Madison, James

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James Madison

Excerpt from "Amendments to the Constitution"

Delivered by James Madison on June 8, 1789, to the House of Representatives

Reprinted from The Papers of James Madison, edited by Charles F. Hobson and Robert A. Rutland

Published in 1979

James Madison of colonial Virginia is considered the father of the U.S. Constitution. Madison fought hard for the recognition and protection of individual rights in the new nation's legal framework. He also supported the need for a strong central government. As a result, Madison sought a delicate balance between a strong and effective central federal government and the basic freedoms of citizens from potentially oppressive government rule.

Madison formed his beliefs on individual liberties from government actions while serving in various political roles during the American Revolution (1775–83). With war underway, Madison served in the 1776 Virginia Convention that drew up the state's declaration of rights and a new state constitution. From 1778 to 1779 he served on the Virginia Council of State that guided actions of the new governor.

"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments."

Madison also represented Virginia in the Continental Congress from 1780 to 1783, which drafted the first constitution known as the Articles of Confederation. The Articles proved ineffective by creating a weak central government and giving most power to the states. The central government had no law enforcement powers and no central courts. Charged with creating a more effective national government, the Constitutional Convention convened in Philadelphia in 1787. Madison took the lead in drafting a new constitution. The end result provided was a constitution with a much stronger central government, but with a complex system of checks and balances between the three branches and different levels of government and an independent judicial system.

Adoption of the new constitution required the approval of at least nine of the original thirteen states. Adoption was up in the air as considerable debate centered on the strengthened central government. Many looked back at the two centuries under dominant British rule and did not wish to see such a powerful central government. They still wanted most power to rest with the individual state governments, as in the Articles of Confederation. This group was known as the anti-Federalists; they believed the new constitution threatened individual liberties, including its criminal courts of law.

To help with the adoption process, Madison and John Jay, a future Supreme Court justice, and Alexander Hamilton, the first U.S. secretary of treasury, wrote a series of eighty-five essays known collectively as The Federalist Papers. Madison and the others explained that individual liberties would best be protected by a strong central government, not the many individual state governments.

Doubts persisted and many still demanded a stronger statement on the protection of individual rights than the Constitution offered. Madison and others relented and agreed to write the first amendments to the Constitution to satisfy those concerned. Finally by the summer of 1788, Madison and the Federalists had prevailed and the new constitution was ratified by eleven states, two more than necessary.

Madison then began writing the Bill of Rights, the first ten amendments to the U.S. Constitution. Madison was also elected as a Virginia delegate to the new U.S. House of Representatives. Madison described the newly developing bill to the House on June 8, 1789.

Things to remember while reading excerpts from "Amendments to the Constitution":

Citizens of the new nation did not want to find themselves once again at the mercy of a powerful court system as they had been in the king's courts of Britain. They sought fairness in how criminal justice was administered.
Madison received a solid education at what later became known as Princeton University studying the important thinkers of Europe. He accepted the growing idea that humans fully possessed the power of reason, the basis for emphasizing individual rights over the power of government. Madison also read law but was not interested in its practice.
Being short of stature and poor in health, Madison tackled revolutionary politics rather than the battlefield. At twenty-five years of age Madison served as an intellectual force in the American Revolution (1775–83) war effort.

Excerpt from "Amendments to the Constitution"

It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. . . .

It cannot be a secret to the gentlemen in this house , that, notwithstanding the ratification of this system of government byeleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it. . . . We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution. . . .

But I will candidly acknowledge, that, over and above all these considerations, I do conceive that the constitution may be amended; that is to say, if all power is subject to abuse, that then it is possible the abuse of the powers of the general government may be guarded against in a more secure manner than is now done, while no one advantage, arising from the exercise of that power, shall be damaged or endangered by it. We have in this way something to gain, and, if we proceed with caution, nothing to lose. . . . But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents. . . .

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable .

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions . . . for redress of their grievances . . . .

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnessesagainst him; to have a compulsory [required] process for obtaining witnesses in his favor; and to have the assistance of counsel [lawyer] for his defence. . . .

No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases. . . .

No appeal to such court shall be allowed where the value in controversy shall not amount to ___ dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise reexaminable than may consist with the principles of common law. . . .

The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war or public danger) shall be by an impartial jury . . . with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury, shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other country of the same state, as near as may be to the seat of the offence.

In cases of crimes committed not within any country, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate [sacred or unbreakable]. . . .

Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, came in question in that body, the invasion of them is resisted by able advocate, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which, the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution.

But altho' the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many states, have thought it necessary to raise barriers against power in all forms and departments of government, and I am inclined to believe, if once bills of rights are established in all the states as well as the federal constitution, we shall find that altho' some of themare rather unimportant, yet, upon the whole, they will have a salutary tendency. . . .

It has been said by way of objection to a bill of rights, by many respectable gentlemen . . . that they are unnecessary articles of a republican government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. It would be a sufficient answer to say that this objection lies against such provisions under the state governments as well as under the general government; and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper. It has been said that in the federal government they are unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary. . . .

