at the government wanted you to write. i felt this was a question of principle. announcer: sunday night on " q&a." announcer: each week american history tv sits in on a lecture with one of the nation's college professors. you can watch the classes here every saturday evening at 8:00 p.m. and midnight eastern. next, stanford university professor jack rakove talks about some of the issues debated during the constitutional convention of 1787, such as the number of representatives for each state and the method of presidential elections. he describes the arguments put forth by james madison and how delegates tried to reach compromise, despite competing state interests. this class is just over 50 minutes.

professor rakove: the subtitle is myths about the elections and we will go into those. let's talk about the myths. madison's role as the agenda maker for the convention, and the particular point i want to make, as madison prepares himself, i think the key item he worked on in his agenda is the idea that a system of federalism, with the recommendations, the resolutions, the requisitions came from the continental congress, was never going to work. when he reasons this, he does this in an empirical way. he looked at the lessons that americans like him had learned since 1776. then he takes this stuff back, and then he thinks abstractly,

and what we can see, i theoretic framework where he comes up with the idea -- there's always some incentive to run against washington. even where states have a common interest, you will have this repetitive net draft from the federal system. so, the federal system is not going to function efficiently. madison says this will never failed to render federal measures -- he comes to a conclusion what needs to be done, you need a system that can operate by law not by recommendations. then you can have much greater national government that functions more like a russian -- like a functioning government. it needs to have an independent legislature, an independent judiciary.

once you are in this position, you start drawing from these various lessons americans have been accumulating. he has been highly active in both national and state politics. indeed, many of the things i think he brought to the constitution project came out of being a member of two member bodies, the congress of philadelphia, and then later also the virginia general assembly, which starts in richmond in the middle of the 1780's. there is one other point -- at the very end of that essay madison launches into a whole new topic. he has three items that are about the multiplicity, -- and the injustice of the state legislature. when he gets to the injustice question, he has a wonderful passage.

they are secondary to a deeper question. you have legislatures in the states ruling unjustly. he says this calls into question the republican government, that these are the guardians of public good and private rights. in other words madison has reached the position where he is really starting to question majority rule. or he is looking at the vices of the fascist majority, or the majority -- what is the true public interest on one hand, or private rights? this is where he first thought of the analysis many of us know

better from federal intent. he said, there are many sources. he talks a bit, in a fairly compressed way, about what is wrong with state legislatures. the more frequent, if not fatal source comes from the people themselves. if we are going to build a republic, we cannot have a collection of citizens who always support the vibrant interest of public good. if that is the case, we need to think of a way to improve the quality of our deliberations. i raise this point because it seems to me -- i think it is critical to figure out what about medicine bring together this agenda? i could not resist this. i put this slide up.

this is at the madison constitution center. it was my 50th high school reunion from last fall. you will see, this is of course independence hall. what difference does an agenda make? i think it's important for us to understand at the outset it was exactly what the constitution was going to do. madison and the secretary of war -- he had sent ideas of his own to washington, is circle of army officers who have their own notion of what might be gone but there is not extensive public discussion about exactly what the convention was going to

do. and we can imagine speaking retrospectively that there were any number of possibilities that might have been available. it could have sounded much like the new jersey plan, which was introduced in mid june 1787. i will put the slide up. let's just add some additional powers to those already possessed by the continental congress under the articles of confederation. maybe we do not need to change the structure of government at all. maybe if we add a few powers. that's not a bad position. we should not expect the american people to go too far. we should cut them some slack. it's been a long and expensive war. there has been a significant depression in the 1780's. maybe we should cut the american people some slack and not expect too much. on the other hand, if you are a

rabid nationalist, gee, why don't we get rid of these states? white we need rhode island or delaware -- why do we need rhode island or delaware? there is no good reason as far as i can tell. the states of different sizes -- maybe we should think about the optimal size of the state? that would be radical. maybe get rid of states altogether. we will get to hamilton momentarily, too. in between, there is a strategy. it says we do need a government in the full sense of the term. so, we should think, we should rethink all of the central characteristics of a republican government. maybe based a little bit on the sources. we should know our montague, our locke, hobbs, machiavelli in

some respects. that is the experience they can draw on in times of coming -- in terms of coming up with a strategy. so, with the analysis of the sources, i will not say it is skepticism, but he is airing doubts about the wisdom of majority rule per se. madison's idea is maybe the national government should have the authority to intervene in the states individually. actually give the national government and congress what he calls the negative -- we would call it a veto -- on all state laws. the negative can be used to protect against interference from the states.

