Legal Communication & Rhetoric: JALWD

The Power of Rigor: James Madison as a Persuasive Writer

 

Thomas C. Berg, Julie A. Oseid & Joseph A. Orrino*

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This article is the third in a planned series of articles about the writing qualities and habits of our most eloquent American Presidents.1 The focus of all the articles is on the lessons modern legal writers can learn from the Presidents. James Madison’s rigor, in both his approach to problems and in his resulting written work, was famous; it was this rigor that contributed to the persuasiveness of his writing. Even though he was not a lawyer, Madison had all the best writing habits of a rigorous, and thus effective, lawyer. He considered his audience, he was prepared, and he was pragmatic. The coauthors of this article were captivated by the eloquent writing of “the great little Madison.”2

We lawyers promise to represent our clients with both competence3 and diligence.4 That means we will be thorough, prepared, and diligent. In essence, we will be rigorous. We will do our homework about our legal writing audience—the judges we want to persuade. We will assemble the strongest arguments available on behalf of our client. We will anticipate all our opponent’s counterarguments, and we will have answers for those counterarguments. We will consider the practical consequences of our proposed solutions to legal problems. We will summarize our position with eloquence and persuasion so that our readers agree that our position is the best possible solution.

Although it is difficult to capture those qualities of thoroughness, preparation, and diligence in one word, we have chosen the word “rigor.”5 Admittedly, we ask a lot of one five-letter word, and we hope that Madison, who was well aware of the importance of word choice, 6 would agree with our selection. The word “rigor” seems able to handle the challenge. Based on the Latin word meaning stiff,7 “rigor” means “scrupulous accuracy” and “precision.” 8 When used as an adjective— “rigorous”—the word means severely exact and precise as in “rigorous research.”9 It also means logically valid.10 Of course, a rigorous approach to work does not always result in a rigorous product. But our focus here is one those occasions when a rigorous approach did result in writings that demonstrated that rigor—and could stand on their own as severely exact, precise, logical, and thorough.

To study effective rigor in writing, we have chosen the work of James Madison. His physical characteristics made him an unlikely candidate as a model for power and persuasiveness in communication. At 5'4" tall, Madison was the shortest of our Presidents.11 He was shy, some say painfully so.12 His speaking voice was weak.13 He was physically frail, and many thought he would not live past young adulthood.14 Yet no less than Chief Justice John Marshall concluded that if eloquence—“the art of persuasion”—“includes persuasion by convincing, Mr. Madison was the most eloquent man I ever heard.”15 Madison showed enviable rigor in his preparation and work habits, perhaps in spite of his physical limitations. He did his homework. He took detailed notes during important events including his classes at Princeton and during the Constitutional Convention.16 He thought of arguments and counterarguments. He puzzled out the logical conclusions and practical consequences of both those arguments and counterarguments. As for the written product that emerged, admittedly it was not always rigorous in the sense of containing tight analysis, logic, or syntax.17 Madison’s writings could be unformed, 18 workmanlike,19 or sentimental.20 But at his best, Madison’s rigorous approach did produce rigorous content: writings that were precise, accurate, logical, anticipatory of other arguments, and persuasive. Fortunately for us Americans, his habit of rigor helped him develop some of the most significant political theories—and practical proposals— shaping our government.

Our thesis is that lawyers should emulate Madison, even though he was not a lawyer.21 In the ironic way that history often plays out, he is (next to Abraham Lincoln) perhaps the most lawyer-like President in his writing habits and style. This likely resulted in part from his classical education, which included some study of law.22 Some scholars suggest that his legal study was extensive.23 He needed to know law to succeed as a landowner and political leader, but he never wanted to become a lawyer.24 Madison was always “[c]ognizant of legal arguments”25 and approached problems with a lawyer’s mentality.26 Madison wrote like an accomplished lawyer: he was thorough, he was prepared, he viewed each problem from every side, and he knew the answers to all the questions about his position before his opponents had even formulated those questions. Jack N. Rakove emphasizes, “Madison . . . dissect[ed] issues and alternatives with a rigor that even his opponents respected. When he was done briefing an issue, it was hard for anyone to avoid perceiving the problem in the terms he had used.”27 In sum, Madison’s writing was lawyer-like in the very best sense of that word.

