A Madisonian Approach to Federalism: An Interview with Rodney Smith
Updated: Jul 22, 2020
This week, join us as our CCS Director, Rodney Smith, talks to us about his two recent books James Madison: The Father of Religious Liberty (2019) and Dolley and James Madison: An Unlikely Love Story That Saved America (2019). In this wide-ranging interview, Director Smith also shares his thoughts on American federalism, how the states can do better to have their voices heard, and makes the case for a “Madisonian” approach to constitutional studies. This interview was conducted by Samuel Hill, our ambassador and Senior Research Fellow at the Federalism Index Project.
Samuel Hill: Welcome everybody! My name is Sam Hill, I am the ambassador and Senior Research Fellow at the Federalism Index Project. We are here today with Rodney Smith, who is the director of the Center for Constitutional Studies. Rodney, thank you for being with us today.
Rodney Smith: Thank you, Sam. It's a privilege. And thank you for all the work you do at the Center. It's exciting. It'll be good to get back together again soon and feel all of that buzz.
SH: It really will.
RS: With 20 or more of you all working furiously in those quarters is an exciting endeavor.
SH: There is a great energy working together with everyone and I must say I look forward to getting back to that. Could you introduce yourself to us a little more and perhaps tell us a little bit about your books that are the basis for our interview today?
RS: I would be happy to. I won't give you the whole biography, but I was born in a small town, which for me was a real blessing. I was exposed to such a wonderful variety of individuals from such diverse backgrounds and we were great friends. I had teachers who cared deeply about me who really helped change my life. I went on and I ended up getting my bachelor's degree in Political Science and Philosophy. I started into graduate school at the University of Virginia and then left to run a congressional campaign for a friend.
Then I went to law school, and after law school I went into practice but I really wanted to go into teaching, that became very clear to me so I asked my dean what I did I need to do and he said, 'Well you should get an Ivy League degree.' I went to the University of Pennsylvania and did a master's and a doctorate — that doctorate was when I became enamored with James Madison. One day I was studying some arcane material, I got a little bored it was about 3/3:30, and I just went to forage the shelves and I find this wonderful book — Rive's book, the earliest biography of Madison written by a man much younger than Madison, but a friend. I just was enthralled and so I spent years studying Madison and ultimately teaching constitutional law, two areas of interest. My dean said, "You have two areas of interest. I know you want to do constitutional law, but you have to have something else to build a reputation on because it'll be much easier to do that." So I picked sport's law, a brand new hobby, and then I'd often have people say, 'Well, how could you do constitutional law and sports law?' Particularly the First Amendment. That was what my dissertation was about, the first 16 words, religious liberty. 'How could you do that?' The interests in sports law seemed so separate from each other and I would always respond 'Well, if I'm going to study sport, the religion of the American people, then I probably ought to be interested in the First Amendment too.'
I was directing and put together a sports law and business program at Arizona State University. I was at the Sandra Day O'Connor college of law when my counterpart was in the graduate school of business at Carey School of Business at Arizona State. We put this interdisciplinary program together on sports law and then I get a call from Matt Holland at Utah Valley University and Matt, I knew him we weren't friends but I'd known him for a number of years, said, "Hey Rod! Why don't you come to UVU and work at our Constitutional Studies Center and make a lot less money? But a lot more difference?" I just couldn't turn down that opportunity so I have returned to the area that really has always captivated me more than any other.
I love our mission at the Center for Constitutional Studies. It's very simple. It is to increase constitutional literacy in a non-partisan way. Now, nothing is more important to me or my wife than my grandchildren and the world that they're blessed to grow up in. I have 28 of them and I just can't think of anything I could be working on that would be more than my grandchildren then constitutional literacy.
SH: We are really glad to have you here, Rod, for not just your boundless energy for this but also for the expertise that you have brought. For those of us who are watching, Rod is a great champion of the students and their success and so he has been a great blessing for the Center. So thank you, Rod.
I want to get into James Madison a little bit. Madison comes from a time when the supposedly nonpartisan country that Washington envisioned had decayed into profoundly vicious partisanship. Yet, he didn't seem to view partisanship as necessarily bad, why?
