James Madison and Tax-Supported Chaplains
In response to a comment from Novak about Madison's opposition to tax-supported chaplains, Meacham made the following statement:
Quickly on the Madison point: Yes, Madison was against the chaplains, but remember those last notes found after he died. He said it was a trifle; it was something that he couldn't fight. Strictly put, was it a violation of the establishment clause? Yes, having military chaplains paid by the government was, in fact, a violation, but it wasn't worth the political fight.
There are two problems with Meacham's statement. The first is the misconception that the section of Madison's Detached Memoranda regarding religion and the government was nothing more than "notes." The second, and much more important, is that Meacham completely misses the point Madison was making when he referred to the establishment clause violation of tax-supported chaplains as a "trifle."
Before getting into my explanation of the problems with Meacham's statement, I want to make it very clear that, while the term Liars for Jesus appears in the title of my book, and I do refer to certain authors as Liars for Jesus, I certainly do not put Meacham in this category. In fact, I agree with Meacham far more often than I disagree with him, and am a actually a bit surprised when I see a statement from him as flawed as the one above.
The popular notion that the opinions on religion and government in Madison's Detached Memoranda were merely a bunch of unfinished notes is a myth created in by James M. O'Neill in 1949 to hide the fact that, while the other various memoranda contained in the manuscript found in 1946 were, in fact, just drafts and notes, the essay Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments was actually singled out and prepared for publication by Madison before his death. What few people know is that this entire essay was published for the first time in the March 1914 issue of Harper's Magazine, under the title "Aspects of Monopoly One Hundred Years Ago," forty-two years before the discovery of the original Detached Memoranda manuscript. By the time the manuscript was found in 1946, this earlier publication had fallen into obscurity, and the Liars for Jesus of the day wanted to keep it that way. In 1947, the Detached Memoranda, which had appeared in an article by Elizabeth Fleet in the October 1946 issue of the William and Mary Quarterly was cited twice in the footnotes of Everson v. Board of Education. Clearly this document was going to be a problem for the anti-separationists. Measures needed to be taken to discredit it as much as possible, and James M. O'Neill, in his 1949 book Religion and Education Under the Constitution, came up with two ways to do this, both of which are still used today. One was to make it appear that Madison's opinions in the Detached Memoranda contradicted his earlier actions. The other, which has led to the misconception of Madison's opinions being merely "notes," was to assert that that nothing in the Detached Memoranda could be taken as a definitive opinion from Madison because this document was only a rough draft and, therefore, if a final version had been written, Madison might have changed his mind. The problem with this second assertion is, of course, the fact that a final version of the relevant essay was written.
The interesting history of the Detached Memoranda, and how a copy of one of its essays came to be in the hands of Harper Brothers, was explained in part by Gaillard Hunt, who wrote the introduction to it for Harper's Magazine. Hunt, of course, had no way of knowing that this essay was copied from a larger document that wouldn't be found until 1946, or that other sections of it were used and quoted from by William Cabell Rives when he wrote his biography of Madison in the 1860s. This part of the document's history was filled in by Elizabeth Fleet in her 1946 article.
The following was Gaillard Hunt's introduction to the 1914 publication of Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments in Harper's Magazine:
James Madison retired from the Presidency in 1817 and died in 1836, nineteen years later. This was the growing period of American nationality, and it was during these years that an enduring attachment was formed for the frame of government under which the growth took place. So, as Madison had been the master-builder of the government, he enjoyed extraordinary prestige, and whatever he said on public questions was regarded as oracular. He felt the weight of the responsibility and expressed his views carefully, realizing that he was addressing posterity. During the closing years of his life he prepared certain papers for posthumous publication, the chief one being the journal he had kept of the proceedings of the Federal Convention of 1787. This journal, with certain letters which he had grouped with it, was published by the United States Government in 1840 in three volumes under the title of The Madison Papers. Before this mode of publication was decided upon, however, the papers were offered by Mrs. Madison, who inherited them under the terms of her husband's will, to several publishers, and among others to Messrs. Harper & Brothers; but a satisfactory pecuniary arrangement could not be reached by private publication, and the papers were sold to the government.
What was found in 1946, of course, was the document containing Madison's draft of this essay in his own handwriting. Elizabeth Fleet, with the newfound knowledge that Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments, as well as parts of Rives's biography of Madison, came from this collection, told the rest of the document's story in her article. After mentioning the 1914 appearance of the essay in Harper's Magazine, and explaining that this was taken from a copy of this individual essay that was prepared by Madison for publication, Fleet traced the history of Madison's original Detached Memoranda manuscript.
