottery, um, should it be by the states.

 You know, Roger Sherman, over and over again ... when- whenever you're not sure what Ro- Roger Sherman's position on something is, just think state legislatures. That should probably do it.

 [laughs]

 Um, uh- uh, and- and then, there was, of course, the idea of the Electoral College and so on. It was Mason who finally stood up at the convention and said, “Let me summarize for you what the ... ” I think it was about ” ... five major, uh- uh, modes of electing the president we have on the table.” And so, he took the lead in that. He was much ... he much more took the lead in that, I would say, than Madison did in terms of trying to, uh- uh, set forth and move forward on shaping the United States presidency.

Rosen: [00:20:42] Jeff Broadwater, tell us about George Mason and the presidency.

Broadwater: [00:20:46] It is interesting because, um, Mason started off in a ... i- in a very different place. I think if he'd had his way, and, again, he's concerned about- about southern interest and, uh, the sectional interest, um, he- he- he- he didn't push hard on this. But, his preference was that the executive might be made up of- of three individuals, one from the south, one from the mid-Atlantic region, and- and one for New England. Uh, there wasn't much support for that.

 I ... as I recall, I think Hugh Williamson of- of, uh, North Carolina supported that. Uh, but, there wasn't much support for that, uh, and it didn't go anywhere. So, Mason accepted the idea of a ... of a ... of a- a- a single chief executive, although he did think that the- the president, as he came to be known, should have a council to advise him. The- the colonial governors, the state governors o- often had advisory councils or sometimes councils with some real, uh, power. And, that was one of, um, uh, Mason's o- o- objections, uh, to the ... to the Constitution.

 Um, I don't think, uh ... I don't think that, uh ... that Mason had a very, uh, clear idea of what ... of what the president would do or how the president would be selected when he went to Philadelphia. Uh, the Virginia Plan, uh, originally proposed that the- the national legislature would select the- the executive. I- I think Madison and probably Mason, uh, decided in the course of the debates they wanted a president that was more independent of- of the ... of the legislature than that, uh, and- and came to support the Electoral College. Um, Mason, again, was- was mainly concerned that- that southern interest be protected. Uh, he really preferred or hoped that the convention would adopt a- a three-member executive, uh, with a representative from the south, mid-Atlantic states, uh, and New England. Uh, there wasn't much support for that. I think Hugh Williamson of North Carolina supported. Uh, there wasn't much support, though, for that among the delegates. Um- um, and, uh, Mason didn't- didn't push it. Uh, he did want the president to have a- an advisory council.

 Uh, the executive councils were- were common in the colonies and in the states. He thought that would be another check on the power of the presidency, um, did not favor a popular election of the, uh ... of the president. He came to accept the Electoral College, as I recall, uh, in the, uh ... during the ratification debate, that was not a major issue for- for- for Madison ... or for Mason.

Rosen: [00:23:38] Let's talk now about the judiciary. Uh, Colleen, Alexander Hamilton famously predicted that the judiciary would be the least dangerous branch. Uh, Madison and the other federalists most feared Congress as an impetuous vortex that would suck all into its voracious powers. Uh, what ... but, what was, uh, Madison's, uh, vision of the judiciary and contrasted with Mason who, uh, in opposing the ratification of the Constitution of the Virginia Ratifi- Ratification Convention said that the broad scope of the judiciary would not only render state courts unnecessary, it will destroy the state governments.

Sheehan: [00:24:15] Ah- ah, well, Jeff, I think there's a reason that Hamilton wrote all those ... federalist papers on the judiciary and Madison didn't.

 [laughs]

 Uh, th- this was something that Hamilton, the lawyer, um, and, of course, Madison was not a lawyer, one of the- the few who, uh, was not, uh, had given, uh, quite a bit more thought to, uh ... as I mentioned, uh, previously, Madison saw a part of the role of the judiciary and the check and balancing role on legislation, uh, as part of the Council of Revision. Uh, but, he did not want either the president or the judiciary to have the final say. The final say was to be, uh ... of legislation was to be Congress as the closest representatives of the people. And, of course, um, uh, the judiciary is very far removed, uh ... fundamentally sourced in the ... in the power of the people but very far removed from anything close to direct or even election by the people. Uh, so, Madison did ... because Congress was to be the most powerful branch of government, uh, that's where he wanted us to direct our efforts to check it. I think he, like Hamilton, was not as concerned, uh, because the judiciary had neither, uh, you know ... neither sword nor purse ...

