OK, so the year isn't over yet, and I still want to see (in no particular order) The Producers and Casanova before the year ends, but here is my end-of-year movie recap. The Good, the Bad, and the Ugly, I go through all the movies that I've seen this year which includes a long list of crapola, but I managed to see many films that I came away positive about. I can imagine disagreement possibly arising from some of my picks, but oh well.


THE BAD

Jarhead - Told in a 'Platoon'-esque fashion but with far less going on and with very little plot and not much to keep you from falling asleep. The portrait of the Marines as a bunch of psychotic, aimless, and masochistic weirdos certainly did not help this movie along. In the end the movie is really about nothing, the marine it focuses on literally does nothing during the whole Gulf War. A movie about Richard Nixon in World War II would be a lot more interesting (all he did was play poker in Hawaii essentially and then the war ended).

Transporter 2 - Please don't ask why I saw this movie, it's a dumb story involving a Swedish guy. The movie is a mess from beginning to end, the only positive thing I can say is that it made me laugh. I can't believe it was a number 1 movie in the country for a while. Sad.

Broken Flowers - Quite possibly one of the worst movies I've ever seen. Bill Murray has never burned me before like this, and man was it a burn. This movie was supposed to be a funny trip with a rich bachelor who searches out a mystery mother of a mystery son but it doesn't provide many interesting moments, save for an awkward cameo by Jessica Langue. The movie has no resolution whatsoever, and I'm not kidding. It just ends for no reason in the middle of his quest.

Munich - With a subject that could provide an ultimately inspiring, not to mention action-packed, historical epic Steven Spielberg has instead delivered a morally equivocal and at sometimes very odd picture. With a degree of obfuscation and confusion that he easily avoided on other historical movies, i.e. Schindler's List and Amistad, Spielberg has attempted to "give voice" to the very terrorists who are the instigators of the movie's catalyst event, the murder of Israeli athletes at the 1972 Munich Olympics. While engaged in that dubious task he has needlessly and ahistorically introduced doubt in the minds of the some of the men responsible for carrying out justice. And on top of all that he decided gratuitously to show dramatizations of the Munich massacre in the middle of sex scenes. This picture is a mess in many ways and will ultimately rank near the bottom of the acclaimed director's efforts.


The Ugly Disappointments

Derailed - A rather disturbing movie about a guy who almost cheats on his wife and ends up getting blackmailed. The way in which this blackmail scheme unfolds in the disturbing part, the only save is that the guy finally figures it out and amazingly gets revenge in a totally ass-backwards way before doing it conivingly. Overall this picture had some potential, but was disappointing and nothing to recommend unless you get really really bored one night.

Kingdom of Heaven - Here was a movie I was excited about, Second Crusade meets Hollywood. Why was I excited again? Despite some great performances, like the Syrian actor who played Saladin and some good yeoman work from Liam Neeson and Jeremy Irons, this movie falls short possibly because of the subject matter. There is nothing really heroic or romantic about the crusades, in fact, quite the opposite is true. Disappointing movie, but has more to do with the subject matter I think.

Lord of War - A movie about an amoral arms dealer who travels throughout the world arming despots and warlords, eventually has the obligatory dream girl and cocaine addiction, until finally he gets his brother killed on a deal. Of course he's an incurable reprobate and continues in his illegal dealings. The movie, which starred Nicholas Cage, had some moments that were either funny, sad, poignant, or moving, but overall the movie was a disappointment. The message was, if anything, that guns and ammo were the problem and not the despicable and amoral men using them (who would and have use anything, including machetes, to do their dirty work). Disappointing theme to say the least, but it was a movie about an illegal arms dealer.

The Brothers Grimm - A movie with potential, Sleepy Hollow type potential. The Grimm Brothers are two con-artists, using folklore to scare up business for their "services." Which works well until they actually run into an enchanted forest. The jokes about their book and the tied in fairy tales were funny, but the movie was ultimately disappointing because you really stopped caring after a while. I don't know if it was just boring or because the plot was too convoluted or what, but I was disappointed.

Hostage - Couple of punks take over a rich guy's house and are cornered by the cops, creating a hostage situation. Bruce Willis is a former hostage negotiator from the big city, turned small town police chief after a negotiation goes wrong. Sounds almost like a perfect Bruce Willis plot right? So what the hell happened? Not only in this movie disappointing, but it's terrifically awful. The punks kill each other because one of them is a true lunatic, the rich guy turns out to be a bad guy (of course), and Willis is as ineffectual a hero as I've ever seen him in an action movie. Really disappointing.

The Legend of Zorro - Could have been good, considering the first movie was pretty good and the leading man and woman (Antonio Banderas and Catherine Zeta-Jones) are good together, and yet this movie disappoints on almost every level. From the amazing acrobatics of their annoying little kid, to the crazy plot by a bunch of global nutjobs to foment the civil war a decade too early by equipping nascent Confederates with nitro-glyceron, to Zorro's acting horse and his little theatrics. Don't see this movie if you prefer any fond memories you may have of the first one not being sullied.

Be Cool - A sequel to Get Shorty with Vince Vaughan, The Rock, Cedric the Entertainer, should have been good. But now, instead of Loan Sharking, Chilly Palmer is in the music and movie business. And his music talent stinks, big time, though in the film I guess she's supposed to be good. Funny moments throughout the film cannot save it from being disappointing.

The Lion, the Witch, and the Wardrobe - Having played Aslan in a high school production of this story, and reading the book during my time at a British academy in Saudi Arabia I felt an obligation to go see the movie. It wasn't terrible, but it's also nothing special. By the way, how can I compete with CGI Aslan and the voice of Liam Neeson?


The Good

King Kong - This film was going to make it into the good almost on special effects alone, but I found it generally enjoyable. On the negative side is the romanticizing of the giant gorilla and the demonizing of man in taming the wilderness. I didn't feel sorry for Kong, but the intent of the filmmaker is unmistakable.

Sahara - A decent action film, but it drops the best parts of the Clive Cussler novel upon which it is based.




Doom - Corny at times and certainly not for those who cannot stand blood in movies, but I enjoyed the recreation of a game I certainly had countless hours of fun playing.




Fantastic Four - Certainly a weaker addition among the new comic book movies, on the level with Hulk, but entertaining and aside from Jessica Alba's crappy acting, the other Fantastic Four members are pretty good.




George A. Romero's Land of the Dead - Ok, so if you're not into zombie movies I can understand the expression on your face. If you do like a good zombie movie every now and then, this film will satisfy you in many ways. I did not like the ending when a great opportunity for some zombie-killing explosive mayhem was passed up for some dumb koom-ba-yah zombies and humans living together in peace message by Romero got into the film somehow. Other than that, about as entertaining and disgusting as a zombie movie can be, with all typical zombie movie staples (guy gets bit and hides it, etc.)




Star Wars Episode III: Revenge of the Sith - Generally an entertaining movie with great special effects and a good story line. For some reason Lucas could not resist making the last installment of his space opera with shallow of patently obvious references to modern American politics. Aside from that, this is an enjoyable movie.




Wedding Crashers - A very funny movie. If you like Vince Vaughan, you will love this movie.




Just Friends - Good movie with a good ending. Ryan Reynolds is getting better, though he should worry about type-casting.




40 Year Old Virgin - This movie is hilarious, the title tells you all you need to know about what kinds of jokes are in it and what the general plot is, i.e. to make sure he doesn't become a 41 year old virgin.




Walk the Line - The Johnny Cash biopic is probably the last thing I was expecting to see, for while I like many of Cash's songs I've always found him as a person rather distasteful. I can't say my opinion on the person was in any way altered by this picture other than being glad he got over his nasty drug problem. The acting in the movie, especially by leading man Joaquin Phoenix, is very good. I especially liked the cameos made by other famous Sun Records alumni like Carl Perkins, Elvis, and Jerry Lee Lewis (where was Roy Orbison?). One line from that part of Cash's career was particularly funny. In his first drug use he's given the great line, "Elvis takes them." Who can argue with that? (Seemingly anyone except, of course, Cash)

Hitch - I was surprised by this movie, Will Smith really does a great job in this movie. Basically about a "date doctor" with ethics who helps guys gain confidence in their approach with their dream girls. Of course the film is built around his own courting of a no-nonsense gossip columnist and his helping Kevin James (The King of Queens) to court an heiress. Ends predictably, but still fun getting there.




The Great Raid - A World War II film depicting the freeing of US POW's from a camp as the Japanese retreat on the Philippines and begin killing POW's as part of their official policy. A good movie about an important episode in the war.




The Hitchhiker's Guide to the Galaxy - As someone who has read all of the books by Douglas Adams it was predicatable that I would see this movie, what wasn't predictable was whether I would like it. The last two or three books aren't anywhere near as good as the first two. This movie does a good job condensing everything from all the books into a (as coherent as it could possibly be) whole while cutting some elements out, such as Arthur discovering the secret of flight (which is be distracted by something else right before you hit the ground).




Serenity - A continuation of the cancelled Fox Tv Show "Firefly" this movie picks up right where the show left off and follows the journey of the Serenity to its conclusion. Enjoyable even if some of the sci-fi/fantasy elements are a little fantastic. But anyone familiar with Joss Whedon (Buffy the Vampire Slayer, Angel) knows that these elements are there for entertainment, the real point of his works is the interactions between the characters.




Batman Begins - As a gigantic fan of the first Batman movie with Michael Keaton I was skepitcal about this movie, but as someone who disliked the movies that came after the first Keaton film, I was also excited. This movie doesn't disappoint as it begins before the Keaton film with Bruce Wayne's beginnings as the caped crusader. Plot twist that I won't give away is good, though predictable for the simple reason that Hollywood never eliminates huge stars in the first half hour (usually). Great film.




and now the best of 2005 ..... so far

Pride and Prejudice - Obviously based on the Jane Austen novel about the Bennett family, namely the marrying off of the numerous daughters of that family. The adaptation of this book is fantastic, carrying all the joyful sense of life of the book (if you read Jane Austen then you know her books tend to be based around a comedy of errors until ending in the long-awaited realization and subsequent happiness of the protagonists). Rather than walking away disappointed or merely happy, I came away awash in joy after this movie ended. Definitely the best movie I have seen this year.

Sometimes, when the snow has fallen and there is a statue of a pretentious anti-man psychologist on your campus, the urge to pelt is with snowballs cannot be resisted. I've got your Oedipus Complex, right here!

Heresies and Evasions: James Madison and Nullification
By Alexander Marriott


The nullification crisis was the culminating moment that James Madison would live to see of the long history of compromises the founding fathers had made with slavery. Despite the rhetoric of tariffs and the adept move of the nullifiers to wrap themselves in the blanket of free trade, slavery was the central, if unspoken, subtext of the nullification debate. The power of the Southern states to prevent the federal government from enacting laws that Southerners did not like had obvious implications for the peculiar institution. For Madison, it was this unspoken subtext that was the most frightening spectacle of the whole crisis. He was adamant that the nullifiers were doctrinally bankrupt, but by 1832 he was practically begging Henry Clay to come up with some way to defuse the crisis that would be satisfactory to both sides. The appeasement of the nullifiers was the new price for the preservation of the union; confronting the unspoken subtext was for Madison, as it had been since the 1780’s, unthinkable.


Madison left his retirement to battle the nullifiers and he failed. Some of the reasons for that failure were petty, such as the nullifiers trying to marginalize him as a senile old man or an inconsistent scatter-brain, charges which he anticipated and dealt with repeatedly throughout the crisis. But more substantial reasons for that failure had more to do with Madison than his opponents. For instance, it had been Madison’s consistent policy since the Constitutional Convention to put the Constitution and Union above all else. This concern can be seen in his drive to get a Bill of Rights passed, and above all to “straddle” the issue of slavery in the First Congress, when Madison would condemn the institution and yet support moves to make sure it would not be discussed by congress. The most important reason for his failure was the complete inability of the Union to survive any prolonged or critical discussion of slavery or any peripheral issue (i.e. the tariff) which could serve as a proxy for the glaring contradiction. Madison was unwilling to risk the Union attempting to rid it of what he knew was a moral evil. Thus the crisis ended in compromise, which could only have meant victory for the nullifiers; nullification was intact and legitimized, the state compact theory of the Constitution gained undeserved respect and even the idea that secession was an actual right under the Constitution escaped official rejection. All of these legacies from the nullification crisis were the crucial foundations of the actions taken by the seceding Southern slave states in 1860-61. But as Madison’s frustration and futility in the nullification crisis confirms, the ultimate foundation for that tragedy had been laid at the opening moments of the republic’s inception.


