The Parchment Barrier: Remembering James Madison and the First Amendment on Constitution Day
By Gordon T. Belt
Each year our nation observes on September 17, the day delegates of the Constitutional Convention signed the United States Constitution in 1787. As a champion of religious liberty, freedom of speech, and freedom of the press, the “Father of the Constitution,” James Madison, deserves his own proper recognition on Constitution Day.
History recalls James Madison as a key figure among the pantheon of heroes collectively revered as the “Founding Fathers,” but measured against today’s political standards he would certainly be an unlikely hero. James Madison was born in 1751 as a child of privilege, raised on his father’s 4,000 acre plantation on the Virginia Piedmont, and educated in the colonies’ most prestigious and elite schools. At five-foot-four and one hundred pounds, Madison was belittled by political opponents as “a pigmy.” Madison also lacked the charisma of his fellow Founding Fathers, and often acted as a semi-silent collaborator rather than the Constitution’s foremost advocate.
James Madison’s towering intellect, however, belied his diminutive physical stature. Madison played a significant role in helping George Mason draft Virginia’s landmark Declaration of Rights by insisting on a strong statement to protect religious liberties:
“That religion, or the duty which we owe our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force and violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience.”
Madison then served in the Virginia Assembly, where, in 1785, he wrote the “Memorial and Remonstrance against Religious Assessments,” a document that laid out his opposition to an assessment bill that would have levied a tax on Virginians to pay Christian teachers a modest salary. In that document, Madison reiterated his statement on religious liberties in Virginia’s Declaration of Rights, and added:
“The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate… It is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution.”
By opposing then Gov. Patrick Henry’s efforts to impose this new tax, James Madison affirmed his strong commitment to the fundamental separation of church and state, but in the process made a political enemy of Patrick Henry – a move that would set the course for his future role as “Father of the Constitution” and author of the Bill of Rights.
James Madison’s work, however, was not done. The individual states had to ratify the new Constitution, and in order to secure ratification, many states were demanding the inclusion of amendments that would protect individual liberties. Although he was a zealous guardian of individual liberties, James Madison initially opposed the inclusion of a Bill of Rights to the Constitution. In 1787, Madison believed that a Federal bill of rights was unnecessary since it purported to protect against powers that the federal government had not been granted, and it was dangerous since enumeration of some rights might be taken to imply the absence of other rights. Madison also argued that at the state level, bills of rights had proven to be useless against government powers, since the legislative majority in every state had violated these “parchment barriers” whenever it served their interest to do so.
Faced with the opposition of his political enemy, Patrick Henry – who was still fuming over Madison’s opposition to his tax to support clergy in the state of Virginia, and who still held considerable power in the Virginia legislature – coupled with voters who were demanding amendments to the Constitution to protect individual rights as a prerequisite to ratification, Madison became pragmatic about his position. Madison soon realized that in order to secure his own election to the House of Representatives, and to ensure ratification of the Constitution, he needed to adjust his thinking on the matter.
Madison also took into consideration the views of his fellow Virginian, Thomas Jefferson, who thought the Constitution’s lack of a Bill of Rights was a glaring omission. In an exchange of letters between the two statesmen, Jefferson wrote to Madison on December 20, 1787, “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inferences.” Writing to Jefferson in October 17, 1788, Madison replied:
“My own opinion has always been in favor of a bill of rights; provided that it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I suppose it might be of use, and if properly executed could not be of disservice.”
James Madison regarded a declaration of rights as out of place in the Constitution, but conceded that it may be necessary to gain ratification. This pragmatism was echoed in a January 2, 1789 letter to George Eve, a prominent Baptist preacher, in which Madison wrote:
“Circumstances are now changed: The Constitution is established on the ratifications of eleven States and a very great majority of the American people; and amendments, if pursued with a proper moderation and in a proper mode, will be not only safe, but may serve the double purpose of satisfying the minds of well meaning opponents, and of providing additional guards in favour of liberty. Under this change of circumstances, it is my sincere opinion that the Constitution ought to be revised, and that the first Congress meeting under it ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights, particularly the rights of conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants &c.”
To forestall his political opponents and to fulfill his campaign promises, Madison announced, on May 4, 1789, that he intended to introduce a bill of rights. In a speech to Congress one month later, Madison stated:
“If we can make the Constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect.”
On June 8, 1789, James Madison introduced twelve amendments to the Constitution, and wrote into the Bill of Rights what would eventually become the core text of the First Amendment:
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 any pretext infringed.
The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.
Upon his death in 1836, the nation mourned its loss. The National Intelligencer reported that “the last of the great lights of the Revolution… has sunk below the horizon… [and] left a radiance in the firmament.” Years after his death Henry Clay remarked, “after Washington [Madison is] our greatest statesman and first political writer.” While James Madison also served as Secretary of State during Thomas Jefferson’s presidency, and was elected to two terms as President of the United States, the Constitution and the Bill of Rights were his most lasting legacies, providing our nation with a “parchment barrier” to political tyranny that has endured for more than two centuries. Today, on this Constitution Day, we remember James Madison, the "Father of the Constitution."
- Robert S. Alley, ed. James Madison on Religious Liberty. Buffalo, NY: Prometheus Books, 1985.
- Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution. Washington, D.C.: The AEI Press, 1997.
- Ralph Ketcham, James Madison: A Biography. Charlottesville: University Press of Virginia, 1971.
- Richard Labunski, James Madison and the Struggle for the Bill of Rights. New York: Oxford University Press, 2006.
- Leonard W. Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression, New York: Torchbook Edition, 1963.
- Drew R. McCoy, The Last of the Fathers: James Madison & The Republican Legacy. Cambridge University Press, 1989.
- Robert J. Morgan, James Madison on the Constitution and the Bill of Rights. New York: Greenwood Press, 1988.
- Merrill D. Peterson, ed., The Founding Fathers: James Madison, A Biography in His Own Words. New York: Newsweek, 1974.
- Juhani Rudanko, James Madison and Freedom of Speech: Major Debates in the Early Republic. Lanham, MD: University Press of America, Inc., 2004.
- Jack N. Rakove, James Madison and the Creation of the American Republic. Glenville, IL: Scott, Foresman, 1990.
- Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791, University of North Carolina Press, 1955.
- Robert Allen Rutland, James Madison: The Founding Father. Columbia: University of Missouri Press, 1987.
- Robert Allen Rutland, et al, eds. The Papers of James Madison. University of Chicago Press, 1977.
- Gary Wills, Arthur M. Schlesinger, Jr., editor, James Madison [The American Presidents Series]. New York: Times Books, 2002.
Gordon Belt is an information professional, archives advocate, public historian, and author of The History Press book, John Sevier: Tennessee's First Hero, which examines the life of Tennessee's first governor, John Sevier, through the lens of history and memory. On The Posterity Project, Gordon offers reflections on archives, public history, and memory from his home state of Tennessee.