Matt Blumberg: Welcome to Country Over Self, Defining Moments in American History. Each episode we welcome a notable historian to tell us the story of a president and a choice that president made to strengthen the country without regard to the impact of that decision on himself, his power, or his party.

Welcome to Country Over Self, Defining Moments in American History. I'm your host, Matt Blumberg, and I'm here today with my friend, Noah Feldman. Noah is the Felix Frankfurter Professor of Law at Harvard Law School, and his impressive and lengthy resume includes experiences serving as the Senior Constitutional Advisor to the Coalition Provisional Authority in Iraq, advising members on drafting the interim constitution, as well as serving as a law clerk to justice Souter on the U. S. Supreme court. Noah is the author of 10 books, most notably, for today's topic, including the three lives of James Madison, genius, partisan president. Noah has also been a personal friend for over 30 years and is not only one of the most brilliant people I've ever met, but also one of the nicest and most genuine and most engaging.

Noah, welcome to Country Over Self. And thanks for being here. 

Noah Feldman: Thank you for having me, Matt. Thanks for that very generous introduction and congratulations on this cool podcast. 

Matt Blumberg: Well, as you know, this show is all about storytelling and all about deep dives into vignettes or moments in the life of a president where that leader made a choice or a series of choices that reflected a desire to strengthen the country, either at the expense of, or at least without regard to the potential leaders.

His own role, his own power, his own stature. And I would argue that the accumulation of these moments, is one of the hallmarks of our success as a nation for nearly 250 years. So today I'm excited to talk about James Madison, maybe briefly about Dolley Madison as well. And nobody on the planet better to talk to about Madison than you.

So when it comes to Madison, founding father. architect of the constitution, fifth secretary of state, fourth president, and maybe, less known, the basically the creator of the political party system in America. there are probably a lot of moments in his career where he chose country over self. but is there a particular, vignette or story you want to dive in on?

Noah Feldman: There is, and it centers on, two episodes in the life of an institution that was really important in the early Republic, which was the National Bank. And, this had a, formative effect, partly because it was so controversial. So, to frame it, let me take you back to, The long, hot summer in Philadelphia in 1787 when Madison was the lead architect, as you said, in producing the Constitution and in the Constitution in Article One, Section eight the framers gave us a long list of powers of the new federal government, specifically powers of Congress in that section. And they conspicuously did not include the power to charter a bank. They allowed borrowing money, they allowed taxes, they'd mention a post office, there's lots of other stuff that's in there, but no bank.

Matt Blumberg: There's also a lot of stuff they didn't mention, not just bank, but, chartering a bank was not, written out in the text of the constitution, 

Noah Feldman: Right, and the reason that's significant is that a bank was the single most important institution that was perceived as needed in the early Republic that they didn't list.

No one would have imagined creating, you know, a government and not giving it, the power, for example, to have taxes, so to have money. No one would have imagined not giving it the power to have an army. but they did imagine the possibility of not putting a bank in there. And almost immediately this became one of the most important, maybe the most important topics of controversy in the early republic.

Matt Blumberg: Now, when you've looked into all the contemporaneous notes taken by all the people in the room in Philadelphia, was there debate about including the bank, excluding the bank, or was it just not discussed? 

Noah Feldman: At the convention itself, there was no extensive debate on the subject. And I think the reason is probably that as with so many things in life, the people who were involved were gaming it out while they were doing it.

And Madison himself, who, as we'll see in a moment, was not in favor of the federal government chartering a bank, was not going to bring it up. And Alexander Hamilton, who was absolutely certain that it was fully necessary for there to be a bank, for the government to do the things that he wanted it to do, which were very different than the things that Madison wanted the government to do, didn't want to bring it up because he didn't want to bring it up and lose.

And that is, in fact, the basis for the controversy that emerged because Hamilton became the first Secretary of Treasury for George Washington when George Washington was president. And he proposed a series of plans for the national economy that were as foundational and as transformational as the Constitution.