RS: He was in many ways a vigorous partisan. His partisanship becomes tempered later and that's my second book, Dolley and James Madison: An Unlikely Love Story that Saved America. She has a real influence on him. She tempers him in some wonderous ways and she's a very capable councilor to him in every sense of the word. It's an incredible love story between two people you'd never think of getting together. He was, nevertheless, a partisan and even under the influence of Dolley, who tempered him, he remained very much a partisan. I think that's the nature of every time. It's not whether we're going to have partisanship it's how we deal with it.
In the first two years of Washington's terms as president many referred to him (Madison) as Washington's Prime Minister. For example, I love telling the story, at Washington's first inaugural, Washington puts this address together and, I think it's 70 pages, Madison says, 'No, no, no. No that won't do — that won't do.' So ultimately he comes to Mount Vernon on his way back to the capital and stops to help and really, in fact, writes Washington's inaugural address. Then, he gets to Congress and the president delivers the address and Congress has to decide who's going to respond to it. Madison, who's America's great drafts person and the greatest law maker, is given the assignment. So, here's he written the inaugural address and now he responds to it.
SH: Rebutting himself a little bit.
RS: Yes and now, in order to preserve the power of the presidency, Washington feels that it is incumbent on him to respond to Congress so he asks Madison to write the response. That's a good way of introducing this relationship that Madison had with Washington as sort of his prime minister. But then they begin to divide, Washington becomes more a federalist, if you will, and more Hamiltonian and is Madison leaning in the direction of Jefferson and the Democratic-Republicans and ultimately, Madison becomes the party leader in Congress. The relationship was very differing.
We were deeply blessed as a nation to have George Washington as our first president. When people ask about what quality was his greatest quality, in my opinion, it was that he was deliberative. What does that mean? What it means is that he sought after opinions on each side. There were few issues, early in his presidency, that were more electric in a partisan way then the national bank and Madison is opposed to the bank. Later in life, he comes around when he's president and so forth and supports it. That's an interesting issue in itself, but Washington is persuaded more and more by Hamilton and yet, three times he invites Madison to the White House to make his case. The third time is the night before the decision has to be made — either he signs it or he doesn't sign — and Washington decides to sign the legislation, but he had asked Madison three times to offer his views.
What we have to come to understand about partisanship is, and good lawyers learn this, that we often get justice when we have vibrant arguments being made from both sides and then have the wisdom to balance them. Because, more often than not, it's true in virtually every dispute that's currently the source of a battle, is there's truth to both sides. So that was the big difference was that they understood, and we certainly wouldn't have had a Constitution if they didn't understand this — they had real disagreements — but they understood that the unity that united states required that they find a way to permit all that kind of dialogue and then resolve it.
Then what Dolley did, that was so artful, was she would have these parties every week and she'd bring people from differing viewpoints together and they would come to be friends. Many of my closest friends are people I disagree with greatly on even in the constitutional space. There are constitutional lawyers I disagree with. We have nine great Justices, they all disagree, but they are all close and respect one another. That's what they did. Dolley taught you respect the rights and the views of others and you have a better government.
SH: So this is not so much a partisanship, especially with James and Dolley, of good and bad where they work against each other but one view and another view are trying to come to something.
RS: That's right, Sam.
You're not wrong because you disagree with me. In fact, I relish that. Maybe I'm wrong. Let's sit down and talk. And in the world of legislation and of getting things done, Madison was an artisan in that. You have to sit down with the other side. You build friendships, you work out your differences and the beauty is so often the balance you arrive at is more true, is better than either one of the views standing alone.
He begins to see how important that deliberative style is. Washington persuades him to be deliberative and Dolley brings him out of his shell. One of my other favorite stories is of course the Jeffersonians and Adams, Jefferson and his supporters and Adams and his supporters, have no love for each other because the campaigns then were much uglier than they are today, much worse.
SH: What people may think today, it was worse in the old days.