Since leaving Madison's hands, the manuscript has had a curious history. Evidently it was one of the documents sold to the government in the second and final sale of her husband's papers by Mrs. Madison in 1848. By act of Congress in 1856 an appropriation was made for "printing and publishing" them and William Cabell Rives, a devoted young friend and admirer of Madison and one of Virginia's most distinguished antebellum statesmen was appointed to prepare the papers for publication. As was customary at a time when the government lacked the facilities for research now provided by the Library of Congress and the National Archives, the manuscripts were loaned to Rives and taken by him to Castle Hill, his Albemarle County estate. There in tranquil retirement from politics and diplomacy that Virginia gentleman pursued the studies of the Father of the Constitution&emdash;a labor of love that resulted in 1865 in the publication of four additional volumes of papers and eventually the three-volume biography of Madison. The manuscript titled by Madison "Detached Memoranda" was not included in the former, though quoted and used extensively for reference in the latter. Rives may have considered the memoranda too fragmentary and imperfect to be a part of the collected works of the great man. After the publication of these volumes the memoranda were lost sight of for a time. Over a period of many years Rives had accumulated his own collection of documents bearing on the formative period of our history, and he had secured for his immediate task loans of material from others. In the course of handling these hundreds of manuscripts it is not surprising that one was misplaced. The Madison Papers went back to Washington while Madison's "Detached Memoranda" remained with the Rives' family papers, where it was found in the spring of 1946, its yellowed pages folded and tied securely with a shoe string.(2)
J.M. O'Neill first created the unfinished notes myth by misquoting Elizabeth Fleet, making it appear as if she described the entire document as an unfinished, rough draft that Madison intended to correct later.
According to O'Neill:
"Madison's Detached Memoranda contains some interesting passages concerning the First Amendment. However, the weight to be accorded to these passages is a bit hard to determine. The Memoranda was apparently written some time between 1817 and 1832, and is said by Miss Fleet to have been 'hastily jotted down ...to be corrected, expanded, and completed later.' The tentative nature of this document is well-indicated by the reference in it to the chaplains in Congress. Here Madison takes the position that the Congressional chaplains system violates the Constitution. He does this with no indication that it represents a complete change of mind on his part. He took the opposite position in 1789 when he served as a member of the joint committee to plan the chaplain system...."
Daniel Dreisbach used the same phrases, taken out of context in the same way, in his book Real Threat and Mere Shadow:
"The fragmentary and tentative nature of the document suggests that it was 'hastily jotted down' subsequent to his retirement from the presidency, and it was intended 'to be corrected, expanded, and completed later."
What Elizabeth Fleet really said was that Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments, as it appeared in both Harper's Magazine and in her article, was Madison's final, corrected version. The corrections to this particular essay were made by Madison on the original manuscript, and the copy sold to Harper Brothers contained these corrections. Fleet's point was exactly the opposite of what Dreisbach's and O'Neill's misquotes imply. She concluded from the fact that Madison had finished correcting this one essay, and had made some corrections to other parts of the manuscript, that he had also intended to prepare the rest of the memoranda for publication. The following is the passage from which Dreisbach and O'Neill pluck the words for their misquotes.
All of the memoranda are written in the firm, flowing style of the vigorous Madison while some of the many corrections made in rounded, more studied letters and with different inks suggest revision by the cramped, rheumatic fingers of the aging statesman. Added to these is the fact that a part, copied by amanuensis, was sold to Harper's Magazine for publication. The conclusion to be drawn then, is that all the memoranda were hastily jotted down within a few years after Madison's retirement from the presidency to be corrected, expanded, and completed later that posterity might have a truer picture of that early and great period of American history through the eye of one who shaped so much of it.(3)
Clearly, Madison's opinions on tax-supported chaplains and the other church/state separation issues addressed in the Detached Memoranda were not just "notes."
Some religious right American history authors take things a step further, attempting to shed a little doubt on the document's authenticity.
According to Daniel Dreisbach:
"The 'Detached Memoranda' is a problematic document thought to be in the hand of James Madison, discovered in 1946 in the family papers of Madison's biographer, William Cabell Rives."
The Detached Memoranda are not "thought to be" in the hand of James Madison. They are in the hand of James Madison. There has never been any question about this.
According to David Barton, on his WallBuilders website:
"Significantly, the 'Detached Memoranda' was 'discovered' in 1946 in the papers of Madison biographer William Cabell Rives and was first published more than a century after Madison's death by Elizabeth Fleet in the October 1946 William & Mary Quarterly."
There is nothing at all significant about the fact that this document was discovered in 1946, and, of course, 1946 was not the first time that the part regarding religion and government was published. The 1914 publication of Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments in Harper's Magazine was mentioned by Elizabeth Fleet in her 1946 William and Mary Quarterly article - the same article that Barton refers to and cites as his source - yet, Barton pretends to be unaware of this, claiming that the 1946 publication was the first.
Now, on to the other problem with Jon Meacham's statement - his explanation of Madison's reason for referring to the First Amendment violation of tax-supported chaplains as a "trifle." Meacham completely misses Madison's point here. This was not just a matter of Madison thinking that opposing the funding of chaplains "wasn't worth the political fight." Madison's point was that the poor judgement exercised by the first Congress in initially approving tax-supported chaplains should be considered a trifle because a trifle could not be considered a legitimate precedent and be used to justify further violations of the First Amendment.
