Some Thoughts on Religious Liberty. A Review of Lynne Cheney's James Madison, A Life Reconsidered, Part I

The first thing to know about James Madison, A Life Reconsidered, by Lynne Cheney (yes, that Lynne Cheney) is that it is very well written.  Cheney knows how to tell a good story, and the book is an engaging page turner.  The chapters on young Madison's involvement in organizing and securing the attendance of George Washington at the Constitutional Convention in Philadelphia, his advocacy for the Virginia Plan at that convention, the writing of the Federalist Papers, the debate against Patrick Henry and Henry's fellow anti-federalists to secure Virginia's endorsement of the Constitution, and the enactment of the Bill of Rights, Madison's most important achievements, each in its own way absolutely fundamental to creating the nation in which we now live, are especially compelling. If Madison was not the father of our Constitution, he was certainly its midwife, and this book deserves to be widely read if for no other reason than to tell that remarkable story.

It is therefore incredibly frustrating that I cannot give the book my full endorsement and that I was so severely disappointed in certain aspects of Cheney's narrative.  My most significant concern is with Cheney's botched treatment of Madison on religious liberty, a subject on which she gets seriously sidetracked by a pet theory which leads her far, far, astray.  Religious liberty is a subject which could not be of greater importance, and on which we need a true account of Madison's views, now more than ever.  Cheney refuses to give us one.  

Madison's Contributions to the Cause of Religious Liberty

Madison should be seen as one of the great heroes of American history, not only due to his role in forming the union, but also for his great achievements in advancing the cause of religious liberty and freedom of conscience.  His primary contributions to that cause are fourfold, each of monumental and hopefully enduring significance: 

1.  First, as a young, new, and still obscure member of the Virginia legislature which found itself in need of creating a new form of state government in the wake of the colonies' declaring of independence, Madison got himself appointed to George Mason's committee for establishing a Declaration of Rights and a Constitution for Virginia.  Mason wrote an article on religious freedom for the Declaration which was based on Locke's wording, about as far as the ball had been taken up until that time: "all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate."  But Madison was ready to advance the cause further than Locke.  Showing his political savvy, he worked through other, older and more prominent committee members, to obtain a rewording of the section into a statement that went beyond mere "tolerance" for minority or dissenting religous opinions: "all men are equally entitled to the free exercise of religion."  Equal freedom to exercise one's religion would now be recognized as a civil right in the largest and most influential of the 13 original colonies.

2.  Madison's second great contribution to the cause of religious freedom was his successful fight against a Virginia bill which would impose governmental taxes for the support of Christian churches. Having served my mission in a country where the two official religions were supported by church taxes administered and collected by the state, and your religion was considered a mere "association" (not a church) if its members tithed themselves voluntarily, I'm especially appreciative of this principle. Madison waged this particular fight through his anonymous authorship of the "Memorial and Remonstrances Against Religious Assessments" which killed public support for the bill.  The Memorial and Remonstrances is a remarkable document, which deserves to be far more widely read and remembered today than it is, setting forth, as it does, both the best possible theological arguments of a believing Christian, and the most compelling secular and political arguments of a gifted lawyer, for its assertions.  The document ought to be especially appreciated by Latter-day Saints, for its argument that Christianity existed in its purest form before it was corrupted by integration with the organs of the state, in passages which might have been written by an early Mormon Apostle explaining the apostasy and need for a restoration, and which one can imagine having been a familiar passage among early converts to the LDS faith:

"[E]xperience witnesseth that ecclesiastical establishment [i.e., establishments of religion, 18th Centuryese for official state churches], instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries [i.e., since the 3rd Century official incorporation of Christianity into Constantine's Roman Empire] has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil policy."

3.  Madison's third important contribution was utilizing his increasing political savvy and influence, as well as the political momentum generated by the Memorial and Remonstrances, to shepherd into law the Virginia Statute for Religious Freedom, authored by Thomas Jefferson, his life-long mentor. Madison was so enthusiastic about this victory that he wrote Jefferson exulting that he flattered himself that he and Jefferson had "in this country extinguished forever the ambitious hope of making laws for the human mind." Clearly, Madison, for all his foresight, could not predict 20th Century liberalism and political correctness.  Still, his vision proved true for many years to come, and has only in recent decades begun to crack under the weight of modern liberal puritanism and intolerance for dissent.  

