FOX News host Sean Hannity stated that James Madison, the fourth U.S. president and the author of the Bill of Rights, “hired the first chaplain for the United States Congress.” Hannity made this misleading claim three times in one week -- on the December 8, 9, and 14 editions of Hannity & Colmes -- as part of his ongoing screed against the constitutional separation of church and state. It is true that Madison was on the committee that proposed the appointment of the first paid chaplain in the U.S. House of Representatives and voted to pass the bill that included the establishment of congressional chaplains. But Madison later wrote that the provision of the bill establishing paid congressional chaplains had passed without his approval and that such chaplains were unconstitutional.
The United States government noted in an October 1982 amicus curiae (friend of the court) brief to the Supreme Court in the case of Marsh v. Ernest (citing 1 House J. 12), “James Madison himself was a member of the House Committee that proposed appointment of a chaplain. ... And he voted in favor of the bill to compensate the officers of the House and Senate, including the two chaplains.” While Madison supported the bill to compensate congressional officers, it is apparent from subsequent statements that he opposed provisions in that bill compensating congressional chaplains. In a July 10, 1822, letter to Edward Livingston, Madison criticized the decision to use public funds to pay congressional chaplains:
I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace. This has always been a favorite principle with me; and it was not with my approbation, that the deviation from it took place in Cong[ress], when they appointed Chaplains, to be paid from the Nat[ional] Treasury. It would have been a much better proof to their Constituents of their pious feeling if the members had contributed for the purpose, a pittance from their own pockets. As the precedent is not likely to be rescinded, the best that can now be done, may be to apply to the Const[itution] the maxim of the law, de minimis non curat [definition].
In an undated detached memorandum on church and state issues (believed to have been written between 1817 and 1832), Madison further delineated his view that congressional chaplains are unconstitutional:
Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation?