First Amendment Folly (Part V): In Defense of Religious Liberty: James Madison’s Memorial & Remonstrance Against Religious Assessments

This is the sixth post in a seven part series evaluating Carl H. Esbeck’s “Protestant Dissent and the Virginia Disestablishment 1776-1786.” For previous posts in the series go to “Abusing History and the First Amendment.” 

James Madison

James Madison’s Memorial & Remonstrance Against Religious Assessments

In retrospect, it seems obvious that Madison had the better argument, but, as is so often the case, reason did not stand a chance against Patrick Henry’s soaring rhetoric and political prowess. With Henry’s election as governor the passage of the bill was no longer a forgone conclusion. In response to this well-timed departure from the House of Delegates, Madison gleefully declared that the friends of the assessment were “disheartened.” (1) Nevertheless, the bill moved forward. An overly confident conservative majority then made two tactical errors. First, they set the assessment bill aside to secure the passage of an incorporation bill which gave the Episcopal Church the power to secure its property; to the dissenting community this act appeared to be yet another privilege given to the established church by a biased legislature. Adding fuel to the fire, this perceived slight made the dissenting community even more determined to oppose all establishments of religion. Second, after finally returning to the bill for “Establishing a Provision for Teachers of the Christian religion” and narrowly securing its passage (44 to 42) they agreed to postpone the bill until the following November so that the populace could comment on it. (2) Believing they would win the support of the populace, it must have seemed like a wise political move. Whatever their reasoning, they would soon come to regret their decision.

As the fall session came to an end, Madison felt he had done his part and expected to leave the rest up to the population. Since the dissenting community was zealously opposed to religious assessments, he had good reason to be confident that the bill would be defeated. On the other hand, there was reason for concern; the Presbyterian position was uncertain, and as the largest dissenting group their support was critical. But this uncertainty is not what prompted Madison to enter the fray. He did so only after the brothers George and Wilson Cary Nicholas persuaded him that his services were needed. Acceding to the brothers’ pleas, Madison wrote one of the most significant contemporary statements on religious liberty, which is still rightly celebrated as a monumental achievement in American history. At the time, however, its authorship was unknown. Following common practice, Madison left the document unsigned.

Madison opened the petition with the declaration that they, the “subscribers, citizens of the said Commonwealth,” opposed the assessment bill because it was “a dangerous abuse of power.” From there he divided the document into thirteen sections, each laying out a different objection to the assessment bill. Following this layout, Esbeck provides his readers with a summary of each point and additional commentary as needed. For the sake of simplicity, I will follow the same point by point layout in my evaluation of Esbeck’s interpretation. A link to Madison’s Memorial is available here for those who wish to compare Esbeck’s summary, or my critique of it, with the original.

Esbeck’s summary of point 1: “Religion is ‘the duty which we owe to our Creator and the manner of discharging it.’ It ‘can be directed only by reason and conviction, not by force.’ Each man has a right to determine his own religion. This is a right as against other men, but as to God it is a duty. That is why it is unalienable. A duty to God precedes in both time and degree man’s obligations undertaken when entering into the social contract. Because man’s determination of his religion was never contracted away, indeed is a duty to God and thus not capable of being contracted away, government has no cognizance over religion.” (p. 82)

Before evaluating Esbeck’s summary, it is important to note that the “duty to our Creator” quote used by Madison, and repeated in Esbeck’s summary, was taken directly from Article 16 of the Declaration of Rights (DOR), which had been retained from Mason’s original version. Throughout the Memorial, Madison frequently turned to the DOR to illustrate how the religious assessment was in violation of the rights promised in this foundational document. This fact presents a significant problem for Esbeck’s claim that pleas against establishments were not about protecting rights.

Esbeck gives a broad overview of Madison’s first point that is not necessarily incorrect, but, as in his previous analysis of Madison’s notes, he ignores important details which prove problematic for his voluntaryism thesis. Esbeck notes only one of Madison’s two reasons explaining why the rights of conscience were inalienable: because it was “a duty towards the Creator.” Significantly, he leaves out the first reason: “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.” The implication of this view is substantial and explains why Madison opposed all laws concerning religion, which necessarily impose the religious imperatives of a particular religion upon the consciences of others who do not believe in that religion.