 [laughs]

 ... uh, which the executive and Congress did, in fact have. Now, Jeff, if I could just say a- a- a couple words about something that- that, um, our other Jeff has talked about, that is Mason is concerned about southern interest and- and protecting those interests. I find this very fascinating, uh, Madison and Mason, both from the- the great state of Virginia, the state that will produce most of the presidents, uh, for some time after the, uh, establishment of the new Constitution, but unlike Mason who was so concerned about the rights of the State of Virginia, particularly the southern interest. And, we have to remember that, uh, Mason and Madison were both slave owners, though both of them, uh, said ... many times over, talked about their opposition to the institution of slavery. At the convention, when the ... when the debate seemed to be over the small states versus large states, which took up, you know, basically two months of the life of the convention before we got the the Great Compromise on, uh ... on July 16th, uh, Madison, at one point, stood up and looked at his fellow delegates and said, you know, “This- this fight, this conflict that's being expressed about the large states versus small states, that's not really what's going on here. The division in the country is between north and south.”

 Madison recognized that the division, even in 1787 in America, had to do with the institution of slavery. And, this was something he was very, very keen on trying to reduce, to alleviate the tensions of. I wonder what Jeff Broadwater thinks, um, uh, Mason's plan would've done regarding that tension, uh, that conflict between the north and south over slavery.

Rosen: [00:28:02] Fascinating. Well, we have two large questions on the table that I wanna ask Jeff Broadwater. The first is Mason's objection to the judiciary. Why is it, at the Virginia Ratifying Convention, that he said that the federal judiciary was so powerful that it would destroy state governments? And then, tell us about the plan that Colleen Sheehan refers to, uh, when it comes to adjudicating the interests of the north and south and what M- Mason thought, uh, he was trying to achieve.

Broadwater: [00:28:32] Mason was very concerned, uh, about the power of the federal courts. Uh, he made that a major point in the Virginia Ratifying Convention, uh, he was worried or he did argue that the federal courts would swallow up, uh, the- the state courts. Um, why he was so concerned, uh, may be a little bit harder to, uh ... may be a little harder question to answer. Uh, but, uh, I mean, the federal courts were given, um, a fairly broad jurisdiction over ... particularly over matters arising under federal law, over- over, um, litigation between citizens of different states. Um, and, he thought ... he thought that was too broad a- a jurisdiction. And, of course, uh, even federal law was to be supreme over state law under the Supremacy Clause of the Constitution. Um, and, I think one of the things we have to- to remember is, um, some of ... some of Mason's concerns, some of the Anti-Federalists' concerns would seem, uh, almost maybe paranoid to us today.

 Uh, I mean, Mason- Mason was concerned that- that- that Congress and the federal courts might just do some unreasonable, you know ... unreasonable things, that- that, perhaps, uh, the federals courts would, uh ... would just sit in Washington or in the ... in the Capitol, of course, Washington hadn't been founded yet, um, and you'd have to go all the way to the Capitol to litigate a case. And, it would be very expensive and- and disadvantaged, uh- uh ... no ordinary- ordinary citizens, uh ... but he did see the federal courts as a real, uh- uh ... so we have ... and we gotta remember, in- in 1787, 1788, uh, the idea of judicial review was really not well-established. Uh, the courts were just, uh, really, kind of, beginning to a- a- assert themselves. I- I- I- I think you- you might almost say that while the Constitution's being written in Philadelphia, there was another constitutional revolution taking place in the ... in the states as- as- as- as the courts became more ... became more assertive.

 Um, with regard to how Mason thought the issue of slavery, uh, would be negotiated under his plan with, for example, the- the three-member e- e- executive, um, uh, I think ... I- I'm- I'm speculating here, Mason never really addressed the issue directly. But, uh, you know, Mason is living in a ... in an era where, uh, slavery has not yet become the great moral issue. And so, it's a political issue as- as it was really well into the 1800s. Um, and, I think that, uh- uh, Mason would probably say, if you pushed him on this, that if you gave the north and south, uh, you know, a- a roughly equal leverage, uh, they- they would simply negotiate some- some political settlement. And- and, Mason supported the end of the ... the- the end of the foreign slave trade. Uh, he never complained about the prohibition of slavery, uh, in the, um, uh ... in the, um ... the northwest territory. Uh, he was one of those founders who, I think, considered slavery a necessary evil, um, and, uh, was, uh, you know, willing to entertain the idea that, at some point in the future ... some point in the future, slavery could be put on a road to abolition.