Other scholars have thoroughly analyzed Madison’s writings; they dissect Madison’s writings to determine his intent and beliefs in an effort to discern the underlying meaning of those critical works.28 Our focus is different. We do not purport to offer new historical analysis of either Madison himself or of the Madison writings we review. Instead, the focus of this article is the importance of rigor, both in Madison’s writings and in modern persuasive legal writing. When embarking on this project we had two goals. Our first goal was to discover what made Madison, at his very best, so persuasive. Our thesis is that Madison’s rigor in the task of writing, and the resultant rigor evident in his work product, was the key to his persuasiveness. We consider why rigor is an essential quality in persuasive writing both as a habit and as a goal for our final written product. We give brief biographical information about Madison, with an emphasis on his writing habits. We analyze three of Madison’s masterpieces– the Memorial and Remonstrance Against Religious Assessments, Federalist #10, and a letter to his longtime friend Thomas Jefferson analyzing the idea of the Bill of Rights.

Our second goal is simply to share Madison’s story with lawyers who are looking for ways to increase the persuasiveness of their own writing. Madison’s story will likely be familiar to many, but we hope that our focus on his rigor will bring new insight to that story. Any lawyer would consider Garrett Ward Sheldon’s assessment of Madison as the highest

compliment: “His was a learned, rigorous mind producing tightly reasoned, persuasively argued texts.”29 In the end, we hope that Madison’s lead will inspire others to write with rigor.

I. The Importance of Rigor in Persuasive Legal Writing

Classical rhetoric was the first study of persuasion, and it still influences our modern understanding of effective persuasion.30 Rhetoric, as understood by the classical teachers, meant “the use of language for persuasive purposes.”31 Classical rhetoric was essential in the Greco- Roman culture because individual citizens advocated for themselves in the courts, marketplace, forum, and church.32 Classical rhetoricians emphasized the importance of three types of arguments: ethos (arguments based on the author or speaker’s credibility), pathos (arguments based on emotion), and logos (arguments based on logic) in persuasion.33 All three types of argument are important and intertwined.34

Madison studied many classical rhetoric works.35 He knew the value of logos, ethos, and pathos. Madison was masterful in his use of logical arguments (logos);36 one of his major opponents, Patrick Henry, was

masterful in his use of emotional arguments (pathos).37 Although they do not describe it in terms of ethos, many historians believe that the quality that gave Madison the edge over Henry was ethos–Madison’s credibility and character as displayed through his intelligence, rigor, and preparation. Garry Wills explains,

Good as Henry was as an orator and debater, he was not a reflective or studious person, and he was up against a man [Madison] who had thought and debated and persuaded on this subject [the Constitution] through two years that sharpened all of Madison’s analytical power and parliamentary deftness. The tiny David slew the mighty Goliath.38

Rigor—that quality of being intelligent, prepared, and thorough—is an important part of the author’s ethos (credibility and character).39 Aristotle offered some practical suggestions on how to increase credibility and character: “[T]here are three things that gain our belief, namely, intelligence, character, and good will.”40 Michael R. Smith, a contemporary rhetoric scholar, has analyzed exactly what intelligence, character, and goodwill mean in the persuasive legal writing context, and what specific traits help advocates prove they possess each of the qualities. Smith started with character and explained that legal writers “must demonstrate that they are of good moral character or at least that they are not of questionable moral character.”41 Traits proving that an advocate has the required moral character include truthfulness, candor, zeal, respect, and professionalism.42 Character is an advocate’s general moral makeup and personality; goodwill refers to the advocate’s disposition about the specific issue at hand and those involved in the current case.43 Advocates are advised that goodwill suffers if an advocate acts with anger or malevolence. 44 The final quality, intelligence, reflects the human tendency to have more trust and confidence in a speaker who “knows what she is talking about.”45 An intelligent persuasive writer is informed, adept at legal research, organized, analytical, deliberate, empathetic toward the reader, practical, articulate, eloquent, detail oriented, and innovative.46 A rigorous approach to persuasive writing, and a resultingly rigorous work product, will improve a lawyer’s ethos.

