James Madison’s report
In this excerpt from a commentary on the Alien and Sedition Acts, James Madison asserted that the First Amendment prohibited the Congress from making any law that restricted freedom of speech or freedom of the press. Defenders of the Sedition Act maintained that the law simply codified what had always been accepted in the common law of seditious libel, and that the First Amendment protection of a free press extended only to the traditional, common-law prohibition on laws that restrained the press prior to publication. Madison, who was a primary drafter of both the Constitution and the Bill of Rights, explained that the common law of seditious libel was peculiar to the British system of government and had no applicability under the U.S. Constitution. In Great Britain the law served as the legislature’s check on the potential tyranny of the monarch. In the United States, sovereignty rested with the people, who were protected by the Constitution against both abusive laws of the legislature and arbitrary power of the executive. The First Amendment was therefore intended to restrain any legislative restrictions on the press as well as any executive restraints. Madison recalled how important freedom of speech had been in recent history; without it U.S. citizens might be “languishing” under the Articles of Confederation or living as dependent colonials.
As a member of the Virginia House of Delegates, James Madison prepared a report defending the Virginia Assembly’s 1798 resolution protesting the Alien and Sedition Acts. The Virginia Resolution, also authored by Madison, and the Kentucky Resolutions written by Jefferson, declared that states had a right and a duty to withdraw the authority they granted to the federal government if that national government violated the constitutional limits on its powers. When several state legislatures passed resolutions decrying the potential dangers of this position, Madison responded with this detailed explanation of the assembly’s opposition to the congressional acts.
[Document Source: The Papers of James Madison, v. 17, David B. Mattern, et al., eds. (Charlottesville: University Press of Virginia, 1991), 307–50.]
II. The next point which the resolution requires to be proved, is, that the power over the press exercised by the sedition act, is positively forbidden by one of the amendments to the constitution.
. . . In the attempts to vindicate the “Sedition act,” it has been contended, 1. That the “freedom of the press” is to be determined by the meaning of these terms in the common law. 2. That the article supposes the power over the press to be in Congress, and prohibits them only from abridging the freedom allowed to it by the common law.
. . . The freedom of the press under the common law, is, in the defences of the sedition act, made to consist in an exemption from all previous restraint on printed publications, by persons authorized to inspect and prohibit them. It appears to the committee, that this idea of the freedom of the press, can never be admitted to be the American idea of it: since a law inflicting penalties on printed publications, would have a similar effect with a law authorizing a previous restraint on them. It would seem a mockery to say, that no law should be passed, preventing publications from being made, but that laws might be passed for punishing them in case they should be made.
The essential difference between the British government, and the American constitutions, will place this subject in the clearest light.
In the British government, the danger of encroachments on the rights of the people, is understood to be confined to the executive magistrate. The representatives of the people in the legislature, are not only exempt themselves, from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the executive. Hence it is a principle, that the parliament is unlimited in its power; or, in their own language, is omnipotent. Hence, too, all the ramparts for protecting the rights of the people, such as their magna charta, their bill of rights, &c., are not reared against the parliament, but against the royal prerogative. They are merely legislative precautions against executive usurpations. Under such a government as this, an exemption of the press from previous restraint by licensers appointed by the king, is all the freedom that can be secured to it.
In the United States, the case is altogether different. The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one, as well as from the other. Hence in the United States, the great and essential rights of the people are secured against legislative, as well as against executive ambition. They are secured, not by laws paramount to prerogative; but by constitutions paramount to laws. This security of the freedom of the press, requires that it should be exempt, not only from previous restraint by the executive, as in Great Britain; but from legislative restraint also; and this exemption, to be effectual, must be an exemption not only from the previous inspection of licensers, but from the subsequent penalty of laws.
The state of the press, therefore, under the common law, cannot, in this point of view, be the standard of its freedom in the United States.
. . . Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true, than in that of the press. It has accordingly been decided by the practice of the states, that it is better to leave a few of its noxious branches, to their luxuriant growth, than by pruning them away, to injure the vigour of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect, that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity, over error and oppression; who reflect that to the same beneficent source, the United States owe much of the lights which conducted them to the rank of a free and independent nation; and which have improved their political system, into a shape so auspicious to their happiness. Had “Sedition acts,” forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press; might not the United States have been languishing at this day, under the infirmities of a sickly confederation? Might they not possibly be miserable colonies, groaning under a foreign yoke?
. . . Is then the federal government, it will be asked, destitute of every authority for restraining the licentiousness of the press, and for shielding itself against the libellous attacks which may be made on those who administer it? The constitution alone can answer this question. If no such power be expressly delegated, and it be not both necessary and proper to carry into execution an express power; above all, if it be expressly forbidden by a declaratory amendment to the constitution, the answer must be, that the federal government is destitute of all such authority.
And might it not be asked in turn, whether it is not more probable, under all the circumstances which have been reviewed, that the authority should be withheld by the constitution, than that it should be left to a vague and violent construction; whilst so much pains were bestowed in enumerating other powers, and so many less important powers are included in the enumeration?
. . .
But the question does not turn either on the wisdom of the constitution, or on the policy which gave rise to its particular organization. It turns on the actual meaning of the instrument; by which it has appeared, that a power over the press is clearly excluded, from the number of powers delegated to the federal government.
The Sedition Act Trials — Historical Background and Documents