Madison stayed in Washington for the inauguration of his successor
James Monroe as President of the United States on 4 March 1817.
Then Madison and his wife Dolley returned to their Montpelier home in Virginia.
On 27 June 1817 Madison discussed foreign policy in a letter to Richard Rush:
I have received your two favors of the 18 & 20 inst.
I am promised a visit from Mr. Jefferson, the
ensuing month, and shall not fail to communicate
to him, the one you note for that purpose.
I readily conceive that Mr. Correa, may feel
some conflict in his present position between his
two characters of Philanthropist and Plenipotentiary;
and that he may infer some indulgence towards
the latter from a respect for the former.
He ought not however to impose on you a conflict between
this kind feeling in the Government and its self-respect.
It is both illiberal & impolitic; and necessarily extorts
the admonitions you so gently convey to him.
In assuming a guardianship of our character in Europe,
he committed, to say the least, a marked indelicacy;
and his avowed resort to the press,
as the medium for giving information to the
public here, was a still greater aberration.
His regard for our national reputation, if sincere,
might have been manifested in a less exceptionable
mode, than in an official conversation.
And his consciousness of the wrongfulness
of a direct communication to the people,
is betrayed by the flimsiness of his apology.
A silly reason from a wise man is never the true one.
The British doctrine of Blockades has given rise
to error & irregularity in the practice of other nations.
In strictness the blockade notifies itself; and no other
notification can be admitted by neutrals who understand
their rights, as having any other effect, than as a
friendly caution against a probable danger.
But in this sense the notification ought to be to the
Government which may make the use of it deemed proper.
This Government has never formally
Promulgated the blockades, more than
any other regulations of foreign Governments.
The most that seems admissible in such cases,
is to let the public be informally apprised of them,
that individuals may not ignorantly incur just penalties.
In one instance an answer was given by the
Department of State to a notification of a British
blockade by Mr. Merry, which according to my
recollection explained the sense in which it
was received, and precluded the idea, that any
thing short of an actual attempt to violate a
legal blockade could subject neutral vessels
to interruption on the high seas.
Notwithstanding these views of the subject, I am not sure,
that foreign Consuls in our ports may not have addressed,
notifications to our Merchants through the Newspapers.
And it may be worth enquiring whether something
of the sort was not done by Mr. Onís, perhaps
prior to his reception as public Minister.
It is to be regretted that any difficulties should
have arisen with Portugal, the only recognized Nation,
besides ourselves on this Hemisphere, and particularly
that the most enlightened & esteemed foreigner
among us should be the pivot on which they turn.
It is not the less necessary however, to make these
considerations, as you are making them, subordinate to
the rights of our Country and the honor of its Government.
As far as these will permit, conciliation can
in no case be more properly intermingled.
May not the event at Pernambuco, if not caused
by actual oppression, tend to give at the present
moment an unfavorable turn to the sentiment of
European Sovereigns in relation to the
revolutionary Scene in South America?
The struggle of the Spanish part, having the
appearance of shaking off a foreign yoke, appeals
merely to the interest and sympathy of those Sovereigns.
That in the Brazils may be viewed by them as
an attack on a domestic Throne, and as adding
an example in the new World, to those which
have inspired so much alarm in the old.1
On 29 November 1817 Madison wrote this letter to President James Monroe:
Your favor of the 24th has just been received.
I am fully aware of the load of business on your hands,
preparatory to the meeting of Congress.
The course you mean to take in relation to
roads & Canals, appears to be best adapted
to the posture in which you find the case.
A reluctance has generally been felt, to include amendments
to the Constitution among Executive recommendations
to Congress, but it seems to be called for on the present
occasion, as preferable to arresting their deliberations
by a notice that the result will be negatived,
or to meeting the result with an unexpected negative.
For myself, I had not supposed that my view of the
Constitution could have been unknown, and I felt with
great force the delicacy of giving intimations of it,
to be used as a bar or a clog to a depending measure.
The expediency of vesting in Congress a power
as to roads and Canals, I have never doubted;
and there has never been a moment when such a
proposition to the States was so likely to be approved.
A general power to establish Seminaries, being less obvious,
and affecting more the equilibrium of influence between the
national and State Governments is a more critical experiment.
The feelings awakened by the proposed University
within the Congressional district are a proof
of the opposition which may be looked for.
I should consider it, as at least essential, that
the two propositions, whatever may be the
modification of the latter, should be so distinct,
that a rejection of the one by the States may
not be inconsistent with the adoption of the other.
It is very grateful to have an overflowing Treasury,
especially when every other nation is on the brink
if not in the abyss of bankruptcy.
A natural effect is a prevailing desire that
the taxes may be reduced, particularly
the internal taxes which are most seen & felt.
May it not however deserve consideration whether
the still tax which is a moralizing as well as a very easy,
productive tax, would not be advantageously retained,
even at the expense of revenue from foreign trade.
Why not press on the Whiskey drinkers,
rather than the Tea and Coffee drinkers;
or even the drinkers of the lighter kinds of wine?
The question will depend much on the public opinion
and on the expense of collecting a solitary internal tax;
both of which points will be better understood in the
Cabinet, than at the fireside; and in the result there,
I shall rest with perfect confidence.
I make the same remark with respect to the influence
which the disbanding at this moment of so conspicuous
a portion of our fiscal strength, may have on the
calculations of any other power, particularly Spain.2
On 27 December 1817 Madison wrote again to President Monroe:
Your favor of the 22nd has been duly received.
I am so much aware that you have not a moment
to spare from your public duties, that I insist on
your never answering my letters out of mere civility.
This rule I hope will be applied to
the present as well as future letters.
My quere as to the expedition against Amelia Island
turned solely on the applicability of the
Executive Power to such a case.
That relating to the right to Indian lands was
suggested by the principle which has limited
the claim of the U. S. to a right of pre-emption.
It seemed also that an unqualified right of a civilized people
to land used by people in the Hunter State, on the principle
that the Earth was intended for those who would make it
most conducive to the sustenance and increase of the
human race, might imply a right in a people cultivating it
with the spade to say to one using the plow,
either adopt our mode or let us substitute it ourselves.
It might also be not easy to repel the claims of those
without land in other Countries, if not in our own,
to vacant lands within the U. S. likely to remain
for a long period of years unproductive of human food.
The quere was not meant to contest the doctrine
of the Message under qualifications which were
probably entertained without being specified.
The Cumberland road having been a measure
taken during the administration of Mr. Jefferson,
and as far as I recollect not then brought to my
particular attention, I cannot assign the grounds assumed
for it by Congress or which produced his sanction.
I suspect that the question of Constitutionality was
but slightly if at all examined by the former, and that
the Executive assent was doubtingly or hastily given.
Having once become a law, and being a measure
of singular utility, additional appropriations took place
of course under the same administration:
and with the accumulated impulse thence derived,
were continued under the succeeding one, with less of
critical investigation perhaps than was due to the case.
Be all this as it may, the case is distinguished
from that now before Congress by the circumstances:
1. that the road was undertaken essentially for the
accommodation of a portion of the Country
with respect to which Congress have
a general power not applicable to other portions.
2. that the funds appropriated and which alone
have been applied, were also under a general power
of Congress, not applicable to other funds.
As a precedent the case is evidently without the weight
allowed to that of the National Bank, which had been often
a subject of solemn discussion in Congress, had long
engaged the critical attention of the public,
and had received reiterated and deliberate sanctions
of every branch of the Governments to all which had been
superadded many positive concurrencies of the State
Governments and implied ones by the people at large.
The Bank case is analogous to that of the Carriage tax
which was generally regarded by those who opposed
the Bank as a direct tax and therefore unconstitutional,
and did not receive their acquiescence
until their objections were superseded by
the highest Judicial as well as other sanctions.
As to the case of post roads and military roads;
instead of implying a general power to make roads,
the constitutionality of them must be tested by the
bona fide object of the particular roads.
The Post cannot travel, nor troops march without a road.
If the necessary roads cannot be found,
they must of course be provided.
Serious danger seems to be threatened to the genuine
sense of the Constitution, not only by an unwarrantable
latitude of construction, but by the use made of precedents
which cannot be supposed to have had, in the view
of their authors, the bearing contended for, and even
where they may have crept through inadvertence
into Acts of Congress and been signed by the Executive
at a Midnight hour in the midst of a group
scarcely admitting perusal, and under a weariness
of mind as little admitting a vigilant attention.
Another and perhaps a greater danger is to be
apprehended from the influence which the
usefulness and popularity of measures may
have on questions of their Constitutionality.
It is difficult to conceive that anything short of
that influence could have overcome the constitutional
and other objections to the Bill on roads and canals
which passed the two Houses at the last Session.
These Considerations remind me of the attempts
in the Convention to vest in the Judiciary Department
a qualified negative on Legislative bills.
Such a control restricted to constitutional points,
besides giving greater stability and system to the rules of
expounding the Instrument, would have precluded the
question of a Judiciary annulment of Legislative Acts.3
Madison worked on the editing of The Federalist that was published again in 1818.
