8 All Men Are Equally Entitled

MADISON PLOWED INTO THE BOOKS HE HAD ORDERED FROM ENGLAND on liberty and political theory. He combed the texts for insights into how government could protect—rather than destroy—freedom.¹ In July 1775, he asked his Princeton friend Stanhope Smith, traveling north, to find him two more pamphlets: Josiah Tucker’s “An Apology for the Church of England as by Law Established” and Philip Turneux’s “An Essay on Toleration.”² He burrowed deeper into his study at Montpelier.

Everything was escalating around him. In November, Lord Dunmore announced martial law in Virginia, seized Norfolk and Princess Anne Counties, solicited Virginia’s slaves to enlist in the British army, and established a new oath of allegiance. Congress then declared that Dunmore was “tearing up the foundations of civil authority” and ordered three companies of Pennsylvania troops to Virginia.³ On New Year’s Day, Dunmore retaliated by burning Virginia’s largest city, Norfolk.

With the strong support of Patrick Henry, another convention was called to meet in Williamsburg in May 1776 to formally declare independence from Great Britain and to draft a new constitution for Virginia.

Meanwhile, Madison’s father helped to restore his son to a new kind of service. In April 1776, the property-holding men of Orange voted for James Madison Jr. to serve as one of their two delegates to the Virginia Convention. On April 25, Thomas Barbour, the sheriff of Orange County, formally certified Madison. He did not intend to waste the opportunity.

YOUNG MADISON EXCITEDLY TRAVELED TO WILLIAMSBURG. UPON ARRIVING, he again saw Patrick Henry, wearing his homespun persona—buckskin, yarn stockings, unpowdered wig.⁴ On May 6, 1776, the delegates took their seats.

The committee’s first task was to draft a Declaration of Rights. The initial draft, written by the prosperous, self-educated planter George Mason, stated, “all men should enjoy the fullest toleration in the exercise of religion, &c.” Government remained in the superior position of reviewing applications from an individual citizen, as a king received his supplicants on their bended knees.

This was Madison’s moment—the culmination of his two years of study on religion, conscience, and morals at Montpelier. He stood to introduce a new version of the declaration. In his trembling voice, nervously seesawing back and forth, he read aloud a change. All men, he said, should instead be “equally entitled to the full and free exercise” of religion, “according to the dictates of conscience.”

George Mason’s draft:

Madison’s draft:

That religion, or the duty we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence: and therefore, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate unless, under color of religion, any man disturb the peace, happiness, or safety or society.

That religion, or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it, according to the dictates of conscience, and, therefore, that no man or class of men ought, on account of religion, to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities unless, under color of religion, the preservation of equal liberty and the existence of the state be manifestly endangered.

The gravity of Madison’s seemingly small alteration dawned on the other men. In Mason’s draft, conscience had merely impelled an individual to plead with his government for toleration. But Madison’s extraordinary new idea recognized an individual’s private conscience with a new political right to the full and free exercise of religion. That made private conviction a new and powerful force in the state.

Madison then went even further, prohibiting the government from using religion to give out any “peculiar emoluments or privileges” and from delivering “any penalties or disabilities”—unless the “preservation of equal liberty” itself, or, worse, the “existence of the state,” were “manifestly endangered.” Unless there was an existential threat against the state, in other words, government must stay within its bounds.

His call for consciences that would seize power from the government, rather than beg for it—for an additive rather than subtractive idea of religious freedom—joined a national chorus. Later that winter, Thomas Paine’s December 23, 1776, letter titled “The Crisis” began with the famous words, “These are the times that try men’s souls.” “He whose heart is firm and whose conscience approves his conduct,” Paine proclaimed, “will pursue his principles unto death.”5

ON THE HEELS OF HIS “GIVE ME LIBERTY OR GIVE ME DEATH!” SPEECH, and his triumph against Dunmore, Henry played a far mightier role than Madison at the convention. He boasted to John Adams that the convention was “employed in the great work of forming a constitution” and noted that his “esteemed republican plan” had “many and powerful enemies.” But he did not see his equal in the crowd, certainly not in the very young and slight man from Orange. Indeed, he sniffed at the lesser talents arrayed around him. “I cannot count upon one coadjutor of talents equal to the task,” he wrote Adams. “Would to God that you and your Sam Adams were here!”

After two months of work and the finalization of a new constitution for Virginia, the delegates elected Henry to be Virginia’s first free governor. Forming a new government was a heady time for all. In Henry’s letter of acceptance, he pledged to rely upon the “known wisdom and virtue of your honorable House,” which would give “permanency and success” to Virginia’s new democracy, and which would, in turn, help “secure equal liberty” and “advance human happiness.”⁶ In the last days of the convention, Madison was selected to be one of four trusted “tellers” who administered the counting of votes for the government’s new officers. After electing Henry governor, Madison, along with all the other delegates to the convention, was deemed a member of the new House of Delegates, with a term expiring six months later. The men adjourned on July 5, with plans to meet in Williamsburg in October as delegates in the new government.

For his part, Madison had already begun plotting to join the man he first met on the road to defy Dunmore—the revolutionary who had become the mirror not only of Virginia, but the nation—and the man who would end up his sworn enemy.

MEANWHILE, BACK IN NEW JERSEY, JOHN WITHERSPOON CONTINUED TO agitate for armed revolt. In 1776, writing under the pseudonym of the “Druid,” he began a regular series of essays in The Pennsylvania Magazine. In his first installment, he poignantly described himself as “toward the end of life.” Although he could not take to the battlefield in the revolution about to erupt, he declared that he felt he still must play a role, as there would be “greater need than ever in America” for the “most accurate discussion of the principles of society, the rights of nations, and the policy of states.”

The teachers, in other words, would still matter. The politicians devoted to principles would be more crucial than ever. Above all, he said, his “ultimate object” in the Druid essays would be this: “He who makes a people virtuous makes them invincible.”7

The more Witherspoon’s fame grew, the more his enemies hated him. On July 30, 1776, British soldiers on Long Island burned an effigy of Witherspoon preaching to George Washington and other generals, whose likeness was also torched. After the battle of Trenton, a Hessian, mistaking a Presbyterian minister named John Rosborough for Witherspoon, ran him through with a bayonet.⁸ Across the Atlantic, Witherspoon’s reputation was magnified until he bestrode the colonial land like a colossus. A classmate of his from Edinburgh wrote a letter saying, “We have 1200 miles of territory occupied by about 300,000 people of which there are about 150,000 with Johnny Witherspoon at their head, against us—and the rest of us.”⁹ Another British officer, writing in the war’s last years in 1783, would single out “Dr. Witherspoon . . . the political firebrand, who perhaps had not a less share in the Revolution than Washington himself. He poisons the minds of his young students and through them the Continent.”¹⁰

And perhaps his effect was not exaggerated. One hundred thirty-eight of Witherspoon’s students, including two of his sons, would go on to hold some rank in the Continental army. Only five students were loyal to England.11

But Madison, deprived of the opportunity to take up arms, was leading the charge of conscience on a new front: the revolutionary government itself.