James Madison, Poster Boy for the ACLU

GO TO THE homepage of the Federalist Society, and you will discover that its logo is a profile of James Madison. Whether Madison (as opposed to, say, Hamilton) is the best icon for this celebrated consociation of conservative lawyers and law students could be subject to some dispute. Madison’s revealing proposal, in 1787, to give Congress the power to negate state laws, which he wanted to use to protect individual and minority rights, could just as easily qualify him as a trademark for the ACLU. His criticisms in the 1790s of presidential abuse of the powers of war and diplomacy hardly accord with neo-conservative doctrine or the take-no-prisoners constitutionalism of Dick Cheney and his legal saber, David Addington. Yet Madison’s profound awareness of the difficulty of constitution-making reveals a conservative sensitivity to the dangers of the experiment he had just pioneered. Some of Madison’s writings on representation echo themes that we associate with Burke, whom intellectually grounded conservatives so deeply admire, even while American conservatism now appears to be plunging into a know-nothing vacuum that its modern pioneers, such as the late William Buckley, would have abhorred.