The Anti-Clerical Father of the Bill of Rights

“The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles.”

March 16 is the birthday of James Madison (1751-1836), known since his day as “the father of the constitution” for getting it thru the 1787 constitutional convention. He then presented the Bill of Rights to the 1st Congress in 1789.

Whatever our opinion of those documents & the US as it has evolved, he was one of humanity’s most important political thinkers, & some of his writings are especially valid today. Indeed, re separation of religion & state, he was so much more progressive than the vast majority of today’s US elected officials that, I submit, understanding Madison means becoming an opponent of the Democratic & Republican parties, which proclaim themselves the champions of his constitution but which have repeatedly betrayed his secularism.

As presenter of the Bill of Rights, he is the ultimate authority as to what “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” means, & the implications of it. Yet, re the general public, he is the least known founding father. Most educated Americans can’t recognize his picture & have never read anything by him, beyond his constitutional work which they read in school.

Madison met Thomas Jefferson (1743-1826) in October 1776, when the author of the Declaration of Independence returned to Virginia’s House of Delegates. They became lifelong friends. Madison served (1809-17) as Jefferson’s successor as President & even succeeded him on the University of Virginia board.

The two were so close ideologically that they have the same qualities & faults. Both were sons of slaveholders. They read Greek & Latin (Madison also knew Hebrew). As youths both were deeply troubled by slavery, but soon realized that they could not abolish it. They compromised with its advocates, but limited it. There was no slavery north of the Ohio River. Import of slaves was banned in 1808. In his retirement, Madison helped found American Colonization Society as a solution to southern slavery.

As the ideological founders of the 1st modern republic, they could not understand the implications of the fact that they compromised with slavery, even if for the most realistic reasons, to maintain its unity. We, after the civil war, understand that, in so doing, they lost the ability to see the implications of their decision, for America or themselves. We read their aged writings about slavery with pity for their inability, as pioneers without a map, to understand the consequences of their accommodation, & foresee the price their society was going to pay for it. Yet their thinking re religion & secularism remained progressive even as their thinking on slavery became vapid.

Explanation for the contrast lies in that they felt that they had remained true to their convictions re separation of religion & state. In their youth, they separated them in Virginia, & in their maturity they thought they did a good job of separating them at the federal level. They made compromises along the way, but persisted and triumphed on most issues. There were no religious tests for government posts. No one was persecuted for religion. Having achieved much, Madison could discuss himself in an unfavorable light compared to Jefferson. President Jefferson would not proclaim Thanksgivings. He felt that the President is not elected as a religious leader. Madison was a war time President. He gave in to Congressional calls for a proclamation, but later realized this was wrong. Indeed, in his retirement he went further than Jefferson.

“Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.”

Significant success meant they could acknowledge what still needed to be done. In 1787, Madison wanted the 1st Amendment to apply to the states, but was forced to drop the issue in the interest of getting support for separation at the federal level. Massachusetts didn’t fully disestablish religion until 1833. Indeed the 1st Amendment wasn’t judicially declared binding on the states until 1925. Still, he had definitely accomplished much re religious freedom, in contrast to his efforts re slavery.

Madison’s most important discussion of secularism has a history. In 1856, Congress authorized his friend, William Rives, to prepare his papers for publication. The Detatched (sic) Memoranda was among these. Rives worked on them in his home. Eventually it was misfiled in Rives’ personal papers.

The document was recovered in 1946 by Elizabeth Fleet, working on a biography of Rives, & published in the October 1946 issue of The William and Mary Quarterly. There is no doubt of its authenticity. It has been cited by the Supreme Court. As the notepaper has no watermark, Rives dated it as “subsequent to” Madison’s “retirement from the presidency in 1817.”

It is given here as in the Quarterly. Madison didn’t close some parentheses, he abbreviated, used old fashioned spelling, misspelled, etc. The memorandum ends incompletely. I add translations from Latin.

Read it for yourselves. Then scroll Madison up to the present. Imagine what his attitude would be towards religion & politics in our America. Who would he vote for in 2004?

Jefferson & Madison cofounded the ‘Republicans’, short for democratic republicans. Eventually, in the 1820s, their party became known as the Democrats. The country is dotted with Democratic Party James Madison Clubs. But only a minuscule fraction of party members have read the Detatched Memoranda. So, one good deed deserves another. After you’ve read it, & asked yourself if he would vote for Kerry in 2004, pass it on to your Democratic liberal friends & ask them the same question: Who would he vote for in 2004?