Rosen: [00:31:57] As you suggest, Mason was, uh, critical of the slavery, although a slave owner himself. He believed that the slave trade was an evil, but he could not condone. And, the question of why he didn't free a few of his slaves as Jefferson did or free them all as Washington did, uh, you- you raise and- and say is, uh, difficult to answer. Uh, you write, “Mason never seemed defensive about his glaring inconsistency. In all likelihood, Mason believed or convinced himself that he had no options.” Uh, Colleen, tell us about the constitutional relevance of the debate over the future of slavery at the Constitutional Convention, uh, what were the various positions, and what was the meaning of the infamous Three-Fifths Compromise, uh, and what was Madison's position, uh, versus Mason's on this question.

Sheehan: [00:32:48] Ah, well, Madison was very clear throughout his life that he thought slavery was a moral wrong. And, his notes on his government that he writes, uh, right after the institution of the new Constitution, he actually says explicitly there that in the states in America where slavery exist, they're not really republics, they're not Republican, they are more aristocratic and oligarchic. And, uh, the Three-Fifths Compromise at the Constitutional Convention that was supported by so many of the delegates, north and south, was not a new thing. It was a compromise already made under the Articles of Confederation, it was ... and- and one of the- the mistakes that people make today is to think that the Three-Fifths Compromise means that, uh, those held in slavery were counted as three-fifths of a person. That is not at all what that compromise means.

 Uh, Madison is very clear that, uh ... that all human beings, including those held in slavery, black, and white, and any color, are full human beings. He talks about this in Federalist 54, for example, that those who are held in bondage are seen in the unnatural light of property when what they really are, of course, is persons.

 So, what the Three-Fifths Compromise meant was when the delegates from places like North Carolina, South Carolina, Georgia, uh, especially like Rutledge and the Pinckneys, uh, pronounced to the convention that their, uh ... that the people of their states would a- accept the Constitution on ... if ... would- would not accept the Constitution if anything was done to touch the institution of slavery.

 Uh, if the other delegates wanted Georgia, South Carolina, North Carolina to be part of this union, they had to make some compromise on that. And, of course, they wanted to keep the union together because, uh, allowing North Carolina, South Carolina, and Georgia to- to, um, be a separate confederacy of sorts would not have freed a single slave. The whole idea was to pull people together and work, uh- uh, in the future, towards the elimination of slavery or at least that's what many, many, many of the founders explicitly said. And, they said it so many times and said it on the floor of the convention.

 You know, Gouverneur Morris stood up, uh, on the floor of the convention. You can see him, tall and- and flamboyant, and stamping his peg leg on the floor and shouting that, “Slavery is the curse of heaven.” Uh, Rufus King said something similar. And, you can just see people like, uh, Charles Cotesworth Pinckney, and General Pinckney, and John Rutledge maybe, sort of, shrinking in their chairs a little bit. They never defended the institution of slavery, Rutledge and Pinckneys, on the floor. But, they did express the views of the people of their state, uh, that they would not accept this Constitution if- if the institution of slavery, uh, were abolished. Uh, they were absolutely clear on that.

 So, um, the other delegates knew that if they were going to preserve the union and do anything about slavery in the future, there had to be a compromise. One other point on that that I think is interesting, what compromise means, uh, for this was that they were not ... they understood themself as not compromising the principle, they were putting forth a practical way to deal with this issue to keep the union together so that, uh, slavery could be abolished in the future.

 Now, Jeff, if I could just say, uh, one more word on Madison's view of slavery, uh, his own personal view. Why didn't he free his slaves? I ... this involves some speculation. We know he didn't free his slaves, we also know that he had a spendthrift, uh- uh, stepson that he was constantly bailing out, um, for his younger wife, Dolley Todd Madison. And, I think that he was very concerned about, uh, Dolley's future when he passed away ... uh, her financial future because of the problems her son had presented. I think he hid from Dolley some of the debts he was paying for Dolley's son, uh, because it pained her so much.