He wrote to President Monroe on 28 November 1818 about relations with the British:
Your favor of the 23rd having passed on to Milton
whence it came back to Orange Court House
I did not receive it till yesterday.
I am glad to find that our proportion of Shipping
in the direct trade with Great Britain is increasing.
It must continue to do so under an established reciprocity—
with regard to the trade of the British Colonies,
whether that be founded on the admission
or exclusion of the Ships of both Countries.
I thank you for the printed Copy of the documents
relating to our long controversy with Spain.
It forms a valuable continuation of
the State papers already published.
It is pleasing to see proofs of the growing respect for us
among the great powers of Europe: which must be
cherished and enhanced by the current developments of
a just and elevated policy on the part of the United States.
Is it not worthwhile to found on this respect an experiment
to draw Russia and France who particularly profess it, into
our liberal and provident views in favor of South America?
The great work of its emancipation
would then be completed per Saltum;
for Great Britain could not hold back if so disposed,
and Spain would have no choice but acquiescence.
The inference of Mr. Rush from the circumstances
of his last interview with Lord Castlereagh in the
moment of his departure for Aix La Chapelle,
is as judicious as it is favorable to our hopes
of terminating the Thorny question of impressment.
The British Cabinet gave up its sine qua non in order
to get rid of a war with us at a crisis rendering it
embarrassing to its affairs internal and external.
It may be equally ready to obviate by another
sacrifice the danger of one which might be
not less embarrassing in both respects.
Impressment and peace, it must
now be evident, are irreconcilable.
It will be happy if the apparent disposition to yield
in this case be carried into effect; and it may be hoped
the same flexibility may be extended to the case of
blockades, which in the event of a maritime war in Europe
would have a like tendency with impressments.
The remaining danger to a permanent harmony
would then lie in the possession of Canada; which as
Great Britain ought to know, whenever rich enough
to be profitable, will be strong enough to be independent.
Were it otherwise, Canada can be of no value to her,
when at war with us; and when at peace, will be of equal
value, whether a British Colony or an American State.
Whether the one or the other,
the consumption of British Manufactures and
export of useful materials will be much the same.
The latter would be guarded even against a tax
on them by an Article in our Constitution.
But notwithstanding the persuasive nature of these
considerations there is little probability of their
overcoming the national pride which is flattered
by extended dominion; and still less perhaps ministerial
policy always averse to narrow the field of patronage.
As far as such a transfer would affect the relative
power of the two Nations, the most unfriendly
jealousy could find no objection to the measure;
for it would evidently take more weakness from
Great Britain than it would add Strength to the U. S.
In truth the only reasons we can have to desire Canada,
ought to weigh as much with Great Britain as with us.
In her hands it must ever be a source of collision
which she ought to be equally anxious to remove:
and a Snare to the poor Indians towards whom
her humanity ought to be equally excited.
Interested individuals have dwelt much on its importance
to Great Britain as a channel for eroding and
crippling our commercial laws.
But it may well be expected that other views of
her true interest will prevail in her Councils,
if she permits experience to enlighten them.4
James Madison in 1818 and in 1819 provided information to
John Quincy Adams for his work on the Journal of the Federal Convention in 1787.
Madison in a letter to President James Monroe on February 13
showed his support for General Andrew Jackson’s adventure in Florida:
I received by the last mail your favor of the 7th.
The death of General Mason with the
manner of it is an event truly lamentable.
The only alleviation it admits is in the hope
that its admonitions will not be fruitless.
The Newspapers from Washington not
having come to hand regularly of late, and
other matters having engaged my attention,
I am but partially acquainted with what has passed
in Congress on the subject of the proceedings in Florida.
The views of the Executive could not certainly have
been better directed than to the objects of shielding
the Constitution, silencing Spain & her Allies, and
turning everything to the best account for the nation.
It will be a most happy termination of the business
if Onís should make good the prospect of the
desired accommodation of our affairs of Spain.
It would be a happiness also if the subject as it relates
to General Jackson could have an issue satisfactory to
his feelings & to the scruples of his friends & admirers.
Mr. Adams has given all its luster to the proof that the
Conduct of the General is invulnerable to complaints
from abroad; and the question between him & his country
ought to be judged under the persuasion that if he has
erred, it was in the zeal of his patriotism and under a
recollection also of the great services he has rendered.
You have seen the agreeable result at Richmond
to the report of the University Commissioners.
I do not know what steps have been taken
for carrying the law into execution.
I have heard nothing from or of Mr. Jefferson,
since the visit of Dr. Eustis & myself to Monticello.
I mentioned to you the state of his health at that time,
& our hopes that it would soon be entirely restored.
It is to be wished that he may witness & guide the
launching of the Institution which he put on the Stocks,
& the materials for which were supplied from his Stores.5
On 2 September 1819 Madison wrote to Spencer Roane
about the United States Constitution,
I have received your favor of the 22nd Ult. enclosing a
copy of your observations on the judgment of the
Supreme Court of the U. S. against the State of Maryland;
and I have found the latitudinary mode of expounding
the Constitution adopted by the Court, combated in them
with the ability & force which was to be expected.
It appears to me as it does to you, that the occasion
did not call for the general & abstract doctrine
interwoven with the decision on the particular case.
I have always supposed that the meaning of a law,
and for a like reason, of a Constitution, so far as it
depends on Judicial interpretation, was to result from
a course of particular decisions; and not these, from
a previous and abstract comment on the subject.
The example in this instance tends to reverse the rule
and to forego the illustration to be derived from a
series of cases actually occurring for adjudication.
I could have wished also that the Judges
had delivered their opinions seriatim.
The case was of such magnitude in the scope
given to it, as to call, if any case could do so, for
the views of the subject individually taken by them.
This might, either by the harmony of their reasoning,
have produced greater conviction in the public mind;
or by its discordance, have impaired the force of a
precedent, now ostensibly supported by a unanimous
and perfect concurrence in every argument &
dictum contained in the judgment pronounced.
But what is of most importance is the high sanction given
to a latitude in expounding the Constitution, which seems to
break down the landmarks intended by a specification of
the powers of Congress; and to substitute for a definite
connection between means and ends, a legislative discretion
as to the former, to which no practical limit can be assigned.
In the great system of political economy, having
for its general object, the national welfare,
everything is related immediately or remotely
to every other thing; and consequently, a power
over any one thing, if not limited by some obvious &
precise affinity, may amount to a power over every other.
Ends & means may shift their character at the will
and according to the ingenuity of the Legislative body.
What is an end in one case may be a means in another;
nay, in the same case may be either
an end or a means at the legislative option.
The British Parliament in collecting a revenue
from the commerce of America found no difficulty
in calling it either a tax for the regulation of trade,
or a regulation of trade with a view to the tax,
as it suited the argument or the policy of the moment.
Is there a Legislative power in fact not expressly
prohibited by the Constitution, which might not,
according to the doctrine of the Court, be exercised as
a means of carrying into effect some specified power.
Does not the Court also relinquish by
their doctrine all control on the Legislative
exercise of unconstitutional powers?
According to that doctrine the expediency &
constitutionality of means for carrying into effect
a specified power are convertible terms; and
Congress are admitted to be judges of the expediency.
The Court certainly cannot be so; a question, the moment
it assumes the character of mere expediency or policy,
being evidently beyond the reach of Judicial cognizance.
It is true the Court are disposed to retain a guardianship
of the Constitution against legislative encroachments.
“Should Congress, under the pretext of executing
its powers, pass laws for the accomplishment of
objects not entrusted to the Government, it would
be the painful duty of this tribunal to say that
such an act was not the law of the land.”
But suppose Congress should, as would doubtless happen,
pass unconstitutional laws, not to accomplish objects
not entrusted to them, that is, objects not specified
in the Constitution but the same laws, as means
expedient, convenient or conducive to the
accomplishment of objects entrusted to the Government;
by what handle could the Court take hold of the case?
We are told that it was the policy of the old Government
of France to grant monopolies such as that of Tobacco
in order to create funds in particular hands from which loans
could be made to the public, adequate capitalists not being
formed in that Country in the ordinary course of commerce.
Were Congress to grant a like monopoly, merely to
aggrandize those enjoying it, the Court might consistently
say that, this not being an object entrusted to the
Government, the grant was unconstitutional.
Should Congress however grant the monopoly according to
the French policy, as a means judged by them to be
expedient or conducive to the borrowing of money,
which is an object entrusted to them by the Constitution,
it seems clear that the Court adhering to its doctrine,
could not interfere without stepping on Legislative ground,
to do which they justly disclaim all pretension.
It could not but happen and was foreseen at the birth
of the Constitution, that difficulties and differences
of opinion might occasionally arise, in expounding
terms & phrases necessarily used in such a Charter,
more especially those which divide legislation
between the General and the local Governments;
and that it might require a regular course of practice
to liquidate and settle the meaning of some of them.
But it was anticipated, I believe, by few if any of the friends
of the Constitution, that a rule of construction would be
introduced, as broad and as pliant as what has occurred.
