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The document entitled “To the Honorable the General Assembly of the Commonwealth of Virginia, A Memorial and Remonstrance” is a jewel of republican rhetoric.[1] Nor has this choice example of American eloquence gone without notice. And yet, compared to the Declaration of Independence and the Gettysburg Address, it has remained obscure—more often quarried for stately phrases than conned by heart, more often admired at a distance than studied in detail. This lack of popularity can in part be accounted for by the circumstances of the document. Addressed to the legislature of a state rather than to the people of the nation, it is concerned with an issue which is critical only sporadically, though then critical indeed. The Supreme Court has, to be sure, searched the document on several occasions for help in interpreting the “establishment” clause of the First Amendment. (See the Appendix.) But this naturally narrow judicial mining of the text has itself served to draw away attention from the depth of its political precepts and the fitness of its rhetorical form, discerningly lauded, for example, by Rives, Madison’s nineteenth century biographer.[2] In part, again, Madison’s work has been kept off the roster of canonized public prose because it lacks Jefferson’s heady generalities and Lincoln’s humane grandeur. But I know this: To study it is to come away with a sense of having discovered, under the veil of Madison’s modesty, the great rhetorician of the Founding, whom John Marshall called “the most eloquent man I ever heard.” The immediate and the historical efficacy of Madison’s appeal shows that despite the deprecating modern estimate that he “could not mesmerize a mass audience” but “only those who sought…illumination,”[3] Madison was master of that true eloquence which sometimes turns the former kind of audience into the latter. It is an eloquence of measured passion and sober ardor, which knows what to say when and to whom without bending the truth.

I. The Circumstances Surrounding the Remonstrance[4]

On December 3rd, 1784, a bill “establishing a provision for Teachers of Religion” was reported to the General Assembly of Virginia. Its preamble said:

Whereas the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society, which cannot be effected without a competent provision for learned teachers, who may be thereby enabled to devote their time and attention to the duty of instructing such citizens as from their circumstances and want of education cannot otherwise attain such knowledge; and it is judged such provision may be made by the Legislature, without counteracting the liberal principle heretofore adopted and intended to be preserved, by abolishing all distinctions of preeminence amongst the different societies or communities of Christians…[5]

The author of the bill, Patrick Henry, had introduced it with a fervent speech tracing the downfall of ancient and modern polities to the decay of religion; the repeal in 1776 of the tithe law, which meant the end of a state-salaried clergy and amounted to the disestablishment of the Anglican Church, was a source of such decay in Virginia. Other eminent Virginians, even more anxious about an increase in laxness of morals and lawlessness than about the precipitous decline of church attendance during and after the Revolution, saw nothing wrong with the bill. Among them were George Washington and John Marshall.

Madison, absolutely opposed, debated Henry on the floor of the Assembly late in November. These speeches contain revealing anticipations of—and contrasts to—the Remonstrance.[6]

Even with the bill still in committee, Madison’s arguments had told. There had been a short-lived attempt to de-christianize it extending it to all “who profess the public worship of the Deity,” be they Mohammedans or Jews. The bill reported out was, furthermore, no longer the General Assessment bill which had sought in effect to reestablish Christianity (though, of course, not Anglicanism) by a general levy on taxpayers in support of a Christian church. It had been transformed into a Christian education bill, designed partly, as evidenced by the reference in the preamble to those who cannot afford private education, to be a defense against Jefferson’s long tabled secular public education bill of 1779, and partly, as is apparent from its more restricted aims, to be a response to Madison’s pressure.

Meanwhile Madison also engaged in some practical politics. In order to remove the oratorical Henry from the scene, Madison had hit on a device both kinder and more efficacious than Jefferson’s suggestion “devotedly to pray for his death”: he had conspired to elevate him to the governorship. The proud governor-elect had retired to his estates, “a circumstance very inauspicious to his offspring” as Madison wrote with satisfaction to James Monroe.

Also, in exchange for the withdrawal of his opposition to a companion bill for the incorporation of the Episcopal Church, Madison had won postponement of final action on the bill to 1785, so that there might be time to publish its text for consideration by the people. This move was crucial, since in 1784 the bill would probably have passed the legislature with an overwhelming majority.[7] Here as ever, the two facets of Madison’s statesmanship—practical maneuvering and principled rhetoric—complemented each other. He had gained a year.

Throughout spring of 1785, Madison’s own inclination was to wait quietly for the popular opposition to manifest itself. The Episcopalians, as old beneficiaries of establishment naturally, and the Presbyterian clergy to their shame, supported the bill; the laity and clergy of the dissenting sects were solidly opposed. By May several supporters, but no opponents, of the bill had lost their seats. As late as June 21 Madison was assured enough of its unpopularity merely to echo the rebellious common feeling, that although the legislature “should give it the form, they will not give it the validity of a law…I own the bill appears to me to warrant this language of the people.”[8]

Some of his associates in the battle, however, George Mason and the brothers Nicholas, were anxious for more pointed action. They had reason to fear civil disturbances if the legislature, in which the favoring Tidewater counties were overrepresented, should attempt to force the law on the people. They hoped to deter its passage with a large number of well-subscribed identical petitions from all parts of the state, the best device then available for conveying the power of a public sentiment to the legislature. They asked Madison to compose the text.

He wrote the “Memorial and Remonstrance” sometime soon after June 20, 1785, intending it to circulate anonymously. The few friends who knew of his authorship respected his wish, which arose, presumably, from his desire to maintain good working relations with all parties in the legislature. At the time some attributed the work to George Mason, who had drafted the religious liberty clause of the Virginia Declaration of Rights. Though a printer had put his name on a reprint as early as 1786, Madison acknowledged only late in life, in a letter of 1826 to Mason’s grandson, that “the task of composing such a paper had been imposed upon him.”

Mason had the petition printed as a broadside in Alexandria, having seen no reason for changing even one word of the text. The Nicholases saw to its distribution throughout the state. It met, Madison noted in retrospect, “with the approbation of the Baptists, the Presbyterians [who had recanted], the Quakers, and the few Roman Catholics, universally; of the Methodists in part; and even of not a few of the Sect formerly established by law, [the Episcopalians].[9]

The Memorial was solidly successful in drawing subscribers. The thirteen circulated copies collected 1552 signatures; 150 freeholders signed one petition in a day. Yet, successful though it was, another, still anonymous, petition, based on the fervently Christian argument that the bill contravened the spirit of the Gospel, ran up more than three times as many signatures on twenty-nine copies. All in all, about eighty opposing petitions with 10,929 signatures came in to Richmond, and only a few in support.

After a brief consideration the bill died in committee in the fall of 1785, having lost, however, by a mere three votes. Madison’s petition may well have been crucial.

On January 22, 1786, Madison reported the results of that session to Jefferson in Paris in a modestly jubilant vein:

The steps taken throughout the Country to defeat the Gnl. Assessment, had produced all the effect that could have been wished. The table was loaded with petitions and remonstrances from all parts against the interposition of the Legislature in matters of Religion.

In the same letter he had already told Jefferson even greater news. One element alone of Jefferson’s six-year-old revisal of the laws of Virginia had that year been passed into an act, his bill for establishing religious freedom,[10] the most celebrated of all documents concerned with religious liberty.

Advantage had been taken of the crisis produced by the crushing of the religious assessment bill to carry through the Jefferson bill, as Madison put it. The two events were closely connected. The impetus of the collapse of a regressive measure carried over—as sometimes happens—into a sudden advance. The religious clause of the Virginia Declaration of Rights had guaranteed the free exercise of religion to all Christians, but it had not unequivocally banned—witness the assessment bill—the establishment of a non-sectarian state church. During the next nine years the legislature had passed a patchwork of special exemptions, tolerances and particular measures favoring dissenting sects. Jefferson’s bill, which happened to attack compulsory support of religious teachers in its preamble, rode in, as Madison recollected in 1826, under the “influence of public sentiment” manifested in the death of the assessment bill, as a “permanent Barrier agst. future attempts on the Rights of Conscience as declared in the Great Charter affixed to the Constitution of the State.”[11] Madison interpreted the petitions against the assessment bill as demands for the enactment of Jefferson’s law concerning religious freedom; he thought it an advantage that it had been sanctioned by what was in effect a plebiscite. The Memorial had advanced it as a principle that there should be such invitations to the people to express their sentiments in the course of lawmaking.

II. The Arguments of the Memorial

The Memorial is a petition addressed to the General Assembly of Virginia that remonstrates on fifteen counts (listed in summary in Note [12]) against a bill before it establishing a provision for teachers of the Christian religion, Each of these points is set forth in one paragraph in the form of a reflection on one aspect of the right relation between religion and politics. Madison clearly intended to make the argumentation as complete, as principled, as fundamental, and yet as concise as possible.

The fifteen counts are, furthermore, composed into a symmetrical structure. The eighth, that is, the middle point, addresses the concern immediately central to the occasion—the fear of the decline of social stability—by arguing that state support of religion is not necessary to the civil authority. Clustered about that central claim are the other prudential and cautionary points to be addressed to the Christian communities which hoped to profit from the law. Points 6-7 and again 9-11 display the bill as internally and externally deleterious to Christianity in particular.

By contrast, Points 1-4 and again Points 13-15 have a wider, more encompassing matter: humanity in general. The introductory points proceed on the grandest scale. The first asserts a positive theological principle—the absolute priority of man’s relation to God over his social bonds—as the ground for the inalienable character of the right to religious freedom; the second deduces from the first the prohibition of legislative interference in religion. The third point draws the political principle of prompt resistance to civil interference out of the uncompromisably absolute separation of the realms, the fourth draws from the philosophical principle of human equality the political injunction against state support of religion.

The closing numbers cite the forms and practices of popular government which proceed from the foundations established in One through Four as they bear on the bill. Thirteen warns against unenforceable laws, Fourteen states the majoritarian principle, and the last point recalls the principle of limited government to the offending legislature. The rhetorical force of this structure will, I think, tell even on a reader who does not apprehend it explicitly.

