Whose Freedom of Conscience?

Having recently finished reading James Madison’s WRITINGS with the high value he puts on the conscience of the individual as versus the demands of the majority, I found Stanley Fish’s opinion piece Conscience vs. Conscience   from the 12 April 2009 NEW YORK TIMES to be both an interesting topic and important discussion.

Fish wrote about the so-called “conscience clause,” the Provider Refusal Rule, which “allows health care providers to refuse to participate in procedures they find objectionable for moral or religious reasons.”  I had previously written about this in my blog Freedom of Conscience and Health Care Workers and voiced support for allowing health care workers the opportunity to exercise their own consciences and refuse to do some procedures for moral or religious reasons.

Fish raises another level of concern which is worth considering: the freedom of the individual’s conscience as versus the right of a democratic society to decide that some procedures are health rights for all.

Citing the English philosopher Thomas Hobbes, Fish writes:

Hobbes’s larger point — the point he is always making — is that if one gets to prefer one’s own internal judgments to the judgments of authorized external bodies (legislatures, courts, professional associations), the result will be the undermining of public order and the substitution of personal whim for general decorums: “. . . because the Law is the public Conscience . . . in such diversity as there is of private Consciences, which are but private opinions, the Commonwealth must needs be distracted, and no man dare to obey the Sovereign Power farther than it shall seem good in his own eyes.”

Fish argues that the values of the Enlightenment which have served religious diverse cultures well is that individuals may believe what they want but when operating in the public domain the rule of law trumps personal beliefs.  He says this is a cornerstone of multicultural democracies.  It is also the complete compartmentalization of religion which is a hallmark of secularism. 

Referring to a U.S. court case from 1878 which has been upheld more recently by the courts, Fish writes that the courts have not viewed favorably actions taken by individuals which follow one’s religion but which are opposed to “generally applicable laws” because “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

In other words the court has defended the right of society to promulgate laws the promote the social order at the expense of individual beliefs.   The court thus defends “society” as a legitimate legal entity which also has “rights.”  Thus the courts do not accept the rights of the individual to be unlimited and inviolably sacrosanct.   There are legal and social limits to what any one individual can do even in the name of their conscience or religion.

The issue in regard to health care workers being allowed to exercise their own consciences and to refuse to participate in medical procedures which are legal could open a Pandora’s Box as these workers declare their conscientious objection to blood transfusions, organ donations, vasectomies, vaccinations, reproductive technologies, biracial or “illegitimate” babies, STD patients, AIDs patients or any other number of medical issues which have moral implications to some.

Will patients walk into health care facilities not knowing whether they will be given legal and available treatments because one or more workers have moral or conscientious objections to doing the medical procedures?  How will health facilities or the police for that matter monitor or enforce such rules? 

Though the Hippocratic Oath to do no harm is not always given nor always required, do health care professionals have any obligation to perform legal medical procedures which a patient requests or needs?  Whose conscience rules when there is a clash of consciences and cultures?  These are indeed the difficult questions an individualistic and diverse society has to wrestle with.

America has a conscientious objector right when it comes to military service which allows citizens to refuse to engage in actions that are morally reprehensible to them (see also my blog Soldiers of Conscience).  This has also been part of Christian tradition, but I do not think the Quran allows for conscientious objection to war.   So we do have precedence for allowing some to opt out of certain professions or “procedures” based on their own consciences.  How this can work in the complicated world of health care is perhaps not as clear.

The Private Support of Public Religion

Having finally finished the 900+ pages of James Madison’s WRITINGS  I can say that no matter what the debate today says about “the separation of church and state,” Madison believed it to be a separation ordained by God.  His bottom line regarding church and state is “that religion & Govt. will both exist in greater purity, the less they are mixed together.”

