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Reasonable Accommodation: James Madison and Governmental Noncognizance of Religion
Published online by Cambridge University Press: 18 July 2023
Abstract
Scholars have long contested James Madison's position on religious liberty. Madison believed in governmental noncognizance of religion. The dominant view, voiced by Vincent Muñoz, interprets that to mean that government should take no notice of religion either to target it or to allow religious objectors exemptions from neutral and generally applicable laws. While there is much to commend Muñoz's view, it fails to accurately convey Madison's position. Noncognizance, for Madison, meant not that government should not notice religion, but that it should assume no authority over it. Consequently, Madison believed government should not interfere with religious duties unless to achieve important ends via carefully tailored policies.
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- Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of University of Notre Dame
Footnotes
I wish to thank Paul Rahe, Adam Carrington, Aaron Weinstein, and the anonymous reviewers for helpful comments and criticism on earlier drafts of this article.
References
1 Madison, James to Bradford, William, January 24, 1774, in The Papers of James Madison, ed. Hutchinson, William T. et al. (Chicago: University of Chicago Press and Charlottesville: University of Virginia Press, 1962–), 1:106Google Scholar. Henceforward PJM.
2 McConnell, Michael, “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review 103, no. 7 (May 1990): 1409–1517CrossRefGoogle Scholar.
3 Ibid., 1437–43.
4 Ibid., 1455–61.
5 Ibid., 1461–66.
6 Ibid., 1466–73.
7 Hamburger, Philip A., “Constitutional Right of Religious Exemption: An Historical Perspective,” George Washington Law Review 60, no. 4 (April 1992): 918–21Google Scholar.
8 Ibid., 929–31.
9 Vincent Phillip Muñoz, God and the Founders: Madison, Washington, and Jefferson (Cambridge: Cambridge University Press, 2009), 3–5.
10 E.g., Ivan Strenski, “Reflections on Religious Liberty, Free Exercise, and Culture, with Special Attention to James Madison,” Religio et Lex 3, no. 1 (2020); Adam Lamparello, “Contextualizing Free Exercise of Religion,” Florida Law Review 69, no. 3 (2018): 702–3; Steven J. Heyman, “Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause,” Journal of Constitutional Law 23, no. 1 (2021): 115.
11 See Jeffrey Sikkenga, “Government Has No ‘Religious Agency’: James Madison's Fundamental Principle of Religious Liberty,” American Journal of Political Science 56, no. 3 (2012): 745–56.
12 Muñoz, God and the Founders, 12.
13 Ibid., 179. Italics in original.
14 James Madison, “Memorial and Remonstrance against Religious Assessments,” ca. June 20, 1785, in PJM, 8:299.
15 Ibid.
16 Ibid.
17 Muñoz, God and the Founders, 23. Though deviating from Locke in important ways (see below).
18 Ibid., 25.
19 Donald L. Drakeman, “Religion and the Republic: James Madison and the First Amendment,” Journal of Church and State 25, no. 3 (1983): 443–45.
20 Muñoz, God and the Founders, 24.
21 Ibid., 26.
22 Ibid.
23 Alan Gibson, “Madison's Great Desideratum: Impartial Administration and the Extended Republic,” American Political Thought 1, no. 2 (Fall 2012): esp. 191. For an excellent treatment of the concept of impartiality in Madison's thought, see Alan Gibson, “Impartial Representation and the Extended Republic: Towards a Comprehensive and Balanced Reading of the Tenth ‘Federalist’ Paper,” History of Political Thought 12, no. 2 (Summer 1991): 276–82. Gibson explicitly makes the connection that impartiality is a form of justice in “Inventing the Extended Republic: The Debate over the Role of Madison's Theory in the Creation of the Constitution,” in James Madison: Philosopher, Founder, and Statesman, ed. John R. Vile, William D. Pederson, and Frank J. Williams (Athens: Ohio University Press, 2008), 79.
24 Madison to Jacob de la Motta, August 1820, in The Writings of James Madison, ed. Gaillard Hunt (New York: Putnam, 1900), 9:30. Henceforward WJM.
25 Madison, Draft Veto of the Bank Bill, February 21, 1791, in PJM, 13:395.
26 Madison, “Property,” March 29, 1792, in WJM, 6:102. Emphasis in original.
27 Madison to Joseph C. Cabell, March 22, 1827, in WJM, 9:287.
28 Madison to Reynolds Chapman, January 6, 1831, in WJM, 9:432.
29 Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, 1966), 1:427–28. “Equal” treatment did not mean “identical” treatment regardless of morally relevant differences, for Madison. People had equal rights, and those rights must be equally protected, but this very equality could demand different treatment of persons in different circumstances. E.g., justice required progressive taxation apportioned according to citizens’ ability to pay (Madison, “Import Duties,” April 17, 1789, in PJM, 12:86).
30 Muñoz, God and the Founders, 27.
31 Vincent Phillip Muñoz, “James Madison's Principle of Religious Liberty,” American Political Science Review 97, no. 1 (February 2003): 25.
32 Ibid., 17.
33 Paul J. Weber, “James Madison and Religious Equality: The Perfect Separation,” Review of Politics 44, no. 2 (1982): 168.
34 Ibid., 170. Hamburger, “Constitutional Right,” 947, also notes the potential argument against exemptions from the standpoint of civil inequality.