III. Rhetorical Analysis of the Text 

Preamble

To The Honorable the General Assembly of the Commonwealth of Virginia A Memorial and Remonstrance

We the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled “A Bill establishing provisions for Teachers of the Christian Religion,” and conceiving that the same if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill…

The preamble [13] alludes to the postponement resolution, which had requested the people of the counties “to signify their opinion respecting the adoption of such a Bill”—the resolution is quoted in the next to last paragraph. The petition, then a common political instrument, is intended to elicit popular opinion in the course of lawmaking. Such moments of communication between the people and their representatives are an important part of Madison’s theory of self-government, set out in the penultimate paragraph of the petition.

Not Madison speaks, but “We…the citizens.” His style could well accommodate itself to a canonical anonymity. He had been trained in a school of rhetoric which eschewed idiosyncrasies, and he never engaged in the luxuriously indignant periodicity peculiar to Jefferson.

This petition is presented in the form of a remonstrance, that is, a protest—a protest, suggestively, of the “faithful”—but it is not a mere protest, as are most present-day petitions. It is also a memorial, a declaration of reasons—every paragraph begins with a “because”—in the tradition of the Declaration of Independence.

First Paragraph

Because 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.” 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 unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. 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 Governor of the Universe; And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.

The first is the most philosophical and the most rhetorically artful paragraph.

Madison begins by reminding the legislature of its own fundamental law; he quotes, as he notes in the margin of his copy, from Article XVI of the “Declaration of Rights and Frame of Government of Virginia,” adopted in 1776. Madison himself intervened crucially in George Mason’s draft of that article, though not in the clause here cited. (The sentence he affected is given in the fourth and fifteenth paragraphs.) In accordance with the symmetrical structure of the petition the Virginia Declaration is cited in the first, the fourth, the eleventh, and the fifteenth paragraphs.

The quotation from Article XVI is here introduced in the spirit of the Declaration of Independence—the Virginia Declaration has no such language—as an axiom, an undeniable truth. The consequences of that axiom are then developed in an enchained sequence of sentences which has something of the quality of a liturgical responsory, a kind of rondel of reason. The enchaining brings with it a non-periodic style. (A period, speaking technically, is a circuit-like sentence, whose meaning is not delivered until the whole is complete.) Several sentences are grammatically simple; conjunctions and relatives, regarded in school rhetoric as weakening the vivacity of writing since their function should be carried by the diction,[14] are avoided; the continuity indeed comes from the incantation-like diction.

“The religion of every man must be left to the conviction and conscience of every man”: he restates the phrase “reason and conviction” of Article XVI alliteratively and tactfully, avoiding the everlasting dwelling on the Reason by which some of the defenders of religious liberty had made themselves suspect.

The recurrent phrase “every man,” rather than “all men” as in the Declaration of Independence, carries a subtle emphasis: as Madison’s logic notes from college point out, when one turns “all” into “every,” the predicate is logically distributed so that it “belongs to every individual.”[15] Since religion consists of “voluntary acts of individuals singly and voluntarily associated,” Madison’s use of “every” rather than “all” conveys the individual nature of religion implied by the fundamental axiom: No religious dogma is to be imposed and no religious exercise interfered with—the First Amendment in germ.

Each key word is picked up and elaborated as the argument continues: “…it is the right of every man to exercise” religion freely. “This right is…an unalienable right. It is unalienable, because the opinions of men” are free. “It is unalienable also, because what is here a right toward men, is a duty towards the Creator. It is the duty of every man to render the Creator such homage” as seems right to him. “This duty is precedent…to the claims of Civil Society.” “Before a man can be considered a member of Civil Society…,” etc.

The rhetorical form emphasizes the mutual involvement of the terms. Free exercise of religion is a right and moreover an inalienable right because of an ineradicable feature of human nature—its freedom. This human freedom, the ground of civil liberty, is understood as a bondage of the mind to the dictates of reason and evidence—a dependency clearly expressed in the original opening paragraph of Jefferson’s bill on religious freedom, which was deleted by the General Assembly with Madison’s reluctant acquiescence:

Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds. ..[16]

Madison, who had earlier displayed a lively interest in the philosophical question of mental liberty and misgivings about its possibility,[17] must indeed have been sorry to see this pertinent passage disappear from the bill, bartered away for its passage.

The right to religious liberty is inalienable because of man’s nature, but also because of man’s relation to God, which is that of a subject bound by a duty to his Creator. Religion as defined in the passage from the Declaration of Rights which Madison quotes is a conflation of the Roman notion of obligatory performance and the biblical idea of obedience to the Creator, with the Christian salvational sense, to be introduced in the middle paragraphs, is here missing.

The inalienability of the right is, then, rooted in man’s nature as free and as created; it is therefore inalienable by the very reason which makes it a right, namely that it is a divine duty that must be individually discharged. Succinctly put: “What is here a right towards men, is a duty towards the Creator.”

Now comes the crux of the paragraph and indeed of the work. Man’s relation as a creature is prior both in time and in degree to his membership in a polity. Before he can be thought of as a citizen of civil society, he must be considered as a subject under the Governor of the Universe; as the former he has rights, as the latter duties. This priority in time may mean that these duties were his before this or any polity was instituted, even in the Garden of Eden, or that they precede adult citizenship and obligate even children. Precedent in “degree of obligation” must mean that moral duties supersede political obedience and that religion governs citizenship—indeed a creed for citizen-resisters to the usurpations of the civil powers.

Although Madison himself later cites Jesus’ “own declaration that his Kingdom was not of this world” in behalf of the separation of worlds,'[18] his own remarkable theory is quite distinct from the scriptural doctrine of the two realms, the secular and the spiritual. That doctrine holds this world inferior—Roger Williams, for example, demands a hedge between the garden of the Church and the wilderness of the World.[19]

In contrast the precedence of the religious realm set out in the Memorial is not seen from the perspective of the world beyond, but from the position of a practicing citizen of this world, albeit with prior obligations. That is precisely why the functionaries of civil society may not invade the realm of religion—because that realm is here conceived as belonging to the active life of the world, not to civil society but certainly to society, The suspicion and contempt of the world, on the other hand, against whose intrusions the soul and the church must be guarded, belongs to Christian liberty—a theological condition and not a civil right. (The defense of religious liberty from the scriptural point of view is rousingly made in Milton’s Treatise of Civil Power in Ecclesiastical Causes; Madison may have known it.)

Madison is proposing a civil theology[20] in which the political arena is circumscribed by religion. From the point of view of political theory men come out of (though in a sense they never leave) the Lockean state of nature and its right to self-preservation; from the point of view of the civil theology man first and last remains “a free-born subject under the crown of heaven owing homage to none but God himself.”[21]

Madison, however, does not advocate the cause of a deistic supersect with its positive rationalistic doctrines, so confidently set out in Jefferson’s bill concerning religious freedom which knows and approves “the plan of the holy author of our religion…to extend it by its influence on reason alone.” Encompassing all religions, whether propagated by reason, revelation, or force of tradition, Madison’s civil theology is a genuine grounding for religious pluralism.

The conclusion is that rights of conscience are reserved from the authority of the political power. As Jefferson puts it in Query XVII of the Notes on the State of Virginia (1781):

Our rulers can have authority over such natural rights only as we have submitted them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God.

There follows in the Memorial an intricately wrought analogy containing more subtleties than bear articulating:

As 1. a member of Civil Society 2. who enters into any subordinate Association 3. must always do it 4. with a reservation of his duty 5. to the General Authority,

Much more so must 1. every man 2. who becomes a member of any particular Civil Society 3. do it 4. with a saving of his allegiance 5. to the Universal Sovereign.

The climax of the deduction from the axiom of religion as a duty to God is the radical proposition that “no man’s right is abridged by the institution of Civil Society and Religion is wholly exempt from its cognizance.” That is to say: 1. individual religious rights are not alienated upon entering civil society and 2. the realm of common religious observance is wholly out of its jurisdiction.

This is the seminal secular statement concerning religious liberty as a civil right in the public realm, since Jefferson’s law, to which Madison later gave the honor of being the standard of expression on the subject, was, though prior in the drafting (1779), posterior in publication (1785).

The political consequences are reserved for the last paragraph of the petition. Madison, however, here adds an afterthought which brings these fundamental principles into the political arena. It is an antithesis acknowledging in capsule form the paradox of majoritarianism, a clash of truths in the world of action:[22] “True it is” that the will of the majority alone can settle divisive differences, “but it is also true” that the majority may try to infringe the rights of the minority. The penultimate paragraph will counterbalance this reservation by an expression of full faith in the majority as a last court of appeal in cases of infringements on liberty.

Second Paragraph

Because if Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.

Now the doctrines of the first paragraph are applied, a fortiori, to government: if religion is beyond the political community, so much the more is it beyond the legislature. For as human beings are God’s creatures, so the legislature is civil society’s creature. (The manner of this legislative subordination is again taken up in the corresponding next-to-last paragraph.) The double limitation on its jurisdiction is stated in a succinct presentation of the theories of checks and balances and of limited government. It displays Madison’s genius for articulating a full complement of fine but fundamental distinctions in the smallest compass: he speaks of the “metes and bounds” (a phrase possibly adapted from Locke’s Letter Concerning Toleration[23]) that contain the departments of government, and of the “great Barrier” that circumscribes government itself.

That barrier, the limitation of legislative jurisdiction, is the political palisade before the “wall of separation,” in Jefferson’s famous metaphor for the First Amendment, which is to be erected between church and state.[24]

The language of the following sentences grows terse and absolute (although Madison manages to tuck in definitions of both tyranny and slavery): the rulers who encroach are tyrants, the people that submits, slaves. The theory of prompt resistance to be set out in the next paragraph is prepared.

Third Paragraph

Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents, They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

The first sentence is often quoted, and “viewing with alarm” has, of course, become a cant phrase of American rhetoric. Here the key word “liberties” first appears; the phrase “religious liberty” is missing from the work.

The Revolution is invoked in favor of a “noble” mode of political response. In the remarkable phrase “prudent jealousy” Madison conflates republican duty with the principle of honor, the citizen’s calculation of consequences with the nobleman’s propensity for quick offense.

The necessity for a ready response lies, of course, in the fact that absolute principles, not compromisable interests, are involved; “the least interference with religion would be a flagrant usurpation.” The Revolution, being the complex event of both principle and interest, was in fact slow in coming:

mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. (Declaration of Independence.)