RS: Yes. Now it was done through surrogates so the candidates kind of stood back and said, 'It wasn't me,' but they were vicious. The Adams family did not feel any real affinity for the Jeffersonians. At one of these gatherings somehow James Madison and John Quincy Adams begin to talk and begin to play chess together and ultimately, they solve a problem that changes America and it was the Louisiana purchase. You see, Jefferson did not want to sign the purchase because he didn't believe the president had the power to do it and, indeed, he didn't under the Constitution. So they have a problem and John Quincy Adams suggests to Madison, who's Jefferson's secretary of state and really responsible for this, 'Well James, I'll help you because I believe in it. Just make it a treaty and now we'll have the separation of powers come to our support. The executive will offer it as a treaty, we'll consider it and, if for some reasons it's not constitutional the third branch of government, the court, can tell us it's not.' And that's the way we got the Louisiana Purchase. It began to bring the Adams family and the Jeffersonians back together again. In fact, it is John Quincy Adams who offers the great eulogy to Madison when he dies and suggests in the end, in a very moving way, that future generations must listen to the still, small voice of James Madison because he always spoke very, very quiet. It was very hard to hear.
SH: He didn't boom.
RS: Jefferson said he was the most eloquent person he knew but not because of the way he spoke. It was because of what he said.
SH: Now you bring up an interesting point of powers and powers are a major question that seems to have come up right now. Who has what power? As this interview is part of federalism month and we're looking at, very specifically, some of the issues that emerged in federalism as a result of the COVID-19 pandemic. President Trump has made some statements that have raised eyebrows. A number of governors on both sides of the aisle have taken actions that are stirring controversy and despite this, and despite 200 plus years of constitutional history, we are still having this argument of who has what power. Can we take a look at Madison's actions and perhaps draw some lessons there on how to resolve this question?
RS: I think Madison would have taken some delight, not in any way in the virus — those kinds of issues were very personal to him. You see, I think it was Grace Mallon who talked about the Yellow Fever well, Dolley was directly affected by the Yellow Fever. She just had her second son, just months old, when Yellow Fever hits. Her husband (John Todd) sends the family away because if they could get them away from the mosquitos they could be safe, but he had to go back to Philadelphia and he tended to his parents. He lost his father and then he contracts the virus and he makes his way back — it's not contagious — to Dolley and dies. The very day that he dies, the infant son also contracted it. It's an awful disease. They become yellow, that's why they call it yellow jaundiced, they throw up till there's nothing left it just racks them and so on the same day she lost her baby and her husband. She was a young woman and that really shaped her character.
He (Madison) would care deeply, very deeply about people were harmed and hurting, but he was relish what's happening with regard to federalism.
SH: This would be a good time for him in federalism.
RS: Oh yes! The very virtues, again that Troy Smith talked about, this notion of covenant would be something that Madison would embrace whole heartedly. It's a covenant between the states and the federal government and there has to be interaction. In fact, it does two things: one, that interaction helps protect liberty because it's another check. Neither the states nor the federal government are all powerful so they work together and Madison would have relished this period to see eastern states coming together in consortia and saying, 'Here's our idea.' California coming with its idea, Utah coming with its idea and creating a national dialogue. Now I think we as a people should pay more attention to the dialogue and take a look at both the science — see this is one of those classic cases where we have to balance this awful virus with economic concerns that are off the wall. We're in deep need of a variety of voices.
Again, what's happened is too many people quickly gravitate to one side or the other instead of listening. Madison believed that states should interpose or petition the national government, especially on issues like liberty. We have some states doing lock downs and some not. I think he'd have said, 'Hooray, hooray, hooray!" Because we can now look at a variety of views. In a scientific sense we can also evaluate what seems to be working and we'll be able to do that. If we just step back for a moment, for a Madisonian moment, and say, 'Look, all that we're going to learn in this period is just going to be wonderful.' It's a revitalization of the voices of the states and federalism. There are a lot of things the president does that I don't care for but I applaud that he sort of said to the states, 'I want you to be free.' Now it's hard for him not to say with the states he doesn't like he jumps in and attacks. Federalism is working wonderfully, I think.
SH: It reminds me of the laboratories of democracy idea where you have 50 laboratories of democracy, you have 50 chances to try and figure out how we manage this best. Then, I suppose the lesson we can take from the Madisonian version of partisanship is rather then isolate to our camp — rather engage with partisanship — and say, 'I think this is right...I think this is right.' Look at what happens, figure some things out and very frankly, honestly say ' I think on the balance this is what we learned.'