Esbeck clearly recognizes the implications which Madison’s precept “that Religion is wholly exempt from its [Civil Society’s] cognizance” (the main point of this section of the Memorial) poses for his desire to allow religion into public policy. To bring Madison’s views in line with voluntaryism returns to his distinction between two categories of religious precepts: “specifically religious matters (‘religious truth’)” and “religious teaching that speaks to moral issues.” (p. 82) In the category of religious morality he includes “stealing, lying, neglect of one’s children, and murder.” From here he jumps to the conclusion that “[i]t is specifically religious matters over which the government has no cognizance, that is, no authority.” (p. 83) This concept is wholly Esbeck’s creation. As before, there is nothing in Madison’s Memorial, or in any of his extensive writings on this subject, that justifies reading this distinction into his argument. Madison plainly stated “that Religion is wholly exempt from its [Civil Society’s] cognizance,” and he was adamant that religion should not be used “as an engine of Civil policy” (see point # 5).

By construing the issue in this way, Esbeck is laying the constitutional groundwork, via original intent, to openly allow religious dogma to guide public policy. At first glance his position seems innocent enough. Who would deny that “stealing, lying, neglect of one’s children, and murder” should be a part of criminal law? This list of universally agreed upon immoral behaviors are a small subset of what would be considered “religious teaching[s] that speak[] to moral issues.” It is important to remember that this category would also include the more controversial moral dogmas of specific religions such as prohibitions against abortion, homosexuality, pre-marital sex, etc. And if Esbeck did not intend to include these controversial religious dogmas in his category of religious-based values his distinction is both meaningless and unnecessary. The crimes he listed are already constitutionally prohibited; there is no need to create a special category of religious morality to bring them into the realm of civil society. The relevant distinction is between universal (not religious) moral precepts, which are considered crimes (harms of man against man), and the moral dogmas of a particular religion. This important distinction was not the creation of modern secularists; it had been frequently invoked earlier by Baptists in their fight to separate religion and government.

The Baptist preacher John Leland, Madison’s ally in the fight for religious liberty, explicitly objected to bringing religious morality into the realm of civil law. Instead of lumping all moral issues together, Leland thought it was important to make a distinction between “sins” (religious morality), which he believed should be outside the realm of government control, and the crimes of man against man, which were clearly within the realm of civil law. In a diatribe against establishments, Leland explained that “when civil rulers undertake to make laws against moral evil, and punish men for heterodoxy in religion, they often run to grand extremes…In short, volumes might be written, and have been written, to show what havoc among men the principle of mixing sins and crimes together has effected, while men in power have taken their own opinions as infallible tests of right and wrong.” (3) In Leland’s extensive body of work, he consistently demanded that only crimes of man against man (not religious morality) are within the realm of civil government. To use the sword of the law to enforce religious sins was dangerous and violated the sacred rights of conscience.

While Madison never specifically spoke about the place of religious morality in law, it is likely that he approved of Leland’s distinction between sins and crimes. Madison had vehemently opposed religious tyranny all his life, and there is no reason to believe that he made an exception for religiously derived morality.

Another section ignored by Esbeck points to one of Madison’s greatest insights about the relationship between rights and republican governments. Madison wrote, “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.” From this kernel of an idea Madison would upset longstanding thinking about republican forms of government. Standard thinking about republican governments claimed that legislative bodies would not threaten rights since, as representatives of the people they would never pass laws to oppress themselves. As Madison discovered, this turned out to be wishful thinking.

It was via his experience in Virginia that he saw the flaw in this thinking. despite the prohibition against it in the DOR, he witnessed the legislature’s repeated attempts to implement a religious assessment. As Madison explained to his friend Jefferson, “In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. Notwithstanding the explicit provision contained in that instrument for the rights of Conscience it is well known that a religious establishment wd. have taken place in that State.” (4) Note that it was the violation of “the rights of Conscience” that provoked Madison’s ire, not a desire to protect religion or “the church.” It was for this reason that Madison originally opposed the creation of a bill of rights at the federal level during the heated debates over the ratification of the federal Constitution. As he later insisted, bills of rights were simply “parchment barriers” that could be, and had been, overrun by “overbearing majorities” imposing their will through legislative bodies. (5) This was at the heart of Madison’s opposition to the inclusion of a bill of rights within the federal Constitution, as well as his cherished idea of a federal veto, which because of the greater diversity would ensure that no majority could form to oppress minorities, while state governments were more likely to violate the rights of citizens.

