Guest Essayist: Justin Butterfield, Religious Liberty Attorney at the Liberty Institute

James Madison’s “Memorial and Remonstrance against Religious Assessments” is an important document in establishing the necessity of religious liberty in America.

Madison grew up in a Virginia in which the Church of England was the established church. Not only were Virginia’s citizens taxed to support the Church of England, but ministers of other denominations were frequently jailed for preaching what they believed. In January of 1774, Madison wrote to his friend, William Bradford, regarding “[t]hat diabolical … principle of persecution.[1]” As Madison described the situation,

There are at this time in the adjacent County not less than 5 or 6 well meaning men in close Gaol for publishing their religious Sentiments which in the main are very orthodox. I have neither patience to hear talk or think of any thing relative to this matter, for I have squabbled and scolded abused and ridiculed so long about it, to so little purpose that I am without common patience. So I leave you to pity me and pray for Liberty of Conscience to revive among us.[2]

As one of Madison’s biographers put it, these jailed preachers–all Baptists–had done nothing more than “bring vital religion to the unchurched or to indifferent Anglicans.[3]

During the War for Independence, much of the religious persecution in the colonies subsided as members of different denominations united in a common cause. Following the end of the war, however, the debate about religious freedom resumed. In 1777, Thomas Jefferson drafted a “Bill for Establishing Religious Freedom in Virginia.” While the Virginia General Assembly was considering Jefferson’s bill, Patrick Henry introduced a bill in 1784 that would implement a statewide tax to fund preachers.

In 1785, James Madison anonymously published his “Memorial and Remonstrance against Religious Assessments” to oppose the tax to fund preachers and to support Jefferson’s “Bill for Establishing Religious Freedom in Virginia.” Madison’s “Memorial and Remonstrance,” as it is often called, makes fifteen arguments for why religious liberty is a necessary and fundamental right.

Madison begins by noting that man is subject to God first and is only secondly a member of “Civil Society.” Therefore, every man must be free to serve God according his own conscience and conviction without interference from the civil society. Since legislative bodies, such as the Virginia General Assembly, derive their power from the civil society, and since civil society cannot regulate a person’s religious beliefs, then any legislators that attempt to do so have exceeded their authority and are “tyrants.” Madison goes so far as to say that people who submit to laws regulating religion are slaves because they are being governed by rules that have no legitimacy.

Among Madison’s fifteen arguments, Madison also pointed out that if the government has the power to establish Christianity as the state religion, then it also has the power to establish sects or other religions as the state religion. Even if the government is not establishing some other religion right now, Madison said that it is the duty of citizens to jealously guard their freedoms from being wrongfully taken by the government. As Madison noted, usurped power can strengthen itself by exercise and “entangle the question in precedents.” That is, it is easier to stop the government from taking a power that the government should not possess when the government first tries to take the power instead of later, when the government’s possession of the power is established and the government first abuses its power.

Madison also argued that, historically, establishment of state churches has harmed the established church instead of helped it. Madison asserts that established churches have arrogant and indolent clergy, an ignorant laity, superstition, bigotry, and persecution. Madison develops this further to note that, if government is helped by religion, then since maintaining an established church hurts religion, it cannot be good for government either.

Madison also argued in the “Memorial and Remonstrance” that the inequality resulting from an established church is a “signal of persecution.” No longer would America be a beacon of freedom “to the persecuted and oppressed of every Nation and Religion,” but rather a warning “to seek some other haven.” Madison went so far as to state that establishing a church differs from the Inquisition “only in degree.”

Finally, Madison noted that the freedom of religion is as important as all other freedoms, and if the government can trample the freedom of religion, then there is nothing to protect the freedom of speech, or the right to trial by jury, or the right to vote for our representatives.

Madison was ultimately successful with his arguments. The year after Madison’s “Memorial and Remonstrance” was published, the Virginia General Assembly rejected the establishment of a state church and instead adopted Jefferson’s “Bill for Establishing Religious Freedom in Virginia.”

Read Memorial and Remonstrance against Religious Assessments by James Madison here:

Justin Butterfield is a religious liberty attorney at the Liberty Institute in Plano, Texas. Mr. Butterfield graduated from Harvard Law School in 2007. During his time at Harvard, Mr. Butterfield served as the student coordinator for the Veritas Forum, was a member of the Federalist Society, and was heavily involved with the Harvard Law School Christian Fellowship. He is also a Blackstone Fellow. A native Texan, Mr. Butterfield completed his undergraduate studies at the University of Texas at El Paso where he graduated summa cum laude with honors and University Banner Bearer with a bachelor’s degree in Electrical Engineering.

In addition to his practice in the area of religious liberty, Mr. Butterfield co-authored two scholarly articles: “The Light of Accountability: Why Partisan Elections Are the Best Method of Judicial Selection,” published in The Advocate, and “The Parsonage Exemption Deserves Broad Protection,” published in the Texas Review of Law & Politics. Mr. Butterfield has also co-written articles for the Washington Times and the Billy Graham Evangelistic Association’s Decision Magazine.

March 18, 2013 – Essay #21 


[1] Letter from James Madison to William Bradford. January 1774.

[2] Id.

[3] Ketcham, Ralph Louis. James Madison: A Biography. 1st ed. University of Virginia Press, 1990. 58.

4 replies
  1. Barb Zack
    Barb Zack says:

    What a succinct statement regarding the Freedom of Religion. In all the arguments regarding the placing of a Nativity scene at Christmas or a Cross at Easter, we forget, the Constitution and the Bill of Rights placed limits on the Federal Government, not the STates and local governments. Is the placing of a Nativity Scene really an establishment of a specific religion? What about the placement of prayer rugs in some establishments? Feeling free to worship as they chose is such a basic right that government should NOT interfere. As outlined above, the establishment of a government will lead to tyranny, just as freedom from religion will lead to tyranny. It’s a delicate balance. We must safeguard all of our rights and freedoms as the Federal government continues its trampling of our Constitution and the Bill of rights. Or perhaps people just don’t care anymore. I hope that is not the case!

  2. Ray Hartenstein
    Ray Hartenstein says:

    I have a question on the “free exercise thereof” as regards freedom to practice a religion without government interference. Specifically should this not have “in private” added to this phrase?? I’m referring to actions like the Muslim practice for instance where they feel obligated to stop traffic in order to kneel and pray at times! How would that limitation(?) set with our constitution?

  3. Ray Hartenstein
    Ray Hartenstein says:

    I have at times cautioned folks on their insistence on prayer in school, or public, for instance that they better be ready to turn the sound system over to the Muslim, Hindu, whatever for purpose of their prayer times!! Is this not reasonble?


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