First Amendment Quixotic or Practical?
Nicholas Cross November/December 2005
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Take a cursory walk through any bookstore today and you can't help noticing the antithetical positions that the Bill of Rights was either a concoction of missionaries posing as politicians or that it was the development of rationalists seeking to eliminate religion from public life altogether.
Was the Bill of Rights, specifically the First Amendment, the creation of James Madison, Thomas Jefferson, or someone else of equal, or lesser, popularity and stature? As Garry Wills points out in James Madison, Jefferson would put religious freedom on his tombstone as one of his three greatest achievements, but it was really a Madisonian victory. A careful perusal of the Annals of Congress—instead of Madison's own notes on the Constitutional Convention or the subsequent state ratification documents—will reveal that religious freedom, as it is known today, was primarily the inception of James Madison.
However, the hardball of politics delayed this inception, for Madison himself was not always an advocate of amendments. What caused Madison's conversion to what has become a cornerstone of democracy? What was its function? Was this decision to compose and hail the Bill of Rights a quixotic reality or a practical dream?
The Personage of the Bill
In 1774 the 23-year-old James Madison observed the imprisonment of Baptist preachers by the established church in Virginia. This image of unjust confinement would be forever seared into Madison's altruistic conscience and made a profound impact upon his ensuing politics.
This stance may in part have been because of the religious revivals of the 1730s and 1740s that wreaked havoc on the social order of Virginia. Dissenters exhumed themselves from the lethargy of Anglicanism by the enthusiasm of the Baptists and Presbyterians. Hordes began to gather for Bible reading and preaching rather than social recognition. The leaders of these new denominations were no longer influential nabobs but itinerant preachers—shaking a town from its religious stupor, only to ride away to another town, leaving the neophyte elders and deacons to organize themselves. By the 1760s there were a number of Baptist congregations throughout Virginia. Although the Baptists were law-abiding, they faced much violent opposition because of inveterate prejudice. Society was agitated, and the Anglican government was determined to put a stop to the disturbance. By the early 1770s Baptists were petitioning the British government for licenses to preach and were repeatedly rejected while their persecution continued. Madison wrote to Bradford that he was "very doubtful of their [Baptists] succeeding in the attempt." It was during this period, 1774 precisely, that Madison was so infuriated by the imprisonment of the ministers.
But the pre-Revolutionary colonies did experience comparative religious freedom. Outside of Virginia non-Anglican sects abounded. Cecil Calvert settled Maryland as a Catholic; Roger Williams of Rhode Island was a Puritan; and the famous Quaker William Penn founded Pennsylvania. The colonies had never experienced the wrath of the Inquisition or the chaos of a Saint Bartholomew's Day Massacre, yet the incarceration of unlicensed preachers caused Madison to decry it as the "diabolical Hell conceived principle of persecution." Perhaps, coming away from this incident, Madison became concerned lest the imprisonment of preachers would lead to another Tower of London for nonconformists? And at the tender age of 23 he found and engaged in his first sociopolitical issue: the danger of an ecclesiastical government. Religious liberty was an issue for Madison well before he ever met Jefferson. The persecuted of Virginia would find their benefactor in this small, bookish fellow and, eventually, the world would feel the reverberations.
In 1776—the year of Independence—Madison truly joined the battle for religious liberty. In this pivotal year, during the drafting of the Virginia Declaration of Rights, the future Constitutionalist battled with the lofty George Mason to have the wording of religious "toleration" changed to "all men are equally entitled to the free exercise of religion according to the dictates of conscience." This semantic victory was all the more remarkable in that it flew in the face of Lockean toleration. Madison, again, before he had even met Jefferson, considered the freedom of religion a "natural right."
This dogma of Madison's continued its expression throughout the pre-1787 years. In July 1785 Madison wrote the cogent Memorial and Remonstrance Against Religious Assessments to counter the inimitable Patrick Henry. The latter, a powerful orator and supporter of state-sponsored religion, proposed a General Assessment bill to collect tax money for established churches. Henry was so persuasive that the bill would likely have passed had it not been for the impassioned and penetrating retorts of Madison's Memorial. Madison appealed to history, common sense, fear of judgment, and anything that might convince Virginians that "established religion" harms rather than helps society. The success of the Memorial would be seen in January of the next year when Jefferson's "Bill for Establishing Religious Freedom" passed, while Henry's "General Assessment Bill" was defeated.