And one of those was a report he sent to Congress in December of 1790 that proposed the creation of a national bank, which would be able to effectively raise money for the government to have access to when it wanted to do big stuff in a hurry that it couldn't substitute just gathering taxes for. So from a financial perspective, absolutely essential and Hamilton who cared about that, saw that that was the case.

And he proposed it, and his theory about why it was constitutional was that the preamble talked about, providing for the general welfare of the country, and he thought that that was good enough. And he said, this is obviously necessary for that. This was part of Hamilton's general philosophy of the constitution.

And Madison said no. And that led to the first really enormous fight between the two of them, which had both personal and, political dimensions. 

Matt Blumberg: The first fight of many. 

Noah Feldman: Yeah. So it was the first fight of many. Remember these two had become pretty good friends by virtue of the fact that they wrote the Federalist Papers together.

And although they didn't exactly see the eye in the eye in the convention, they both really felt strongly the Constitution should be ratified. And they were, you know, they began taking turns writing different notes, but by the end they were basically finishing each other's sentences. And, Madison, who was not a touchy feely kind of guy, but was capable of real friendship, admired Hamilton's speed and his intensity and his passion.

And Hamilton, who was a very touchy feely guy, came to have an appreciation for Madison's intellect. So for them to split was a big deal. And you might say it was a split between the two most intellectually significant figures in the early Republic in thinking about what America should be and they split over the bank most fundamentally and the reason this is relevant to your to your topic, Matt, is that Madison's response was basically to create the first political party, the Democratic Republican Party, and Hamilton, more or less at the same time, created the other party, the Federalist Party.

And they denounced each other in the most extreme terms. And remember, these are both folks who had hoped to have a constitution designed where there would be no political parties at the national level. You know, when we complain about our political parties today and how much we hate them, they agreed with us.

They also when they were in Philadelphia thought maybe they could have no political parties and Madison actually thought he had designed a constitution that magically wouldn't have political parties. So for him to then create a party was a huge inflection point in his life. 

Matt Blumberg: Right. So the bank ends up getting chartered.

Noah Feldman: Madison loses this fight, the bank gets chartered, and it becomes absolutely essential to anything big the country wants to do, in particular going to war. But the bank was also chartered for a fixed period of time, for 20 years. And it so happened that at the end of Madison's presidency, In 1815, that is when the 20 years was coming due and it was time to recharter the bank.

And so here we come to the country over party because Madison was as convinced in 1815 as he had been 20 years before. That the bank was a violation of the constitution, and that if you wanted to do that, you needed a constitutional amendment to do it. But, and here's the big but, despite having created a political party to oppose the bank, and despite having said essentially, you know, this is an overstatement, but I wrote the constitution, I know what it says, and it doesn't authorize this, Madison now took a completely different tack.

And what he said was, In the last 20 years, all three branches of the government, the President, the Judiciary, and the Congress, have all acted as though the bank is constitutional. And, he said, the will of the people has come to accept the bank as constitutional. And therefore, and here's the punch line, the bank is now constitutional, and he signed the bill that Congress put before him to recharter the bank.

So this is a great example of country over self, because if anyone in our history had a personal claim to be attached to the Constitution, it was Madison, who was by this time widely known as the father of the Constitution. So he had a personal stake and he could have said, look, I was there. I know what it was supposed to mean. I fought over this. We created a political party over it and I'm not backing down now. But he concluded that not only that it was important, but also that everyone else disagreed with him. And that means he acknowledged that the constitution was bigger than he was. He might've been the father, but the constitution now was the, rather the kind of blueprint for the organism that the country was becoming. So I think that was a genuine instance of valuing country over self by a president of the United States 

Matt Blumberg: Obviously there was an impact, which the bank got rechartered. you know, fast forward to Andrew Jackson as a different conversation. what do you think the impact was on, you know, on the course of America from his decision? And then what was the impact on him and his reputation and legacy? 

Noah Feldman: You know, in terms of the impact on the country, I think it was actually a significant moment because it stands for the idea that the constitution can evolve.

Now that's a very controversial idea even today. We have originalists today, a bunch of them on the Supreme Court, who say the Constitution doesn't evolve. You know, Justice Scalia, the late Justice Antonin Scalia, used to say only somewhat facetiously when people would talk about the living Constitution.

He would say, it's not living, it's dead, dead, dead. He said that many times. And he was smiling, but he was also serious because that was his view, that the Constitution was kind of trapped in amber. But that's not what American history has been. No matter what, you know, some conservatives may say, or some people on the Supreme Court may say, the Constitution has always evolved, and Oliver Wendell Holmes, Jr., many people think he was the greatest justice, justice ever, in, 1919, Made the suggestion that the Constitution is like an organism and he commented that the framers couldn't really have known what they were creating fully and that it took many generations and a civil war to create the country as a country and therefore he concluded the Constitution has to be seen as evolving and Madison's recognition of the constituionality of the bank is the first really great moment where one of the founders, one of the framers said, effectively, the Constitution evolves.

And I think without that we would've had more fighting over whether the constitution was frozen in time or whether it evolved. and I think that's a major, major contribution in terms of Madison's long run reputation. Actually, most people don't pay much attention to this moment in Madison's life.

They sort of think of it as an afterthought. And even I, in my, you know, 700 plus page biography of Madison, gave this only a couple of pages at the end, because it was one of the things he did as he was on his way out the door. It is relevant today because there's now a debate about whether this event is a reason to think that originalism is a terrible way to interpret the constitution, which is my view.

You know, people say, oh, I'm an originalist, and I say to 'em, well, would it disturb your theory if we found out that the original framers, the ones who you think we should rely on themselves, were not originalists. That seems like a problem with originalism. But there are those on the other side, like Professor Will Bode of the University of Chicago, who try to limit and cabin this example by saying it only applies when the Constitution was vague.

If the Constitution was vague, they say, then it can evolve in this way by practice. But if it isn't, it can't. Now, Madison himself didn't say anything about being vague, so that's why I'm on my side and he's on his side. But, in that sense, it is a event that has a life today, and it is discussed and it's actually been discussed in Supreme Court opinions as recently as the summer of 2024. So it's, it's a live moment today, bigger, bigger today, maybe than it's been in the past. 

Matt Blumberg: It's a, it's a great example of, of being willing to admit that something is bigger than you. so let's do a quick detour, and talk about Dolley Madison.

So Dolley Madison was probably one of the most prominent first ladies in our country's history. there's a story that I've read, or heard many times over the years about Dolley Madison, you know, essentially during the war of 1812, the British are coming, the white house is burning down and she races in.

And among the things she does is save. the Gilbert Stewart portrait of George Washington. which certainly sounds like country to self, over me. So, first of all, is that a true story? And, and does it matter? what do you think about that? 

Noah Feldman: You know, when I was writing the biography, it's a great story, and you like great stories for a biography.

So I researched it, and I'll tell you what I found. so the date is August 24th, 1814, and a hardened, tough British army that had previously fought against, Napoleon's forces in Spain in one of the most brutal wars of 19th century history had been transferred after Waterloo to the U.S. And they pointed them at Washington and they said Washington, D.C. And they said go. And on that day, the Battle of Bladensburg right outside of Washington, D.C. 10 or 20,000 American militia, lasted about 15 minutes against this British army. and they, the Americans all fled. And that left the British just a short march from Washington, D.C. Word reached the White House around three o'clock in the afternoon.

the battle had ended just a little bit before. And as far as anybody knew, the British were marching to Washington, D.C., as indeed they were. It turns out they didn't, the general gave them an hour or two to rest on the battlefield and they didn't start marching until six, but they were there by, by later that evening.

And they, sure enough, they, they burned the entire state of Washington, D.C. to the ground and they burned the White House. So the British were literally coming and it was going to be bad. And at that point, by all accounts, Dolley gathered together as much of the silver as existed in the white house and other valuables.