Rigor is crucial in modern legal persuasion. Preparation is the key to successful lawyering.47 Lawyers increase their credibility by appearing to be “intelligent and knowledgeable about the law and the case.”48 Judges are busy people who expect, and often rely on, lawyers to do the hard work of thoroughly researching, analyzing, and evaluating the legal issues before the court.49 Justice Lewis F. Powell Jr.’s beliefs about the necessity of rigor in writing are instructive: “Clear writing, to him, meant clear thinking, and the rigor of writing to a high standard of clarity and simplicity helped ensure the integrity of the writer’s analysis.”50 Kristen K. Robbins Tiscione recently reported the results of a comprehensive survey asking federal judges what they thought about lawyer’s briefs.51 Judges want to see more rigor in lawyer’s legal analysis.52 The list of specific comments shows that the judges are looking for someone with Madison’s rigor, including his consideration of audience, thorough preparation, and practical thinking. One judge commented, “The bulk of briefs . . . lack thoroughness regarding legal analysis.”53 Another added, “Counsel tends to state what

they think is sufficient, but often will not adequately discuss the various implications of the issues.”54 Yet another judge noted, “Most of the briefs . . . ignore or gloss over obvious weaknesses in their argument and fail to address the compelling counterpoints of the other side.”55 One frustrated judge even used “rigor” to describe the problem, “We often get the feeling . . . that the parties are satisfied simply to identify issues and leave the rigorous research and analysis to the court.”56

This is not to suggest that exercising rigor when writing, or demonstrating rigor in writing, is easy. Quite the opposite: rigor requires very hard work.57 Perhaps writing with rigor is the hardest work of all because the task of writing is itself so difficult. As sports journalist Red Smith quipped, “Writing is easy. You just sit at a typewriter until blood appears on your forehead.”58 Legal writing is challenging because good writing is good thinking.59 Many who begin writing find that their ideas and arguments are not quite as developed and clear as they suspected before they put their pen to paper or their fingers to the keyboard. Legal writers must approach the task of writing with rigor because the rigor involved in putting ideas into words tests whether the writer’s arguments are valid.60 Yet the hard work will pay off.61 Good writing may look easy, but “[i]t takes training and work and fair time to compose—all part of the lawyer’s craft.”62 We lawyers are professional writers;63 writing with rigor will increase the persuasiveness of our writing. For inspiration and guidance in writing with rigor, we consider the writings of Madison.

II. Madison’s Biography

Madison was born on March 16, 1751, into a line of Virginians who had owned plantations for over a century.64 He spent his youth in Orange County.65 Although formal education was scarce in the middle of eighteenth- century Virginia, eleven-year-old Madison attended a school where he received a robust education in subjects such as logic, philosophy, mathematics, astronomy and French.66 Under the direction of the Scottish-born Donald Robertson, this education was a compliment to Madison’s intellectual eagerness in the context of an agrarian upbringing.67

At age eighteen Madison “broke ranks with Virginia tradition” and attended the College of New Jersey (now Princeton) instead of the College of William and Mary.68 Madison was already familiar with the ancients and “fashionable” writers such as Swift, Addison, and Steele.69 The Reverend John Witherspoon, a Scottish Presbyterian clergyman professing the value of the Scottish Enlightenment, and Princeton’s president during Madison’s attendance, “warned his students against imitation of any author,” and counseled familiarity with the “excellences of all the best writers.”70 Developing a unique style from his scholarship helped prevent Madison from becoming another one of the “justly forgotten imitators of Addison and of Pope.”71

Madison’s scholarship was rigorous before, during, and after his time at Princeton, where he compressed three years of coursework into two and remained for an additional year of study.72 Madison took detailed notes and composed his own 122-page compilation entitled A Brief System of Logick.73 In his notes, he frequently referred to “miscellaneous reading.” For Madison, “miscellaneous” meant delving into subjects such as chemistry and agriculture.74

Although Madison did not make a strong first impression, he always impressed anyone who had further contact with him that he was quite sickly.75

