12 August 2016

James Madison on Religion and Religious Exemptions

You can download a relatively brief piece by Andy Olree titled A Madisonian Vision of Religious Liberty here. Quoting the abstract,
James Madison thought and wrote a great deal about issues of religious liberty. Some of his stances are well-known, while others ought to be better known. His theory of religious liberty resists easy categorization by the partisans in our current debates over church and state. While Madison himself claimed to stand for “total separation” of religion and government, his stances differed in important ways from those of many of today’s “strict separationists.” At the same time, he firmly rejected state attempts to support religious truths and practices — even broad “Judeo-Christian” ones — as well as state attempts to acknowledge the privileged place of religion in our history and culture. This invited essay, written for the 2015 Faulkner Law Review Symposium on “The Meaning of Religious Liberty in the Anglo-American Tradition,” summarizes and documents Madison’s understanding of religious liberty, with specific reference to concepts such as religious toleration, natural rights of conscience, religious exemptions in law, and establishments of religion. Along the way, the essay draws attention to points of agreement and disagreement between Madison and John Locke.
Olree's essay alerted me to the exceptional extent of Madison's reflection of the subject of religious liberty. Firmly ensconced in the Enlightenment tradition of natural rights, Madison was almost--but not quite--the poster child for a radical Two Kingdoms approach to the separation of Church and State (here and here). Madison was, of course, was willing to acknowledge freedom of religion; it is, after all, equally explicit in the First Amendment. He further supported some limited religious exemptions from laws of general application.

Olree spends considerable space refuting the position Phillip Munoz took in his 2009 book to the effect that any reference to religion in the law, even to exempt from the law's reach a practice that would pose no threat of harm to others, violates Madison's own anti-establishment principles. Drawing on Madison's writings and signatures on private bills rebating duties imposed on societies importing Bibles during the War of 1812, Olree efforts easily succeed.

Olree does not spend as much time defending Madison's anti-establishment position. He believes Madison was applying Locke's principle of toleration more faithfully than Locke himself, which is probably the case. Of course, whether Madison was correct in this--from an Establishmentarian perspective--is a question not much bruited in the legal academy today.

In summary, Olree's essay is a solid piece of historical scholarship that helps its readers understand what the framer of the First Amendment thought its religion clauses meant, what they didn't mean, and how its twin principles of religious non-establishment and religious freedom should be applied.

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