His reasoning certainly is based in certain 18^th Century Enlightenment ideals, especially that of the freedom of conscience which he believes all mergers between state and religion will eventually be tempted to violate in forced service to the state-church.   He also advocated “the equality of all religious sects in the eye of the Constitution” (emphasis in the original).   He does not believe the state can treat all religions equally if it has any dalliance with some.   He considered the idea the there must be “some sort of alliance or coalition between Govt. & Religion” an unfortunate error in thinking that is hard to shake but which cannot be supported by experience.  Speaking of his own state of Virginia, Madison extols the end result of a constitution which separates church and state:

“…Religion prevails with more zeal, and a more exemplary priesthood than it ever did when established and patronised by Public authority.  We are teaching the world the great truth that Govts. Do better without Kings and Nobles than with them.  The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Govt.”

What would Madison have said about our current church and state debates?  Of course it is hard to know as many things are different today than in his day almost 200 years ago.   He opposed the appointment of any kind of chaplains paid from the national treasury.   Madison argues that for those in government who feel the need for prayer and spiritual guidance, it would be far “better proof to their Constituents of their pious feeling if the members contributed for the purpose, a pittance from their own pockets” rather than by taking money from the public purse.   Paying for religion from your own pocket is a far better witness to the public about how serious you are about your faith than is how much money you take from the general coffers to support your religious causes.  That seems to be Madison’s most basic sense of religion in the public sphere  – when believers pay to support their religions and their religions’ causes from their own pockets, that is the best witness to all how seriously they take their faith and how genuinely they believe in what they do.   He believed the greatest respect politicians can show God and religion is to not mix government and religion.  He felt leaders simply could not resist the temptation to use God and religion to support their own causes, rather than to use religion to improve their own personal morality.  He felt political leaders invoked God not to bring honor to the deity but to bolster their own personal agendas.

It is pretty hard imagining Madison to be in favor of prayer in the public schools (he would say training in prayer is something churches and parents should do).  He clearly did not think it proper for the executive branch to declare days of prayer, fasting or thanksgiving to God.    He did consider himself to be a Christian.  He maintained pretty clear lines of demarcation between the secular and the religious, between church and state, between the freedom of conscience and the rule of kings or the majority.   He would have been uncomfortable with how often American presidents invoke God, that God would be mentioned on U.S. currency or at every and any government related activity.   He was not an anarchist or a nihilist and probably would have been amazed at just how far ideas of the separation of church and state are taken in the modern world.  But he did believe that the two great accomplishments of the American Revolution were 1) government by the people and without kings, and 2) the separation of church and state which he felt ultimately benefitted both.   He was not opposed to leaders publicly expressing their faith, but when it came to government activities, he did believe these individuals alone should bear all the costs associated with religion.  He thought that to be the great witness to God and faith each public servant could make.

Madison: Banks, Political Parties and Interpreting the Constitution

I have continued to slowly peruse the WRITINGS of James Madison.  I am now reading what he wrote in his retirement (1817-1836).  Three thoughts I found interesting.

1) Considering the current economic crisis and the role banks played in it, it is interesting to read Madison’s wisdom regarding banks:

“Banks, in their accommodations to prudent borrowers … have acquired so many friends, that if it were desirable to abolish them entirely & everywhere, the attempt would be hopeless.  But the more impossible or unadvisable it may be to abolish them, the more necessary it is to guard agst the evils resulting from their number, and agst the abuses incident to the ordinary constitution of them.  These abuses may be diminished by a variety of particular regulations. …  The greatest, certainly the most offensive abuses of Banks proceed from the opportunities and interests of the Directors.”

Madison’s proposal for correcting the abuses of bank directors is regulating the banks and their directors.   Madison reports that one “incautious” bank director told him that though he didn’t receive a salary from the bank, because he had access to bank money and business he easily made “$5000″ per year  through taking advantage of his position as a director (in terms of 2009  that would be about $220,000 or a little over 4 times the average household income).    Simply by manipulating the bank and taking advantage of their position, the directors could realize sizeable windfalls with which to line their pockets.    Nothing new under the sun in the banking industry.

