In 1789 James Madison and Thomas Jefferson engaged in one of their many exchanges on constitutionalism. As with other Jeffersonian flights of philosophy, the younger Madison had to rein in the excesses of his senior partner and collaborator. The issue at hand was Jefferson's famous opinion “that the earth belongs in usufruct to the living.”Footnote ¹ So confident was Jefferson in the truth of this idea that he called it “self-evident.”Footnote ² Their exchangeFootnote ³ has received insightful and comprehensive analysis,Footnote ⁴ which needs no revisiting here. Adrienne Koch, whose treatment of this “intellectual reciprocity” is among our most careful, sees it as revealing the essence of the two men, pitting the “more speculative and more daring” Jefferson against “the more astute politician” Madison.Footnote ⁵

Koch is surely correct, but there was much more to this dialog. In truth, it was more than a contest between a speculative philosopher and a practical politician—it was a lawyerly debate conducted in common-law terms over the most basic of constitutional questions. Seen in that light, the debate surprises us: Jefferson, an experienced lawyer who had practiced for eight years before Virginia's high court, was bested by Madison, a man who never practiced law. More remarkable still, Jefferson was known as an expert in the law of succession and of future interests, and his practice attracted some of Virginia's wealthiest and most influential figures, who sought his guidance in legal matters concerning their estates. That he could write, as he did from Paris, “that the dead have neither powers nor rights over [the earth]”Footnote ⁶ would have come as a surprise and challenge to many of his clients. It also seems to have surprised Madison, whose response was so critical that he revised an early draft before sending his thoughtful reply, which the editors of the Papers of James Madison label “Madison's Rebuttal to ‘the Earth belongs to the Living’ Precept.”Footnote ⁷ It is a masterly rebuttal, indeed, amply demonstrating his grasp of the common law and its fundamental reliance on the tacit authority that Jefferson was rejecting. Though widely dismissed as no lawyer, Madison will now have to be regarded in an entirely new light, as a “demi-lawyer” whose autodidactic legal study has now been uncovered and revealed so impressively by Mary Sarah Bilder.Footnote ⁸

Together, the efforts of the demi-lawyer Madison and the practicing lawyer Jefferson to devise a constitutional structure in “the cause of liberty” merit Koch's description as a “great collaboration.”Footnote ⁹ This is not to say that they agreed on the means, for their tilting over the concept of generational authority was only one of many such disagreements. They differed sharply, for example, over the role of the judiciary, especially as Article IIIFootnote ¹⁰ provided for a Supreme Court whose extension of jurisdiction, Jefferson feared, would overwhelm the states and upset the carefully contrived, delicate, and uncertain balance between state and federal authority. The institutional form created by Article III, and by the supremacy clause in Article VI,Footnote ¹¹ to achieve this balance of sovereignties, Alison LaCroix argues, was unprecedented within the structure of the British Empire.Footnote ¹² To calm the fears of those who saw an incipient consolidated national government, Madison in The Federalist had to defend the new government as “of a mixed character presenting at least as many federal as national features.”Footnote ¹³ A week earlier in The Federalist he had described the “arduous … task of marking the proper line of partition, between the authority of the general, and that of the state governments.” Though those drafting the Constitution had sought the “perspicuity” of language necessary to establish the frame of government suitable to a republic, “the complexity and novelty of the objects defined” made this an elusive, if not impossible goal.Footnote ¹⁴

In writing The Federalist to urge ratification of the Constitution, Madison did not have the opportunity to defend his own favored solution to cure “the mortal diseases” of the Confederation—his failed proposal that Congress have a veto of state laws.Footnote ¹⁵ The Convention had rejected his plan that Congress be empowered “to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union.”Footnote ¹⁶ LaCroix joins a long list of historical authorities in identifying the innovative nature of granting this power instead to the judiciary—both state and federal. Rejecting the system of “stacked legislatures generating several varieties of positive law,” the Madisonian solution judicialized federalism, she concludes, and “gave state judges the power to interpret the law of the federal polity while, at the same stroke, bringing those judges under the occasional control of that polity.”Footnote ¹⁷ In formulating judicial federalism this way, LaCroix echoes James R. Stoner's insightful observation. Making the same point about such judicial federalism, he explains: “It allowed the judiciaries of each part of the system to reach unobtrusively into the other as needed to settle the case at hand: the state courts enforcing claims under federal law when these arose in cases within their jurisdiction; the federal courts deferring to the law of the states in settling diversity suits and even, under the original Judiciary Act, in ordering their own legal process.”Footnote ¹⁸

He, too, links Articles III and VI, finding both in the New Jersey Plan, which provided for “appeal to the Judiciary of the U. States” from “the superior Common law Judiciarys of the state.”Footnote ¹⁹ Stoner finds the origins of this system in the common-law tradition: “What made the unique arrangement of American federalism possible, at least in the early years of the Republic, was its mediation by a judiciary trained to focus not on abstract questions of sovereignty but on questions of right and power as they arise in a particular case. This allowed the logic of the novel system to be worked out over time, as issues developed, rather than forcing a settlement before the advantages and disadvantages had become clear.”Footnote ²⁰

Stoner was not alone in locating the origins of this judicialized federalism in what has been called the “common-law mind.”Footnote ²¹ Identification of the role of the common law in providing a constitutional foundation does not suggest an intent to adopt a federal common law. Rather, the “common-law mind” was a way of thinking, of using judicial authority to express abstract principles through the application of particular privileges and rights, such as trial by jury.Footnote ²² It rested on consent created by long adherence to custom and precedent, and it was controlled by practice rather than abstraction. It embodied the procedures of due process that guaranteed the liberty of the subject—and, a fortiori with independence, that of the citizen. In defending a federal judiciary that mediated between state and national authority and applied a “supreme law of the land,” therefore, Hamilton/Publius was restating the role of the common-law judge in “mitigating the severity, and confining the operation” of the law.Footnote ²³ In its skepticism toward all-encompassing theoretical claims, the common-law mind preferred particular cases to abstractions, what Article III accomplished by specifying only those “Cases” and “Controversies” within the jurisdiction of the “Judicial power.”Footnote ²⁴