She put them in a kind of wagon and sent them off with some servants saying, get them to the bank of Maryland, speaking of banks. And, she can't, a man called Charles Carroll, who was a family friend from Maryland came to collect her because Madison had been spared off in another direction. They were, they were going in different directions.

In fact, it took them a few days to find each other. This is, you know, before a telegraph or telegram to say nothing of cell phones. I guess nowadays if we had cell phone service, it'd probably be down in that situation anyway. So, by Dolley’s own account, Carroll, who came to pick her up, was very frustrated with her because she insisted on waiting until they could take down the enormous Gilbert Stewart portrait of George Washington from the White House.

And that required multiple people to do it because it was screwed to the wall. And they were trying to unscrew it and it was taking too long. And so she ordered the frame to be broken. And the canvas to be removed. And she put it in safekeeping in the hands of quote, two gentlemen of New York. so, you know, did this happen?

Well, she said it happened and that's a pretty good source. there is a contemporaneous source, a man called Jennings, who was a 15 year old, enslaved servant at the White House, who later wrote a memoir of his experiences. He mentions Dolley getting the silver. He never mentions the portrait, which is striking because you would have thought he would have mentioned it, if it was a known fact, but you know, maybe he didn't see that, or maybe the story was, was embellished, who knows exactly, but I think the portrait does still exist.

So that strongly suggests that somebody took it down and I don't see any reason to think that it wouldn't have been Dolley. And so this is a case really of putting country before self because Dolley Madison was herself in personal jeopardy. You know, the British were in fact coming, and had she been, captured, that might have been a bad situation for her.

So, under those circumstances, I think it shows courage and bravery, and it's something that she's come to be remembered and honored for today. I would prefer that she remembered for being the person who sort of created the social side of American politics. You know, not only was she First Lady for eight years, When Thomas Jefferson was president, his wife had died, and his relationship with Sally Hemings, of course, could not be publicly acknowledged.

So for a large part of the time, the eight years of Jefferson's presidency, Dolley was effectively the first lady. Which in fact led to nasty rumors about her and Jefferson, which as far as I can make out were totally not true. But effectively, she had some 16 years in the role of first lady after Marshall, what Martha Washington had had eight during some of what she was pretty sick and Abigail Adams at four, but she wasn't in Washington for a good chunk of that.

So Dolley really set the tone for American politics. And in that sense, she was hugely influential and important. but this was also a, this is also a nice story to remember her by. 

Matt Blumberg: It is. And my guess is setting the social scene for Washington, was one where country and self perhaps went together.

Noah Feldman: They might have. You know, an interesting thing about that is that, you know, this was supposed to be a republic and not a monarchy. But you had all of these ambassadors from countries that were necessarily monarchies because there were so few republics and certainly not big ones that were sending ambassadors.

And so there were all kinds of new norms that had to be determined because diplomacy was all very aristocratic and royal. So there actually were many opportunities for her to have a meaningful political message. You know, the way you went into dinner, where people sat, the kind of stuff that diplomats care a lot about was all changed from the European models under her.

So it wasn't just self interest, but you're right. She, I think very much enjoyed being the most powerful woman, in Washington, D.C. for the 16 years that she had that role. 

Matt Blumberg: And, and for me to have been quite influential for, for decades afterwards as well. 

Noah Feldman: Absolutely. People continue to care about her and even though the family's finances went downhill after Madison died, partly because Dolley had a son by a previous marriage. Who had, bad habits and lost a lot of money. she had to go to Washington and ask Congress to actually give her a pension. And they did it because she had so many close personal relationships. So she remained a revered figure long, long after being First Lady. 

Matt Blumberg: Well, those are two great vignettes about, the Madisons. I want to close, with a rapid fire round of, four questions. So, we talked about Madison today. What's your favorite example, of a president choosing country over self other than Madison? Just the headline. 