2) Regarding political parties and the free press, Madison felt political parties are a natural outcome of what we would label “free democracies.” He recognizes that party spirit has its own “noxious” and divisive risks including “dangerous schisms” and “violence, especially in the ascendant party.” He felt there were built into the constitutional system some safe guards which would prevent the nation from becoming undone – namely a strict adherence to the terms of the constitution. He was not convinced about a suggestion made by Henry Lee that the press itself could have a “remedial power” “over the spirit of party.” Political parties are inevitable, but he was skeptical that a fair and balanced press could correct the excesses of partisanship.

3) He offers an interesting view on the interpretation of the Constitution – that interpretation which he felt so key to keeping the nation together. He ultimately argues that what is essential is to know not the literal words of the Constitution (for words change meaning over time) but to know the intent of the framers of the Constitution. While that might have seemed reasonable while he and other fathers of the country were still alive, he may have underestimated how hard it is 200 years later to discern the intentions of the members of the Constitutional Congress. He wrote:

“…I entirely concur with the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation.  In that sense alone it is the legitimate Constitution.  And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its power.  If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject.  What a metamorphosis would be produced in the code of the law if all its ancient phraseology were to be taken in its modern sense.  And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption.”   

His interpretative principle, his hermeneutic, for the Constitution is that we must know what the framers intended, rather than relying on interpreting the literal words.  That hermeneutic is itself problematic  - just consider Jefferson’s “We hold these truths to be self-evident, that all men are created equal…” from the Declaration of Independence.  Jefferson did not consider women, slaves or native Americans to be “men” so his truth did not apply to them.  We hold to his literal words, but have changed/expanded/qualified their meaning.  Madison’s hermeneutic has its limits.  Like for Madison we apply the Constitution to “all,” it’s only that our “all” is much more inclusive than his.

Madison: In Favor of the Separtion of Church & State

It has been some little while since I wrote about my readings in the WRITINGS of American Founding Father and President, James Madison.    I began reading him because some historians think him to be the most influential founding father in defining the relationship between government and religion in America.  There are many who engage in an argument as to whether the founding fathers thought of the United States as a Christian nation or whether they advocated a total separation of church and state.  Madison embraced both ideas.  He did consider himself a Christian and considered Christianity to be the superior form of religion.  He also thought it best for Christians to live in a country where the state has declared itself neutral regarding any religion as then the membership is completely there by free choice and not be coercion.

Madison wrote in 1819 that in his opinion the evidence he could see based upon the American effort to create “the total separation of the Church from the State” was that more people were attending church than ever, the morality of the clergy had improved and devotion to God had increased.  Not only did Christianity not perish by not being supported by the government, but in Madison’s opinion it was much stronger for it.  The clergy were doing just fine, and the state had suffered no loss but benefitted as well from this separation. 

Madison turns a phrase now and again to emphasize his belief in the separation between religion and government and warns states against “giving to Caesar what belongs to God, or joining together what God has put asunder.”    Thus he took what Jesus said in Matthew 19:6 regarding the indissolubility of marriage and reversing the saying made the separation of Church and state to have been declared by God.   In another instance of turning a phrase and rejecting any sense of the divine right of Kings, Madison proclaims the “divine right of conscience.” 

Madison opposed putting the name of Jesus Christ into any constitutional document as that would profane His holy name by making it a legislative discussion.  Besides he points out, Jesus himself declared His kingdom is not of this world; therefore Madison wanted no one to confuse the two.

Madison was likewise against the appointment of Chaplains for the congress and senate as well as in the military.   His stated fear is always that the religious majority will impose their practices on the minority.  Madison notes that Roman Catholics, which in his time represented a tiny minority in America, should not be forced against the stated practices of the Roman Church to participate in the religious prayers and practices of the predominant religious groups in America.    Church members should be free to practice their conscience and creed and not have to do, say or pray what the majority religions are demanding of their members.   Religious truth is not established by the numbers of its adherents.  The individual’s right to follow his own conscience is more important than the will of the majority.  In the end he believed military chaplains always serve the temporal interests of the powers that be and of the chaplains themselves rather than the spiritual interest of the flock.  He felt that requiring soldiers to participate in religion was the best way to kill their interest in religion.