we will look at this in a couple weeks when we look at the great case of 1819. but maybe we should be able to protect minorities in the state against unjust legislation? it is the hottest topic that came when could discuss at the time, short of a polishing the states. -- short of abolishing the states. i think it makes a lot of sense for us to think of madison as a key figure, regardless of what his batting average was. you have to watch out for -- you are not going to hold this the whole time? put that down. anyhow. under the agenda, the other thing i must say and it comes out in a letter to george washington for april 16, which

you already for today -- madison's is the first thing we have to do is solve the problem of representation. that means that madison was firmly committed to majority area and -- majoritarian principles in the legislature. it has to be bicameral. there have to be two houses. madison says some federal proportionality has to apply to both houses, in terms of allowing each state to have an equal vote. we have to figure that out before what the national government can exercise. another delegate said, why do we do it the other way? they are not that expensive. maybe we do not have to alter the structures?

madison took a different position. if we cannot agree on what powers we determine the allocation of representation whether it will be respective or not. in that is what drives the convention. when we get into philadelphia, what we know best, of course, we see one issue. the apportionment among the states in both houses is really the one dominant issue. and then we come to the so-called great compromise. the so-called great compromise there are three myths about the constitution that are the subject of today's lecture. i think this is fairly familiar stuff. in fact, article one, article two, article 3 -- we deal with the articles relating to congress, the articles relating to the executive, articles relating to the judiciary.

the federalism had a great article 4, 5, and so on. there are three propositions which are how we think of what happened in philadelphia. let's just start counting them off. i will go back and try to talk about each individually. you can sell i am ready -- you can tell i am ready to go. but if i am going to fast, stop me, even challenge my position. senator barroso, i had dinner with him a few months ago. i said, why are there only two senators? i have never explained it. he did not pick up on the question. anyway. i think here is the common supposition.

giving each state and equal vote was a true compromise. compromise in the best sense of the term. while the 3/5 clause over slavery was a moral failure. so, the position i am going to argue is giving each state and he will vote in the senate -- that was kind of madison's solution. if you guys go back to the prior slide. as far as the 3/5 clause, i want to make clear from the beginning -- i am not defending slavery. i am not arguing african-americans are .6 of caucasians. what i am saying, there is a very significant basis for understanding their is -- there is a much deeper and longer lasting compromise meant to be incorporated into the 3/5 laws.

i will explain my as i go on. again, i am not defending slavery. i think in political terms, the 3/5 clause case is much better than the equal votes. i will try to explain why. the common supposition is why have the electoral college? the framers feared democracy. i think that that is wrong and i will try to explain. and what we got stuck with this strange device, the electoral college. in 1896 it was already obsolete. having a select group of electors choose the president. the third thing is a point that should be familiar to anybody thinking about going to law school.

judicial review of legislation the idea that courts should determine whether or not ask of legislation are permissible or not. there is a common supposition, but that was really not part of the framers' design. it really came into being out of marshall's great opinion in marbury versus madison in 1803. i think that is bunk. i think marbury -- an interesting case, for reasons other than the lens of historians or political scientists. it is a case worth studying, but was it consequential? i don't think so. i think judicial review lies elsewhere and i will try to give a short extra nation. those are the three myths we will talk about.

let's bring a few characters online so we know who they are. this is alexander hamilton. he really belongs with madison and jefferson and franklin. maybe john adams. kind of the five most powerful minds of this american generation. hamilton, of course, is famous for giving the speech on june 18, which is a famous speech. it astonishes everyone. hamilton, in fact, was not all that active a delegate in philadelphia. much more important was madison's -- as madison's co-author of "the federalist." hamilton kind of goes back and forth.

back to new york during the convention. he goes back to his family. major figure. maybe less the constitution but as america's great state builder. madison of course -- here are two other princeton guys. luther martin. and william paterson. martin will be the attorney for maryland in the great case of mcculloch. he gives a great speech protecting states rights. madison's basic impression was -- [speaking latin] if you can translate? >> alcohol? [laughter]

he may have had to go on a bender in order to talk. harrison, the son of scottish immigrants. the revolution gives him an opportunity. he serves on the first supreme court. then a couple of new englanders up here. gerry, one of the very wealthy merchants who would not sign at the end of the convention. and he figures prominently in the case with the equal state vote. sherman -- you can't quite make it out here, but sherman had an awkwardness to him. do you see how he is sitting in this chair? he can't go back further. he can't quite unwind. but yeah, sherman played a very active role.

