James Madison's "Memorial and remonstrance" and the Supreme Court's use of it in church/state jurisprudence
This thesis assessed the Supreme Court’s use of James Madison’s “Memorial and Remonstrance Against Religious Assessments.” A WESTLAW search yielded twentythree cases stretching from 1878 to 1995 in which the Memorial was cited by the Court. First, each case was analyzed to see how the Memorial was interpreted, its impact in guiding the Court’s decision, and the depth of analysis of the document. Second, the Memorial itself was also analyzed to ascertain its meaning. Third, the Court’s interpretation and application of the document to the decisions were critically examined to assess its impact on church/state jurisprudence. The objectives of this study were: (1) to catalog the extent of the Supreme Court’s reliance on the Memorial in deciding religion cases, (2) to interpret the Memorial to determine its intent and meaning, and (3) to describe how the Court’s interpretation and use of it have impacted its church/state decisions. This thesis came to three main findings. One, the Memorial has been of central importance in the Court’s religion rulings, especially in Establishment Clause cases. Two, the document is not what the Court has claimed it to be. Rather than a coherent theory on the proper relationship between church and state, Madison composed a state paper designed to persuade a heterogeneous audience. Three, the Court has been tendentiously selective in the way it has used the Memorial. At the micro-level of deciding case by case, the Court, while arguing that the entire document is the encapsulation of Madison’s views, has been selective in which arguments of the Memorial it has actually relied upon. At the macro-level the Court has been selective in employing the Memorial primarily only in deciding Establishment Clause cases. This is tendentious because the reasoning of the Memorial also applies to Free Exercise Clause cases. Such selectivity has resulted in a problematically schizophrenic approach by the Supreme Court to the issue of religion and politics.