Common-law constitutionalism, that is, provided both legitimacy and method. It meant a deference to the tacit consent that came only from long adherence to precedent and the refinement and perfection of law by common-law reasoning and decision making—something that could only come from what Hamilton/Publius called the “long and laborious study to acquire a competent knowledge” of precedents and custom.Footnote ²⁵ As a law student, Madison had read in his study of Coke that “the Common Law itself is nothing else but reason, which is to be understood as an artificiall perfection of reason gotten by long studie, observation and experience, and not of every mans naturall reason, for nemo nascitur artifex.”Footnote ²⁶ Coke's influence on Madison the law student became an article of faith in Madison the demi-lawyer and constitutionalist, who paraphrased Coke's famous definition of common-law reasoning when he wrote in another set of notes, “Natural Logic is that faculty of thinking, reasoning and arguing which a Man has by Nature without any help but his own Sagacity and Experience.” By contrast, he continued, “Artificial Logick is a collection of the observations and Experience of many Ingenious Men concerning the discovery or Illustration of truth & Error, digested into order for ready use.”Footnote ²⁷ We can now see how, in his Law Notes, Madison learned the “Artificial Logick” of the common law that informed the Publius of Federalist 37 who called for “particular discussions and adjudications” by which constitutional meaning would be “liquidated and ascertained.”Footnote ²⁸

Hamilton/Publius had invoked common-law constitutionalism when he explained that courts “must declare the sense of the law” and make sure that “JUDGMENT” prevailed over “WILL,”Footnote ²⁹ and Madison, his “reflective alter ego of The Federalist,”Footnote ³⁰ never abandoned the distinction. If legislation meant “will,” the common-law court provided the counterbalance of “judgment.” It was for this reason that Madison the common lawyer distrusted codification and rejected Jeremy Bentham's offer to codify all of American law. When a code was prepared for Louisiana in 1822, a cautious Madison emphasized the superiority of common-law constitutionalism. It was only the “practical application” of laws that could reduce them to “clearness & certainty”; legitimacy required that the courts “settle[] by long use and authoritative expositions” the meaning of such terms as “trial by jury.” The application of such terms, he cautioned, required common-law judicial interpretation, because they “fill volumes, when unfolded into the details which enter into their meaning.”Footnote ³¹ This is what Hamilton/Publius meant in The Federalist by judges being “bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”Footnote ³² Warning against too frequent reliance on a positivist “recurrence to the people,” Madison/Publius instead advised reliance, typical of the common law, on “that veneration, which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.”Footnote ³³

It is for this reason that Mary Sarah Bilder's identification of James Madison as the compiler of manuscript Law Notes hitherto attributed to Thomas Jefferson is so significant, and so promising of future advances in the study of constitutional foundations. She asks if compilations such as Madison's—or, for that matter, Jefferson's or Josiah Quincy's—are anything “more than notebooks ‘full of extracts, largely from English sources, copied out’ by young men?” Bilder offers a powerful challenge to conventional scholarship in which “the influence of the common-law tradition has been so hard to establish,” producing a constraining historiography of the Founding that “focuses on the transmission of theoretical ideas.”Footnote ³⁴ By showing us what Madison actually read—cases—and how he responded to them, she has, indeed, given us “a perfect opportunity to think about whether law student notes have a value beyond telling us ‘about colonial legal education.’”Footnote ³⁵ It is well worth heeding her suggestion, and looking at such notes as Madison's, for doing so will draw us much deeper into the “mind of the Founder,” a man who “taught … law to legalists.”Footnote ³⁶

Bilder is surely correct in her reluctance to make grand statements about how Madison's legal training might have related to “the Founding vision (whatever that might be).”Footnote ³⁷ Substantively, the Notes do not reveal, as do those taken by Jefferson in his Legal Commonplace Book, any intellectual anticipation of later concern for larger constitutional issues. Madison's Notes, compiled in 1784, show him neglecting topics “that did not appear applicable to postrevolutionary American law,”Footnote ³⁸ while Jefferson, who began his own notes in 1767, took an interest in issues with implications for his own revolutionary and reformist projects, returning to them long after he ceased his practice of law.Footnote ³⁹ Madison's law student commonplacing under Salkeld's heading “Corporation,”Footnote ⁴⁰ for example, attends to a pedestrian and practical matter and gives no hint of the mature politician's reflections on the subject in his later “Detached Memoranda” addressing its substantive implications for free government.Footnote ⁴¹

Nevertheless, by demonstrating how “these notes reveal Madison's significant grasp of law and his striking curiosity about the problem of language”Footnote ⁴² she has identified a significant continuity that does bring us more deeply into an understanding of “the mind of the Founder.” “What problems arose from the uncertainty of words?” she asks on his behalf. “How did one interpret words in statutes?”Footnote ⁴³ Although Madison's comments on corporations in the “Detached Memoranda” show no trace of substantive law from his studies as a student more than thirty years earlier, they offer ample evidence that he retained his concerns about the abuse of language and the need for “perspicuity.” Deploring how local officials might commit “injustice and oppression … by laws & regulations, not in strict construction violating any law of the land,”Footnote ⁴⁴ he was returning to what he had learned as a law student—the responsibility of the common-law judge to interpret, refine, and perfect legal language to be true to the meaning of the law.