Report of 1800
Encyclopedia
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
arguing for the sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
of the individual states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
under the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
and against the Alien and Sedition Acts
Alien and Sedition Acts
The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution's reign of terror and during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...
. Adopted by the Virginia General Assembly
Virginia General Assembly
The Virginia General Assembly is the legislative body of the Commonwealth of Virginia, and the oldest legislative body in the Western Hemisphere, established on July 30, 1619. The General Assembly is a bicameral body consisting of a lower house, the Virginia House of Delegates, with 100 members,...
in January 1800, the Report amends arguments from the 1798 Virginia Resolutions and attempts to resolve contemporary criticisms against the Resolutions. The Report was the last important explication of the Constitution produced before the 1817 Bonus Bill
Bonus Bill of 1817
The Bonus Bill of 1817 was proposed legislation introduced by John C. Calhoun to provide a federal highway linking the East and South to the West using the earnings bonus from the Second Bank of the United States. Opponents feared that providing the means for settlers to travel would drain their...
veto message by Madison, who has come to be regarded as the "Father of the Constitution."
The arguments made in the Resolutions and the Report were later used frequently during the nullification crisis
Nullification Crisis
The Nullification Crisis was a sectional crisis during the presidency of Andrew Jackson created by South Carolina's 1832 Ordinance of Nullification. This ordinance declared by the power of the State that the federal Tariff of 1828 and 1832 were unconstitutional and therefore null and void within...
of 1832, when South Carolina
South Carolina
South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
declared federal tariff
Tariff
A tariff may be either tax on imports or exports , or a list or schedule of prices for such things as rail service, bus routes, and electrical usage ....
s to be unconstitutional and void within the state. Madison rejected the concept of nullification and the notion that his arguments supported such a practice. Whether Madison's theory of Republicanism
Republicanism
Republicanism is the ideology of governing a nation as a republic, where the head of state is appointed by means other than heredity, often elections. The exact meaning of republicanism varies depending on the cultural and historical context...
really supported the nullification movement, and more broadly whether the ideas he expressed between 1798 and 1800 are consistent with his work before and after this period, are the main questions surrounding the Report in the modern literature.
Background
Madison, a member of the Democratic-Republican PartyDemocratic-Republican Party (United States)
The Democratic-Republican Party or Republican Party was an American political party founded in the early 1790s by Thomas Jefferson and James Madison. Political scientists use the former name, while historians prefer the latter one; contemporaries generally called the party the "Republicans", along...
, was elected to the Democratic-Republican-dominated Virginia General Assembly from Orange County
Orange County, Virginia
As of the census of 2000, there were 25,881 people, 10,150 households, and 7,470 families residing in the county. The population density was 76 people per square mile . There were 11,354 housing units at an average density of 33 per square mile...
in 1799. A major item on his agenda was the defense of the General Assembly's 1798 Virginia Resolutions, of which Madison had been the draftsman. The Resolutions, usually discussed together with Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
's contemporaneous Kentucky Resolutions, were a response to various perceived outrages perpetrated by the Federalist-dominated national government. The most significant of these were the Alien and Sedition Acts
Alien and Sedition Acts
The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution's reign of terror and during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...
, four laws that allowed the President to deport aliens
Alien (law)
In law, an alien is a person in a country who is not a citizen of that country.-Categorization:Types of "alien" persons are:*An alien who is legally permitted to remain in a country which is foreign to him or her. On specified terms, this kind of alien may be called a legal alien of that country...
at will, required a longer period of residence before aliens could become citizens, and made it a crime to publish malicious or defamatory material against the government or its officials. Democratic-Republicans were outraged by the legislation, and Madison and Jefferson drafted the highly critical Resolutions adopted in response by the Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
and Kentucky
Kentucky
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
state legislatures.
The Virginia and Kentucky Resolutions
Kentucky and Virginia Resolutions
The Kentucky and Virginia Resolutions were political statements drafted in 1798 and 1799, in which the Kentucky and Virginia legislatures took the position that the federal Alien and Sedition Acts were unconstitutional...
had in the year since publication received highly critical replies from state legislatures. Seven states formally responded to Virginia and Kentucky by rejecting the Resolutions and three other states passed resolutions expressing disapproval, with the other four states taking no action. No other state endorsed the Resolutions. The reason for the criticism was that the General Assembly, led in the effort by state-sovereignty advocate John Taylor of Caroline
Caroline County, Virginia
Caroline County is a county located in the Commonwealth of Virginia. As of 2010, the population was 28,545. Its county seat is Bowling Green. Caroline County is also home to The Meadow stables, the birthplace of the renowned racehorse Secretariat, winner of the 1973 Kentucky Derby, Preakness and...
