¹ For an example of this sort of examination of Madison in the light of concepts and concerns current at the time of a scholar writing about him, see Beard's, Charles A. treatment of Madison in An Economic Interpretation of the Constitution of the United States (New York, 1936)Google Scholar.

² Letter of 1 January 1802, to a committee of the Danbury, Connecticut Baptist Association, Padover, Saul K., The Complete Jefferson (New York, 1943), pp. 518–19Google Scholar.

³ Brant, Irving, “Madison on Separation of Church and State,” William and Mary Quarterly, 3d ser., 8 (1951), 3CrossRefGoogle Scholar.

⁴ Reported in New York Times, 13 September 1960, p. 22 (emphasis added).

⁵ Sanders, Thomas G., Protestant Concepts of Church and State (New York, 1964), pp. 161–222Google Scholar.

⁶ Pfeffer, Leo, Church, State and Freedom (Boston, 1967)Google Scholar, n.p. The quotation is from Field, David Dudley, “American Progress,” in Jurisprudence (New York, 1893), p. 6 (emphasis added)Google Scholar.

⁷ Ibid., p. 728.

⁸ Morgan, Richard E., The Supreme Court and Religion (New York, 1972), p. 24Google Scholar.

⁹ See the opinions in Everson v. Board of Education, 330 U.S. 1 (1947).

¹⁰ Pfeffer, Church, State and Freedom. The quotation is from Black, Jeremiah S., Essays and Speeches (New York, 1885), p. 53Google Scholar.

¹¹ Fey, Harold E., “Problems of Church and State in the United States: A Protestant View,” in Oaks, Dallin H. (ed.) The Wall Between Church and State (Chicago, 1965), p. 34Google Scholar.

¹² American Humanist Association, “In Defense of Separation of Church and State,” in Blau, Joseph L. (ed.), Cornerstones of Religious Freedom in America (New York, 1964), p. 309. This, as I understand it, is the current position of the American Civil Liberties UnionGoogle Scholar.

¹³ The original idea for the divisions in the author's model may be found in Smith, Donald E., Religion and Political Development (Boston, 1970)Google Scholar.

¹⁴ See Jefferson, , “Notes on Virginia,” in Padover, Jefferson, note 2 supra, p. 304Google Scholar.

¹⁵ In its extreme form this type of separation denies to church organizations the right to legal existence, to form corporations, to hold property, to operate schools, businesses or charitable institutions, or to publish religious tracts. For a discussion of the development of one form of transvaluing separation, see Steeves, Paul D., “Amendment of Soviet Law Concerning Religious Groups,” Journal of Church and State, 19 (1977), 37CrossRefGoogle Scholar.

¹⁶ Zorach v. Clausen, 343 U.S. 306, 310 (1952).

¹⁷ For a more detailed development of this concept, see the author's “Religion and Equality in the First Amendment” (Ph.D. diss., University of Chicago, 1977)Google Scholar.

¹⁸ Hunt, Gaillard, ed., Writings of James Madison (New York, 1900), I: 18–21Google Scholar.

¹⁹ Meyers, Marvin, ed., Mind of the Founder: Sources of the Political Thought of James Madison (Indianapolis, Indiana, 1973), p. 9Google Scholar.

²⁰ Ibid.

²¹ Ibid., p. 10–11.

²² Ibid., p. 11.

²³ Ibid.

²⁴ Boyd, Julian P., ed., The Papers of Thomas Jefferson (Princeton, 1950), VI: 311Google Scholar.

²⁵ Weber, Paul J., “Building on Sand: Supreme Court Construction and Educational Tax Credits,” Creighton Law Review, 12 (Winter, 1979), 531Google Scholar; Gaffney, Edward McGlynn, “Political Divisiveness Along Religious Lines,” St. Louis University Law Journal, 24 (1980), 205Google Scholar.

²⁶ Boyd, Papers of Thomas Jefferson.

²⁷ Madison, James, Hamilton, Alexander and Jay, John, The Federalist Papers (New York: The New American Library, 1961), p. 84Google Scholar. See also, Morgan, Robert J., “Madison's Theory of Representation in the Tenth Federalist,” Journal of Politics, 36 (1974), 852CrossRefGoogle Scholar; and Bourke, Paul F., “The Pluralist Reading of James Madison's Tenth Federalist,” Perspectives in American History, 9 (1975), 271Google Scholar.

²⁸ Ibid., p. 324.

²⁹ Ibid., p. 78 (emphasis added).

³⁰ Annals of Congress, I: 450–452. The first three amendments Madison proposed are irrelevant to the present discussion.

³¹ Ibid., p. 757.

³² A further evidence for equal support of religion is found in the fact that during the time of debate Congress reenacted, with Madison's approval, the Northwest Ordinance which contained a declaration that “Religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Statutes, 1789, C, VIIIGoogle Scholar, 7 August 1789. For more recent collaboration, see Berns, Walter, “Religion and the Founding Principle,” in Horowitz, Robert H., ed., The Moral Foundations ofthe American Republic (Charlottesville, Virginia, 1977), p. 162Google Scholar.