He also opposed religious proclamations (declaring thanksgiving or fasts) from the office of the president.  He notes George Washington did declare thanksgiving and fasts and generically referred to God.  John Adams actually embraced Christian prayer in his role as president, while both Thomas Jefferson and himself had refused to make religious declarations as president.  While today Americans are accustomed to hearing “one nation under God,”  Madison was opposed to “The idea also of a union of all to form one nation under one Govt in acts of devotion to the God of all…” 

Madison remained convinced that one result of the Fall of humankind was that the merging of religion and government always led to abuses of power and the trampling on the conscience of individuals.  He felt that religion’s temptation was to rely on government for its support rather than on the membership to actively support and live the religion.  He felt the temptation for Government was to claim divine support for its temporal plans and thus again to crush the conscience of individuals.

Madison on Peace, Conscience, Industry, and National Debt

I began reading earlier this year the collected WRITINGS of  James Madison.  My original interest in him was because some historians think he was the most influential of the Founding Fathers in establishing the relationship between church and state in our country.  Madison wrote copiously on a wide variety of topics, but as I’ve discovered, his comments on religion are few and far between.  Nevertheless, I continue to enjoy reading him, and will offer a few of his thoughts of which I took note.   In 1792, Madison addressed the issue of universal peace, which he thought was a philosopher’s dream but worth hoping for since war is folly.   Madison thought the temptation for a nation to go to war could be curtailed if war could only be declared by the will of the people – not by their government,  and if all the costs of the war were carried by the generation declaring the war – no national debt could be incurred and no taxes raised on future generations to pay for the debt.

“… war should not only be declared by the authority of the people, whose toils and treasures are to support its burdens, instead of the government which is to reap its fruits: but that each generation should be made to bear the burden of its own wars, instead of carrying them on, at the expense of other generations.”

Madison usually connects religion to the rights of personal conscience – people should be free to act accoring to their own consciences, not according to the dictates of a monarch or a majority.   His desire to protect personal liberty is both rooted in and the justification for individualism.  He, however, also had a very profound sense of the individual being rooted in society.  It is hard to know what he would have made of modern absolute individualism and notions that society has no rights above the individual’s. 

“Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses.  This being the end (i.e., purpose – my note) of government, that alone is a just government, which impartially secures to every man, whatever is his own.  …  Conscience is the most sacred of all property…”

Writing in 1792 at the pre-dawn of England’s Industrial Revolution, Madison took note of how fashion could have a negative effect on the lives of thousands.  The buckle and button manufacturers in Birmingham, England and environs put out of work 20,000 employees, who were thereby made destitute, because fashion had changed and now people were using shoestrings and slippers and no longer using as many buttons and buckles.   The numbers left unemployed give us a sense that that buckle manufacturing was labor intensive work in the day before workers were replaced by machines.  Madison notes that while fashion itself is capricious and therefore an evil, what is worse is that a great many people (the working poor) are dependent for their employment on manufacturing items which another class of people (the wealthy) are not dependent on for their existence.  Madison writes that America is somewhat spared of this dependency on manufacturing unnecessary but fashionable items because it is mostly agrarian in nature.  Madison sees an ever greater danger when one nation becomes dependent for the sale of its manufactured goods on another nation.  He certainly would have been dismayed at 21^st Century global economics, free trade, the automotive industry, and America’s trade deficit due to its addiction to the newest electronic gadgetry.   

Madison was a tireless defender of small government, few taxes, and no public debt.  To him, this was the basis of republicanism and the best way to prevent monarchical government from arising.  Trust the people to govern themselves, not the government to defend their liberties.  He wrote that

“the real FRIENDS to the Union are those,  …  Who are friends to the limited and republican system of government  …. Who considering a public debt as injurious to the interests of the people, and baneful to the virtue of the government, are enemies to every contrivance for unnecessarily increasing its amount, or protracting its duration, or extending its influence.“

Madison: Insights and Ideals

I continue to peruse the collected WRITINGS of  James Madison appreciating his insights and idealism.  He proposes the branches of government as a means of containing and controlling the power of government by prohibiting concentration of all power in any one small group of leaders and thus thwarting power abuse.  Madison is clear that he recognizes that humans are fallen, sinful creatures.