In 2002, atheist Michael Newdow got the 9th Federal Circuit Court to rule that “under God” in the Pledge of Allegiance was unconstitutional. The Senate promptly voted, 99 to 0, to condemn the decision in a non-binding vote. Guess which Democratic nominee for President was among those 99 powerful intellects?

Democratic & Republican pollsters alike see the election as a competition for the religious vote, particularly white Catholics & Protestants. Bush gets most of their votes, but there are plenty of Democrats among them. To win, Kerry must at least keep Gore’s percentage of them.

According to the 2/18/03 Gallup Poll Tuesday Briefing, 95% of Americans believe in God, as do 91% of those defining themselves as liberals. Indeed our Democrats are so pious that, according to Gallup’s 2/25/03 Briefing, 67% of them believe in the Devil. Eleven percent aren’t sure. Twenty-one percent put him out there with Santa Claus. (79% of Republicans believe in the horned one).

I don’t know if Kerry believes in the Devil. But I do know that the party that our realistic liberals proclaim as the lesser evil is full of believers in the devil, which somehow fits perfectly. In any case, don’t expect Kerry to publically take alarm at those children of all ages, which is what most readers just did.

Gallup’s commentator expressed the concern that cultured people feel about such statistics re the majority of Americans, citizens of the world’s oldest democratic republic:

“Over the centuries, science has been able to explain many phenomena that once seemed supernatural. Bad weather, ill health, & heretical opinions may not be the work of the infernal after all. With the advent of evolutionary theory & modern psychology, these days we’re more likely to think of people who do terrible things as broken human beings, rather than agents of the netherworld. Furthermore, religion has ceded its civil authority, & religiosity has declined somewhat in American society. So we might expect belief in the devil to have largely evaporated. It hasn’t. Regardless of political belief, religious inclination, education, or region, most Americans believe that the devil exists.”

Gut basic unreality on the part of most voters is ominous & we must understand it & deal with it, or it will be a miracle equal to any in the Bible if the serious left were to win in this country. And no one understood the danger inherent in the combination of popular lack of serious scientific education & politicians pandering to religious fundamentalism better than James Madison. So, let him speak again to you & thru you to the American people.


James Madison, Detatched Memoranda

The danger of silent accumulations & encroachments by Ecclesiastical Bodies have not sufficiently engaged attention in the U.S. They have the noble merit of first unshackling the conscience from persecuting laws, and of establishing among religious Sects a legal equality. If some of the States have not embraced this just and this truly Xn principle in its proper latitude, all of them present examples by which the most enlightened States of the old world may be instructed; and there is one State at least, Virginia, where religious liberty is placed on its true foundation and is defined in its full latitude. The general principle is contained in her declaration of rights, prefixed to her Constitution: but it is unfolded and defined, in its precise extent, in the act of the Legislature, usually named the Religious Bill, which passed into a law in the year 1786. Here the separation between the authority of human laws, and the natural rights of Man excepted from the grant on which all political authority is founded, is traced as distinctly as words can admit, and the limits to this authority established with as much solemnity as the forms of legislation can express. The law has the further advantage of having been the result of a formal appeal to the sense of the Community and a deliberate sanction of a vast majority, comprizing every sect of Christians in the State. This act is a true standard of Religious liberty: its principle the great barrier agst usurpations on the rights of conscience. As long as it is respected & no longer, these will be safe. Every provision for them short of this principle, will be found to leave crevices at least thro’ which bigotry may introduce persecution; a monster, that feeding & thriving on its own venom, gradually swells to a size and strength overwhelming all laws divine & human.

Ye States of America, which retain in your Constitutions or Codes, 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 & purify your systems, and make the example of your Country as pure & compleat, in what relates to the freedom of the mind and its allegiance to its maker, as in what belongs to the legitimate objects of political & civil institutions.

Strongly guarded as is the separation between Religion & Govt in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history. (See the cases in which negatives were put by J. M. on two bills passd by Congs and his signature withheld from another. See also attempt in Kentucky for example, where it was proposed to exempt Houses of Worship from taxes.

