James Madison, John Witherspoon, and Oliver Cowdery: The First Amendment and the 134th section of the Doctrine and Covenants

Brigham Young University Law Review, 2003 by Smith, Rodney K

Madison's amendment differed substantially from the proposal offered by Mason and evidences a commitment to a vibrant form of religious liberty.

Madison went further than Mason in protecting this right, which both Madison and Mason believed originated in one's duty to God. Madison also saw it as a right that may not be limited by violence or compulsion. This notion of duty, and the right that it spawns, is reminiscent of Witherspoon's teaching and indicates that the right of religious conscience is beyond the reach of government, except in very limited circumstances. For Madison, men are entitled to the "full and free exercise'' of the duties or obligations owed their Creator, according to the "dictates of conscience." Indeed, Madison recognizes only two limits on the "full and free exercise" of religious conscience: (1) "no man or class of men ought on account of religion [may] be invested with particular emoluments or privileges"; and (2) no man or class of men may be "subjected to any penalties or disabilities, unless under color of religion the preservation of equal liberty, and the existence of the State be manifestly endangered."46

The first limit does not permit any man or class of men to be invested with particular emoluments or privileges on account of their religion. This limitation on receiving salaries or fees paid from public funds or other public emoluments or privileges conferred on the basis of religion may well have been a precursor to our establishment clause. It was designed to limit the receipt of special public benefits by religious individuals or sects.

The second limit provides that no man or class of men may be penalized or disabled in the exercise of religious conscience unless the "equal liberty" of another is infringed and the existence of the state is "manifestly endangered." With this language, Madison abandoned Mason's weaker terminology, which permitted religious conscience to be limited in the interests of preserving public peace, happiness or safety. Madison's proposal called for much stronger protection for the exercise of religious conscience and was consistent with Witherspoon's teaching that the general public good may not limit the exercise of religious conscience. In short:

[Madison] proposed the then (and, unfortunately, even now) extraordinary concept that government could only intervene in matters impinging upon the free exercise of one's conscience or religious conviction when "under the color of religion the preservation of equal liberty, and the existence of the state be manifestly endangered." Apparently, only something of the magnitude of sedition, or the denial by one religious group of the equal liberty of another would justify governmental action regarding religious matters.47

Madison proved to be a loyal student to President Witherspoon in advocating limited government power to regulate the right of religious conscience.

In October of 1776, Madison became a member of the Virginia House of Delegates, which had been established by the new state constitution.48 Madison's early role was limited when compared to that of Thomas Jefferson: "Thomas Jefferson, also a delegate, led the effort to disestablish (withdraw state aid from) religion. Madison supported these efforts but was too young and diffident to play more than a minor role."49 Madison's early role may have been less influential than that of Thomas Jefferson, but Madison's efforts to support a vibrant right of religious conscience gained increasing prominence with time.