, had put a state-sovereignty spin on the Virginia Resolutions of 1798 despite Madison's hopes. These replies contended that the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
had the ultimate responsibility for deciding whether federal laws were constitutional, and that the Alien and Sedition Acts were constitutional and necessary. The Federalists accused the Democratic-Republicans of seeking disunion, even contemplating violence. At the time, some leading Virginia Democratic-Republican figures such as Rep. William Branch Giles (in public) and Taylor (in private) actually were contemplating disunion, and the Virginia General Assembly chose this juncture for finally constructing a new state armory in Richmond, so there was some truth to the charge.
Jefferson, the leader of the Democratic-Republican Party and then–Vice President
Vice President of the United States
The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...
, wrote to Madison in August 1799 outlining a campaign to strengthen public support for the principles expressed in the Virginia and Kentucky Resolutions of 1798 (commonly referred to as "the principles of '98"):
In response to this letter, Madison visited Jefferson at Monticello
Monticello
Monticello is a National Historic Landmark just outside Charlottesville, Virginia, United States. It was the estate of Thomas Jefferson, the principal author of the United States Declaration of Independence, third President of the United States, and founder of the University of Virginia; it is...
during the first week of September. Their discussion was important in that it persuaded Jefferson to depart from his radical stance on dissociation from the Union, which is expressed at the end of the excerpt above. At the very least, Virginia or Kentucky taking such a stance publicly would have justified the Federalist attacks against the secessionist tendencies of the Democratic-Republicans. Madison won over Jefferson, who shortly thereafter wrote to Wilson Cary Nicholas
Wilson Cary Nicholas
Wilson Cary Nicholas was an American politician who served in the U.S. Senate from 1799 to 1804 and was the 19th Governor of Virginia from 1814 to 1816....
that: "From [this position] I retreat readily, not only in deference to [Madison's] judgment but because as we should never think of separation but for repeated and enormous violations, so these, when they occur, will be cause enough of themselves." Adrienne Koch and Harry Ammon, examining Jefferson's later writing, conclude that Madison had a significant role "in softening Jefferson's more extreme views."
Montpelier (James Madison)
Montpelier was a large tobacco plantation and estate of the prominent Madison family of Virginia planters, including James Madison, fourth President of the United States. The manor house of Montpelier is four miles south of Orange, Virginia, and the estate currently covers some...
on his way to Philadelphia, the national capital, for the winter session of the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
. However, James Monroe
James Monroe
James Monroe was the fifth President of the United States . Monroe was the last president who was a Founding Father of the United States, and the last president from the Virginia dynasty and the Republican Generation...
, who would become Governor of Virginia before the end of the year, visited Jefferson at Monticello and cautioned him against meeting with Madison, since another meeting between two of the most important Democratic-Republican leaders would provoke significant public comment. The task of writing the Virginia Report was left solely to Madison. Jefferson underlined the importance of this work in a November 26 letter to Madison in which he identified "protestations against violations of the true principles of our constitution" as one of the four primary elements of the Democratic-Republican Party plan.
Production and passage
The Assembly session began in early December. Once at RichmondRichmond, Virginia
Richmond is the capital of the Commonwealth of Virginia, in the United States. It is an independent city and not part of any county. Richmond is the center of the Richmond Metropolitan Statistical Area and the Greater Richmond area...
, Madison began drafting the Report, though he was delayed by a weeklong battle with dysentery. On December 23, Madison moved for the creation of a special seven-member committee with himself as chairman to respond to "certain answers from several of the states, relative to the communications made by the Virginia legislature at their last session." The committee members were Madison, John Taylor
John Taylor of Caroline
John Taylor usually called John Taylor of Caroline was a politician and writer. He served in the Virginia House of Delegates and in the United States Senate . He wrote several books on politics and agriculture...
, William Branch Giles
William Branch Giles
William Branch Giles ; the name is pronounced jyles) was an American statesman, long-term Senator from Virginia, and the 24th Governor of Virginia...
, George Keith Taylor, John Wise, John Mercer, and William Daniel. The next day, Christmas Eve, the committee produced a first version of the Report. The measure came before the House of Delegates, the lower house of the General Assembly, on January 2.
