Madison’s Report on the First Amendment to the Virginia House of Delegates, 1799-1800
The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Elliot’s Debates)
MADISON’S REPORT on the VIRGINIA RESOLUTIONS
House of Delegates, Session of 1799–1800.
Report of the Committee to whom were referred the Communications of various States, relative to the Resolutions of the last General Assembly of this State, concerning the Alien and Sedition Laws.
Lewis Roca Rothgerber Christie Religious Institutions Group
Whatever room might be found in the proceedings of some of the states, who have disapproved of the resolutions of the General Assembly of this commonwealth, passed on the 21st day of December, 1798, for painful remarks on the spirit and manner of those proceedings, it appears to the committee most consistent with the duty, as well as dignity, of the General Assembly, to hasten an oblivion of every circumstance which might be construed into a diminution of mutual respect, confidence, and affection, among the members of the Union.
The committee have deemed it a more useful task to revise, with a critical eye, the resolutions which have met with their disapprobation; to examine fully the several objections and arguments which have appeared against them; and to inquire whether there can be any errors of fact, of principle, or of reasoning, which the candor of the General Assembly ought to acknowledge and correct.
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The resolution next in order is as follows:–
“That this state having, by its Convention, which ratified the Federal Constitution, expressly declared that, among other essential rights, ‘the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States;’ and, from its extreme anxiety to guard these rights from every possible attack of sophistry and ambition, having, with other states, recommended an amendment for that purpose, which amendment was in due time annexed to the Constitution, it would mark a reproachful inconsistency, and criminal degeneracy, if an indifference were now shown to the most palpable violation of one of the rights thus declared and secured, and to the establishment of a precedent which maybe fatal to the other.”
To place this resolution in its just light, it will be necessary to recur to the act of ratification by Virginia, which stands in the ensuing form:–
“We, the delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared, as well as the most mature deliberation hath enabled us, to decide thereon,–DO, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby remains with them, and at their will. That, therefore, no right of any denomination can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate or the House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.”
Here is an express and solemn declaration by the Convention of the state, that they ratified the Constitution in the sense that no right of any denomination can be cancelled, abridged, restrained, or modified, by the government of the United States, or any part of it, except in those instances in which power is given by the Constitution; and in the sense, particularly, “that among other essential rights, the liberty of conscience and freedom of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.”
Words could not well express, in a fuller or more forcible manner, the understanding of the Convention, that the liberty of conscience and freedom of the press were equally and completely exempted from all authority whatever of the United States.
Under an anxiety to guard more effectually these rights against every possible danger, the Convention, after ratifying the Constitution, proceeded
to prefix to certain amendments proposed by them, a declaration of rights, in which are two articles providing, the one for the liberty of conscience, the other for the freedom of speech and of the press.
Similar recommendations having proceeded from a number of other states; and Congress, as has been seen, having, in consequence thereof, and with a view to extend the ground of public confidence, proposed among other declaratory and restrictive clauses, a clause expressly securing the liberty of conscience and of the press; and Virginia having concurred in the ratifications which made them a part of the Constitution,–it will remain with a candid public to decide whether it would not mark an inconsistency and degeneracy, if an indifference were now shown to a palpable violation of one of those rights–the freedom of the press; and to a precedent, therein, which may be fatal to the other–the free exercise of religion.
That the precedent established by the violation of the former of these rights may, as is affirmed by the resolution, be fatal to the latter, appears to be demonstrable by a comparison of the grounds on which they respectively rest, and from the scope of reasoning by which the power of the former has been vindicated.
First, Both of these rights, the liberty of conscience, and of the press, rest equally on the original ground of not being delegated by the Constitution, and consequently withheld from the government. Any construction, therefore that would attack this original security for the one, must have the like effect on the other.
Secondly, They are both equally secured by the supplement to the Constitution being both included in the same amendment, made at the same time and by the same authority. Any construction or argument, then, which would turn the amendment into a grant or acknowledgment of power, with respect to the press, might be equally applied to the freedom of religion.
Thirdly, If it be admitted that the extent of the freedom of the press, secured by the amendment, is to be measured by the common law on this subject, the same authority may be resorted to for the standard which is to fix the extent of the “free exercise of religion.” It cannot be necessary to say what this standard would–whether the common law be taken solely as the unwritten, or as varied by the written law of England.
Fourthly, If the words and phrases in the amendment are to be considered as chosen with a studied discrimination, which yields an argument for a power over the press, under the limitation that its freedom be not abridged, the same argument results from the same consideration, for a power over the exercise of religion, under the limitation that its freedom be not prohibited.
For, if Congress may regulate the freedom of the press, provided they do not abridge it, because it is said only, “they shall not abridge it,” and is not said “they shall make no law respecting it,” the analogy of reasoning is conclusive, that Congress may regulate, and even abridge, the free exercise of religion, provided they do not prohibit it; because it is said only, “they shall not prohibit it;” and is not said, “they shall make no law respecting, or no law abridging it.”
The General Assembly were governed by the clearest reason, then, in considering the Sedition Act, which legislates on the freedom of the press, as establishing a precedent that may be fatal to the liberty of conscience; and it will be the duty of all, in proportion as they value the security of the latter, to take the alarm at every encroachment on the former.
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