James Madison was clearly one of the most important founding fathers at the end of the revolution and creation of the republic. He is credited with the structure, spirit, and, some would say, passage of the Constitution. Perhaps more credibly, since the Constitution’s creation and acceptance was the effort of many individuals, he is given accolades by scholars for the first ten amendments of the Constitution known now as the Bill of Rights. The young, energetic, and (in a clash against Madison’s somber and legalistic image today) sometimes fiery Madison was clear about slavery in the Federal Convention, when he opposed explicit constitutional recognition of the idea that men could be held as property as well as the “dishonorable” clause allowing the importation of slaves for another twenty years.[1] He was not successful in preventing the implicit recognition of slavery or the allowance of slave importation until 1808, but he was able to shelve his opposition to these features (just as he was able to shelve his opposition to the way the senate was structured) in favor of union. His subsequent actions, once the Constitution was adopted, on questions of slavery would be informed and directed by his memories of government before ratification and the difficulties encountered in the achievement of union.
Madison’s retirement years pose something of a problem for many Madison scholars for the simple reason that he seemed unable to deal with the greatest unspoken political issue of the age, slavery. Madison’s greatest hope, as always, was that the Union be preserved. Indeed, all of his political actions from his first days in congress, when he had worked vigorously to keep the promise of adding a bill of rights to the Constitution and had worked just as vigorously to keep the divisive issue of slavery off limits to debate, pointed to this overriding concern for the union. In his final piece of “advice” to the country he had been so instrumental in founding and shepherding through the first decades, he famously implored that the “Union of the States be cherished and perpetuated.” Open enemies of the Union were to be as “Pandora with her box opened” while the secret enemies slithered like the “serpent creeping with his deadly wiles into Paradise.”[2] Madison approached the nullification crisis from this vantage point.


The issue of state nullification had been long dormant since the brief threat of its surfacing in the late 1790s had been put into mothballs by Jefferson’s “Revolution of 1800.” By the end of the presidential administration of John Quincy Adams, more than a quarter century later, the issue was back. The explicit ideological issues which brought on the resurgence of nullification lay in the broad construction implications for federal power embodied in Henry Clay’s “American System” and the fascination with protectionism displayed by the outgoing president, his cabinet, and a good deal of the congress, particularly from those representing Northern regions that often made “infant industry” tariff arguments. Substantial and prolonged protests against protectionism began with the Tariff of 1828, which many Southerners derisively called the “Tariff of Abominations.” It almost seems absurd today that a serious constitutional debate would occur over whether the federal government had the power to set tariff policy, particularly because the Constitution is unequivocally clear on the matter in Article One, Section Eight, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises … To regulate commerce with foreign Nations ….”[3] The tariff was only a sign to those who would end up supporting nullification that when they seriously opposed something they still could be overruled by the other states (and this with inflated numbers of representatives in the House due to the constitution’s three-fifths clause). The implications of this development for much more serious issues, especially slavery, provided the impetus for the nullification movement.[4]


The concept of nullification as proposed by John C. Calhoun in his South Carolina Exposition and Protest was that any state, when it decided a federal law was unconstitutional, could nullify it and refuse to enforce it. This would force a constitutional crisis whereby the other states either had to pass a constitutional amendment or see the law not be carried out. If the amendment passed, the nullifying state could either accept defeat or simply decide to secede, which was asserted as a constitutional right of the states as the original parties to the constitution.[5] Without nullification as a constitutionally legitimate option and the extreme improbability that the South could ever muster the support in the North to pass a constitutional amendment to protect slavery, the peculiar institution would have been in extreme peril over the long run. In this sense nullification could be seen as a way to save the union, but such a conception is chimerical because, as Madison would say during the crisis, “to establish a positive & permanent rule giving such a power to such a minority over such a majority, would overturn the first principle of free Govt. and in practice necessarily overturn the Govt. itself.”[6] For the nullifiers, this calamity could be countenanced far easier than the risks posed by majority rule (particularly if that majority were from the North) to the future of slavery. The response Madison had to the nullification doctrine, as propounded by Calhoun, was unique.


The tremendous issues which faced the United States in the late 1810’s, the 1820’s, and 1830’s – including the Missouri Crisis, the decision of the election of 1824 by the House of Representatives, the rise and triumph of Andrew Jackson, and the Bank War – seemed unable to reengage Madison in public political controversy. This was not through lack of trying by others. Madison received many letters during his retirement soliciting his opinions on a whole host of issues and occasionally asking him to get publicly involved. He was reluctant to do this for a variety of reasons. Age and charges of senility always loomed as barriers to Madison when he contemplated reentering the political arena. He amusingly alluded to his age in a letter to Jared Sparks in what must be one of the most quoted lines he ever penned, “Having outlived so many of my cotemporaries, I ought not to forget that I may be thought to have outlived myself.”[7] Getting involved, for whatever limited effect he could have, in the acrimonious world of Jacksonian politics could hardly have been something to appeal to the elder statesman.


A young friend, protégé, and former private secretary of Madison’s, Edward Coles, was as involved as anyone in the political warfare that swirled around Andrew Jackson’s presidency. Coles implored his mentor to take up his pen to combat all of Jackson’s executive power grabs, ranging from his removal of federal deposits from the Second Bank of the United States to his inauguration of a spoils system for appointed offices in the federal government. Coles impetuously informed Madison of his “obligations which peculiar circumstances have placed you under to correct these errors.”[8] Coles, always sure that Madison agreed with him on everything whether it was his hatred of Jackson or his views on slave emancipation, told the former chief executive that “you should not conceal your opinions from your Countrymen, but that if you remain silent …. that the omission will be construed into your acquiescence in them.”[9] In his reply, Madison asked how he could be expected to engage in issues when there was a “habit now of invalidating opinions emanating from me by a reference to my age & infirmities?”[10] The rest of Madison’s response on the issue of getting involved in partisan Jacksonian politics was to ask Coles how he could possibly do so, for “Would not candour & consistency oblige me in denouncing the heresies of one side, not to pass in silence those of the other?”[11] Madison made it clear that he would be of no use to Coles in his political feuds with President Jackson.


Madison’s reticence to get involved in the bank controversy may be surprising considering what one might presume to be his personal attachment to the Second Bank of the United States given that it was he who signed its first charter in 1816. Madison’s reservations over the Bank had been quieted, with the former adversary deeming the new incarnation of Hamilton’s old idea to be sufficiently constitutional because its original passage and decades of operation “amounted to the requisite evidence of national judgment and intention.”[12] Charles Eaton Haynes wrote to Madison in 1831, asking for a clarification on Madison’s apparent turnaround on the Bank, “Believing that you were not influenced by that consideration [necessity after the War of 1812], & that justice requires the reasons of your assent be made public.”[13] In Madison’s letters to Haynes on this topic he was very clear about how his theory of constitutional construction allowed for his being reconciled to the Bank, especially as it was crafted in 1816, “The inconsistency is apparent only, not real; inasmuch as my abstract opinion of the text of the Constitution is not changed, and the assent was given in pursuance of my early and unchanged opinion, that in the case of a Constitution as of a law, a course of authoritative expositions sufficiently deliberate, uniform, and settled, was an evidence of the public will necessarily overruling individual opinions.”[14] For Madison, the constitutional and legal thinker, it was important “That precedents must be admitted, but they form exceptions which will speak for themselves and must justify themselves.”[15] Madison thought the Bank had proved its obvious utility and thus established a precedent during its years of operation. Even though Madison’s constitutional position on the Bank differed from Jackson, the issue was clearly not one of overarching importance or emergency for him, as evidenced by his refusal, despite the pleading of men like Coles, to leave his position “withdrawn from party agitations.”[16]


Aside from the Virginia Constitutional Convention, only the nullification crisis would get Madison off the sidelines of private correspondence and avid newspaper reading and back into the nasty political world of the emerging second party system.[17] By itself, John C. Calhoun and others espousal of the nullification probably have gotten Madison onto the public stage, but he had added incentive because the nullifiers explicitly tied their theory to the work Jefferson and Madison had done in 1798-1800 in their fight against the Federalist administration of John Adams and the onerous Alien and Sedition Acts.[18] Madison perceived something fundamentally dishonest in this connection, and he did everything, sometimes too much, in his power to combat and refute it.[19] But as one student of Madison’s political thought has succinctly put it, “The ‘spirit of ’98’ escaped Madison’s control to assume a life of its own.”[20]


In 1830, the growing nullification controversy triggered an epic debate in the U.S. Senate that Madison could not ignore. Daniel Webster of Massachusetts and Robert Hayne of South Carolina matched oratory, with both men drawing on Madison’s arguments, albeit from different times and in wildly different contexts, to defend their diametrically opposed visions of the union.[21] In perhaps the most amusing episode of Madison’s participation in the nullification crisis, Robert Hayne sent copies of his speeches against Webster to the ex-president “as an evidence of my high respect and esteem.” He then, rather arrogantly, told Madison that “I am also desirous of recalling your attention to the Constitutional principles involved in this controversy,”[22] as if it were possible for Madison to have overlooked this dimension of the debate. Hayne explicitly tied his position to Madison’s heroic leadership three decades earlier:

The Virginia Resolutions of ’98 and your admirable Report have almost faded away from the memory of the politicians of the present day. It is this forgetfulness which has led to the alarming assumptions of power on the part of the federal government, and I feel an entire conviction that nothing can save us from consolidation and its inevitable consequence the separation of the States, but the restoration of the principles of ’98, as illustrated in the documents above alluded to.[23]

He ended by telling Madison, “I should be gratified by knowing your present views, in relation to the great principles involved in these questions.”[24] Hayne was in for an incredibly long letter which explained the reasons for the writing of the Virginia and Kentucky Resolutions and Madison’s Report, and elaborated Madison’s views on the tariff and the idea of nullification. This letter to Hayne would later be adapted as a letter to Edward Everett for the purpose of being printed publicly so that those who cared would know what the remaining founding father thought of nullification and the efforts of its proponents to tie him and Jefferson to it. Hayne, according to one Madison biographer, spent four months in “shocked silence”[25] before sending what may have been the most astonishing letter Madison ever received, with the presumptuous passage, “They [Madison’s arguments] have failed to satisfy my mind that the doctrines advanced in my speech in the Senate are not the true doctrines of the Constitution or that they are inconsistent with the true spirit and meaning of the Virginia and Kentucky Resolutions of ’98 and ’99 or of your admirable Report in relation to the former.”[26] Madison’s confidence about his potential influence must have been shaken, not so much by his inability to get Hayne to renounce nullification, but Hayne’s by obstinacy and refusal to acknowledge that, indeed, Madison might know better than he, Hayne, what Madison had written.


Madison’s role in the nullification debates cannot be understood in the context of the familiar dichotomy scholars hereto attached to the Webster-Hayne debates, a dichotomy that pits extreme nationalists on one side and the nullifiers and secessionists on the other. Andrew Jackson, and for that matter James Madison, were not ultra-nationalists by any stretch of the imagination, yet they both vigorously opposed the nullifiers. Richard E. Ellis, a historian of the nullification crisis, has said that “The nullification crisis certainly was not simply, and perhaps not even mainly, a struggle between the proponents of nationalism and states’ rights. In a very fundamental way it also involved a struggle between advocates of different kinds of states’ rights thought.”[27] Another historian of Jacksonian politics has written that for “Andrew Jackson, South Carolina’s latest actions far exceeded the legitimate bounds of states’ rights. In his view, the Constitution clearly gave Congress the right to impose tariffs, while the principles of majority rule required South Carolina to submit to positive congressional decisions.”[28] Madison, no doubt, agreed with President Jackson, about the urgent need to challenge the nullifiers’ attempt to highjack the Jeffersonian tradition of states’ rights. Despite Madison’s reservations about stepping onto the field of political combat, the challenge to his own and to Jefferson’s legacy could not go unanswered. And there was a larger challenge to confront, the challenge posed to the Union under the Constitution, the grand work of Madison’s life and long career.