Madison’s rights-centric argument is incompatible with Esbeck’s voluntaryism principle, but this only becomes obvious after examining the original. By ignoring, intentionally or not, important parts of Madison’s argument, Esbeck has constructed a misleading account of Madison’s views.

Esbeck’s summary of point 2: “If religion (as defined in ¶ 1) [Esbeck’s definition, not Madison’s] is exempt from the cognizance of government (as argued in ¶ 1), still less can religion be subject of the legislature. The legislature is but a department of the government. If the government has no jurisdiction over religion, then the same is necessarily true of the legislature. Not only is separation of powers among government’s three departments essential to limit government, but the departments must not ‘overleap the great Barrier’ that limits all government.” (p. 83)

Esbeck’s first sentence is puzzling. He is claiming that Madison was arguing that if religion was beyond the cognizance of the government, then “still less can religion be subject of the legislature.” This bit of reasoning implies that the legislature is not part of the government, which is absurd. Why would Madison make such an argument? He wouldn’t, of course. This is what he actually said: “Because Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body.” (italics mine) Why would Esbeck mischaracterize Madison’s claim that religion was exempt from the authority of society, especially when this was the main claim in his first section? Either Esbeck does not want to concede the principle that religion is beyond the concerns of “Society at large,” or he made yet another honest mistake. Whatever the explanation, this point is an important part of Madison’s argument against religious establishments. Its significance is highlighted by the fact that it was the opening claim of the Memorial.

From here, Esbeck’s interpretation becomes even more misleading. In his commentary he claims that Madison’s phrase “the great Barrier” was about drawing a line “between government and those aspects of religion outside the reach of government.” (p. 83) As explained above, nowhere in the document does Madison make this distinction. What is even more troubling about Esbeck’s assertion is the fact that the meaning of Madison’s phrase is unmistakable; even a casual reading of the Memorial, shows that Madison’s “great Barrier” is a reference to the Declaration of Rights. The significant section reads: “the great Barrier which defends the rights of the people.” What “barrier” defends the rights of the people? The Declaration of Rights, of course! This is interpretation is also backed by the fact that Madison references the DOR throughout the Memorial as the foundation upon which he makes his case against the assessment. But to admit this, would be to admit that Madison saw his fight against the assessment as a crusade in defense of the rights of the people, rather than one to protect the church.

Going beyond the Memorial itself, there is further evidence that Madison was referring to the DOR. As indicated above, Madison’s experience as a statesman in Virginia had a profound impact on him. Because the Virginia DOR had failed to stop the legislature from attempting to establish a general assessment Madison began to call bills of rights “parchment barriers.” For example, in a letter to Jefferson, Madison insisted that “[r]epeated violations of these parchment barriers have been committed by overbearing majorities in every State.” (6) (italics mine)

In contrast, there is no evidence that Madison’s reference to the “great Barrier” was about the line “between government and those aspects of religion outside the reach of government.” (p. 83) And there was no need for this kind of line drawing since “Religion [was] wholly exempt” from the “cognizance” of both government and society. (italics mine)

Esbeck’s summary of point 3: “Because it sets a precedent, it is proper to protest even small violations of our liberties. If government has the authority to establish Christianity, it has the authority to establish one denomination of Christianity to the exclusion of others. Or it can force one to contribute money to the support of an establishment, or conform to its practices.” (p. 83)

This is a fair summary of Madison’s third point.

Esbeck’s summary of point 4: “All men are by nature equally free, they enter into the social contract on equal terms, and they retain equal rights. This is particularly so with respect to religious freedom, which according to the dictates of conscience must be an equal right for all. The accommodation in the Assessment Bill for Quakers and Mennonites violates this principle of equality. One’s abuse of religious freedom is an offense against God, not an offense against the public order, so an account must be rendered to God alone.” (p. 83)

There are several problems with this interpretation. Esbeck presents a misleading impression of Madison’s principle of equality. By ignoring Madison’s first example illustrating how the assessment violates the principle of equality, while highlighting his second example (“granting others peculiar exemptions”) which implies that Madison saw equality in terms of sects, rather than individuals. This disingenuous interpretation is further compounded by the fact that Esbeck failed to explain that the phrase “All men are by nature equally free” came from the DOR. Article I of the DOR clearly states, “That all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity all men are by nature equally free and independent.” (7) As indicated above the DOR was the foundation upon which Madison built his case against the assessment. This fact is inconvenient for Esbeck’s contention that establishment complaints were not about individual rights.

