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Current Events with Quin Hillyer
Wednesday, 01 August 2012

by Quin Hillyer

    When a Colorado judge on Friday issued an injunction protecting at least one company from a new mandate to provide insurance coverage for sterilizations and abortion-inducing drugs (sometimes mislabeled the “contraception mandate”), he was doing no more than upholding the vision of James Madison, the “Father of the Constitution.”

    Let’s briefly recap what happened. (For a fuller version, read my piece at While faith-based institutions have one more year to comply with (and await court rulings on) the new requirement from the Department of Health and Human Services that all insurance plans provide free coverage for controversial drugs related to reproduction, ordinary secular businesses were required to be compliant as of this August 1. A small, family-owned, Colorado air-conditioning-supply business called Hercules Industries filed suit against the requirement, arguing that their religious beliefs, like those of faith-based institutions, would be violated.

    While awaiting full consideration of the case, federal District Judge John Kane issued the temporary injunction in favor of Hercules, ruling that the company was likely to win on the merits eventually – and that to enforce the requirement in the meantime risks doing “irreparable harm” to their religious freedom, which the Constitution’s First Amendment is designed to protect.

    The author of the First Amendment was the same man who was the most influential crafter of the entire Constitution, James Madison. The amendment represented the culmination of nearly 15 years of Madison’s work on the subject.

     “There is no principle in all of Madison's wide range of private opinions and long public career,” wrote Madison’s biographer Ralph Ketcham, “to which he held with greater vigor and tenacity than this one of religious liberty.” Joseph Loconte of the Heritage Foundation explained:

Madison's lifelong zeal for religious freedom began in May 1776 when state lawmakers wrote a new constitution for the newly independent Commonwealth of Virginia. The document contained a Declaration of Rights with a clause on religious liberty, penned by George Mason. The original clause declared that “all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience....”
Madison didn't like it. He objected to Mason's use of the word “toleration” because it implied that the exercise of faith was a gift from government, not an inalienable right. Madison's substitute—“all men are entitled to the full and free exercise” of religion--essentially won the day…. Over the next decade, Madison would be involved in various religious liberty battles in the Virginia legislature, from repealing penalties against dissenters to suspending taxpayer support for Anglican clergymen…. Madison made freedom of conscience--meaning belief or conviction about religious matters--the centerpiece of all civil liberties. He called religious belief “precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” By placing freedom of conscience prior to and superior to all other rights, Madison gave it the strongest political foundation possible.

    In a 1792 article, Madison contrasted the republican (small “r”) view of government and liberty with the anti-republican view – and came down firmly on the side of the former. The republican view, he wrote, was that “the people ought to be enlightened, to be awakened, to be united, that after establishing a government they should watch over it, as well as obey it.” Anti-republicans, on the other hand, believed that “When [citizens] have established government they should think of nothing but obedience, leaving the care of their liberties to their wiser rulers.”

    The latter view, of course, leads to tyranny.

    Against it, Madison wrote that “mysteries belong to religion, not to government; to the ways of the Almighty, not to the works of man.”

    Further, in private notes he wrote after leaving the presidency in 1817 (collected and published in 1946), Madison insisted that there should be a “great barrier against usurpations on the right of conscience.” He wrote that “every sect of Christian… will be safe” only as long as that barrier exists.

    Therefore: “Every provision … short of this principle, will be found to leave crevices at least thro' which bigotry may introduce persecution; a monster, that feeding & thriving on its own venom, gradually swells to a size and strength overwhelming all laws divine & human.”

    As Steven Waldman wrote in the Wall Street Journal in 2009, “Madison's emphasis was different [than that of protecting government from religion]. He believed that the main reason to have separation of church and state was to help religion. He came to this view in part because of an unusual but crucial alliance he built with evangelical Christians of his day…. Madison and his evangelical allies had a completely different concept. They wanted to promote religion. They just believed that the best way to promote religion was for government to leave it alone.”

    Applied to the current controversy, then, Madison would hold that where faith is involved, government should not mandate behavior. While Madison’s own views do not and should not have the force of law, they do give a pretty good indication of what the First Amendment was understood to mean. Modern Americans should pay heed.
Posted by: Quin Hillyer AT 08:22 am   |  Permalink   |  Email
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