Those who recollect, and still more, those who
shared in what passed in the State Conventions,
through which the people ratified the Constitution
with respect to the extent of the powers vested in
Congress, cannot easily be persuaded that the avowal
of such a rule would not have prevented its ratification.
It has been the misfortune, if not the reproach of
other nations, that their Governments have not been
freely and deliberately established by themselves.
It has been the boast of ours that such has
been its source, and that it can be altered by
the same authority only which established it.
It is a further boast that a regular mode
of making proper alterations, has been
providently inserted in the Constitution itself.
It is anxiously to be wished therefore that
no innovations may take place in other modes;
one of which would be a constructive assumption
of powers never meant to be granted.
If the powers granted be deficient, the legitimate source of
additional ones is always open and ought to be resorted to.
Much of the error in expounding the Constitution
has its origin in the use made of the species of
sovereignty implied in the nature of Government.
The specified powers vested in Congress, it is said, are
sovereign powers, and that as such they carry with them
an unlimited discretion as to the means of executing them.
It may surely be remarked that a limited Government may
be limited in its sovereignty, as well with respect to the
means as to the objects of its powers; and that to give an
extent to the former superseding the limits to the latter, is
in effect to convert a limited into an unlimited Government.
There is certainly a reasonable medium between
expounding the Constitution with the strictness of
a penal or other ordinary Statute, and expounding it
with a laxity, which may vary its essential character,
and encroach on the local sovereignties
with which it was meant to be reconcilable.
The very existence of these local sovereignties
is a control on pleas for a constructive amplification
of the powers of the general Government.
Within a single State, possessing the entire sovereignty,
the powers given to the Government are understood
to extend to all acts, whether as means or ends,
required for the welfare of the Community, and
falling within the range of just Government.
To withhold from such a Government any particular
power necessary or useful in itself, would be to deprive
the people of the good dependent on its exercise;
since the power must be there or not exist at all.
In the Government of the United States,
the case is obviously different.
In establishing that Government the people retained
other Governments, capable of exercising such
necessary & useful powers as were not to be
exercised by the General Government.
No necessary presumption therefore arises from the
importance of any particular power in itself, that
it has been vested in that Government; because
although not vested there it may be vested elsewhere;
and the exercise of it elsewhere might be preferred
by those who alone had a right to make the distribution.
The presumption, which ought to be indulged, is that
any improvement of this distribution sufficiently
pointed out by experience would not be withheld.
Although I have confined myself to the single question,
concerning the rule of interpreting the Constitution,
I find that my pen has carried me to a length
which would not have been permitted by a recollection,
that my remarks are merely for an eye to which
no aspect of the subject is likely to be new.6
Thomas Jefferson published his Autobiography in January 1821,
and he summarized the political career of James Madison this way:
Mr. Madison came into the House in 1776 a new member
and young; which circumstances, concurring with his
extreme modesty, prevented his venturing himself in debate
before his removal to the Council of State in November 77.
From thence he went to Congress,
then consisting of few members.
Trained in these successive schools, he acquired a habit of
self-possession which placed at ready command the rich
resources of his luminous and discriminating mind, & of his
extensive information, and rendered him the first of every
assembly afterwards of which he became a member.
Never wandering from his subject into vain
declamation, but pursuing it closely in language
pure, classical, and copious, soothing always the
feelings of his adversaries by civilities and softness of
expression, he rose to the eminent station which he held
in the great National convention of 1787 and in that of
Virginia which followed, he sustained the new Constitution
in all its parts, bearing off the palm against the logic of
George Mason, and the fervid declamation of Mr. Henry.
With these consummate powers were
united a pure and spotless virtue which
no calumny has ever attempted to sully.
Of the powers and polish of his pen,
and of the wisdom of his administration
in the highest office of the nation, I need say nothing.
They have spoken and will forever speak for themselves.7
On 6 May 1821 Madison in another letter to Judge Roane
discussed the US Supreme Court and legislation:
I received more than two weeks ago
your letter of April 17th.
A visit to a sick friend at some distance
with a series of unavoidable attentions have
prevented an earlier acknowledgement of it.
Under any circumstances I should be disposed
rather to put such a subject as that to which it relates,
into your hands, than to take it out of them.
Apart from this consideration, a variety of demands
on my time would restrain me from the task of
unravelling fully the arguments applied by the
Supreme Court of the U.S. to their late decision.
I am particularly aware moreover that they are made
to rest not a little on technical points of law which are
as foreign to my studies, as they are familiar to yours.
It is to be regretted that the Court is so much
in the practice of mingling with the Judgments
pronounced, comments & reasonings of a scope
beyond them; and that in these there is often an
apparent disposition to amplify the authorities of
the Union at the expense of those of the States.
It is of great importance, as well as of indispensable
obligation, that the constitutional boundary between
them should be impartially maintained.
Every deviation in practice detracts from the superiority
of a chartered over a traditional Government, and mars
the experiment which is to determine the interesting
problem, whether the organization of the political System
of the U.S. establishes a just equilibrium, or tends to a
preponderance of the national or of the local powers; and
in the latter case, whether of the National or of the local.
A candid review of the vicissitudes which have
marked the progress of the General Government,
does not preclude doubts as to the ultimate and
fixed character of a political Establishment
distinguished by so novel & complex a mechanism.
On some occasions, the advantage taken of
favorable circumstances, gave an impetus and
direction to it which seemed to threaten subversive
encroachments on the rights and authorities of the States.
At a certain period we witnessed a spirit of
usurpation by some of these on the necessary
and legitimate functions of the former.
At the present date theoretic innovations
at least are putting new weights into the scale
of federal authority and make it highly proper
to bring them to the bar of the Constitution.
In looking to the probable course and eventual
bearing of the compound Government of our Country,
I cannot but think that much will depend not only on
the moral changes incident to the progress of society,
but on the increasing number of the members of the Union.
Were the members very few, and each very
powerful, a feeling of self-sufficiency would have
a relaxing effect on the bands holding them together.
Were they numerous and weak, the Government
over the whole would find less difficulty in
maintaining and increasing subordination.
It happens that while the power of some is swelling
to so great a size, the entire number is swelling also.
In this respect a corresponding increase
of centripetal and centrifugal forces,
may be equivalent to no increase of either.
In the existing posture of things my reflections lead me
to infer that whatever may be the latitude of jurisdiction
assumed by the Judicial power of the U.S., it is less
formidable to the reserved sovereignty of the States,
than the latitude of power which it has assigned to the
Legislature; and that encroachments of the latter are
more to be apprehended from impulses given to it by
a majority of the States seduced by expected advantages,
than from a love of power in the Body itself controlled
as it now is by its responsibility to the Constituent Body.
Such is the plastic faculty of Legislation, that
notwithstanding the firm tenure which the Judges
have on their offices, they can by various regulations,
be kept or reduced within the paths of duty;
more especially with the aid of their amenability
to the Legislative Tribunal in the form of impeachment.
It is not probable that the Supreme Court would
be long indulged in a career of usurpation opposed
to the decided opinions & policy of the Legislature.
Nor do I think that Congress, even seconded
by the Judicial power, can without some great change
in the character of the nation, succeed in durable
violations of the rights & authorities of the States.
The responsibility of one branch to the people,
and of the other to the Legislatures of the States,
seem to be in the present stage at least of
our political history an adequate barrier.
In the case of the Alien & Sedition laws, which violated
the sense as well as the rights of the States, the usurping
experiment was crushed at once, notwithstanding the
co-operation of the federal Judges with the federal laws.
But what is to control Congress when backed
and even pushed on by a majority of their Constituents;
as was the case in the late contest relating to Missouri;
and as may again happen on the constructive
power relating to Roads and Canals?
Nothing within the pale of the Constitution
but sound arguments and conciliatory expostulations,
addressed both to Congress and their Constituents.
On the questions brought before the public by
the late doctrines of the Supreme Court of the U.S.
concerning the extent of their own powers, and
that of the exclusive jurisdiction of Congress over
the ten miles square & other specified places,
there is as yet no evidence that they express either
the opinions of Congress or those of their Constituents.
There is nothing therefore to discourage
a development of the flaws the doctrines
may contain or tendencies they may threaten.
Congress if convinced of these, may not only
abstain from the exercise of powers claimed
for them by the Court; but may find the means
of controlling those claimed by the Court for itself.
And should Congress not be convinced, their
Constituents, if so, can certainly under the
forms of the Constitution effectuate a compliance
with their deliberate judgment and settled determination.
In expounding the Constitution the Court seems not
insensible that the intention of the parties to it ought
to be kept in view; and that as far as the language
of the Instrument will permit, this intention ought
to be traced in the contemporaneous expositions.
But is the Court as prompt and as careful in citing
and following this evidence when against the federal
authority, as when against that of the States?
The exclusive jurisdiction over the ten miles square
is itself an anomaly in our representative System.
And its object being manifest and attested by the
views taken of it at its date, there seems a peculiar
impropriety in making it the fulcrum for a Lever
stretching into the most distant parts of the Union,
and overruling the municipal policy of the States.