35 Muñoz, “James Madison's Principle,” 27–28.
36 Ibid., 27.
37 Madison, “Memorial and Remonstrance,” 300. See the discussion in Muñoz, “James Madison's Principle,” 21–24, 27–29.
38 Madison to Edward Everett, March 19, 1823, in PJM, Retirement Series, 3:16.
39 Muñoz, God and the Founders, 26.
40 Samuel Johnson, A Dictionary of the English Language (1755), s.v. “cognizance,” https://johnsonsdictionaryonline.com/views/search.php?term=cognizance, accessed March 14, 2022. Emphasis in original.
41 Madison, “Motion of Virginia Delegates on Western Lands,” October 16, 1781, in PJM, 3:291.
42 Madison, “Judicial Powers of the National Government,” June 20, 1788, in PJM, 11:159–60.
43 Ibid., 161. Emphasis in original.
44 Madison to Alexander J. Dallas, October 30, 1804, in PJM, Secretary of State Series, 8:236.
45 Ibid.
46 The question of how rare is complicated by the inherent ambiguity of some Madisonian uses and the irreducible element of individual judgment in determining which usage is in play. A word search of the Madison archives at founders.archives.gov for “cogni*” turns up approximately seventy documents containing “cognizance” and its variants. Of these, only one seems to me to clearly refer to awareness of a subject. Madison to Thomas W. Gilmer, September 6, 1830, Founders Online, National Archives, https://founders.archives.gov/?q=%20Author%3A%22Madison%2C%20James%22%20cogni%2A&s=1111311113&r=68, accessed June 11, 2021. In perhaps half a dozen instances it seems to me that one could plausibly argue for the awareness understanding, though all seem reasonably explicable on the jurisdictional understanding. In the majority of cases, Madison is speaking of a government or branch or body thereof having jurisdiction of a case or subject.
47 Madison, “Memorial and Remonstrance,”299.
48 Madison, “Detached Memoranda,” January 31, 1820, in PJM, Retirement Series, 1:611.
49 Madison to Edward Livingston, July 10, 1822, in PJM, Retirement Series, 2:543.
50 Madison, “Sovereignty,” 1835, in WJM, 9:571.
51 See discussion of the Supreme Court's use of this distinction below. For discussion of the distinction in Jefferson's thought, see Muñoz, God and the Founders, 77.
52 Madison, “Amendments to the Declaration of Rights,” ca May 29, 1776, in PJM, 1:174–75.
53 Madison to William Bradford, July 28, 1775, in PJM, 1:161.
54 PJM, 1:179n8.
55 Hamburger, “Constitutional Right,” 919.
56 McConnell, “Origins,” 1462–63. This is the same argument made by Justice O'Connor in Boerne v. Flores (Vincent Philip Muñoz, “The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress,” Harvard Journal of Law and Public Policy 31 [2008]: 1083–1120). So far as I know it has never been expressly confronted in the literature by advocates of the no-exemptions view.
57 John Locke, Two Treatises of Government and A Letter concerning Toleration, ed. Ian Shapiro (New Haven, CT: Yale University Press, 2003), 236, 243
58 See Jonathan Ashbach, “Against Every General Principle: Prudence in the Constitutional Statesmanship of James Madison,” American Political Thought 10, no. 3 (2021): 363–89.
59 Madison, “Amendments to the Constitution,” June 8, 1789, in PJM, 12:201.
60 Madison, “Militia,” December 22, 1790, in PJM, 13:328–29.
61 Ibid., 329.
62 Ibid.
63 Ibid., 328.
64 Ibid., 328–29.
65 Muñoz, God and the Founders, 38.
66 Berns, Walter, “James Madison on Religion and Politics,” in James Madison and the Future of Limited Government, ed. Samples, John (Washington, DC: Cato Institute, 2002), 135–45Google Scholar, esp. 140.
67 Drakeman, “Religion and the Republic,” 434. A reader asks whether Madison's relevance is negated by the fact that the religious framework for his thought about religious liberty is controversial. While an objection to Madison's argument for religious liberty based on alleged problems with his religious foundations is philosophically interesting, it is irrelevant to the questions raised here. Madison's views and their significance to an originalist analysis of the Constitution's meaning remain unchanged regardless of whether they are satisfactorily grounded philosophically.
68 Reynolds v. United States, 98 U.S. 145, 162 (1878).
69 Ibid., 164.
70 Ibid., 166.
71 Board of Education v. Barnette, 319 U.S. 624, 639 (1943).
72 Braunfeld v. Brown, 366 U.S. 599, 607 (1961).
73 Wisconsin v. Yoder, 406 U.S. 205, 214 (1972). See also Sherbert v. Verner, 374 U.S. 398, 406 (1962).
74 Employment Division v. Smith, 494 U.S. 872, 878 (1990).
75 Ibid., 878–79.
76 Prince v. Massachusetts, 321 U.S. 158, 164 (1943); Gillette v. United States, 401 U.S. 437, 462 (1971).
77 United States v. Lee, 455 U.S. 252, 257–58 (1982).
78 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171, 188 (2012).
79 Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. __, 11 (2020).
80 Fulton v. Philadelphia (2021), 593 U.S. __, 1 (Barrett, J., concurring), 77 (Alito, J., concurring).