James Madison on the Constitution and the Bill of Rights

making war itself. It is difficult to imagine a more clear-cut example of the tendency of governments toward self-directed actions, especially waging wars, to satisfy the motives for ruling at the cost of shattered constitutional barriers and genuine accountability to the general public. The fact that President Adams drew back from war does not change the power of Madison's analysis of the effects of even the threat of war on freedom of expression.

The vigorous enforcement of these laws and others by the federal courts suggested to Madison an additional problem. He asked: are there constitutional remedies open to the American people to be used to counteract "usurpations in which the Supreme Court of the United States concurs?" The answer is affirmative, of course. Some of them have already been found effectual, "particularly in the case of the alien and sedition laws..." Such measures as "remonstrances and instructions, recurring elections and impeachments; amendments to the Constitution" will all be effective as long as the federal government is responsible to its constituents. ⁶⁴ The fact that these dangerous laws were enacted and then enforced vigorously by the federal courts certainly disappointed what little expectation Madison ever entertained that they would be independent guardians of the Bill of Rights. The experience fully confirmed his guarded commitment to paper declarations of rights. They are of scant value once a government is determined to pursue a largely self-directed course of action in order to pursue its interest through gradual, well-timed, and constructive claims of power.

The most Madison ever expected was that the declarations in the Bill of Rights would become fundamental precepts of free government embodied in national sentiment. So established, appeals might be made to them as necessary in order to counteract the interest and passions of those who rule. Unfortunately, Madison said years after the framing, the attempts which were made, when the federal government was first put into operation, to "defeat those safe, if not necessary, and those politic, if not obligatory amendments introduced in conformity with the known desires of the body of the people...were not a little ominous." Soon after they were adopted, support was voiced for new "political tenets," and proper rules of constitutional interpretation were abandoned. These new doctrines were "capable of transforming [the Constitution] into something very different from its legitimate character" as an expression of the will of the nation. "I wish I could say that constructive innovations had altogether ceased." ⁶⁵

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