The most notable attempt was that in Virga to establish a Genl assessment for the support of ail Xn sects. This was proposed in the year by P. H. and supported by all his eloquence, aided by the remaining prejudices of the Sect which before the Revolution had been established by law. The progress of the measure was arrested by urging that the respect due to the people required in so extraordinary a case an appeal to their deliberate will. The bill was accordingly printed & published with that view. At the instance of Col: George Nicholas, Col: George Mason & others, the memorial & remonstrance agst it was drawn up, (which see) and printed Copies of it circulated thro’ the State, to be signed by the people at large. It met with the approbation of the Baptists, the Presbyterians, 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. When the Legislature assembled, the number of Copies & signatures prescribed displayed such an overwhelming opposition of the people, that the proposed plan of a genl assessmt was crushed under it; and advantage taken of the crisis to carry thro’ the Legisl: the Bill above referred to, establishing religious liberty. In the course of the opposition to the bill in the House of Delegates, which was warm & strenuous from some of the minority, an experiment was made on the reverence entertained for the name & sanctity of the Saviour, by proposing to insert the words “Jesus Christ” after the words “our lord” in the preamble, the object of which would have been, to imply a restriction of the liberty defined in the Bill, to those professing his religion only. The amendment was discussed, and rejected by a vote of agst (See letter of J. M. to Mr. Jefferson dated ) The opponents of the amendment having turned the feeling as well as judgment of the House agst it, by successfully contending that the better proof of reverence for that holy name wd be not to profane it by making it a topic of legisl. discussion, & particularly by making his religion the means of abridging the natural and equal rights of all men, in defiance of his own declaration that his Kingdom was not of this world. This view of the subject was much enforced by the circumstance that it was espoused by some members who were particularly distinguished by their reputed piety and Christian zeal.

But besides the danger of a direct mixture of Religion & civil Government, there is an evil which ought to be guarded agst in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations. The power of all corporations, ought to be limited in this respect. The growing wealth acquired by them never fails to be a source of abuses. A warning on this subject is emphatically given in the example of the various Charitable establishments in G. B. the management of which has been lately scrutinized. The excessive wealth of ecclesiastical Corporations and the misuse of it in many Countries of Europe has Long been a topic of complaint. In some of them the Church has amassed half perhaps the property of the nation. When the reformation took place, an event promoted if not caused, by that disordered state of things, how enormous were the treasures of religious societies, and how gross the corruptions engendered by them; so enormous & so gross as to produce in the Cabinets & Councils of the Protestant states a disregard, of all the pleas of the interested party drawn from the sanctions of the law, and the sacredness of property held in religious trust. The history of England during the period of the reformation offers a sufficient illustration for the present purpose.

Are the U. S. duly awake to the tendency of the precedents they are establishing, in the multiplied incorporations of Religious Congregations with the faculty of acquiring & holding property real as well as personal? Do not many of these acts give this faculty, without limit either as to time or as to amount? And must not bodies, perpetual in their existence, and which may be always gaining without ever losing, speedily gain more than is useful, and in time more than is safe? Are there not already examples in the U. S. of ecclesiastical wealth equally beyond its object and the foresight of those who laid the foundation of it? In the U. S. there is a double motive for fixing limits in this case, because wealth may increase not only from additional gifts, but from exorbitant advances in the value of the primitive one. In grants of vacant lands, and of lands in the vicinity of growing towns & Cities the increase of value is often such as if foreseen, would essentially controul the liberality confirming them. The people of the U. S. owe their Independence &. 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. Let them exert the same wisdom, in watching agst every evil lurking under plausible disguises, and growing up from small beginnings. Obsta principiis [resist beginnings].

see the Treatise of Father Paul on benificiary matters.

Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?

In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.

The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority] shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers or that the major sects have a right to govern the minor.

If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries, as well as their Constituents shd discharge their religious duties, let them like their Constituents, do so at their own expence. How small a contribution from each member of Cong wd suffice for the purpose? How just wd it be in its principle? How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience? Why should the expence of a religious worship be allowed for the Legislature, be paid by the public, more than that for the Ex. or Judiciary branch of the Govt

Were the establishment to be tried by its fruits, are not the daily devotions conducted by these legal Ecclesiastics, already degenerating into a scanty attendance, and a tiresome formality?

Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [the law doesn’t care about minute things]: or to class it cum “maculis quas aut incuria fudit, aut humana parum cavit natura.” [with “the natural negligence which human nature can do very little to guard against”]

Better also to disarm in the same way, the precedent of Chaplainships for the army and navy, than erect them into a political authority in matters of religion. The object of this establishment is seducing; the motive to it is laudable. But is it not safer to adhere to a right pinciple, and trust to its consequences, than confide in the reasoning however specious in favor of a wrong one. Look thro’ the armies & navies of the world, and say whether in the appointment of their ministers of religion, the spiritual interest of the flocks or the temporal interest of the Shepherds, be most in view: whether here, as elsewhere the political care of religion is not a nominal more than a real aid. If the spirit of armies be devout, the spirit out of the armies will never be less so; and a failure of religious instruction &, exhortation from a voluntary source within or without, will rarely happen: if such be not the spirit of armies, the official services of their Teachers are not likely to produce it. It is more likely to flow from the labours of a spontaneous zeal. The armies of the Puritans had their appointed Chaplains; but without these there would have been no lack of public devotion in that devout age.