The aged patriarch received a significant confidence boost in the form of an old colleague’s letter in September 1830. That colleague was Kentucky Senator Henry Clay, whose collaboration with Madison went back as far as Clay’s oratorical shootout with John Randolph and simultaneous shepherding of the declaration of war in the House of Representatives in 1812.[29] The letter he sent was brief, but he enclosed a speech he had recently given about the events so important to the nullifiers, the “events of 1798-9, their motives and objects.”[30] Clay wanted Madison to read the speech because “As you bore so conspicuous a part in them, no one can judge whether the view which I have presented be correct or not,” except, of course, for Madison. After dealing with a man like Hayne, Madison was much pleased with Clay’s efforts, telling his old colleague that “The rescue of the Resolutions of Kentucky in -98 & -99, from the misconstructions of them, was very apropos; that authority being particularly relied on as an aegis to the nullifying doctrine which, notwithstanding its hideous aspect & fatal tendency, has captivated so many honest minds.”[31] For someone who had witnessed the entire history of the republic, with all the vicissitudes of the revolution, the confederation period, and then the operation of the government under the Constitution, it must have seemed absurd to have his and Jefferson’s attempts to foment resistance to such clearly unconstitutional pieces of legislation, as the Alien and Sedition Acts, compared to the efforts of some Southerners to foist an odd interpretive framework upon the country, which, if accepted, would surely presage the collapse of the Constitution (and hence the union) all because of a clearly legal, even if ill-advised, tariff.


A common charge of Madison’s contemporary critics ran that because Madison was near or over eighty years of age, he was no longer capable of logical reasoning or remembering why he had acted as he did thirty years previously. One of the main proponents of the idea of nullification was a fellow prominent Virginian, none other than Governor William Branch Giles. Governor Giles was smart enough to know Madison was hostile to nullification and thus based his defense of the theory more upon the writings of Jefferson than those of Madison.[32] Giles also went out of his way to undercut anything Madison might say against the nullifiers, proclaiming, “What Mr. Madison’s opinions at seventy-nine years of age may be, the writer knows not, nor can he even conjecture; but he proposes to rely upon his opinions of fifty, and the incontestable arguments which support them, whatever may be Mr. Madison’s own opinions at the present moment.”[33] This dodge by Giles to avoid an intellectual confrontation with a very much alive and mentally well Madison could hardly have impressed any serious followers of the controversy, particularly given Madison’s carefully thought out public writings on the topic like the Everett letter.


More serious criticism surrounded the supposed inconsistency of Madison rejecting nullification given his alleged support of it, or something akin to it, in 1798. To buttress this assertion, critics then and now have gone back through Madison’s whole career to find more instances of apparent contradiction to establish a pattern of intellectual reversals. These critics have also implied that his contradictions were not honorable and reflective changes of mind, but either the result of years or political whim. This is a colossal misread of the circumstances and of Madison’s political thought and priorities. The consistent underpinning of Madison’s constitutional ideas was his concern for the preservation of the union, usually by whatever means necessary, assuming they were constitutional. Madison’s conduct of the War of 1812 and the Bonus Bill veto fits into this schema because Madison could hardly conceive of a balanced, limited, and effective union under a constitution which was interpreted so liberally that the carefully laid out structures and delegated powers became meaningless. Such a system would be Hamilton’s “shilly shally thing of mere milk & water, which could not last, & was only good as a step to something better,” which was a conception of the Constitution that Madison and Jefferson had worked so hard for so many years to eradicate from the political scene.[34]


The supposed smoking gun on Madison’s inconsistency was his Bonus Bill veto, which capped off his presidency and came on the heels of a flurry of nationalistic legislation including a new Bank of the United States. Hostile historians have laid into Madison for what one of them has termed his “reputation for inconsistency,” stemming from his nationalist contributions to The Federalist and then subsequent opposition to Alexander Hamilton’s financial program.[35] Some have taken this critique to the point where antebellum politicians who laid the intellectual foundations for secession like John C. Calhoun look like innocent heroes crushed by Madison’s fickle and haphazard changes of opinion.[36] Kevin Gutzman has articulated this view in its most outlandish form:

His second term as president had ended on another outstanding note of tergiversation: the Bonus Bill veto of 1817. Ironically, it was precisely President Madison’s veto of the Bonus Bill that wrote finis to the prime legislative attempt of young Congressman John C. Calhoun to save the Union from mounting centrifugal forces.[37]

Suggesting, however vaguely, that Madison’s veto of the Bonus Bill somehow pushed Calhoun away from nationalism or, more outrageously, secured the end of the Union is laughable. On this issue alone Madison was perfectly clear to the congress about the constitutional considerations they had to pay attention to. In his seventh annual message and again in his eighth, both delivered after the war had ended, Madison called for a national program of road and canal building, but added constitutional caveats both times. “Any defect of constitutional authority which may be encountered can be supplied in a mode which the Constitution itself has providently pointed out,” was his warning at the end of 1815 while a year later he recommended that when “exercising their existing powers, and, where necessary, of resorting to the prescribed mode of enlarging them” in order to build roads and canals.[38] Madison was not trying to be cute and he was not using constitutional formalities for the sake of appearance or in some ritualized display of republican propriety. If any member of congress thought Madison took constitutionality lightly after his conduct of the war then they were certainly in for a well-deserved shock.


After congress passed the Bonus Bill in time for Madison to sign it into law as his last act as President, he firmly and politely refused. He reiterated his sympathies for the ends of the bill, “cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers”[39] to the constitutionally prescribed way of amendment but he made clear that he was “constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States.”[40] Knowing that his message was his last precedent-setting act while in office, Madison gave a brief exposition of his ideas about constitutional interpretation encapsulating the basic elements by, “seeing that such a power [to build roads and canals] is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and a reliance on insufficient precedents.”[41] Then as now Madison could not quell charges of hypocrisy and timidity. Gutzman writes, “Madison appears to be wildly inconsistent.”[42] But that could only have been true for anyone not paying any attention to Madison’s statements and actions, or had refused, at their own peril, to take him seriously.


Madison’s concern that the Union be preserved, with that Union under a government of limited powers which stayed true to the rule of law, constitutional precedent, and the understanding of the people at the time of ratification, placed him in an odd middle ground which few could understand. New and more polarized positions emerged and some new statesmen like Daniel Webster revived the ideas of the old Federalists, while people like Robert Hayne and John C. Calhoun set forth a view of the Union as a mere compact of sovereign states which could secede at will if they did not like the votes in congress. This necessary polarization (necessary because underneath it all lay an inescapable fundamental contradiction) further marginalized Madison’s importance and left him open to attack from those who were not so willing to sacrifice other values to union.[43] Yet even as the moment of nullification drew closer, Madison was still answering questions about his actions in 1798. In one such instance, Charles Eaton Haynes asked for,

An explanation of the extent to which you consider the states as parties to the federal compact “may interpose for arresting the progress of the evil, & for maintaining in their respective limits, the authorities, rights, & liberties appertaining to them, in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact.”? You will not fail to perceive that the object of my enquiries is to ascertain whether, in your opinion, a state can reject the operation of an act of Congress, that act being unconstitutional, according to the state in which such resistance is comprehended in the term nullification? I ask the question, not as connected with the constitutionality of a protecting tariff, for on that subject our opinions may differ, but as a constitutional question affecting, under every encroachment of federal authority, the rightful powers of the States.[44]

Madison’s response to this letter illustrates his growing frustration with repeatedly having to explain the same things over and over again. He began by saying “the distinction is obvious” between the proper methods for states to interpose against unconstitutional actions (i.e. the courts, elections, or those procedures mentioned in Article Five of the Constitution) and the proposed idea of nullification, which was a way for a small minority of states to force a constitutional crisis every time the federal government did something they did not like.[45] This method, as was apparent to Madison, could only ensure, not the preservation of “our liberties,”[46] but the collapse of the Union and the catastrophe that that would entail for the liberties of all. The only thing Madison would acknowledge was that “extreme cases of oppression” could justify “a resort to original rights,” i.e. the right of revolution, in which case the Constitution was finished anyway and there was no need to create imaginary methods of altering it.[47] The crisis was approaching a critical moment, as Jackson became more bellicose and the nullifiers more defiant Madison could see that argument was increasingly unlikely to solve the impasse. Other means would be needed if the Union was going to survive what was its most serious threat since 1820.


History has remembered Henry Clay as “The Great Compromiser” for a reason, and it is no surprise that Madison turned to the Kentuckian in the spring of 1832 as debates raged in the congress over a new tariff bill. Madison told Clay, “To these painful ideas [threats of nullification and the calling of a Southern Convention] I can only oppose hopes & wishes that notwithstanding, the wide space & warm feelings which divide the parties, some accommodating arrangements may be devised that will prove an immediate anodyne, and involve a lasting remedy to the Tariff discords.” If such a compromise failed to appear, Madison had apprehensions of the “disastrous consequences of disunion,” which were “obvious to all.” Madison hoped that such fears would serve as a “powerful check,” but knew that the country was precariously close to the brink. When the congress passed a modified tariff, which reduced most of the onerous rates that Southerners had protested in 1828, President Jackson signed it. The result was not reconciliation, but nullification.[48]


Though South Carolina would not formally nullify the Tariffs of 1828 & 1832 until November 1832, Madison and other anti-nullifiers of all partisan affiliations corresponded and worked feverishly to head off such an event in the months leading up to it. Madison was able to converse freely with Jacksonian officials ranging from future Vice-President Martin Van Buren and Secretary of State Edward Livingston, to Jackson’s private secretary and Madison protégé Nicholas P. Trist and even the President himself. One Madison biographer has pointed out that,

At the same time, by retaining his ties to the leading anti-Jackson foes of nullification, Clay, Webster, and John Quincy Adams, Madison was the nonpartisan elder statesman, the honorary chairman of an informal national committee to preserve the Union.[49]

It was in this period that Madison, often confined to his sickbed and with crippling rheumatism, made his final contributions to the preservation of the Union he held so dear.


The only problem with Madison’s heroic efforts in the twilight of his life was that he was aiming all of his remaining intellectual firepower in the wrong direction. He was arguing the constitutionality of tariffs and the irrationality of nullification while he remained silent on slavery, the perceived threat to which had caused the new-found Southern consternation over federal power (in Northern hands) in the first place. Madison was caught in a precarious and entirely self-imposed dilemma. The core issue for the supporters of nullification was the protection of slavery, the one issue which Madison knew could tear the Union apart and which he had pledged not to bring to the national political discourse.


Even though the aspersions against his age and intellectual consistency were frustrating and annoying to Madison, it was the issue of slavery which posed the biggest problem. It had always been his policy to keep what he knew, from his experience at the Constitutional Convention, was a potentially fatal issue to the Union out of public debate. Madison’s fatal consistency on slavery became an unfortunate tradition that was upheld by such subsequent American politicians as Henry Clay and Martin Van Buren (at least before 1840). As a result, the one issue that really was the threat to the Union was purposely ignored. The fact that men like Clay and Madison recognized the moral evil of slavery but did nothing to cut through the sophistries of the nullifiers, who were using the tariff as a screen for the larger threat that might come to slavery, meant that Madison was committing (for the final time) the fatal error of the founding.


South Carolina nullified the Tariffs of 1828 and 1832 in November 1832, prompting President Jackson to issue his Nullification Proclamation declaring the doctrine illegitimate. President Jackson made it clear he would be willing to use armed force to carry out the laws of the federal government. This was a political blunder that ended up alienating many anti-nullifiers in the South who thought Jackson was being rash. Richard E. Ellis has pointed out that Jackson’s reaction allowed Calhoun and the South an out: “The nullifier strategy of shifting the focus of debate from their own highly controversial constitutional doctrines to the dangers inherent in Jackson’s fierce determination to enforce the laws in South Carolina had succeeded.”[50] Madison was relieved in early 1833 when his old political ally, Henry Clay, proposed the compromise tariff that would finally end the nullification crisis. Madison, while happy the tensions were slackening off, wrote to Clay of his fears for the future because the nullifiers had “bequeathed” a dangerous legacy “to [their] country; by the insidious exhibitions of a permanent incompatibility and even hostility of interests between the South & the North; and by the contagious zeal in vindicating & varnishing the doctrines of Nullification & Secession; the tendency of all of which, whatever be the intention, is to create a disgust with the Union, and then to open the way out of it.”[51] Madison’s defense against this disastrous possibility was the idea that “We must oppose to this aspect of things a confidence, that as the gulf is approached, the deluded will recoil from its horrors, and that the deluders, if not themselves sufficiently startled, will be abandoned & overwhelmed by their followers.” This sort of wishful thinking meant that no one, including Madison, would have to address the very real threat to the Union that hardly anyone had mentioned during the crisis but lay just beneath the surface, slavery. Twenty-eight years later Madison’s union, his optimistic hopes notwithstanding, would come crashing down.


Henry Clay did bring up slavery in his reply to Madison, foreshadowing the great debates of the next two and a half decades which, before culminating in the Civil War, would provide one more crisis that demanded Clay’s compromising services. Quite bluntly, Clay told Madison, “The political malcontents in the South seem to have adopted a new theme to excite alarm and to disseminate sentiments unfriendly to the Union. … I hope that the Intelligence of the Country will perceive the object, and perceive also that there is not the slightest foundation for the alarm. I have never yet met with any Northern man who thought that Congress ought to interfere on the subject of the emancipation of the Slaves of the South further than to afford aid in accomplishing that object, if the South desired it.”[52] This rather dubious luxury of having no Northerners pushing the South to free the slaves would not last much longer. In his reply to Clay on the matter of Southerners trying to sow the seeds of discontent by way of insinuating that Northerners intended to force the South to emancipate the slaves, Madison put his confidence in the willingness of Northerners to put union above their concerns over the peculiar institution (as he was),

It is painful to observe the unceasing efforts to alarm the South by imputations agst the North of unconstitutional designs on the subject of the slaves. You are right, I have no doubt in believing that no such intermeddling disposition exists in the Body of our Northern brethren. Their good faith is sufficiently guarantied by the interest they have, as merchants, as Ship owners, and as manufacturers, in preserving a Union with the slaveholding States.[53]

In an odd premonition of which side would perform better were the two regions to separate, Madison added “On the other hand, what madness in the South, to look for greater safety in disunion. It would be worse than jumping out of the Frying-pan into the fire: it wd. be jumping into the fire for fear of the Frying-pan.”[54] The Union had been saved, but its salvation had come, as was repeatedly the case in the antebellum United States, at the expense of ignoring or sweeping under the rug more fundamental issues and problems. South Carolina was not even made to repudiate nullification with Clay’s compromise, and the nullifiers won the assurance that in nine years protectionism would be dead. Slavery endured, was never dealt with and purposely avoided so that it would not have to be.


Madison did his utmost to stay above the political fray, criticizing Webster’s overzealous nationalism while also praising his rhetorical efforts against the nullifiers. At the end of the immediate crisis in 1833 Madison was in bad shape in respect to his health and he could see that the threat had only been contained, not vanquished. No one has captured the sense of Madison’s frustration by the end of the battle better than McCoy, “Now the elderly Madison had no choice but to exhort posterity to be wise enough to understand – and to voluntarily embrace – a priceless legacy [the Constitution and union] that was in danger of being lost forever.”[55] The threat to the Union posed by nullification and the underlying problem of slavery, which Madison would never conclusively deal with, had the former president at the point of doubting his remaining efficacy as an effective public figure among the new generation of Americans who were running things.[56] This was not the irrational fear of a sick old man, but the realization that he could not be the central figure anymore in saving the Union he had devoted his public life to creating and defining. Perhaps, imbedded in this realization was another, that his dream of perpetual union was fatally compromised by his own compromise with slavery which, as McCoy argues, “undid him.”[57]


It was in the years after the crisis had passed that Edward Coles sent his letter asking Madison to mobilize against President Jackson’s actions against the Bank. Aside from the elements discussed earlier which annoyed Madison, was the following assertion Coles made, “The doctrine of nullification, however dangerous to the peace & union of the States, was harmless compared to the Executive powers & prerogatives now claimed by the President of the U. S.—The former was set forth by only a single State, & that comparatively a feeble one, and was considered absurd by the others; whereas the latter are sustained by all the popularity and power and patronage of the Chief Magistrate of the U. S.”[58] To this Coles added that “Nullification only endangered the Union—Jacksonism, or the doctrines of the President—are destructive of many of the great fundamental principles on which rest the Federal as well as the State Governments.”[59] This highly politicized reasoning struck Madison as irrational and dangerous – irrational because Jackson was a transient political figure whose “popularity is evidently and rapidly sinking under the unpopularity of his doctrines,”[60] and dangerous because Coles seemed to forget that nullification was alive, and what was “more evident than the progress it continues to make,” was that “Nullification has the effect of putting powder under the Constitution & Union, and a match in the hand of every party, to blow them up at pleasure.”[61] This correspondence occurred after the bruising nullification debates had ended in Clay’s compromise tariff. Madison’s odyssey through the crisis is instructive of the effectiveness and limitations of his influence in later years and the degree to which the new generation shared his concern that the Union not be broken up “into parts which a miracle only could reunite.”[62] It is also instructive of how long the fundamental contradiction of the Union could go on without being decided one way or the other. A Madison admirer from Illinois, among others, would bring this contradiction to the fore in the years after Madison had departed the scene.


The nullification crisis stands as a rather gloomy and tragic chapter in American history, foreshadowing much of what was to come, with one historian of the crisis bluntly saying, “The seemingly inconclusive outcome of the nullification crisis, especially where constitutional issues are involved, should not obscure the fact that it basically worked to the advantage of the nullifiers.”[63] Despite the efforts of Madison’s reasoning and the bellicose threats from President Jackson, the nullifiers were able to assure the defeat of protectionism (albeit not for another decade) and keep their “state compact” constitutional theory, with its corollary of secession, alive. Slavery, the proverbial elephant in the room, underlay the Southern concern over the power of the federal government, and yet it was not explicitly identified by the major participants, including Madison. Madison’s consistent refusal to make an issue of slavery is not surprising, but this tradition – a central element of Madison’s legacy – fatally compromised both the character and longevity of his beloved Union.[64]


The nullification crisis represented, at the very least, the last foray into the public world James Madison would make. One historian has said, “It was fitting that virtually the last remnant of Madison’s strength should be expended against an effort to deny to the nation the benefits of mutual accord that could only come in union.”[65] But Madison had entered the field apprehensive of the problems he would face among a new generation of Americans who viewed him more as an icon than a political actor. His apprehensions were well-founded, as he was the target of constant aspersions against his state of mind and ability to reason in his advanced age. He was forced to repeatedly defend actions from earlier parts of his career, and even when he expended tremendous amounts of effort and intellectual labor he met with reactions like those of Hayne and Giles, who declared they knew Madison’s positions better than Madison did. Despite his overwhelming desire to save his and Jefferson’s reputations from the clutches of the nullifiers and to preserve the union, Madison only succeeded in contributing to another Henry Clay compromise that offered, at best, a temporary fix. North and South would learn only too soon that compromise over such fundamental issues as whether or not men could be held as slaves was impossible in a country dedicated to human liberty. The old Madisonian solution of not talking about slavery – of attempting to “straddle” the gulf between those who wanted to do something about the ghastly blight on the republic, and those who wanted to do nothing – would simply no longer work. Without a viable alternative, Madison’s union was doomed, and in that very real and very tragic sense, Madison had “outlived” himself.



[1] James Madison, Notes of Debates in the Federal Convention of 1787 (New York: W.W. Norton and Company, 1966), 530 & 532.
[2] “Advice to My Country,” The Writings of James Madison, Vol. IX, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1910), facsimile at the end of the text.
[3] U.S. Constitution, Article One, Section Eight
[4] William W. Freehling, Prelude to Civil War (New York: Oxford University Press, 1966), 134-36.
[5] Harry L. Watson, Liberty and Power: The Politics of Jacksonian America (New York: Hill and Wang, 1990), 117-18.
[6] James Madison to Edward Everett, 28 August 1830, Writings, ed. Jack N. Rakove (New York: Library of America, 1999), 849.
[7] James Madison to Jared Sparks, 1 June 1831, Writings of James Madison, IX, 460.
[8] Edward Coles to James Madison, 17 August 1834, “Letters of Edward Coles,” William and Mary Quarterly, 2nd Ser., Vol.7, No. 1 (Jan., 1927), 41.
[9] Ibid. For more on the relationship of Madison and Coles, particularly Madison’s occasional annoyance with his young friend see McCoy, Last of the Fathers, 104-5 and 158-9.
[10] James Madison to Edward Coles, 21 August 1834, Writings of James Madison, IX, 537.
[11] Ibid.
[12] James Madison quoted in Ralph Ketcham, James Madison (Charlottesville: University Press of Virginia, 1990), 506.
[13] Charles Eaton Haynes to James Madison, 17 June 1831, in James Madison Papers, American Memory (Library of Congress Online), series two (microfilm), [http://hdl.loc.gov/loc.mss/mjm.26_2007_2008].
[14] James Madison to Charles Eaton Haynes, 25 February 1831, Writings of James Madison, IX, 442-3.
[15] Ibid, 443.
[16] James Madison to Edward Coles, 29 August 1834, Writings of James Madison, IX, 536-7.
[17] Many Madison biographers have pointed out the amazing number of newspapers that he was able to avidly read and keep up with. See Ketcham, James Madison, 630; Jack N. Rakove, James Madison and the Creation of the American Republic, ed. Oscar Handlin, 2nd ed. (New York: Longman, 2002), 208; and McCoy, Last of the Fathers, 27-30.
[18] For a thorough discussion of how people have “misread” or have “liberally” misused Jefferson’s and Madison’s work from 1798-1800, written at a time when such abuses were resurfacing, see Adrienne Koch and Harry Ammon, “The Virginian and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties,” The William and Mary Quarterly, 3rd Ser., Vol. 5, No. 2 (Apr., 1948), 145-176.
[19] It is clear that in his efforts to make sure his views from 1798-1800, along with those of Jefferson, were not used by the nullifiers Madison may have tried to alter documents or feign forgetfulness, while it is not clear to what extent he may have done this, there have been verified cases of tampering; see Garry Wills, James Madison (New York: Times Books, 2002), 162-3; Irving Brant, James Madison: Commander in Chief: 1812-1836 (Indianapolis: The Bobbs-Merrill Company, 1961), 483-4; and Marvin Meyers, The Mind of the Founder, ed. Marvin Meyers (Indianapolis: The Bobbs-Merrill Company, 1973), 532.
[20] Meyers, The Mind of the Founder, 299.
[21] Brant, Commander in Chief, 476-79.
[22] Robert Hayne to James Madison, 5 March 1830, in James Madison Papers, American Memory (Library of Congress Online), series one (microfilm), [http://hdl.loc.gov/loc.mss/mjm.23_0049_0050].
[23] Ibid.
[24] Ibid.
[25] Brant, Commander in Chief, 480.
[26] Robert Hayne to James Madison, 22 July 1830, in James Madison Papers, American Memory (Library of Congress Online), series two (microfilm), [http://hdl.loc.gov/loc.mss/mjm.26_1989_1992].
[27] Richard E. Ellis, The Union at Risk (New York: Oxford University Press, 1987), 178.
[28] Watson, Liberty and Power, 127.
[29] Ketcham, James Madison, 526-7.
[30] Henry Clay to James Madison, 22 September 1830, The Papers of Henry Clay, ed. Robert Seager II and Melba Porter Hay (Lexington: University Press of Kentucky, 1984), Vol. VIII, 269.
[31] James Madison to Henry Clay, 9 October 1830, Writings of James Madison, IX, 410-11.
[32] For a discussion on how different Thomas Jefferson’s thought may have been from James Madison’s see Merrill D. Peterson, Thomas Jefferson and the New Nation (New York: Oxford University Press, 1970), 612-24.
[33] William Branch Giles quoted in Brant, Commander in Chief, 475.
[34] Alexander Hamilton’s view reported by Thomas Jefferson in “The Anas” found in Jefferson, Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 682.
[35] Kevin R. Gutzman, “A Troublesome Legacy: James Madison and ‘The Principles of ’98,’” Journal of the Early Republic, Vol. 15, No. 4 (Winter, 1995), 584. Beginning with Hamilton, who thought Madison had totally reversed himself, historians have tended to emphasize the suddenness and surprise of Madison’s opposition in the House of Representatives. Perhaps too much has been made of this “sudden” split since both men were federalists in the sense that they wanted the Constitution ratified, but had different reservations and motivations in this alliance. See Stanley Elkins and Eric McKitrick, The Age of Federalism (New York: Oxford University Press, 1993), 92-3 and 137; for an in depth study of the political economy developed by Jeffersonians and Madison in particular see Drew R. McCoy, The Elusive Republic (Chapel Hill: University of North Carolina Press, 1980).
[36] For an excellent point by point exposition of Calhoun’s political philosophy see Harry V. Jaffa, A New Birth of Freedom (Lanham, MD: Rowman & Littlefield, 2000), 403-71.
[37] Gutzman, “A Troublesome Legacy,” 584.
[38] James Madison, “Seventh State of Nation, Washington, DC, 1815-12-05,” [http://odur.let.rug.nl/~usa/P/jm4/speeches/jmson7.htm]; Madison, “Eighth State of Nation, Washington, DC, 1816-12-03,” [http://odur.let.rug.nl/~usa/P/jm4/speeches/jmson8.htm].
[39] James Madison, Writings, “Veto Message to Congress, 3 March 1817,” 720.
[40] Ibid, 718.
[41] Ibid, 720.
[42] Gutzman, “A Troublesome Legacy,” 585.
[43] While Madison was mainly dealing with the southern element of this phenomenon, the northern element of abolitionists, those willing to put the end of slavery above union with slavery, would be just as disappointed with Madison and later politicians like him, i.e. Douglas and even Lincoln, for their refusal or hesitation in this matter.
[44] Charles Eaton Haynes to James Madison, 12 August 1832, in James Madison Papers, American Memory (Library of Congress Online), series two (microfilm), [http://hdl.loc.gov/loc.mss/mjm.26_2020_2023].
[45] James Madison to Charles Eaton Haynes, 27 August 1832, Writings of James Madison, IX, 482-3.
[46] John C. Calhoun quoted in Watson, Liberty and Power, 121.
[47] James Madison to Charles Eaton Haynes, 27 August 1832, Writings of James Madison, IX, 483.
[48] James Madison to Henry Clay, 22 March 1832, Writings of James Madison, IX, 477-78.
[49] Ketcham, James Madison, 644.
[50] Ellis, The Union at Risk, 101.
[51] James Madison to Henry Clay, 2 April 1833, The Papers of Henry Clay, VIII, 636.
[52] Henry Clay to James Madison, 28 May 1833, The Papers of Henry Clay, VIII, 643.
[53] James Madison to Henry Clay, June 1833, Writings of James Madison, IX, 517.
[54] Ibid.
[55] McCoy, Last of the Fathers, 162.
[56] Ibid, 151.
[57] Ibid, 252.
[58] Edward Coles to James Madison, 17 August 1834, “Letters of Edward Coles,” 40.
[59] Ibid.
[60] James Madison to Edward Coles, 29 August 1834, Writings of James Madison, IX, 540.
[61] Ibid.
[62] Ibid, 542.
[63] Ellis, The Union at Risk, 183.
[64] For an excellent account on Madison’s actions in the first congress to suppress talk of slavery see Joseph J. Ellis, Founding Brothers (New York: Vintage, 2002), 81-119.
[65] Ketcham, James Madison, 646.