“It may be a reflection on human nature, that such devices should be necessary to control the abuses of government.  But what is government itself but the greatest of all reflections on human nature?  If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.  In framing a government which is to be administered by men over men, the great difficult lies in this:  You must first enable the government to control the governed; and in the next place, oblige it to control itself.  A dependency on the people is not doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Regular  and frequent elections are the means by which those in government are made dependent on the people – in order to stay in power, the governing must always go back to get a mandate from the electorate.  He feels this also will make those governing more sympathetic with the governed.  For Madison the end of government – meaning its goal not is abolition – is justice for all.

“Justice is the end of government.  It is the end of civil society.  It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit.  In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature where the weaker individual is not secured against the violence of the stronger. “

In this last sentence Madison is drawing an analogy from animals in the wild where no matter how peaceable one animal may be it is always under the threat of violence from the stronger.   Madison is no social Darwinist – favoring the survival of the fittest.  He sees the goodness of government as extending protection to all – neither the powerful nor the weak should feel threatened  or  in need of using violence to protect their own interests when good government fairly treats everyone.  Government thus is a check on the violence found in our fallen world and because of our sinful and selfish ways.

For Madison the republican form of democracy he upholds requires that the people themselves must be wise and virtuous, even if the people they elect are not.  He certainly does not believe wise rulers will be elected if the voters themselves are not virtuous!

“To suppose that any form of government will secure liberty or happiness without any virtue in the people is a chimerical idea.  If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men.  So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.”

In this last saying Madison shows himself to be a true son of the Enlightenment.  Despite understanding the foibles and sins of fallen humanity, Madison trusts  that civilization can educate its members to be intelligent, wise and virtuous.  Evil or fallen human nature for the Enlightenment thinkers can always be overcome by education.  His idyllic world envisions people who have been trained in virtue and thus would readily want to overcome their passions, temptations and selfishness.   Thus we are left to rely on voters to choose virtuously.

Madison favored limiting government but also in limiting the constitution – he did not want the constitution to spell out every detail of government power.  Instead, he wrote:

“…the powers granted by the proposed constitution, are the gift of the people, and may be resumed by them when perverted to their oppression, and every power not granted thereby, remains with the people, and at their will. … that every thing not granted is reserved.”

Government thus derives its power from the governed.  The U.S. government thus only has whatever power is specifically delegated to it by the constitution.  Thus in an argument about what government can do -  that which is permitted or only that which is not forbidden – Madison holds to the former:  Government can only do that which is clearly delegated to it by the constitution.  It can claim no other power.

Interestingly, his idealism also leads him to conclude:

“There can be no harm in declaring, that standing armies in time of peace, are dangerous to liberty, and ought to be avoided, as far as it may be consistent with the protection of the community.”

He will go on to acknowledge that the security of the nation from external threat will dictate a need for a standing army, but because he understands fallen human nature he recognizes a standing army is always a temptation for the governing to grab power over the governed.

Madison: The Merits of Meritocracy

As I continue perusing the WRITINGS of  James Madison I get a few civic lessons:

“The aim of every political constitution, is or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous, whilst they continue to hold their public trust. …  The means relied on in this form of government for preventing their degeneracy, are numerous and various.  The most effectual one is such a limitation of the term of appointments, as will maintain a proper responsibility to the people.”

Madison’s criterion for what an election should do is to find men (sic) who are both wise and virtuous to lead the country.   In some ways I think our goals today are similar, except we have this total hand’s off policy toward a person’s “private life” (what they do in their bedroom is their business) and we often place “virtue” in the sphere of one’s private life.   We lack a clear sense of public virtue.   On the other hand, we have a total disdain for hypocrisy – if you present yourself as being virtuous, you will be scrutinized completely and people will be eager to expose your hypocrisy.   Not that the public can agree on what constitutes virtue, or what virtues they want their politicians to have, but a hypocrite is viewed today as worse than someone who is not virtuous to begin with.

Madison does favor “limits of term” but by this means limiting the number of years a person is in office before they have to appear before the voters again for election (not the number of times a person can be re-elected).  He believes short terms of office are the best way to weed out “degeneracy” in elected officials through accountability to voters.

“Who are to be the electors of the federal representatives?  Not the rich more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune.  The electors are to be the great body of the people of the United States.”

Here I think Madison argues for including as many citizens as is possible in the electorate.  He doesn’t want any group of people to be excluded.  Elsewhere he argues that this is one way to insure that no group rises to tyranny over others.   The more diverse the voting population, the harder it will be for any one group to control the population.  This protects the minority from abuse by the majority.

“Who are to be the objects of popular choice?  Every citizen whose merit may recommend him to the esteem and confidence of his country.  No qualification of wealth, of birth, of religious faith, or of civil profession, is permitted to fetter the judgment or disappoint the inclination of the people.”

Madison really does believe in a meritocracy – he believes that those who distinguish themselves in virtue and leadership will rise to the attention of their fellow citizens.  He has implicit trust that people will recognize such virtue and wisdom which will serve to keep out of office nefarious types of individuals.  For Madison, the opposite of meritocracy, namely an entitlement system (where people claim power by virtue of birth, name, rank, or wealth) is the real enemy of and threat to good government and liberty.  He believes the system has sufficient checks and balances to prevent nefarious people from getting elected because voters will recognize those who are virtuous and wise and would reject those who have nothing to offer but personal ambition, self vauntingness, a sense of entitlement, or power hungriness.   He seems to think people would see right through and not be deceived by the emptiness of looks, charm, charisma, rhetoric, narcissism or showmanship. 

Maybe our values have changed so much that we cannot discern the difference between a person having charm and charisma and one having wisdom and virtue.   Perhaps that is the impact of Hollywood on our society.  The end result is that Americans have grown increasingly jaded toward the government’s ability to do anything right.  The current issue of the WILSON QUARTERLY (Winter 2009) has an entire section (“Must Government Be Incompetent?”) exploring the growing distrust Americans have shown toward their government over the past four decades. In the mid-1960’s 70% of Americans said they trusted their government – that has eroded to 17% today who express the same trust.  As William Galston notes in his article in the WQ, “Public policies cannot succeed in democracies without sustainable public support.”  Voters, so heavily influenced by the media, have to be trained in how to distinguish between appearance and substance in candidates and their promises.  Additionally voters need to regain a sense of what government can and should be doing rather than listening to the ever expanding (empty) promises of politicians.  Wisdom and virtue would normally help someone realize their own limits and their hubris, while those who have nothing to offer but charm, charisma and rhetoric will ever expand their promises which are so seductive and addictive.  Perhaps the current economic meltdown will restore some realism to voters – there really are some limits in life which crimp our style.  We resent that reality and much prefer a sense of freedom which is boundless and limitless.  Maybe that is why for the moment the Internet rather than space exploration attracts our imagination.  It is also why politicians who offer limitless solutions are preferred over those who offer the pain of realism and limits.  It also explains why politicians avoid embracing decisions that set limits, which in turn leads to ever greater voter mistrust of government.