4.  Finally, Madison was the chief advocate in the first Congress for passage of a Bill of Rights, including the First Amendment, whose final language was not quite as powerful as it could have been (had we stuck with Madison's original proposed language) but has, nevertheless, protected us against offical state religions (via the establishment clause) and against prohibitions on our freedom of religious exercise (through the free exercise clause) ever since.  

Ironically, in light of the ultimate importance of the Bill of Rights in modern American life, Madison's views on the subject were ambivalent.  He felt, initially, that a bill of rights was unnecessary. The federal government was supposed to be a government of enumerated powers in any event, and thus could not pass laws on subjects (such as gun ownership or religious establishments) beyond the scope of those limited powers which had been delegated to it, if such laws would infringe on areas which were left to the State governments of general jurisdiction.  Not only was a bill of rights therefore redundant, but such a list might confuse and dilute Americans' understanding of these systemic Constitutional workings and the protections they were designed to afford (as, indeed, some modern scholars argue has taken place). Nevertheless, upon realizing that the lack of a bill of rights was the most effective argument the anti-federalists were using to agitate for a second constitutional convention, where they could reject the Constitution outright and stymie the creation of another such document, Madison eventually reconciled himself to the idea, if primarily for political purposes, even coming to believe that a listing of such rights would have the salutary effect of making them well known to future generations of Americans who would thereby be more likely to jealously safeguard them, a truth which, as Cheney argues, could be attested by millions of future children, introduced to the Bill of Rights on their elementary school classroom bulletin boards. And so it was that, primarily with Madison's nudging and prodding and drafting and exhorting, the First Congress took time from other matters most of its members felt to be more important, to formulate the first Ten Amendments to the Constitution, and provide us with the Bill of Rights, which would prevent a second constitutional convention from ever being held, preserve the continuing support of the States whose ratification of the Constitution had been conditioned on the inclusion of such a listing, and thus save the Constitution from an early demise.  With the passage of the 14th Amendment, the Bill of Rights was no longer a mere instrument of federalism, delineating the boundaries of the federal government's law-making powers, but became a protection for all Americans against any encroachments of their rights by both national and local governmental entities, including, under the First Amendment, the right to freedom of religious exercise, and freedom from official state or national churches.    

Cheney's Epileptic Theory

Cheney has developed a theory on what motivated Madison's devotion to the cause of religious liberty, and it goes like this: (1) Madison suffered from occasional debilitating symptoms which he (rightly, and ahead of the science of his time) recognized as symptomatic of an affliction which was likely related to epilepsy, and perhaps a form of epilepsy, a view which modern science confirms.  (2) The Christian dogma of Madison's day treated epilepsy as a sign of spiritual uncleanliness, related to the stories of demon possessions in the New Testament.  (3)  Madison would have been familiar with this Christian dogma and would have been deeply troubled by the same, and would have grown to resent it. (4) Therefore, Madison would have been motivated to oppose political support for religious dogma, as a result of his bitterness over the religious views of his day on this subject.  "Madison's zeal" Cheney writes, in the cause of "religious freedom--which both [he and Jefferson] saw as part and parcel of intellectual freedom" was "likely heightened by the misery he knew as a young man when he realizedthat Christian orthodoxy insisted on a supernatural explanation for epilepsy." (p. 72).

Cheney makes a fairly sound case for the first element of her theory, and I can accept it.  Point two seems fairly strongly supported as well, although it is a perilous thing for a 21st Century author to try to understand the religious sentiments of bygone eras, and she may be on more shaky ground here.  I find for example that when outsiders write about my faith, even those who are writing in a manner which is friendly or neutral, something nuanced often gets lost in translation, which I am sure is true of my own understanding of other religions as well.  The words are correct, but the emphasis is off, the focus misunderstood.  It's possible that something like that is happening here.  Cheney's portrayal of the official biblical exegesis of the day may be accurate, but how often did people actually talk about this stuff at the time? And how did the Christians of the day treat epilepsy among their own families and flocks?  This is harder to know, and Cheney may or may not be accurately explaining the true underlying views of the day.  

