What would James Madison, Father of the Constitution and primary drafter of the First Amendment, have to say about today’s government mandates? Since our country’s inception, Madison was keenly aware of the controversy and debate surrounding the Constitution and its proper application. While the Constitution became the official framework of our government on June 21, 1788, a question persistently spurred vigorous examination: whether the Constitution adequately protected individual liberties, the foremost being religious liberty, from the infringement of governmental interference.
Madison assured his contemporaries that “[t]here is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation.”[1]
Madison ultimately came to the realization that a Bill of Rights amending the Constitution would not harm it, and, when addressing the First Congress on June 8, 1789, stated that
[it would] “be a desirable thing to extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled.”[2]
Madison then proposed to Congress his beginning draft of the First Amendment to specifically protect religious liberty and the right of conscience.[3]
Madison also lived through the yellow fever epidemic of 1793 as the disease ravaged the City of Philadelphia.[4] President George Washington famously penned a letter to Madison asking for his opinion on whether the President had the executive power to convene both houses of Congress outside of the epicenter of the epidemic to protect members of Congress from contracting the disease.[5] Madison warned Washington against a mandate of such executive overreach.[6]
Unlike the manner in which King George III decided the law and imposed it by decree, executive leaders in the United States of America were not to impose unilateral rules at whim. Today the location of where Congress meets may seem trivial, compared to the government mandates and constitutional violations brought before the courts, but Madison’s response exhibits the sentiment of liberty upon which our nation was founded: the government may not interfere where the inalienable rights of individuals begin.
[1] The Papers of James Madison, vol. 11, 7 March 1788–1 March 1789, ed. Robert A. Rutland and Charles F. Hobson. Charlottesville: University Press of Virginia, 1977, pp. 129–133, available at (https://founders.archives.gov/documents/Madison/01-11-02-0077, last visited Feb. 11, 2022).
[2] 1 Annals of Cong. 431-32 (1789)
[3] Id. at 434.
[4] Interestingly, during the yellow fever epidemic of 1793, Philadelphians unsuccessfully tried to thwart transmission of the disease by covering “their faces with handkerchiefs dipped in vinegar.” (https://www.history.com/news/yellow-fever-outbreak-philadelphia, last visited February 11, 2022). Madison might be concerned that, despite an additional two hundred and twenty-nine years of scientific advancement, Defendants have decided to mandate a couple layers of cloth on the face as necessary and “effective” disease prevention, especially considering engineering and administrative controls that successfully eliminate and mitigate the Covid-19 virus. (Exhibit 2, Suppl. Decl. of Stephen R. Petty at ¶¶ 12, 13, 32, 40).
[5] George Washington’s Letter to James Madison, October 14, 1793, available at https://www.loc.gov/resource/mgw2.024/?sp=78&st=text, last visited Feb. 11, 2022).
[6] James Madison’s Letter to George Washington, October 24, 1793, available at (https://www.loc.gov/resource/mjm.05_0480_0486/, last visited Feb. 11, 2022); Thomas Jefferson’s Letter to George Washington, October 17, 1793, available at (https://founders.archives.gov/documents/Washington/05-14-02-0159, last visited Feb. 11, 2022).
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