Divergent Paths: Rights in the American and French Revolutions

The crisis is arrived when we must assert our rights, or submit to every imposition, that can be heaped upon us, till custom and use shall make us as tame and abject slaves. – George Washington, 24 August 1774[1]

Let us follow the example of the United States: they have set a great example in the new hemisphere; let us give one to the universe, let us offer a model worthy of admiration. – Duke Mathieu de Montmorency, 1 August 1789[2]

[The French] have taken Genius instead of Reason for their Guide, adopted Experiment instead of Experience and wander in the Dark because they prefer Lightning to Light. – Gouverneur Morris, 18 September 1790[3]

Terror is nothing but prompt, severe, inflexible justice; it is therefore an emanation of virtue. It is less a special principle than a consequence of the general principle of democracy applied to our country’s most pressing needs. – Robespierre, 5 February 1794[4]

The last quarter of the eighteenth century was witness to more than just two ground-breaking revolutionary movements on either side of the Atlantic. Beyond the American and French Revolutions were republican movements in Switzerland, Holland, Poland, and the slave insurrection on French Saint Domingue. However, the American and French Revolutions stood apart from these other events for a couple of reasons; 1) the American Revolution presaged the reestablishment of a large scale national republic since the days of antiquity and 2) the French Revolution heralded the collapse of a monarchy hundreds of years old in the most heavily populated country of Europe, to be replaced by a constitutional monarchy, then a republic, then a military dictatorship, and then a restored Bourbon monarchy. One of the greatest lingering historiographical problems has been to explain the divergent paths these revolutions took, with the United States emerging from constitutional crises with the first large national republic since Rome while France, almost from the opening moments of its revolution, descended into chaos and violence, eventually engulfing all of Europe and much of the world (including the United States) in war for a quarter of a century.

Susan Dunn, a scholar of both revolutions, has argued that in America there was a “driving passion was for freedom” while in France the people wanted “a nation of equal citizens.”[5] She summed up the main difference of the revolutions as alternate ways of engaging in politics,

Tumult, division, and competing interest groups in the United States vs. concord, unity, and community in France. Here were the antithetical concepts of democracy and nationhood that shaped the core values of both revolutions, influencing, as we shall see, their notions of individual rights and freedoms, coloring their political discourse and style, and setting the stage for the success or failure of the two revolutionary projects.[6]

Dunn set up the dichotomy and explored the thought of the revolutionaries but did not much look into the philosophical antecedents that were the precursors to the split. Her work on rights instead focused on the more apparent, but less essential, difference in the rights of the Americans being proscriptions against the state as opposed to positive assertions of the citizens.

Another question arises of whether the split between the revolutions came right at the start of the French Revolution. This problem was debated as much at the time of the Revolution by those observing it on either side of the Atlantic as it is now among historians. Dunn saw the split immediately with the “Declaration of the Rights of Man and Citizen” in comparison to the Bill of Rights (which came two years later) and the individual states’ bills of rights (which came at various times before).[7] Simon Schama also saw the French Revolution as fundamentally different in course from its beginning as opposed to veering off later with the rise of Jacobinism and the Terror. He famously wrote in his bestselling account of the French revolution that, “The Terror was merely 1789 with a higher body count. From the first year it was apparent that violence was not just an unfortunate side effect from which enlightened Patriots could selectively avert their eyes; it was the Revolution’s source of collective energy. It was what made the Revolution revolutionary.”[8] Schama was echoing other historians of the French Revolution, namely Augustin Cochin and François Furet, the latter of whom wrote,

The truth is that the Terror was an integral part of the revolutionary ideology, which, just as it shaped action and political endeavor during that period, gave its own meaning to ‘circumstances’ that were largely of its own making. There were no revolutionary circumstances; there was a Revolution that fed on circumstances. The mechanism of interpretation, action and power I have attempted to describe above was fully operative from 1789. There is no difference in kind between Marat in 1789 and Marat in 1793. Nor were the murders of Foulon and Bethier fundamentally different from the massacres of September 1792, any more than Mirabeau’s aborted trial after the October Days of 1789 was different from the sentencing of the Dantonists in the spring of 1793. As Georges Lefebvre noted in an article in 1932, the aristocratic plot was, as early as 1789, the outstanding feature of what he called the ‘collective revolutionary mentality’; indeed I regard the plot as central to the system of notions and actions that constituted the revolutionary phenomenon itself.[9]

Even if one accepts that the French Revolution was different from the beginning and did not descend into a tragic trajectory later on, the pertinent and fundamental question of “why?” still lingers and demands answering.

The answer lies in the divergent intellectual currents which developed in the Enlightenment and upon which of those currents the different revolutionaries chose to build their revolutions and subsequent governments. One could explore all sorts of manifestations of ideas in such a broad field, including the various structures given to different governments, the presence or absence of unicameralism, the independence of the judiciary or lack thereof, the power of the executive, or the non-existence of one of these branches of government as a separate entity. More important in the development of political thought in the Enlightenment and coming out of these revolutions is the concept of political rights. This is not to suggest that political rights were brand new with George Mason’s Virginia Declaration of Rights in 1776, far from it, the concept stretched back in English history over a thousand years. That being said, the concept underwent an important and revolutionary transformation in the seventeenth and eighteenth centuries that began to have real repercussions for the entire world beginning with the American and French Revolutions. Gordon Wood, speaking of the transition from British to American constitutionalism, captured the transformation of the concept of political rights beautifully,

It is not just written and unwritten constitutions that separates the British from the Americans; the separation runs deeper than that. American rights are not merely rights of the people against the power of the government [a remarkable achievement by itself achieved by the British with Magna Carta in 1215 and again with the Bill of Rights in 1689]; they are the rights of individuals against the power of the people themselves. Such rights set against the will of the whole society have given a permanent individualist cast to our law and our constitutionalism—much more so than the English law and constitutionalism from which ours are derived.[10]

The American and French Revolutionaries would come to see political rights in different ways. Sometimes the differences were subtle and sometimes they were profound, but the differences were crucial in determining the relation of the states created by the revolutionaries to their individual citizens and would, by extension, be crucial to the success or failure of the two revolutions.

Historians’ debates aside, the nature of the revolutions similarities and differences were fiercely contested contemporaneously. It is a little surprising that the most heated internationally read debate over the nature of the French Revolution was penned by two adversarial Englishmen. Edmund Burke could not have been more emphatic in his condemnation of the French Revolution if he tried. This surprised (according to him) Thomas Paine, who had penned Common Sense to help convince Americans to rebel and The Crisis to convince them to keep the rebellion going. During that conflict Burke and Paine had been on the same side, Burke had actually endorsed the colonists’ efforts to preserve their rights as Englishmen. When the French Revolution began it did not take either of them any time to figure out which side to be on, but this time they were on opposite sides and worked against one another with their pens. Burke spoke for many critics of the revolution, in England, America, and France in expressing his hesitation to jump of the French revolutionary bandwagon until he saw where it was going,

Is it because liberty in the abstract may be classed amongst the blessings of mankind, that I am seriously to felicitate a madman who has escaped from the protecting restraint and wholesome darkness of his cell on his restoration to the enjoyment of light and liberty? Am I to congratulate a highwayman and murderer who has broke prison upon the recovery of his natural rights?[11]

Unsurprisingly, Tom Paine, who would be elected to the Convention at the start of the republic in September 1792, was outraged and put his considerable talents to work for the French Revolution. Paine unraveled Burke’s many repeated appeals to tradition which had been used to attack the “innovations” at work in France and to support the British Constitution. Paine also provided an English translation of the Declaration of the Rights of Man and Citizen, the first three articles of which he called, “the basis of Liberty, as well individual as national.”[12] Yet with the ascendancy of Robespierre, Paine ended up in prison and only barely avoided going to the guillotine for his lack of enthusiasm in beheading Louis XVI.

