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

[R]eligious matters were considered on a number of occasions by the delegates at the Constitutional Convention, but . . . only one provision, the prohibition of a religious test as a requirement for national office, was included in the Constitution. There are a number of possible reasons for the refusal of the delegates to include a provision for religious liberty in the Constitution, ranging from Alexander Hamilton's assertion that the delegates merely forgot to do so in their efforts to deal with weightier matters, to the Madisonian position that such rights would be protected by the pluralistic nature of the union and by virtue of the fact that such rights were inalienable and were, therefore, beyond the reach of government. For Madison, the silence of the Constitution would indicate that religious rights were reserved to the people. Between these somewhat polar positions stands another prominent position which may well have been held by a majority of the delegates: they may have believed that since the Constitution was silent as to the issue of national power regarding such matters, governmental power, if any, to regulate religious matters remained with the states.74

While the inclusion of a prohibition of a religious test in the Constitution as a requirement for holding national office offers little additional insight into the thinking of Madison regarding the issue of the right of religious conscience, it certainly does further such a right in that it limits the power of the national government to create religious tests for office.

Strong opposition to the ratification of the Constitution, however, was voiced in state ratifying conventions. Much of the opposition centered on the issue of whether the Constitution was deficient because it failed to include a bill of rights.75 In Madison's home state of Virginia, for example, delegates to the ratifying convention added a lengthy list of proposed amendments to the Constitution to the Virginia Ordinance of Ratification(TM) One of the proposed amendments dealt with religious conscience and was modeled somewhat after the religious liberty provision of the Virginia Declaration of Rights:

That religion, or the duty we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established, by law, in preference to others.77

During this critical period in our nation's history, Madison and Thomas Jefferson, who was then serving the newly organized national government in France, communicated through a series of letters in which they discussed issues related to the Constitution, including the need for a Bill of Rights. In that context, a scholarly biographer of Jefferson's constitutional thought summarized Madison's views as expressed in that correspondence: