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Carl T. Bogus

Carl T. Bogus, professor of law at Roger Williams University, is the
author of Why Lawsuits Are Good for America: Disciplined Democracy,
Big Business and the Common Law
(NYU). He also edited The Second
Amendment in Law and History
(New Press).


  • Guns and Gun Control March 13, 2003

    Guns in the Courtroom

    In the late summer and fall of 1997, small news leaks began appearing that Mayor Edward Rendell of Philadelphia (who is now governor of Pennsylvania) was thinking about suing the firearms indus

    Carl T. Bogus

  • History June 20, 2002

    Jefferson’s Patsy?

    No one has contributed more to the United States than James Madison. He was the principal architect of the Constitution, the brilliant theorist who, more than any other single individual, was responsible for designing the American system of government. Moreover, along with Washington and Franklin, Madison was one of the men who made the Constitutional Convention in Philadelphia work. Whenever passionate disagreements threatened the enterprise, it was Madison's calm logic to which the others listened. As one delegate put it, it was Madison who had "the most correct knowledge" about government affairs.

    And no one did more than Madison to get the Constitution ratified in the face of strong anti-Federalist opposition. The most hyperbolic superlatives cannot do justice to the twenty-nine newspaper essays Madison wrote that, together with essays by Alexander Hamilton and John Jay (all written under the pseudonym Publius), comprise the Federalist Papers. Suffice it to say that 200 years later a distinguished political scientist wrote, "The Federalist is the most important work in political science that has ever been written, or is likely to be written, in the United States," and that Madison's contributions shine the brightest.

    And that is not all. At the convention in Richmond when anti-Federalists George Mason and Patrick Henry used every argument and stratagem to persuade Virginia to refuse to ratify the new Constitution--which, had they been successful, would have caused the Union to be stillborn--it was Madison's cool, clear reasoning that once again saved the day.

    Madison's place in the pantheon of great Americans, therefore, is secure regardless of how we evaluate his performance as the nation's fourth President (1809-17). His reputation can withstand the central inquiry of Garry Wills's short and provocative new book, namely: Why was James Madison so great a constitutionalist but so dreadful a President?

    Perhaps I overstate by calling Madison's presidency "dreadful." Wills does not go that far. He presents an evaluation of Madison's successes and failures, finding both. Nor do historians generally consider Madison a dreadful President. When C-SPAN asked historians to rank the forty-two American Presidents, Madison came in at number 18, putting him slightly above average and, by way of modern comparisons, ahead of George H.W. Bush (20) and Bill Clinton (21).

    Wills's strongest pejorative is his description of Madison as a "hapless commander in chief." Nevertheless, Wills's examination makes me wonder whether, out of deference to Madison's other accomplishments, historians are being unduly charitable to his presidency.

    The defining issue of Madison's tenure was the War of 1812. Some historians argue that he cannot be blamed for a war thrust upon him by a "War Hawk Congress." Others, however, including most prominently Ralph Ketcham of Syracuse University, argue that Madison wanted the war and maneuvered Congress into declaring it. Wills sides with Ketcham and builds a persuasive case that Madison deliberately propelled America into a war for which it was ill prepared.

    War was raging between England and France when Madison came to office. Napoleon's armies were conducting their bloody marches across the Continent while England was using her sea power to try to keep him confined there. During his term, Jefferson had been confronted with the problem of what to do about the combatants seizing ships that were carrying American exports to their adversaries or, in England's case especially, boarding American ships to seize sailors, many of whom were deserters from the British Navy. At Madison's urging (Madison was Jefferson's Secretary of State), Jefferson imposed an embargo on American ships crossing the Atlantic. While some supported an embargo to keep American ships out of harm's way, Madison believed an embargo would exert enough commercial pressure on England to force it to agree to leave American shipping alone.

    But in fact the embargo meant little to England or France. It meant much more to America, particularly New England, whose economy depended heavily on trade with England. In the first year of the embargo America's exports fell by almost 80 percent. New England preferred having some of its ships and cargo seized by combatants to suspending all trade. Under great pressure, Congress ended the embargo and replaced it with the Nonintercourse Act, which permitted American ships to cross the Atlantic as long as they did not trade with England or France. The virtue of this approach was that it was unenforceable; once American ships disappeared over the horizon, there was no telling where they went.