The remark is still more striking when applied to the smaller
places over which an exclusive jurisdiction was suggested
by a regard to the defense & property of the nation.
Some difficulty, it must be admitted, may result in
particular cases, from the impossibility of executing some
of these powers within the defined spaces, according to
the principles and rules enjoined by the Constitution, and
from the want of a Constitutional provision for the surrender
of malefactors, whose escape must be so easy on the
demand of the U.S. as well as of the individual States.
It is true also that these exclusive jurisdictions
are in the class of enumerated powers, to which
is subjoined a power in Congress to pass all laws
necessary and proper for their execution.
All that could be exacted however by these considerations
would be that the means of execution should be of the most
obvious and essential kind and exerted in the ways as little
intrusive as possible on the powers and police of the States.
And after all the question would remain whether the better
course would not be to regard the case as an omitted one,
to be provided for by an amendment of the Constitution.
In resorting to legal precedents as sanctions to power,
the distinction should ever be strictly attended to, between
such as take place under transitory impressions or without
full examination and deliberation, and such as pass with
solemnities and repetitions, sufficient to imply a concurrence
of the judgment and the will of those who having granted
the power have the ultimate right to explain the grant.
Although I cannot join in the protest of some against
the validity of all precedents, however uniform and
multiplied, in expounding a Constitution, yet I am
persuaded that Legislative precedents are frequently
of a character entitled to little respect; and that those
of Congress are sometimes liable to peculiar distrust.
They not only follow the example of other
Legislative Assemblies in first procrastinating,
and then precipitating their acts; but owing to
the termination of their session every other year
at a fixed day and hour, a mass of business is
struck off as it were at short hand and in a moment.
Those midnight precedents of every sort
ought to have little weight in any case.
On the question relating to involuntary submissions
of the States to the Tribunal of the Supreme Court,
the Court seems not to have adverted at all to the
expository language held when the Constitution was
adopted; nor to that of the 11th amendment which
may as well import that it was declaratory, as that
it was restrictive of the meaning of the original text.
It seems to be a strange reasoning also
which would imply that a State in controversies
with its own Citizens might have less of sovereignty,
than in controversies with foreign individuals,
by which the national relations might be affected.
Nor is it less to be wondered that it should have
appeared to the Court that the dignity of a State
was not more compromitted by its being made a party
against a private person than against a co-ordinate party.
The Judicial power of the U.S. over cases
arising under the Constitution, must be
admitted to be a vital part of the System.
But that there are limitations and exceptions to its efficient
character is among the admissions of the Court itself.
The Eleventh amendment introduces
exceptions if there were none before.
A liberal and steady course of practice can alone reconcile
the several provisions of the Constitution literally at
variance with each other; of which there is an example in
the Treaty power and the Legislative power on subjects to
which both are extended by the words of the Constitution.
It is particularly incumbent in taking cognizance
of cases arising under the Constitution, and in which
the laws or rights of the States may be involved,
to let the proceedings touch individuals only.
Prudence enjoins this, if there were no
other motive in consideration of the
impracticability of applying coercion to States.
I am sensible Sir that these ideas are too vague
to be of value, and that they may not even hint for
consideration anything not occurring to yourself.
Be so good as to see in them
at least an unwillingness to
disregard altogether your request.
Should any of the ideas be erroneous as well as vague,
I have the satisfaction to know that they will be
viewed by a friendly as well as candid eye.8
Madison wrote about the value of education
in this letter to William T. Barry on 4 August 1822:
The liberal appropriations made by the
Legislature of Kentucky for a general System
of Education cannot be too much applauded.
A popular Government without popular information
or the means of acquiring it is but a prologue to a
Farce or a Tragedy; or perhaps both.
Knowledge will forever govern ignorance:
and a people who mean to be their own Governors,
must arm themselves with the
power which knowledge gives.
I have always felt a more than ordinary
interest in the destinies of Kentucky.
Among her earliest settlers were some
of my particular friends and neighbors.
And I was myself among the foremost advocates
for submitting to the will of the “District,” the
question and the time of its becoming a
separate member of the American family.
Its rapid growth & signal prosperity in this character have
afforded me much pleasure; which is not a little enhanced
by the enlightened patriotism which is now providing for the
State a plan of Education embracing every class of Citizens,
and every grade & department of knowledge.
No error is more certain than the one proceeding
from a hasty & superficial view of the subject, that
the people at large have no interest in the establishment
of Academies, Colleges, and Universities, where a few
only, and those not of the poorer classes can obtain
for their sons the advantages of superior education.
It is thought to be unjust that all should be taxed for the
benefit of a part, and that too the part least needing it.
If provision were not made at the same time for
every part, the objection would be a natural one.
But, besides the consideration when the higher Seminaries
belong to a plan of general education, that it is better for the
poorer classes to have the aid of the richer by a general tax
on property, than that every parent should provide at his
own expense for the education of his children, it is certain
that every Class is interested in establishments which give
to the human mind its highest improvements, and to
every Country its truest and most durable celebrity.
Learned Institutions ought to be
favorite objects with every free people.
They throw that light over the public mind which
is the best security against crafty & dangerous
encroachments on the public liberty.
They are nurseries of skillful Teachers for the
schools distributed throughout the Community.
They are themselves Schools for the particular talents
required for some of the public Trusts, on the able
execution of which the welfare of the people depends.
They multiply the educated individuals from among
whom the people may elect a due portion of their public
agents of every description; more especially of those who
are to frame the laws; by the perspicuity, the consistency,
and the stability, as well as by the just & equal spirit of
which the great social purposes are to be answered.
Without such Institutions, the more costly of which can
scarcely be provided by individual means, none but the few
whose wealth enables them to support their sons abroad,
can give them the fullest education; and in proportion
as this is done, the influence is monopolized which
superior information everywhere possesses.
At cheaper & nearer seats of Learning parents with slender
incomes may place their sons in a course of Education
putting them on a level with the sons of the richest,
While those who are without property, or with but little,
must be peculiarly interested in a System which
unites with the more Learned Institutions, a provision
for diffusing through the entire Society the education
needed for the common purposes of life.
A System comprising the Learned Institutions may be
still further recommended to the more indigent class
of Citizens by such an arrangement as was reported
to the General Assembly of Virginia in the year 1779,
by a Committee appointed to revise the laws in order
to adapt them to the genius of Republican Government.
It made a part of a “bill for the more general diffusion
of knowledge” that wherever a youth was ascertained
to possess talents meriting an education which his
parent could not afford, he should be carried forward
at the public expense from Seminary to Seminary,
to the completion of his studies at the highest.
But why should it be necessary in this case, to distinguish
the Society into classes according to their property?
When it is considered that the establishment and
endowment of Academies, Colleges, and Universities
are a provision not merely for the existing generation,
but for succeeding ones also; that in Governments
like ours a constant rotation of property results from
the free scope to industry, and from the laws of
inheritance, and when it is considered moreover,
how much of the exertions and privations of all are
meant not for themselves, but for their posterity,
there can be little ground for objections from any class to
plans of which every class must have its turn of benefits.
The rich man when contributing to a permanent plan
for the education of the poor, ought to reflect
that he is providing for that of his own descendants;
and the poor man who concurs in a provision for
those who are not poor that at no distant day
it may be enjoyed by descendants from himself.
It does not require a long life to
witness these vicissitudes of fortune.
It is among the happy peculiarities of our Union, that the
States composing it derive from their relations to each other
and to the whole, a salutary emulation, without the enmity
involved in competitions among States alien to each other.
This emulation, we may perceive, is not without its
influence in several important respects; and in none
ought it to be more felt than in the merit of diffusing
the light and the advantages of public Instruction.
In the example therefore which Kentucky is
presenting, she not only consults her own welfare,
but is giving an impulse to any of her Sisters who
may be behind her in the noble career.
Throughout the Civilized World nations are
courting the praise of fostering Science and the
useful arts, and are opening their eyes to the principles
and the blessings of Representative Government.
The American people owe it to themselves, and to the cause
of free Government, to prove by their establishments for the
advancement and diffusion of Knowledge, that their political
Institutions, which are attracting observation from every
quarter, and are respected as Models, by the new-born
States in our own Hemisphere, are as favorable to the
intellectual and moral improvement of Man, as they are
conformable to his individual & social Rights.
What spectacle can be more edifying or more seasonable,
than that of Liberty & Learning, each leaning
on the other for their mutual & surest support?
The Committee, of which your name is the first,
have taken a very judicious course in endeavoring
to avail Kentucky of the experience of elder States,
in modifying her Schools.
I enclose extracts from the laws of Virginia on that subject;
though I presume they will give little aid; the less as
they have as yet been imperfectly carried into execution.
The States where such Systems have been long
in operation will furnish much better answers to
many of the enquiries stated in your Circular.
But after all, such is the diversity of local
circumstances, more particularly as the population
varies in density & sparseness, that the details
suited to some may be little so to others.