Tom Paine and Edmund Burke were not the only veterans of the American Revolutionary experience who had taken opposite sides in the debate over the French Revolution. The tumult in France sundered the American political scene as well, pitting Federalists, hesitant and then hostile to the situation, against Jeffersonians who were sympathetic and incredibly enthusiastic about the possibility of worldwide republican revolution. The split was highly acrimonious, turned former friends and allies into enemies, and contributed greatly to the first widespread public criticisms of President Washington because of his declaration of neutrality in the conflict between republican France and monarchical England. In France as the first ambassador of the United States under the new constitution Gouverneur Morris wrote to President Washington of his fears as early as 31 July 1789, explaining, “You may consider the Revolution as compleat; that is to say the Authority of the King and of the Nobility is completely subdued, but yet I tremble for the Constitution. They have all that romantic Spirit and all those romantic Ideas of Government which, happily for America, we were cured of before it was too late.”[13] Alexander Hamilton wrote to Lafayette in October of 1789 to express his growing concerns about the course the revolution was taking, beginning, “As a friend to mankind and to liberty I rejoice in the efforts which you are making to establish it while I fear much for the final success of innovations greater than will consist with the real felicity of your Nation.”[14] He listed his greatest fears to the success of securing liberty in France,

I dread disagreements among those who are now united (which will be likely to be improved by the adverse party) about the nature of your constitution; I dread the vehement character of your people, whom I fear you may find it more easy to bring on, than to keep within Proper bounds, after you have put them in motion; I dread the interested refractoriness of your nobles, who cannot all be gratified and who may be unwilling to submit to the requisite sacrifices. And I dread the reveries of your Philosophic politicians who appear in the moment to have great influence and who being mere speculatists may aim at more refinement than suits either with human nature or the composition of your Nation.[15]

Hamilton’s concerns only grew during the next years of the revolution and he would conclude in 1794, that while all Americans had greeted the news of revolution in France in 1789 with “a warm zeal,” the “excesses which have constantly multiplied, with greater and great aggravations have successively though slowly detached reflecting men from their partiality for an object which has appeared less and less to merit their regard.”[16] Principal architect of the 1780 constitution of Massachusetts and Federalist Vice-President John Adams was anxious about the revolution in France from its beginning, writing to Richard Price in April 1790 Adams predicted that the new constitution, which vested all power into the National Assembly, would either be altered or France would re-enact the tragedies of the past, concluding, “Too many Frenchmen, after the example of too many Americans, pant for equality of persons and property. The impracticability of this, God Almighty has decreed, and the advocates for liberty, who attempt it, will surely suffer for it.”[17]

In what was perhaps the nadir of their careers, Jefferson and his political allies took another view that became more and more attached to the French cause as the Federalists grew apart from it. Jefferson himself, sounding very near Saint-Just and Robespierre, wrote to William Short, who was beginning to have apprehensions about the revolution, in January 1793 that “The liberty of the whole earth was depending on the issue of the contest, and was ever such a prize won with so little innocent blood? My own affections have been deeply wounded by some of the martyrs to this cause, but rather than it should have failed, I would have seen half the earth desolated. Were there but an Adam and an Eve left in every country, and left free, it would be better than as it now is.”[18] Morris’s successor, the Francophile James Monroe, arrived on the scene after Robespierre’s downfall and reported, as if it were a fact, the official line of the Post-Thermidorean government, “that, from the period of Danton’s fall, Robespierre had amassed in his own hands all the powers of the government, and controuled every department in all its operations. It was his spirit which ruled the committee of public safety, the Convention, and the revolutionary tribunal.”[19] Monroe basically suggested that Robespierre had somehow turned the revolution into a bloodbath through usurpation, highlighting the already begun mythology that the fall of Danton was the turning point of what had been a promising revolution. Even the circumspect and well-reasoned James Madison was not immune to the hyperbolic rhetoric over the French Revolution. Writing to Jefferson in September 1793 he ridiculed Washington’s efforts to stay out of the war with his neutrality declaration, called the appointment of Gouverneur Morris as ambassador “unfortunate,” and showed just how much the French Revolution had become a political litmus test, referring to a conversation he had with a prospective ally, “He talks like a sound Republican, and sincere friend to the French cause in every respect.”[20] In an article he wrote for the Aurora General Advertiser in February 1799 he actually managed to praise the Directory, less than a year before Napoleon got rid of it, as a “model of virtue” for not destroying liberty in France despite commanding a very large standing army which (as Madison left out) at that time was being used in offensive and aggressive military campaigns all over Europe and the Middle East.[21]

Jefferson would later admit fault in his assessment of the French Revolution, albeit grudgingly, telling John Adams that “Your prophecies to Dr. Price proved truer than mine; and yet fell short of the fact, for instead of a million, the destruction of 8. or 10. millions of human beings has probably been the effect of these convulsions. I did not, in 89. believe they would have lasted so long, nor have cost so much blood. But altho’ your prophecy has proved true so far, I hope it does not preclude a better final result.”[22] Jefferson’s still thinking, after a quarter century of warfare and unremitting bloodshed, that a better final result would occur was nothing other than the opinion of an indomitable optimist. He also still believed a quarter century after the revolution started that it had begun on a higher level than that which it ended, writing to a friend of his in France he reflected, “But of what scenes has it [Paris] since been the theatre, and with what havoc has it overspread the earth! Robespierre met the fate, and his memory the execration, he so justly merited.”[23] At the very least Jefferson and his allies were able, retrospectively, to avoid Hamilton’s harsh condemnation that, “If there be any thing solid in virtue—the time must come when it will have been a disgrace to have advocated the Revolution of France in its late stages.”[24]

An historian of the French Revolution has said quite accurately that “It has never been possible to be neutral about the French Revolution,”[25] and this is largely true about the American Revolution as well. The clear difference is that the efforts of the American revolutionaries and the documents they produced are still the active foundation of an operating state, while those produced by the French Revolutionaries in 1789, 1793, and 1795 represent historical documents separated from operative governments. Certainly the Fifth Republic is the heir of the revolution but it was not born from that revolution. The result is that the arguments created by the American Revolution still occur under the aegis of modern American politics while those spawned from the French Revolution are held in one of the great “What ifs ….?” of history. Rather than pretend neutrality over either revolution or speculating on the potentialities of the French Revolution in comparison to the ongoing outcome of the American Revolution, I will seek to shed light on the conception of political rights developed by both sets of revolutionaries and how this contributed to the different outcomes.

* * *

Before one can properly look to the revolutionaries in America and France and their work on political rights, it is necessary to examine the philosophical precursors which influenced them and in some cases formulated the political doctrines and ideas of rights the revolutionaries would adopt and put into practice. It is almost the ultimate truism of intellectual history to say that John Locke, the seventeenth century Scottish philosopher, was the ideological forbear of the American founding fathers. Yet Locke’s thought was extremely valuable to the founders and they openly proclaimed their attachment to him, Jefferson calling Locke one of “the three greatest men that have ever lived, without any exception,”[26] and to not look into his ideas on liberty and rights a little more in depth, accepting the truism only, would be a disservice.

Many of the political theorists of Locke’s day, beginning with Thomas Hobbes, were concerned with the formation of political society. Why had men chosen to form societies and governments, exiting the “state of nature” which had been their original condition? Since the time when men lived in the state of nature long predated writing and the “invention” of written history attributed in the Western world to Herodotus, the state of nature was a theoretical starting point upon which thinkers like Hobbes and Locke could then reason about the proper functions and forms of government. Locke saw the state of nature as a condition of total freedom and sovereignty for individuals. Individual men were “willing to quit this Condition, which however free, is full of fears and continual dangers” from other men wishing to take their property “and is willing to joyn [sic] in Society with others who are already united, or have a mind to unite for the mutual Preservation of their Lives, Liberties, and Estates, which I call by the general Name, Property.”[27] Property was crucial to Locke’s conception of government, which he posited was only in existence to protect the property of those who had consented to forfeit a share of their sovereignty to a government for that purpose. Locke said this clearly enough when speaking of the power to tax, writing that when a governor can take property “without such consent of the People, he thereby invades the Fundamental Law of Property, and subverts the end of Government. For what property have I in that which another may by right take, when he pleases to himself?”[28] The importance of this idea of government and Locke’s conception of what government was in place to do, i.e. protect the lives, liberties, and property of its citizens, was that individuals took preeminence not only in the state of nature, but also in civil society. The revolutionaries of America and France would adopt Locke’s view of the importance of property, but there would be a divergence over the role of individual citizens in the country at large, as will become clear.

The American revolutionaries followed a political tradition dating back to Locke and the Glorious Revolution of 1688 which was known as the country or “Whig” party in England. The men who would lead the revolution in 1776 and the republic were followers of a radical Whig tradition that had as its leading political theorist Algernon Sidney, whose great work Discourses Concerning Government was widely disseminated in the American colonies.[29] Even more widely read were his popularizers, two radical Whig pamphleteers John Trenchard and Thomas Gordon, who penned Cato’s Letters, a series of essays drawing upon Locke and Sidney to critique the policies and government of Robert Walpole. These writers, among others, further solidified the importance the individual and his rights had in the polity, indeed their fundamental importance to any conception of the state at all. Trenchard and Gordon articulated the problem James Madison would come to deal with, the rights of minorities against the majority in a popular government which one historian has called “the great dilemma of America’s constitutional democracy,”[30] when they wrote,

It is a mistaken notion in government, that the interest of the majority is only to be consulted, since in society every man has a right to every man’s assistance in the enjoyment and defense of his private property; otherwise the greater number may sell the lesser, and divide their estates amongst themselves; and so, instead of a society, where all peaceable men are protected, become a conspiracy of the many against the minority.[31]

The radical Whigs truly put the individual and his rights before any notions of society and its alleged needs, Sidney denied the right of anyone to anyone else’s property for as men “are all equal, and equals can have no right over each other, no man can forfeit anything to one who can justly demand nothing, unless it may be by a personal injury.”[32] Trenchard and Gordon hammered this point home when they defined liberty as,

the right of every man to pursue the natural, reasonable, and religious dictates of his own mind; to think what he will, and act as he thinks, provided he acts not to the prejudice of another; to spend his own money himself, and lay out the produce of his labour his own way; and to labour for his own pleasure and profit, and not for others who are idle, and would live and riot by pillaging and oppressing him, and those that are like him.[33]

It should not be hard to figure out how Thomas Jefferson chose his language for the Declaration of Independence, because the ideas of rights articulated by Locke and the radical Whigs had long been circulating in the colonies whether it was in the forms already discussed or through numerous other sources. Take for example the British essayist and radical Whig Joseph Addison, whose Spectator essays were the favorites of a young James Madison or whose play Cato was the favorite of George Washington. Washington quoted the play frequently, had it performed for the army during the revolution, and may even have drawn upon it in his speech to potentially mutinous officers at Newburgh.[34]

Great Britain did not have a monopoly on political philosophers or influence on the American Revolutionaries. There were numerous French philosophers and political theorists whom clearly were read by the American revolutionaries and had an impact, especially on how they approached the forms and structures of government. It was nearly a cliché for radical Whigs in England to support and praise a government which mixed Aristotle’s three forms of government; democracy, aristocracy, and monarchy. Addison said as much in one of his many essays, where he called upon the authority of “Aristotle, Polybius, and Cicero, that is, the greatest Philosopher, the most impartial Historian, and the most consummate Statesman of all antiquity. These famous authors give the preeminence to a mixed government consisting of three branches, the regal, the noble, and the popular.”[35] This was echoed by Sidney in the Discourses, “And if I should undertake to say, there never was a good government in the world, that did not consist of the three simple species of monarchy, aristocracy and democracy.”[36] The Baron de Montesquieu, a French jurist and political philosopher, after visiting England and studying the government there, became convinced, like the radical Whigs, that “liberty is formed by a certain distribution of the three powers.”[37] James Madison wrote Federalist No. 47 to argue in favor of this point, drawing heavily upon Montesquieu (perhaps as heavily as his Anti-Federalist opponents who were endeavoring to show the exact opposite[38]) to show that the proposed constitution did, in fact, have separate and independent branches of government that divided the rule of one, the few, and the many and thus would protect the liberties of individual citizens.[39]

The contribution of French philosophers to the concept of rights was somewhat more complex and less clearly tied to the American than the French revolutionaries. In Diderot’s Encyclopedia the definition of “natural right” or droit naturel illustrates the primary difference between the American and French conception of that term, “You have the most sacred natural right to everything that is not resisted by the whole human race. It is the general will which shall enlighten you as to the nature of your thoughts and desires. Everything you conceive, everything you contemplate, will be good, great, elevated, sublime, if it accords with the general and common interest.”[40] One of the early collaborators of Diderot on the Encyclopedia was a young man from Geneva who would elaborate further on the “general will” and fundamentally challenge the views of government and mankind forwarded by Locke, the other radical Whigs, and Montesquieu.[41] Of course that young man was none other than Jean-Jacques Rousseau, whose language and ideas would permeate throughout the French Revolution and who would be remembered by the revolutionaries as “a prophet who had seen the future.”[42]

