Computers, Privacy & the Constitution

The Revolutionary James Madison

-- By NathanielCrider - 06 Mar 2015


From the textbooks, we see James Madison as a diminutive and earnest conciliator. And from the casebooks, we find the First Amendment as a bundle of discrete rights at war with itself.

Madison’s First Amendment, however, was unified in spirit and purpose. The Amendment he wrote secured the absolute rights of free expression against totalitarianism.

Lost in the case law and textbooks is the fact that it, and its creator, were revolutionary.

The Four Functions of the Guarantee of Freedom of Expression

Fundamentally, the rights of freedom of speech, press, assembly, religion and petition function as a bulwark against totalitarian government. Specifically, these rights serve four basic functions in pursuit of that goal.

First, free expression facilitates self-realization. The realization of a one's character and potentialities, which is the ultimate purpose of meaningful personhood, is necessarily particular to the individual. In developing her personality, the individual has the right to form her own beliefs and opinions. And because expression is critical to the development of belief and opinion, she must be allowed to express her ideas. Government actions that tend to suppress the expression of belief and opinion therefore negates an essential characteristic of personhood.

Second, the rights guaranteed by the First Amendment advance knowledge. By embracing free inquiry, the First Amendment rejects the notion that a single individual or small group of individuals can dictate the terms of truth.

Third, the free expression rights are indispensable to political participation and decision-making. The just power of government derives from the consent of the governed. As the holders of sovereignty, citizens have the right to communicate to the government and the governed through the political process. Because the political process is the means by the people govern themselves, freedom expression is critical to securing freedom elsewhere.

Finally, the guarantee of freedom of expression strikes a balance between social stability and change. Suppression produces a superficial conformity and results in the ossification of ideas. The full discussion and encouragement of dissent, however, provides catharsis for the aggrieved and an opportunity for the state to address or maintain the conditions necessary for democratic self-government. Though dissent may threaten the state, history teaches us that suppression more often harms the general welfare than it protects.

Madison and the Guarantee of Anti-Totalitarianism

The First Amendment guarantee of free expression thus provides a framework for a dynamic, democratically-organized society. And through the encouragement and protection of dissent, it offers a vision of government anchored by reason. Of course, the First Amendment necessarily rejects that with which it is incompatible: an authoritarian politics of stagnation. Accordingly, the security offered by the First Amendment's system of free expression thus protects more than any one of its constituent functions or rights.

As the author of the First Amendment, the life and writings of James Madison inform the original expectations of the guarantee of free expression. Madison, to be sure, was at times ambivalent about the inclusion of a Bill of Rights in the Constitution. But his reservations were more pragmatic and functional than principled. Indeed, he viewed the of Rights the Bill or Rights as educational and aspirational; the inclusion of which, he believed, would enable republican citizens to govern themselves. Although bookish and soft-spoken, Madison was undoubtedly the "very epitome of the thinking revolutionary." His First Amendment is imbued with same revolutionary spirit.

Facilitates Self-Realization

Madison did not advocate the self-actualizing importance of free expression as clearly as some of his contemporaries. Yet Madison's interest in free expression predated his interest in politics. And as a representative in Virginia, Madison worked tirelessly to defeat a general assessment bill providing public funds for the instruction of Christianity. Principally, Madison argued that freedom of religion is a natural right. Because "the opinions of men…cannot follow the dictates of other men...[and] [i]t is the duty of every man to render the Creator such homage and such only as he believes to be acceptable to him," Madison concluded the legislature was without the jurisdiction to encroach upon that domain of mind owned controlled exclusively by the individual.

Advances Knowledge and Truth

That knowledge is advanced through open and free expression is found throughout Madison’s writings. Indirect democracy channels decision-making to representatives, who in turn mediate between groups of individuals and their opinions. And fragmentation of the electoral base floods the market with diffuse ideas. Central to the twin assumptions of the Madisonian plan is robust system of free expression.

Protects Political Participation and Decision-Making

Similarly, free expression is necessary for self-government. In a series of essays condemning Alexander Hamilton and his monetary and fiscal policies published in 1791 and 1792 , Madison was unequivocal: “Public opinion sets bounds to every government, and is the real sovereign in every free state." As Madison learned from his experience mobilizing a diverse group of faiths to protestagainst Virginia's religious assessment bill, public opinion is the ultimate check on abuses of power.

Balances Stability and Change

Finally, full and open discussion is necessary for a stable and adaptable republic. In protesting the most substantive limitation of free expression in his time, Madison argued that censorship “ought, ‘more than any [unconstitutional act] produce universal alarm; because it is levelled against…free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right." Because "the essence of a free and responsible government" depends on the public's ability to effectively exercise their right to vote, limitations on free expression threatens the legitimacy of democratic government.

Madision, of course, arrived to this revelation long before 1798. Prior to the Federal Convention, Madison threw himself into the vast "literary cargo" sent to him from Paris by Thomas Jefferson, seeking the weaknesses and strengths of modern and ancient confederacies. From his studies, he penned a list of vices the threatened the stability of the republic, the first of which being the failure of the state to comply with constitution requisitions. As an active statesman and author of pamphlets anonymous and recognized, Madison understood the importance of preventing constrictions on the channels of information necessary for healthy democracy and meaningful suffrage, and the unconditional language of the First Amendment reflects this concern.


Madison's writings and experiences confirm that which is clear the text of the First Amendment: it is a revolutionary document securing for the people the right of free expression against despots, crafted by a willful, revolutionary man.

Perhaps a few minutes with secondary sources about Madison and the First Amendment, from Irving Brant's biography to Jack Rakove's Original Meanings would be helpful. Though my argument concerning the meaning of the amendment is here in full, a little more touch with Madison himself, not through selectively-culled quotations from pamphlets, might be of use.


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r8 - 26 Jun 2015 - 20:16:46 - MarkDrake
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