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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1786 letter to Jefferson had been replaced by majoritarian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.
RJ&L
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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