Academic journal article
By Olree, Andy G.
Harvard Journal of Law & Public Policy , Vol. 36, No. 1
I. A WEAKENING ANGLICAN HEGEMONY A. The Separate Baptists in Virginia B. Separate Baptist Activity near Madison's Home C. Persecution of Separate Baptists II. THE EDUCATION OF JAMES MADISON A. Boarding School, Tutoring, and College B. Philosophy and Correspondence at Montpelier III. A NEW WAVE OF PERSECUTIONS IV. THE COMING REVOLUTION A. Dissenting Outcries on the Eve of War B. Religious Opposition During the War V. THE VIRGINIA CONSTITUTIONAL CONVENTION OF 1776 CONCLUSION
For those who think and write about the meaning of the First Amendment's Religion Clauses, Founding-era history continues to exercise a powerful pull. Each year, legal scholars produce a new crop of books and articles examining church-state relations in America from the colonial period through the early nineteenth century, hoping to shed more light on the constitutional guarantees. (1) Judges, too--particularly those sitting on the Supreme Court (2)--have continued to rely on the historical record as they render opinions defining the scope of religious freedoms afforded to twenty-first century litigants. (3) Perhaps no area of constitutional interpretation currently relies more heavily on Founding-era history. (4)
Among Supreme Court Justices, at least, probably no individual Founder has occupied more attention in these historical studies than James Madison, the chief sponsor of the First Amendment in the First Congress. (5) As recently as January 2012, in its latest opinion interpreting the Religion Clauses, the Supreme Court pronounced Madison to be "the leading architect of the Religion Clauses of the First Amendment" (6)--a declaration it had made, verbatim, in three prior cases. (7) This time, the Court's treatment of Founding-era history relied almost exclusively on Madison. In his opinion for a unanimous Court, Chief Justice Roberts first quoted remarks Madison made before Congress in defense of what would later become the Establishment Clause, and then went on to examine two other events from Madison's public life, providing further quotes from Madison about each event to demonstrate Madison's stances. (8) Rightly or wrongly, the Court largely equated Madison's understanding, thus derived, with the original meaning of the First Amendment. No one else from the Founding era was named or quoted, nor did the Court spend more than a portion of one paragraph canvassing any other events occurring between the year 1700 and the Civil War. It was a powerful statement, by a unanimous Court, of just how important Madison's views have become in the Court's Religion Clauses jurisprudence.
Whether the Supreme Court has been right or wrong to focus so heavily on Madison is not my present concern, although it is certainly a question worth asking (and plenty of critics have asked it, though few would be so bold as to claim that Madison's views should not be considered at all). (9) The fact remains, however, that the Court has focused on Madison and continues to do so--as do many other judges and commentators. By any measure, James Madison's views now wield an immense influence in Religion Clause jurisprudence. Such a development is, if not defensible, at least understandable, for Madison is surely an important source to consider. As Donald Drakeman once put it, "[w]hile Madison's views should not be treated as dispositive interpretations of the First Amendment, they should be accorded substantial weight as those of a profound thinker and statesman who influenced (to an indeterminate extent) the adoption of the First Amendment." (10)
Although Madison's life and attitudes have been studied extensively, judges who cite Madison have tended to focus on the six-year period beginning with the publication in 1785 of his Memorial and Remonstrance against Religious Assessments and ending with the ratification of the Bill of Rights in 1791. (11) Occasionally some mention of his actions in national office or his later writings will be thrown in for good measure, as the Court did in Hosanna-Tabor. …