 Now, there is some speculation, Jeff, which is very interesting. I don't have any evidence for this. But, it's one of those, sort of, um, uh ... I don't know if we'd wanna call it rumors or, uh ... that- that's been passed down for generation upon generation, that is that Madison actually left a note that was read by others that had to do with freeing his slaves upon the death of Dolley. Um, is that true or not? There's lots and lots of speculation about that. But, if it's true, either the note was destroyed or, at this point, we haven't found it. There's still many Madison papers out there that are yet to be discovered, I suspect. Because, once again, the stepson actually took some of Madison's papers and sold them.

 [laughs]

 So, we're still finding writings of Madison and putting those together.

Rosen: [00:38:50] Wow, Madison papers yet to be discovered sounds very da Vinci code-like. And, I know that every We the People listener will be waiting breathlessly for their publication. Jeff, tell us more about this paradox of Mason, on- on the one hand, among the Virginia delegates, one of those who denounced slavery most vigorously, on the other, a slave owner who didn't fail his, uh ... free his, uh, own slaves. And, uh, tell us about his position on slavery at the convention.

Broadwater: [00:39:23] I think, uh, Mason's position on slavery was very similar to Madison's. Uh, you could probably read a- a- a- a quote from- from one of them and you might not be able to identify which one it- it- it came from. Uh, I think Mason thought slavery was a moral evil. Uh, he thought it was bad for Virginia's economic development, uh, he thought it was bad for the character of whites to own slaves. Uh, he thought they learned a- a cruelty as- a- a- as slave masters. Um, but, he never- never freed ... he never freed his slaves. Um, this is one that ... area particularly where I wish we had more of, uh- uh, Madison, uh ... Mason's papers. Uh- uh, and, Madison's published papers run to, I guess, dozens of volumes. Uh, Mason didn't make much effort to save anything. His published papers run to about- about- about three volumes, uh, but, um, I- I- I- think that- that Mason probably shared what was a common attitude, uh, in Virginia in his day.

 And, Madison felt this way, Jefferson felt this way, that, uh, the whites and freed slaves just couldn't live together. They were too different. There had been, uh, too, uh- uh ... too difficult a history and they just wouldn't be able to coexist. And, until, uh, some way could be found to- to separate the two races, slavery was- was- was not practical. Uh, there was also, of course, economic in- in- incentive, um, and Mason had ... I believe it was nine children that survived to adulthood. He didn't wanna do anything that would ... that would jeopardize their- their future, uh, by- by freeing his slaves. Um, but, um, a- as far as specific comments during the convention and then later in the ratification debate, the one point that I can remember where I believe he disagrees with- with- with Madison was the question of- of, um ... of some of their federal tax on slaves.

 And, I believe Madison says, and I think this is in the Constitutional Convention, that he didn't like the idea because he didn't like admitting in the Constitution there could be property of men, which authorizing a tax on slaves would do that. Uh, and, I think ... and- and- and- and- and another ... and, in another point, uh, Mason says, “But- but, not to tax slave imports would be the equivalent of a bounty on slaves.” So, uh, they're- they're both oppo- opposed to slavery, but they disagree on the ... o- on the- the- the way to, uh ... to- to reflect that opposition.

 Now, when you get to the ... when you get to the- the Ratification Convention, um, Mason's position becomes a little bit harder to- to maybe characterize. Because, in one speech and basically in one breath, he criticizes the Constitution for not protecting slavery. And, at the same time, he criticizes the Constitution for permitting the slave trade to continue for another 20 years because the Constitution said that Congress couldn't ban slavery, uh, for, uh, 20 years after it was ... it was ... after it was adopted. The only way I can reconcile those, I mean, you- you could say that was just political expediency, debating points. He's- he's trying to, sort of, to- to be able to, sort of ... both, uh, slave owners and people who have reservations about slavery. He was ... he was opposed to slavery, but he thought that, uh ... that if ... that the abolition of slavery should be left to the states. Um, again, he wouldn't ... probably wouldn't trust the northern majority, uh, to, uh- uh ... to- to- to- to manage that process.