James Madison – History Lessons

I began reading  the collected WRITINGS of  James Madison because I wanted to see what insight I could gain into his thinking about the relationship between government and religion.   (see my blog Keeping Church and State Separate).  It has been a good history lesson in other ways as well (see my The Rulling Class as Minority).  A few other things which I have learned (if I learned these things at a younger age I had forgotten them):

• 1) The young United States consisted of 8 Northern and 5 Southern states. While a lot of the discussion in forming the constitution was about large states versus smaller states, Madison perceived the split was more a North-South debate. Interesting to me – though the Southern states did not consider slaves to be deserving any rights, they did want slaves to count as part of their population for purposes of representation in congress. They wanted to use the slaves to bolster their voting power in the nation’s government. They were willing to use the slaves in every way possible and to build their power on the back of slaves. They wanted their slaves counted as people to increase their own voting power but gave no vote to the slaves nor any representation in congress. Today’s inauguration of Barack Obama shows how far we have come as a nation!
• 2) The U.S. really was originally thought of as a confederation of independent states rather than as one nation. The governmental reality was the state, whether the states could agree on a confederated power sharing was the debate. The U.S. was not the United State (one government, one nation) but truly the United States (a confederation of independent states).   [I do remember reading somewhere that originally the phrase "THESE United States" was the common way to refer to America and only much later in history do we see the phrase "THE United States" come into common use as a national identity emerged.]  The concept of “federal” at least in Madison was used to describe the relationship of the central (he calls it the “general”) government to the individual states. “National” was used to describe the central government’s relationship to individual citizens. Thus he does not use “national” and “federal” interchangeably. The individual states were quite reluctant to cede power to the general/central government. People’s loyalty was to their state not to the Federal Government. This in every sense of the word was America’s original “tribalism.”   It is probably true to say that Alaska and Hawaii joined a nation – a country with an organic unity – while originally states joined a confederation.
• 3) Madison is very concerned about the right of the minority. As far as I can see he always uses the word minority in the singular, and does not refer to minorities as we might.

The Ruling Class as Minority

I began reading James Madison because I wanted to see what insight I could gain into his thinking about the relationship between government and religion.   (see my blog Keeping Church and State Separate).  One consistent idea which Madison expresses is the notion that the rights of any minority must be defended – for Madison, this is the basis of freedom.   It also helps explain why he so vehemently wanted to keep church and state separate – so that no injustice be imposed upon the minority. 

In his speech to the Federal Convention on June 26, 1787 as listed in his collected WRITINGS, there is a very  ingenious argument that he puts forth in defense of the minority.  He foresees tremendous growth in the population of the United States, but also sees this bringing about a much more heterogeneous population (in contrast to Europe which had its extremes of wealth and poverty, Madison describes Americans more in terms of a homogeneous middle class who share in the nation’s wealth).  But he can foresee that the growth which will come will bring to America a more noticable gap between classes in  society in which not everyone will share so equally in the wealth.  He puts it this way:

“An increase of population will of necessity increase the proportion of those who will labour under all the hardships of life, & secretly sigh for a more equal distribution of its blessings.  These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former.”

He is euphemistically calling the working poor as “those who labour under all the hardships of life” and who can only sigh for the blessings of American society.  And he almost clandestinely refers to the rich as “those who are placed above the feelings of indigence.”   He asks, how will this “danger” of the poor outnumbering the rich be dealt with by the future government?

Very cleverly by again arguing for the defense of the minority – when the rich are in the minority, they must be protected from any injustices that the majority working poor might impose on them.   He sees the solution for this in the creation of the Senate, which unlike the House of Representatives will not be based on proportional representation of the entire population; the senate will better represent the interest of those who are “above the feelings of indigence.”    He proposed senators be elected for 9 year terms because he felt they would be a stabilizing force in the country – helping to keep the gentry in power – while the House of Representatives would better represent the changing face of America and its powers would be limited. 

I must admit I’ve never thought of the upper class as a minority in need of protection from the majority working class.  I think I’ve only heard minority rights being applied to powerless groups. Nor do I ever remember reading in history that part of the thinking that went into the bi-cameral government was to form a branch of government which would be able to protect the interests of the wealthy or those groups already in power.  I don’t read Madison as being cynical, but he was speaking to that very group of empowered, educated landowners who might have shared his worry that the very system of democratic government they were setting up might soon put themselves in the minority.  He was working to make sure the specific minority to which he and his fellow convention delegates belonged had some protections built into the ”democratic” form of government they were creating.

