Willis J. Smith and Dr. Robert Westover, History

In conjunction with my current research pertaining to my Honors Thesis, I was awarded an ORCA scholarship which provided the funds necessary to travel to Washington D.C. and do extensive research in the Library of Congress. The following is a brief overview of that topic which is currently being addressed by my Honors Thesis project.

The Constitution of the United States, regarded by many experts as the greatest political document of our modern era, found its creative roots in the mind of James Madison, who himself has been called the “Father of Constitution”. During the summer of 1887, Madison and many of our newly founded country’s great political minds came together in an effort to restructure the ineffective Articles of Confederation. Successfully achieving their purpose, Madison and the rest of our country’s framers returned home only to realize that some of those rights held fundamental during the revolution were unprotected under our country’s new constitution. Understanding that possible rights outlined in the United States Declaration of Independence were not recognized in the U.S. Constitution, Madison returned to Washington in 1791 as a congressional representative for the state of Virginia with the intentions of amending the newly drafted Constitution. His heart was set upon drafting some bills that would protect those rights he and many of his fellow Americans felt were not only divinely given, but necessary to establishing a effective democratic society.

As the first session of the United States newly established Congress began, James Madison was appointed to draft an undermined number of bills addressing those rights he and the other delegates felt were left unprotected by the Constitution. Receiving 189 suggested amendments from his fellow delegates, Madison condensed these ideas into ten fundamental principles outlined in what would eventually become The Bill of Rights of the United States Constitution. Certain words and terms used in drafting the first of these bills introduced by Madison quickly become focus to debate among the numerous delegates representing the newly found country. Particularly criticized by many of the northern delegates was Madison’s use of conscience as a protected right. After considerable debate by the delegates and to the chagrin of Madison, the use of conscience was omitted and the term religion was inserted. After this change and a few more minor changes, the Bill of Rights was passed and has since become essentially the most debated and highly scrutinized facets of the United States Constitution. Leading the way in this regard is the First Amendment of the United States Constitution, which is continually being evaluated and interpreted by the courts in an effort to pinpoint exactly what rights of Americans are protected under this umbrella amendment.

Preliminary research for my thesis project has indicated that Madison viewed conscience as the most sacred of all property afforded to mankind, one given as a divine gift from its creator and to be protected by the institution and direction of government. Madison’s study under Dr. Donald Robertson at the College of New Jersey exposed him to John Locke’s expanded definition of property as not just a man’s possessions but his being, his ability to produce, and most importantly his conscience – this being “a property of peculiar value in [man’s] religious opinions, and in the profession and free use of his faculties, and free choice of the objects on which to employ them”.(1) In essence, Madison believed that conscience was an important yet often unrecognized division of man’s property and could be violated, confiscated, and destroyed just as temporal property of man could be violated.

Madison’s view of conscience as a protected right inspired him to include both the term and the concept in his initial draft of the first amendment, which read as follows: The civil rights of none shall be abridged on account of religious belief of worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. James Madison understood that there was a distinct difference between religion as an organized theological group of men and conscience as man’s divinely given right to act on the directions and promptings he feels and as long as they do not interfere with the same rights of another.

As is often the case when trying to pass a bill (or amendment) through congress, Madison’s initial draft of the 1st amendment underwent numerous revisions in both the House of Representatives and the Senate and was eventually changed to read as the following: Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof. A detailed analysis of the wording in Madison’s initial draft and that draft accepted and established by the Congress, especially concerning the word “conscience” — which as a term and concept is absent from the final draft of the first amendment, provides evidence that “conscience” as a division of man’s God-given property rights was not recognized as such by the representatives of our then newly founded country. As a result, the most scrutinized of all amendments to the United States Constitution remains void of any protective powers concerning man’s right to conscience as a recognized from of property.

Madison’s education and life experiences taught him that often the greatest tragedies lie when a man is robbed of his property, of which he felt conscience – the ability and right of man to follow the internal directions and promptings of his inner spirit – was the most important. How difficult it must have been for him to watch as his initial draft of the 1st amendment was slowly changed to exclude that right he felt should be most protected under the umbrella of the United States Constitution.

My work on this project has been both enlightening and inspiring, providing me with an opportunity to learn more about James Madison, his rhetorical work, and his understanding of the semantics behind his push to protect conscience as a type of property. One can only wonder how our country might be different, for better or for worse, if his initial draft has been passed or if conscience as a protect right had been included in the final draft of the 1st amendment of our United States Constitution.

References

• Swanson, Mary-Elaine. The Education of James Madison. San Francisco, The Hoffman Center, 1992.