You don’t want to be James Madison’s editor

A couple days ago I started teaching a continuing education course for retirees on American church-state jurisprudence. We started off looking at drafts of the First Amendment’s religious clauses, something I do regularly in my intro courses on American religious history (and have blogged about here). As we talked our way through the drafts in class, I noticed something that hadn’t really struck me before: James Madison gets kind of pissy about the way his original wording got edited in committee. “Pissy” is how I’m reading him, anyway, because it makes things more interesting.

Here’s what Madison had originally proposed for a Constitutional amendment on religion:

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.

A couple of months later, a House committee had edited that down to:

No religion shall be established by law, nor shall the equal rights of conscience be infringed.

The following debate (excerpted) then ensued in the House over the committee’s draft. Note how in the course of explaining what he understands the wording about religious establishment to mean, Madison basically explicates everything that the committee had cut from his draft. I can hear him projecting telepathically to the committee members: You see, you whoresons, this is why I was as specific as I was in the original wording; you should have kept it the way it was.

Mr. SYLVESTER had some doubts of the propriety of the mode of expression used in this paragraph. . . . He feared it might be thought to abolish religion altogether. . . .

Mr. MADISON said he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. . . .

Mr. HUNTINGTON said . . . [h]e hoped . . .  the amendment would be made in such a way as to secure the rights of conscience, and the free exercise of religion, but not to patronize those who professed no religion at all.

Mr. MADISON thought, if the word ‘National’ was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combined together, and establish a religion, to which they would compel others to conform. . . .

Mr. LIVERMORE was not satisfied with the amendment; but he did not wish them to dwell long on the subject. He thought it would be better if it were altered, and made to read in this manner, that Congress shall make no laws touching religion, or infringing the rights of conscience.

A couple final observations: The wording about establishment proved tricky as the First Amendment made its way through the House and then the Senate. Some drafts are quite specific about what the federal government isn’t supposed to do–e.g., can’t prescribe a mode of worship, can’t draw up a creed–but the language that finally prevailed (“Congress shall make no law respecting an establishment of religion”) is vaguer. Not quite as vague as what Livermore proposes above, but leaning in that direction.

My last observation is that the language protecting “rights of conscience” dropped out of the final version, presumably because people like Huntington worried that it would grant civil rights to atheists. God forbid.

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