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The
Debates in the Several State Conventions on the Adoption
of the Federal Constitution (Elliot's Debates)
Vol.
IV
Page
546
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.
RJ&L
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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Pg.
576
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
Pg.
577
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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