there are other delegates i could show. let me get a point up here i could talk about later, but not first. so, representation. the great compromise essentially the decision to give states and equal vote in the senate. was that a great comp are mice to be admired or not? the next side of the compromise, of course, is the 3/5 clause and the allocation of direct taxes among the states on the basis of the population, where slaves counted as 1/6 of a free person. everybody knows what is meant by that phrase. ok? if you go back to that letter from edison to washington,

madison discusses his strategy for dealing with the representation question. it does identify a theoretic aspect of his thinking. madison says -- here is how we fix the politics of this issue. he thinks the northern states will favor the idea of proportional representation because they happy population -- they have the population. it is in their current interest. but imagine, madison is not unique in imagining this -- he also imagines the population in the decades after the revolution will work to the advantage of the south. the south will come more into parity with the north in terms of population. delegates from the south will vote to recognize in the long

run this kind of formula will protect their interests. that's not a bad argument. it explains why we have the census every 10 years. it is the southern delegates. the others are following congress to determine on its own discretion. but the southern delegates led by randolph -- of course madison addresses randolph as "my dear friend," whereas jefferson is "my dear sir." there is a nuance. if you think it will work for you in the long run, you want to make sure a rule of representation and specific provisions to have that rule honored over time will be provided in the constitution.

you may want to have those rules locked into the constitution to protect your interests over the long run. madison says, proportionality should appeal on a regional basis. madison assumes -- where are they going to go? what is delaware going to do? what is rhode island going to do? they are just not going to have the staying power through this. this is madison's calculation. he thinks he can argue into them giving up on the point. the last item -- you guys member the basic argument? what is the basis of political affiliation, orientation and our society?

we want to identify, what are the real interest that swirl through the body politic? whether we are voters or whether we are officials. the basic argument -- do we identify ourselves with an ethnocultural identity? it could be community. not the states, but the kind of community in which he lived. it could be ethnocultural, religious lines.

old white wasps tend to be republican and so on and so forth. i think this is a big basis of his argument -- the size of the state in which you live is politically irrelevant except under one condition. ordinarily the size of the state in which you live will have no effect at all. no effect at all on your political behavior. you will never ask the question, how should the small state vote, how should the large state vote? except for one exception. was the obvious exception? >> [indiscernible] professor rakove: well, that will get factored in. the electoral college -- that you are close. your close. >> [indiscernible] professor rakove: no, that's

like to be the opposition. the size of the state. if you are having an argument about whether small states deserve to be overrepresented just because they are small, madison's argument would be small states do not represent -- deserve representation per se because size is not correlated with their interests. you are just going to give them in a to benefit -- give them an extra benefit. the exception is when you are operating on laws where you do not know what your social position will be later. if you are voting on rules for voting and you know what your interests star, of course -- what your interests are, of course, you have the incentive. luther martin was moot. size does not affect our

opinions. suppose you are a big second amendment guy. someone taking a gun into walmart so she could be killed by a two-year-old. let's look at the strong second amendment person. you really believe in hunter's rights. does it matter if you live in what is called the venison belt, working-class guys who like to go out with their rifles on the weekend, or whether you live in idaho or wyoming? do you really believe that gun rights -- if you are like charlton heston -- does it matter? no, that is your issue.

if you are african-american, does it matter if you live in alabama or illinois? probably not. those are the real issues of passion. ok, size may sometimes be something else, but size does not -- rhode island is heavily industrialized. and so on and so on. so, this is very good. let's bring the slavery question in. madison's position would be that of his allies. you know, hamilton and others, would be -- sorry. so, madison's concern is what you really want to do, you really want to identify, what are the real interest in country has to work on?

it is an interest at the convention because they have the delegates coming through. william patterson, sherman johnson, dickinson, martin -- at the end you do not find it very convincing or persuasive because you know that size is not a predictor of political behavior. size is not an issue. what will be an issue is -- slavery. this is a quotation. i miss the little at the bottom of the screen here. let's see if i can -- it's exciting as madison gives a speech on june 30. the convention is deadlocked and madison is trying to break the deadlock and the summarizes his position. it is important to identify

those senses. they are entitled to security. basically we have to identify what are the real interest deserving recognition? by the way, my colleague at boston college, a jd historian type has a book coming out next year called "madison and payne." it has madison's notes on debate, which forces us to think exactly how and when did madison write his notes and how and when did he revise them? it's interesting about the way madison's views may have shifted over time and the way that those may have altered.