The Forgotten Bill
In 1787 it might have seemed that Madison would welcome the codicil of a Bill of Rights to the Constitution. Yet this was not the case. Jefferson, watching from his Paris post, was pleased with all the proceedings of the Constitutional Convention's work, except for Madison's opposition to amendments. Only the purpose of the Constitution as a unifying document can explain Madison's capriciousness.
The government—the Articles of Confederation—had failed on a number of fronts: particularly economically and organizationally. Shay's Rebellion in New England had confirmed for Madison the utter futility of confederations. (Madison had spent the previous two years researching aned confederacies.) Even John Jay feared that Americans were "incapable of governing themselves after all." At Annapolis Alexander Hamilton—coauthor of The Federalist Papers with Madison and Jay—suggested, and it was agreed upon, that the states ought to send delegates to Philadelphia "to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union."
The iconoclastic minds of Philadelphia were seeking to tear down the articles and build "a more perfect union." Through the summer of 1787 these giants did just that. However, before the convention closed, George Mason—who proposed the "toleration" language in the 1776 Virginia Bill of Rights—proposed a bill of rights. It was disregarded by delegates worn down by a laborious summer heat. Mason's rejection turned out to be a rallying cry for anti-federalists: the Constitution lacks a bill of rights! This demand would prove dangerous to ratification, as we shall see.
Who could list all the rights a person is entitled to? Theodore Sedgwick of Massachusetts complained that for a bill to be effective it would have to declare "that a man should have a right to wear his hat if he pleased, that he might get up when he pleased, and go to bed when he thought proper." The debate began to revolve around, according to James Wilson of Pennsylvania, whether in the Constitution "everything which is not given is reserved" or whether "everything which is not reserved is given." Hamilton pointed out in Federalist 84 that there were already numerous guarantees of rights contained in the Constitution. "The Constitution is itself," writes the New Yorker, "a Bill of Rights." Madison would tell Virginia that a bill of rights was "unnecessary," since "everything not granted is reserved."
How could this quiet legislator, who fought for religious freedom in the Virginia Assembly and wrote so eloquently against state-sponsored religion, now be against a bill of rights? John F. Wilson argues that it was more than the heat of summer that kept it out of the Constitutional Convention. Madison wanted to neutralize religion that could possibly flare into divisions. "He recognized that religion provided one basis for a factionalism that could destroy a regime." The amending power might wreak mischief before the Constitution was ratified. The primary aim of the framers was to develop a viable document with a system of checks and balances that would restrict displaced zeal and mob rule.
Madison and the other Founders charted this course not from antipathy to religion but a desire to protect its purity, lest it fall into disrepute. This is typical Madison. Previously, with the Virginia Bill for Religious Liberty, he had blocked the insertion of "Jesus Christ" into the preamble. His reasoning was that "the better proof of reverence for that holy name would be not to profane it by making it a topic of legislative discussion." Madison attempted to protect not only citizens and religion, but even the reputation of God. "His animating principle," writes Loconte, "was not freedom from religion, but freedom for religion."
Others—mostly anti-federalists—thought religion to be primarily a state issue rather than a federal matter. High religious denominations considered Christianity to be superior to the government and did not require the support of political authorities. To the pragmatic-minded Founders, religion was excluded because of the pluralistic nature of America that made it impossible, as well as destructive, to include the topic.
The Purpose of the Bill
It appears that Madison is intransigent in the exclusion of a bill of rights. What brought his conversion to its necessity? He was already unquestionably devoted to the idea of rights. Immediately after the Philadelphia convention, Madison dashed to New York to ease passage of the Constitution. While there he (with John Jay and Alexander Hamilton) took up the pseudonym "Publius" to write The Federalist Papers. All of Madison's mental calisthenics would be revealed in the 29 numbers that he would contribute to the work. Madison would cram into these papers all of his research and findings he had shared and learned while behind the closed doors in Philadelphia. The work is often considered to be the finest political work written during the country's founding. Yet The Federalist, like the Constitution, is virtually all but silent on the issue of religion. A bill is far from Madison's thoughts at this time.
He finished his last number (63) and then dashed to Virginia to see ratification through. Any numbers regarding a bill of rights would be left for Hamilton's pen. In Madison's absence from Virginia, Patrick Henry (a relative of Madison's) had already aroused contempt for the new governing document. As early as January 30, 1788, Madison received a letter from his father warning him of the anti-federalist position in Virginia, adding that even "the Baptists are now generally opposed to it."
