Muñoz, Madison, Rights

My colleague Phillip Muñoz has written a book both very excellent and very provocative. Some of my fellow symposiasts have been provoked to dissent firmly from his normative orientation around the idea of natural rights. As someone who has written two books with “natural rights” in their titles, it can be no surprise that I am not provoked in this way. I wish to pursue further the natural rights approach developed by Muñoz. This is valid and desirable no matter what views we may have about natural rights because it is called for by our duty to the “original public meaning” of the Constitution, as Muñoz’s research reveals. The center of his book is an attempt to explain “the foundations” of the founders’ doctrines in their “philosophies and theologies of the natural right of religious liberty” (2022, 68). The chief source for the philosophic foundation is James Madison, whoseMemorial and Remonstrance against Religious Assessments is taken byMuñoz to provide the essential account of the founders’ shared understanding of that natural right (82). Paradoxically, however, Madison held to an “idiosyncratic”—that is, not widely shared—constitutional-legal doctrine of religious noncognizance that he inferred from that shared understanding.My goal in this note is to probe that paradox by,first, reconstructingMadison’s position in a somewhat different and more direct way thanMuñoz does and, second, asking whether Madison is correct in believing that noncognizance is the correct constitutional doctrine following from the natural right of religious liberty. The idea of a natural right to religious liberty was extremely widespread in founding-era America, but philosophic arguments explaining or defending that