RS: I think that's right. I mean one of the fun things about President Trump is he's taken both views. He said, "I have all power." Then, on the other hand, he said, "Oh, it's all you." So he's argued both cases. It's always difficult to argue both cases. But that's right we have a chance to have this kind of dialogue.
Again, Madison didn't believe in a thing called state's rights. He believed that the people speak through the state. The state of Utah is just an organ of the people of the state. They're a voice for them. He believed that multiple voices would check each other when any began to become tyrannical, but they also could then come together and reach — I think this was solidified for him in the Constitutional Convention of 1787. He would have agree whole heartedly with Franklin that there were things he didn't like in the Constitution. For example, on impeachment he wanted the Supreme Court to hear it not the Senate. He felt very strongly about that, but he didn't win everything. But on balance they ended up with a document that served this nation so wonderfully. So I think they, as a generation, came to believe that this partisanship wasn't a bad thing as long as you kept it reigned in so that it was a facilitated discussion.
SH: No letting partisanship run amuck. Keep it controlled like reigns on a horse.
RS: And federalism was one of the ways, Sam, that they did that.
SH: Yeah, it's to direct that power effectively. You bring up an interesting point about the idea of state's rights, which is such a contested, tempestuous discussion today. It almost sounds like, and I think this is an imperfect metaphor, the states are almost like a corporation to the voice of the people where — instead of having 10,000 voices all saying 'We speak for Virginia' — Virginia speaks for all 10,000 voices.
RS: You'll remember the large states, the small states they understood that the voices of the states would be different and that they would be reflective of the people. Having said that, Madison, in the Constitution, and Hamilton were really allies in many respects. Hamilton took the position that we don't even need the states. He gave a long, long discourse. He didn't speak much at the Constitutional Convention, but he gave a long discourse about the uselessness of the states. Well, Madison didn't agree with that. Madison, nevertheless, did believe that state laws should be vetoed at the federal levels though he also recognized we need a federal government.
And the federal government in the coronavirus, when it's operating at its best, it's making sure making sure there are ventilators. It's doing things only a federal government could do. They believed of course the federal government was to protect you against enemies, foreign and domestic, and to play a special role. So they have a special role, but so do the states to be able to be reflective of the diverse voices of the people. That way all these voices, that might be minority on the national — the Utah position wouldn't be the national position necessarily, but it is reflective of the people of Utah and that's a good thing. It protects their liberties.
It provides for tiers of democracy that they have a voice on each of the different levels and when you bring it down to the local level it's even more so. It's not designed to be efficient. It's not designed to be protective of the freedoms and the voice of the people. Federalism facilities that. It's not efficient. China's proven that. They're handling it efficiently. Of course they don't have press freedoms as we do and so they're able to hide behind matters today. They're using the virus as an excuse to limit the liberties of the people of Hong Kong. I mean, we don't have that. We didn't opt for tyranny. We didn't opt for efficiency. We opted for a federal system. We opted for separation of powers — bicameralism. We added a Bill of Rights. All of this to protect people.
SH: You spend a lot of time in your books talking about the Kentucky and Virginia resolutions and I am reminded by what you just said — it's something that perplexed me a little bit as I was reading — is that he talks about this freedom of the press and frequently it ends up coupled with conscious. Initially that struck me as sort of an odd coupling of why we can't have opposition press and conscious. Is this why?
RS: That's such a great question Sam, because you're getting the essence of the book. It is so interesting. Jefferson, you see, does the Kentucky resolution but Madison largely does the Virginia resolution and the Virginia report; interestingly enough, John Marshall, the Chief Justice, does the minority report. They're battling over the Adams administration and believe that the Jeffersonians were engaged in what we would today call fake news. Well, some of it wasn't true, but some of the Adams, the federalist press, wasn't true either. They both had a proclivity to exaggerate — to satisfy their readers. Is that new? No, that exists today too. So that's what is going on there. But Jefferson and Madison want to ensure that the federal government can't regulate press.
