To What Shall We Be Bound?

The Madisonian defense of Religious Liberty

Both before and during his political ascent, it was the subject of religious liberty that most roused Madison as a young, quiet Virginian. In April 1776, at the age of twenty-five, Madison was chosen as one of two delegates to represent Orange County for the third Virginia Convention. As a junior delegate, Madison chose to first observe the Convention from the sidelines. As the author Noah Feldman writes, however, “there was one issue that motivated Madison to action, and on which he believed he had developed sufficient expertise to intervene. The issue was religious liberty, his central preoccupation even before the Revolution had really begun.”¹ Not only would he intervene in this case but would also leave a lasting mark on the earliest formulations of religious liberty developing among the uniting American states’ governments. While he would help set the ground for one of the most robust conceptions of religious freedom in political history, we are now witnessing ongoing challenges to its meaning in the life of American society.

Prior to 1776, the Church of England was the established religion of the colony of Virginia despite the variety of Christian denomination throughout the colonies. But this would soon change. In June 1776, the Virginia Constitutional Convention adopted the Virginia Declaration of Rights, in which Article XVI declared the following:

“That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion [emphasis added], according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity toward each other.”

The emphasized section of the quote is to highlight that Madison’s first public act as an elected member of a governing body pertained to the freedom of religion. The original draft of the Article, written by George Mason, had previously read “all men should enjoy the fullest toleration in the exercise of religion,” but Madison, with his strong preclusion against established religious majorities (and their inevitable tendency to become oppressive), had left the sidelines to make a seminal play on the legislative field. Deeply influenced by the political philosophy of John Locke and his notion of religious tolerance, Madison knew that more was needed if religious liberty was to be immunized against any form of government meddling. By using the words “equally entitled to the free exercise of religion,” Virginia was emphasizing that not only would it tolerate religious minorities (seeing them as an evil to suffer) but that each man’s full and free exercise was a positive good aligned with the nature of free will and the liberty of conscience. Madison’s subtle tweak to Article XVI of the Virginia Declaration of Rights was only his first step. Shortly after this success, one of the greatest challenges to his defense of religious liberty would rise to test him.

In 1784, Patrick Henry proposed the General Assessment bill, also known as the “Bill establishing a provision for the Teachers of the Christian Religion.” In the wake of 1776, the Church of England in America had renamed itself the Episcopal Church, but it was no longer receiving financial support through Britain, and neither would it receive support from the new government of Virginia. “With the church’s tax base removed,” writes Feldman, “ministers were no longer able to collect their salaries from the government, but had to rely on voluntary contributions from church members.” Softened after decades of support by the British crown, the Episcopal clergy developed and proposed the General Assessment bill, which, if passed, would require each citizen to pay a fee to the Christian denomination of his choice.

Those who supported the assessment presumed that, if forced to make the decision, enough Virginians would support the Episcopal church by matter of habit. Madison was opposed to the assessment even though his own church would have benefitted from it, and he believed it would not gain the support needed to pass. He was wrong; the assessment began to gain support throughout the rest of that year. Stirred to action, Madison gave an address to the Virginia delegates on Christmas Eve, 1784. He warned in his remarks that it was dangerous for the law to refer to Christianity explicitly for then it would have to define what exactly counted as Christian. In other words, the government would become the arbiter of what was “orthodoxy” and what was “heresy.” Each denomination was free to adjudicate whether another Christian sect was orthodox or heretical, but that the Virginia legislature should have the authority to enforce such claims was opposed to the principles of the American Revolution.²

Madison’s address was enough to convince the delegates to delay the bill for another year. In the meantime, it would be printed and distributed for the people of Virginia to consider.³ During this time, Madison would draft one of the most influential writings on religious liberty in the United States. Titled “Memorial and Remonstrance,” it was an anonymous petition addressed to the General Assembly of the Commonwealth of Virginia on behalf of those who dissented against the bill. Madison laid out fifteen separate points in the petition against the bill and offered compelling and varied arguments based on logical reasoning, historical examples, and jurisprudence.

By the time the petition reached the Virginia legislature in December 1785, it came in the form of thirteen copies bearing the signatures of 1,552 citizens. Two other petitions against the bill by the Presbyterian and Baptist communities of Virginia also arrived, together bearing a total of 15, 828 signatures; the bill was struck down soon after. While these other petitions amassed a larger number of signatures, neither of them matched Madison’s in its cogent articulation or compelling argumentation. Madison’s crucial role in defeating the bill lay primarily in his strategy. According to Feldman, he established the terms of the debate by projecting them into a realm beyond partisan politics:

“Madison had transformed the conflict from a struggle between religious minorities and the majority into a general debate over the nature of religious liberty. The arguments he made were clear, compelling—and universal. They applied to all Virginians, not just the religious dissenters. As a result, Madison’s contribution to the debate was definitive. The Memorial and Remonstrance has been read and analyzed far beyond its original context, precisely because it is based on principles that are presented as accessible to anyone, regardless of religious belief or affiliation.”⁴

This definitive defense of religious liberty illustrated Madison’s commitment to forming a government that would act not as a conduit for partisan advantage but would instead provide a level field for partisan compromise. Understanding the arguments propounded in the Memorial and Remonstrance petition is essential for anyone who wants to understand Madison’s notion of religious liberty. The principles that Madison articulated in the petition were, furthermore, foundational for religious liberty not only in Virginia but also in the American republic that was forming.

