Orlee on Madison and Legislative Chaplains

Andy G. Orlee, Faulkner University, has posted a new article, James Madison and Legislative Chaplains. It is forthcoming in the Northwestern University Law Review. Here's the 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.