American Political Science Review Vol. 97, No. 1 February 2003

James Madison’s Principle of Religious Liberty
VINCENT PHILLIP MUÑOZ North Carolina State University

A
lthough James Madison has been invoked by justices and judicial scholars for over 100 years,
Madison’s principle of religious liberty has never been fully grasped or adopted by the Supreme
Court. Judges and scholars have failed to understand Madison’s radical but simple teaching that

religion is not part of the social compact and, therefore, that the state may not take religion within its
cognizance. In this article I set forth Madison’s principle of “noncognizance” in light of the social compact
theory he articulates in the “Memorial and Remonstrance.” I then attempt to show how it consistently
explains Madison’s political actions and writings on religious liberty. I conclude by explaining how a
“Madisonian” approach, properly understood, would adjudicate the First Amendment’s religion clauses.

N
o man is more responsible for the U.S. Consti-
tution than James Madison. Leading delegate
at the Philadelphia Convention, advocate and

expositor as Publius, author and sponsor of the Bill of
Rights, Madison rightfully earned his title “Father of
the Constitution.” Madison also played the leading role
in Virginia’s battle for religious freedom, which was
won, in no small part, because of his “Memorial and
Remonstrance.” It should come as no surprise, then,
that, along with Thomas Jefferson, he has been con-
sidered an authoritative guide to the meaning of the
First Amendment’s religion clauses. Yet Madison’s un-
derstanding of the proper relationship between church
and state continues to be debated vigorously. For Estab-
lishment Clause jurisprudence, “strict-separationist”
judges and scholars claim that Madison sought to erect
a wall separating state from church, thereby prohibiting
all governmental support for religion. “Nonpreferen-
tialists” challenge this interpretation, contending that
Madison meant only to prevent the state from favoring
one religious sect over others. The state may support
religion, they claim, so long as it supports all religions
equally. In recent Free Exercise cases, Madison has
been invoked as defending the right to religious exemp-
tions from facially neutral but burdensome laws. Justice
Scalia, the Court’s most articulate defender of “origi-
nalism,” has authored the Court’s rejection of this po-
sition, but his Court opinions have failed to respond to
his opponents’ Madisonian arguments. Thus, although
Madison’s authority for First Amendment religion ju-
risprudence has been nearly universally accepted, what
he says on these matters remains sharply contested. Did
Madison think any and all state aid to religion violates
constitutional principles? If so, did he also intend to
protect the free exercise of religion by granting reli-
gious citizens exemptions from oppressive laws?

This article attempts to answer these questions by
articulating Madison’s principle of religious liberty. It
begins by reviewing the leading interpretations and
constitutional applications of Madison’s thought on re-

Vincent Phillip Muñoz is Assistant Professor of Political Science,
Department of Political Science & Public Administration, North
Carolina State University, Campus Box 8102, Raleigh, NC 27695-
8102 (vpmunoz@ncsu.edu).

The author would like to thank Mark Blitz, Charles R. Kesler,
Nicholas May, Ralph A. Rossum, and Michael Uhlmann for their
comments on drafts of this article.

ligious liberty, all of which, I suggest, have failed to
grasp Madison’s position. I then offer my alternative in-
terpretation, focusing on the social compact framework
of Madison’s “Memorial and Remonstrance.” I argue
that Madison champions a “religion-blind” constitu-
tion, a constitution that prohibits the state from taking
cognizance of religion. The state, in Madison’s view,
may not classify citizens on the basis of religious beliefs
or religious affiliation, which means that the state may
neither privilege nor penalize religious institutions, reli-
gious citizens, or religiously motivated conduct as such.
I defend my interpretation by showing how the princi-
ple of a “religion-blind” constitution explains Madi-
son’s political actions, statements, and writings made
as a state legislator, congressman, president, and elder
statesman. I conclude by explaining the implications
that a correct understanding of Madison’s principle of
religious liberty has for First Amendment religion ju-
risprudence.

THE USE AND ABUSE OF MADISON

About 100 federal and state court decisions have high-
lighted Madison’s role in crafting the religion clauses of
the First Amendment (Drakeman 2000, 219). In judicial
decisions and scholarship on the Establishment Clause,
Madison has been identified both as a “strict separa-
tionist” who stands against any and all public support
of religion and as a “nonpreferentialist” who proscribes
only aid that favors some religions over others. For the
Free Exercise Clause, Madison has been invoked as
a defender of the right to religious exemptions from
laws that burden religious exercise. All three of these
interpretations, I argue, are incorrect.

