I was asked yesterday via email by a new friend if James Madison would concede some points to Patrick Henry if they were alive today. The context of the question is in light of their opposing views regarding the inclusion of a Bill of Rights with our Constitution. And, upon reading this question I immediately remembered a similar question I was asked back in the mid 1990’s. The only difference in the context was the original question included concerns about the natural law and the common law. My original answer is reposted here:
As I am sure you know, our founders were well versed in the common law, and I am not aware of a single one that would admit they had a significant problem with Locke’s Natural Law theory. There were some, like John Adams, who worried (like some today) that the Natural Law was a small step into the rule of men (to be later compiled by Lennin as “The Rule of Man”). But with the Founder’s creation of federalism, and with a well-understood foundation in Natural Law that includes the concept of Sovereignty, the Natural Law is today our potential political savior. I am sure both Madison and Henry would agree.
Further, both would also agree that original intent of the Bill of Rights was proposed and accepted as a list of already existing individual rights though not inclusive of all rights, giving rise to the 9th and 10th Amendments.
At his core, Madison was an Anti-Federalist. But he was a practical man as well and he knew the new country needed a singular authority to bring the states together for things like a standing army. To meet the needs of the time (LOADED WORDS!), Madison participated in the writings of the Federalist Papers because of his practical side. And this seemingly conflicting issue turned out to be a blessing as his skeptical nature of singular authority ended up giving us a wealth of tools to describe the need for limited government.
Patrick Henry, on the other hand, didn’t “give a damn” (to express his nature!) about diplomacy and the nature of politics. He personified Franklin’s words, “Those willing to give up a little liberty for a little security deserve neither.” I can imagine today Henry privately calling Madison a wimp, but with full knowledge of today’s events, he would publicly understand what Madison did was forward-thinking and commendable.
With that said, the better man to use as an anti-federalist rep would be Richard Henry Lee* who would today call Madison a turn-coat!
In my opinion, the Founders screwed up by adding a Bill of Rights and by not officially attaching the Declaration of Independence as the Preamble. I do argue that the current Preamble is in fact the shortest version possible of our Declaration. But shortness is apparently the problem as the words of the Preamble are ignored and/or misunderstood due to the use of modern definitions rather than using original meaning. I think a close look at the modifiers like “establish” and “insure,” and “provide,” and “promote,” and “general,” and “secure” would bring a patriot in line with the meaning (intent) of our Declaration.
In summary, if Madison and Henry were flies on the wall’s of Congress, Henry would be forced to admit Madison was a pretty smart cookie. But, don’t get me started! If I were a little smarter and a little richer I would write a book on this subject.
*Richard Henry Lee, as found in The Federal Farmer:
"A militia when properly formed, are in fact the people themselves, and render regular troops in great measure unnecessary. The powers to form and arm the militia, to appoint their officers, and to command their services, are very important; nor ought they in a confederated republic to be lodged, solely, in any one member of the government. First, the constitution ought to secure a genuine [ ] and guard against a select militia, by providing that the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usage of the states, all men capable of bearing arms; and that all regulations tending to render this general militia ― useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interests and attachments in the community is to be avoided. …To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them…."
I don’t think Lee was a great forward thinker. But his understanding of human nature made him filled with Truth, and truth then is truth for all time.