Nevertheless Madison here propagates the view, for the sake of the “revered lesson” it contains, that the three-penny tax on tea moved the “free men of America” to revolt because it was a first signal of oppression, not the last straw.[25] This view was evidently dear to him, for later he wrote:

The people of the U.S. owe their Independence and their liberty, to the wisdom of descrying in the minute tax of 3 pence on tea, the magnitude of the evil comprized in the precedent.[26]

The lesson he urges is immediate recognition of and resistance to breaches of principle, and especially of the principle of religious liberty, because it stands and falls as a whole. As Locke says: “The civil power can either change everything in religion,…or it can change nothing.”[27]

Two balanced rhetorical questions next address first the churches and then the individual citizens: as the authority to establish Christianity implies the power to establish one sect, so the authority to touch a citizen’s property implies the power to force him into religious conformity. This passage reveals Madison’s universal view of religious liberty. He writes here, in hopeful suppression of the fact admitted in the eleventh paragraph, that Virginia still had a Christian establishment, as if the establishment were an incipient event to be feared by the sects. His vigorous promotion of Jefferson’s bill concerning religious liberty shows that he knew otherwise. An episode that occurred during its consideration in the Assembly shows where his sentiments lay.

For the sake of passage Madison acquiesced in several deletions urged by men who objected to the aggressively deistic tone of the bill, although he thought these defaced the text somewhat—to him its expressions were ever the “true standard of religious liberty,” even if his own inclination was to phrase that liberty as a right to the “full and free exercise” of religion rather than to its nonexercise. What he refused to agree to was an insertion that was attempted; as Madison much later recalled it:

an experiment was made on the reverence entertained for the name and sanctity of the Saviour, by proposing to insert the words “Jesus Christ” after the words “our lord” in the preamble.[28]

Madison, ever vigilant of words, fought the insertion and it was dropped. On January 22, 1786, he reported in a spirit of modest triumph to Jefferson in Paris that the enacting clauses had passed without alteration and, “I flatter myself, have in this country extinguished forever the ambitious hope of making laws for the human mind.” The rejection of the insertion proved, Jefferson later said, that “the Jew and the Gentile, the Christian and Mohametan, the Hindoo and Infidel of every denomination” were within the mantle of its protection. Those were exactly Madison’s intentions, and indeed he was to receive expressions of gratitude from American Jews and to give encouragement to them,[29]

So, although in the Memorial he writes to and for and—unemphatically but unquestionably—as a Christian, there can be no question about the universal application of his principle of religious liberty. No more can there be doubt about his uncompromising steadfastness in its application. Of many proofs let me choose only three.

His early draft of those amendments to the Constitution which were to become the Bill of Rights specifically prohibit the establishment of a “national religion.”

Even in later life he retained his rhetorical vigor in fighting Christian establishments. He apostrophizes his country:

Ye states of America, which retain…any aberration from the sacred principle of religious liberty, by giving to Caesar what belongs to God, or joining together what God has put asunder, hasten to revise and purify your systems.[30]

As ever, he attacks the perverse wedlock of church and state on the ground of Christianity itself.

The most striking, almost comical, examples of his scrupulous avoidance of even the slightest trespass are his presidential Thanksgiving Messages during the War of 1812. Forced from him by a Congressional resolution, he phrased them rather as exhortations to free choice of worship than to public piety.[31]

The strong Madisonian meaning of the word “liberty” as applied to religion, to be adumbrated throughout the petition, begins to emerge:

Religious liberty is a civil right which is grounded in relations of duty to God antecedent to political society and therefore incapable of being abrogated. These relations are determined by the nature of the human conscience which is free in a philosophical sense, that is, determined not by external force but only by the internal compulsion of evidence, be it reason or revelation; they are also determined by the original nature of the human being which is dependent in a theological sense, that is, created by God. (Para. 1.) Delicate because it must be maintained absolutely (Para. 3), this liberty requires the government to abstain completely from interference, for the purpose either of supporting or of obstructing the exercise of religious obligations (Para. 2). The government must protect religion, but only by abstaining evenhandedly from interference and by safeguarding each sect from the intrusions of the other sects (Para. 8). As a right held on the same political terms as the other natural rights that are reserved to the individual, religious liberty stands or falls with them (Para. 15).

Fourth Paragraph

Because the Bill violates that equality which ought to be the basis of every law, and which is more indispensible, in proportion as the validity or expediency of any law is more liable to be impeached. If “all men are by nature equally free and independent,” all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an “equal title to the free exercise of Religion according to the dictates of Conscience.” Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their Religious unnecessary and unwarrantable? Can their piety alone be entrusted with the care of public worship? Ought their Religions to be endowed above all others with extraordinary privileges by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations to believe that they either covet pre-eminences over their fellow citizens or that they will be seduced by them from the common opposition to the measure.

The proposed bill violates the natural equality of men affirmed in Article I of the Virginia Declaration of Rights, now quoted by Madison. Such equality is presented here as an internal condition of all law. The more liable a law is to the charge of invalidity or inexpediency, the more important such equality becomes. The dictum that equality , “ought to be the basis of every law” refers to the inner equity of the law, which ought to affect everyone equally, not to the familiar demand for equality of treatment under the law; the law must be such as to be capable of equal application.

A succinct statement of the contract theory of rights that underlies this demand is given: All men being by nature equally free, they must enter civil society on equal conditions; they must give up and retain exactly equal rights. “To embrace, to profess, and to observe the Religion which we believe to be of divine origin,” to join, to declare, and to exercise whatever religion seems to us to be truly a religion, is the essence of these rights with respect to religion.

In the conclusion of his Letter Concerning Toleration Locke says that “the sum of all we drive at is that every man may enjoy the same rights that are guaranteed to others.” Madison italicizes this one word in the petition—equal—when he quotes for the first time that clause of Article XVI of the Virginia Declaration of Rights for whose form he himself was responsible. Equality of applicability and application was for Madison, as for Locke, important above all else. Although it intends to preserve the “liberal principle” of Article XVI, by “abolishing all distinctions of pre-eminence” among the different sects, the Assessment bill is inequitable because it burdens all in support of a religious service that will peculiarly burden non-Christians and peculiarly exempt those Christians who do not wish to take advantage of its benefits. The rhetorical question, what sects besides those mentioned would fall under the latter category, would have the obvious answer: above all the Baptists, whose opposition to any kind of state intervention was a matter of theological principle.

There can never be a moral or theological pretext for interference, because the abuse of the right of religion is not subject to human punishment. Madison had restricted Mason’s broad reservation in the original draft of Article XVI, that the magistrate might restrain free exercise if, “under colour of religion, any man disturb the peace, the happiness, or the safety of society” to the condition that “the preservation of liberty and the existence of the State are manifestly endangered.” His record shows that as a magistrate he would have found no occasion to apply it; presumably he was glad finally to see the whole clause drop out.[32]

A bilaterally symmetrical sentence, the only one in the petition to contain the word “God,” presents this central point: God along punishes offenses of faith.

Early American documents mention the names of God profusely enough to intrigue a medieval theologian.[33] In this petition he is the Creator to whom man owes the duties of a dependent creature; the Governor of the Universe to whom man is a subject rather than a citizen (Para. I); God before whom alone man can sin (Para. 4); the Author of our Religion who hands down its teachings in scripture (Para. 6); the Supreme Lawgiver of the Universe from whom illumination of the legislature is requested (Para. 15). Not mere unreflective Enlightenment epithets, these names must be genuine expressions of Madison’s understanding of the facets of humanity’s relations to God, for they delineate just such a God as would be the ground of religious liberty.

In his work on Article XVI of the Declaration of Rights,[34] the young delegate to the Revolutionary Convention of May 1776 had offered but one draft article, on religion. Patrick Henry, who had himself sponsored it, had quickly disclaimed it when challenged on the floor to explain whether he actually intended to disestablish the Church. Madison had, of course, intended just such disestablishment:

That Religion or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion [a stylistic emendation of Mason’s “force or violence], all men are equally entitled to the full and free exercise of it according to the dictates of Conscience.

No man or class of men, the article continues, should receive special privileges or be subjected to special penalties for religious reasons, a prefiguration of the two prongs of the First Amendment, the establishment and free exercise clauses.

Madison, having been forced to withdraw his own draft, scrutinized Mason’s version, which promised “the fullest toleration in the Exercise of religion.” Perhaps he alone in that assembly took one word of it seriously enough to forestall a danger.[35]

That word was “toleration,” which implies not a right to religious liberty but a privilege granted. That was absolutely insufferable for Madison, for toleration accorded with, and so confirmed, ecclesiastical establishment (as in modern times it can accompany an anti-clerical policy).[36]

Although he wrote respectfully of the Dutch “experiment of combining liberal toleration with the establishment of a particular creed,”[37] Madison would certainly have rejected Spinoza’s views in the Theologico-Political Treatise (Ch. XIX), that the possessor of sovereign power has rights over spiritual matters but should grant religious liberty on matters of outward observancy, only inward piety being private and inalienable. In any case, it is unlikely that he knew Spinoza’s writings, especially since Locke, whose Letter he had probably read (as external likelihood and internal evidence in the Memorial indicate), admitted to little acquaintance with Spinoza’s work.[38] Although called a “Letter Concerning Toleration,” Locke’s work, by a typical cunning twist, shifts the meaning of the term: not granted to dissenting Christians by the ecclesiastical establishment and its state sponsors, toleration is required of the magistrate toward all churches—Mohammedan, Pagan, idolaters (though not—and here Madison differed—to atheists); the magistrate has no right to interfere with either the internal or the external aspects of religion. This “tolerance” was not the notion Tom Paine excoriated in the Age of Reason as “not the opposite of Intolerance, but… the counterfeit of it,” but a demand for a right under cover of a less aggressive term. Madison might well have taken his lead from the thought of the Letter Concerning Toleration at the same time that he balked at the use of the term “toleration” in fundamental law.

Fifth Paragraph

Because the Bill implies either that the Civil Magistrate is a competent Judge of Religious Truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: the second an unhallowed perversion of the means of salvation.