Madison and the Establishment Clause

The “strict-separationist” interpretation of Madison
began in the Supreme Court’s landmark incorpora-
tion decision Everson v. Board of Education (1947).
Everson was decided five to four, but all nine justices
agreed that the meaning of the Establishment Clause
was to be found in Jefferson’s and Madison’s writ-
ings establishing religious freedom in Virginia, and that
these writings indicated that the founders intended “to
erect a wall of separation between church and state”

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Madison’s Principle of Religious Liberty February 2003

(p. 16).1 Justice Wiley Rutledge, writing in dissent, paid
particular attention to Madison. His historical research
led him to conclude that “Madison opposed every form
and degree of official relation between religion and civil
authority” (p. 39) and, therefore, that the Establish-
ment Clause “forbids any appropriation, large or small,
from public funds to aid or support any and all religious
exercises” (p. 41).

This “strict-separationist” interpretation of Madison
received authoritative confirmation four years later by
Irving Brant, the distinguished biographer of the fourth
president. According to Brant (1951, 3), freedom of
religion was for Madison “the fundamental item upon
which all other forms of civil liberty depended,” and the
fundamental requirement for religious freedom “was
the total separation between government and religion.”
Brant canvassed all of Madison’s major writings on
religious liberty, but he employed most forcefully the
then newly rediscovered “Essays on Monopolies.”2 In
that essay, Madison calls the appointment of taxpayer-
funded legislative chaplains by the First Congress a
“palpable violation” of constitutional principles. Reli-
gious proclamations by the president are “shoots from
the same root.” Madison goes so far as to identify a
prohibition on taxpayer-funded chaplains for navy
crewmen insulated at sea as “the consequence of a
right principle” (Brant 1951, 21–24; Fleet 1946, 558–62).
Brant (1951, 11) took the date and the dispassionate,
retrospective tone of the “Essay on Monopolies” as
conclusive proof that Madison “regarded any compul-
sory contribution to religion, through taxes, as a viola-
tion of the individual taxpayer’s religious liberty.”

As the Supreme Court continued to hear Establish-
ment Clause cases in the 1950s and 1960s, the prolific
and influential Leo Pfeffer (1958) augmented Brant’s
interpretation with a “strict-separationist” reading of
Madison’s “Memorial and Remonstrance.”3 Pfeffer fo-
cused on the “Memorial’s” political context, pointing
out that Madison wrote it with a specific legislative in-
tention, to defeat Patrick Henry’s pending “Bill Estab-
lishing a Provision for Teachers of the Christian Reli-
gion.” Henry’s measure, according to Pfeffer,

represents the closest approximation in American history
to absolutely non-preferential government aid to religion.
It is difficult to conceive of any measure which adheres

1 The Justices disagreed only on where the wall stood in the case
at hand. The majority ruled that the New Jersey program in ques-
tion, which reimbursed the transportation costs incurred by parents
sending their children to Catholic schools, did not breach the wall.
2 Madison’s “Essay on Monopolies” had been published in Harper’s
Magazine in 1914 but was lost and forgotten until rediscovered and
republished by Elizabeth Fleet (1946). The exact date of its compo-
sition is unknown but it is thought that Madison drafted it between
1817 and 1832.
3 According to Gregg Ivers (1995, 222) it is “impossible to overes-
timate the impact that Leo Pfeffer, as an individual and as a public
interest lawyer, had on the constitutional development of church–
state law during the latter half of this [twentieth] century. . . . [F]or
no lawyer has exercised such complete intellectual dominance over
a chosen area of law for so extensive a period. . . .” Cushing Strout
(1988, 225) reports that of some 50 adversarial cases between 1951
and 1971 involving the Establishment Clause, Pfeffer was active in
20 of them at the trial stage and in 14 at the appellate stage.

more closely to the requirements of non-discrimination
and equality among sects. (p. 66)

Pfeffer thus concluded that Madison could not be un-
derstood as opposing only preferential aid to religion.
His opposition to Henry’s nonpreferential measure
demonstrated that he opposed every form of aid to
religion.