Rosen: [00:43:09] Very interesting. And, that would explain the, uh, apparent inconsistency between his strong statements against slavery at the convention and, as you say, his objection at the convention that it was not possible to tax slaves, which, uh- uh, interestingly, contrast with Madison's crucial claim that the Constitution should take an opposition on whether there could be property in men. And, attributing that to his concern for states' rights helps us understand the tension between him and Madison. Let's turn, uh, finally to the central issue that divided Madison and Mason. And, one where Mason won and, uh, history thanks him. And, that's the lack of a Bill of Rights. Uh, Colleen, this is a more familiar to some We the People listeners. But, why was it that Madison initially opposed the Bill of Rights but came to support it? And, what was Mason's role in persuading him to change his mind?

Sheehan: [00:44:07] Well, Madison, of course, uh, was opposed to a Bill of Rights at the Constitutional Convention. But, during the ratification debates with people, like, uh, Edmund Randolph and George Mason of Virginia, uh, persuading many of the people in Virginia or perhaps reflecting their views that there ought to be a Bill of Rights in the Constitution in order not to undergo, uh, calling a second convention, which Madison thought would be a disaster ... we'd never get a Constitution out of it. We were ... it was hard enough the first time, um ... that he said publicly that he would support a Bill of Rights, uh, in the first Congress, should he be there obviously, uh, elected as a congressman. And, that's precisely what he did.

 Uh, early on in the first Congress of the United States, Madison introduced a series of amendments that became known as the Bill of Rights. Now, why was he opposed to it to begin with and then agreed to it later? He explains himself on this, he was opposed to a Bill of Rights because he was very worried that it would mean that listing rights that you put, then, in a Constitution ... these are the rights, um, and liberties of ... to be protected in the Constitution, that there would be a presumption that rights not listed would be considered rights not protected by the Constitution, not protected under law and so that that would be dangerous to the rights and liberties of the American people. He said that, in Great Britain, government grants rights to the people. But, the United States, it's the opposite. It's the people who grant powers to the government.

 So, all rights are reserved to the people and to states respectively. So, the ... it's this idea of delegated or ... and enumerated powers, that any powers not given to the government, the government doesn't have, which is one of the reasons he wasn't so concerned about the judiciary, uh, because he didn't see them as being a, sort of, runaway judiciary that many people think the judiciary has become in the 20th and 21st century, um, like George Mason predicted and the Anti-Federalist, Brutus, predicted. Uh, they seemed to have been right about that eventual, uh ... ultimately. Now, um ... so, Madison that it, though ... if- if we were gonna have a Bill of Rights that what had to be done was to articulate these rights as clearly and comprehensively as possible. That's where there's a Ninth Amendment that basically says, “Don't assume that everything listed here are the only rights of the people.” Um, so, it's to make sure that we know that it's not government who gives people rights, it's people who give powers to the government. That is critical in the American Constitutional System. Um, and it's part of, um ... a necessary part of what it means for the people to be sovereign, the idea of popular sovereignty.

Rosen: [00:47:19] Uh, Jeff Broadwater, uh, Mason and the Bill of Rights, this is his greatest legacy. He championed it from the beginning, he said one could be written in a few hours at the end of the convention. All you had to do is cut and paste among the state declarations, which, at the end, is precisely what Madison did, uh, drawing primarily on Mason's own Virginia Declaration as well as others. So, tell us about Mason's vision of a Bill of Rights, and why he thought it was necessary, and what is the significance of his triumph on this question.

Broadwater: [00:47:49] Mason did raise the issue, uh, toward the end of the convention. Uh, it's a mystery why he didn't raise the issue earlier, um, and I think his timing was bad. I think, by the time he raised the- the issue, a lot of the delegates were ready to- to go home. They'd been there for about, um, uh, three months. Um, but, of course, he was the perfect person to raise the issue because he'd written the Virginia Declaration of Rights, um, and, uh, he ... I- I think he envisioned, uh, really a- a- a Bill of Rights, uh- uh, sort of, two parts. One would be a statement of, um, fundamental political principles, uh, that all men, I think, as he put in the Virginia Declaration, were born equally free and independent. Uh, they had a right to, um- um, life, liberty, proper- property, happiness, and safety, which, of course, uh, Jefferson took- took that language and became the second, um, paragraph of the Declaration of Independence.

 Uh, and then- then, Madison wanted to ... or Mason, uh ... Mason wanted to protect certain fundamental individual rights, uh, probably most important the freedom of religion, which is an issue that was very important to him, also important- important to Madison. And, we've been talking about Madison and Mason's differences. But, uh, earlier in their career, they were ... they were political allies and one of the issues they worked together on was to ... was to expand freedom of religion in Virginia.