Civil Liberties and Criminal Justice

The 1791 Bill of Rights greatly influenced the development of the U.S. criminal justice system through the next two centuries. Of the ten amendments, the following specifically address criminal justice issues:

Fourth Amendment—the right of people to be safe from unreasonable search and seizures. Warrants for arrest and search had to be based on sufficient evidence to support an arrest, known as probable cause.

Fifth Amendment—called for grand juries (a panel of citizens convened to determine if sufficient evidence exists to charge a person with a crime) and also stated that a person could not be tried for the same offense twice, known as double jeopardy. Defendants also could not be made to testify against themselves and had the right to remain silent during questioning.

Sixth Amendment—called for speedy, public trials using impartial juries.

Eighth Amendment—banned excessive bail (money a defendant pays a court to be released while waiting for a trial) and cruel and unusual punishment.

I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within
those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the constitution of the United States there is a clause granting to Congress the power to makeall laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfill every purpose for which the government was established. . . .

[Madison concedes to those critics of the U.S. Constitution who demand more explicit restrictions on the national government than the Constitution provides that the Constitution does give the national government some flexibility in making laws it sees as necessary. Through its law-making power the federal government could overstep its limits, as state governments could do with the much more sweeping powers they hold than the federal government.]

I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the state legislatures. . . . The words, "No state shall pass any bill of attainder , ex post facto law . . ." were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the state governments than by the government of the United States. . . . I should therefore wish to extend this interdiction, and add, as I have stated . . . that no state shall violate the equal rights of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. I know in some of the state constitutions the power of the government is controlled by such a declaration, but others are not. . . .

Having done what I conceived was my duty, in bringing before this house the subject of amendments, and also stated such as I wish for and approve, and offered the reasons which occurred to be in their support; I shall content myself for the present with moving that a committee be appointed to consider of and report such amendments as ought to be proposed by Congress to the legislatures of the states, to become, if ratified by three-fourths thereof, part of the constitution of the United States. . . . I should advocate greater dispatch in the business of amendments, if I was not convinced of the absolute necessity there is of pursuing the organization of the government; because I think we should obtain the confidence of our fellow citizens . . . as we fortify the rights of the people against the encroachments of the government. . . .

What happened next . . .

The Bill of Rights was adopted by the states in 1791. It provided important individual liberties, such as freedom from cruel and unusual punishment, freedom from self-incrimination, and freedom from illegal search and seizures. Following its adoption, Madison used his seat in the House of Representatives, which he held until 1797, to defend individual and state rights from the strong federal government he helped fashion.

Madison founded a new political party known as the Democratic-Republicans whose main focus was to ensure the federal government did not infringe on the individual liberties he had listed in the Bill of Rights. Madison and fellow party leader Thomas Jefferson fought the stronger Federalist tendencies of the George Washington (1732–1799; served 1789–97) and John Adams (1735–1826; served 1797–1801) administrations.

Thomas Jefferson won the presidency for the party in the 1800 elections and appointed Madison his secretary of state. Madison would not only follow Jefferson into the White House in 1809, but became head of the University of Virginia upon Jefferson's death. Madison died in 1836.

Did you know . . .

James Madison became the fourth president of the United States and served for two terms from 1809 to 1817. His presidency was dominated by the War of 1812 (1812–14) with Great Britain, the first U.S. foreign war to protect its newly created governmental system.
Madison was born in 1751 on a Virginia plantation at the base of the Blue Ridge Mountains, his official home for his entire life. Though the plantation had slaves and Madison kept slaves his entire life, following his presidency Madison was an outspoken critic of slavery and headed the American Colonization Society dedicated to relocating freed American slaves back into Africa. Little came from the effort.

Consider the following . . .

Have the class research arguments by the Federalists and anti-Federalists regarding the federal government. Present a debate over the merits of each perspective, focusing on criminal justice concerns.
Some claimed the liberties protected by Madison and the Supreme Court eroded in the late twentieth and early twenty-first centuries. For example, the War on Drugs initiated in the 1980s and the later USA Patriot Act (passed as an antiterrorist measure in 2001) gave law enforcement greater powers. Describe how individual liberties could be affected by these programs.
The protections offered in the Bill of Rights would not be strongly upheld until the 1960s when the Supreme Court issued a series of rulings that revolutionized the criminal justice system. What did the Supreme Court rule and how did it support the constitutional protections in the Bill of Rights?

Bosom: Chest; meaning a person's emotional center.

House: U.S. House of Representatives.

Amity: Common understanding.

Inviolable: Cannot be violated.

Redress of their grievances: To resolve political issues.

Requisite of unanimity: All jurors agree on the verdict.

Magna Charta: Early English document [also known as the Magna Carta] granting rights to citizens and limiting the power of royalty.

Salutary: Helpful; supporting a useful purpose.

Republican: Government in which the power is held by the citizens who elect their political leaders.

Residuum: The remainder.

Discretionary: Left to its own judgment.

Indefinite: limited.