It was imperative that states the size of New York and Virginia ratified the Constitution. If they eschewed the document, then smaller states would likely be influenced in the same direction. Madison would have to do some politicking to salvage the majesty of the law of the land. The revolving debate in the Virginia Convention of 1788 was whether there should be amendments prior to ratification (the anti-federalists' position) or ratification prior to amendments (the Federalists' position). Patrick Henry had the "power to persuade," wrote the future Chief Justice John Marshall, whereas Madison had the "power to convince." After listening to Madison's arguments, Marshall, a future interpreter of the Constitution, proposed only amending the Constitution after experience and time deemed it necessary. This was precisely what Madison needed to turn the tide toward Federalism. The debate shifted from whether there would be a bill of rights to when there would be a bill of rights. Virginia would ratify the Constitution, but a bill of rights was expected to be forthcoming.
Because of gerrymandering by Henry's henchmen, Madison barely found a home in the first Congressional session. In order to counter Henry's tactics and secure his seat, he would have to promise that he would introduce amendments. Thus, once elected, he became a politician who kept his campaign promise. So it was that on June 8, 1789, Congressman Madison crossed the Rubicon, stood in front of the chamber, and delivered his great speech calling for a bill of rights:
"It cannot be a secret to the gentlemen in this House, that, notwithstanding the ratification of this system of Government. . . yet still there is a great number of our constituents who are dissatisfied with it. . . . We ought not to disregard their inclination, but on principles of amity and moderation, conform to their wishes and expressly declare the great rights of mankind."
The battle with Henry was so distasteful to Madison that many believed he was palled into proposing the bill of rights. "Poor Madison got so cursedly frightened in Virginia," wrote Robert Morris of Pennsylvania to Francis Hopkinson of New Jersey, "that I believe he has dreamed of amendments ever since." In reality, he was overly chary of amendments that might destroy the "foundation of the fabric" of our nation.
The opponent of amendments came to see them as vital for unity. Madison wrote Jefferson that "a bill of rights will be a good ground for an appeal to the sense of the community." Yet he stubbornly held that he had "never seen in the Constitution as it now stands those serious dangers which have alarmed many respectable citizens. . . .Circumstances are now changed: The Constitution is established. . . and amendments, if pursued with a proper moderation and in a proper mode, will not only be safe, but may serve the double purpose of satisfying the minds of well-meaning opponents and of providing additional guards in favor of liberty."
Madison was an impassioned politician with the ability to see cause and effect. He would not allow private prejudice or personal dogma to jeopardize the greater good of stability and unity. If this could be accomplished with a bill or without was all the same to him. However, once he set his face to the task of amendments at the beginning of the 1789 congressional session, there was nothing deterring him. After months of deliberation in both houses, Madison was inexorable about bringing the issue to fruition.
Apparently Madison's final role in the passage of the Bill of Rights was the wording of the establishment and free exercise clauses of the First Amendment. Madison biographer Irving Brant comments that this was "the thing he was aiming at—absolute separation of church and state and total exclusion of government aid to religion." Whether this was Madison's ultimate intention or not, it was certainly a fitting conclusion to his role in the formation of the Bill of Rights. It is suitable because this clause has guided the nation to maturity.
Although the leaders of the Great Awakening promulgated the belief that only religion can make a moral citizen, Madison, on the basis of history, disagreed. Amazingly, in the face of a "Christian" nation, Madison formulated a system that relied not upon unselfish Christianity, but upon self-interested competition between religions. Individual citizens were entrusted with religious freedom, while churches were furnished with "the right to worship freely and to use all legal means of persuasion to maintain themselves and woo new members."
Madison feared the dangers of state-sponsored Christianity and the abuses of religion. "Human opinions [are]," he wrote to a fellow Virginian, "as various and irreconcilable concerning theories of government, as doctrines of religion." Yet he never seems to have lost his faith or desired to steal anyone else's. Rather he sought to protect religion from its own possible abuses. State-sponsored religion would harm people through persecution, society by disruption, religion through a loss of esteem and reverence, and even God Himself by tarnishing His reputation through the actions of His servants. Perhaps, then, for James Madison, the First Amendment was both a quixotic reality as well as a practical dream.