In terms of physical appearance alone, few famous men have suffered more at the hands of observers than James Madison. Comments on his smallness, sickly nature, awkward manner, and sallow complexion abound in the historic record, and one harsh critic even compared him to a “country schoolmaster in mourning for one of his pupils whom he had whipped to death.”76

Sickness kept Madison from travels or work when little else could. His delicate form was a reason for pause to some: “No one ever described a personal encounter with James Madison as an inspirational moment.”77 Yet his precarious physique and his social awkwardness were not indicative of his talents or the respect he commanded after a first impression. Frances Few, Representative Albert Gallatin’s sister-in-law, noted, “‘[A] few moments in his company and you lose sight of these defects and will see nothing but what pleases you—his eyes are penetrating . . . his smile charming . . . his conversation lively and interesting.’”78 Louisa Catherine Adams, John Quincy Adams’s wife, also found him “a very small man in person” but “a ‘lively’ and ‘playful’ conversationalist.”79 Alexander Hamilton “described Madison as ‘a clever man’ who was ‘uncorrupted and incorruptible.’”80

Princeton was not only a place for Madison to grow in intellectual rigor and knowledge, but it also influenced his interests and convictions. Madison’s time at Princeton exposed him to a setting in which religious freedom was not simply tolerated, but defended.81 As a young adult he cared about religious freedom more than any political issue, perhaps because most of his classmates were Presbyterians and thus dissented from Virginia’s officially established Anglican Church. In a letter written at age twenty-two to his closest college friend, Madison complained bitterly about the imprisonment of unlicensed Baptist preachers near his family’s home. He spoke of the “diabolical Hell conceived principle of persecution” and added, “I have squabbled and scolded[,] abused and ridiculed about it so long, to so little purpose that I am without common patience.”82

Madison’s interest in religious liberty, combined with his eye for subtlety and precision, led him to successfully liberalize conscience protection in The Virginia Declaration of Rights. He was twenty-five when he was elected to the Virginia Convention and “demonstrated for the first

time what would be his greatest strength in committee, prior preparation.” 83 This, his first important public act, was centered on the meaning of a single word and its unspoken implications.84 The removal of the word “toleration” from George Mason’s original draft of the Declaration happened at Madison’s suggestion.85 Madison’s suggested language that “all men are equally entitled to the free exercise of religion according to the dictates of conscience” was ultimately adopted.86 Ralph Ketcham, Madison’s chief biographer, noted,

The change was crucial . . . because it made liberty of conscience a substantive right, the inalienable privilege of all men equally, rather than a dispensation conferred as a privilege by established authorities. Madison had made possible the complete liberty of belief or unbelief, and the utter separation of church and state.87

Madison’s rigor during that Virginia Convention proved to be a lifelong, and formidable, quality. When writing to persuade, Madison achieved rigor through three habits: he considered his audience, he was always prepared, and he thought practically about real-world consequences.

A. Considering Audience

Madison always considered his audience. He knew exactly who was likely to read his writing, and he wrote to address their concerns.88 He lined up rows of arguments and recapitulated them as he proceeded so that the audience would feel carried along to the inevitable conclusion. He thought of the objections his audience might raise, and he refuted those objections and counterarguments before the audience even had time to fully form them.89 Further, he knew who the important decisionmakers would be when the most important political questions had to be decided. In many instances he went to extreme lengths to ensure that the group of decisionmakers included those sympathetic to his position. Most notably, he convinced George Washington to come out of retirement to join the Constitutional Convention.90 Washington “happened to be the only man in America whose sheer prestige instantly transformed a lost cause [the Constitutional Convention] into a viable contender.”91 Madison, in his

habitual way, anticipated all of Washington’s objections to representing Virginia at the convention and presented convincing arguments to counter all of Washington’s concerns.92 Madison did not stop there; he lobbied his fellow Virginia delegates to support his plan before the Constitutional Convention convened.93

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* Thomas C. Berg is the James L. Oberstar Professor of Law and Public Policy and Associate Dean for Academic Affairs, University of St. Thomas School of Law (Minnesota). Julie A. Oseid is an Associate Professor at the University of St. Thomas School of Law. Joseph A. Orrino is a second-year student at the University of St. Thomas School of Law. We thank all our editors from Legal Communication & Rhetoric: J. ALWD, including Melissa H. Weresh, Joan Magat, Ruth Anne Robbins, Suzianne D. Painter-Thorne, and Timothy D. Blevins. Their editing, at every step in the process, improved this article.

