Madison’s Non Sequitur: A Comment on Vincent Phillip Muñoz’s Religious Liberty and the American Founding

Abstract

Vincent PhillipMuñoz’s bookReligious Liberty and the American Founding is a marvelous piece of historical reconstruction, bringing to vivid life the intellectual world of the framers. He gives the reader a sharply etched picture of their natural rights philosophy. But their world is not ours, and they relied on premises that we cannot share and which cannot now be the basis of public law. Today, when courts interpret the First Amendment’s religion clauses, they must articulate a rationale that will not be unintelligible or repulsive to many citizens. The interpretation also ought not to inflame the very divisions that the clause was intended to prevent. The fundamental problem is that the framers believed both that we are endowed with natural rights and that the government is incompetent and untrustworthy to adjudicate religious questions. Their natural rights philosophy, however, ultimately rested on religious foundations if it rested on anything at all. For example, Madison relied either on revealed religion or on a fallacious argument from natural law. I will explain by focusing on the fallacy, which Muñoz does not appear to notice.