A Madisonian vision of religious liberty.

Author:Olree, Andy G.
Position:Symposium on the Meaning of Religious Liberty in the Anglo-American Legal Tradition

I have been asked to write this essay describing James Madison's views about religious liberty for the 2015 Faulkner Law Review symposium on The Meaning of Religious Liberty in the Anglo-American Tradition. This task is challenging because Madison thought and wrote a great deal about this subject--perhaps more than any other American Founder--and his thought was rather nuanced in some ways. Nevertheless, in this limited space, I hope to provide at least a basic sketch of his views, while also correcting a few misunderstandings about them.

The first thing to note is that Madison's interest in religious liberty--what he would often call "liberty of conscience"--was not merely a hobby for him. Nor was it an object of intense but temporary attention. Rather, it was a central concern of his whole life, from his pre-political days as a new college graduate until his retirement and death. Madison's earliest involvement in politics, and his earliest political reputation, centered not on building a new nation, but on the defense of religious liberties. (1) By the age of twenty-two, having just returned home from college, he was defending Baptist preachers near his home who were being imprisoned by the Virginia colonial authorities acting in concert with the legally established Anglican Church. (2) Two years after that, he was serving in his first statewide assembly as a delegate to the Virginia Constitutional Convention of 1776, and, in that capacity, he personally drafted key components of the religious liberty provision in the Virginia Declaration of Rights. (3) As a delegate to Virginia's state legislature in 1784-85, he led the fight against a bill sponsored by Patrick Henry that would have created a new property tax earmarked for "Teachers of the Christian Religion," with the funds to be distributed to the Christian denomination of each taxpayer's choice (or, if a taxpayer made no choice, to local schools). (4) Madison called Henry's measure a "religious establishment" and opposed it on that basis. (5) A few weeks after this bill was defeated, Madison led the legislature to pass Thomas Jefferson's celebrated Virginia Statute for Religious Freedom. (6) Thus by 1786, before the new national constitution was even drafted, Madison bore a large share of personal responsibility for the central legal guarantees of religious liberty in the most populous state in the United States-and also, of course, for the legal disestablishment of religion in that state, a disestablishment thorough enough to make Virginia the first state to forbid by law both established churches and religious tests for public office. (7)

And Madison did not stop with Virginia; he applied his principles throughout his life and in national politics as well. Even while the struggle in Virginia was continuing, Madison was complaining to James Monroe in private correspondence about an abortive proposal in Congress that would have set aside parcels of land in Western townships for purely religious uses. (8) A short time later, after promising anti-federalists that Congress would propose a federal Bill of Rights to the states, and also promising religious dissenters in Virginia that he would do all in his power to assure that such a proposal contained guarantees protecting the rights of conscience and forbidding religious establishments, he was proposing to Congress a package of amendments to the new national Constitution, and leading the House of Representatives to face down the Senate with respect to the wording of the guarantees relating to religious liberty in particular. (9) His chief fear in suggesting written stipulations of particular rights, he told Jefferson privately, was that "a positive declaration of some of the most essential rights could not be obtained in the requisite latitude" when "submitted to public definition," and that this observation applied to "the rights of Conscience in particular...." (10) While the states were considering whether to ratify the proposed amendments, Madison was arguing in Congress that when the 1790 census was conducted and people's professions were identified, it would be improper for the federal government to classify anyone as a "minister of the Gospel," because that would require the government to engage in an impermissible theological determination. (11) Years later as President, he cast two vetoes based on his belief that Congress's proposed legislation in each case would violate the Establishment Clause. (12) And in retirement, he continued to write about religious liberties, in personal memoranda and correspondence, almost until the day of his death. (13) Truly it might be said of Madison, more than of most of the other leading Founders, that the subject of religious liberty was an all-consuming passion.

So what did Madison believe about religious liberties? Like many Americans, he drew several of his foundational principles from John Locke. Nevertheless, he departed from Locke in significant ways. Part I of this essay will describe his foundational agreements with Locke, while Parts II-VI will detail the key points at which Madison's theory of religious liberty diverged from Lockean theory.

  1. AGREEMENTS WITH LOCKE: NATURAL RIGHTS, THE LIMITED STATE, AND INDIVIDUALISTIC RELIGION

    First and foremost, Madison agreed with John Locke that the "liberty of conscience" was a natural right, which existed before the creation of human governments, societies, and laws, and took precedence over human laws. As Jack Rakove notes, during and after Madison's studies at Princeton, Madison had absorbed, and had largely adopted in its fundamentals, Locke's philosophy regarding church and state. (14) In the widely read work A Letter Concerning Toleration, Locke referred to "liberty of conscience" as "every man's natural right," (15) terminology that for him clearly signified the sort of right given by God to mankind in the state of nature, prior to and separate from the founding of human governments.(16) For Locke, it followed that "the observance of these things [each individual's duties to God] is the highest obligation that lies upon mankind...." (17) In the Memorial and Remonstrance against Religious Assessments, written to oppose Patrick Henry's assessment bill, Madison expressed an identical conception:

    The religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.... It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Govenour of the Universe. (18) Additionally, Madison, like most Americans of his time, embraced Locke's theories of the limited purpose and jurisdiction of civil government. In Lockean theory, and likewise in Madison's thought, civil government was established for the limited purpose of protecting things of this world--that is, natural rights of life, liberty, and property ownership--rather than for the inculcation of virtue or the saving of souls. (19) This jurisdictional argument, relegating civil government to a temporal jurisdiction, provided yet another justification for protecting religious liberty; religion was no proper concern of the magistrate. Additionally, Madison clearly accepted several of Locke's related claims, such as the idea that civil magistrates have in fact proved to be incompetent and contradictory judges of religious truth. (20)

    But, as Locke argued, the central reason to forbid governments from compelling religious practice as a means of saving souls is a theological one. As Locke put it:

    [True] and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of any thing by outward force.... I may grow rich by an art that I take not delight in; I may be cured of some disease by remedies that I have not faith in; but I cannot be saved by a religion that I distrust, and by a worship that I abhor. (21) And here again, Madison believed as Locke did: "[We] hold it for a fundamental and undeniable truth, "that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." (22) For Locke, this insight meant that salvation was, in the final analysis, an individual concern, not a concern of the community, and therefore, the community acting through law could have no justified concern about it. Locke wrote, "[The] care of each man's salvation belongs only to himself. Every man, in that, has the supreme and absolute authority of judging for himself; and the reason is, because nobody else is concerned in it, nor can receive any prejudice from his conduct therein." (23) Madison certainly shared this individualistic understanding of salvation, writing that:

    It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him.... If this freedom [of religion] be abused, it is an offense against God, not against man: To God, therefore, not to man, must an account of it be rendered. (24) So Madison, following Locke, saw religious liberty as an individual natural right, precedent in time and rank to the demands of civil government; a right which civil government, by its own origins and jurisdictional limitations, was prohibited from infringing; and a right which could not be limited without harming the souls the law was presumably trying to help. To both men, these assumptions led to the conclusion that human governments and laws should stay out of "religious matters," whatever those...

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