This brief but resounding paragraph (“arrogant pretension”—”unhallowed perversion”) appears to have been retained from the debate on the floor of the Assembly. Madison’s notes show that he employed his large theological erudition[39] to bring home to the Assembly, with that muted irony of which he was capable, the politico-theological consequences of the bill. It would require a legislative definition of Christianity: it would require that the law-makers choose an official Bible—Hebrew, Septuagint, or Vulgate— decide the method of its interpretation, confirm a doctrine—Trinitarian, Arian, Socinian—as orthodox, and so forth. The sentiment of the paragraph is Lockean: “neither the right nor the art of ruling does necessarily carry along with it the certain knowledge of other things and least of all of the true religion.”

In this paragraph alone Madison speaks of religion as a “means of salvation,” in contrast to its employment as an “engine of civil policy.” In the argument for religious liberty the obligations of religion, not its blessings, count most.

Sixth Paragraph

Because the establishment proposed by the Bill is not regulate for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself, for every page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them, and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence. Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies to trust it to its own merits.

Madison leaves the universal considerations of religious liberty to attend to the particularly Christian interest in it. The seven core paragraphs of the petition are devoted to that Christian point of view, an arrangement that tellingly mirrors both the encompassing necessity for a philosophical foundation and the immediate fact that a Christian constituency is speaking. Establishment, prohibited in a purely political context for the sake of the free exercise of religion, is to be yet more eschewed for the sake of Christianity itself.

His notes for the floor debate show that he intended to divert the argument from the preoccupation with the social need for religion to the “true question”: Are religious establishments necessary for religion? The proponents’ concern with “the peace of society” was, so he implies later, in part a cover for concern with the declining importance of the churches. The end of war, laws that cherish virtue, religious associations that would provide personal examples of morality, the education of youth, and precisely the end of governmental intrusion, not state intervention, were the “true remedies” for the decline of religion which he recommended to the legislature. Note the neo-classical notion that the laws should promote virtue.[40]

Madison’s Christian defense of liberty is in the great tradition of Protestant dissenting writings, especially Milton’s Treatise of Civil Power in Ecclesiastical Causes (1659), in which he shows “the wrong the civil power doth; by violating the fundamental privilege of the Gospel,…Christian libertie,”[41] that is, freedom from forcible impositions in matters of worship. Indeed Milton’s whole argument is drawn from scripture, especially from the Pauline letters.

Madison, too, alludes to scripture: “every page” of religion “disavows a dependence on the power of this world.” The Baptists, whose whole petition was based on the grounds that the bill was “repugnant to the Spirit of the Gospel,” however, outdid him in this line of argument. For them, as for other opposing Christians, disestablishment dated from Jesus himself. “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.” (Mark 13:17).

The paragraph next exposes the contradictions of the bill’s premise that Christianity cannot be diffused “without a competent provision” for its teachers. The contradiction of fact is that Christianity has indeed flourished at all times without aid—and Madison gives a believer’s capsule history of its two epochs, the era of miracles and the era of ordinary providence. The more serious contradiction in terms is twofold: the dependence of religion, which is preexistent, on human policy and the failure of the faithful to trust in God for its support. The argument is rendered in beautifully branching and balanced coda.

Fifty years later, Madison would feel entitled to answer the “true question” definitively from the accumulated evidence of the American experience, which had “brought the subject to a fair and finally decisive test.” Left to itself, religion would flourish; indeed the danger lay rather in its extravagances.[42] Madison insisted that “every successful example of a perfect separation…is of importance,” and that he regarded such success as an indispensible empirical test of the principle of religious liberty. At the same time, he was certain that the test would never fail since “there appears to be in the nature of man what insures his belief in an invisible cause…” But what would Madison have said in the face of an observable decline of “religious commitment” and the increasing legal expulsion of religion from communal life?[43]

Seventh Paragraph

Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil policy. Propose a restoration of this primitive State in which its Teachers depended on the voluntary rewards of their flocks, many of them predict its downfall. On which Side ought their testimony to have greatest weight, when for or when against their interest?

Proof positive that religion could flourish on its own was a half-century in the future, but the evidence of fifteen centuries, that is, dating back roughly to the Conversion of Constantine, showed that legal establishments corrupted Christianity, because they hampered freedom of conscience, “the truly Christian principle.”[44]

Here, as elsewhere, Madison allows himself the most spirited language for clerical degeneracy, without, however, giving way to that automatic anticlericalism that possessed Jefferson. Even in his youth, in an early letter to his friend William Bradford (January, 1774), echoing the spirit of the fourth part of Hobbes’s Leviathan, “Of the Kingdom of Darkness,” he had given a similar catalogue of clerical and lay vice, of the “Pride ignorance and Knavery among the Priesthood and Vice and Wickedness among the Laity,” which he thought was evident in his home country; worst of all:

That diabolical Hell conceived principle of persecution rages among some and to their eternal Infamy the Clergy can furnish their Quota of Imps for such business.

The Protestant supporters of the bill would preach the life of early Christianity, but they do not want to live like the first disciples, much less like the first Teacher himself. This passage deals with church business without resorting to the word “church,” which never occurs in this petition. Madison opposed not only the “incorporation with Civil policy” effected by a bill proposing state-salaried religious teachers, but the “encroachments and accumulations” encouraged by the legal incorporation of churches.[45] He desired neither state-supported nor richly endowed churches, but small congregations which would directly support their ministers.

Eighth Paragraph

Because the establishment in question is not necessary for the support of Civil Government. If it be urged as necessary for the support of Civil Government only as it is a means of supporting Religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If Religion be not within the cognizance of Civil Government how can its legal establishment be necessary to Civil Government? What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries. A just Government instituted to secure & perpetuate it needs them not. Such a Government will be best supported by protecting every Citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.

At the middle count, Madison takes up the main point supposedly agitating the proponents of the bill: the dangerous decline of morality which the bill was supposed to halt.

In his very first extant expression concerning religious liberty, a youthful letter to Bradford (December, 1778), Madison had asked this politico-theological question: “Is an Ecclesiastical Establishment absolutely necessary to support civil society in a supream Government?”

In this petition Madison has prepared the ground for answering the question in such a way that he can dispose of it by a mere syllogism (modus tollens): Only if religion is within the cognizance of government can the question of necessary legal establishment arise. But it is not, by the first paragraph. Therefore establishment is not necessary. With equal logic, he disposes of the circular arguments of the supporters, who say that establishment is necessary to government only insofar as government is a necessary means of supporting religion; since the latter contention has been shown false by the preceding paragraph, the former falls also.

So logical a resolution of the great question was not universally appealing. After he heard these arguments, Henry Lee wrote to Madison: “Refiners may weave as fine a web of reason as they please, but the experience of all times shows Religion to be the guardian of morals.” Not really in disagreement with Lee’s premise, Madison only disclaimed the inference that government ought to support the churches; he certainly never went as far as Jefferson, who claimed that “the interests of society require observation of those moral precepts only on which all religions agree,”[46] which amounts to saying that sectarian churches are unnecessary to society.

There are some instances of establishments supplanting governments, many instances of their upholding tyrannies, none of their supporting liberty. “A just government, instituted to secure and perpetuate it, needs them not,” concludes Madison, in the language reminiscent of the Declaration of Independence: “That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.”

How does a just government protect religious rights? It protects them precisely as it protects property and other rights. In a short essay “On Property,”[47] written in 1792, Madison elaborates a remarkable theory of religious rights which goes further: Rights are property: “In a word, as a man is said to have a right to his property, he may be equally be said to have a property in his rights…” And earlier in the same essay: “He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them…” Just government is instituted to secure property, in the large sense in which the term includes anything which a person values as his own (leaving to everyone else a like advantage), of which dominion over external things is only a part. Religious rights so conceived establish a kind of internal personal, and external sectarian, territoriality that government is to protect by “neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.” Those worried about inhibitions put on the free exercise of religion by the Supreme Court’s enforcement of the establishment clause of the First Amendment might well look to Madison’s theory of religious right as property rights.

Ninth and Tenth Paragraphs

Because the proposed establishment is a departure from that generous policy, which, offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an Asylum to the persecuted, it is itself a signal of persecution, It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthrophy in their due extent, may offer a more certain repose from his Troubles.

Because it will have a like tendency to banish our Citizens. The allurements presented by other situations are every day day thinning their number. To superadd a fresh motive to emigration by revoking the liberty which they now enjoy, would be the same species of folly which has dishonoured and depopulated flourishing kingdoms.

Now Madison inserts two complementary considerations, humanitarian and practical, which had figured in the floor debates under the heading of “Policy.” The bill might close Virginia as a religious asylum and also drive out dissenters, and might thus at once prevent much-needed immigration and further thin a population already moving westward at an alarming rate. Madison did not have to spell out to his fellow farmers the bad economic results of this policy: a yet greater shortage of labor power and further declining land prices.

The politically regressive consequences, however, needed telling. Citing again his maxim of the contiguity of the least and the greatest breach of liberty he does not hesitate to compare, though with reasonable qualifications, a Protestant Establishment with the Catholic Inquisition.

The springiness of style that derives from the adroit juxtaposition of two kinds of English diction, short and polysyllabic words, is noteworthy; for example: “What a melancholy mark is the Bill of sudden degeneracy?”

Eleventh Paragraph

Because it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion has produced among its several sects. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs that equal and compleat liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. If with the salutary effects of this system under our own eyes, we begin to contract the bounds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed “that Christian forbearance, love and charity,” which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded, should this enemy to the public quiet be armed with the force of a law?

A crowd of notions familiar in early American rhetoric is now brought to bear on the threat of sectarian strife raised by the bill: Time has revealed, and America is the stage to test and prove, the remedies to old problems; liberty once instituted, innovations may be dangerously regressive.

The paragraph permits itself some hyperbole, in the claim of complete religious freedom in Virginia, which flies in the face of the fact that the same Article XVI which Madison cites establishes Christianity, if not as a state church, at least as the public morality; moreover, in 1781 Jefferson had indignantly noted that although “statutory oppression” had ceased, common law permitting all sorts of persecution was still on the books.[48]

In this section Madison prudently suppresses his opinion that a vigorous variety of sects is an even more practically efficacious guarantee of liberty than a bill of rights,[49] and that disestablishment promotes church prosperity very much as factions well-managed produce political stability. The unstated premise is, of course, that doctrinal enthusiasms are as much an irrepressible force of human nature as special secular interests.