After the first article, Madison added a slightly misquoted Article 16: “they [‘all men’] are to be considered as retaining an ‘equal title to the free exercise of Religion according to the dictates of Conscience.’” The language in the DOR, which Madison himself wrote, states that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” The mistake was probably intentional on Madison’s part as a way to highlight the fact that everyone had the same right to the free exercise of religion, and therefore no one’s religious beliefs should receive special status and/or privileges above anyone else’s. This logic is even clearer in Madison’s original proposal to the 1776 Convention: “all men are equally entitled to the full and free exercise of it accordg to the dictates of Conscience; and therefore that no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges; nor subjected to any penalties or disabilities unless under &c.” (8) To give themselves (Christians in this case) this freedom, but to deny it to others “whose minds have not yet yielded to the evidence which has convinced us” was a violation of the DOR. This conclusion, which follows from the above rights promised in the DOR, was the first example provided by Madison, and shows that Madison saw equality as something bestowed upon individuals. Notice that Madison’s reasoning here also undermines Esbeck’s claim that the free exercise of religion was a separate issue from concerns about religious establishments. Esbeck can credibly argue that the conservatives saw it this way, but he cannot credibly attribute this belief to Madison or the dissenters.

Madison’s second example fits more readily into Esbeck’s concept of voluntaryism, which rests upon the equality of denominations. Madison lamented the fact that the “Quakers and Menonists” were given “peculiar exemptions” in the bill because they did not have clergy. As dissenters, he was confident that these sects did not “covet pre-eminences over their fellow citizens” and would not “be seduced” by the privilege from opposing the measure. While this example focuses on these two denominations, as his first example illustrates, it does not follow that Madison saw equality in terms of denominations rather than individuals, as his first example demonstrates. If we follow the logic of Madison’s argument, we can see that the collective equality of denominations is derivative of each individual’s equal rights. He began his argument by pointing out the individual rights promised in the DOR, and from there he concluded that the “peculiar exemptions” given to the two denominations of “Quakers and Menonists” was in violation of those principles. The denominational equality sought by Madison and the dissenters necessarily followed from individual equality. As the DOR, and Madison, insisted “all men are by nature equally free and independent.” As we will see, a strong commitment to the equal rights of all citizens stood at the center of Madison’s conception of religious liberty. Interestingly, Esbeck acknowledges Madison’s premise that “all men enter civil society as equals, and thus in religious matters all men are equal before the law,” but then fails to see that this contradicts his rendering of Madison’s theory of church-state relations.

Another problem with Esbeck’s interpretation concerns the reference to religion as a duty to God alone. According to Esbeck, Madison was pointing out that a “[f]ailure to extend religious freedom to all equally is an offense to God alone.” This is interesting, but neither Madison, nor anyone else, is argued that a failure to give equal religious freedom was an “offense against God alone.” Looking at the relevant section, Madison was clearly explaining the first point of his equality argument. Following his statement about denying “equal freedom to those whose minds have not yet yielded to the evidence which has convinced us,” he states, “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.” In other words, the responsibility for one’s own salvation rested with one’s self, not the state. This argument has a long pedigree in tolerationist literature. The states of Western Christendom had long assumed the responsibility for the salvation of their subjects, and thus in opposing the resulting ecclesiastical tyranny those advocating toleration challenged the validity of this tradition. In this vein, Madison was referring to the abuse of the freedom of religion by individuals because it was their responsibility. Thus, Madison was not claiming the failure of the state to extend religious liberty to all citizens was “an offense against God;” he believed that the state should do so because this right was enshrined in the Declaration of Rights.

Finally, in his commentary, Esbeck returns to his obsession with line drawing. (p. 83) As before, there is nothing in Madison’s writings to justify this claim. The problems with this assertion have already been addressed (see point # 2).