The case of navies with insulated crews may be less within the scope of these reflections. But it is not entirely so. The chance of a devout officer, might be of as much worth to religion, as the service of an ordinary chaplain. [were it admitted that religion has a real interest in the latter.] But we are always to keep in mind that it is safer to trust the consequences of a right principle, than reasonings in support of a bad one.

Religious proclamations by the Executive recommending thanksgivings & fasts are shoots from the same root with the legislative acts reviewed.

Altho’ recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers.

The objections to them are 1. that Govts ought not to interpose in relation to those subject to their authority but in cases where they can do it with effect. An advisory Govt is a contradiction in terms. 2. The members of a Govt as such can in no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities. They cannot form an ecclesiastical Assembly, Convocation, Council, or Synod, and as such issue decrees or injunctions addressed to the faith or the Consciences of the people. In their individual capacities, as distinct from their official station, they might unite in recommendations of any sort whatever, in the same manner as any other individuals might do. But then their recommendations ought to express the true character from which they emanate. 3. They seem to imply and certainly nourish the erronious idea of a national religion. The idea just as it related to the Jewish nation under a theocracy, having been improperly adopted by so many nations which have embraced Xnity, is too apt to lurk in the bosoms even of Americans, who in general are aware of the distinction between religious & political societies. The idea also of a union of all to form one nation under one Govt in acts of devotion to the God of all is an imposing idea. But reason and the principles of the Xn religion require that all the individuals composing a nation even of the same precise creed & wished to unite in a universal act of religion at the same time, the union ought to be effected thro’ the intervention of their religious not of their political representatives. In a nation composed of various sects, some alienated widely from others, and where no agreement could take place thro’ the former, the interposition of the latter is doubly wrong: 4. The tendency of the practice, to narrow the recommendation to the standard of the predominant sect. The Ist proclamation of Genl Washington dated Jany 1. 1795 (see if this was the 1st) recommending a day of thanksgiving, embraced all who believed in a supreme ruler of the Universe. That of Mr. Adams called for a Xn worship. Many private letters reproached the Proclamations issued by J. M. for using general terms, used in that of Presidt W–n; and some of them for not inserting particulars according with the faith of certain Xn sects. The practice if not strictly guarded naturally terminates in a conformity to the creed of the majority and a single sect, if amounting to a majority. 5. The last & not the least objection is the liability of the practice to a subserviency to political views; to the scandal of religion, as well as the increase of party animosities. Candid or incautious politicians will not always disown such views. In truth it is difficult to frame such a religious Proclamation generally suggested by a political State of things, without referring to them in terms having some bearing on party questions. The Proclamation of Pres: W. which was issued just after the suppression of the Insurrection in Penna and at a time when the public mind was divided on several topics, was so construed by many. Of this the Secretary of State himself, E. Randolph seems to have had an anticipation.

The original draught of that Instrument filed in the Dept. of State (see copies of these papers on the files of J. M.) in the hand writing of Mr Hamilton the Secretary of the Treasury. It appears that several slight alterations only had been made at the suggestion of the Secretary of State; and in a marginal note in his hand, it is remarked that “In short this proclamation ought to savour as much as possible of religion, & not too much of having a political object.” In a subjoined note in the hand of Mr. Hamilton, this remark is answered by the counter-remark that “A proclamation of a Government which is a national act, naturally embraces objects which are political” so naturally, is the idea of policy associated with religion, whatever be the mode or the occasion, when a function of the latter is assumed by those in power.

During the administration of Mr Jefferson no religious proclamation was issued. It being understood that his successor was disinclined to such interpositions of the Executive and by some supposed moreover that they might originate with more propriety with the Legislative Body, a resolution was passed requesting him to issue a proclamation. (see the resolution in the Journals of Congress.

It was thought not proper to refuse a compliance altogether; but a form & language were employed, which were meant to deaden as much as possible any claim of political right to enjoin religious observances by resting these expressly on the voluntary compliance of individuals, and even by limiting the recommendation to such as wished simultaneous as well as voluntary performance of a religious act on the occasion.

LENNI BRENNER, editor of 51 Documents: Zionist Collaboration with the Nazis, can be reached at


Lenni Brenner is the author of Zionism In The Age Of The Dictators. He can be contacted at