 Uh, and so, by 1787, uh, the Declaration of Rights or Bill of Rights is ... becomes something that most Americans expect to see in at least their state constitutions.

 And, we got- got to remember, before 1787 and the Philadelphia Convention, Americans have spent, you know, roughly a decade writing state constitutions, which some of the people- peo- people expected to see. So, uh, Mason raises the issue, uh, gets no supported. It's voted down, uh, unanimously. Um, and then, uh, toward the end of the convention, he writes his objections to the Constitution.

 I suppose the, uh, it would have to be the first written Anti-Federalist document and he begins with this, uh, complaint that there's no- no Declaration of Rights. And, it became the Anti-Federalists' most, I think, popular argument against the Constitution. Anti-Federalists' had a lot of ... raised a lot of issues. Uh- uh, there were disagreement among the Anti-Federalists o- on different issues, but, uh, there was a general agreement, um, for the, uh ... the need for a ... for a Declaration of Rights. And, it put a great deal of pressure on- on Madison.

 Um, Thomas Jefferson, of course, is the American minister to France at this time. Uh, and, Jefferson writes to Madison, tells him he thinks they should've added a Bill of Rights to the Constitution. Uh, the Baptists in Virginia are raising the issue because they want a federal protection for freedom of religion. Um, so, he's under pressure from them, that becomes important when he runs for Congress later. Um, and, uh, the Virginia Ratifying Convention, uh, after they voted to ratify the- the- the- the Constitution, um, uh, recommends a series of amendments, including amendments dealing with- with- with freedom of religion. Uh, so, uh, as Colleen said, it- it's Madison that actually puts them together, um, uh, when he's elected to the first Congress. Um, and, he does really a remarkable job of pushing them through a pretty apathetic Congress.

 Uh, but, it's Mason, I think, that- that- that deserves the credit for starting the- the- the momentum that le- led to the adoption of the Bill of Rights. Um, and, I- I had, uh ... and, I think Colleen did a- a good job explaining Madison- Madison's change in position. I think one other factor, um, in- i- in Madison's thinking, when he goes to Congress, he realizes that the addition of a Bill of Rights will go a long way toward appeasing some of the more moderate Anti-Federalists, and increase support for the new government, and- and enhances legitimacy. So, he- he's got a number of reasons to, uh ... to- to- to- to- to change his mind and- and a number of reasons, Colleen said, to oppose the addition of a Bill of Rights before the Constitution's ratified.

Rosen: [00:52:09] Well, it is time for closing thoughts in this utterly fascinating discussion about Madison versus Mason and their influence on the Constitutional Convention. Uh, it's too simplistic, I think, to sum up this rich discussion into viewing Madison as the exemplar of federal power and- and Mason as the exemplar of states' rights. So, I'm gonna ask, uh, you, first, Colleen, to sum up in- in- in light of this rich discussion what the competing constitutional visions of Madison and Mason were.

Sheehan: [00:52:45] Well, I think, for Mason, I mean, he does emphasize, uh, towards the end of the convention why he doesn't in the beginning. I don't know, maybe he just suspected that a Bill of Rights would be included in the Constitution after all. Uh, it was in Virginia and- and most of the state constitutions. Uh, he is just adamant that that's a problem. And, many, many, many other people of the United States followed him, uh, including delegates, Ed- Edmund Randolph for one, um, Elbridge Gerry for another, uh, that no Bill of Rights, no ratification in the Constitution. He just dug his heels in on that. It's interesting to think of that day, September 17th, 1787, that we now call Constitution Day when all of the delegates, you know, met once again for the last time before they adjourned to sine die at, uh- uh, what we now call Independence Hall in Philadelphia. And, they walked up to George Washington's desk to sign this document. But, of course, there were three of them who didn't sign it, Elbridge Gerry, Edmund Randolph, and George Mason. What were they ... what was it like for them when everyone else was celebrating? Everyone went to the City Tavern afterwards down on 2nd Street. What did they do?