Esbeck’s summary of point 5: “A civil magistrate is not competent to judge religious truth. For government to employ religion ‘as an engine of civil policy’ is an ‘unhallowed perversion’ of the Christian gospel.” (p. 83)

To clarify, Madison wrote that using religion “as an engine of civil policy” was “an unhallowed perversion of the means of salvation,” not “of the Christian gospel.” This is another reference to the argument against state-imposed religion as justified by the duty to save the souls of subjects. While not as egregious as Esbeck’s other misleading renderings, it implies that Madison’s argument was born out of a concern for “the Christian gospel,” rather than religious tyranny. Whatever Madison’s personal beliefs about “the Christian gospel” (unlike Jefferson, Madison left few clues as to his personal religious beliefs) his Memorial was written as a defense of the rights of conscience, not to protect religion or the church (although he believed that they would benefit if the rights of conscience were secured).

Esbeck’s Summary of point 6: “Christianity does not need the support of government. Indeed, the scriptures expressly teach against a dependence on worldly powers. Christianity flourished when government opposed it. Government support weakens the confidence of Christians in their own religion, and it raises suspicions by skeptics about Christians who apparently think so little of their religion that it needs propping up by the government.” (p. 84)

Esbeck’s summary is mostly accurate, but I think it is important to note that Madison once again referred to the assessment as an establishment of religion: “Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion.” (italics mine)

Esbeck’s summary of point 7: “From the establishment of Christianity in the Fourth Century the church was corrupted: in the clergy, pride and indolence; in the laity, ignorance and servility; and in both, superstition, bigotry, and persecution. Worthy of admiration is the primitive church before its establishment. A return to voluntary support of the church is predicted by some clerics to cause its downfall. Discount the prediction given the self-interest of these clerics in continued establishment.” (p. 84)

For the most part, this is a fair summary of Madison’s claim, although it is worth pointing out that Madison spoke in terms of religion and Christianity in general rather than specifically of “the church” or organized religion, as Esbeck indicates.

Esbeck’s Summary of point 8: “Government has no need of an establishment. What has been the consequence? Churches have dominated government and brought about spiritual tyranny. Governments have used establishments to reinforce political tyranny.” (p. 84)

This summary is partly correct, but it is also misleading. The way in which Esbeck presents Madison’s claims subtly downplays that Madison indicated that the loser of this church-state alliance was “the public liberty.” To better understand Madison’s point and how Esbeck’s version is misleading it will be helpful to review this section in more detail. Looking at the original, it is obvious that Madison was responding to one of his opponents’ main arguments in favor of establishments. The conservatives insisted that the state could not stand without religion, and therefore the government had a duty to support it. Expressing this pro-establishment view, “A Member of the Established Church,” wrote, “I take it for granted, that the necessity of the Christian religion, both with respect to our temporal and eternal welfare, is a point in Christian countries generally acknowledged; and, if so, it is undoubtedly the duty of those who are appointed to take care of a state to adopt the most likely method of having it propagated in the greatest purity.” (9) Hence, Madison opened this section: “Because the establishment in question is not necessary for the support of Civil government.” From here Madison turned to the devastating consequences establishments have had on the very states that implemented them.

He insisted that they “have been seen to erect a spiritual tyranny on the ruins of the Civil authority,” and “in many instances they have been seen upholding the thrones of political tyranny.” And in no case “have they [establishments] been seen [as] the guardians of the liberties of the people.” In fact, he asserted, “Rulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries.” Madison’s message was clear: the alliance between church and state corrupts the state and undermines the “liberties of the people.”

Rather than relying on religious establishments, Madison maintained that a “just Government” would “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.” (italics mine) In other words, the best way to have a secure state was to protect the individual rights of “every Citizen” by not subjecting “any Sect” to particular burdens or privileges, or allowing one sect to violate the rights of other sects. Here, Madison’s logic is laid bare, showing that the equality of sects rested upon the equality of individuals. To give one sect privileges over and above others violated the rights of those individuals who were not members of the privileged sect.

This final section also presents another problem for the proposition that Madison was a proponent of the voluntaryism principle. Esbeck’s voluntaryism principle is built upon his assumption that the state needs to be barred from interfering in “the church,” but not the other way around. Here, however, he admits that Madison believes that “churches” engage in foul play, although Madison blames the clergy and the establishment for this “spiritual tyranny.” Madison claims that “[r]ulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries.” Rather than limiting state tyranny, Madison was pointing out that the church, more often than not, had been a companion in oppression. The solution, obviously, was not just to place limits on the state but on the church as well to prevent it from using the sword of the state to impose its own religious dogma in violation of the rights of others. Separation went both ways for Madison. This is what he meant when he claimed that religion was “wholly exempt from its [Civil Society’s] cognizance.”