Noah Feldman: I think it's Washington and the decision not to run again. Washington was sick. So there was logic to it. He didn't make it through, the next four years. But Washington was deeply concerned at every stage in his life that the world know that he was not trying to become a king or gain glory for himself.

And we know this from people's discussions with him, from his own writings. He was very, very, very concerned about it. And, you know, critics sometimes say, well, he just cared about his image. But, you know, you could care about your image and try to become the king. You know, to care about your image in the sense that what you want is people to think of you as Cincinnatus, who, you know, the, the Roman general who was called from behind his plow and went and led the legions and then went back behind his plow is a very different ideal to hold.

And I think the whole history of the United States would have been very different if Washington had tried to become king. And, you know, had Hamilton had his way, Hamilton was not, was not really opposed to that. You know, at a minimum, he wanted Washington to be an elected you know, an elected king, so I think, I mean, that's probably the single most significant one. I mean, it's a little obvious, but it's also hugely important. I think it matters to me because I care a lot about the constitution. That's what I do for a living is constitutions. And that's why I like Madison and the best design constitution in the world, which Madison thought he had done would not have survived one very strong figure trying to bring it down. And the person who could have done that was Washington. So I think we owe an enormous amount to Washington. . 

Matt Blumberg: Okay. So the next rapid fire question, let's, let's do the flip side. What's a poignant example you can think of, where the president chose self over country.

Noah Feldman: That's a very interesting, it's again, it's again a bit of an easy one. There's Richard Nixon. In his 1972 run for reelection, ordering the Watergate break-in and then covering it up, because he didn't trust the country to re-elect him. He felt he needed the dirty tricks, including, as people tend to forget, the break in, the Watergate break in, was of the Democratic National Committee headquarters.

And it was to get dirt that he could use in the election. It wasn't the only thing that he did that broke the law, but it was the core of it. So that kind of second guessing of the American people, breaking the constitution in order to break the democratic system is the greatest possible violation.

The kind of democracy we have is more delicate than we think, even though we're now 200 nearly 250 years after George Washington, there's still a risk to democracy. It's still a delicate balance, and it requires some basic virtue in our elected leaders. And in ourselves 

Matt Blumberg: Virtue and following customs, not just laws. 

Noah Feldman: Absolutely. The customs have as much weight and significance as the written laws. When it comes to how you run a constitution,

Matt Blumberg: Okay, next question. President Biden's withdrawal from the 2024 race, has been kind of widely heralded as an act of choosing a country over self. And my question is, how do you think history is going to view that?

In particular, against the backdrop of being in the race to begin with at the age of 81? Or does it just depend on the outcome of the race? 

Noah Feldman: Well, it's probably both. if Kamala Harris wins then there could emerge a kind of mythology around this where people will say Biden was aging. He could have run There was no legal way to force him to stop running. He stepped aside for a younger person and sure enough she became president. because that's how myths work. You know, when you do something, it can later be spun in that direction. And what's more, everyone will have an interest in spinning it that way if Harris wins. When you look up close and personal at any decision, there's always a mixture of self interested and publicly interested motives that can be described.

You know, that goes to the sort of core of your whole idea for this podcast. That's why it's worth looking closely at these events. Someone could say, well, Biden, he didn't want to drop out. And he resisted it. And even after his disastrous debate performance, he didn't drop out. And he only dropped out when the senior political leadership of the Democratic Party and the donors Basically told him you have to, so he was forced out of it.

And so you could say that that was pressure. Fair, but it's also true that as I was saying about Washington, he also was worried that if he ran for a third term and sort of tried to establish himself as a king, people would say that he too was acting in an inappropriate fashion. So, you know, Washington was more careful about his reputation, I suppose, than Biden.

But in the end, Biden did do something that was good for the country and might actually turn out to be good for his reputation because it was good for the country. So, you know, that's the ideal, right? I mean, just to go back to Madison for a moment, you know, Madison believed he was designing a constitution for humans.

