Here’s a Viewpoint article by Mary Hatch that appeared in the June 1, 2022, issue of the Mecklenburg Sun titled “From the founders“.
Many times when state and federal courts have an issue with the interpretation of a law in a case, the courts will normally determine the legislative intent by examining the problem faced by the legislature when it considered the bill initially (legintent.com). US Justice Stephen Breyer explained his views to National Public Radio in 2010 when he said, legislative intent is an important tool and provides an alternative to less consistent forms of legal interpretation. He went on to say that much in the constitution is written in a general way.
James Madison was the main author of the Constitution and Bill of Rights along with some input from Jefferson and others. I wanted to find out what Madison wrote preceding the Constitution to understand his impetus and driving force. According to Robert Boston who wrote about separation of church and state, Madison had witnessed several men in jail in Virginia because of their religious beliefs. Madison was also aware of church floggings in several states for members not attending Sunday service or paying the church tax and knew that Virginia was pursuing a state religion at the time. But seeing the men in jail infuriated him. Many of our founding fathers’ great grandparents came here from England because of religious persecution. Depending on the King or Queen at the time, people witnessed incredible persecutions such as burning at the stake.
Upon seeing these men in jail, Madison wrote his brilliant, “Memorial of Remonstrance” in 1785 prior to the Constitution in 1787 and Bill of Rights in 1791. He wrote this anonymously and presented it to the Virginia General Assembly in 1785. In this document he passionately pleaded the case for right of conviction, liberty of conscience, boundaries between religion and government, and espoused his repugnance for persecution. From the Founders National Archive Online, here is Madison pleading: “Because we hold it for a fundamental and undeniable truth, 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. The religion then of every man must be left to the conviction and conscience; and it is the right of every man to exercise it as these may dictate …. The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overlap the great Barrier which defends the rights of the people. The rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves……”
When we read Madison’s words, he is clearly drawing a line in the sand between our personal convictions and government not intervening in the free exercise of such. Because of his document, religious freedom became established in Virginia. The “Memorial and Remonstrance” was used in many Supreme Court cases proving the intent of the imitator. One such case was “Lemon vs. Kurtzman in 1971, citing Madison’s “wall of separation” which is also referred to as the establishment clause. Jefferson also wrote his powerful response regarding right to conscience and wall of separation when he wrote his famous “Danbury Letter of 1802” to the Danbury, Connecticut Baptist Association after they expressed their concern of the lack of religious liberty and against a government established religion. Jefferson assures the association by his words: “Believing with you that religion is a matter of which lies solely between Man and his God, …their legislature should make no law respecting an establishment of religion….. thus, building a wall of separation between church and state. Adhering to this expression of the supreme will of the people in behalf of the rights of conscience, I shall see with sincere the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition of his social duties.” (billofrightsinstitute.org).
Madison’s Memorial and Remonstrance and Jefferson’s Danbury letter were used in numerous Supreme Court cases. In many of the cases, Madison and Jefferson’s phrasing were stated or implied in several of our Amendments: Amendments 1 (establishment clause and wall of separation) – Amendment 4 (right of privacy) – Amendment 5 (liberty of conscience) – Amendment 8 (no excessive bail, nor fines imposed, nor cruel and unusual punishment) – Amendment 14 (not to deprive us of life and liberty). From Madison’s Memorial and Jefferson’s letter, it appears undeniably they did not want government involved in private matters where right of conviction are involved, nor would they ever approve of the excessive fines imposed, nor cruel and unusual punishment which several states are proposing for women if Roe vs. Wade is overturned (one year to life in prison and fines of $50,000 to $100,000). If it is overturned, five of our most important amendments will be unduly harmed for years if not forever.