Esbeck’s summary of point 9: “Because the Assessment Bill proposes an establishment and discriminates on the basis of religion, the bill will discourage non-Christians from moving to Virginia.” (p. 84)

Esbeck captures the general point, but by ignoring the details Esbeck fails to understand Madison’s argument. Before moving on to the main problem with Esbeck’s description, it should be noted that Esbeck tempered Madison’s forceful condemnation of the bill by using the word “discrimination,” instead of Madison’s much stronger “persecution.” The strength of Madison’s aversion to the scheme was reinforced by his claim that it “differ[ed] only in degree” from the “Inquisition.” To Madison, the severity of the offense went well beyond “discrimination.”

More significantly, Esbeck masks the offense at the heart of the persecution that Madison so loathed: the violation of individual rights. The assessment, Madison professed, “degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.” Religious dogma, in other words, had no place in civil law because it undermined the equal rights of citizens. Those whose wills were made to bend to the religion of another were the victims of “persecution.”

Also problematic is Esbeck’s interpretation claiming that the assessment would “discourage non-Christians from moving to Virginia.” Madison intentionally made no mention of “non-Christians” because the bill was a sign of oppression to many Protestant dissenters as well. What Madison said was that the “proposed establishment” (i.e. the assessment bill) was a problem because it departed from the tradition of “offering Asylum to the persecuted and oppressed of every Nation and Religion.” This may seem like a minor point, but it sets up a misleading impression of why the assessment was objectionable: it was a signal of persecution to some Christians, as well as to non-Christians.

Esbeck’s summary of point 10: “For the same reasons stated in ¶ 9, the bill will cause non-Christians to move out of Virginia.” (p. 84)

Esbeck uses the same misleading distinction here as above. Madison, once again, said nothing about “non-Christians.” Instead, Madison predicted that the assessment would “have a like tendency to banish our Citizens.” (italics mine) Madison feared that to the detriment of Virginia, the dissenters would leave the state in pursuit of a place with a more robust system of religious liberty, such as New Jersey, Delaware, or Rhode Island. Many dissenters objected to any kind of state support for religion, even if it benefited their own. To them, it was “Sinful & Tyrannical” to be forced to contribute even to one’s own religion, as they stated in their petitions (lifting the phrase from Jefferson’s Bill for Establishing Religious Freedom [10]). The dissenters, in stark contrast to some of the earlier tolerationists, were not seeking religious privileges for themselves alone, they wanted religious liberty for all, although there were a few exceptions to this generous stance.

Esbeck’s summary of point 11: “When government meddles with religion it destroys moderation and harmony among sects, generating animosities and jealousies. On the other hand, experience reveals that when government has withdrawn from involvement in religious disputes, the result is public health and prosperity.” (p. 84)

Esbeck is partly right, but misses some revealing details. Madison’s main point here is that the general assessment would “destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion has produced among its several sects.” Madison adds weight to this argument by recalling the “[t]orrents of blood [that] 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.” For much of the history of Western Christendom it was believed that uniformity in religion brought harmony; this myth began to unravel only after years of war, violence, and discord proved otherwise. As the evidence accumulated, tolerationists were proven right. The source of the problem was the imposed uniformity, not toleration. In light of this history, Madison believed that the less government engaged with matters of religion, the better would be the “health and prosperity of the State.” It was not government involvement in “religious disputes” that was the problem, it was the fact that the state would “intermeddle with Religion” at all.

To Madison, the solution to discord was “equal and compleat [sic] liberty.” The attempt to impose an assessment was an assault on religious liberty, and Madison warned, “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.” Restricting state power to intervene in religious matters, which entails a restriction on religious groups, created religious liberty and would prevent the violence and oppression that had produced so much bloodshed in Europe from plaguing Virginia. Thus, he asked, rhetorically: “What mischiefs may not be dreaded, should this enemy to the public quiet [the assessment] be armed with the force of law?”