1 The first article in the series explored Abraham Lincoln’s use of brevity. Julie A. Oseid, The Power of Brevity: Adopt Abraham Lincoln’s Habits, 6 J. ALWD 28 (2009). The second article analyzed Thomas Jefferson’s use of the “wall of separation between church and state” metaphor. Julie A. Oseid, The Power of Metaphor: Thomas Jefferson’s “Wall of Separation between Church & State,” 7 J. ALWD 123 (2010).

2 Conover Hunt-Jones, Dolley and “the Great Little Madison” (Am. Inst. of Architects Found., Inc. 1977) 1 (citing Allen C. Clark, Life and Letters of Doll[e]y Madison 1 (Wash. 1914) (Dolley Madison wrote to her friend Eliza Collins in 1794, “Aaron Burr says that the great little Madison has asked to be brought to see me this evening.”)).

3 Model R. Prof. Conduct 1.1 (ABA 2010) (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”).

4 Model R. Prof. Conduct 1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client.”).

5 Other words may also accurately describe Madison’s best writings. “Clarity” comes to mind. But in our minds, clarity is always the most prominent feature of persuasive writing. As Justice Antonin Scalia and Bryan A. Garner state, “One feature of a good style trumps all others . . . clarity.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 107 (Thomson/West 2008). The qualities considered in these articles about the U.S. presidents, like brevity, effective use of metaphor, and rigor, all contribute to the clarity of the persuasive writing.

6 Madison himself knew the importance of word choice when he noted, “Perspicuity therefore requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriated to them.” The Federalist, No. 37 (James Madison) (reprinted in James Madison, Writings 194, 198 (Jack N. Rakove ed., Lib. Am. 1999) [hereinafter James Madison, Writings]). All references to The Federalist are to this edition.

7 The Pocket Oxford Latin Dictionary (Latin-English) (Oxford U. Press 2003) (available at http://www.oxfordreference.com/ views/SEARCH_RESULTS.html?y=15&q=rigor%20&category=t131a&x=9&
ssid=1188374616&scope=book&time=0.937957089019136 (subscription required) (accessed Jan. 10, 2011)). “Rigor mortis” means stiff joints and muscles after death. The Concise Oxford English Dictionary (Catherine Soanes & Angus Stevenson eds., 12th ed. Oxford U. Press 2008) (available at http://www.oxfordreference.com/views/ENTRY.html?subview=Main&
entry=t23.e48471(subscription required) (accessed Jan. 10, 2011)).

8 Webster’s American Dictionary 678 (2d College ed., Random H. 2000). Other definitions of “rigor” include rigidity, hardness, inflexibility, and severity. See The Pocket Oxford Latin Dictionary, supra n.7 (available at http://www.oxfordreference. com/views/SEARCH_RESULTS.html?y=15&q=rigor%20&category=t131a&x=9&
ssid=1188374616&scope=book&time=0.937957089019136 (accessed Jan. 10, 2011)).

9 Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/rigor (accessed Jan. 10, 2011).

10 Webster’s American Dictionary, supra n. 8, at 678. The antonyms listed for “rigor” are also informative, with “laxness” as the most informative for the way we use the word “rigor” in this article. Merriam-Webster Dictionary, supra n. 9.

11 Natl. Park Serv., U.S. Interior Dept., Celebrating the American Presidency in America’s National Parks, http://www.nps.gov/pub_aff/pres/trivia.htm (accessed Feb. 14, 2011). Madison, at about 100 pounds, was also the lightest President. Id.

12 See Garry Wills, James Madison 5 (Times Bks. 2002) (Madison’s “social relations were such that he did not even try to woo a woman until he was thirty-one, and then he chose an apparently easy target”).