As the population however, is becoming less & less sparse,
and it will be well in laying the foundation of a good System,
to have a view to this progressive change, much attention
seems due to examples in the Eastern States, where the
people are most compact, & where there has been the
longest experience in plans of popular education.
I know not that I can offer on the occasion any
suggestions not likely to occur to the Committee.
Were I to hazard one, it would be in favor of adding to
Reading—Writing—& Arithmetic—to which the instruction
of the poor is commonly limited, some knowledge of
Geography; such as can easily be conveyed by a
Globe & Maps, and a concise Geographical Grammar.
And how easily & quickly might a general idea even be
conveyed of the Solar System, by the aid of a
Planetarium of the Cheapest Construction.
No information seems better calculated to expand the mind
and gratify curiosity than what would thus be imparted.
This is especially the case, with what relates to the Globe
we inhabit, the Nations among which it is divided, and the
characters and customs which distinguish them.
An acquaintance with foreign Countries in this mode,
has a kindred effect with that of seeing them as travelers,
which never fails, in uncorrupted minds, to weaken local
prejudices, and enlarge the sphere of benevolent feelings.
A knowledge of the Globe & its various inhabitants,
however slight, might moreover create a taste for
Books of Travels and Voyages; out of which might
grow a general taste for History, an inexhaustible
fund of entertainment & instruction.
Any reading, not of a vicious species, must be
a good substitute for the amusements too apt
to fill up the leisure of the laboring classes.9
On 27 June 1823 Madison wrote to Thomas Jefferson about
George Washington’s writing of his famous “Farewell Address” and judicial issues:
I return the copy of your letter to Judge Johnson
enclosed to me in your favor of the instant your
statement relating to the farewell address of
General Washington is substantially correct.
If there be any circumstantial inaccuracy,
it is in imputing to him more agency in
composing the document than he probably had.
Taking for granted that it was drawn up by Hamilton,
the best conjecture is that the General put into his
hands his own letter to me suggesting his general ideas,
with the paper prepared by me in conformity with them,
and if he varied the draught of Hamilton at all,
it was by a few verbal or qualifying amendments only.
It is very inconsiderate in the friends of General Washington
to make the merit of the Address a question between him
& Col. Hamilton, & somewhat extraordinary, if
countenanced by those who possess the files of the
General where it is presumed the truth might be traced.
They ought to claim for him the merit only of cherishing the
principles & views addressed to his Country, & for the
Address itself the weight given to it by his sanction;
leaving the literary merit whatever it be to the friendly pen
employed on the occasion, the rather as it was never
understood that Washington valued himself on his writing
talent, and no secret to some that he occasionally availed
himself of the friendship of others whom he supposed
more practiced than himself in studied composition.
In a general view it is to be regretted that the
Address is likely to be presented to the public
not as the pure legacy of the Father of his Country,
as has been all along believed, but as the
performance of another held in different estimation.
It will not only lose the charm of the name
subscribed to it; but it will not be surprising
if particular passages be understood in new
senses, & with applications derived from the political
doctrines and party feelings of the discovered Author.
At some future day it may be an object with the curious to
compare the two draughts made at different epochs with
each other, and the letter of General Washington with both.
The comparison will show a greater conformity in the first
with the tenor & tone of the letter, than in the other: and
the difference will be more remarkable perhaps in what is
omitted, than in what is added in the Address as it stands.
If the solicitude of General Washington’s connexions be
such as is represented, I foresee that I shall share their
displeasure if public use be made of what passed between
him & me at the approaching expiration of his first term.
Although it be impossible to question the facts, I may be
charged with indelicacy, if not breach of confidence, in
making them known; and the irritation will be the greater, if
the Authorship of the Address continue to be claimed for the
signer of it; since the call on me on one occasion, will favor
the allegation of a call on another on another occasion.
I hope therefore that the Judge will
not understand your communication as
intended for the new work he has in hand.
I do not know that your statement would justify all the
complaint its public appearance might bring on me;
but there certainly was a species of confidence at the
time in what passed, forbidding publicity, at least till the
lapse of time should wear out the seal on it, & the truth
of history should put in a fair claim to such disclosures.
I wish the rather that the Judge may be put
on his guard, because with all his good qualities,
he has been betrayed into errors which show
that his discretion is not always awake.
A remarkable instance is his ascribing to Gouverneur Morris
the Newburg letters written by Armstrong, which has drawn
from the latter a corrosive attack which must pain his
feelings, if it should not affect his standing with the public.
Another appears in a stroke at Judge Cooper in a letter to
the Education Committee in Kentucky, which has plunged
him into an envenomed dispute with an antagonist,
the force of whose mind & pen you well know.
And what is worse than all, I perceive from one of Cooper’s
publications casually falling within my notice, that among the
effects of Judge Johnson’s excitement, he has stooped to
invoke the religious prejudices circulated against Cooper.
Johnson is much indebted to you for
your remarks on the definition of parties.
The radical distinction between them has always
been a confidence of one, and distrust of the other,
as to the capacity of mankind for self-Government.
He expected far too much in requesting
a precise demarcation of the boundary
between the Federal & the State Authorities.
The answer would have required a critical
commentary on the whole text of the Constitution.
The two general Canons you lay down would be
of much use in such a task; particularly that which
refers to the sense of the State Conventions, whose
ratifications alone made the Constitution what it is.
In exemplifying the other Canon, there are more
exceptions than occurred to you, of cases in which
the federal jurisdiction is extended to controversies
between Citizens of the same State.
To mention one only: in cases arising under a Bankrupt law,
there is no distinction between those to which Citizens
of the same & of different States are parties.
But after surmounting the difficulty in tracing
the boundary between the General & the State
Governments the problem remains for maintaining it
in practice; particularly in cases of Judicial cognizance.
To refer every new point of disagreement to the
people in Conventions would be a process too tardy,
too troublesome, & too expensive; besides its tendency
to lessen a salutary veneration for an Instrument
so often calling for such explanatory interpositions.
A paramount or even a definitive Authority in the
individual States, would soon make the Constitution
& laws different in different States, and thus destroy
that equality & uniformity of rights & duties which
form the essence of the Compact; to say nothing of the
opportunity given to the States individually of involving
by their decisions the whole Union in foreign Contests.
To leave conflicting decisions to be settled between the
Judicial parties could not promise a happy result.
The end must be a trial of strength
between the posse headed by the Marshal,
and the posse headed by the Sheriff.
Nor would the issue be safe if left to a Compromise
between the two Governments, the case of a
disagreement between different Governments
being essentially different from a disagreement
between branches of the same Government.
In the latter cases neither party being able to
consummate its will without the concurrence
of the other, there is a necessity on both to
consult and to accommodate: not so, with different
Governments each possessing every branch of power
necessary to carry its purpose into complete effect.
It here becomes a question between Independent Nations,
with no other dernier resort than physical force.
Negotiation might indeed in some instances avoid this
extremity, but how often would it happen, among so
many States, that an unaccommodating spirit in some
would render that resource unavailing.
We arrive at the agitated question whether
the Judicial Authority of the U.S. be the
constitutional resort for determining the
line between the federal & State jurisdictions.
Believing as I do that the General Convention regarded
a provision within the Constitution for deciding in a
peaceable & regular mode all cases arising in the
Course of its operation, as essential to an adequate
system of Government: that it intended the Authority
vested in the Judicial Department as a final resort in
relation to the States, for cases resulting to it in the
exercise of its functions; (the concurrence of the
Senate chosen by the State Legislatures, in appointing
the Judges, and the oaths & official tenures of these,
with the surveillance of public opinion, being relied
on as guaranteeing their impartiality); and that this
intention is expressed by the articles declaring that
the federal Constitution & laws shall be the supreme
law of the land, and that the Judicial power of the
U.S. shall extend to all cases arising under them.
Believing moreover that this was the prevailing
view of the subject when the Constitution was adopted
& put into execution; that it has so continued through
the long period which has elapsed; and that even at
this time an appeal to a national decision would prove
that no general change has taken place: thus believing
I have never yielded my original opinion indicated
in the Federalist to the ingenious reasonings of
Col. Taylor against this construction of the Constitution.
I am not unaware that the Judiciary career
has not corresponded with what was anticipated.
At one period the Judges perverted the Bench of
Justice into a rostrum for partisan harangues.
And latterly the Court by some of its decisions,
still more by extrajudicial reasonings & dicta, has
manifested a propensity to enlarge the general
Authority in derogation of the local, and to amplify its own
jurisdiction, which has justly incurred the public censure.
But the abuse of a trust does not disprove its existence.
And if no remedy for the abuse be practicable
under the forms of the Constitution, I should
prefer a resort to the nation for an amendment
of the Tribunal itself, to continual appeals from
its controverted decisions to that ultimate Arbiter.
In the year 1821 I was engaged in a correspondence
with Judge Roane, which grew out of the proceedings
of the Supreme Court of the United States.
Having said so much here I will send you a copy
of my letters to him as soon as I can have a
legible one made, that a fuller view of my
ideas with respect to them may be before you.
