I guess Justice Kagan was correct when she said we are all originalist now. For those keeping count, Kagan used the word “Madison” 12 times in her twenty-four page opinion in Winn.

It is interesting to dissect the differing takes on James Madison’s Memorial and Remonstrance from Justice Kenendy’s majority opinion in Winn and Justice Kagan’s dissenting opinion. In fact, Kagan accuses Kennedy of “betray[ing] Madison’s vision.” Yikes.

Justice Kennedy wrote:

In the Memorial and Remonstrance, Madison objected tothe proposed assessment on the ground that it would coerce a form of religious devotion in violation of conscience. In Madison’s view, government should not “‘forcea citizen to contribute three pence only of his property forthe support of any one establishment.’” Flast, supra, at 103 (quoting 2 Writings of James Madison 183, 186 (G.Hunt ed. 1901)). This Madisonian prohibition does notdepend on the amount of property conscripted for sectarian ends. Any such taking, even one amounting to “threepence only,” violates conscience. 392 U. S., at 103; cf. supra, at 6–7. The proposed bill ultimately died in committee; and the General Assembly instead enacted legislation forbidding “compelled” support of religion. See A Bill for Establishing Religious Freedom, reprinted in 2 Papersof Thomas Jefferson 545–546 (J. Boyd ed. 1950); see also Flast, 392 U. S., at 104, n. 24. Madison himself went on to become, as Flast put it, “the leading architect of the religion clauses of the First Amendment.” Id., at 103. Flast was thus informed by “the specific evils” identified in thepublic arguments of “those who drafted the Establishment Clause and fought for its adoption.” Id., at 103–104; see also Feldman, Intellectual Origins of the Establishment Clause, 77 N. Y. U. L. Rev. 346, 351 (2002) (“[T]he Framers’ generation worried that conscience would be violatedif citizens were required to pay taxes to support religious institutions with whose beliefs they disagreed”); McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L. Rev. 933, 936–939 (1986).

Kagan differs:

Indeed, the VirginiaAssessment was specifically “designed to avoid any charges of coercion of dissenters to pay taxes to support religious teachings with which they disagreed.” Feldman, Intellectual Origins of the Establishment Clause, 77 N. Y. U. L. Rev. 346, 383 (2002).

In this respect, the Virginia Assessment is just like theArizona tax credit. Although both funnel tax funds to religious organizations (and so saddle all taxpayers withthe cost), neither forces any given taxpayer to pay for the subsidy out of her pocket. Madison thought that feature ofthe Assessment insufficient to save it. By relying on theselfsame aspect of the Arizona scheme to deny the Plaintiffs’ claim of injury, the majority betrays Madison’s vision.

Ouch.