Esbeck’s summary of point 12: “Christians want to impart their faith to others. Yet the bill’s discriminatory provisions will discourage non-Christians from moving to Virginia where they otherwise would be exposed to Christianity.” (pp. 84-5)

Esbeck misleads his readers by claiming that Madison is making a point about non-Christians being deterred from moving to Virginia (a point Madison had already addressed). Instead, Madison was pointing out the “adverse” effect that the bill would have on Christianity by “discourage[ig] those who are strangers to the light of revelation from coming into the Region of it,” and “by example [endorsing] the nations who continue in darkness, in shutting out those who might convey it to them.”

More problematic for Esbeck, Madison asserted that the problem with the assessment was the “wall of defence against the encroachments of error.” By protecting Christianity, the implementation of the assessment would hinder “the victorious progress of Truth.” Contrary to Esbeck’s assertions, Madison was not seeking to protect Christianity. He wanted, instead, to expose it to the light of rational debate by freeing it from the protective hand of the state. While Madison expressed confidence that Christianity would emerge victorious from this process, he was willing to risk its demise in pursuit of the ultimate Enlightenment virtue: truth.

Esbeck’s summary of point 13: “The enforcement of a law in a republic requires broad public support for the law. The enforcement of laws that are religiously obnoxious to many citizens will ‘slaken the bands of Society’ and undermine support for the government.” (p. 85)

This interpretation is, once again, somewhat misleading. Madison said nothing about laws being “religiously obnoxious” (implying that it was about laws obnoxious to religious sentiments). Instead, he declared that laws so “obnoxious to so great a proportion of citizens,” especially those “deemed invalid and dangerous” (like the proposed bill), tend to “slacken the bands of Society.” Madison and the dissenters believed that the laws were “invalid” because the government had no authority on matters of religion. This was dangerous because it threatened the peace of the society. As we will see when we turn to the dissenters’ petitions, the proposed bill was mainly obnoxious because it violated their rights of conscience. Because of the widespread opposition, Madison feared that the assessment would “slacken the bands of Society” and harm government’s “general authority.”

Esbeck’s summary of point 14: “A bill of this ‘delicacy’ should not be imposed without broad support. We hope the elected representatives will oppose this bill. However, if they disappoint us we are confident the people will reverse the decision of the legislature.” (p. 85)

Esbeck conveys the overall point, but there are a few minor details missing from Esbeck’s version that are worth examining because they help clarify Madison’s position. On a minor, but telling distinction, Esbeck used only the word “delicacy” to describe the bill, when Madison claimed that it was “of such singular magnitude and delicacy.” Madison’s wording indicates that the controversy was of much more significant magnitude than being simply a matter of “delicacy.”

Madison was concerned about the fairness of the system to accurately determine the will of the people, which he clearly believed was on his side. There was, at the time, no reliable method to measure support among the people and he was justifiably concerned that this state of affairs would favor the conservatives. He believed, or at least wanted to believe, that if the process was fair the bill would fail. He confidently boasted that if the bill succeeded, “a fair appeal” would “reverse the sentence against our liberties.” (italics mine) Note that this statement is further proof that Madison saw the bill as a threat to the liberties of the people (not the churches).

Esbeck’s summary of point 15: “Article 16 of Virginia’s Declaration of Rights safeguards the free exercise of religion. The will of the legislature is not the measure of its authority. The legislature exceeds its authority were it to adopt this bill. We pray that ‘the Supreme Lawgiver of the Universe’ illuminate the deliberations of the legislature and turn it from ‘every act which would affront his holy prerogative.’” (p. 85)

This is a clever rendering of Madison’s argument masks the link between individual rights and the proposed establishment that is at the heart of Madison’s view of religious liberty. Madison begins by quoting the significant section of Art. 16 that he helped to secure: “‘the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience.’” Madison slightly misquotes the passage in a way that is telling. Instead of “all men are equally entitled to the free exercise of religion,” Madison writes that it was “the equal right of every citizen.” This rendering highlights the equality of all citizens. If all citizens have an equal right to choose and practice their religion (or no religion) then it follows that the principles or practices of one religion (or denomination) cannot be privileged, or burdened, by the laws of the state. There is no way to place religion in law without violating this right, which is why he insisted that the legislature had “no authority to enact into the law the Bill under consideration.”

After this, Madison concluded that this right should be “held by the same tenure with all our other rights.” Madison was arguing that a threat to this right put all the others in danger. Either the legislature had the “power to sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred.” Madison saw this right as the basis for his claim against the general assessment, as well as all other establishments, disproving Esbeck’s assertion that the desire to end, or limit, establishments of religion had nothing to do with individual rights.

