James Madison: Virginia Resolutions

Explanation and Analysis of the Document

Despite the transparency of the First Amendment's declaration that Congress should make “no law … abridging freedom of speech or the press,” Congress did exactly this during America's undeclared war at sea with France during the administration of John Adams. Well before the end of George Washington's first term, the initial hopes harbored by some for national unity were shattered by the division of the elected populace into two political parties. Although he professed to be above parties, Washington generally sided with the Federalist Party, which coalesced around Alexander Hamilton and his plans for the broad exercise of national powers, including the establishment of a national bank. Jefferson and Madison, in turn, rallied the Democratic-Republican opposition, which feared that the national government was already becoming too powerful and advocated strict constitutional construction as an antidote.

In 1798 the Federalist-dominated Congress enacted a series of controversial laws, the most important of which were the Alien and Sedition Acts. The first made it more difficult for immigrants, many of whom were joining the Democratic-Republican Party, to become citizens. The second made it a crime to criticize the government or president of the United States. As Federalists began arresting critics, Democratic-Republican leaders had to formulate a strategy.

When he had introduced the Bill of Rights before Congress, Madison not only had observed that courts might enforce its provisions but also had indicated that the amendments might serve as a rallying point for state governments. With the courts dominated by Federalist judges, Madison found himself secretly authoring resolutions that would be adopted by the Virginia legislature on December 24, 1798, to challenge what he considered to be unconstitutional legislation. Jefferson, then vice president and also acting secretly, was offering similar help to the Kentucky legislature, which was drawing up its own resolutions.

Indeed, Madison hoped to rally other state legislatures against clear violations of the Constitution. In phrases that others would later stretch into doctrines of state nullification of federal laws and even of state secession, Madison calls upon other state legislatures “to interpose for arresting the progress of the evil.” He opposes the attempts of other congressional leaders to enlarge federal powers “by forced constructions of the constitutional charter,” which he fears are transforming the nation's republican government “into an absolute, or at best a mixed monarchy.” Madison further argues that the Alien and Sedition Acts violate constitutional principles: They represent an exercise of powers not simply denied to the national government but furthermore positively forbidden by the First Amendment. Virginia must accordingly declare such laws unconstitutional, with the hope that other states would join.

Madison's appeals for state intervention failed. Other states refused to join the appeals of Virginia and Kentucky, and some specifically repudiated the doctrine of state opposition advocated by Madison and Jefferson in favor of reliance on judicial review. While losing this battle, however, Madison and Jefferson won the larger and more important war: In the presidential contest of 1800, Jefferson, as the Democratic-Republican presidential candidate, defeated the incumbent Federalist John Adams and subsequently pardoned everyone who had been convicted under the Sedition Act. Not until the decision in New York Times v. Sullivan (1964) did the Supreme Court announce the obvious fact that the constitutionality of the Sedition Act had been judged deficient in the court of history.

Madison served as secretary of state throughout Jefferson's two terms as president. Despite rumblings over the embargo of New England ports, the favorable Democratic-Republican electoral tide continued, and Madison succeeded Jefferson as president. Although Madison's presidency witnessed the burning of the nation's capital during the War of 1812 with Great Britain, Madison did not seek to criminalize domestic opposition to the war. When America ended the war with victory over the British in New Orleans, national frustration with Democratic-Republican policies turned to pride in republican freedoms.