Why do we have a free press? Now, remember the first right, in the First Amendment, is the right of religious liberty or conscious. Next, Marshall goes to pains to say the government really can do little to regulate religious liberty, but it can't establish religion either. But then there's a bridging and that applies to the freedom of the press and so forth. Why do we want the press? Well we want the press to express those — it's a vehicle by which we can communicate to others our conscious, that which is most important to us.
So, you see the whole First Amendment's interdependent. If you limit the freedom of the press you're going to limit religious liberty, you're going to limit the right to petition: you give the government the power to limit the other. It was created to be interdependent. All designed to protect our conscious to protect our right to be able to engage in a dialogue —if you're an environmentalist about the environment - whatever is a part of your conscious you're able to do it. That's really being protected. So you're right. I wondered the same thing. I remember the first time he said that the freedom of the press is an inalienable right. The freedom of the press? Well the only way it gets to be an inalienable right is if it's reflective of our human dignity or our conscious.
SH: So much of what they did in the Bill of Rights and Constitution seems designed this way where they remembered — cause they knew their history — that when you take this step in the direction of encroaching on liberty the other steps tend to follow. It seems like they pushed that fence out as far as they could and even left a little more on the field than they could have taken justifiably to make sure that nothing crossed that border.
RS: That's right. And that's where Madison gets to the Ninth and Tenth Amendments and says if we missed anything the states can provide more liberty or we can decide under the Ninth Amendment that we haven't provided enough; in part he realized — in my book particularly the second book — I really go into the slavery issue in great detail. I don't excuse Madison, but I do explain him and he knew that there were issues incomplete. He, in sort of the euphoria of 1787-1793, from the Constitution to the Bill of Rights, he really believed we set in motion the freeing of the slaves.
SH: I'd like to get back, a little bit, to the discussion of states. So Kentucky and Virginia's resolutions emerged because the federal government is saying 'Hey we are going to control how you do these things'. And I assume the people who were supportive of the First Amendment, and concerned about the power of the federal government said, 'Well, you just gave it to us and now you're taking it away'. So you get this articulation of nullification and interposition and some people use them a little interchangeably, even back then some people tried to use them interchangeably, but they're very different things. Can you give us the primer on the two?
RS: Thank you Sam. I'm glad you raised that because it was so critical and Madison spent much of the later part of his life, again always talking about conscious, but he talked a lot about slavery and then he also talked about keeping the states united; it was the people of the states being united in the United States. He claimed the term interposition. Jefferson used nullification. Nullification with the tariff acts and John Calhoun begin to become the rallying cry of the secessionists. Interestingly, Madison dealt with secessionists too. They just happened to be in the north. These secessionists used the notion of nullification. So when they passed the Tariff Act they said, 'Well we believe it's not constitutional. We have the right to refuse to enforce it — to nullify it.' Madison didn't agree with that. Madison said you have the right to interposition — that's part of why he would have loved what's happening today with the states exercising and petitioning the national government — to interpose yourself. You say, 'Wait federal government. Before you do that, you need to think about these issues.'
Today only three percent of the American people know what the right to petition their governments also protected by the First Amendment as a matter of conscious. But the states can petition and if they do it collectively it becomes powerful. So you have both Kentucky and Virginia and ultimately all of the steam behind the limitations on the press lose their power.
SH: We've been hearing the call to Con-Con, they call it an Article V con, the idea of propsoing an amendment to address many of the problems. In the book you point out that for Madison that was the last resort and interposition encompasses all of us, but there were two earlier steps. Can you talk to us about those earlier steps?
RS: Well the earlier steps are to exercise, first of all, our rights that were given, and to exercise them effectively. We've got the House of Representatives, we got the Senate and if they could talk to each other they could be pretty effective because they represent varying voices. We speak through those varying voices. We have the press. We speak through the press. We have a variety of means that we can turn to and if all that doesn't work you can turn to interposition and the states can get together and say 'Here's our case take it seriously.' The beauty of that is it also requires the states to articulate well their case not just to punctificate.
SH: So you just can't bluster and spew. We actually have to put some thought into this one.