I agree entirely with you on the subject of seriatim
Opinions by the Judges which you have placed in
so strong a light in your letter to Judge Johnson,
whose example it seems is in favor of the practice.
An argument addressed to others, all of whose dislikes
to it are not known, may be a delicate experiment.
My particular connexion with Judge Todd, whom I
expect to see, may tempt me to touch on the subject,
and, if encouraged, to present views of it which,
through him may find the way to his intimates.
In turning over some bundles of pamphlets,
I met with several copies of a very small one which
at the desire of my political associates I threw out in 1795.
As it relates to the State of parties I enclose a Copy.
It had the advantage of being written with the subject
full & fresh in my mind, and the disadvantage of being
hurried at the close of a fatiguing Session of Congress
by an impatience to return home,
from which I was detained by that Job only.
The temper of the pamphlet is explained
if not excused by the excitements of the period.10
Madison wrote in a letter to Thomas Jefferson about the judiciary
and the “general welfare” on 17 February 1825:
I received yesterday your letters of the 12th and 15th….
It seems a strange, but it is a certain fact, that there are
several instances of distinguished politicians who reject the
general heresies of federalism, most decidedly the
amalgamating magic of the terms “General welfare,” who
yet admit the authority of Congress as to roads and canals,
which they squeeze out of the enumerated articles.
In truth, the great temptation of “utility” brought home
to local feelings, is the most dangerous snare for
Constitutional orthodoxy; and I am not sure that the
Judiciary branch of the Government is not a safer
expositor of the power of Congress, than Congress
will be when backed and even pushed on by their
constituents, as in the canal and the Missouri cases.
Were the unauthorized schemes of internal
improvement as disagreeable to a majority
of the people & of the States, as they are
deemed advantageous, who can doubt the
different reasonings and result that would
be observed within the walls of Congress?
The will of the nation being omnipotent for right,
is so for wrong also; and the will of the nation being
in the majority, the minority must submit to that danger
of oppression as an evil infinitely less than the danger
to the whole nation from a will independent of it.
I consider the question as to canals &c,. as decided,
therefore, because sanctioned by the nation under
the permanent influence of benefit to the major part
of it; and if not carried into practice, will owe its
failure to other than Constitutional obstacles.11
Thomas Jefferson and James Madison developed a broad curriculum
for the University of Virginia which opened in May 1825.
Jefferson was the first president with Madison as rector,
though Jefferson’s poor health led to his being replaced
as president by Madison in September.
Madison in a letter to Frederick Beaseley on 20 November 1825
contemplated the existence of God and infinite time and space.
I have duly received the copy of your little tract
on the proofs of the Being & Attributes of God.
To do full justice to it, would require not only a
more critical attention than I have been able to
bestow on it, but a resort to the celebrated work
of Dr. Clarke, which I read fifty years ago only,
and to that of Dr. Waterland also which I never read.
The reasoning that could satisfy such a mind as that of
Clarke ought certainly not to be slighted in the discussion.
And this belief in a God All-powerful, wise & good,
is so essential to the moral order of the world & to
the happiness of man, that arguments which enforce
it cannot be drawn from too many sources, nor
adapted with too much solicitude to the different
characters & capacities to be impressed with it.
But whatever effect may be produced on some
minds by the more abstract train of ideas which
you so strongly support, it will probably always
be found that the course of reasoning from the effect
to the cause, “from nature to nature’s God,” will be
of the more universal & more persuasive application.
The finiteness of the Human understanding
betrays itself on all subjects; but more especially
when it contemplates such as involve infinity.
What may safely be said seems to be, that the infinity
of time & space forces itself on our conception, a
limitation of either being inconceivable: that the mind
prefers at once the idea of a self-existing cause to that
of an infinite series of causes & effects which augments,
instead of avoiding difficulty: and that it finds more facility
in assenting to the self-existence of an invisible cause
possessing infinite power, wisdom & goodness, than to
the self-existence of the universe, visibly destitute of
those attributes, and which may be the effect of them.
In this comparative facility of conception
& belief, all philosophical reasoning on the
subject must perhaps terminate.12
In 1827 Madison helped Jared Sparks by letting him use
more than twenty letters from George Washington which
had not been copied into the first President’s letter books.
By 1830 Madison had provided many letters from Thomas Jefferson,
James Monroe, Edmund Pendleton, and Edmund Randolph.
Madison on 28 August 1830 wrote this long letter to Edward Everett
on the Federal Government and State Constitutions:
I have duly received your letter in which you refer to the
"nullifying doctrine" advocated, as a Constitutional right
by some of our distinguished fellow citizens; and to the
proceedings of the Virginia Legislature in -98 & 99,
as appealed to in behalf of that doctrine;
and you express a wish for my ideas on those subjects.
I am aware of the delicacy of the task in some respects,
and the difficulty in every respect of doing full justice to it.
But having in more than one instance complied with a
like request from other friendly quarters, I do not
decline a sketch of the views which I have been led
to take of the doctrine in question, as well as some
others connected with them; and of the grounds from
which it appears, that the proceedings of Virginia have
been misconceived by those who have appealed to them.
In order to understand the true character of the
Constitution of the United States, the error not
uncommon must be avoided, of viewing it through
the medium, either of a Consolidated Government,
or of a Confederated Government, whilst it is
neither the one nor the other; but a mixture of both.
And having in no model, the similitudes and analogies
applicable to other systems of Government, it must
more than any other be its own interpreter
according to its text and the facts of the case.
From these it will be seen, that the
characteristic peculiarities of the Constitution are
1. the mode of its formation.
2. the division of the supreme powers of Government
between the States in their united capacity,
and the States in their Individual capacities.
1. It was formed not by the Governments of the
component States, as the Federal Government for which
it was substituted, was formed: nor was it formed by a
majority of the people of the United States as a single
community in the manner of a consolidated government.
It was formed by the States, that is by the people
in each of the States, acting in their highest sovereign
capacity; and formed consequently by the same
authority which formed the State Constitutions.
Being thus derived from the same source as the
Constitutions of the States, it has within each State the
same authority as the Constitution of the State; and is
as much a Constitution in the strict sense of the term
within its prescribed sphere, as the Constitutions
of the States are within their respective spheres.
But with this obvious and essential difference,
that being a compact among the States in their highest
sovereign capacity, and constituting the people thereof
one people for certain purposes, it cannot be altered
or annulled at the will of the States individually, as the
Constitution of a State may be at its individual will.
2. And that it divides the Supreme powers of Government
between the Government of the United States and the
Governments of the Individual States, is stamped on the
face of the Instrument; the powers of war and of taxation,
of commerce and of treaties, and other enumerated
powers vested in the government of the United States,
being of as high and sovereign a character, as any
of powers reserved to the State Governments.
Nor is the Government of the United States created
by the Constitution, less a Government in the strict
sense of the term within the sphere of its powers,
than the Governments created by the Constitutions
of the States are within their several spheres.
It is like them organized into a legislative
Executive and Judiciary Departments.
It operates like them directly on persons and
things, and like them it has at command a physical
force for executing the powers committed to it.
The concurrent operation in certain cases is one of
the features marking the peculiarity of the system.
Between these different Constitutional governments,
the one operating in all the States, the others operating
separately in each with the aggregate powers of
government divided between them, it could not escape
attention, that controversies would arise concerning
the boundaries of jurisdiction; and that some
provision ought to be made for such occurrences.
A political system that does not provide for a peaceable and
authoritative termination of occurring controversies, would
not be more than the shadow of a Government; the object
and end of a real government being the substitution of
law and order for uncertainty, confusion and violence.
That to have left a final decision in such cases to each
of the States, then thirteen and already twenty-four,
could not fail to make the Constitution and laws of the
United States different in different States was obvious;
and not less obvious, that this diversity of independent
decisions must altogether distract the Government of
the Union and speedily put an end to the Union itself.
A uniform authority of the laws is in itself a vital principle.
Some of the most important laws
could not be partially executed.
They must be executed in all the States,
or they could be duly executed in none.
An impost or an excise for example, if not in force
in some States, would be defeated in others.
It is well known that this was among the lessons
of experience, which had a primary influence
in bringing about the existing Constitution.
A loss of its general authority would moreover revive the
exasperating questions between the States holding ports for
foreign commerce and the adjoining States without them;
to which are now added all the inland States necessarily
carrying on their foreign commerce through other States.
To have made the decisions under the authority of the
Individual States co-ordinate in all cases with decisions
under the authority of the United States would unavoidably
produce collisions incompatible with the peace of society,
and with that regular and efficient administration,
which is of the essence of free governments.
Scenes could not be avoided in which a Ministerial officer
of the United States and the correspondent officer of
an individual State would have rencounters in executing
conflicting decrees; the result of which would depend
on the comparative force of the local posse attending
them; and that a casualty depending on the political
opinions and party feelings in different States.
To have referred every clashing decision under the two
authorities for a final decision to the States as parties to
the Constitution would be attended with delays with
inconveniences and with expenses, amounting to a
prohibition of the expedient; not to mention its tendency
to impair the salutary veneration for a system requiring
such frequent interpositions, nor the delicate questions
which might present themselves as to the form of
stating the appeal, and as to the Quorum for deciding it.