The third and fourth elements of the Cheney theory seemed to this reader to be extremely tenuous, and ultimately unsupported. Had Madison read all of the various statements of various classical and Christian authors on epilepsy which Cheney has found and quoted?  Who knows?  Was he troubled by them?  Perhaps.  But if so, he doesn't seem to have left any record of such concerns in letters or other writings, at least not that Cheney quotes (and, presumably, if the record was there, she would have drawn on it for support).  Did these concerns lead to a distrust of dogma and a belief in religious freedom of thought?  Again, if so, that process (much less the connection between that process and Madison's epilepsy) does not seem to be documented anywhere, other than in Cheney's speculations. Cheney assures her readers that Madison departed from orthodox beliefs in 1773 and 1774 (pp. 39-40), but her evidence for this claim is not based on any of Madison's writings (indeed, she states, he would not have "publicly" made an "issue" of his altered thinking--pp. 41-42-- which begs the question, how does she know to what extent his thinking had altered?)  Instead, Madison's unorthodoxy is said to be demonstrated by his increasing hostility during this time period to the privileges afforded the official state church of Virginia, and its treatment of minority religious groups such as the baptists.  These were, however, political positions, regarding the authority of organs of State government, which say nothing of Madison's private religious or doctrinal views, let alone how those private views were affected by official church dogma regarding epilepsy.   

In the end Cheney's theory is interesting, but not all that convincing.  Indeed, it's easy to speculate that what's really going on here has more to do with Cheney's life and resultant interests than Madison's.  Given Cheney's age and the majority attitudes of her generation during her younger years, and given her family's prominence in the more conservative of America's two political parties, it is not hard to imagine Lynne Cheney having held, for most of her life, fairly orthodox and traditional views on homosexuality, which she likely later grappled with, and to some extent, or perhaps fully, rejected, upon one of her daughters announcing her homosexuality and seeking out a same sex marriage.  It is not hard to imagine that Cheney's intellectual struggles in that regard may have been extremely similar to those which she now ascribes to and imagines for Madison, as he allegedly grappled with  the subject of Christian doctrine concerning epilepsy.  Her theory may therefore be more about projection than history.  

But now I'm engaging in unsupported speculation.

Whatever the reason for Cheney's development of this theory, and however well or poorly supported her reasoning, my main concern with the theory is its unfortunate and distorting effect on how Cheney tells the story of Madison's contributions to the actual tenets of religious liberty.  By assuming that Madison was motivated by his own bitterness over Christian dogma, Cheney gives us an anti-religious Madison, crusading for his cause based on hostility to religious belief, instead of the true Madison, upset by religious persecution.  This telling of the story, in turn, prevents Cheney from ever fully analyzing and appreciating both sides of the coin of religious freedom which was minted through Madison's efforts. 

The Two Great Pillars of Madisonian Religious Liberty 

There are two important principles of religious liberty referenced throughout Madison's writings and ultimately enshrined in the First Amendment: 

(1) First, the establishment clause principle: which is that the government should not officially recognize or endorse any religious institution or church as the official religion of the state (i.e., should not create what 18th Century Americans referred to as an Establishment of Religion, and what we today would call an Official State Church), but must be neutral towards the competing claims of differing religious sects.  This vital principle of religious liberty is most frequently referenced today under Jefferson's shorthand phrase: "separation of church and state." 

(A brief digression: some now argue this principle was provided to give us freedom from religion, rather than freedom from officially state endorsed religion, by requiring not only governmental neutrality among different religions, but between religion and irreligion.  One of the best and most concise historical arguments against this overzealous understanding of the establishment clause may be found by reading Justice Rehnquist's dissenting opinion in the school prayer case of Wallace v. Jaffree, the entire text of which decision, including Rehnquist's dissent, can be found here:  http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=472&invol=38  It must however be recognized that, while compelling, Rehnquist's argument is provided in a dissent, which tells us where we are today.) 

(2) Second, the free exercise principle, pursuant to which the freedom to exercise one's religious beliefs was established and enshrined in our First Amendment, which freedom encompasses not merely the freedom to worship or to privately hold religious beliefs, but to exercise, or act upon, the same, without being unduly constrained by governmental fiat.  