The society that undergirded this forming republic was quite different than the one that we find ourselves today, however, and so I think it is helpful to raise a few problems that American religious liberty faces in our own time. The first is that Madison and the other Founding Fathers presupposed an American government based on a primarily Christian nation—that is, a society which was at least clearly aligned with the moral principles of Christianity. It can be argued that our American concept of religious freedom, then, could only have culminated in the way that it did because of Christianity.

Stemming from Enlightenment theories (rationalism, for example), American society developed the presumption that we could harvest certain fruits of Christianity (“the mutual duty of all to practise Christian forbearance, love, and charity toward each other,” as Article XVI of the Virginia Declaration of Rights states above) without cultivating the roots, without living the way of Christianity. In other words, Christianity might have been historically foundational in the development of civic virtues and ideals. But now that we had the latter, who needed the former? Other traditional religions had their own virtues of course, but none were as influential in their direct formation of the American ethos as Christianity was. Never would Madison have foreseen today’s influx of antipathy towards the virtues that true religion cultivates within—and demands of—a society.

This raises the question then: what constitutes ‘religion’ within the framework of American religious liberty? More specifically, what constituted religion for Madison? The answer, already given above, is stated rather simply—it is “the duty which we owe to our Creator,” as is written in Article XVI of the Virginia Declaration of Rights. It was this sense of duty to the Creator that led Madison to believe religious liberty was an unalienable right, founded not simply in natural human rights but in responsibility to the divine: “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.” ⁵While this freedom could be abused at the government level, it could also be abused at the individual level. Through the personal dereliction of duty, even if one were free from external coercion (freedom from), one has a duty to fulfill the purpose of such liberty by serving God (freedom for). Liberty is not simply the absence of restraint, but a means of fulfilling our highest duties.

The term religion means “to bind,” which is of course paradoxical when speaking of religious freedom, but the question is not whether we are bound—we must be bound to something—but whether we are bound to what is true and good or bound to what is false and evil. A more comprehensive definition of religion could be stated as such: the virtue that inclines the soul to recognize and observe the duty which we owe to our Creator. The liberty of religion is, therefore, not some distant, abstract entitlement that one claims when one feels that one’s individual opinion is being threatened, but rather the habitual and committed pursuit to honor our Creator in the way that is most proper.

Baked into the definitional question of religion is an additional challenge to American religious liberty, which ultimately boils down to answering the following questions—what is conscience? And what role does it play? Since we lack a definition of the conscience by Madison, this keystone principle of religious freedom is open to various interpretations and guesswork. While brilliant in his exposition and promotion of religious liberty, a deeper examination and definition of conscience by Madison would have been crucial for understanding American religious freedom at an even more fundamental level. Outside of the original Christian context from which the liberty of conscience grew, it is much more stretched and distorted.

It is of course essential that the liberty of conscience be protected, but a deeper understanding of what constitutes conscience is just as, if not more, important. The conscience resides in the individual alone and is something that develops through repeated observation and action (e.g., through religious practice). By itself, however, the conscience would likely remain in an embryonic phase. This process of development does not exist in a vacuum but occurs through the interplay between one’s conscience and an evaluative standard, the concept of which can be either refined or deformed depending on one’s social or religious community.

Shortly before his papacy, Joseph Ratzinger wrote that the “way of conscience is everything except a way of self-sufficient subjectivity: it is a way of obedience to objective truth.”⁶ Perhaps because of our American obsession with individual rights through the lens of radical autonomy, our society has become infected with this same self-sufficient subjectivity. We appear to treat the conscience in the same way, as a solo endeavor in which the autonomous self becomes the measure of all things, as opposed to becoming measured by some evaluative standard outside of ourselves. Again, when it comes to religion, we must ask: to what am I willing to bind myself? If the answer to this question is simply “me” then perhaps that is just what you will get in the end. That and nothing more.

The liberty of conscience and religious freedom protect the personal rights of each citizen against the threat of tyranny—Madison was aware of this and did much to combat this threat, as I have sought to illustrate—but if these freedoms are to avoid self-consumption, like a snake eating its own tail, then they must ultimately be concerned with ends outside of themselves. They must turn their gaze outwards. As Americans, we must then ask for what ends are we striving? If religious freedom is to fulfill our duty to our Creator, then what does that duty look like? What does it entail? Is religious freedom simply a platonic ideal that we preserve in the marble halls of our bureaucracies? Or is it the opportunity for each man to seek out and fulfill the deepest questions and longings of his soul in a manner that accounts for his freedom? While our leaders would do well to answer these questions themselves, they are questions that must be answered by us at the local levels—among friends, among neighbors, among fellow Americans. Naturally, this is not an easy task in our current political climate, but never has such a task been easy.

“For it is known that this [Christianity] both existed and flourished, not only without the support of human laws, but in spite of every opposition from them, and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence. Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy.”

James Madison, Memorial and Remonstrance

1. The Three Lives of James Madison: Genius, Partisan, President, Noah Feldman (New York: Picador, 2020), 25.

2. Madison had noted early on that much of the opposition to (or at least the indifference towards) the Revolution had come from the Anglican population, As the established denomination of Britain, they had obvious financial motives for maintaining the status quo.

3. Feldman, 58-62.

4. Feldman, 67.

5. Memorial and Remonstrance, sect. 4.

6. Joseph Ratzinger, “The Theology of Cardinal Newman,” L’Osservatore Romano, weekly English edition 22 (2005).