Response to Jonathan Ashbach

Abstract

It is satisfying to have one’s work taken seriously by the next generation of scholars. I was pleased to learn in Jonathan Ashbach’s article that I advance “both the most persuasive and the dominant articulation of Madison’s beliefs about religious free exercise in the literature” (329). I was less pleased to read that my interpretation is “mistaken,” “in need of revision,” and “fail[s] to appreciate the implications of social contract theory” (330). Upon review, however, I think my work survives his criticism. I believe that Ashbach makes two errors, which leads him to both misinterpret my scholarship and misunderstand Madison. The issue between us is the proper understanding of Madison’s principle of religious freedom. We focus on the same evidence—primarily, Madison’s “Memorial and Remonstrance”—and read Madison in the same way, as a natural rights, social compact political thinker. We disagree, however, about what Madison’s fundamental principle is. Starting with a 2003 article, further developed in my first book and a subsequent article, I have advanced a “noncognizance” interpretation, contending that Madison held that the state must remain “blind” to religion and thus cannot classify individuals on account of their religious affiliation for purposes of privilege or penalty. Ashbach finds this mistaken because, he