James Madison on Common Law and Constitutional Constraints: A Deep Analysis
James Madison’s views on the relationship between common law and constitutional authority were foundational in shaping the early American legal system. Unlike the British model—where common law served as an unwritten foundation of government—Madison saw the U.S. Constitution as a supreme, written legal framework that explicitly constrained the application of common law in federal governance. His arguments, articulated in the Report of 1800, Federalist Papers, and various speeches, set forth a legal philosophy where the judiciary was meant to interpret law within constitutional limits, rather than create or extend law through common law doctrines.
Madison’s View on Common Law vs. Constitutional Law
The British Model vs. The American Model
In the British system, common law was foundational—precedents set by judges effectively shaped the law over time, without requiring written legal codes.
In the American system, Madison and the other Framers explicitly rejected this idea. He insisted that the Constitution is the highest authority and that courts should be bound by its constraints, preventing the judiciary from expanding its own power through common law reasoning.
Madison’s Speech on the Judiciary Act of 1800
One of the clearest articulations of Madison’s view on common law being subject to constitutional constraints came in the debates surrounding the Repeal of the Judiciary Act of 1801 (also known as the “Midnight Judges Act”).
Context of the Judiciary Act Debate
The Federalist-controlled Congress under President John Adams had passed the Judiciary Act of 1801, restructuring the federal judiciary and expanding judicial power.
The incoming Republican-controlled Congress (with Madison’s leadership) viewed the Act as an unconstitutional judicial power grab, as it created a federal common law system that could be used to enforce laws without explicit constitutional or legislative authorization.
Madison took the floor to argue against common law enforcement at the federal level, making clear that the Constitution does not inherently recognize or adopt British common law.
Madison’s Key Arguments in the Judiciary Act Speech
The Federal Government Does Not Derive Authority from Common Law
Madison rejected the idea that federal courts automatically inherit common law from England.
He argued that federal law must be explicitly authorized by the Constitution or by Congress.
“If, then, a common law be established in the United States, it must be ascertained by some constitutional or legislative act, and not by authority of the judiciary alone.”
Common Law Cannot Expand Judicial Authority
Madison feared judicial overreach, arguing that federal judges should not use common law as a basis for expanding their jurisdiction.
He warned that common law, if left unchecked, could allow judges to act as legislators, contradicting the principle of separation of powers.
Common Law is a State Issue, Not a Federal One
Madison acknowledged that states could operate under common law, but the federal government could not unless explicitly authorized by the Constitution.
He emphasized that common law was a residual power of the states, rather than an inherent part of the national legal system.
A Written Constitution Supersedes Judicial Precedent
Unlike in Britain—where judicial precedent could evolve legal interpretations over time—Madison insisted that U.S. courts must be bound by the written Constitution.
Judicial decisions cannot override constitutional limits, even if common law traditions might suggest otherwise.
Outcome of the Debate
Madison’s arguments helped overturn the Judiciary Act of 1801, reducing judicial power and reinforcing the principle that federal courts do not have inherent common law authority.
Madison’s Report of 1800
Beyond his Judiciary Act speech, Madison’s Report of 1800 offers an even more comprehensive attack on the use of common law in federal governance.
Context of the Report
The Alien and Sedition Acts (1798), passed by the Federalists, relied on common law principles to justify suppressing political dissent.
Madison and Thomas Jefferson led the Virginia and Kentucky Resolutions, which challenged the Acts as unconstitutional.
In response to criticisms of the Virginia Resolutions, Madison wrote the Report of 1800, reinforcing his view that common law cannot serve as a basis for federal authority unless explicitly stated in the Constitution.
Key Arguments in the Report of 1800
Common Law is Not Part of the Federal Legal System
Madison directly rejected the idea that common law is "inherent" in the U.S. legal system.
He stated that the Constitution is the sole source of federal authority, meaning courts cannot assume powers based on common law traditions.
Federal Courts Cannot Punish Crimes Without Legislative Authorization
At the time, some judges had argued that they could prosecute crimes under federal common law, even if no statute explicitly outlawed them.
Madison vehemently rejected this idea, arguing that laws must be passed by Congress, not created by judges.
Common Law Principles Cannot Justify the Alien and Sedition Acts
The Federalists defended the Sedition Act (which criminalized speech critical of the government) by arguing that common law permitted restrictions on speech.
Madison countered that common law traditions cannot override the First Amendment and that federal law must be explicitly written in constitutional form.
The Constitution is the Supreme Law, Not an Evolving Common Law System
Madison argued that the Constitution is not a flexible, evolving document in the way that common law is.
He warned against allowing judges to reinterpret the Constitution based on evolving precedent, instead advocating strict adherence to the document’s original meaning.
Madison’s Influence on Constitutional Interpretation
Madison’s insistence that common law is subject to constitutional constraints had profound implications for U.S. legal development:
Marbury v. Madison (1803) and the Limits of Judicial Review
While Marbury v. Madison established judicial review, it did not give courts the power to create common law crimes.
Madison’s arguments helped ensure that judicial review did not turn into judicial lawmaking.
The Role of State vs. Federal Law
Madison’s view shaped the dual legal system of the U.S., where states retain common law traditions, but federal courts must operate within constitutional limits.
Constitutional Originalism
Madison’s arguments form the intellectual foundation for modern originalist legal theory, which insists that judges must interpret laws strictly within the Constitution’s original framework.
Madison’s Enduring View on Common Law & Constitutional Constraints
James Madison’s arguments in the Judiciary Act debates, the Report of 1800, and The Federalist Papers establish a consistent, principled rejection of federal common law authority. He insisted that:
The U.S. Constitution, not common law, is the ultimate legal authority.
Federal courts cannot expand their power using common law principles.
Judicial precedent must always be constrained by constitutional limits.
His legal philosophy remains a cornerstone of American constitutionalism, ensuring that judicial power remains subordinate to written law rather than an evolving common law tradition.
At United States Lab, we are transferring James Madison's constitutional principles into the digital realm, building governance frameworks in blockchain and web3 that uphold decentralization, transparency, verifiability, and rule-based accountability. Just as the Madisonian model constrains centralized power through a structured constitutional system, our approach ensures governance remains resistant to manipulation and true to its foundational rules.
If you are interested in this research, please follow our R&D work at United States Lab.