    The embargo ended on the last day of Jefferson's presidency, and the indignity of combatants seizing American ships and sailors resumed in full force as Madison took office. Then Madison heard good news: A British diplomat reported that his government was ready to grant America neutral trading rights. Thrilled, Madison immediately issued a proclamation repealing America's prohibition against trade with whichever nation, England or France, first granted neutral trading rights to the United States. Believing troubles with England at sea to be at an end, 600 ships sailed from American ports confident that all would be well when they arrived at their trading destinations across the Atlantic.

    But England quickly announced there had been a mistake. Its representative had failed to communicate that England would grant neutral status only upon several conditions, one of which was that England would continue to stop and board American ships and seize former British sailors. Madison was fit to tied. By reneging on its word, said Madison, England had committed an "outrage on all decency" more horrible than the capture of black slaves from the shores of Africa.

    Madison should have realized something was wrong with the original repre-sentation, Wills argues. The US government's own survey revealed that roughly 9,000 American crewmen were British deserters, and England could not possibly afford so many of her sailors safe haven on American ships.

    Madison tried to wipe the egg off his face by announcing a new policy--America would unilaterally resume trade with England and France and continue to trade with both until either nation recognized America's neutral trading rights, at which time America would automatically reimpose an embargo upon the other. In view of the failure of the first embargo, there was no reason to believe a potential new embargo would force England or France to change its policy. But, says Wills, Madison remained stubbornly committed to the failed policy of embargo. Unfortunately, Wills believes, Napoleon shrewdly exploited it as a means to maneuver America into war against England.

    Napoleon announced he would repeal his ban on neutral trade on November 1, 1812, provided that the United States reimposed its embargo against England by then. Acting once again without bothering to get clarification, Madison reimposed the embargo upon England. But just as he had previously acted without learning England's details and conditions, this time Madison acted on Napoleon's offer only to discover that Napoleon refused to rescind an order confiscating American ships at port in recently captured Holland and other harbors of the empire.

    Getting bamboozled by Napoleon appears, paradoxically, to have made Madison even more furious at England. For its part, England found Madison's willingness to side with France deplorable. "England felt that it was defending the free world against the international tyranny of Bonapartism," Wills writes. "Anyone who was not with them in that struggle was against them." And so, increasingly, America and England perceived each other as enemies.

    Madison's anger with England was one factor that moved him toward war, but there was another as well: He wanted to seize Canada. Jefferson urged Madison to pluck this ripe plum while England was militarily engaged with Napoleon. "The acquisition of Canada this year will be a mere matter of marching," advised Jefferson.

    It may be worth pausing to observe that many of Madison's worst disasters involve following Jefferson. With the exception of the War of 1812, the most lamentable mistake of Madison's career was his plotting with Jefferson to have states nullify federal laws, specifically the Alien and Sedition Acts of 1798. The acts violated fundamental principles of free speech and press, and Jefferson and Madison cannot be blamed for opposing them. But the medicine they prescribed--the claim that the states could enact legislation nullifying federal law--was potentially far worse than the disease.

    At the Constitutional Convention in 1787, Madison had argued that Congress should be given the authority to nullify state law, and was discouraged when he lost this battle. He later betrayed his own convictions by arguing that the state legislatures could nullify laws enacted by Congress, though for tactical reasons he called this "interposition" rather than "nullification." Moreover, Madison allowed himself to be Jefferson's cat's-paw in this matter. Jefferson, then Vice President, wanted to keep his own involvement secret, and Madison fronted for both of them. Madison was haunted by this throughout his career: Southern states invoked Madison's support of nullification during disputes over slavery, and Madison's political opponents delighted in forcing him to try to explain the difference between "interposition" and "nullification."

    Why did Madison so readily follow Jefferson over cliffs? Madison was nervous, bookish, provisional and physically unimposing (5'4" and 100 pounds). He was so insecure with the opposite sex that he did not attempt courtship until he was 31. The object of his desire was 15, and Madison was so crushed by her rejection that he did not venture into romance again until he was 43, when he successfully won Dolley's hand. It would be only natural for Madison to fall under the thrall of the tall, dashing, passionate, cosmopolitan and supremely self-confident Thomas Jefferson.

    Any sensible strategy to seize Canada from one of the world's superpowers would necessarily hinge upon a quick and powerful attack to overwhelm British forces before they could be reinforced or before the British Navy could be brought to bear in the conflict. Madison and his military commanders planned a rapid, two-pronged strike: One American force, commanded by William Hull, was to invade Canada from the west, crossing over the border from Detroit. Meanwhile, Henry Dearborn was to lead American forces from the east, crossing the Saint Lawrence River from various points in New York.