I can detect no strain in this opinion of Madison which might equate it with the insouciant dogma that truth is a private predilection and that everything is “true for” them that believe it. His preference for sectarian variety rests on the limits and necessities of observed human nature, not on a doctrinal disavowal of the search for truth.

Twelfth Paragraph

Because the policy of the Bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions; and how small is the former! Does the policy of the Bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of revelation from coming into the Region of it; and countenances by example the nations who continue in darkness, in shutting out those who might convey it to them. Instead of Levelling as far as possible, every obstacle to the victorious progress of Truth, the Bill with an ignoble and unchristian timidity would circumscribe it with a wall of defence against the encroachments of error.

In his notes for the floor debate Madison had proposed to himself at about this place in the argument a vindication of disestablished Christianity, a “panegyric of it on our side.” He omits it in the Memorial in favor of an appeal to the missionary urge. The offending bill is altogether too parochially conceived. Not only in Virginia but throughout mankind should Christianity be propagated. Instead the bill will act to prevent conversions by discouraging “strangers to the light of revelation,” that is, infidels, (Madison had first written “light of truth” and then christianized the term) from “coming into the Region of it,” which implies that a free America ought to be the natural ground on which revealed religion may be experienced.

The final sentence of the Christian section is reminiscent of the great peroration of the preamble to Jefferson’s bill establishing religious freedom,

that truth is great and will prevail if left to herself: that she is the proper and sufficient antagonist to error and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate,

except that the truth of this paragraph is truth of revelation, and the freedom here called for Christian liberty, a very Madisonian harmonizing of the spirit of enlightenment and the claims of Christianity.

Thirteenth Paragraph

Because attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority?

Again balanced phrases: “enervate the laws …slacken the bands,” “necessary or salutary…invalid and dangerous.” The rhetorical questions are intended to give pause to legislators who are ignoring the dangerous political effects of an unenforceable law: Madison’s associates anticipated rebellion in some counties.

Fourteenth Paragraph

Because a measure of such singular magnitude and delicacy ought not to be imposed, without the clearest evidence that it is called for by a majority of citizens, and no satisfactory method is yet proposed by which the voice of the majority in this case may be determined, or its influence secured. “The people of the respective counties are indeed requested to signify their opinion respecting the adoption of the Bill to the next Session of Assembly.” But the representation must be made equal, before the voice either of the Representatives or of the Counties will be that of the people. Our hope is that neither of the former will, after due consideration, espouse the dangerous principle of the Bill. Should the event disappoint us, it will still leave us in full confidence, that a fair appeal to the latter will reverse the sentence against our liberties.

In accordance with the symmetry of the composition, the penultimate paragraph returns to the beginning. The resolution which occasioned the petition is cited, though with a little rhetorical interjection (“indeed”) reflecting on its insufficiency.

Self-government, Madison argues, demands both that the voice of the majority be determined and that its influence be secured. That is to say, the legislature’s occasional solicitation of petitions is not a methodical enough polling of opinion, and electoral qualifications as well as legislative apportionment are not fair enough for either the Delegates or the Senators to be truly representative.[50] Truly representative representatives, namely those elected from districts fairly apportioned and responsive to their constituents, would have been less likely to support the dangerous abuse of power perpetrated by the bill. The petitioners hope, however, that even the legislature as presently constituted can be brought to reconsider its dangerous course. The paragraph concludes with a veiled threat of an organized grassroots campaign for repeal should the bill nonetheless be passed.

Here is set out an important aspect of Madison’s theory of self-government. It is the idea that when major and controversial legislation is in progress, the people should be given some systematic opportunity to express themselves, because such a plebiscitic element is a trustworthy preventive of legislative usurpation and an added sanction for laws. (There is, however, no evidence that Madison was proposing that this “method” for determining the voice of the majority be incorporated in the constitution.)

Accordingly, the fact that Jefferson’s law on religious liberty had been overwhelmingly passed in the wake of this and other petitions was regarded by Madison as a consummating factor: it had the “advantage of having been the result of a formal appeal to the sense of the Community and a deliberate sanction of a vast Majority…”[51] The majoritarian faith Madison expresses here is, of course, qualified in other contexts, where he designs devices, “moderations of sovereignty,” for protecting liberties from the people as well as from the legislature.

Fifteenth Paragraph

Because finally, “the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience” is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less dear to us; if we consult the “Declaration of those rights which pertain to the good people of Virginia, as the basis and foundation of Government,” it is enumerated with equal solemnity, or rather studied emphasis. Either then, we must say, that the Will of the Legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: Either we must say, that they may control the freedom of the press, may abolish the Trial by Jury, may swallow up the Executive and Judiciary Powers of the State; nay that they may despoil us of our very right of suffrage, and erect themselves into an independent and hereditary Assembly or, we must say, that they have no authority to enact into law the Bill under consideration. We the Subscribers say, that the General Assembly of the Commonwealth have no such authority: And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it if addressed, may on the one hand, turn their Councils from every act which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his [blessing, may re]dound to their own praise, and may establish more firmly the liberties, the prosperity and the happiness of the Commonwealth.

The right of religious liberty is now examined not insofar as it is grounded in transpolitical conditions, as in the opening paragraph, but with respect to its situation in the political realm. Madison again quotes his free exercise clause of Article XVI of the Virginia Declaration of Rights (as he evidently had in the floor debates) together with a sonorous adaptation of the full title:

“A declaration of rights made by the representatives of the good people of Virginia, assembled in full and free convention; which rights do pertain to them and their posterity, as the basis and foundation of government.”

The purpose of the citation in the fourth paragraph was to emphasize the equal application of the right; the point now is the equal, or even superior, standing that it has compared with the other fundamental rights. The religious right is equal with them in its natural origin, in its importance, and in its place of promulgation in fundamental law. (It had in fact been given the ultimate, most emphatic, position, even beyond the article of exhortation to virtue and “frequent recurrency to fundamental principles.”)

Since it is coequal with the other fundamental rights, religious liberty stands or falls with them. The argument, presented in two parallel sets of alternatives, recurs to the all-or-nothing reasoning of the third paragraph which is now extended. The least breach of the religious right endangers all the rights at once: Either the will of the legislature is unlimited or this particular right is untouchable; either they may sweep away all rights or they cannot enact the present bill. All the phrases are precise and suggestive: “Will of the legislature” is opposed to “voice of the people” of the previous paragraph; the “plenitude of their authority” conveys legislative high-handedness; “sacred” is used in the double sense of holy and inviolable. The rights of which the legislature “may despoil us”—Madison had first written “may abolish” but then remembered that natural rights cannot be abolished—are then enumerated from the Declaration, but their order is almost exactly reversed, ending with the most specifically political right, a “fundamental article in Republican Constitutions,” the right of suffrage.[52] The whole appeal is couched in terms of the constraints of reasonable speech: “Either we must say…or we must say….” It concludes determinedly: “We the Subscribers say, that the General Assembly of this Commonwealth have no such authority.”

The final pronouncement of the citizens, then, supersedes all the previous considerations. It is the principled denial of legislative authority to enact the bill at all:The legislators may not arm it “with the sanctions of a law,” in the words of the preamble. Into the last paragraph of his law concerning religious freedom Jefferson had written just such a denial: No assembly can constrain a future one equally elected by the people, but it is free to shame it by declaring that if it should repeal or narrow the law, “such an act will be an infringement of natural right.”

The subscribers’ pronouncement introduces the submission of the Memorial in a peroration which counters the simplicity of the opening with a grand, intricately branching rhetorical period, praying, as religious duty demands, that two coordinate illuminations might descend on the lawmakers, that they may both refrain from violating their trust and pass measures which will make them worthy of God’s blessing, will procure for them the praise of men, and will establish for the citizens liberty, prosperity, and happiness.

Observe the careful enumeration of goods in triads and subtriads; such triples belong to the familiar rhythms of American rhetoric: “Life, liberty, and the pursuit of Happiness” rise most immediately to the ear. The prayer for the establishment of these goods echoes Jefferson’s title: “A Bill for Establishing Religious Freedom,” which proclaims the republican appropriation of the offending term. The petition ends as it began, with a reference to the Commonwealth.

IV. Madison’s Rhetoric

How is the rhetoric of the Memorial to be characterized and how is it to be accounted for, reticent and rousing, calculated to persuade and designed for truth-telling, concisely compendious and artfully structured, as it is?

In his essay “Of Eloquence,” Hume complains of the deficiency of modern eloquence. It is “calm, elegant, and subtile,” but also lacking in passion and sublimity as well as order and method: it is mere “good sense delivered in proper expressions.” The Memorial has the precise virtues and precisely lacks the shortcomings Hume names. It is at once “argumentative and rational,” grandly passionate and carefully constructed. It is almost as if Madison had composed to Hume’s standards, standards probably more appropriate to written than to spoken eloquence. Unlike Jefferson, whose style failed him on the floor, Madison, incidentally, was a persuasive though un-declamatory speaker. He seems to have addressed assemblies with just the same educated elegance with which he wrote, suiting his matter rather than his form to the occasion.

The terms and criteria for judging style used to be fairly fixed; they were to be found in textbooks of rhetoric, or—the preferred word in the eighteenth century—of eloquence, and they were universally employed in characterizing and judging productions. The loss of such a set critical vocabulary is not much mourned by modern writers on rhetoric, who regard it as meaningless and unprofitable, and demand more fluid, sophisticated criteria. But its disappearance is a loss. To be sure, a writer was unlikely to improve his style through learning Quintilian’s maxim that the first virtue of eloquence is perspicuity or clarity, that vivacity or liveliness of imagery is next in order of importance, that elegance or dignity of manner is also required, and that the intellect has the prerogative of being always the faculty ultimately addressed in speech. (My source here is Campbell’s Philosophy of Rhetoric, 1776, a work based mainly on Humean principles of human nature and popular as a textbook in the colleges of the early Republic.[53]) Yet it seems to me a suggestive fact that in the era when these criteria were considered significant, prose was produced which indeed satisfied them. Certainly they describe Madison’s style with accuracy.

They were, I suppose, not so much the instigators as the precipitates of a well-defined and uncompromising taste—well-defined insofar as a deviation truly offended, and uncompromising because no one, certainly not Madison, lowered his language for any audience or occasion. All the manifestos, pamphlets, correspondences, petitions, memoranda, and memorials of the time that come in one’s way show the same educated correctness of style.