Esbeck’s last sentence comes from the concluding paragraph of the Memorial, and is not part of Madison’s fifteenth point. Unmentioned by Esbeck is the fact that Madison repeated his claim that the legislature had no authority to pass the bill, and that they (“the Subscribers” to the petition) opposed “so dangerous an usurpation.” Instead, he hoped that the legislature would “establish more firmly the liberties, the prosperity and the happiness of the Commonwealth.” It is also noteworthy that Madison, like many of the founders, was careful to use the more inclusive and universal language of enlightened Deism (“the Supreme Lawgiver of the Universe”) rather than the more specifically Christian “Jesus Christ” or “God.” Given that the Memorial was written in opposition to the establishment of Christianity this detail would have been important.


It is hard to reconcile Esbeck’s characterization of the Memorial with Madison’s own words. To turn Madison into a proponent of his “voluntaryism” principle, Esbeck ignored inconvenient evidence, distorted Madison’s text, and added meanings and concerns that cannot be justified by the evidence. Nothing in the text justifies Esbeck’s claim that Madison’s main concern was to protect religion, or the church. Contrary to Esbeck’s assertions, Madison primarily saw the proposed establishment as a threat to individual rights. In addition, Madison insisted that the assessment would harm religion, the state, and society. In other words, it was bad all the way around, but its primary sin was that it violated the equal rights promised in the Declaration of Rights.

Esbeck also claimed that Madison “sought disestablishment for the unity of the body politic.” (p. 103) This is a curious claim given that Madison never mentioned “unity” in the Memorial, or in any of his other writings on the subject of religious liberty. Madison was certainly concerned about peace and harmony, but this is not the same as unity, which implies uniformity. Not to mention the fact that the issue of harmony, while important, was only a minor issue in the Memorial.

The focus of the petition was unequivocally on individual rights. Contra Esbeck, Madison’s main objection to all religious establishments was that they violated the rights of conscience and equality. Religious dogmas imposed by law were establishments of religion and as such were in violation of the rights of those who did not share those religious beliefs. Madison was a proponent of the tolerationist mantra that persuasion, not force, should be the only means of compliance available to religion. Therefore, Madison’s view necessarily placed limits on religious societies in order to prevent them from using the sword of the law to impose their religious dogma. The fact that Madison wanted to place limits on both church and state can be seen more clearly in his later writings, where he railed against the “alliance or coalition between Govt. & Religion.” He insisted that “[e]very new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Govt. will both exist in greater purity, the less they are mixed together.” (11) He even explicitly warned against “the danger of encroachment by Ecclesiastical Bodies” in his final work on the subject. (12) Madison cannot in any way be considered a disciple of voluntaryism.


(1) James Madison to James Monroe (December 4, 1784) Founders Online.

(2) H.J. Eckenrode, Separation of Church and State in Virginia: A Study in the Development of the Revolution (Richmond: Davis Bottom, 1910), 102.

(3) John Leland, “The Yankee Spy,” in The Writings of the Late Elder John Leland: Including Some Events in His Life (New York, 1845), 221.

(4) Madison to Thomas Jefferson (October 17, 1788) Founders Online.  Madison’s explanation of his theory can also be found in his “Vices of the Political System of the United States,” (April 1787) Founders Online; and Federalists nos. 10, and 51.

(5) Madison to Jefferson (October 17, 1788) Founders Online.

(6) Madison to Thomas Jefferson (October 17, 1788) Founders Online.

(7) Draft of the Virginia Declaration of Rights, Article 1, quoted in Declaring Rights: A Brief History with Documents by Jack N. Rakove (Boston: Bedford Books, 1998), 81.

(8) James Madison, “Madison’s Amendments to the Declaration of Rights [29 May–12 June 1776],” Founders Online.

(9) A Member of the Established Church, “Mr. PURDIE, In your last paper I saw a piece entitled the sentiments,” The Virginia Gazette (Purdie), November 1, 1776.

(10) Northumberland (November 28, 1785); Powhatan Baptists  (November 3, 1785); and Nansemond (October 27, 1785).

(11) Madison to Edward Livingston (July 10, 1822) Founders Online.

(12) Madison, “Detached Memoranda,” Founders Online.



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