13 Robert Allen Rutland, The Presidency of James Madison 2 (U. Press of Kan. 1990).

14 See infra nn. 75–77 and accompanying text.

15 Louis C. Schaedler, James Madison, Literary Craftsman, Wm. & Mary Q., 3d Ser., Vol. 3, No. 4, 515, 524 (Oct. 1946) (quoting Rives, History of the Life and Times of James Madison, II, 612n).

16 Ralph Ketcham, James Madison 30, 195 (U. Va. Press 1990).

17 Madison’s First Inaugural has been called “unremarkable.” Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln 139 (Norton 2005).

18 In college, Madison “fell into bad literary company” and wrote “in clumsy, scurrilous, boyish verses,” but he abandoned that style and “was himself never again guilty of such bumptiousness.” Schaedler, supra n. 15, at 517–18.

19 As “our best committeeman,” much of Madison’s writing necessarily reflected his legislative talent and ability to simply finish the necessary work. See Wills, supra n. 12, at 36.

20 Sometimes, when Madison was writing for the public, he descended “to the level of the popular.” Schaedler, supra n. 15, at 521. Schaedler notes that, after writing The Federalist, Madison “finally succumbed to the rising popular taste for inflated, elephantine diction.” Id. at 533.

21 See America’s Lawyer Presidents 37 (Norman Gross ed., Nw. U. Press 2004) (noting that thirty-three of the fifty-five delegates to the Constitutional Convention were lawyers, but not the “Father of the Constitution”—James Madison).

22 Id.

23 For a fascinating article about Madison’s study of law and a strong argument that he did perhaps study law in great depth, see Mary Sarah Bilder, James Madison, Law Student and Demi-Lawyer, 28 L. & Hist. Rev. 389 (2010).

24 Andrew Burstein & Nancy Isenberg, Madison and Jefferson 12 (Random H. 2010) (“[A]lthough [Madison] never had any intention of becoming an attorney, he began the study of law in late 1773.”).

25 John T. Noonan, Jr., The Lustre of Our Country: The American Experience of Religious Freedom 83 (U. Cal. Press 1998).

26 Joseph J. Ellis recognizes all of Madison’s qualities, “Though he had the demeanor and disposition of a scholar, he had the mentality of a lawyer defending a client, which in this case was a fully empowered American nation-state.” Joseph J. Ellis, American Creation: Triumphs and Tragedies at the Founding of the Republic 103 (Vintage Bks. 2007) [hereinafter Ellis, American Creation].

27 Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 37 (Vintage Bks. 1997) [hereinafter Rakove, Original Meanings].

28 Louis Schaedler points out that “Judgment of [Madison’s] literary qualities is further confused by the fact that both the praise and the blame his style has received have been inspired by approval or disapproval of his political content rather than by literary judgment.” Schaedler, supra n. 15, at 515.

29 Garrett Ward Sheldon, The Political Philosophy of James Madison 2 (Johns Hopkins U. Press 2001).

30 Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing 9 (2d ed., Aspen Pub. 2008) (“[M]uch of the contemporary literature on persuasion is based on principles first explored by classical rhetoricians some 2500 years ago.”). Michael H. Frost points out that most classical rhetoricians gave guidelines for oral advocacy, but that “their advice regarding how advocates can enhance their credibility applies just as much to written as to oral arguments.” Michael H. Frost, With Amici Like These: Cicero, Quintilian and the Importance of Stylistic Demeanor, 6 J. ALWD 5, 13 (2006) [hereinafter With Amici Like These].

31 Edward P. J. Corbett & Robert J. Connors, Classical Rhetoric for the Modern Student 15 (4th ed., Oxford U. Press 1999). Corbett and Connors further explain, Classical rhetoric was associated primarily with persuasive discourse. Its end was to convince or persuade an audience to think in a certain way or to act in a certain way. Later, the principles of rhetoric were extended to apply to informative or expository modes of discourse, but in the beginning, they were applied almost exclusively to the persuasive modes of discourse. Id. at 16.