Such correctness, then called purity, that is, speech true to its rules, is said by Campbell to be the lowest—and indispensible—rhetorical virtue: “Where grammar ends, eloquence begins.” It was in such basic studies that Madison, and everyone of his class, was amply trained, and that early, in boyhood.

At twelve, Madison recalls in his autobiography, he was learning Greek and Latin, studies that, if not absolutely indispensable to good style, at least ensure that knowledge of syntax and vocabulary that prevents illogical constructions and faulty diction, while shaping the Latinate English appropriate to the political writing. “Miscellaneous literature” was also embraced by the plan of the school he attended. Madison devotes a special paragraph to one such work of literature which he read early to great advantage, namely the Spectator, especially Addison’s numbers, and in recommending it late in life to his nephew, he writes:

Addison was of the first rank among the fine writers of the age, and has given a definition of what he showed himself to be an example. ‘Fine writing,’ he says, ‘consists of sentiments that are natural, without being obvious’, to which adding the remark of Swift, another celebrated author of the same period, making a good style to consist ‘of proper words in their proper places,’ a definition is formed, which will merit your recollection…[54]

Madison has here conjoined precepts from one writer of satiny sweetness and another of mordant savor. Both together evidently guided his taste.

The young student apparently had an interest in rhetorical lore; at one point he copied out and annotated a long poem on the tropes of rhetoric:

A metaphor compares with out the Sign

[Madison’s marginalia: “as, like, etc.”]

Virtue’s A star and shall for ever shine.[55]

Studies conducive to good style and rational discourse continued in Princeton. There he filled a copybook with notes on a course of logic, probably given by the president, Dr. Witherspoon, much of which naturally bore on argumentation.[56] There, too, he is very likely to have heard Dr. Witherspoon’s lectures on eloquence, of which extensive notes taken, among others, by Madison’s college friend William Bradford in 1772, are still extant.[57] Witherspoon was fully conscious that he was speaking to young men destined for political responsibilities, who might one day have to address “promiscuous assemblies.” He tried to convey to them the dignity and efficacy of rhetorical studies. He deals with the usual topics: types of language, such as the sublime and the simple; the use of tropes or figures of speech; his own set of characteristics for eloquent writing—for example it is just if it pays “particular attention to the truth and meaning of every sentence” and elegant if it employs “the best expression the language will afford.” Furthermore he treats of invention, organization, and style, always giving examples, and among them Addison and Swift.

But what seems to me most likely to have penetrated to his young auditors was his introductory list of five rules for good writing: (1) “Study to imitate the greatest examples,” (2) “Accustom yourselves to early and much composition and exercise in speaking.” (3) Acquaint yourselves with the “branches subordinate” to eloquence, namely grammar, orthography, punctuation. (4) Notice and guard against “peculiar phrases,” namely idiosyncracies of speech. (5) “Follow nature,” meaning, gain clear conceptions and follow the truth. Who now is bold enough to give such good advice so authoritatively?

Rives thought that Witherspoon had had a major part in forming Madison’s style. Both show

the same lucid order, the same precision and comprehensiveness combined, the same persuasive majesty of truth and conviction clothed in a terse and felicitous diction,

words which surely describe Madison’s style faithfully. Evidently good style, if not great eloquence, can be taught.

One far from negligible feature of this early training was the prodigious amount of studying Madison—and Jefferson as well—did in their youth. Madison reports that he lost his health and nearly his life at Princeton through all too successfully cramming two year’s work into one. But as a result both men were masters of their style early: Jefferson was thirty-three when he wrote the Declaration and Madison composed the Memorial at thirty-four. Yet these efforts, being completely self-imposed, never spoiled the savor of study for either man. Madison went to his books throughout his life; for example, no sooner had he been appointed deputy of the Constitutional Convention than “he turned his attention and researches to the sources ancient and modern of information and guidance as to its object. Of the result of these he had the use both in the Convention and afterwards in the ‘Federalist’.” And later, at the close of his public life, he devoted himself to his farm and his books.[58] Such continuous, ready recourse to reading both for private pleasure and political practice is surely a chief contributor to fluent expression.

But of course, the most minute history of his studies is as insufficient to account for Madison’s eloquence as the most time-honored rubrics of eloquence are to describe it. Finally, it seems to me, his rhetoric is shaped by that rare aptitude for conjoining speech and action, which caused Jefferson in his own autobiography to couple in his noble description of Madison “the powers and polish of his pen, and the wisdom of his administration.” That capacity was part of a

habit of self-possession which placed at his ready command the rich resources of his luminous and discriminating mind…Never wandering from his subject in vain declamation, but pursuing it closely in language pure, classical, and copious, soothing always the feelings of his adversaries by civilities and softness of expression…With these consummate powers were united a pure and spotless virtue which no calumny has ever attempted to sully.

In the traditional understanding the rhetorical art has three parts: first, and least, elements of style such as copious diction and felicitous syntax; next, devices of persuasion such as “civilities,” prudent omissions and emphases together with well-placed passion; and finally, the very conditions of good speech, the veracity of the speaker and the verity of his thought. By these criteria, Madison was a consummate rhetorician.

Madison’s “Memorial and Remonstrance” seems to me in truth among the finest of those works of republican rhetoric in which adroit enunciation of the principles of liberty elicits their practice. In particular, that strict separation of church and state which implies the total secularization of public life and which, when promoted with heedless or rabid rationalism causes me, at least, some unease, is set forth in the Memorial with such respectful, even reverent, reasonableness that my scruples are dissolved in a certain enthusiasm for Madison’s principles and in the gratitude that a Jew and a refugee must feel for the safe haven he made.

And yet the question obtrudes itself whether such texts, for all their fineness, are not relics of an irrecoverable art. A document to whose phrases the highest court of the land has recourse in formulating decisions affecting every school in every district of the country can, of course, hardly be relegated to history. Nonetheless, it is perhaps no longer a possible model of public discourse. I ask myself why that might be.

I can imagine four reasons which would be readily forthcoming. It will be said that the public will no longer listen to educated speech, and it will be said that politicians can no longer be expected to have the requisite training. And again, it will be claimed that the level of language itself has fallen, and also that the complexity of our condition precludes any grandly perspicuous statement of principles.

These may be true reasons, but they are also bad excuses. They merit indignant refutation as miserable collusions with mere or imaginary circumstance. How we will be spoken to, how we and our representatives will be educated, to what level the language will rise, how our thought will dispose the world—these matters are not yet in the hands of Society or the Historical Situation, but in ours. And in the exercise of the liberties in which that truth is realized Madison is not only a possible, but the best possible, model.

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Appendix

The Memorial in Supreme Court Decisions

The after-history of the petition is chiefly that of its citation by the Supreme Courts[59] The Court has recurred to the Memorial for elucidation of the “establishment” clause of the First Amendment, both because the latter was also drafted by Madison and because the Memorial is concerned with religion in education, as are so many cases involving that clause.

The relevant part of the First Amendment runs:

Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof.

It includes two clauses, one prohibiting aid, and the other obstruction, to religion. That is to say, the “establishment” clause prohibits official support of religious institutions, while the “free exercise” clause guarantees absence of coercive invasions of any individual’s religious practice. (Justice Clark, 1963). In this country, happily, the court has to deal far more often with putative attempts at establishment than with more direct interference with the free exercise of religion. Therefore the question of the precise meaning of the term “establishment” remains continually acute.

Madison’s wording of the establishment clause is not vague but extremely careful—careful, that is, to use the most encompassing language. Thus the phrase “a law respecting” an establishment conveys a wider notion than would have been contained in the briefer phrase “a law establishing” religion, and, as Justice Rutledge points out, an “establishment of religion” is a wider notion than would have been an “establishment of a church.” Such observations, however, are only the beginning of an interpretation; the central matter is the recovery of Madison’s meaning of the word “establishment” itself, and here the Memorial, which was composed to combat an establishment of religion, is naturally the most pertinent document.

The Memorial played its chief role in the Everson decision of 1947. Everson, as a district taxpayer in New Jersey, filed a suit challenging a statute authorizing local Boards of Education to reimburse parents of parochial-school students equally with parents of public-school students for money expended on bus transportation. The argument was that such state aid to religious education constituted an establishment of religion under the First Amendment as made applicable to the states by the Fourteenth. Although the Court held that this particular statute did not constitute such an establishment, Justice Black in the course of his opinion paraphrased the Memorial at the climax of his argument for a very strong interpretation of the First Amendment:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.

Justice Rutledge canvassed the Memorial at yet greater length for his dissent, to find in it that broad meaning of the word “establishment” which would be consonant with the evident breadth of language of the First Amendment just pointed out. He found the word to have a wider scope of application than that current in England, where it usually meant a state church established by law.[60] Establishment, he showed, could encompass measures of all sorts and degrees, including, above all, state aid to any activity associated with religion, especially when coming out of tax money. He argued that all such government support whatsoever was vigorously proscribed under the name of establishment by the Memorial and hence by the First Amendment. Therefore the New Jersey statute supporting the children’s way to parochial schools was unconstitutional. Rutledge thought the Memorial so fundamental a document that he appended it to his dissent. It might be argued that so broad an interpretation of the Establishment clause was bound to bring it into conflict with the Freedom of Exercise clause.

Be that as it may, the justices who have cited the Memorial have almost all understood it as enjoining an absolute separation of church and state, and have construed the First Amendment accordingly—a construction named by a Jeffersonian phrase the “wall of separation” doctrine. Justice Frankfurter cites the Memorial once again in 1948, in the McCollum opinion, finding unconstitutional the device of so-called “released time,” which permitted religious groups to come into public schools to instruct children who were released from the classroom for that purpose. He alone, incidentally, had an ear for that note of the document which could hardly get full hearing in a judicial context: its “deep religious feeling.” Again, in 1963 Justice Clark quotes from the third paragraph, that “it is proper to take alarm at the first experiment on our liberties,” to support prohibition of even minor incursions of the state into religion, such as the reading of a supersectarian prayer in school.