    Rather than take the time to raise and train a professional army, Madison decided to invade Canada with militia forces. But this strategy was the military equivalent of throwing pebbles at a hornet's nest--and Madison should have known it.

    Before the Revolutionary War, there had been much soapbox rhetoric about the glories of the militia: Citizen soldiers were supposed to be more virtuous and therefore more capable than professional soldiers. The Revolutionary War proved this to be bunk. After the skirmishes at Lexington and Concord, the militia performed terribly. So often did the militia bolt in the face of even much smaller opposing forces that it became Continental Army doctrine to position militia units in front of and between regular army units, who were ordered to shoot the first militiamen to run. Washington won the war only after raising and training a professional army.

    Notwithstanding the militia's dismal performance, some politicians--particularly Southern slaveholders like Madison who relied on the militia for slave control--continued to cling to the notion that the virtuous citizen militia was superior to a professional army. One Southerner who would have found these views laughable if they were not so dangerous was George Washington. "America has almost been amused out of her Liberties" by pro-militia rhetoric, he said: "I solemnly declare I never was witness to a single instance, that can countenance an opinion of Militia or raw Troops being fit for the real business of fighting."

    Madison, however, had not been listening. In the Federalist Papers, he and Hamilton expressed differing views about the militia. Hamilton argued that an effective fighting force required professional training and discipline, and he urged Congress to support only a select militia. Madison, however, continued to envision a universal militia consisting of all able-bodied white men.

    This debate resonates even today in the gun-control debate. Because the Second Amendment connects the right to bear arms to the militia, gun-rights advocates suggest that the Founders considered the universal militia to be sacrosanct. The militia was then composed of the whole body of the people, and thus the Constitution permanently grants the whole body of the people the right to keep and bear arms--or so the argument runs. This makes little sense as a matter of constitutional law, however, because, as both Hamilton and Madison recognized, the Constitution expressly empowered Congress to organize the militia as it saw fit.

    Despite the Revolutionary War experience, Madison launched his attack on Canada almost entirely with militia forces. The results were predictable. In the east, most militiamen refused to cross the Saint Lawrence, claiming that it was unlawful to take the militia outside the United States. Dearborn did manage to coax a small contingent across the river. But when shooting accidentally broke out among his own forces, they all fled in confusion back across the Saint Lawrence.

    Meanwhile, in the west, Hull's forces were paralyzed by militia refusing to take orders from regular Army officers. There was an invasion, but American forces were not the invaders. By the end of 1812, when America was to be in possession of most of Canada, a few American units that had failed to retreat successfully back into New York were being held prisoner in eastern Canada, and English forces had taken Detroit and the Michigan Territories.

    Things continued downhill. Two years later, a British force of 1,200 marched nearly unchallenged into the District of Columbia while 8,000 American troops, mostly militia, "ran away too fast for our hard-fagged people to make prisoners," as one British commander put it. The British, of course, burned the White House and Capitol to the ground.

    Wills gives Madison high marks for grace and courage during the British invasion of Washington, and, all in all, the war did not turn out too badly. The British had not wanted it and settled for the status quo ante bellum. And rather than feeling disgraced, America took patriotic pride in a series of Navy successes, remembered through battle slogans and anthems ("Don't give up the ship," James Lawrence; "We have met the enemy and they are ours," Oliver Hazard Perry; "the rockets' red glare," Francis Scott Key). America came out of war feeling good about itself. For this, historians give Madison much credit.

    Some credit is undoubtedly deserved. More than once, Madison acted with courage and grace in the midst of panic. America was properly proud of its naval feats, though it is not clear that a President who took a nation with seven warships into battle against an adversary with 436 deserves laurels.

    Is it unfair to call Madison a dreadful President? If Wills is correct about Madison stumbling his way toward war through a series of diplomatic blunders and then deciding to take on a world power with militia forces, perhaps not.

    And what is it that allowed Madison to be so great a constitutionalist and so poor a President? Wills argues that it was provincialism and naïveté: What Madison had learned from the great minds by reading books allowed him to understand political theory better, perhaps, than anyone else. But without greater worldly experience, even Madison could not operate the levers of power that he himself designed. Yet as Wills aptly concludes, "Madison did more than most, and did some things better than any. That is quite enough."

    Carl T. Bogus

  • Politics November 21, 2001

    A Verdict on the System

    Book review: A Trial by Jury, by D. Graham Burnett

    Carl T. Bogus