A DECADE AFTER THE RATIFICATION BATTLE IN RICHMOND, MADISON AND Henry clashed again. It was the summer of 1798, and the nation was again in domestic turmoil. In the wake of the French Revolution, the upheaval sweeping across Europe seemed likely to spread to the United States. In America, the federal government was suppressing a wave of new secessionist sentiment. Meanwhile, a “quasi war” was afoot between the American and French navies. Scuffles were breaking out on the streets over whether America should support the French. The Aurora began viciously attacking John Adams, now president. Adams responded with what Madison described as an “abominable and degrading” speech, proposing legislation that would become known as the Alien and Sedition Acts. The legislation allowed the president to imprison and deport aliens deemed “dangerous to the peace and safety” of the United States, and to suppress speech critical of the federal government with criminal sanctions. Adams’s allies in Congress passed those bills into law in June and July of 1798.
For Madison’s part, the Alien and Sedition Acts created an enduring puzzle. Madison, who had returned to Montpelier from eight years in the House of Representatives, publicly denounced Adams’s “violent passions and heretical politics” and castigated him as a “perfect Quixote as a statesman.”1 He and Thomas Jefferson, Adams’s vice president, collaborated on a rebuttal. In what became known as the Virginia Resolutions, Madison argued that the Alien and Sedition Acts violated the “general principles of free government, as well as the particular organization and positive provisions of the Federal Constitution.” He asked other states to join Virginia in declaring that the acts aforesaid were unconstitutional.2
He had come a long way in the eighteen years since 1781, when a younger and more fiery man had proposed the amendment stating that if any state “shall refuse or neglect to abide by the determinations of the United States in Congress assembled,” Congress would be “fully authorized to employ the force of the United States as well by sea as by land to compel such State or States to fulfill their federal engagements.” The new resolution plainly asserted that the states should resist an abusive federal government that had run off its constitutional rails.
PUBLIC LIFE IS A JOURNEY THROUGH PEAKS AND VALLEYS. ALL PUBLIC leaders find their apotheosis at one time or another; very few can sustain the same achievement, or image, or theme, from one month to the next, save year to year or over the course of decades. They are buffeted by history itself, becoming a hero one year, an antagonist the next. So it went with Patrick Henry, who exhausted his political philosophy with the revolution he was born to lead. Once the revolution was finished and the business of building a country was at hand, Henry found himself poorly suited to the new climate.
And so it also went for James Madison. His support in 1781 for an unqualified coercive power matched the level of control he thought necessary for the nascent country’s existential crisis. Madison gradually moved beyond that radical proposal to embrace the contraption of sophisticated compromises that emerged from Philadelphia in the summer of 1788. In the decade after, the country further evolved. By 1798, the existential challenge became not the country’s structure—its spine—but freedom itself—its heart.
Madison’s Virginia Resolution was as intricately brocaded with compromises as the Constitution itself. In the case of a “deliberate, palpable, and dangerous exercise” of powers not granted by the compact of the Constitution, the Resolution declared, states who were “parties thereto” had the right, and were “duty bound,” to “interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”
The resolution expressed Virginia’s “deep regret” (but not her rebellious or violent intent) about the federal government’s “spirit” to enlarge its powers by “forced constructions of the constitutional charter which defines them.” These actions could transform the republican system, Madison wrote, into an “absolute, or at best a mixed monarchy.” The resolution declared that the Alien and Sedition Acts were unconstitutional and pledged Virginia’s support for “the necessary and proper measures” in maintaining the “Authorities, Rights, and Liberties, referred to the States respectively, or to the people”—those given, of course, by the 10th Amendment of the very Constitution itself.
The tone of the Virginia Resolution was sadness rather than anger. It was a characteristically intricate expression of the precise authority by which Virginia could defy the Constitution and the Congress that had, save for the 10th Amendment, plainly superior authority over Virginia. Madison had carefully marshaled the Constitution to sanction a state’s conditional rebellion against the federal government to which it belonged.
Meanwhile, Thomas Jefferson privately had drafted what became known as the Kentucky Resolution. The differences between the two friends’ temperaments and political philosophies could not have been expressed more dramatically than in the two documents’ very different declarations of defiance. The first sentence of the Kentucky Resolution was: “Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government.” The document moved on to declare that the Alien and Sedition Acts were “so palpably against the Constitution” that the Acts meant the federal government could now “proceed in the exercise over these States, of all powers whatsoever.” And for that reason, Jefferson explained, the states, “recurring to their natural right in cases not made federal,” were declaring the acts “void, and of no force,” and promising that each state would each take “measures of its own” to prevent the Acts from taking force.
Madison’s version was more nuanced—threatening rather than declaring rebellion. Appearing before the Virginia House of Delegates to present the resolution in December 1798, Madison employed his Method. One by one, he presented a volley of well-founded arguments, marshalling principle, history, and practice. On December 24, 1798, the Virginia General Assembly, again following the master of the Constitution, passed Madison’s bill.
The next spring, Patrick Henry, exploring a return to Virginia’s legislature, attacked the opponents of the Alien and Sedition Acts as unpatriotic. Jefferson, meanwhile, had begun running for president. As hot toward Henry as Madison was cold, he excoriated Henry, declaring that his “apostacy must be unaccountable to those who do not know all the recesses of his heart.”3
Henry, fighting hard against Jefferson and Madison, had stomach cancer the whole time. He never actually stood for the legislative seat. On June 6, 1799, he died. He was sixty-three years old. In December of 1800, Thomas Jefferson defeated John Adams for president. He named James Madison his secretary of state. Once in office, they allowed the Alien and Sedition Acts to expire, the insidious attacks on their most treasured freedoms dying an appropriate death—withering on the legislative vine.
The fight not only with Patrick Henry, but with the forces he represented in American politics, seemed, for a time, to have concluded. But it was only an interregnum. Those fundamental tensions in America’s constitutional system and in America herself would continue to bedevil Madison into his old age—as they do the country today.