But this agreement on intent has not been sufficient to decide cases. The Memorial has several times been used on both sides, as in the Everson case and, much earlier, in the Mormon marriage case of 1879. There Judge Waite endorsed its doctrine that religion was not within the cognizance of the government, but found nevertheless that it did not protect religious practices made criminal under the law of the land, such as polygamy. Madison himself had confessed “that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the Civil authority,”[61] though he thought that the doubts would arise on inessential points. In other words, like all fundamental documents, the Memorial is necessary but not sufficient for determining cases.

It should be noted that the one judge who wished to give the Memorial and Madison’s views a narrowly historical interpretation, Justice Reed in his McCollum dissent, cites as traditionally permissible involvement of the government in religious affairs the existence of chaplains of Congress and of the armed forces—evidently unaware that Madison had most emphatically opposed the first and only tolerated the latter.[62] (Such toleration is rationalized by present day courts under the category of “neutralizing” aids, breaches of the wall of separation permitted to counterbalance restrictions on the free exercise of religion incidental to meeting governmental demands, such as service in the armed forces.) Madison, however, excused such practices only reluctantly by the aphorism “the law ignores trifles.”[63]

Furthermore the judge who rejected most forcefully “a too literal quest for the advice of the Founding Fathers” (Brennan, 1963), largely on the grounds that conditions of education have changed, failed to recall that the two new issues he mentions, universal public schooling and religious diversity, were precisely among the chief preoccupations of both Jefferson and Madison.

It is as hard to find Fault with the strong interpretation of the First Amendment in the light of the Memorial as it is to deny the principles themselves of the Memorial, Yet one must wonder whether, were Madison alive now, he would not recognize certain complicating circumstances, especially where education is concerned.

Within the context of the Constitution the establishment clause is essentially ancillary to the free exercise clause. It is because state aid to religion inevitably in some way restricts someone’s free exercise that it is prohibited. Furthermore, the Court has repeatedly held that irreligion, secularism, humanism are all entitled to protection under the First Amendment, that is to say, they are in some manner of speaking religions, “belief systems”: “the day that the country ceases to be free for irreligion it will cease to be free for religion … (Justice Jackson, Zorach v. Clemson, 1952). Consequently there is, by the Court’s own admission, a sense in which secular schools are not neutral in respect to religious doctrine.

Might not Madison, the fairest of men in such arguments,[64] have honored the point, if moderately made, that the enormous preemption of a child’s time for secular purposes implied by modern school-attendance requirements, considered together with the financial hardship which Justice Rutledge admits the policy of total separation imposes on parents wishing to give their children religious schooling, amounts to a state invasion of religious rights? Would he not have lent an attentive ear to the admission made by Justice Black (Epperson v. Arkansas, 1968) that non-religious schooling cannot help but be, as for example in the teaching of evolution, in some sense anti-religious, and that the mandated secularism[65] of the public schools is indeed in the sense before explained, a kind of religious establishment, possibly in need of counterbalancing by fairly vigorous “neutralizing aids?” To study Madison’s writings on religious liberty is to conceive an ardent wish that he might be here to consider these dilemmas.

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Miss Brann welcomes questions/comments via mail: Dr. Eva Brann, St. John’s College, 60 College Avenue, Annapolis, MD,  21401-1655 (she does not use computers and thus no email).

Notes:

1. Printed with introduction and notes in The Papers of James Madison, Robert A, Rutland and William M. E. Rachel, eds„ (Chicago) Vol. 8 (1784-1786), pp. 295-306.

I know of no detailed study of the Memorial.

2. William Cabell Rives, A History of the Life and Times of James Madison (Boston 1859), p. 632:

In this masterly paper, he discussed the question of an establishment of religion by law from every point of view,-of natural right, the inherent limitations of the civil power, the interests of religion itself, the genius and precepts of Christianity, the warning lessons of history, the dictates of a wise and sober policy, and treated them all with a consummate power of reasoning, and a force of appeal to the understandings and hearts of people, that bore down every opposing prejudice and precluded reply.

“This noble production of the mind and heart of Mr. Madison” is, he concluded this perfectly just appreciation, a triumphant plea in the great cause of religious liberty, “never surpassed in power or eloquence by any which its stirring influence have called forth.”

3. Neal Riemer, James Madison (New York 1968), pp. 12-13. Riemer does not rate Madison’s rhetorical gifts very high, particularly when compared to those of Jefferson and of Paine. He describes the style as earnest, forthright, simple, unadorned, quiet. “His writings convince but do not take fire.” I think his estimate too much reduces rhetoric to oratory.

4. Sources: Papers, Vol. 8, pp. 295-98; Madison’s “Detached Memoranda” in the William and Mary Quarterly, Third Series, III, (October 1946), pp. 555-56; Irving Brant, James Madison, Vol. 2, The Nationalist; 1780-1787 (New York 1948), pp. 343-55; Charles F. James, Documentary History of the Struggle for Religious Liberty (New York 1971), pp. 128-41; Ralph Ketcham, James Madison (London 1971), pp. 162-68; Anson Phelps Stokes, Church and State in the United States, Vol. [(New York 1950), pp. 339-45; Manfred Zipperer, Thomas Jefferson’s “Act for Establishing Religious Freedom in Virginia” Vol. 16. January 1786, Dissertation (Erlangen 1967), pp. 24-28.

5. James, p. 129.

6. The speeches are extant in the form of notes; see Papers, Vol. 8, pp. 195-99.

7. Gaillard Hunt, “Madison and Religious Liberty,” Annual Report of the American Historical Association (1901), Vol. 1, p. 168.

8. Rives, p. 631.

9. “Detached Memoranda,” pp. 555-56.

10, Papers, Vol, 8, p. 473.

11. Papers, Vol. 8, p. 298.

12. To display the bare bones of the argumentation I have stripped it of Madison’s diction and added connectives.

1. Because of the unconditional priority of religious duties over civil obligations, religion is wholly exempt from any secular direction.

2. So much more so is it exempt from governmental interference.

3. Therefore even the smallest infringement of’ religious liberty constitutes an insupportable breach.

4. Governmental aid to religion is necessarily discriminatory and therefore violates the basic principle of equality.

5. Furthermore it constitutes officials the judges of orthodoxy and enables them to use religion politically.

6. At the same time it weakens Christianity by making it depend on secular support.

7. Moreover, such aid contaminates the purity of Christianity.

8. Above all, it is unnecessary to the security of a free government; indeed it is dangerous.

9. It discourages immigration by signaling possible persecution.

10. And it encourages emigration of dissenting citizens.

11. It encourages violent animosity among the sects.

12. in thus hindering free movement it in fact restricts the spread of Christianity.

13. The attempt to enforce so unpopular a law will undermine social stability.

14, Therefore before the bill is enacted into law the will of the majority should be fairly ascertained and represented in the legislature.

15. Ultimately, however, religious liberty being coequal with the other natural rights, the legislature has in any case no authority to abridge it, unless it is granted to have unlimited power to take away all rights.

13. Since the texture of the Memorial will sometimes be best brought out by comparison with Madison’s other writings on religious liberty, that dearest of his causes, a list of his chief expressions on the subject is subjoined. I want to observe here that while Madison’s language soon acquires a certain canonical quality it never becomes formulaic. Iteration does not wear away its warmth.

