Reply to Muñoz

I am grateful to Vincent Muñoz for his analysis and critique of my argument. It seems to me, however, that the two criticisms offered here fail to connect with the position I advance. Begin with the second and more fundamental point. Muñoz claims my argument is predicated upon redefining the term “jurisdiction” such that “the state’s absence of jurisdiction over subject matter X means the state cannot pass laws that adversely impact X” (351). I am not sure where this definition is coming from, but it is certainly not coming from me. Undoubtedly, governments may pass all manner of laws that negatively impact religion, on Madison’s terms. Madison’s own advocacy of secular state universities, for example, might well have some negative impact on religion by diverting promising candidates from religious institutions. Neither here nor anywhere else in his corpus, to my knowledge, does Madison make adverse impact a test of jurisdiction. What I did say was that government may not rule religious areas of life, either intentionally or unintentionally: “Something stronger than a duty merely to abstain from targeting religion flows naturally from Madison’s claims. Because reserved rights have not been granted to government, for Madison, the more natural implication is not that government may only infringe upon them if it does so unintentionally, but that government may not infringe upon them at all” (339). Government may not require individuals to take or abstain from actions in violation of their right of religious conscience merely out of oversight or because everyone else is required to do the same thing. Yet the legitimacy of such governmental requirements is the acknowledged upshot of Muñoz’s understanding of noncognizance and the Smith decision it supports. Instead, I present evidence that Madison believed government must actively respect the inalienable rights of conscience to the extent feasible. In short, the difference betweenMuñoz and myself is not that I am unfamiliar with his treatment of inalienable rights, as he suggests. As indicated in the passage just quoted, I agree with it and use it to advance my own case. Nor is the issue that we disagree on the meaning of jurisdiction. Muñoz characterizes the true definition well enough: it means that the state “lacks authority