Download this Paper Open PDF in Browser

James Madison and Legislative Chaplains

78 Pages Posted: 23 Oct 2007 Last revised: 10 Mar 2008

Andy G. Olree

Faulkner University - Jones School of Law

Abstract

The U.S. Supreme Court has long interpreted the Establishment Clause of the First Amendment by reference to the attitudes and practices of the Framers, including James Madison. Among their practices, the congressional chaplaincy has garnered special attention and influence. In particular, in Marsh v. Chambers, 463 U.S. 783 (1983), the Court referred to the Framers' endorsement of that practice as it upheld a state legislative chaplaincy. Marsh has subsequently formed the core of the Court's precedential support for upholding certain other governmental activities endorsing a religious belief or practice, most recently in Van Orden v. Perry, 125 S. Ct. 2854 (2005) (plurality opinion).

Most judges and commentators who have examined Madison's attitude toward the legislative chaplaincy have concluded from certain of his actions that he, like the other Framers, probably supported the congressional chaplaincy as it was being instituted in the first House of Representatives, although he may have changed his mind later in life.

This Article canvasses the historical evidence about Madison's life and writings in an attempt to understand his attitude toward legislative chaplains. The Article concludes that Madison never wavered on the issue of legislative chaplains and always thought them inconsistent with religious liberty. This conclusion counsels reappraisal of the lines of Establishment Clause jurisprudence founded on the Framers' supposed uniform acceptance of the congressional chaplaincy and similar religiously imbued practices.

Keywords: James Madison, chaplains, Establishment Clause, religious liberty, First Amendment, church and state

Suggested Citation

Olree, Andy G., James Madison and Legislative Chaplains. Northwestern University Law Review, Vol. 102, No. 1, 2008. Available at SSRN: https://ssrn.com/abstract=1023981

Andy G. Olree (Contact Author)

Faulkner University - Jones School of Law ( email )

Montgomery, AL 36109
United States

Paper statistics

Downloads
68
Rank
284,227
Abstract Views
789