it should be out sometime this year. we cannot assume that this is sacred scripture. let's take it like it is. it is not the difference of size, but other circumstances. this is a very montesquieuian notion. californians without the polar vortex, we can appreciate the significance of this statement. apart from climate, principally the effect of having or not having slaves. it did not lie between the large and small states. madison was making a point with

a delicate operation. trying to answer the slavery question. he wants to introduce it in order to come up with a convincing argument as to why the small states have no valid claim for an equal state vote in either house of congress over the long run. we will see this in coming weeks when we talk about civil war and reconstruction. madison is 100% accurate. the civil war and reconstruction, arguably if you look at the politics today, the politics of race, the politics of slavery, madison's sociology is much better. he is trying to argue, he is trying to win the other

delegates. so, how does the story play out? the convention deadlocks on the representation of the senate. there is a compromise committee that meets. madison has the committee meet. the convention is not that large anyhow. the convention comes back with a proposal on july 5. they take a day to celebrate the fourth, which was becoming a holiday at that point. and then in a matter of a few days, they moved their way through -- essentially the outcome is they accept the three fisk laws for the house of representatives. you can understand the debate here. people like paterson say, you are substituting for the larger population, since slaves do not

have political rights at all they should not be factored into any algorithm for representation. they do not exist politically. slaves are not subjective actors. when our children subjective actors? they do have rights of their own. slaves do not. they are property. this is somewhat euphemistic in many ways, but i think it's a good deal, and not because i like slavery. you have two regions with very good interests. if you put together the idea of a national union, there are vested interest.

we wish that the framers were born in light, but the fact is slavery is deeply indebted in american constitutional structure. and without slavery, it is doubtful the document would have been ratified. so, the convention deals with these things pretty easily. there are statements. there are interesting statements. it demonstrates that slavery was becoming a moral issue. it becomes an issue sometime around the middle of the 18th century. you can see how these concerns are resonating through american thinking. was it ok? going to make it? they'll take care of you. what happens with the equal state vote, it passes by the

narrowest of margins. it carries five to four. there are 10 states present. it carries five to four with one state, massachusetts, divided. ok. so it passes five to four with one state, massachusetts divided. massachusetts is divided because garry, the guy i put up earlier from the north shore at marblehead. i think he is one of the first mavericks of american history. retrospectively we start calling that decision a compromise. madison one and the other side lost.

that is why wyoming and idaho have two senators and california with 37 million people -- some of you guys probably do not know. you know this? the old lady is as good as you. they got 12 and you got 12? anyway. they actually babysat for us some time ago. anyhow. that is number one. i don't like slavery, but in terms of what it says about the politics constitutionally -- secondly, the grounds for political selection, let's get the big guy out here. washington, you can post. he is probably the most mobile. he is the big guy. 6'3", 6'4", he would tower over

most of the soldiers. there is a standing story that the presidency was created in washington's image. that's not true. that's not true at all. they went around and around. they declared the decision only in the last week and a half for the -- before the convention was adjourned and they did so in the found uncertainty. let me try to explain why. i'll try to do this in seven minutes and then we will have five minutes for this issue and then i will wrap it up. they really had to improvise, be creative. as i said in the outline, there was no adequate model for a national republican executive. the whole idea of executive

power was tied up in the idea of monarchical government or ministerial government like in great britain, which americans also renounced, because a big part of their political convictions was the british constitution is being corrupted by a ministry that was a power seeking seat of aggressive officeholders. so, there's no real precedents for what a national republican executive would look like. you really had to make it up. you had to think creatively. the dominant images monarchy. that model works pretty well -- that model's not going to work very well in a republican society. they indicated how they were starting to react, however against the republican enthusiasm. they agreed that the executive

power should be vested in one person. the first sentence of article ii says the executive power shall be vested in the president of the united states. there was an executive in pennsylvania. but the idea that the executive power resides ultimately -- where is the decision-maker? that's pretty significant. the framers agreed the president -- the executive should have limited negative, veto. one of the key prerogative powers of the british crown. the veto had disappeared. erik nelson as a very interesting, and i think very problematic, book.

he has some good arguments i found some of them deeply unconvincing, but it's an interesting way to think about it. ok. then you have this whole picture -- this whole puzzle again. there is no precedent for knowing what a republican executive is going to look like. there were three obvious modes of elections. what is election. james wilson from sylvania. a scott's immigrant who also served on the first supreme court. died bankrupt of a heart attack in a north carolina jail. came to a bad end. madison comes around to wilson's position. if you have a genuinely popular election -- you get rid of the

electoral college, the states, just have one big constituency -- if you have that kind of election and regional terms, the south would be a big loser. why? because the south -- slaves have no recognition. bam, slaves are actually a major part of the seven population. if only citizens vote, the south is the loser. it makes the virginia dynasty kind of hard to imagine. the second problem is the federal problem. this goes back to the democracy point. it wasn't that the framers feared democracy. it is not that they were whipped into some kind of frenzy to see the next guy come by on a white horse or palomino or something.