 [laughs]

 They spent that whole summer from May until September 17th working, sacrificing to make this new Constitution, but, in the end, couldn't put the John Hancock, as it were, on- on the document. Um, you know, it must ... it must've been awfully important to them to have that Bill of Rights, um, for them not to sign with their fellow colleagues and people they very much respected, including George Washington, uh, that document that they contributed so much to. The last thing I'd like to say in summary, uh, Jeff, is, um, Madison's most known for the structure of the Constitution, the institution, separation of powers, checks and balances. Um, some people call it, uh, a machine that would go of itself, would be written this, um ... it ... the people and their character don't really matter because it's all these institutions and checks and balances that make for good government. That was not Madison's view.

 Madison thought that the character of the American people, what we believe, what we cherish, not just his generation but for generations to come, were always, sort of, uh, paying it forward, uh, that you can't have a republic without Republican citizens, that civic education ... learning the tools of self-government was the most crucial thing, uh, to not only have a republic but, as Franklin said, to keep it. Uh, this is the work, of course, for all of us not just then but for all of us today.

Rosen: [00:56:01] Thank you for those eloquent final thoughts. Uh, Jeff Broadwater, last word is to you. Uh, if you could sum up the competing constitutional visions of James Madison and George Mason, that would be wonderful.

Broadwater: [00:56:14] I think that, uh ... a- and- and, Colleen is right. And, I think both, uh, Madison and- and- and Mason recognized the importance of, uh, cultivating, uh, civic engagement and- and- and responsible citizenship.

 Uh, I think in what ... I think that- that- that Madison believed, though, that the federal government could serve a role as- as a, sort of, check on- on the states. Um, and, I think that- that Mason was so suspicious of- of government at any level, uh, I don't think that he had much, um, confidence, uh, i- in any level of a government to check another one.

 Uh, Ma- Madison in The ... in The ... in The Federalist papers and elsewhere talks about the ability of the ... of the states' governments to serve as a check on- on federal power. Uh, you know, I don't re- recall, you know, Ma- Mason saying that. Um, so, he's much more suspicious of government, uh, as a result, uh, wants to really impose more restrictions on- on the federal government. I think he'd imposed more restrictions on the state and- and local governments if that, you know, i- i- issue had been before him at a ... at a state constitution convention. But, um, he- he wants to put more structural limitations on the- the federal government. I'll just give one example and I had a chance to talk about, he was opposed to the federal taxing power. Uh, he thought that, um, the states, uh- uh ... that Congress could ... should, as they had done on the articles, requisition, uh, funds from the states. And, only then, if the states refused to- to- to satisfy the requisition, could they impose taxes. That's just one of- of several kinds of- of structural, uh, limitations he wanted to put on the government ... on- on the federal government.

 Uh, but, I would say that was a ... that was a basic difference, uh, between- bet- between the two. They both believed in the importance of what we might simply call good citizenship, um, but I think Madison, um ... Madison had greater confidence in- in the ability to- to- to- to structure, uh- uh, a responsible free government.

 I think Mason thought that, uh, human nature being what it was, uh, fighting corruption in government would just be an ongoing problem however the government was- was structured.

Rosen: [00:58:44] Thank you so much, Colleen Sheehan and Jeff Broadwater, for an- a wonderful, uh, Constitution Day discussion on the competing constitutional vision of James Madison and George Mason. You have helped us understand how both of these two patriots were responsible for shaping the US Constitution on its birthday. Colleen, Jeff, thank you so much for joining.

Broadwater: [00:59:08] Thank you.

Sheehan: [00:59:09] Thanks, Jeff.

Rosen: [00:59:12] Today's show was engineered by David Stotz and produced by Jackie McDermott, research was provided by Lana Ulrich and the Constitutional Content Team. Uh, We the People friends, next week is Constitution Day. It's gonna be an amazing day at the Constitution Center including the launch of our new upgraded interactive Constitution. This astonishingly rich platform for constitutional education and debate. I can't wait to share it with you. If you'd like to learn more about our Constitution Day celebration, including the launch, please visit constitutioncenter.org/learn. Please, rate, review, and subscribe to We the People on Apple Podcast and recommend the show to friends, colleagues, or anyone everywhere who's hungry for a weekly dose of constitutional debate. And, always remember that the National Constitution Center is a private nonprofit. We rely on the generosity, passion, and engagement of people from across the country and around the world. We're inspired by our nonpartisan mission of constitutional education and debate. You can support our mission by becoming a member at constitutioncenter.org/membership or give a donation of any amount to support our work, including this podcast, at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rose. And, Happy Constitution Day.

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