Not just James Madison’s genius, but also his mistakes, propelled the development of the U.S. Constitution, Harvard Law Professor Noah Feldman said in a lecture at UConn School of Law.
Speaking as the 2018 Day Pitney Visiting Scholar, Feldman presented the lecture “Madison’s Failures and the Deep Structure of Constitutional Law” on April 17, 2018, to an appreciative audience in the Reading Room of William F. Starr Hall.
Feldman focused on the 1787 Constitutional Convention in Philadelphia and Madison’s reasoning that a sovereign could exist within another sovereign, allowing, for example, federal and state governments to govern citizens simultaneously. The idea was problematic because there was no mechanism to resolve conflicts between the state and federal governments until the Supreme Court stepped into that role.
Whether that outcome was good or bad depends on one’s point of view, Feldman said. The present system will appeal to those who want to protect the minority from the majority. “If you are a consistent critic of judicial review,” he said, “then you'll look back to Madison and say, ‘It's your fault. You gave us a Constitution that has part of the structure but not enough structure.’ ”
Madison also believed that factions, or political parties, would not be able to sustain themselves under the new constitution. He thought representatives would sit together, have a collective conversation, reason through things and then vote.
“[L]ike any genius and, he was a genius, and what's more he knew he was a genius, he was very modest on every topic—except the Constitution,” Feldman said.
Feldman, the Felix Frankfurter Professor of Law at Harvard Law School and director of the Julis-Rabinowitz Program on Jewish and Israeli Law is also the author of “The Three Lives of James Madison: Genius, Partisan, President.” He is a senior fellow of the Society of Fellows, a member of the Academy of Arts and Sciences and a contributing writer for the Bloomberg View.
The annual Day Pitney Visiting Scholar lecture is presented by the Connecticut Law Review and underwritten by the Day Pitney Foundation. Previous Day Pitney Visiting Scholars have included Judge Shira Scheindlin, Lawrence Lessig, Judge Michael Mukasey, Bob Woodward, and Supreme Court justices Antonin Scalia and Ruth Bader Ginsburg.