In Cheney's telling, the first of these important principles is misconstrued, and the second is simply ignored, with Cheney's version of Madison coming across as a man far more concerned with freedom from religion than freedom for religious exercise, a distortion on both counts.  With respect to the establishment principle, it is true that Madison was deeply opposed to establishments of religion, fighting against the privileges enjoyed by Virginia's official church, and to ensure that no national church would be established.  But nothing he wrote for the cause of religious liberty suggests any hostility to private churches and religious institutions. With respect to the free exercise principle, Cheney's telling, necessarily, omits Madison's maintenance of the right to exercise one's religion free from constraint.  An uninformed reader of Cheney's tome would easily assume that Madison cared solely about freeing citizens from religious influence, and not a whit for protecting citizens' rights to freely exercise their faith.  

But the real Madison cared just as deeply for the right of a citizen to exercise his religious beliefs as he did for disestablishing official state churches, as proven in the record of Madison's actual words, set forth within his actual achievements.  For example, his preferred language in the Virginia Declaration of Rights retained the language concerning "free exercise" of faith.  The Memorial and Remonstrances against Religious Assessments included a passage describing the exercise of religion as not only a right but also a duty, and not only a duty, but a duty which took precedent over the duties one owed to the state, and which, until exercised, even prevented full acceptance into civil society:  "It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign."  This is hardly the statement of a latter-day atheist, concerned with protecting the citizenry from any religious influences, in favor of allegiance to the secular State.  The line about saving one's precedent allegiance to God is especially salient to certain modern controversies: Madison would likely have approved of the words "under God" in the pledge of allegiance.  (Whether he would have approved of the pledge at all is a different question, and would depend on whether you were talking to Madison in the 1780s or the 1790s, but that's a subject for part 2 of this post.)

Madison's letter to Jefferson describing the passage of the Virginia Statute of Religious Liberty included the observation that it was supported by "a general convention of the Presbyterian Church" which had "prayed expressly that the bill . . . might be passed into a law, as the best safeguard short of a Constitutional one, for their religious rights." Again, this enthusiastic observation would not have been made by a man whose actions were motivated by anti-religious sentiment.  Finally, there is Madison's first proposed draft of what became the First Amendment, ultimately diluted by his colleagues, but which would have afforded even clearer protections for the faithful against governmental encroachment than what the final draft afforded: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed."  I can think of a number of recent State and Federal Court decisions upholding statutory infringements on religious exercise, which would have been decided differently had Madison's original language, protecting against such infringements "on any pretext" been both preserved and also followed.

Clearly, Madison was just as concerned with protecting religious freedom, including freedom of action, exercise and worship, as he was in preventing the establishment of a national church, and there is simply no evidence that his distaste for offically established religious institutions was based on any particular dislike of private religions or their doctrines.  It is truly tragic that Cheney's book, likely to be read for some time as the currently definitive single volume work on Madison's life, fails to get that part of the story right.  This tragedy is especially acute given the tenor of our times, which increasingly regards the establishment clause as a tool for the overzealous expulsion of religious sentiment from the public square, under the pretext of historically inaccurate and overly broad readings thereof, while at the same time ignoring the free exercise clause altogether.  These trends are shown by the recent need to shore up free exercise rights through legislation such as federal and state religious freedom restoration acts, designed to overcome court precedents which have allowed the free exercise clause to be ignored "on any pretext" available. This trend is also demonstrated by the recent backlash against those very RFRA laws, as in the liberal media's shallow and misleading excoriation of the Hobby Lobby decision applying the federal RFRA to Obamacare's abortifacient mandates, and the backlash against an Arizona bill which would have strengthened that State's RFRA statute.  Cheney's book could have helped to overcome these dangerous trends of our time, which bode ill for the religious liberty which Madison did so much to affirm and preserve.  Instead, Cheney's book may end up contributing to these modern misunderstandings and to the erosions of the Madisonian liberties which will inevitably follow.         

{For Part II of this Book Review, on Madison's shifting federalist and anti-federalist loyalties, see here: http://dadsbookreviews.blogspot.com/2015/01/james-madison-federalist-and-republican.html}