What Would James Madison Say?

The 2019 Midway Dinner Lecture

Will Baude delivering the Midway Dinner lecture

On January 31, as temperatures in Chicago inched up toward 0 degrees for the first time in two days, second-year Law School students gathered for the annual Midway Dinner. This year, the annual lecture was delivered by Professor William Baude. 

Good evening and welcome to one of the most cherished traditions of the law schoolthe Midway Dinner.

What makes this a special occasion? Other than the weather we all survived to get here? (More on that at the end.)

It is not unusual for a law school to want to gather you together at the beginning of your 1L year to tell you what a great time you have in store for you. Nor is it unusual for a law school to want to gather you together at the end of your 3L year to tell you what a great time you all had. But it is a very Chicago move to gather you together, in the dead of winter, in the middle of your 2L year, to have a faculty member tell you about what more you could and should be learning.

Now speaking of very Chicago moves, when I was selected as your Midway Dinner speaker this year, I asked myself what might be my comparative advantage here. And I realized that it is, of course, to ask: what would James Madison say?

Really? James Madison? That quiet guy who stands in the back during Act Two of Hamilton and was recently described by the New Yorker as the “least fun founding father”?

Really. One of the key themes of the Midway Dinner is midpoints. Reflecting on where you have been and where you are going, and whether any of it makes sense. James Madison actually has a lot to teach us about that.

After helping to draft and ratify the Constitution of the United States, Madison spent almost all of the remaining 48 years of his life in service to the Constitution. During the first phase, he was a partisan Democratic-Republican in Congress, where he helped set up the first three Cabinet departments, proposed the Bill of Rights, and most famouslyat least for those of you who have heard Hamilton’s Cabinet Battle #1—unsuccessfully opposed the constitutionality of a national bank.

During the second phase, he returned as president, now suddenly a trustee of the whole nation and not just the people of his district of Virginia. And as luck would have it, the national bank question came across his desk again. The previous bank’s charter had expired, Congress had repassed it, and President Madison had to decide whether to sign it. If you took a simple view of these things, it seemed obvious what to expect. Here was Mr. Opposition, finally given a chance to vindicate his old 1L battles . . .  but he didn’t do it. In the intervening years, the constitutional question had been “precluded in my judgment by various repeated recognitions ... of the validity of such an institution ... accompanied by ... a concurrence of the general will of the nation.”

During the third phase, as a private citizen, Madison continued an extensive correspondence about his constitutional thought, responding to the many people accusing him of being a flip-flopper. No, no, he insistedand rightlythis has always been part of my constitutional thought; the recognition that constitutional meaning can change or be “liquidated” through practice. Part of law is precedent, and even a political partisan should sometimes acquiesce to precedent.

What should you take from all of this?

Don’t be afraid to be like Madison. At the midpoint of his constitutional career, he shocked his friends and enemies with a change of heart, though one that was still true to who had been all along. You are still in your midpoint of your time in law school. You are not yet locked in to the things you’ve done or the positions you’ve taken your 1L year. It is not too late to learn. If you don’t like your job this summer, you don’t have to go there. If you realize there’s something you’re interested in that you’ve just started to learn about, it’s not too late to become a tax lawyer or a criminal defense attorney or a constitutional law scholar. And you still have your 3L year, and for that matter the rest of your life, to make sense of it all and defend all of your choices to future employers and posterity.

Now the other theme of the Midway Dinner is at least as important: interdisciplinarityanalyzing law not only through the lens of the case reports but through other disciplines like philosophy, history, economics, or political science. You may thinkas I used to think when I started law schoolthat you don’t need to know any of those things if you just want to do law. But on the contrary. Law draws on economics to know the consequences of legal rules; it draws on political science to know how political actors will change the law; it draws on philosophy to understand what law is and how we can discover it; it draws on history to understand what law has been. Yes, it does all of these things in law’s way but there’s no escaping that those who understand these fields will always have an advantage as lawyers over those who are ignorant.

Our muse tonight, James Madison, would have agreed. Madison actually studied law. And when he was drafting and defending the US Constitution he was engaged in quintessentially legal workwriting and interpreting our fundamental law. But he knew that to excel at that work he needed a broad base of knowledge. There was history, of course. We use history to understand James Madison. He used it to understand western civilization going back to Athens, whose lessons informed his novel constitutional design. There was political science and philosophy to understand how to create a government that would be effective, safe, and just; even economics, since trade and economic prosperity were such driving forces behind the founding of the new country.

Our law school, and our university, has incredible resources to learn more about these and other subjects, and nowat the Midpoint of your time in law school, is the time to think about finding ways to incorporate these subjects into your legal education.

The third important theme of any Midway Dinner speech is related to these two themes of midpoints and interdisciplinarity. The third theme emphasizes our campus geography. It is the importance of crossing the Midway to take advantage of the intellectual riches that the rest of the University has to offer. Whether it is to explore game theory, price theory, political philosophy, classics, or even Spanish or figure drawing, you have four more quarters to try to squeeze any of these into your time at this law school.

Now, it is not lost on me that I am enjoining you to cross the Midwaya frigid wind tunnel most of you trekked across tonightin a week when our temperatures dipped down to 23 below zero, or 55 below freezing. A week in which the Midway was sometimes colder than parts of Norway, Alaska, Antarctica, and Siberia. But, once again, we can draw a lesson from James Madison.

Final story. Bear with me. During Madison’s tenure in Congress, he was a key figure in debates about congressional power, especially about Congress’s power to spend money. Madison took the viewrightly, if you ask methat Congress could only spend money in pursuance of its enumerated powers. If Congress couldn’t regulate it, it couldn’t throw the people’s money at it either.

But the problem was, Congress kept being confronted with sympathetic causesforeign refugees turning up on our shores, overtaxed domestic industries having trouble keeping upand kept wanting to find a way to help. These causes were arguably outside of Congress’s powers, so Madison was worried that sympathy would lure Congress into setting a dangerous precedent. Madison, however, was the chief of clever dodges; he came up with ways to recharacterize Congress’s desire to help into something plainly lawfula partial payment of our debt to foreign countries; a form of tax reliefto keep Congress away from constitutional temptation.

Until one of the biggest debates, over whether to provide relief to the city of Savannah after it was devastated by a fire. Here, the wheels came off, and all of a sudden, Madison was nowhere to be found. Where was he? Well, the historical record is a bit of a mystery, but as near as I can guess, Madison’s absence came from two things. First, he had an unusual housing situation that winter, and second, it was late December and it was extremely cold. In a letter to his father a few days earlier, Madison confesses that “The weather has been so intensely cold that I have not yet gone out to the proper office with” a certificate he was supposed to deliver.

So, my guess? Madison missed out on an important constitutional debate because it was too cold for him to cross the Midway. This is your chance to be better than James Madison. Thank you and good night.