Though certain to pass due to the Democratic-Republican majority, which had recently been solidified by the election of a Democratic-Republican clerk and speaker of the House, the Report was debated for five days. The main point of contention was the meaning of the third of the Virginia Resolutions:
This resolution had been the principal target of the Federalist attack on the Resolutions. Particularly at issue was the sense in which the states were parties to the federal compact. The Report was ultimately amended to provide greater clarity on this issue by emphasizing that when the Virginians claimed that the "states" were parties to the federal Constitution, the referent of the word "state" was the sovereign people of the particular state. Thus, to say that "the state of Virginia ratified the Constitution" was to say that the sovereign people of Virginia ratified the Constitution. The amended Report passed the House of Delegates on January 7 by a margin of 60 to 40. At some point in the next two weeks, it passed the Senate by a margin of 15 to 6.
The Report was received warmly by Virginia Democratic-Republicans. The General Assembly arranged for five thousand copies to be printed and distributed in the state, but there was not much public response to the Report, and it appears to have had relatively little impact on the presidential election of 1800
United States presidential election, 1800
In the United States Presidential election of 1800, sometimes referred to as the "Revolution of 1800," Vice-President Thomas Jefferson defeated President John Adams. The election was a realigning election that ushered in a generation of Democratic-Republican Party rule and the eventual demise of...
(which was, nevertheless, a major victory for the Democratic-Republicans and a repudiation of Federalist policies). Parties outside Virginia seemed uninterested in the rehashing of the 1798 Resolutions, and in other states there was very little public comment. Jefferson eagerly sought copies for distribution to Democratic-Republican members of Congress departing for their home states, and when they failed to arrive he entreated Monroe for at least one copy that he could reproduce. Despite Jefferson's approval of and attempt to distribute Madison's work, the national reaction was tepid. Though it had little impact on the immediate election, Madison's Report clarified the legal argument against the Acts and for states' rights
States' rights
States' rights in U.S. politics refers to political powers reserved for the U.S. state governments rather than the federal government. It is often considered a loaded term because of its use in opposition to federally mandated racial desegregation...
in general, particularly in its advancement of the Tenth Amendment
Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...
rather than the Ninth
Ninth Amendment to the United States Constitution
The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.-Text:-Adoption:When the U.S...
as the main bulwark against federal encroachment on state autonomy.
Argument
The general purpose of the Report was the affirmation and expansion of the principles expressed in the Virginia Resolutions. The first major goal of the Resolutions was to bring about the repeal of the Alien and Sedition Acts by generating public opposition that would be expressed through the state legislatures. Madison sought to accomplish this by demonstrating conclusively that the Acts violated the constitution. Laying into the Acts in his Report, Madison described many breaches of constitutional limits. The Alien Act granted the President the unenumerated power of deporting friendly aliens. Contrary to the Sedition Act, the federal government had no power to protect officials from dissent or libelous attack, beyond the protection it accorded to every citizen; indeed, such special intervention against the press was "expressly forbidden by a declaratory amendment to the constitution." As well, Madison attacked Federalist carriage laws and bank laws as unconstitutional.To remedy the defects revealed by the passage of the Alien and Sedition Acts, Madison called for citizens to have an absolute right to free speech. Madison writes that the ability to prosecute speech amounts to "a protection of those who administer the government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it." Freedom of the press
Freedom of the press
Freedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...
was necessary, because "chequered as it is with abuses, the world is indebted to the press for all the triumphs which have been gained by reason and humanity over error and oppression." The Report supported a strict interpretation of the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. While the Federalists interpreted the amendment as limiting the power of Congress over the press, but implying that such power existed, Madison argued that the First Amendment wholly prohibited Congress from any interference with the press.
More generally, the Report made the argument in favor of the sovereignty of the individual states, for which it is best known. The basic message was that the states were the ultimate parties constituting the federal compact, and that therefore the individual states were ultimate arbiters of whether the compact had been broken by the usurpation of power. This doctrine is known as the compact theory
Compact theory
Compact theory is a theory relating to the development of some federal constitutions.-Compact theory in the United States:Regarding the Constitution of the United States, the compact theory holds that the nation was formed through a compact agreed upon by all the states, and that the federal...
. It was the presence of this argument in the Resolutions that had allowed the Federalists to paint the Democratic-Republicans as leaning toward secession; in the amended Report the line is moderated, with an emphasis that it is the states as political societies of the people (and therefore, one reads in, not the state legislatures alone) which possess this power. Either formulation would help the Democratic-Republican cause by refuting the finality of any constitutional interpretation advanced by the Congress and federal judiciary, both of which were dominated by Federalists.
