Lance Banning

The Sacred Fire of Liberty

Among the rights that Madison believed could be protected more completely in republics, none was literally more sacred than the liberty of conscience. He first involved himself in local politics, in 1773, in order to protest the persecution of dissenters in neighboring Culpeper County. When shaky health defeated his determination to defend the cause of liberty in arms, the gratitude of Baptist neighbors may have helped him win election to the state convention of 1776, which framed one of the earliest, most widely imitated revolutionary constitutions. Here, despite his modesty and youth, he made his next important contribution to a lifelong battle for religious freedom, standing on a set of principles that placed him from the start among the most advanced reformers of his age. Ten years later, the renewal of this battle became perhaps the single greatest test of his original convictions and the single most important catalyst for the distinctive insights that revitalized his revolutionary faith.

When the Virginia constitution came to the convention from committee, George Mason's draft of a Declaration of Rights contained a generous, though basically conventional, protection for dissenters:

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; and therefore, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate unless, under color of religion, any man disturb the peace, the happiness, or safety of society. And that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

Madison was not content. The language of the article, like the language of the preface to the Declaration, suggested the enormous influence of John Locke, whose famous Letter Concerning Toleration grounded freedom of religious conscience on the character of human understanding and the separate origins and purposes of church and state, yet listed several opinions that the magistrates should punish. On his copy of the printed draft of the religious article, Madison prepared a change that pressed Locke's premises to logical conclusions from which Locke himself had shied. In place of Mason's 'all men should enjoy the fullest toleration,' Madison's amendment, which was introduced by Patrick Henry, said:

All men are equally entitled to the full and free exercise of [their religion] according to the dictates of conscience; and therefore that no man or class of men ought, on account of religion, to be invested with peculiar emoluments or privileges; nor subjected to any penalties or disabilities unless, under color of religion, any man disturb the peace, the happiness, or safety of society.

Someone asked if Henry really meant to disestablish the Anglican Church. He denied it, the amendment failed, and Madison wrote out a substitute, this time asking Edmund Pendleton to introduce it. The new proposal altered Mason's 'All men should enjoy the fullest toleration...unpunished and unrestrained by the magistrate' to 'All men are equally entitled to enjoy the free exercise of religion unless the preservation of equal liberty and the existence of the state are manifestly endangered.' As approved by the convention, Article 16 incorporated Madison's replacement of the reference to 'toleration' with recognition of an equal right and simply dropped the clause referring to the state's authority to keep the peace.

Momentous implications were contained in what might seem a minor change of wording. However broadly it extended, Madison perceived, 'toleration' was a privilege permitted by the state, and it implied a state authority to set a standard from which some degree of deviation, but perhaps no more, might be allowed. An equal right, not just to hold, but also to express and freely exercise the differing demands of conscience, placed religious freedom on entirely different grounds. Although the failure of his first amendment left the question of a state establishment unsettled, the logic of his second still demanded equal treatment for competing faiths and urged withdrawal of the state from the entirety of the distinctive sphere which Locke had carefully defined but not consistently defended. In its final phrasing, Article 16 erected an ideal that no society had ever written into law and spurred the commonwealth at once toward its achievement. Dissenters seized on it immediately to call for equal treatment. Among Virginia's legislative leaders, it identified the shy, young representative from Orange as one from whom extraordinary deeds might be expected.