Question 2: James Madison’s Intentions

In Fall 2011, the Undergraduate Fellows enrolled in the Law, Religion, and Liberty of Conscience Seminar interviewed experts about the role of conscience in American life, law and politics. Below are some of their responses to the students' second question:
James Madison's first draft of the First Amendment read: “The civil rights of none shall be abridged on account of religious belief or 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.” If this version of the Amendment had ultimately been approved, would the conscience rights of Americans be better protected today?

Robert Vischer:

Yes. This language would have given a freestanding right of conscience without needing to resort to freedom of religion.

Thomas Berg:

Perhaps. The language concerning conscience rights is more explicit than the “free exercise of religion” language that was ultimately adopted. The more general constitutional language is, the more freedom judges will feel to interpret it as they see fit, and perhaps override it. On the other hand, “free exercise” does have the advantage of strongly suggesting that the right extends beyond mere belief to include conduct.

Douglas Laycock:

If Madison’s draft had been accepted instead of rejected, that would have helped, especially on the battle to protect secular conscience. But it is way too optimistic to say the rights of conscience would be better protected. The Court could construe this language away just as it has construed the Free Exercise Clause away. It is very difficult to make a judge do something he doesn’t want to do.

Ira “Chip” Lupu:

I don't think so. I think Madison meant religious conscience only—I suspect the notion of secular moral conscience would not have resonated with those of his time and place—and I think he meant the right to believe and worship as you choose, not to act on your conscientious convictions contrary to public peace and order.

Thomas F. Farr:

The religious conscience rights of Americans—clearly what Madison had in mind—are under assault because of an impoverished understanding of free exercise and non-establishment. Those clauses of the First Amendment were intended to privilege the exercise of religion as an exercise of conscience. Perhaps the original wording would provide better protections today, although it is supremely ironic that the problems of conscience did not arise in any virulent form until very recently.

Marc O. DeGirolami:

From a structural point of view, the conscience clause seems to be connected to the ‘religious’ clauses, so perhaps the court would have been confronted more squarely with defining religion for constitutional purposes than it has actually been. It might well be that we would have had a more well-developed ‘conscience’ jurisprudence, but what the shape of it might have taken is difficult to tell.

Steven D. Smith:

I don't think Madison believed the final wording of the Amendment was much different in substance from his original wording, and I doubt that different wording would have made much difference in the country's later history.

Richard W. Garnett:

No matter what the text of the Amendment had been, it would have been necessary, and difficult, to decide when laws have to apply uniformly (even to those who strongly object, perhaps because of their judgments of ‘conscience’) and when conscientious objectors can and should be accommodated.

Ian C. Bartrum:

I think there would certainly be better textual and historical claims for the protection of conscience had Madison’s first draft survived. There are other modalities of constitutional argument, however, that I think would still cut against strong conscience protections, particularly prudential concerns about the need to enforce generally applicable laws across the board.

Mark R. Wicclair:

Insofar as Madison’s draft provides absolute (unqualified) protection of conscience rights, it might have provided stronger, but not necessarily better, protection of them. Depending on how “conscience rights” are specified, his draft may not allow the current standard of “reasonable accommodation” of conscience. To require more than a reasonable accommodation would fail to give sufficient weight to other important values and interests.

Caroline Mala Corbin:

Maybe. The language is arguably still vague enough that you could probably derive most of today’s doctrine based on it. Would the Equal Rights Amendment have accomplished anything that heightened scrutiny under the Equal Protection Clause had not? Maybe. But if it did, would it be because of the language of the amendment, or because its passage reflected a greater commitment to women’s equality in the first place? Then again, law influences people’s commitments, so we are back to the ambiguity of the language.

M. Cathleen Kaveny:

I think it would just shift the debate to what “the full and equal rights of conscience” means. On the level of thought, and worship, it works. Once it gets to the level of actions that affect third parties who don’t share the conscientious belief, we have the same problem we have today.

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