they would say the truly national character. washington is a no-brainer. but do they -- maybe it would be on a regional basis. without having some mode of ongoing elections. it was pretty problematic. not because the framers worried that americans would be swayed by proto-fascist stick -- it's hard to do worse, but you can if you try. [indiscernible] that turns out to be terrible judgment, by the way.

by the time you get to 7096 -- 1796, the framers did not anticipate how the present would work when you create more parties down the road. it was not a bad estimation for 1788. if you want to have an informed electorate, it will sound counterintuitive, but it isn't, just have a legislative election. have congress elects the president. the problem with that though -- who is going to be better informed than congressman? you have to give them some credit. it would be more knowledgeable than members of congress. by definition, they ought to be the most qualified guys. use all the information problem, but then you have another problem. what you really want is a

president who's going to be an independent executive. if you have a president that's going to be elected by congress, he has to have a one term limit. you cannot give him a second term. if you give him a second term, he won't be independent. he will be a tool. hamilton is in some ways the most interesting example. having ambition was something that you wanted to spurn. if you want the president to be -- anti-federalist not agree, because they worry a lot about despots.

it was not that the framers feared democracy. the argument here is the two other votes of dissent -- you do have the popular election, which could have worked quite well, or the election by congress, which could have worked well anytime. the electoral college is left is the kind of default mechanism. it has one obvious advantage by the time it is adopted. the convention was september 17. a week and a half before the convention adjourned. by that time, the framers have worked their way around to the idea. you have the compromise. that is what you have the construction of the electoral college. if you cannot produce a majority

for electors in terms of how electors vote then it goes. originally it was going to go to the senate. but it takes the convention three days to figure this out. so, you replicate the political compromise, the formula, and you solve the separation of powers. and the income of president will be a different situation. they had no idea who they would be. it was just kind of an empty placeholder. if you have ever been an elector in your life, it doesn't make any difference your political perceptions. i have about -- there we start to late? give me about three minutes and

we will try to wrap the separate he quickly. so, here's a great place to start. the famous rotation from alexander beckel -- bickel. "the least dangerous branch." congress was created nearly full blown by the constitution itself. the vast possibilities of the presidency were relatively easy to perceive -- i'm not so sure about that -- and the great chief justice, john marshall not say go handed, but first and foremost, was there to do it ended. if any social process can be said to have been done at a given time and by a given act, it is marshall's achievement. the time was 18 and three, and the act was the decision in the case of marbury versus madison.

i think that there are marbury's skeptics, the way i am, but let me try to brief you. it's very simple. it will be madisonian. one of madison's key proposals -- in addition to state laws and representation, he is following an example from the virginia state constitution and having a joint executive council that would present a limited negative, a limited vo, over legislation. why did madison like this idea? he had been involved in activities of collective deliberation, whether he been in congress or the virginia assembly. he was deeply, deeply mistrustful of the quality of legislative the liberation. -- deliberation.

he is skeptical about it. he was to do what he thinks will improve the quality of legislation. it's much better to deal with it at the beginning then deal with poorly drafted legislation later on. it's better to deal with it then later on when the consequences have to be litigated out. you better have legislation like this. but when he proposes a revision, you see, all of the framers

understand. all of the framers except for james wilson think that this is not a good idea, and their basic argument is a, it will comprise the judicial role to involve judges in making policy decisions. you want to draw a line very sharply between technical interpretation of policy decisions. secondly, the problem is when you have actual cases -- instead of imagining something for it takes place. -- before it takes place. let the controversy evolve in them work it out then. in marbury versus madison, which no one sites afterwards -- cites afterwards -- it is a new idea and the framers were aware of the new idea. it would not be against congress. that is what the supremacy clause of the constitution said.

judicial review first and foremost was an alternative to madison's idea of coercing the states, to write a legal remedy without having to muck up national legislation. the idea that they were trying to be novel, i think that is a big misconception. and we will come back to this in a couple weeks when we talk about maryland and marbury versus madison. so, thanks a lot. we left all of the stuff we need for next week up here. federalist's, anti-federalist's, some other stuff. here is the outline for today if you want to have it. and no one really -- she will start working on her notes. so, you will all be here, i

hope, on monday, and we will see how this experiment goes. thanks. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2015] announcer: she provides unique window into colonial america, abigail items. examining the public and private lives of the women who build the position of first lady and their influence on the presidency, for martha washington to michelle obama. as a complement to the series, c-span's new book is available "first lady's."

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