Attention to Madison waned in the 1970s as the
Supreme Court eschewed the philosophy of “orig-
inal intent.” In 1984, however, then Associate Jus-
tice William Rehnquist’s “originalist” dissent in the
public school-moment-of-silence case Wallace v. Jaffree
(1985) marked a resurgence of interest in Madison.
Building on the scholarship of Robert Cord (1982), Jus-
tice Rehnquist denied that the founders in general or
Madison in particular intended to erect a wall sepa-
rating church and state or to require state neutrality
between religion and irreligion. The founders, Justice
Rehnquist claimed, intended to prohibit only sectar-
ian government support to religion. The Establishment
Clause, accordingly, should be read only to prohibit
preferential aid to some religions over others.

To make his case, Justice Rehnquist turned to the
drafting of the Establishment Clause in the First
Federal Congress. There he found, contrary to the
Court’s Everson ruling, that Madison was not trying
to introduce Jefferson’s “Virginia Statute for Reli-
gious Liberty.” Madison, rather, was “an advocate for
sensible legislative compromise” (Wallace 1985, 97).
Justice Rehnquist zeroed in on Madison’s original draft
amendment, “nor shall any national religion be es-
tablished,” and on his subsequent explanation on the
House floor that it meant “that congress should not es-
tablish a religion, and enforce the legal observation of
it by law” (p. 98). These statements indicated to Justice
Rehnquist that Madison

saw the [First] Amendment as designed to prohibit the es-
tablishment of a national religion, and perhaps to prevent
discrimination among sects. He [Madison] did not see it
as requiring neutrality on the part of government between
religion and irreligion. (p. 98)4

Everson and the “strict-separationist” jurisprudence
built on it, Justice Rehnquist concluded, were con-
structed on a “mistaken understanding of constitu-
tional history” (p. 92). “Nonpreferentialism,” not a
“wall of separation,” best reflects Madison’s and the
founding fathers’ original intentions.5

4 In his dissent in the released-time for religious instruction case
McCollum v. Board of Education (1948, 244), Justice Stanley Reed
also cited Madison’s explanatory statement on the House floor as
evidence that the Establishment Clause aimed only to proscribe an
official state church.
5 Both Cord and Rehnquist also introduce as evidence numerous
instances in which the founding fathers endorsed and supported
religion, including the reenactment of the Northwest Ordinance
by the First Congress, which proclaimed, “Religion, morality, and
knowledge, being necessary to good government and the happiness
of mankind, school and the means of education shall forever be
encouraged”; calls for national days of prayer and thanksgiving by
Presidents Washington, Adams, and Madison; and Jefferson’s autho-
rization of direct payments by the federal government to a Catholic

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American Political Science Review Vol. 97, No. 1

Justice Rehnquist’s reinterpretation brought forth a
wave of “strict-separationist” scholarship, the influence
of which now can be seen most pronouncedly in Jus-
tice David Souter’s opinions.6 In two nonmajority opin-
ions in the 1990s, Justice Souter established himself as
the leading “originalist,” “strict separationist” on the
Court. In Lee v. Weisman (1992), the prayer-at-public
school-graduation case, Justice Souter poured over the
same historical materials that Justice Rehnquist did
in his Wallace dissent. Like Justice Rehnquist, Justice
Souter focused on Madison’s original draft amend-
ment. But Justice Souter pointed out that Madison’s
initial draft was not adopted. A comparison of re-
jected drafts of the Establishment Clause with the ac-
tual adopted text, he argued, reveals that the farm-
ers considered but ultimately rejected prohibiting only
nonpreferential aid to religion (Lee 1992, 615).7 When
the Court ruled three years later that a University
of Virginia Christian student newspaper could receive
student activity funds, in Rosenberger v. University of
Virginia (1995), Justice Souter further developed
his position with a “strict-separationist” reading of
Madison’s “Memorial and Remonstrance.” His dissent-
ing opinion in that case emphasized article 3 of the
“Memorial,” where Madison states, “Who does not see
that . . . the same authority which can force a citizen
to contribute three pence only of his property for the
support of any one establishment, may force him to
conform to any other establishment in all cases what-
soever?” (Rosenberger 1995, 868). This statement, in
addition to the fact that the “Memorial” was written
against a general assessment, demonstrated to Justice
Souter that Madison objected to any government sub-
sidization of religion.