The following is the passage that appeared immediately after the section on tax-supported chaplains in the Detached Memoranda:
Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [the law does not concern itself with trifles]: or to class it "cum maculis quas aut incuria fudit, aut humana parum cavit natura [faults proceeding either from negligence or from the imperfection of our nature]."(4)
Madison had good reason to be concerned about tax-supported chaplains being misconstrued into a legitimate precedent. The existence of these chaplains had already become a favorite argument among the religious right of his day. The arguments used by today's religious right to justify Constitutional violations like Ten Commandments monuments in courthouses, "under God" in the Pledge of Allegiance, and school prayer are not new. The very same arguments first came into use during Madison's lifetime in the battles over issues such as Sunday mail delivery. What Madison probably found most alarming, however, was that things like chaplains in Congress were being claimed as precedents not only by religious organizations, but by members of Congress. One of the first instances of this occurred in 1811, when Madison vetoed An act incorporating the Protestant Episcopal Church in the town of Alexandria, in the District of Columbia.
Madison's reasons for this veto were accepted by the majority of the House. Many of the representatives of 1811 had just never given much thought to the First Amendment's establishment clause before this, and hadn't realized that the bill violated it. One even made a comment often heard today - that he had always thought the amendment meant only that a national religion couldn't be established. The majority of the House, after reading Madison's veto message, decided that he understood the First Amendment better than they did, and wanted to drop the bill. Some, however, wanted to take another vote and try to override the veto. This minority included Laban Wheaton, a representative from Massachusetts, who presented an argument as melodramatic as any heard from today's religious right, warning that the failure of this bill would lead to religion being banned altogether in the entire District of Columbia. One thing Wheaton used to justify the bill was, of course, the appointment of tax-supported chaplains by the first Congress.
Mr. W. said he did not consider the bill any infringement of the Constitution. If it was, both branches of the Legislature, since the commencement of the government, had been guilty of such infringement. It could not be said, indeed, that they had been guilty of doing much about religion; but they had at every session appointed Chaplains, to be of different denominations, to interchange weekly between the Houses. Now, if a bill for regulating the funds of a religious society could be an infringement of the Constitution, the two Houses had so far infringed it by electing, paying or contracting with their Chaplains. For so far it established two different denominations of religion. Mr. W. deemed this question of very great consequence. Were the people of this District never to have any religion? Was it to be entirely excluded from these ten miles square?(5)
Laban Wheaton was apparently unable to convince the majority of the House that religion was in danger, or that the existence of chaplains justified further violations of the First Amendment. When another vote was taken on the bill, it failed 74-29.
As the following few examples show, what Madison called a "step beyond the landmarks of power" that should not have "the effect of a legitimate precedent" has also appeared in the opinions of a number of Supreme Court justices.
According to Justice Reed, in his dissenting opinion, McCollum v. Board of Education, 1948:
"The practices of the federal government offer many examples of this kind of 'aid' by the state to religion. The Congress of the United States has a chaplain for each House who daily invokes divine blessings and guidance for the proceedings. The armed forces have commissioned chaplains from early days."
According to Justice Burger, delivering the opinion of the court, Lynch v. Donnelly, 1984:
"In the very week that Congress approved the Establishment Clause as part of the Bill of Rights for submission to the states, it enacted legislation providing for paid Chaplains for the House and Senate." and "It is clear that neither the 17 draftsmen of the Constitution who were Members of the First Congress, nor the Congress of 1789, saw any establishment problem in the employment of congressional Chaplains to offer daily prayers in the Congress, a practice that has continued for nearly two centuries. It would be difficult to identify a more striking example of the accommodation of religious belief intended by the Framers."
Justice Burger, in his dissenting opinion, Wallace v. Jaffree, 1985:
"Some who trouble to read the opinions in these cases will find it ironic - perhaps even bizarre - that on the very day we heard arguments in the cases, the Court's session opened with an invocation for Divine protection. Across the park a few hundred yards away, the House of Representatives and the Senate regularly open each session with a prayer. These legislative prayers are not just one minute in duration, but are extended, thoughtful invocations and prayers for Divine guidance. They are given, as they have been since 1789, by clergy appointed as official chaplains and paid from the Treasury of the United States."
Justice Scalia, in his dissenting opinion, Lee v. Weisman, 1992:
"As we detailed in Marsh, congressional sessions have opened with a chaplain's prayer ever since the First Congress."
So much for Madison's hope that this "fault proceeding either from negligence or from the imperfection of our nature" would not have "the effect of a legitimate precedent."
1. Gaillard Hunt, "Aspects of Monopoly One Hundred Years Ago," Harper's Magazine, Vol. 128, No. 766, March 1914, 489-490.
2. Elizabeth Fleet, "Madison's 'Detached Memoranda,'" William and Mary Quarterly, 3rd Series, Vol. 3, No. 4, October 1946, 535-536.
3. ibid, 534-535.
4. ibid, 559.
5. The Debates and Proceedings of the Congress of the United States of America, vol. 22, 11th Cong., 3rd Sess., (Washington D.C.: Gales & Seaton, 1853), 984.
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