1. 1773-1775. A series of youthful letters addressed to his friend from Princeton, William Bradford. These were written when Madison was in his early twenties and express in youthfully vigorous language his disgusted preoccupation with evidences of religious persecution in Orange County and in Virginia.
2. 1776. His first small but important contribution as a law-maker, his amendment of George Mason’s draft of Article XVI for the Virginia Declaration of Rights. Also his own rejected version.
3. 1795. The “Memorial and Remonstrance,” his most extensive writing on the subject.
4. 1788. A note on the value of a multiplicity of sects, meant for the Virginia Convention.
5. 1789. An early version and the final form of the first article of the Federal Bill of Rights, the First Amendment.
6. 1792. Essay “On Property,” expressing a theory of rights, and particularly religious rights, as constituting personal property.
7. 1811. Presidential Veto Message, against the incorporation of the Episcopal Church.
8. 1811, 1813. Presidential Thanksgiving Messages, with caveats about publicly ordered prayer.
9. 1819-1822. Letters demonstrating that state support is not necessary to the religious sects.
10. 1823. Letter to Edward Everett, on the secular university.
11. “Detached Memoranda” (fragmentary essays separated from his main works in the nineteenth century), containing historical notes and exhortations concerning religious liberty, and art account of the events around the Memorial.
12. 1832. A late letter to the Rev. Jasper Adams giving proofs from American history that Christianity is not in need of state support.
13. The sources for these texts are: 1. Papers, Vol. 1(1751-1779), pp. 100-161 passim; 2. ibid., p, 174; 3. ibid., Vol. 8, pp. 298-304; 4. James Madison, The Forging of American Federalism, Saul K. Padover, ed. (New York 1965), p. 306; 5. Stokes, p. 345; 6. ibid., p. 551:7. Forging, p. 307; 8. Adrienne Koch, Madison’s “Advice to My County” (Princeton 1966), pp. 33-34; 9. Forging, pp. 308-10; 10. Stokes, p. 348; 11. op. cit., pp. 554-62; 12. The Writings of James Madison, Gaillard Hunt, ed., Vol. IX, 1819-1836, (New York 1910) pp. 484-88.
14. George Campbell, The Philosophy of Rhetoric (1776), Lloyd F, Blitzer, ed, (Carbondale, 1963), p, 365.
15. Papers; Vol. 1, p. 38.
16. Frank Swancara, Thomas Jefferson vs. Religious Oppression (New York 1969), p. 124.
17. Samuel Stanhope Smith sent him a disquisition “on that knotty question of liberty and necessity,” for light on which, Madison had “frequently attacked” him. Madison’s response is lost, but Smith observes in a later letter: “I have read over your theoretical objections against the doctrine of moral liberty; for practically you seem to be one of its disciples.” (Papers, Vol. I, 1751-1779, pp. 194,253). For Madison’s theory of human nature in general see Ralph L. Ketcham, “James Madison and the Nature of Man,” Journal of the History of Ideas, Vol. XIX, (1958), pp. 62-76.
18. “Detached Memoranda,” p. 556.
19. Wilber G. Katz and Harold P. Southerland, “Religious Pluralism and the Supreme Court,” Religion in America, op. cit., p. 273.
20. Alexander Landi, “Madison’s Political Theory,” The Political Science Reviewer, Vol. VI (Fall 1976), pp. 77-79.
21. John Wise in Vindication of the Government of New England Churches (1717), quoted in Sidney E. Mead, “The ‘Nation with the Soul of a Church’,” American Civil Religion, Russell E Richey and Donald C. Jones, eds. (New York 1974), pp. 53 ff.
22. On Madison’s views of the problems of majoritarian rule, see above all Federalist, no. 10; also Landi, pp. 84 ff.
23. See Papers, Vol. 8, p. 297.
24. See Jefferson’s Letter to the Danbury Baptists, 1802; On Roger Williams, see Loren P. Beth, The American Theory of Church and State (Gainesville 1958), p. 65. The American author of the separation doctrine was Roger Williams, with whose ideas Madison was probably acquainted through his connection with the Baptists of his county.
25. John Adams’ entry in his Diary shows how the Boston Tea Party caught the imagination as a beginning: “This is the most magnificent Movement of all, There is a Dignity, a Majesty, a Sublimity, in this last Effort of the Patriots, that I greatly admire ….I cant but consider it as an Epochs in History.” (December 17, 1773).
26. “Detached Memoranda,” p. 557.
27. John Locke, The Second Treatise of Government and A Letter Concerning Toleration, J. W. Gough, ed. (Oxford 1976), p. 149.
28. Swancara, pp. 123-32; “Detached Memoranda,” p. 556.
29. To Mordecai M. Noah, 1818; to Jacob de la Motta, 1820.
30. “Detached Memoranda,” p. 555.
31. Koch, p. 33; cf. “Detached Memoranda,” pp. 560-61.
32. Papers, Vol. 1, pp. 172-75.
33. For example, in the Declaration of Independence there is “Nature’s God,” man’s “Creator,” “the Supreme Judge of the World.” In his law Jefferson used one designation that pleased the devout, “holy author of our religion,” the very one employed by the Baptists in their resolution against the assessment bill (James, p. 138).
34. See Papers, op. cit., pp. 170 ff.
35. See Hunt, “James Madison and Religious Liberty,” op. cit., p. 166.
36. Stokes, pp. 22-26.
37. Letter to Edward Livingston, 1822; to Rev. Adams, 1832.
38. Locke started writing on toleration in the decade before Spinoza’s Treatise, which appeared in 1670, though the Letter postdated it (1683-4), For Locke’s lack of interest in Spinoza see Leo Strauss, Natural Right and History (Chicago 1974), p. 211.
39. See, for example, the theological catalogue for the library of the University of Virginia which he hastily tossed off at Jefferson’s urgent request, listing an astonishing number of church writers of the first five Christian centuries. (Rives, pp. 641-44).
40. Landi, pp. 80-84.
41. John Milton, Selected Prose, C. A. Patrides, ed. (Penguin 1974), p. 316.
42. Letter to Rev, Jasper Adams, 1832. The opinion here expressed seems to have been current. For example, just the preceding year Tocqueville had asked a Catholic priest whom he had met in his travels through the Michigan Territory this very question: “Do you think that the support of the civil power is useful to religion” and had received the same answer Madison was to give to Rev. Adams, a decided negative, See George Wilson Pierson, Tocqueville in America, Dudley C. Lunt, ed. (Gloucester 1969), p. 203.
43. Evidence for such a long term decline in the second half of this century is given in Rodney Stark and Charles Y. Clock, American Piety: The Nature of Religious Commitment, Vol. I (Berkeley 1970) pp. 204 ff. Of course, the question would become moot, should a massive religious revival refute the sociological projections.
44. “Detached Memoranda,” p. 554.
45. “Detached Memoranda,” p. 556-57.
46. Beth, p. 66. Madison’s own church allegiance was so vanishingly weak a factor in his opinions about religious liberty that it can be relegated to a footnote. He was, in fact, a born Episcopalian with strong Presbyterian associations from his Princeton days, apparently a communicant of no church, who displayed unfailing respect for the faiths of the sects.
47. Stokes, p. 551. The starting point of the essay appears to be Locke’s definition of property as life, liberty and estate in the Second Treatise of Government, Ch. IX.
48. Notes on the State of Virginia, Query XVII.
49. Madison liked to quote Voltaire’s Article on “Tolerance” in the Philosophical Dictionary: “If one religion only were allowed in England, the government would possibly become arbitrary; if there were but two, the people would cut each other’s throats; but as there are such a multitude, they all live happy and in peace.” See Koch, p. 76.
50. Jefferson, too, had complained of the under-representation in both houses of the middle and upper counties, and of the arms-bearing population in general.
51. “Detached Memoranda,” p. 554.
52. Forging, p. 36.
53. Campbell, The Philosophy of Rhetoric, op. cit., pp. 215-16, 285, 35. I. A. Richards, for example, in his Philosophy of Rhetoric (New York 1965), p. 70, decries the use of just such terms as “misleading and unprofitable.”
54. Rives, p. 25, no. 1. It is the spirit of Swift’s definitions which I. A. Richards’ rhetoric is intended to oppose.
55. Papers, Vol. 1, pp. 32-42.
56. Papers, Vol. 1, pp, 18-19.
57. Microfilm, Princeton University Library.
58. “James Madison’s Autobiography,” Douglas Adair, ed., William and Mary Quarterly, Third Series, 11, no. 2, pp. 202, 207. See also Robert A. Rutland, “Madison’s Bookish Habits,” The Quarterly Journal of the Library of Congress, Vol. 37, no. 2 (Spring 1980), pp. 176-91.
59. Sources: Irving Brant, The Bill of Rights, Its Origin and Meaning (New York 1967), pp. 400-18; The Supreme Court and Education, Classics in Education No. 4, David Fellman, ed. (New York 1976), Pt. I, pp. 3-124.
60. Stokes, pp. 26-30, gives a history of the term. The contemporary political use of the phrase “The Establishment” is, of course, quite different since it has no reference to legal confirmation.
61. Letter to Rev. Jasper Adams, 1832.
62. “Detached Memoranda,” pp. 558-60; Letter to Edward Livingston, 1822.
63. Religion in America, William C. Mclaughlin and Robert N. Bellah (Boston 1968), p. 275; “Detached Memoranda,” p. 559.
64. An example is his reply to Rev. Adams, 1832.
65. For the definition of secularism, see Stokes, pp. 30-31. Just this year the secular religion issue has again been raised in Seagraves vs. State of California.

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3 replies to this post
  1. I’ll spend time reading about Madison when someone explains why he didn’t secure the blessings of liberty to the slave population into his Constitution. His notes indicate that he was fully aware that slavery would not attrit, so why didn’t he batten down that inalienable hatch? His failure is costing us a mess of trouble hundreds of years later.

  2. There is much to be admired in Brann’s essay. I take no issue with her contention that Madison’s Memorial makes a fine, powerful argument. However, like many scholars and jurists she assumes that it had an “immediate and the historical efficacy.” On the contrary, I would like to suggest that this eloquent argument had little influence prior to the nineteenth century.

    As Brann recognizes, some 10,929 Virginia citizens signed petitions to the VA General Assembly, of which 1,552 affixed their signatures to copies of Madison’s Memorial. Far more popular was an earlier, anonymous evangelical petition signed by 4,899 citizens (including eleven women), which argued that state support of religion is “contrary to the spirit of the Gospel” and that ending it would lead “[r]eligion [to] (if departed) speedily return, and Deism be put to open shame, and it’s [sic] dreaded Consequences removed.” (Dreisbach and Hall 2009, 307-308).

    The Memorial was reprinted anonymously a few times prior to 1791, but there is little evidence that it was influential in this era. It was not referenced as an authority or ideal in any record of any debate over church-state relations that I could find prior to the ratification of the First Amendment. Of course many of these records are poor, but we cannot assume a document had influence simply because we think it is eloquent, powerful, or even correct.

    A brief note on Madison and chaplains: On February 29, 1788, the Confederation Congress (including Madison) voted to pay congressional chaplains $300 per year. (Dreisbach and Hall 2009, 219) Once the Constitution was ratified, the new Congress met and appointed a committee to select chaplains—a committee on which Madison served. Within days Congress had selected and agreed to pay chaplains. (Id., 472; Olree 2008, 154, 173-176) The new national government also reauthorized the Northwest Ordinance, issued calls for prayer and fasting, and provided for military chaplains. (Dreisbach and Hall 2009, 453-57, 473-74) In no instance is anyone recorded as objecting to these acts—including Madison—because they violated the letter or spirit of the Memorial or Virginia Statute. As a relatively old man Madison privately regretted his previous positions, but I don’t know why we should accept this later position as Madison’s “true” view.

    I address all of these issues in far greater detail in a forthcoming article “Madison’s Memorial and Remonstrance, Jefferson’s Statute for Religious Liberty,
    and the Creation of the First Amendment,” which will be published in the journal American Political Thought.

    Mark David Hall
    George Fox University

  3. As far as what the intent of the founders were when penning the Constitution is sure as hell does mean something. It shows what his clear position was on the issue with no room for debate. You mention chaplains. When I was in the Navy we had chaplains. There were many denominations represented and available to us. I think you may need to locate all the chaplains, determine all their religious affiliations. You may also want to consider the varying degrees of religious diversity during their and our time periods. It would have been less likely to have caused any issues than it would now, but I would bet my money on the fact that multiple denominations were represented, the term chaplain does not necessarily imply a single denomination. The key here really though is that they were merely federal employees. Madison wasn’t in any way arguing against the hiring of religious personal by the federal government. Hiring and paying chaplains as a service employee to cater to other federal employee’s personal religious practices is not in any way a law that establishes or mandates everyone else’s participation in those religious activities. Furthermore, issuing calls for prayer and fasting is not an edict, nor is it solely an activity of only one religion but instead it is an activity of multiple religions. You seem to have neglected to mention specifics but I think you may want to take a second look at the differences in your chaplain claims and what Madison was actually arguing against. You need to be able to recognize and acknowledge the very clear distinctions between the two matters. It appears to me that you are selectively choosing evidence to reach your desired pre-conceived conclusion to not have considered these things. As far as his “true view” is concerned, I would also recommend you look at the numerous other statements he made on the matter. I think you’ll find he made numerous other statements regarding this and that he was rather consistent on the subject.

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