32 Smith, supra n. 30, at 9. This lasted from the fifth century B.C. to the fall of the Roman Empire in 410 A.D. During that 1000-year period, the most influential scholars and authors of the treatises on rhetoric were Aristotle (Greek, 384–322 B.C.), Cicero (Roman, 109–43 B.C.), and Quintilian (Roman, 35–395 A.D.). Michael H. Frost, Introduction to Classical Legal Rhetoric: A Lost Heritage 2–3 (Ashgate Publg. Ltd. 2005) [hereinafter Frost, Introduction to Classical Legal Rhetoric]. Michael Frost further elaborates on this education in rhetoric: Although all Roman citizens did not complete the full course of study, many completed a substantial part of the ten-to-twelve-year rhetoric course . . . . Designed for use by all members of the educated classes, the rhetoric course included, among other things, detailed instructions for discovering and presenting legal arguments in almost any context and to almost any audience. A student’s rhetorical education prepared him to meet all his public speaking obligations, especially his legal obligations. Id. at 3.

33 Id. at 5.

34 Frost, With Amici Like These, supra n. 30, at 9.

35 See infra n. 69 and accompanying text.

36 See Rakove, Original Meanings, supra n. 27, at 56 (Madison knew that he would need reason, justice, and political savvy to succeed as a lawgiver at the Constitutional Convention).

37 Patrick Henry’s reputation as a formidable orator was sealed ten years before American independence when he “hurl[ed] his verbal thunderbolts at George III.” Ellis, American Creation, supra n. 26, at 120. Many of Henry’s opponents were frustrated by his emotional arguments, including Thomas Jefferson. Ellis notes, Jefferson was especially irritated by Henry’s mesmerizing way with the spoken word, which he regarded as a crudely emotional appeal that ought not to defeat his own lyrical and logical prose. But so often it did. Jefferson explained to Madison that Henry’s oratorical power was an inexplicable and unpredictable force of nature, like a hurricane, and the only thing to do when confronted by it was to “devoutly pray for his imminent death.” Id.

38 Wills, supra n. 12, at 36 (referring to the Virginia ratification convention of the Constitution).

39 Quintilian believed “the perfect orator is a good man speaking well.” Frost, Introduction to Classical Legal Rhetoric, supra n. 32, at 69 (citing 2 Quintilian, Institutio Oratoria 9).

40 Aristotle, The Rhetoric of Aristotle 92 (Lane Cooper transl., Prentice-Hall, Inc. 1960).

41 Smith, supra n. 30, at 125. Justice Antonin Scalia and Bryan Garner also emphasize “the human proclivity to be more receptive to argument from a person who is both trusted and liked” because of the advocate’s good character. Scalia & Garner, supra n. 5 at xxiii.

42 Smith, supra n. 30, at 126.

43 Id. at 143–44.

44 Id. at 143. Smith points out that goodwill generally refers to an advocate’s behavior in a particular case, while character generally refers to an advocate’s general behavior. Id.

45 Id. at 147 (quoting Ronald J. Waicukauski, JoAnne Epps & Paul Mark Sandler, Ethos and the Art of Argument, 26 Litig. 31, 32 (1999)).

46 Id. at 148.

47 Nancy L. Schultz & Louis J. Sirico, Jr., Legal Writing and Other Lawyering Skills 310 (5th ed., Aspen Pub. 2010) (“The key to a successful oral argument is preparation.”); Stephen D. Easton, My Last Lecture: Unsolicited Advice for Future and Current Lawyers, 56 S.C. L. Rev., 229, 251 (2004) (“For a lawyer, the three most important things are preparation, preparation, and preparation.”).

48 Id. at 72.

49 Richard K. Neumann Jr. notes, [I]n our system of litigation, the lawyers (and not the judges) frame the issues, develop the theories and arguments, and adduce the evidence. Judges are busy people who view any assertion skeptically and who must make many decisions in short periods of time. Thus, they need complete but concise arguments that can be quickly understood. Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure, Strategy, and Style 317 (5th ed., Aspen Pub. 2005).

50 Judge T.S. Ellis, III, In Memoriam: Lewis F. Powell, Jr., 112 Harv. L. Rev. 594, 595 (1999).

51 Kristen K. Robbins, The Inside Scoop: What Federal Judges Really Think About the Way Lawyers Write, 8 Leg. Writing 257 (2002).

