August 17, 1789
Few people remember that James Madison wanted to give Congress the ability to veto state laws that harmed religious freedom. What follows is the brief debate on this topic. Incredibly, this amendment passed the House but died later in the Senate.
The committee then proceeded to the fifth proposition: Article I, Section 10 between the first and second paragraph, insert ‘No state shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases.’
MR. TUCKER: this is offered, I presume, as an amendment to the constitution of the United States, but it goes only to the alteration of constitutions of particular states. It will be much better, I apprehend, to leave the state governments to themselves, and not to interfere with them more than we already do; and that is thought by many to be rather too much. I therefore move, Sir, to strike out these words.
MR. MADISON conceives this to be the most valuable amendment in the whole list. If there were any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments. He thought that if they provided against one, it was as necessary to provide against the other, and it was satisfied that it would be equally grateful to the people.
MR. LIVERMORE had no great objection to the sentiment, but he thought it not well expressed. He wished to make it an affirmative proposition; ‘the equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any state.’
This transposition being agreed to, and MR. TUCKER’S motion being rejected, the clause was adopted. (Note: In the final wording of the amendments that were sent to the Senate the transposition had not taken place. No reason for that mistake is recorded). (Annals of Congress, 1:755)
Annals of Congress, House of Representatives, 1st Congress, 1st