To Secure the Liberty of the People: James Madison's Bill of Rights and the Supreme Court's Interpretation (review)
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To Secure the Liberty of the People: James Madison's Bill of Rights and the Supreme Court's Interpretation. By Eric T. Kasper. (DeKalb: Northern Illinois University Press, 2010. Pp. x, 301. $38.00 cloth)

In this well-researched and well-written book, Eric Kasper, a political science professor at the University of Wisconsin-Barron County and a municipal judge, explores the source and breadth of Madison's complex political philosophy and examines how Supreme Court justices have used Madison to support their interpretation of the Constitution.

Kasper, who holds a PhD and a JD and is a licensed attorney, traces Madison's views about politics and government to Hobbes, Locke, Hume, and other philosophers, and to his studies under John Witherspoon, the president of the College of New Jersey, where Madison was a student. Kasper convincingly argues that Madison's views of human nature, virtue, and self-interest were influenced by Witherspoon who inspired his gifted student to undertake a lifelong commitment to learning and participation in public affairs.

Kasper describes fluently the development of Madison's political philosophy. If that were all he accomplished, his book would take its place among others written by historians, political scientists, and legal [End Page 265] scholars without making a new contribution to our understanding of what led Madison to his eventual support for a strong national government.

Kasper goes beyond that, which is what makes this book particularly interesting and important. After establishing the roots and dimensions of Madison's philosophy, Kasper looks at the 230 Supreme Court opinions since 1869 that cite him. (Justice Samuel Nelson was the first to do so in Justices v. Murray when discussing the Seventh Amendment). Most of the Madison references have been in the last sixty years, with Justice William O. Douglas citing him most frequently.

What clearly emerges from Kasper's analysis is that Supreme Court justices look among Madison's voluminous writings to find statements that support their decisions without much concern over whether those comments were undermined by his other writings or require a more nuanced understanding of the context. Justice Clarence Thomas, a conservative, used Madison in Rosenberger v. Rector—a 1995 decision in which the Supreme Court held that the student government at the University of Virginia could not deny funds to a religious organization when it gave such fees to other groups—to bolster the argument that the Constitution did not prohibit all aid to religious entities but only required that religions be treated equally. Justice David Souter, a mostly liberal justice, dissented in the same case and concluded that Madison was a strong advocate of separation of church and state and would have rejected Thomas's interpretation.

Kasper examines many such cases and demonstrates that Madison's writings provide fertile ground for almost any interpretation of the Bill of Rights, of which he was the primary architect and thus the source to which scholars, judges, and others often turn when applying those amendments. Kasper, however, is impatient with those he thinks have not sufficiently studied Madison's entire record and thus take his statements out of context.

Considering how much Madison wrote—and that he sometimes [End Page 266] made statements that he did not fully embrace—it is bit unfair for Kasper to criticize Supreme Court justices for not recognizing that a comment made, for example, in 1788 during the ratification debate, was modified by something Madison wrote twenty or thirty years later. Few justices or their law clerks can become so well versed in Madison's political life that they understand the context of everything he wrote.

Kasper also warns—and is justified in doing so—against using Madison to support decisions on contemporary issues that would not have arisen two hundred years ago and about which the framers should not be cited as authority. Kasper is careful to avoid doing this himself.

Kasper's book should lead to further discussion on two key issues: Is it possible to determine the "original intent" of the framers when so many people—voters, delegates at constitutional and ratifying conventions, members of the first congress, state legislators, to name a few—were involved...