To have trusted to negotiation for adjusting disputes
between the Government of the United States and the
State Governments, as between Independent and separate
Sovereignties, would have lost sight altogether of a
Constitution and Government for the Union;
and opened a direct road from a failure of that
resort to the ultima ratio between nations
wholly independent of and alien to each other.
If the idea had its origin in the process of adjustment
between separate branches of the same Government,
the analogy entirely fails.
In the case of disputes between independent parts
of the same Government, neither part being able
to consummate its will, nor the Government to
proceed without a concurrence of the parts,
necessity brings about an accommodation.
In disputes between a State Government and the
Government of the United States, the case is
practically as well as theoretically different;
each party possessing all the departments of an organized
government, legislative, executive, and judiciary; and
having each a physical force to support its pretensions.
Although the issue of negotiation might sometimes avoid
this extremity, how often would it happen among so
many States, that an unaccommodating spirit in
some would render that resource unavailing?
A contrary supposition would not accord with a knowledge
of human nature or the evidence of our own political history.
The Constitution not relying on any of the preceding
modifications, for its safe and successful operation,
has expressly declared on one hand:
1. "that the Constitution and the laws made in pursuance
thereof and all treaties made under the authority of the
United States shall be the Supreme law of the land;
2. that the Judges of every State shall be bound thereby,
anything in the Constitution and laws of any State
to the contrary notwithstanding;
3. that the Judicial power of the United States shall
extend to all cases in law and equity arising under
the Constitution, the laws of the United States,
and treaties made under their authority &ca."
On the other hand, as a security of the rights and
powers of the States in their individual capacities
against an undue preponderance of the powers
granted to the Government over them in their
united capacity, the Constitution has relied on:
1. the responsibility of the Senators and Representatives
in the Legislature of the United States to the
Legislatures and people of the States.
2. the responsibility of the President to the
people of the United States; and
3. the liability of the Executive and judiciary functionaries
of the United States to impeachment by the Representatives
of the people of the States in one branch of the Legislature
of the United States, and trial by the Representatives
of the States in the other branch: the State functionaries,
Legislative, Executive, and Judiciary, being at the same
time in their appointment and responsibility altogether
independent of the agency or authority of the United States.
How far this structure of the Government of the
United States be adequate and safe for its objects,
time alone can absolutely determine.
Experience seems to have shown that whatever may grow
out of future stages of our national career, there is, as yet a
sufficient control in the popular will over the Executive and
Legislative Departments of the Government.
When the Alien and Sedition laws were passed in
contravention of the opinions and feelings of the community,
the first elections that ensued, put an end to them.
And whatever may have been the character of other
acts, in the judgment of many of us, it is but true,
that they have generally accorded with the views
of a majority of the States and of the people.
At the present day it seems well understood, that the
laws which have created most dissatisfaction, have
had a like sanction without doors; and that whether
continued varied or repealed, a like proof will be
given of the sympathy and responsibility of the
Representative body to the Constituent body.
Indeed the great complaint now is against the
results of this sympathy and responsibility
in the Legislative policy of the nation.
With respect to the Judicial power of the United States,
and the authority of the Supreme Court in relation to the
boundary of Jurisdiction between the Federal and the State
Governments, I may be permitted to refer to the XXXIX
number of the "Federalist" for the light in which the
subject was regarded by its writer at the period when
the Constitution was depending; and it is believed that the
same was the prevailing view then taken of it, that the
same view has continued to prevail, and that it does so
at this time notwithstanding the eminent exceptions to it.
But it is perfectly consistent with the concession of this
power to the Supreme Court in cases falling within the
course of its functions to maintain that the power
has not always been rightly exercised.
To say nothing of the period, happily a short one,
when Judges in their Seats did not abstain from
intemperate and party harangues, equally at variance
with their duty and their dignity; there have been
occasional decisions from the Bench, which have
incurred serious and extensive disapprobation.
Still it would seem, that with but few exceptions
the course of the Judiciary has been hitherto
sustained by the predominant sense of the Nation.
Those who have denied or doubted the supremacy of the
Judicial power of the United States, and denounce at the
same time a nullifying power in a State, seem not to have
sufficiently adverted to the utter inefficiency of a supremacy
in a law of the land without a supremacy in the exposition
and execution of the law; nor to the destruction of all
equipoise between the Federal Government and the State
Governments if, while the Functionaries of the Federal
Government are directly or indirectly elected by and
responsible to the States, and the Functionaries of the
States are in their appointment and responsibility wholly
independent of the United States, no constitutional control
of any sort belonged to the United States over the States.
Under such an organization it is evident that it would
be in the power of the States individually to pass
unauthorized laws, and to carry them into complete
effect, anything in the Constitution and laws of the
United States to the contrary notwithstanding.
This would be a nullifying power in its plenary
character; and whether it had its final effect,
through the Legislative, Executive or Judiciary
organ of the State, would be equally fatal to the
constituted relation between the two Governments.
Should the provisions of the Constitution as here
reviewed, be found not to secure the Government and
rights of the States against usurpations and abuses on the
part of the United States, the final resort within the purview
of the Constitution, lies in an amendment of the Constitution
according to a process applicable by the States.
And in the event of a failure of every Constitutional
resort, and an accumulation of usurpations and abuses,
rendering passive obedience and non-resistance a
greater evil, than resistance and revolution, there can
remain but one resort, the last of all; an appeal from
the cancelled obligations of the Constitutional compact
to original rights and the law of self-preservation.
This is the ultima ratio under all Governments, whether
consolidated, confederated, or a compound of both; and it
cannot be doubted that a single member of the Union in the
extremity supposed, but in that only would have a right,
as an extra and ultra-constitutional right to make the appeal.
This brings us to the expedient lately advanced, which
claims for a single State a right to appeal against an
exercise of power by the Government of the United States
decided by the State to be unconstitutional to the parties
to the Constitutional compact; the decision of the State
to have the effect of nullifying the act of the Government
of the United States, unless the decision of the
States be reversed by three fourths of the parties.
The distinguished names and high authorities which
appear to have assented and given a practical scope
to this doctrine, entitle it to a respect which it
might be difficult otherwise to feel for it.
If the doctrine were to be understood as requiring
the three fourths of the States to sustain, instead of that
proportion to reverse the decision of the appealing State,
the decision to be without effect during the appeal,
it would be sufficient to remark, that this extra
constitutional course might well give way to that
marked out by the Constitution, which authorizes
two thirds of the States to institute and three fourths
to effectuate an amendment of the Constitution
establishing a permanent rule of the highest authority
in place of an irregular precedent of construction only.
But it is understood that the nullifying doctrine imports
that the decision of the State is to be presumed valid,
and that it overrules the law of the United States
unless overruled by three fourths of the States.
Can more be necessary to demonstrate the
inadmissibility of such a doctrine, than that it puts it
in the power of the smallest fraction over one fourth
of the United States, that is of seven states out of
twenty-four to give the law and even the Constitution
to seventeen States; each of the seventeen having as
parties to the Constitution an equal right with each of
the seven to expound it, and to insist on the exposition.
That the seven might in particular instances be right,
and the seventeen wrong is more than possible.
But to establish a positive and permanent rule giving such
a power to such a minority over such a majority would
overturn the first principle of free government, and in
practice necessarily overturn the government itself.
It is to be recollected that the Constitution was proposed
to the people of the States as a whole, and unanimously
adopted by the States as a whole, it being a part of the
Constitution that not less than three fourths of the States
should be competent to make any alteration
in what had been unanimously agreed to.
So great is the caution on this point, that in two cases
where peculiar interests were at stake, a proportion
even of three fourths are distrusted, and
unanimity required to make an alteration.
When the Constitution was adopted as a whole,
it is certain that there are many parts which, if separately
proposed, would have been promptly rejected.
It is far from impossible, that every part of a Constitution
might be rejected by a majority, and yet taken
together as a whole, be unanimously accepted.
Free Constitutions will rarely if ever be formed
without reciprocal concessions; without articles
conditioned on and balancing each other.
Is there a Constitution of a single State out of the
Twenty-four, that would bear the experiment
of having its component parts submitted to
the people and separately decided on?
What the fate of the Constitution of the United States
would be if a small proportion of the States could
expunge parts of it particularly valued by a large majority,
can have but one answer.
The difficulty is not removed by limiting the
doctrine to cases of construction.
How many cases of that sort involving cardinal
provisions of the Constitution have occurred?
How many now exist?
How many may hereafter spring up?
How many might be ingeniously created, if entitled
to the privilege of a decision in the mode proposed?
Is it certain that the principle of that mode
would not reach further than is contemplated.
If a single State can of right require three fourths of its
co-states to overrule its exposition of the Constitution,
because that proportion is authorized to amend it,
would the plea be less plausible that, as the
Constitution was unanimously established,
it ought to be unanimously expounded?