As is well known, statistics can be made to say anything, and the wealth of our senators and congressmen is made public within “ranges” rather than in exact numbers, but  according to Forbes Magazine in the U.S. Senate:  ”about half of the current 100 members are also millionaires and the average net worth is $8.9 million, according to an analysis by the Center for Responsive Politics in Washington. By contrast, less than 1% of the U.S. population has a net worth of $1 million or more.”   Reuters news reports:  “The median net worth of senators was estimated at $1.7 million and House of Representatives members at $675,000, said the Center for Responsive Politics, a Washington watchdog group that monitors the influence of money on government.”  The prescient Madison was part prophet and part profit.

Keeping Church and State Separate

I have read some historians who think that of the founding fathers of our nation, James Madison was probably the most influential in terms of forming the ideas of the relationship between religion and the state which have shaped our country.  I decided to read his own writings to see what I can learn about how he conceived the role of religion in America and the relationship he envisioned between the government and religion.  I’ve begun reading his collected WRITINGS, a massive 950 page volume, and intend to read him throughout this year.  His writings consist of many letters, so they readily lend themselves to being read a few pages each day – I don’t need to read them as a continuous story.  For a man who lived in a time in which letters all had to be hand written, he was amazingly verbose and one wonders if he had time to do anything but write. 

So far I’ve only read about 40 pages (letters he wrote between November 1772 and June 1785, just before he really began voluminous letter writing).   There are a few quotes which I found interesting from his early writings.  Madison described “the rights of conscience” as “one of the Characteristics of a free people.”  This is a key idea to why he advocates for a separation of religion and state (he doesn’t use the phrase, but certainly advocates the idea; it will be Jefferson I think who writes about the separation of church and state) – he doesn’t want people to be forced by government to do things which are against their consciences.  This to Madison is essential for people to be free. 

In 1776 Madison already wrote what will become the basis for thinking found in the Bill of Rights. 

“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 are equally entitled to enjoy the free exercise of religion, according to the dictates of conscience, unpunished and unconstrained by the magistrate, Unless the preservation of equal liberty and the existence of the State are manifestly endangered; And it is the mutual duty of all to practice Christian forbearance, love and charity towards each other.”

Madison did believe that “Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe.”  So all civil men “owe” reverence to God.  He clearly saw Christianity as the religion best fitting his ideals of a nation.  However he opposed laws which would have made Christianity the official religion in the Americas because he felt all people had to freely choose to believe, or not.  “Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us.”  The only limit he put upon the freedom of religion was if the religion endangered the state or the practice of liberty it should not be tolerated.  One might say he did not think that freedom was absolute – it should not allow the destruction of the state or of human liberty.   In another sense he seems to value the state over any one religion.

Madison in general has a negative view of organized (clerically dominated) religion.    He writes that oppressive governments have often found religious hierarchy willing to suppress freedom and to support the established government.  But he argues a just government does not need the support of clergy to give legitimacy to itself; a just government protects the religious liberty of every citizen who in turn supports the government without needing a clergy to tell them to do so.   Thus he defend the separation of religion and government and cites the example of early Christian history in which the Roman government in opposing Christianity failed to protect the rights of its citizens to have freedom of religion – but despite this Christianity prevailed.   So not only does a just government not need religion to bolster its legitimacy, but true religion does not need government support to succeed.

 Madison writes, “Torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion.”  It is an interesting thought – it is not religious disagreements which he blames for warfare, but the decision of the state to stop religious disagreements which have been so bloody.  Again we can see the seeds in his early writings of why he favors a separation of religion and government and why he believes in limited government.

He keeps church and state separated because they have different goals, agendas and objectives.   To some extent he sees the purpose of the state to protect the freedom of the individual, and religion is what helps the individual to aspire to and to attain his or her human potential.  Both government and religion thus serve the individual, but when the two merge to realize the agenda of either, the individual’s freedoms are threatened.