RS: Yeah get data. Make your case. Nobody could make a case better than Madison. Now he didn't win all the time, this was the case with the national bank, but he could really make the case and so could others. When you really make the case on both sides, all of a sudden a middle route generally appears and, that's part of the genius of America, we've had a government that creates this way of voicing all these tensions, but then coming to a middle row. That's why people say, 'What party are you in? What are you?' I'll say I'm a Madisonian moderator.
I love the system! So lets not throw out the system until we work it. That's my response to my Article V friends and I feel for some of their pain. I just think their processes that they ought to take advantage of and really make their case. I don't think they've taken the time to make the case and I will also tell you, as much as I admire all of them, I haven't found a Madison in the bunch yet. But remember it's the Madisons and people like him, now there were many James Pinckney Wilson, you could go on and on, great voices. Would we have the same great voices to hold a convention? Or would we have these dissonant voices that are elected by caucuses and conversations that are designed to be highly ideological and highly adverse to compromise?
SH: Which then, I guess, begs the question of if our system is having problems and, if the mechanisms that we currently have created and empowered are prone to create this destructive partisanship, what do we have to revert to or cultivate the healthier partisanship where it is a meeting of minds and a seeking of a middle way?
RS: Well one of the things Dr. Cole at Oxford — who is a genius behind the Quill Project that we work with where we do state constitutions, we've done the Constitution Convention, the Bill of Rights, working on the 13th, 15th Amendments and the 19th Amendment — it really is a question of constitutional literacy. We really need to be a more literate people because, the part of your statement I would take some bridge at, is our system hasn't failed us. We failed our system. We've been blessed with a wonderful system — right down to federalism— and we use it so poorly because we hardly know it. Only one out of three Americans can name all three branches of governments and yet the interaction of those three branches of government are designed to protect and promote liberty and good government, not efficient government and compromise. They were designed for that purpose.
I didn't want the most efficient builder to build my house. I wanted the best builder that would think about all the problems and build well around them. I had to wait four more months than I might have liked to for my home to be finished, but it's a beautiful home, well built because they took the pains and the time to do it well. We have a system designed to build a custom house.
SH: In closing Rod, I want to give you the last word. In this COVID moment where everything that we see, everything that we hear focuses on this disease and the responses to it. What would you like to see going forward in the American response?
RS: Probably three things. A respect for science, a respect for our history, a history for the rights of others. I would like for us to realize, as Madison did, that compromise and moving forward — and we've some of that with some of the efforts to deal with it at the national level and we'd probably had to have a fourth effort. Now I wish in that regard that they'd also bind themselves, as Madison and Hamilton did, when good times return. We're not going to give more tax cuts and we're not going to spend on more programs, we're going to pay down the debt.
So I'd wish they'd do that. But I'd like for us to relish how well our system is working and to use it well. To close on a personal note my wife is a care facility, I haven't been able to really see her and I haven't been able to really to even hold her hand for months through all of this. No life is dispensable The loss of every life should be cared about and yet we do well to respect others and to also have some sense of humor.
Dolley was wonderful, when they'd have a party and when things got slow, or especially if things got tense, she'd go over and wink at James — he knew the signal — she'd get up out of her chair and she'd bend over, she was over 5'8" and probably weighted 41 more pounds than James, and she'd kind of lean over and he'd run around the table and jump on her back. He'd run around the table, she'd deliver him back in his chair and she'd go to her chair. Then all of a sudden there was that sense of humor or Madison was also a raconteur and he could tell a good story. There is sometimes, in the midst of all this tension, that maybe we should take our views, take our selves less seriously and take the other a little more seriously.
SH: Well thank you, Rod. Thank you very much for your time today.
RS: Thank you! Thank you for what you do in the Center, Sam. You're terrific.
SH: Thank you so much. So for those of you who are watching let me encourage you to find the [books] (James Madison: The Father of Religious Liberty and Dolley and James Madison: An Unlikely Love Story that Saved America), buy them read them and then give them to your friends. They're wonderful books. They do what I think a good history book should do, which is it tells you the story by telling you a story as opposed to just dragging you through an endless list of names and dates. I must confess that I laughed out loud at the thought of our president on his wife's shoulder's galloping around the tables. They're an enjoyable read. Thank you so much, Rod.