PART III
It has been claimed in some publications that Madison served on the
committee in the House of Representatives of the First Congress, in 1789,
that was formed to consider the manner of electing Chaplains. Therefore
they claim that he voted for Chaplains and supported chaplains.
However, there is no information in the historical record that shows any of
the discussions of that committee or who voted which way on any votes that
might have been taken. What does exist are three items. (1) The historical
record from Congress that shows that Madison did vote yea on the bill for
compensation for a variety of members of the Congress, (2) excerpts from
Madison's Detached Memoranda (written after 1817) in which he says that
Chaplains are unconstitutional and gives his thinking why, and (3) a letter
written by James Madison on July 10, 1822 to written to Edward Livingston
in which he says, "I observe with particular pleasure the view you have
taken of the immunity of Religion from civil jurisdiction, in every case
where it does not trespass on private rights or the public peace. This has
always been a favorite principle with me; and it was not with my
approbation, that the deviation from it took place in Congs. when they
appointed Chaplains, to be paid from the Natl Treasury."
It has been claimed in some publications and by some that Madison
supported chaplains because he voted to pay them in that same Congress. If
the readers refer to the historical data above one will find what the
actual historical record shows.
They will find that James Madison did, in fact, vote yea in regards
to the bill AN ACT FOR ALLOWING COMPENSATION TO THE MEMBERS OF THE
SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES, AND TO THE
OFFICERS OF BOTH HOUSES.
It will also be noted above that Chaplains was not originally
included, that the pay was reduced from what was originally accepted to a
lesser amount and that chaplains was by no means an important portion of
that bill receiving any major attention.
Madison and his fellow members of the House voted to pass the bill.
It was almost mid September. They had been in session since the spring.
They wanted to get finished up and get back to their homes, etc.
One could say that if he felt so strongly about the issue of
Chaplains, he should have voted no. Perhaps so. However, the historical
record shows it was a close vote and he may very well have been unwilling
to risk the entire bill and requiring more time being spent before Congress
could be adjourned over that one issue when he was fully in agreement with
everything else in the bill. In short, Madison voted yea to the whole
bill, not specifically or especailly for chaplains. His vote cannot
honestly be read as a yea for chaplains per se.
Journal of the House of Representatives of the United States, 1789-1793
FRIDAY, SEPTEMBER 11, 1789
http://memory.loc.gov/cgi-bin/query/D?hlaw:14:./temp/~ammem_FOxE::
http://makeashorterlink.com/?Z15922078
A motion was made and seconded, that the House do now proceed to
re-consider the proceedings of yesterday, on the bill, entitled "An act for
allowing compensation to the Members of the Senate and House of
Representatives of the United States, and to the officers of both Houses,"
so far as relates to the adherence of the House to their disagreement to
the first amendment proposed by the Senate to said bill; which motion being
objected to as not in order,
Mr. Speaker declared the motion to be in order; from which decision
of the Chair, an appeal to the judgment of the House was made by two
members; and, after debate, the question being put, "Is the said motion in
order?"
It was resolved in the affirmative.
And then the question on the original motion being put, "that the
House do now proceed to re-consider the proceedings of yesterday, on the
bill, entitled 'An act for allowing compensation to the Members of the
Senate and House of Representatives of the United States, 'and to the
Officers of both Houses,' so far as relates to the adherence of the House
to their disagreement to the first amendment proposed by the Senate to the
said bill:"
* It was resolved in the affirmative,
* Ayes ... 29,
* Noes ... 25.
The ayes and noes being demanded by one-fifth of the members present,
Those who voted in the affirmative, are,
* Fisher Ames, * Abraham Baldwin, * Egbert Benson, * Elias
Boudinot, * John Brown, * Edanus Burke, * Lambert Cadwalader, *
Daniel Carroll, * George Clymer,
* Thomas Fitzsimons, * George Gale, * Elbridge Gerry, * Samuel
Griffin, * Thomas Hartley, * Benjamin Huntington, * John Lawrence,
* Richard Bland Lee, * Samuel Livermore, * James Madison, junior,
* Andrew Moore. * Peter Muhlenberg, * John Page, * Thomas Scott,
* Roger Sherman, * William Smith, of South Carolina, * Jonathan
Trumbull, * John Vining, * Jeremiah Wadsworth, and * Henry
Wynkoop.
Those who voted in the negative, are, * Theodorick Bland, * Isaac
Coles, * Benjamin Contee, * William Floyd, * Abiel Foster, *
Nicholas Gilman, * Benjamin Goodhue,
* Jonathan Grout, * John Hathorn, * Daniel Heister, * James
Jackson, * George Mathews, * Josiah Parker, * George Partridge,
* Jeremiah Van Rensselaer, * James Schureman, * Joshua Seney, *
Peter Silvester, * Thomas Sinnickson, * William Smith, of Maryland,
* Michael Jenifer Stone, * Thomas Sumpter, * George Thatcher, *
Thomas Tudor Tucker, and * Alexander White.
There was an amendment to the bill which required a new vote which passed
28 in favor, 26 agaisnt and it was sent to the Senate which agreed which
thus made the bill passed by Congress officially September 12, 1789
Others, in an effort to try and explain what they view as a
discrepancy, speculate he must have changed his mind as he got older. It
never seems to occur to them that there might have been no discrepancy at
all, that he opposed Chaplains in 1789, after 1817 and 1822 as well.
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"What is significant with respect to the date of its writing is that
Madison's "Detached Memoranda' interprets the Constitution and the Bill of
Rights and, unlike the Declaration of Independence, does not rest
exclusively on the laws of nature or nature's God, on Madison's own
"Memorial and Remonstrance, or on Jefferson's Virginia Statute for
Religious Freedom, although all are reported, confirmed, and defended. It
would seem, therefore that the "Detached Memoranda" would be the best
source for determining the intended meaning of the "religion" clauses of
the First Amendment (and the provision of article VI of the Constitution
forbidding religious test for public office) at least by the primary
draughtsman of both the Constitution and First Amendment.
The "Detached Memoranda" considers eight issues relating to religion
that have reached the Supreme Court in one way or another since the
Constitution was adopted: (1) ecclesiastical monopolies; (2) incorporation
of churches; (3) grants of public land to churches; (4) tax exemption of
religious entities; (5) the Deity in government documents; (6)
congressional chaplaincies; (7) military chaplaincies; and (8) religious
proclamations by the government."
SOURCE: "Madison's ‘Detached Memoranda": Then and Now." Leo Pfeffer.
The Virginia Statue for Religious Freedom, Its Evolution and Consequences
in American History, Edited by Merrill D. Peterson and Robert C. Vaughan,
Cambridge University Press (1988) pp 286, 87.
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THE DECISION
MARSH V CHAMBERS, 463 U. S. 783 (1983)
[Be sure and read the dissenitng opinions as
well]
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=463&invol=783
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COMMENTARY
.. . . In the Walz case, Burger was not content with noting that tax
exemption for churches was a common practice when the Constitution and the
First Amendment were adopted; he tested the practice by the purpose,
effect, and entanglement standard and found that it passed that test. In
Marsh v. Chambers (1983), Burger did not subject legislative chaplaincies
to the same test."
In that case, a rather courageous member of the Nebraska
legislature brought suit challenging the constitutionality of a
longstanding practice of starting each day the legislature met with a
prayer recited by a salaried chaplain. At the time the suit was brought,
the chaplain had occupied the office for sixteen years, and during most of
this period, his prayers were Christological. This had come to an end in
1980, as indicated by footnote 14 of the majority opinion: "[Chaplain]
Palmer characterizes his prayers as `non-sectarian,' Judeo Christian,' and
with `elements of the American civil religion.' App. 75 and 87. (Deposition
of Robert E. Palmer). Although some of his earlier prayers were often
explicitly Christian, Palmer removed all references to Christ after a 1980
complaint from a Jewish legislator.
In the Marsh case, the district court held, and it was this holding
that was appealed, that the state's appropriation of funds used to pay the
chaplain's salary was unconstitutional, but that the practice itself was
not. (In this respect, it was echoing Madison's position.) The court of
appeals (echoing Jefferson's) went further and ruled that the practice was
unconstitutional in its entirety and that it did not matter whether or not
the chaplain received salary for his services. The Supreme Court decided
that both lower courts were wrong and held that the practice itself was
valid and so, too, was the chaplain's receipt of monetary compensation for
his services. The Court, in an opinion by Burger, held immaterial the fact
that the chaplain had served for sixteen years; he noted that for the
twenty years between 1949 and 1969, one chaplain had served in the United
States Senate.
In reaching their decisions, both lower courts had relied on the
purpose, effect, and entanglement test, but, beyond mentioning this fact,
the Supreme Court paid no further attention to it. Burger relied
exclusively on history. Perhaps he did so because, as Brennan suggested in
his dissenting opinion, the Nebraska law could not escape invalidation
under any of the facets in the three-pronged test of constitutionality,
especially the one relating to Burger's own contribution in Walz v. Tax
Commission.
In his recitation of history, Burger could hardly pretend that the
"Detached Memoranda" never existed. He disposed of it in a short footnote."
To Brennan, the "Detached Memoranda" was more significant and relevant to
the issue before the Court in the Marsh case than Burger considered it to
be. In his dissenting opinion, he quoted, not as a footnote but in its
body, the two paragraphs quoted above, answering in the negative the
question whether the appointment of congressional chaplains is consistent
with the Constitution. Brennan also suggested that "Madison's later views
[in the "Detached Memoranda"] may not have represented so much a change of
mind as a change of role, from a member of Congress engaged in the
hurley-burley of legislative activity to the detached observer engaged in
unrepressed reflection. " The difficulty with this rationalization is that,
what Madison voted for in the First Congress cannot be easily reconciled
with what he had written five years earlier in the "Memorial and
Remonstrance."
(Internal citations and footnotes have been removed, supplied upon request)
SOURCE:"Madison's ‘Detached Memoranda': Then and Now." Leo Pfeffer, The
Virginia Statue for Religious Freedom, Its Evolution and Consequences in
American History, Edited by Merrill D. Peterson and Robert C. Vaughan,
Cambridge University Press (1988) pp. 298-99
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