When the subject was property and its protection, which Locke and the radical Whigs had argued was the paramount focus of government, Rousseau said non! In his Discourse on Inequality Rousseau proclaimed that the creation of private property was a fraud perpetrated on “simple people” and openly wondered how many “crimes, wars, murders, how many miseries and horrors might the human race have been spared” had someone stepped forward and told the people “that the earth belongs to no one.”[43] In On Social Contract Rousseau seemed more reconciled to the existence of private property, but still undercut the institution in a way Locke and the radical Whigs would have found unacceptable when he said “In whatever way this acquisition is made, the right of each individual to his own piece of land is always subordinate to the community’s right to everything, without which there would be neither solidity in the social bond nor real power in the exercise of sovereignty.”[44]

Rousseau objected in every way to any individualistic basis for civil society, instead preferring to put everything and everyone under the dominion of the general will. Rousseau called for the “total alienation of each associate with all his rights to the whole community.”[45] Whatever Rousseau considered as the “rights” of the individual he never articulated clearly. He did, however, repeatedly point out the irresistible nature of the general will. Whereas Locke argued that individuals only surrendered that portion of their sovereignty to the government that they needed the government for, i.e. contract enforcement, police, and army for property protection, Rousseau wrote, “Each of us puts his person and all his power in common under the supreme control of the general will, and, as a body, we receive each member as an indivisible part of the whole.”[46] Fearful that he did not make this point strongly enough and to leave no doubt whatsoever he stated once more,

Just as nature gives each man absolute power over all his members, the social pact gives the body politic absolute power over all its own; and it is this same power, under the direction of the general will, which bears, as I have said, the name of sovereignty.[47]

There could be no more articulate and influential spokesman for the philosophical underpinnings of autocratic government than Rousseau. His collectivist conceptions of rights and the nature of civil society would be present at every stage of the French Revolution. Where the Americans had the “dilemma” of protecting individual rights against a popular majority, the French, in accepting the premises of Rousseau, had no dilemma which the general will, reflected through conventions, assemblies, committees, and the guillotine could not resolve.

* * *

When the American and French revolutionaries came to construct their governments they often came directly to the question of rights, frequently prefacing their written constitutions with a bill or declaration of rights. In 1774, the First Continental Congress adopted a declaration of rights and resolves, authored principally by John Adams. The rights declared were grounded first in the “immutable laws of nature” and included “life, liberty, and property.”[48] The rest of the declaration consisted of resolves claiming that the colonists had not lost their traditional rights as Englishmen because their forefathers had crossed the Atlantic. By the time the Second Continental Congress declared independence little had changed other than the absence of rhetoric about retaining their rights as Englishmen, men instituted government to secure their inalienable rights, among which were “Life, Liberty, and the Pursuit of Happiness.” The congress then called on the colonies to draft state constitution, which they did along with their own declarations of rights.

Virginia’s constitutional convention met in 1776 and included such luminaries as George Mason as well as young and raw legislators like James Madison. Mason drafted the “Virginia Declaration of Rights” that prefaced the state constitution, which began in sweeping and unequivocal terms, “That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”[49] The emphasis on the voluntary and individual nature of civil society is apparent here in Mason’s words, but the constitution drafted by John Adams for Massachusetts in 1780 was even more explicit,

The end of the institution, maintenance, and administration of government is to secure the existence of the body politic; to protect it, and to furnish the individuals who compose it with the power of enjoying, in safety and tranquility, their natural rights and the blessing of life; and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, happiness, and prosperity.[50]

To make things even plainer, Adams wrote “The body politic is formed by a voluntary association of individuals.”[51] In the “Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts,” Adams defined the fundamental rights of men as the “right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting [their] property; in fine, that of seeking and obtaining their safety and happiness.”[52] Throughout the declaration Adams made sure that it would be clear to all that it was the individual who was the basic unit of civil society, reiterating throughout, “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property,”[53] “But no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent,”[54] and “It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice.”[55] For this emphasis on the individual and his penchant for being able to “convert theory into practice”[56] one historian of John Adams’ political philosophy has aptly called him “one of John Locke’s greatest underlaborers.”[57]

The French revolutionaries also made many attempts to codify the rights of man. The Marquis de Lafayette presented a proposal for a declaration of rights in the National Assembly in July of 1789, the ensuing debate ended in the issuance of the “Declaration of the Rights of Man and Citizen” in August of the same year. Lafayette had recommended the following language for the definition of rights, which was largely adopted in the final draft,

Every man is born with inalienable and imprescriptible rights; these are the freedom of all his opinions; the care of his honor and his life; the right of property; the entire disposition of his own person, his industry, and all his faculties; the communication of his thoughts by all possible means; the pursuit of well-being and resistance to oppression.[58]

But Simon Schama reminds us that despite the language Lafayette and others had codified, the situation on the ground in Paris was far different where the rights of unpopular officials or perceived enemies of the revolution routinely violated in numerous ways, including repeated violations of the right to life. As Schama points out in one of the most powerful passages of his work on the revolution,

No one grasped this dismaying fact [the centrality of violence to the revolution] more immediately than Lafayette. As the darling of the crowd, he had been the figure to whom the votive gift of Bertier’s disjecta membra had been offered. He had brushed it aside with the terse comment that he and the mayor were too busy to see any further “delegations.” But the fact that the commandant of the National Guard had been impotent to prevent Bertier’s summary execution was itself alarming evidence that something more than the lofty Declaration of the Rights of Man (on which Lafayette was still working with Jefferson) was needed if the Revolution in Paris was not to spiral rapidly downwards into bloody anarchy.

The inability of those sympathetic and active in the revolution to deal with or control the violence endemic to it from the beginning made assuring that “men are born and remain free and equal in rights”[59] or that “the imprescriptible rights of man,”[60] which were “liberty, property, security, and resistance to oppression,”[61] were not violated nearly impossible without an alternate conception of political society.

The Declaration of 1789 contained the seeds of exception which are always disastrous to what is supposed to be an unequivocal statement of the rights of all mankind and contributed further to the lack of enforceability all such documents had during the French Revolution until those in power reacted with large-scale military force. For instance, article five of the Declaration said, “The law only has the right to prohibit those actions which are injurious to society. No hindrance should be put in the way of anything not prohibited by the law, nor may any one be forced to do what the law does not require.”[62] This was a not a statement of any right that is not already in existence, but merely a rather long-winded way of saying that “You cannot be punished for that which there is no law,” but it is not a prohibition on state action. If anything, it was a carte blanche for the state because anything that could be construed as “injurious to society” was declared to be the proper sphere of government action. Articles ten and eleven presented further vague curtailments of rights, with ten saying, “No one should be disturbed for his opinions, even in religion, provided that their manifestation does not trouble public order as established by law,”[63] and eleven adding, “Every citizen may therefore speak, write, and print freely, if he accepts his own responsibility for any abuse of this liberty in the cases set by the law.”[64] (emphasis added) These exceptions and provisos in the Declaration, a document Thomas Paine said would be “of more value to the world, and will do more good, than all the laws and statutes that have yet been promulgated,”[65] would become more pronounced in subsequent declarations and the running of French revolutionary governments.

After Louis XVI’s failed flight to Varennes and the declaration of a republic, two things had to be dealt with outside of the military situation with the Prussians and the Austrians. These problems were 1) what should be done with the deposed King? and 2) the promulgation of a new constitution and declaration of rights. The first problem was dealt with by trial and the King’s trial, not to mention his execution, provided ominous foreshadowing for what was to come. Saint-Just, in a speech about the fate of the King in November 1792, compared Louis’ execution to that of Caesar’s and excoriated his fellow delegates for their timidity in meting out punishment to one whose “murderous hands soaked with blood!”[66] Despite his obvious zeal for killing the deposed king, he ended in a Rousseau-like flourish, “You will never see my will oppose the general will. I shall desire what the People of France, or the majority of its representatives, desire.”[67] The proviso about a majority of the representatives of France was important because those trying to avoid executing the king were trying to have the question given to the people in a plebiscite, which Robespierre, Saint-Just, and the other Jacobins opposed. Thomas Paine, then a representative in the Convention, in an inversion of due process, declared that “If Louis is innocent, let us put him to prove his innocence,”[68] implying his presumed guilt when Louis also, perhaps with more cause, could have accused his accusers of crimes, namely kidnapping his family and holding them against their will even after he was deposed and stripped of title and official powers. Robespierre spoke the “general will” of the Convention when he “regretfully” voiced the “fatal truth, Louis must die because the nation must live.”[69]

After the king had been killed and England and France declared war on one another (radicalizing American politics considerably), the Convention moved to consolidate the state in a great flurry of legislation into which was mixed the new constitution and declaration of rights. The ironic twist here was that the new constitution and declaration of rights would never be put into effect instead being “temporarily” suspended by Robespierre who would inaugurate, in his own words, a “despotism of liberty against tyranny.”[70] In March 1793 the Convention issued the “Decree upon the Press” which guaranteed the death penalty for anyone convicted of “having composed or printed works or writings which incite to the dissolution of the national representation, the re-establishment of monarchy or of any other power which constitutes an attack upon the sovereignty of the people” and two years in prison to the distributors of these writings if the distributor refused to name the author.[71] This was no real departure from articles ten and eleven of 1789’s “Declaration of the Rights of Man and Citizen” which had said people would not be disturbed for their opinions as long as they did “not trouble public order as established by law.” Now there was a law decreeing which opinions did trouble public order. Now it was time for authors to accept their “own responsibility for any abuse of this liberty [to speak, write, and print freely] in the cases set by law.” Rousseau had even said in On Social Contract that “Just as the general will is declared through the law, so public judgment is declared through the censorship; public opinion is the kind of law which the censor administers, and which he applies only to particular cases, after the example of the prince.”[72] By comparison, the Virginia Declaration of Rights had been unequivocal about this right, saying “That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotick governments.”[73] And, of course, the First Amendment to the Constitution of the United States says with equal bluntness that “Congress shall make no law … abridging the freedom of speech, or of the press …”[74]

Beyond this troubling development, in April 1793, Robespierre forwarded his proposed Declaration of Rights for the new constitution. In it were the expressions of the collectivist nature of the French revolutionaries’ conception of political rights. For Robespierre, “The purpose of every political association is the maintenance of the natural and imprescriptible rights of man and the development of all his faculties.”[75] (emphasis added) This idea of civil society existing not just to protect rights, but to develop all the faculties of man became, in the final draft, the even more vague “The aim of society is the common welfare.”[76] Robespierre proposed that the principle rights of man were those “providing for the preservation of his existence and his liberty” and he then added novel (what Edmund Burke would have called “innovative”) duties upon the citizens (and presumably rights for the beneficiaries) consisting of the “obligation to provide for the support of all its [society’s] members either by procuring work for them or by assuring the means of existence to those who are not in condition to work,” the duty of those “who possess a superfluity” to pay their “debt” and provide relief “for those who lack the necessities of life,” and finally the duty of those whose incomes exceeded what was needed for subsistence to “support” those whose incomes did not, “progressively, according to the extent of their fortunes.”[77] These ideas were modified for the final draft but were still very much present, the official version said, “Public relief is a sacred debt. Society owes maintenance to unfortunate citizens, either procuring work for them or in providing the means of existence for those who are unable to labor.”[78] But this is a moot point because, as has been said, the Declaration of Rights and the Constitution of Year I (1793) never went into effect. By the time a new declaration and constitution did go into action it would be in Year III (1795) under the Directory, which listed very basic rights, but also had a declaration of duties which notably proclaimed, “The obligations of each person to society consist in defending it, serving it, living in submission to the laws, and respecting those who are the agents of them.”[79]

It does not mean that because the constitution and declaration of rights of Year I were suspended that no rights were defined under the Terror. Quite the contrary, but their definition tended to be negative in the nature of a child being told what cannot be done. For example, in July 1793, the Convention issued a decree against “Profiteers” which mandated the death penalty for “monopolists” who were defined as people who kept “essential” commodities off the market through hoarding or by destroying them for fear of their being expropriated or their being accused of hoarding.[80] In September 1793 the Convention authored another decree, this time on “Suspects” who were defined as those who had shown themselves as “partisans of tyranny or federalism and enemies of liberty,” those who were unable to show that their incomes were not derived from noble titles, those “to whom certificates of patriotism have been refused,” former nobles and their entire families, and those who fled France during earlier phases of the revolution. Their punishment, at the very least, was immediate arrest.[81] Paradoxically, it was the Convention in the days of Robespierre that finished off slavery in the French colonies (until Napoleon’s failed attempt to bring it back) simply saying that “all men, without distinction of color, residing in the colonies, are French citizens and will enjoy all the rights assured by the constitution.”[82] The American revolutionaries by contrast failed miserably on this front despite near universal moral condemnation of the institution in quite possibly the only moment to confront and end the problem without a calamitous civil war which eventually tore the Union apart.

