The Very Essence of Free and Responsible Government
Madison was no more confident about the effectiveness of constitutional exemptions of free speech, press, and association than he was about textual denials of power over religion. He made only one reluctant speech concerning the former subject, when it was pending before the House. He objected, when Representative Thomas Tucker of South Carolina moved on 15 August 1789 to add explicitly to the guarantee of free speech, press and association the right of the people to instruct their representatives. Sensing that this motion was dilatory, Madison said there was no point in proposing and arguing "abstract propositions" like this one because it might jeopardize support for the whole system of government. The people have a "right to express and communicate their sentiments and wishes" to their representatives because it is provided for by the freedom of speech and press in this amendment. Both rights are placed "beyond the reach of this government." People may do so in private or public, either individually or by petition. These are the "great and essential" rights which critics of the Constitution have demanded. They have taught the people to believe the Constitution will not protect them without these amendments. For this reason "I approve these amendments," but no others, and as a "friend to what is attainable, I would limit them to those which provide this important security."1
In defending this minimal position, Madison did not yield his prior convictions and doubts. On 19 August 1789 he complained bitterly to a correspondent about this "nauseous project of amendments" which had necessarily taken up so much of the House's time. He conceded that constitutional declarations favoring essential rights are "not improper," and he had always regarded them as such. They are in some degree "rational in every Govt." because power may be used to oppress and "declarations on paper, tho' not an effectual restraint, are not without some influence." 2 Within five years he had an occasion to confirm this general position, and within a decade he had an even more alarming occasion to do so. In 1794 Congress threatened the right of association. In 1798 Congress transformed the exemptions of speech and press into grants of power used to punish persons who communicated their sentiments too freely to their representatives. In time this action evoked from Madison one of his ablest defenses of these great and essential freedoms.