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Madison's Letter to Jefferson Regarding the Proposed Bill of Rights,

October 17, 1788

This letter to Jefferson expresses some of Madison's thoughts and concerns about the Bill of Rights. The original Constitution, while prohibiting religious tests for public office, did not contain a provision for religious liberty. Madison explains that no provision restraining the government in this regard was necessary because the structure of the Constitution itself denied any power to the government to regulate matters of religious freedom. In addition, Madison feared that to enumerate these liberties, thereby subjecting them to public definitions, would result in meanings that would be much more narrow than if these liberties were narrowed by an assumed power. Finally, Madison expresses his lack of confidence in enacting clauses. His optimism of the January 22, 1786 letter to Jefferson had been replaced by majoritarian reality. No doubt his experiences in Virginia following the enactment of the Bill for Religious Freedom compelled him to conclude that notwithstanding words prohibiting encroachment upon the liberties of conscience and religion, the majority of the people, wherein the real power of government lies, will trample upon and limit those rights. Yet, with time, Madison felt that the protections of a Bill of Rights would become solidified as fundamental maxims of free government.

Lewis Roca Rothgerber Religious Institutions Group

TO THOMAS JEFFERSON

New York, Ocr 17, 1788

My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. . . . I have not viewed it in an important light 1. because I conceive that in a certain degree, though not in the extent argued by Mr. Wilson, the rights in question are reserved by the manner in which the federal powers are granted. 2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests, opened a door for Jews Turks & infidels. 3. because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other. 4. because experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. Notwithstanding the explicit provision contained in that instrument for the rights of Conscience, it is well known that a religious establishment wd have taken place in that State, if the Legislative majority had found as they expected, a majority of the people in favor of the measure; and I am persuaded that if a majority of the people were now of one sect, the measure would still take place and on narrower ground than was then proposed, notwithstanding the additional obstacle which the law has since created. Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to; and is probably more strongly impressed on my mind by facts, and reflections suggested by them, than on yours which has contemplated abuses of power issuing from a very different quarter. Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince.

* * * *

What use then it may be asked can a bill of rights serve popular Governments? I answer the two following which, though less essential than in other Governments, sufficiently recommend the precaution: 1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion. 2. Altho. it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter source; and on such, a bill of rights will be a good ground for an appeal to the sense of the community.

Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 5 The Writings of James Madison, 1787-1790, at 269 (Gaillard Hunt ed., 1904).


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