Robespierre and his allies often invoked the war being fought against the English and other continental powers to justify his “despotism of liberty against tyranny,” and he has been backed by some historians of the French Revolution, notably Georges Lefebvre. In a general history of the revolution Lefebvre wrote, “In spite of elements which extended it [the Terror] rashly or polluted it, it remained until the triumph of the Revolution what it had been from the first moment: a punitive reaction linked indissolubly to the defensive impetus against the ‘aristocratic plot.’”[83] François Furet, responding to apologists like Lefebvre, has pointed out that,

Situations of extreme national peril do not invariably bring a people to revolutionary Terror. And while the revolutionary Terror that gripped France at war with the European monarchies always conjured up that peril to justify its existence, it actually raged independently of the military situation: the “spontaneous” massacres of September 1792 took place after the fall of Longwy [to the Prussians], but the “Great Terror” conducted in the spring of 1794 by the government and by Robespierre made heads roll after the military situation had improved.[84]

Also instructive is that while the American revolutionaries were not immune from committing abuses in the midst of their revolutionary struggle, they did move fairly quickly to curb the abuses in whatever ways they had at their disposal, whether it was through state constitutions and bills of rights during the revolution or with the creation and adoption of a Federal Constitution which limited the powers of government and would guarantee fundamental rights which did not constitute a claim or debt on others.

The dueling conceptions of political rights which the American and French revolutionaries formulated and put into practice contributed greatly to the creation of different republican experiments. One, with the horrible and fundamentally disastrous contradiction of slavery, assured individual rights to the populace by recognizing that political rights existed before men entered into civil society, and that those rights ought not to be usurped by government. The other posited a collective conception of rights that applied to “the people” and not the individuals who comprised that body. This difference does not explain everything about the divergent paths of these two revolutions, but it does demonstrate how the two conceptions of rights manifested in incredibly different revolutionary experiences.


[1] George Washington to Bryan Fairfax (24 August 1774), The Spirit of Seventy-Six, ed. Henry Steele Commager and Richard B. Morris (Edison, NJ: Castle Books, 2002), 25.
[2] Duke Mathieu de Montmorency, “Duke Mathieu de Montmorency, August 1, 1789,” in The French Revolution and Human Rights: A Brief Documentary History, ed. and trans. Lynn Hunt (Boston: St. Martin’s Press, 1996), 74.
[3] Gouverneur Morris, A Diary of the French Revolution, ed. Beatrix Cary Davenport (Boston: Houghton Mifflin Company, 1939), vol. 1, 594.
[4] Robespierre, “On Political Morality,” (5 February 1794), Liberty, Equality, Fraternity: Exploring the French Revolution [http://chnm.gmu.edu/revolution/d/413/].
[5] Susan Dunn, Sister Revolutions (New York: Faber and Faber, 1999), 24.
[6] Ibid.
[7] Ibid, 145-59.
[8] Simon Schama, Citizens (New York: Alfred A. Knopf, 1989), 447.
[9] François Furet, Interpreting the French Revolution, trans. Elborg Forster (Cambridge: Cambridge University Press, 1981), 62-63.
[10] Gordon S. Wood, “The Origins of the Bill of Rights,” reprinted from The Proceedings of the American Antiquarian Society, Volume 101, Part 2 (Worcester: American Antiquarian Society, 1992), 258.
[11] Edmund Burke, “Reflections on the Revolution in France,” Edmund Burke: Selected Writings and Speeches, ed. Peter J. Stanlis (Washington D.C.: Regnery, 1963), 515.
[12] Thomas Paine, “Rights of Man, Part One, 1791,” Collected Writings, ed. Foner (New York: Library of American, 1995), 509.
[13] Gouverneur Morris, Diary, vol. 1, 171.
[14] Alexander Hamilton, “Letter to Lafayette (6 October 1789),” Hamilton: Writings, ed. Joanne B. Freeman (New York: The Library of America, 2001), 521.
[15] Ibid.
[16] Hamilton, “Memorandum on the French Revolution, 1794,” Writings, 833-34.
[17] Adams, “Letter to Richard Price (19 April 1790),” Political Writings, 663.
[18] Thomas Jefferson on the French Revolution (3 January 1793) [http://chnm.gmu.edu/revolution/d/592/].
[19] James Monroe, “To Secretary of State Edmund Randolph (15 August 1794),” The Political Writings of James Monroe, ed. James P. Lucier (Washington DC: Regnery Publishing, 2001), 114.
[20] Madison, “To Thomas Jefferson (2 September 1793),” Writings, 549.
[21] Madison, “Political Reflections, in Aurora General Advertiser (23 February 1799),” Writings, 599-607.
[22] Thomas Jefferson to John Adams (11 January 1816), The Adams-Jefferson Letters, ed. Lester J. Cappon (Chapel Hill: The University of North Carolina Press, 1987), 459.
[23] Thomas Jefferson, “To Madame de Staël (24 May 1813),” Writings, ed. Mettill D. Peterson (New York: Library of America, 1984), 1271.
[24] Hamilton, “Memorandum on the French Revolution, 1794,” Writings, 835.
[25] William Doyle, The Oxford History of the French Revolution, 2d ed. (Oxford: Oxford University Press, 2002), 446.
[26] Thomas Jefferson, “To John Trumbull (15 February 1789),” Writings, 939. The other two Jefferson considered to be in this eminent troika were Sirs Francis Bacon and Isaac Newton, all three were British “empiricists” as opposed to Cartesian “rationalists.”
[27] John Locke, Two Treatises of Government (New York: Cambridge University Press, 2000), ed. Peter Laslett, 2nd Treatise, Chapter 9, 350.
[28] Ibid, Chapter 11, 362.
[29] Bernard Bailyn, The Ideological Origins of the American Revolution, enlarged ed. (Cambridge: Belknap, 1992), 34-5; see also Gordon S. Wood, The Creation of the American Republic 1776-1787 (Chapel Hill: University of North Carolina Press, 1998), 16; and Wood, The Radicalism of the American Revolution (New York: Vintage, 1991), 179.
[30] Ibid, 189.
[31] John Trenchard and Thomas Gordon, Cato’s Letters, ed. Ronald Hamowy (Indianapolis: Liberty Fund, 1995), Letter No. 62, vol. 1, 427.
[32] Algernon Sidney, Discourse Concerning Government, ed. Thomas G. West (Indianapolis: Liberty Fund, 1996), 511.
[33] Trenchard and Gordon, Cato’s Letters, Letter No. 62, V.1, 429.
[34] Ralph Ketcham, James Madison (Charlottesville: University Press of Virginia, 1990), 41; and Forrest McDonald’s forward in Joseph Addison, Cato: A Tragedy, and Selected Essays, ed. Christine Dunn Henderson and Mark E. Yellin (Indianapolis: Liberty Fund, 2004), viii. The relevant passage comes in Act III, Scene V.
[35] Addison, Cato and Selected Essays, Freeholder No. 51 (15 June 1716), 252.
[36] Sidney, Discourses, 166.
[37] Montesquieu, The Spirit of the Laws, ed. and trans. Anne Cohler, Basia Miller and Harold Stone (New York: Cambridge University Press, 1997), 187.
[38] Pennsylvania Minority, “The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents,” 18 December 1787, The Anti-Federalist Papers and the Constitutional Convention Debates, ed. Ralph Ketcham (New York: Mentor, 1986), 251.
[39] James Madison, Writings, ed. Jack N. Rakove (New York: The Library of America, 1999), 273-80.
[40] Denis Diderot, from the Encyclopédie, Political Writings (New York: Cambridge University Press, 1992), 20.
[41] Doyle, Oxford History of the French Revolution, 52.
[42] Ibid, 53.
[43] Jean-Jacques Rousseau, “Discourse on Inequality,” Rousseau’s Political Writings, ed. Alan Ritter and Julia Conway Bondanella, trans. Julia Conway Bondanella (New York: W.W. Norton & Company, 1988), 34.
[44] Ibid, “On Social Contract,” 98.
[45] Ibid, 92.
[46] Ibid, 93.
[47] Ibid, 101.
[48] “Declaration and Resolves of the First Congress, 14 October 1774,” The Spirit of Seventy-Six, 57.
[49] The Virginia Declaration of Rights quoted by Robert A. Rutland, George Mason: Reluctant Statesman (Baton Rouge: Louisiana State University Press, 1989), 111.
[50] The Political Writings of John Adams, ed. George W. Carey, The Report of a Constitution, or Form of Government, for the Commonwealth of Massachusetts (Washington D.C.: Regnery Publishing, 2000), 499.
[51] Ibid.
[52] Ibid, 501.
[53] Ibid, 506.
[54] Ibid.
[55] Ibid, 510.
[56] C. Bradley Thompson, John Adams and the Spirit of Liberty (Lawrence: University Press of Kansas, 1998), 87.
[57] Ibid.
[58] Marquis de Lafayette, “Marquis de Lafayette, July 11, 1789,” in French Revolution and Human Rights, 73.
[59] “Declaration of the Rights of Man and Citizen, 26 August 1789,” in French Revolution and Human Rights, 78.
[60] Ibid.
[61] Ibid.
[62] Ibid.
[63] Ibid, 79.
[64] Ibid.
[65] Paine, “Rights of Man,” Collected Writings, 509.
[66] Speech by Saint-Just (13 November 1792) [http://chnm.gmu.edu/revolution/d/320/].
[67] Ibid.
[68] Speech by Thomas Paine (21 November 1792) [http://chnm.gmu.edu/revolution/d/321/].
[69] Speech by Robespierre (3 December 1792) [http://chnm.gmu.edu/revolution/d/324/].
[70] Robespierre, “On Political Morality,” (5 February 1794) [http://chnm.gmu.edu/revolution/d/413/].
[71] “Decree upon the Press, 29 March 1793,” in The Constitutions and Other Select Documents Illustrative of the History of France, 1789-1901, ed. Frank Maloy Anderson (Minneapolis: The H.W. Wilson Company, 1904), 158.
[72] Rousseau, “On Social Contract,” Rousseau’s Political Writings, 164.
[73] The Virginia Declaration of Rights quoted by Rutland, George Mason, 113.
[74] U.S. Constitution, amend 1.
[75] “Robespierre’s Proposed Declaration of Rights, 24 April 1793,” in Constitutions and Other Select Documents, 160.
[76] Declaration of the Rights of Man and Citizen from the Constitution of the Year I (1793) [http://chnm.gmu.edu/revolution/d/297/].
[77] “Robespierre’s Proposed Declaration of Rights, 24 April 1793,” in Constitutions and Other Select Documents, ed. Anderson, 161.
[78] Declaration of the Rights of Man and Citizen from the Constitution of the Year I (1793) [http://chnm.gmu.edu/revolution/d/297/].
[79] Declaration of Rights and Duties of Man and Citizen, Constitution of the Year III (1795) [http://chnm.gmu.edu/revolution/d/298/].
[80] Decree against Profiteers (26 July 1793) [http://chnm.gmu.edu/revolution/d/414/].
[81] The Law of Suspects (17 September 1793) [http://chnm.gmu.edu/revolution/d/417/].
[82] “Decree of the National Convention of February 4, 1794, Abolishing Slavery in All the Colonies,” French Revolution and Human Rights, 116.
[83] Georges Lefebvre quoted in Doyle, Oxford History of the French Revolution, 449.
[84] Furet, Interpreting the French Revolution, 62.