The reply to all such suggestions seems to be
unavoidable and irresistible; that the Constitution is a
compact, that its text is to be expounded according to the
provisions for expounding it—making a part of the compact;
and that none of the parties can rightfully renounce
the expounding provision more than any other part.
When such a right accrues, as may accrue,
it must grow out of abuses of the compact,
releasing the sufferers from their fealty to it.
In favor of the nullifying claim for the States,
individually, it appears as you observe that the
proceedings of the Legislature of Virginia in 98 & 99
against the Alien and Sedition Acts are much dwelt upon.
It may often happen, as experience proves, that
erroneous constructions not anticipated, may not be
sufficiently guarded against in the language used;
and it is due to the distinguished individuals who have
misconceived the intention of those proceedings,
to suppose that the meaning of the Legislature,
though well comprehended at the time, may not
now be obvious to those unacquainted with
the contemporary indications and impressions.
But it is believed that by keeping in view the distinction
between the Governments of the States and the States in
the sense in which they were parties to the Constitution;
between the rights of the parties in their concurrent and in
their individual capacities; between the several modes and
objects of interposition against the abuses of power;
and especially between interpositions within the purview
of the Constitution, and interpositions appealing from
the Constitution to the rights of nature paramount to all
Constitutions; with these distinctions kept in view, and
an attention, always of explanatory use, to the views and
arguments which were combated, a confidence is felt,
that the Resolutions of Virginia as vindicated in the
Report on them will be found entitled to an exposition,
showing a consistency in their parts, and an inconsistency
of the whole with the doctrine under consideration.
That the Legislature could not have intended
to sanction such a doctrine, is to be inferred
from the debates in the House of Delegates,
and from the address of the two Houses,
to their Constituents on the subject of the Resolutions.
The tenor of the debates, which were ably conducted and
are understood to have been revised for the press by most
if not all of the speakers, discloses no reference whatever
to a constitutional right in an individual State, to arrest
by force the operation of a law of the United States.
Concert among the States for redress against the Alien and
Sedition laws, as acts of usurped power, was a leading
sentiment; and the attainment of a concert, the immediate
object of the course adopted by the Legislature, which
was that of inviting the other States "to concur, in
declaring the acts to be unconstitutional, and to
co-operate by the necessary and proper measures, in
maintaining unimpaired the authorities rights and liberties
reserved to the States respectively and to the people."
That by the necessary and proper measures to be
concurrently and co-operatively taken, were meant
measures known to the Constitution, particularly the
ordinary control of the people and Legislatures of the States
over the Government of the United States, cannot
be doubted; and the interposition of this control,
as the event showed was equal to the occasion.
(See the concluding Resolution of -98.)
It is worthy of remark and explanatory of the
intentions of the Legislature, that the words
"not law, but utterly null, void, and of no force or effect"
which had followed in one of the Resolutions, the word
"unconstitutional," were struck out by common consent.
Though the words were in fact but synonymous with
"unconstitutional;" yet to guard against a misunderstanding
of this phrase as more than declaratory of opinion, the word
unconstitutional, alone was retained,
as not liable to that danger.
The published Address of the Legislature to
the people their Constituents affords another
conclusive evidence of its views.
The address warns them against the encroaching spirit
of the General Government, argues the unconstitutionality
of the Alien and Sedition Acts, points to other instances
in which the constitutional limits had been overleaped;
dwells on the dangerous mode of deriving power by
implication; and in general presses the necessity of watching
over the consolidating tendency of the Federal policy.
But nothing is said that can be understood to look to
means of maintaining the rights of the States beyond
the regular ones within the forms of the Constitution.
If any farther lights on the subject could be needed,
a very strong one is reflected in the answers to the
Resolutions by the States which protested against them.
The main objection of these beyond a few general
complaints of the inflammatory tendency of the Resolutions,
was directed against the assumed authority of a
State Legislature to declare a law of the United States
unconstitutional, which they pronounced an unwarrantable
interference with the exclusive jurisdiction
of the Supreme Court of the United States.
Had the Resolutions been regarded as avowing
and maintaining a right in an individual State
to arrest by force the execution of a law of the
United States, it must be presumed that it would
have been a conspicuous object of their denunciation.13
On 2 April 1833 Madison wrote this letter to Henry Clay:
Accept my acknowledgements for the copy
of your Speech on the bill modifying the Tariff.
I need not repeat what is said by all, on the ability
and advantage with which the Subject was handled.
It has certainly had the effect of an Anodyne on the
feverish excitement under which the public mind
was laboring; & a relapse may happily not ensue.
There is no certainty however that a surplus
revenue will not revive the difficulty of adjusting
an impost to the claims of the manufacturing
and the feelings of the agricultural states.
The effect of a reduction, including the protected
articles on the manufacturers is manifest: and a
discrimination in their favor will besides the complaint
of inequality, exhibit the protective principle without
disguise to the protestors against its constitutionality.
An alleviation of the difficulty may perhaps be found in
such an apportionment of the tax on the protected articles
most consumed in the South & on the unprotected most
consumed in the North, as will equalize the burden between
them and limit the advantage of the latter to the benefits
flowing from a location of the manufacturing Establishments.
May there not be a more important alleviation
in Embryo; an assimilation of the employment of
labor in the South to its employment in the North.
A difference and even a contrast in that respect is
at the bottom of the discords, which have prevailed;
and would so continue until the manufactures of the
North could without a bounty take the place of the foreign
in supplying the South; in which event the source of
discord would become a bond of interest; and the
difference of pursuits more than equivalent to a similarity.
In the meantime an advance towards the
latter must have an alleviating tendency.
And does not this advance present itself in the certainty
that unless agriculture can find new markets for its
products or new products for its markets, the rapid
increase of slave labor & the still more rapid increase
of its fruits must divert a large portion of it from the
plough & the Hoe to the loom & the Workshop.
When we can no longer convert our flour, tobacco,
Cotton & rice into a supply of our habitual wants
from abroad, labor must be withdrawn from
those articles and made to supply them at home.
It is painful to turn from anticipations of this sort,
to the prospect opened by the torch of discord
bequeathed by the Convention of South Carolina
to its country; by the insidious exhibitions of a
permanent incompatibility and even hostility of
interests between the South & the North; and by
the contagious zeal in vindicating & varnishing the
doctrines of Nullification & Secession; the tendency
of all of which, whatever be the intention, is to create a
disgust with the Union and then to open the way out of it.
We must oppose to this aspect of things a
confidence, that as the gulf is approached,
the deluded will recoil from its horrors, and that the
deluders, if not themselves sufficiently startled, will
be abandoned & overwhelmed by their followers.14
In 1834 James Madison wrote his “Advice to my Country”
which was not to be released until after his death:
As this advice, if it ever see the light will not do it
till I am no more, it may be considered as issuing
from the tomb where truth alone can be respected,
and the happiness of man alone consulted.
It will be entitled therefore to whatever weight can be
derived from good intentions, and from the experience
of one, who has served his Country in various stations
through a period of forty years, who espoused in his
youth and adhered through his life to the cause of its
liberty, and who has borne a part in most of the great
transactions which will constitute epochs of its destiny.
The advice nearest to my heart and
deepest in my convictions is that the Union
of the States be cherished & perpetuated.
Let the open enemy to it be regarded as a Pandora
with her box opened; and the disguised one, as the
Serpent creeping with his deadly wiles into Paradise.15
In April 1835 Madison prepared his last will so that
his wife Dolley would have the wealth from his collected papers,
and he also left money to the American Colonization Society,
the University of Virginia, and Princeton where he went to school.
Dolley agreed not to break up families by selling slaves.
In 1836 there came a time when James Madison could not walk.
Presidents John Adams and Thomas Jefferson had died on 4 July 1826,
the 50th anniversary of the Declaration of Independence,
and President James Monroe died on 4 July 1831.
Madison turned 85 on 16 March 1836, and he
was hoping that he too could die on July 4.
On June 27 while in pain he dictated for several hours
his gratitude for a dedication of a book to him.
On June 28 he was having trouble eating his breakfast,
and his niece asked what was the trouble.
His last words before he died were,
“Nothing more than a change of mind, my dear.”16
Notes
1. The Papers of James Madison: Retirement Series, Volume 1 4 March 1817—
31 January 1820 ed. David B. Mattern, p. 76-77.
2. Ibid., p. 166-167.
3. Ibid., p. 190-191.
4. Ibid., p. 384-385.
5. Ibid., p. 415.
6. Writings by James Madison, p. 733-737.
7. Ibid., p. 723-728.
8. Letters and other Writings of James Madison, Volume III 1816—1828, p. 217-222.
9. From James Madison to William T. Barry, 4 August 1822 (Online).
10. Letters and other Writings of James Madison, Volume III 1816—1828, p. 323-328.
11. Ibid., p. 483.
12. From James Madison to Frederick Beasley, 20 November 1825 (Online).
13. Writings by James Madison, p. 842-852.
14. James Madison to Henry Clay, 2 April 1833 (Online).
15. James Madison: Advice to my Country c. 1834 (Online).
16. James Madison: A Biography by Ralph Ketcham, p. 670.