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Nicolas Cross is a ministerial graduate who has begun doctoral studies in American history. He teaches English in Seoul, Korea.
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1 Garry Wills, James Madison (New York: Times Books, 2002), p.15.
2 William R. Estep, Revolution Within the Revolution (Grand Rapids: William B. Eerdmans Publishing Co., 1990), p.121.
3 William Lee Miller, The First Liberty: America's Foundation in Religious Freedom (Washington, D.C.: Georgetown University Press, 2003), p. 13.
4 It was the "Separate Baptists" who pushed the limits of the law of Virginia. The "Regular Baptists" were more subdued.
5 James Madison, quoted in Leonard Williams Levy, The Origins of the Bill of Rights (New Haven, Conn.: Yale University Press, 1999), p. 2.
6 James Madison, cited by Garnett Ryland in The Baptists of Virginia: 1699-1926 (Richmond, Va.: Baptist Board of Missions and Education, 1955), p. 94.
7 William T. Hutchinson and William M.E. Rachal, eds., The Papers of James Madison, 17 vols. (Chicago: University of Chicago Press, 1962-1985), vol. 1, p. 175.
8 Henry P. Johnson, ed., The Correspondence and Public Papers of John Jay,
4 vols. (New York: 1890-1893), pp. 221, 222.
9 Harold Coffin and Jacob Ernest Cooke, eds., The Papers of Alexander Hamilton, 27 vols. (Syrett, N.Y.: Columbia University Press, 1961- ), vol. 3, p. 689.
10 Helen E. Veit, Kenneth R. Bowling, and Charlene Bangs Bickford, eds., Documentary History of the First Federal Congress of the United States of America, 10 vols. (Baltimore: Johns Hopkins University Press, 1972-1986), p. 159.
11 James Wilson, in John P. Kaminski and Gaspare J. Saladino, eds., The Documentary History of the Ratification of the Constitution, 18 vols. (Madison, Wis.: State Historical Society of Wisconsin, 1976-1986), volume 13, pp. 339, 340.
12 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: Bantam, 1982), p. 438.
13 John F. Wilson, "Religion, Government, and Power in the New American Nation," in Mark A. Noll, ed., Religion and American Politics (Oxford: Oxford University Press, 1990), pp. 84, 85.
14 Detached Memoranda in Robert S. Alley, ed., James Madison on Religious Liberty (Buffalo: Prometheus Books, 1985), p. 90.
15 Joseph Loconte, "Faith and the Founding: The Influence of Religion on the Politics of James Madison," Journal of Church & State, 45/4 (Autumn 2003), p. 715.
16 Boyd, Julian P., ed., The Papers of Thomas Jefferson, 30 vols. (Princeton, N.J.😛rinceton University Press, 1950- ), vol. 14, p. 188. Jefferson, writing from Paris after receiving his copy, wrote that the work of the "Triumvirate" is "the best commentary on the principles of government which ever was written" and cherished even over works of classic antiquity.
17 Hutchinson, vol. 10, p. 446. At this time Madison was hearing criticism from evangelicals as well as rationalists, such as Jefferson.
18 William Wirt Henry, Patrick Henry: Life, Correspondence, and Speeches, vol. 2 (New York: Charles Scribner's Sons, 1891), p. 233.
19 For a popular yet complete description of John Marshall's part in the Virginia Ratification Convention and its influence on his future life see Jean Edward Smith, John Marshall: Definer of a Nation (New York: Henry Holt and Co., 1998), pp. 119-142.
20 Quoted in Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights (Madison, Wis.: Madison House, 1992), p. viii.
21 Veit, p. 278.
22 Hutchinson, vol. 11, pp. 297-300, 331.
23 Leonard Levy argues that Madison's change of mind on the amendments was purely political in Origins of the Bill of Rights (New Haven: Yale University Press, 1999), p. 12. Garry Wills argues that it was first a religious decision in James Madison, p. 18.
24 Hutchinson, Vol. II, pp. 297-300.
25 Ibid., pp. 404, 405.
26 Irving Brant, James Madison: Father of the Constitution (Indianapolis: Bobbs-Merril, 1941-1961), p. 272.
27 Frank Lambert, The Founding Fathers and the Place of Religion in America (Princeton, N.J.: Princeton University Press, 2003), p. 252.
28 Hutchinson, p. 356.