He said, you know, if we were angels, we wouldn't need government at all, he famously said. So, his goal was to design a government where ambition could counteract ambition. That's the high theory of checks and balances. And so, similarly, the aspiration to act on behalf of country should motivate people so that it will be in their self interest to act in favor of the country so that we'll tell happy and good stories about them. So that's actually a virtuous circle, when it works. 

Matt Blumberg: Alright, my last question. I mean, on a slightly different topic, there's so many people today talking about how dysfunctional our politics are, you know, whether it's about, partisan gridlock money in politics. gerrymandering, name the topic.

And as far as I know, there haven't really been any serious proposals to amend the constitution. John Paul Stevens wrote a short book about it, but there hasn't been a lot. and my question for you, knowing everything you know about our history, about our constitution, about our system of government, which is more than most, if you could wear the magic wand and you could make one or two changes to our system, whether or not they require a constitutional amendment, what would they be?

Noah Feldman: Well, let me push back a tiny bit on the amendment part of it, because as you said, I'm allowed to propose something that doesn't require an amendment. I mean, if I could wave a magic wand, it would be to restore the norm, the cultural, social, moral norm that says You should want to serve our country so that you are remembered well by history and not just so you win in the current moment.

Because without that, you don't have the underlying sense of political virtue that every theorist of Republican democracy, especially Madison, has thought was necessary to make our system work. You need some degree of shame. You know, I mean, you need Richard Nixon, once he's caught, to say, I don't want to go down in history, primarily in these terms. I'm going to resign, and then I'll be pardoned. And we need to get that back, to put it as bluntly as I possibly can. So if I could wave the magic wand and do anything, it would be that. Now you might say, why not just an amendment to the Constitution? Because our Constitution could use all kinds of amendments.

The short answer is that the only way to amend our Constitution is by Congress, there are two ways. One is for Congress to propose changes, and it takes three quarters, sorry, two thirds of Congress, and then you have to send it out to the states where three quarters of the states have to agree. So it's really, really, really, really, really hard to get that done.

And anything really substantive, you know, right now, we probably wouldn't be able to get. The other is to have a constitutional convention. And when it comes to conventions, I have the same feeling that Madison did. And in a famous exchange of letters with Thomas Jefferson, when Jefferson was ambassador to France, when the constitution's design reached him, you know, Jefferson wrote to Madison saying, you know, you made many mistakes here.

There's no Bill of Rights. And Madison said, okay, I'll add a Bill of Rights. Jefferson said to him, the biggest mistake is that this constitution is inflexible, and it's going to need to be changed. And what's more, he said, past generations shouldn't be able to bind future generations. That's the dead hand of the past.

So we should just throw the whole thing out and redo it every 19 years, because that's how long a generation is. And Madison said to him, you know, you weren't here when the Constitutional Convention happened, but it was a miracle, that's his word, a miracle that we actually got agreement. And that's never going to happen again.

Like, that miracle is never happening again. And so Madison was really afraid of another convention. And that's one of the reasons that he proposed the Bill of Rights in Congress and sent it out. He was afraid that if without that, the states would actually declare a desire for a new convention, which a lot of states were calling for.

And he thought that could undo everything. So if you look at our politics today, I can't imagine anything worse than a new convention. We're already so polarized. Best case scenario, we wouldn't get anything done. Worst case scenario, we might substantially undermine our system. So what we need is a stable constitution that evolves slowly, and with any luck, in the right direction.

We have to accept that sometimes it goes in the wrong direction, because we want it to generally go in the right direction. And so if I could wave my wand, I would wave it on our, our values. More than on the technical design of the constitution because that I think historical evolution can do on its own.

Matt Blumberg: That's a great place to draw a line under this conversation. Although I could keep talking to you for hours on this topic. So, Noah Feldman, professor, author, historian. Thank you so much for being here. 

Noah Feldman: Thank you so much for having me.

Matt Blumberg: Thank you for listening to the Country Over Self podcast. If you enjoyed this episode, please take a minute to give us five stars and leave us a review. If you have an idea for an episode or want to reach Matt directly, please email podcast at country over self. com.