³³ Annals, p. 729. See also Malkin, Michael J., Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, D. C., 1978), p. 6 ffGoogle Scholar.

³⁴ Ibid, p. 730.

³⁵ Ibid.

³⁶ Ibid.

³⁷ Ibid.

³⁸ Professor Berns interprets this as a fear that the amendment would “forbid state laws requiring contributions in support of ministers of religion and places of worship” (“Religion and the Founding Principle,” p. 161). I disagree. The “bylaws” refer to the laws of individual congregations and not to state laws. What Huntington feared was that contracts, simply because they were made with a religious body, might not be enforceable in a civil court. That is, he feared an extreme form of transvaluing separation.

³⁹ Annals, p. 731.

⁴⁰ Ibid.

⁴¹ Annals, p. 756.

⁴² Ibid.

⁴³ Ibid.

⁴⁴ Ibid., p. 766.

⁴⁵ Senate Journal (1789), p. 129.

⁴⁶ It is informative to note that on the same day the Senate concurred in the amendments a significant exchange took place in the House. Doudinot of New Jersey announced that “he could not think of letting the session pass over without offering an opportunity to all the citizens of the United States of joining… in returning to Almighty God their sincere thanks for the many blessings he had poured down upon them.” He then moved that both Houses request the president to recommend a day of public thanksgiving and prayer, to be observed by “acknowledging… the many signal favors of Almighty God.” Tucker of South Carolina suggested wryly that the people might not be quite that grateful for the new constitution, at least not until they found it promoted their safety and happiness. But, he added, “whether this be so or not, it is a business with which Congress has nothing to do; it is a religious matter, and as such proscribed to us.” Sherman, who had just returned from the conference committee, justified the practice as laudable, and the motion passed the House (Annals, p. 914f).

⁴⁷ See the argument of Brant, “Madison on Separation of Church and State,” p. 16; in light of the evidence there seems little ground for the late Professor Cor-win's statement that Madison “was not the author of the amendment in the form in which it was proposed to the state legislatures for ratification” (Corwin, , “Supreme Court as National School Board,” Law and Contemporary Problems, 14, [Winter 1949], 13)CrossRefGoogle Scholar.

⁴⁸ Annals, p. 1108; Madison, to Jefferson, , 14 02 1790, Letters and Other Writings of James Madison (Philadelphia, 1865), I: 507 (emphasis added)Google Scholar.

⁴⁹ Annals, XXII: 983 (emphasis added).

⁵⁰ Ibid.

⁵¹ Ibid., p. 1098.

⁵² Cf. Pfeffer, , Church, State and Freedom, p. 157Google Scholar.

⁵³ Cited in Blau, , Cornerstones of Religious Freedom in America, p. 76 (emphasis added)Google Scholar.

⁵⁴ Fleet, Elizabeth, “Madison's Detached Memoranda,” William and Mary Quarterly, 3d ser., 3 (1946), 551–62CrossRefGoogle Scholar. Also, Hunt, Gaillard, ed., “Aspects of Monopoly One Hundred Years Ago,” Harpers Magazine, 107 (1914), 489Google Scholar.

⁵⁵ Hunt, , “Aspects of Monopoly,” p. 491Google Scholar.

⁵⁶ Ibid., p. 493.

⁵⁷ Fleet, , “Madison's Detached Memoranda,” p. 555Google Scholar.

⁵⁸ For a further elaboration of this point, see Weber, Paul J. and Olsen, Janet R., “Religious Property Tax Exemptions in Kentucky,” Kentucky Law Journal, 66, (1978), 651Google Scholar.

⁵⁹ Hunt, , “Aspects of Monopoly,” p. 493Google Scholar.

⁶⁰ For a recent discussion of the constitutionality of the military chaplaincy, see Weber, Paul J., “The First Amendment and the Military Chaplaincy: The Process Reform,” Journal of Church and Slate, 22 (1980), 459; also, the whole issue of Chaplaincy, 4, numbers 1 and 2 (1981)CrossRefGoogle Scholar.

⁶¹ Ibid., p. 494.

⁶² Ibid., p. 495.

⁶³ Smith, Elwyn A., Religious Liberty in the United States (Philadelphia, 1972), p. 54Google Scholar.

⁶⁴ See Rhys, Isaac, “Religion and Authority: Problems of the Anglican Establishment in Virginia in the Era of the Great Awakening and the Parson's Case,” William and Maty Quarterly, 3d ser., 30 (1973), 3–36Google Scholar.

⁶⁵ Madison's phrase in the Memorialputs it nicely, “While we assert for ourselves a freedom to embrace, to profess, and to observe, the religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us” (Meyers, , Mind of the Founder, p. 11)Google Scholar.

⁶⁶ Ibid., p. 13 (emphasis added).

⁶⁷ Ibid, (emphasis added).

⁶⁸ Smith, Elwyn, Religious Liberty, p. 60Google Scholar.

⁶⁹ Meyers, , Mind of the Founder, p. 9Google Scholar.

⁷⁰ Ibid, p. 432.