As part of a series called Constitution Café, moderator Chris Phillips is asking some thought-provoking questions about foundational constitutional issues. This week: Was James Madison right to ask for a freedom of conscience clause in the Constitution?
Madison’s original proposal asserted that “the civil rights of none shall be abridged on account of religious belief or worship...nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed....”
Here’s Madison’s final draft version of the full amendment that he proposed on June 8, 1789: “That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: 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.”
His proposal was roundly voted down.
While our existing First Amendment does prohibit Congress from establishing a religion, affording broad protections for religious worship (or lack thereof), some scholars believe Madison’s proposed clause would have extended our rights from the realm of belief to the realm of conduct – giving us the freedom not only to believe what we want, but greater latitude to act on those beliefs.
What say you? Would our rights to conscience have been better protected if Madison had won the day? Or is it murky? How would you (or a Supreme Court justice) determine what “conscience rights” are in the first place?
Are you sympathetic to Madison’s proposal for an explicit freedom of conscience clause? Why or why not? If you do favor it, do you cotton to Madison’s proposal just as it is, or would you prefer different wording? What would your own proposed ‘freedom of conscience clause’ look like?
Just let us know in the comments area below: