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271
shall be inviolable.” 137 Madison had tightened the constitutional language,
substituting the imperative “shall” in place of the more vague original wording. 138
This draft also included a prohibition on states’ violation of freedom of the press, a
clause that did not make it to the final amendments. 139
Rather than act quickly, Congress sent Madison’s proposal to a committee,
where it took several months before an altered version emerged. The Federalists
were in no hurry to amend their new Constitution, and many of the Anti-
Federalists were said to prefer the amendments to never pass, so as to justify their
continued opposition to the Constitution. 140 As Edmund Pendleton wrote to
Madison, “it will have a good effect in quieting the minds of many well meaning
Citizens, tho’ I am of opinion that nothing was further from the wish of some, who
covered their Opposition to the Government under the masque of uncommon zeal
for amendments, & to whom a rejection or a delay as a new ground of clamour,
would have been more agreeable.” 141 On August 13 th the House finally passed
Madison’s amendments with some changes. The fourth amendment, as it was then,
was reworded to: “The freedom of speech and of the press, and the right of the
137 For Madison’s draft, see his proposed “Amendments to the Constitution,” in “Remarks to
Congress,” June 8, 1789, in Lloyd and Lloyd, Essential Bill of Rights, 331-344. See also Levy,
Essays, 258-289 and Smith, “Origins of Free Speech,” 48-82. Pennsylvania was the first to add
free speech to the press clause in their constitution.
138 Schwartz, Bill of Rights, 2:1009. While the press clause in the Virginia Declaration said,
“press … can never be restrained but by despotic governments,” Madison instead wrote the
stronger, “shall be inviolable.” For many of the clauses, he replaced the somewhat flaccid “ought”
and “ought nots” of the original language.
139 Madison speech to the House of Representatives, June 8, 1789, Schwartz, Bill of Rights,
2:1027. See also Levy, “Bill of Rights,” in Levy, Essays on the Making of the Constitution, 282.
140 Ibid.
141 Edmund Pendleton to James Madison, Sept. 2, 1789, in The Papers of James Madison, eds.
Robert A. Rutland and Charles Hobson (Charlottesville: University Press of Virginia, 1977-
1979), 12:368-369.