52 Id. at 269.

53 Id.

54 Id.

55 Id.

56 Id.

57 See Easton, supra n. 47, at 251 (“Your goal, though not always obtainable, should be to know more about your case than anyone else, especially opposing counsel. . . . [Y]ou can acquire that superior level of knowledge only through hard work.”).

58 Ralph Keyes, The Quote Verifier: Who Said What, Where, and When 257 (Macmillan 2006). Bryan Garner advises law students and lawyers, “Start with the premise that writing well isn’t easy. . . . [I]t takes hard work.” Bryan A. Garner, Legal Writing in Plain English xvi (Univ. Chi. Press 2001).

59 Garner, supra n. 58, at xii (“[I]t is impossible to separate good writing from clear thinking.”); see also Neumann, supra n. 49, at 60 (“[L]earning to write [like] a lawyer is another way to learn to think [like] a lawyer.”) (quoting Terrill Pollman).

60 Dean and former Judge Donald Burnett explained, Through the discipline of putting an argument into words, we find out whether the argument is worth making. . . . Each issue is defined by a cluster of facts and governing legal principle. If you cannot articulate this nexus of law and fact, you do not yet have a grasp of the case. Donald L. Burnett, Jr., The Discipline of Clear Expression, 32 Advoc. 8 (June 1989) (quoted in Linda H. Edwards, Legal Writing: Process, Analysis, and Organization xxv (5th ed., Aspen Pub. 2010)).

61 Id. at xvii (pointing out that because legal employers value writing ability over almost any other skill, a good writer will be more likely to get her desired job, get a quick promotion, and have career mobility).

62 Joseph Kimble, Plain English: A Charter for Clear Writing, 9 Thomas M. Cooley L. Rev. 1, 22 (1992).

63 Edwards, supra n. 60, at 1.

64 Wills, supra n. 12, at 11.

65 Hunt-Jones, supra n. 2, at 1.

66 Jack N. Rakove, James Madison and the Creation of the American Republic 3 (3d ed., Pearson Longman 2007) [hereinafter Rakove, James Madison].

67 Ketcham, supra n. 16, at 19; see also Rakove, James Madison, supra n. 66, at 9–11.

68 Hunt-Jones, supra n. 2, at 2.

69 Ketcham, supra n. 16, at 39.

70 Schaedler, supra n. 15, at 515.

71 Id. at 518.

72 Rakove, James Madison, supra n. 66, at 3; Ketcham, supra n. 16, at 28.

73 Ketcham, supra n. 16, at 32.

74 Id. at 519.

75 Madison’s poor health included epileptic-like attacks. Wills, supra n. 12, at 6.

76 Hunt-Jones, supra n. 2, at 11.

77 Burstein & Isenberg, supra n. 24, at 470.

78 Ketcham, supra n. 16, at 476 (citing the Diary of Frances Few, 1808–1809 (Ga. Dept. of Archives & History, Mar. 3, 1809).

79 Rutland, supra n. 13, at 21 (emphasis in original).

80 Rakove, James Madison, supra n. 66, at 104.

81 Wills, supra n. 12, at 16.

82 Ltr. from James Madison to William Bradford (Jan. 24, 1774), in James Madison, Writings, supra n. 6, at 5, 7. See Bernard Bailyn, The Ideological Origins of the American Revolution 260 (Enlarged Ed., Harvard U. Press 1992).

83 Wills, supra n. 38, at 17.

84 Schaedler, supra n. 15, at 516.

85 Ketcham, supra n. 16, at 73.

86Wills, supra n. 12, at 17–18.

87 Id.

88 See infra discussion on Memorial and Remonstrance, pt. III(A).

89 See infra discussion on Federalist, No. 10, pt. III(B).

90 Ellis, American Creation, supra n. 26, at 97–99.

91 Id. at 97.

92 Id. at 98. (“Madison’s response to this litany of protestations [from Washington] was the political equivalent of guerrilla warfare.”).

93 Id. at 108.