In defense of Virginia Democratic-Republicans and the Resolutions, Madison emphasized that even if one disagreed with the compact theory, the Virginia Resolutions and the Report of 1800 themselves were simply protests, which states were surely entitled to produce. Madison indicated that a declaration of unconstitutionality would be an expression of opinion, with no legal force. The purpose of such a declaration, said Madison, was to mobilize public opinion. Madison indicated that the power to make binding constitutional determinations remained in the federal courts:
It has been said, that it belongs to the judiciary of the United States, and not the state legislatures, to declare the meaning of the Federal Constitution. . . .
[T]he declarations of [the citizens or the state legislature], whether affirming or denying the constitutionality of measures of the Federal Government . . . are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.
Madison argued that a state, after declaring a federal law unconstitutional, could take action by communicating with other states, attempting to enlist their support, petitioning Congress to repeal the law in question, introducing amendments to the Constitution in Congress, or calling a constitutional convention. Madison did not assert that the states could legally nullify an objectionable federal law or that they could declare it void and unenforceable. By eschewing direct action in favor of influencing popular opinion, Madison tried to make clear that the Democratic-Republicans were not moving toward disunion.
Analysis
The Report was regarded in the early 19th century as among the more important expressions of Democratic-Republican principles. Spencer RoaneSpencer Roane
Spencer Roane was a Virginia lawyer and politician who served in the Virginia House of Delegates and as a judge of the state's highest court.Roane was born in Essex County, Virginia, on April 4, 1762...
described it as "the Magna Charta on which the republicans settled down, after the great struggle in the year 1799." Henry Clay
Henry Clay
Henry Clay, Sr. , was a lawyer, politician and skilled orator who represented Kentucky separately in both the Senate and in the House of Representatives...
said on the floor of the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
that it was from the Report of 1800, above other documents, that he had developed his own theories on constitutional interpretation. H. Jefferson Powell
H. Jefferson Powell
Haywood Jefferson Powell is the Lyle T. Alverson Professor of Law at The George Washington University in Washington, D.C., a post which he accepted in 2010. Before joining The George Washington University Law Faculty, Powell was professor of Law at Duke University since 1987...
, a modern jurist, identifies three persistent themes of Democratic-Republican constitutionalism which emerged from the Resolutions and the Report: (1) a textual approach to the Constitution, (2) the compact theory, and (3) that caution, not trust, should characterize our approach to those who hold political power.
In more recent years, the main practical interest in the Report has been its absolutist understanding of the First Amendment. Multiple Supreme Court decisions have cited the case as evidence of the Framers' ideas on free speech. In the 1957 Roth v. United States
Roth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...
opinion by William Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
, Madison's Report is cited as evidence that "the fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth." Other cases to cite the Report for a similar purpose include Thornhill v. Alabama (1940) and Nixon v. Shrink Missouri Government PAC
Nixon v. Shrink Missouri Government PAC
Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 , was a case in which the Supreme Court of the United States held that their earlier decision in Buckley v. Valeo, 424 U. S...
(2000).
In modern scholarship outside the legal arena the Report is mostly studied for its discussion of states' rights with regard to federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
and republicanism
Republicanism
Republicanism is the ideology of governing a nation as a republic, where the head of state is appointed by means other than heredity, often elections. The exact meaning of republicanism varies depending on the cultural and historical context...
. According to Kevin Gutzman
Kevin Gutzman
Kevin R. Constantine Gutzman is an American historian, Constitutional scholar notable for having written The Politically Incorrect Guide to the Constitution. He is a professor of the Department of History and Non-Western Cultures at Western Connecticut State University. He is an outspoken critic of...
, the Report, together with the Kentucky and Virginia Resolutions, forms a foundation for the "radical southern states' rights tradition." However, Madison rebuffed charges that his writings supported the constitutional interpretation advanced by pro-nullification
Nullification (U.S. Constitution)
Nullification is a legal theory that a State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional...
Southerners. The Report of 1800, Madison argued, did not say the government was a compact of the individual states, as the pro-nullification elements suggested. Rather the Report of 1800 described a compact of "the people in each of the States, acting in their highest sovereign capacity." The state governments themselves, no less than the federal judiciary, possess only delegated power and therefore cannot decide questions of fundamental importance. Madison thought the Resolutions and Report were consistent with this principle while the Ordinance of Nullification
Ordinance of Nullification
The Ordinance of Nullification declared the Tariff of 1828 and 1832 null and void within the state borders of South Carolina. It began the Nullification Crisis...
was not.