Justice Souter wrote his Rosenberger dissent in re-
sponse to Justice Clarence Thomas’s “nonpreferen-
tialist” concurring opinion in the same case. Justice
Thomas picked up Chief Justice Rehnquist’s argument
that the entire edifice of Establishment Clause jurispru-
dence has been built on a mistaken understanding of
history. In addition to focusing on the records of the
First Federal Congress, Justice Thomas also returned
to the “Memorial and Remonstrance,” specifically ar-
ticle 4, which argues that Henry’s proposed assessment
“violates that equality which ought to be the basis of
every law.” According to Justice Thomas, Madison op-
posed Henry’s assessment bill “not because it allowed
religious groups to participate in generally available
benefits, but because the bill singled out religious en-
tities for special benefits” (Rosenberger 1995, 854–55).
A proper interpretation of the “Memorial,” and thus

priest ministering to Native Americans. The deficiency in Cord’s
“nonpreferentialist” interpretation of Madison is that he cannot
square it with Madison’s seemingly “strict-separationist” “Detached
Memoranda.” As such, Cord (1982, 35–36, 1987, 79–85) is forced to
say that Madison was inconsistent or that he changed his mind as “an
old man” in his “declining years,” both highly dubious propositions.
6 The scholarship cited by Justice Souter includes Leonard Levy 1986
and Douglas Laycock 1986.
7 Souter also trumpeted Madison’s “Detached Memoranda,” em-
ploying the same evidence and reaching the same conclusion that
Irving Brant did nearly 50 years prior (Lee 1992, 622–26).

the Establishment Clause, prohibits government only
from favoring some religious faiths over others.

Although Justice Thomas employed the “Memo-
rial” to defend “nonpreferentialism,” his opinion be-
trays a leery suspicion of Madison. Justice Thomas
concedes that others have interpreted the “Memo-
rial” differently than he does (Rsenberger 1995, 854–
55; citing Laycock 1986), and perhaps because the
“strict-separationist” interpretation of Madison looks
so strong, he suggests that “the views of one man do
not establish the original understanding of the First
Amendment” (p. 856). Is Madison, then, a “strict sepa-
rationist?” Did he think that any and all aid to reli-
gion violates constitutional principles? If so, why did
he not say so clearly in either his initial proposed con-
stitutional amendment or his later clarifying remarks
made during the Constitutional Convention? And if
Madison did intend strictly to separate religion and pol-
itics through the Establishment Clause, did he also, as
some claim, intend vigorously to protect religion from
politics with the Free Exercise Clause?

Madison and the Free Exercise Clause

Until the 1990s, Madison was not invoked for Free Ex-
ercise jurisprudence nearly to the extent that he was for
Establishment Clause cases. This was partially because
when the Supreme Court first addressed the meaning of
free exercise in the Mormon polygamy case Reynolds
v. United States (1879), it turned to Jefferson.8 When
the Court later incorporated the Free Exercise Clause
in Cantwell v. Connecticut (1940), and then expanded
its reach to grant religious exemptions from generally
applicable regulations and laws in the 1960s and 1970s,9
it did so again without invoking Madison. The Court
overlooked Madison one more time in its controversial
1990 Smith decision,10 which denied a constitutional
right to religious exemptions from generally applicable
laws. A conservative reaction to this decision, however,
has led to a vigorous application of Madison’s thought
to the free exercise controversies.

The leading scholar to apply Madison to the Free
Exercise Clause is Michael McConnell. In a widely
cited Harvard Law Review article, McConnell (1990)
meticulously defends the case for religious exemptions
from laws that burden religious exercise. At the center
of his arguments stands Madison’s “Memorial and Re-
monstrance.” In article 1 of the “Memorial,” Madison
derives the right of religious liberty from “the duty of

8 The Court ruled that the Free Exercise Clause protects beliefs, not
actions, and therefore that Reynolds was not exempt from federal
laws banning polygamy.
9 See, in particular, Sherbert v. Verner (1963), ruling that Sherbert, a
Seventh-Day Adventist, was entitled to unemployment compensa-
tion despite being fired with cause (refusing to work assigned hours
on Saturday), and Wisconsin v. Yoder (1972), ruling Amish parents
exempt from state laws requiring parents to send their children to
school past the eighth grade.
10 Employment Division, Department of Human Resources of
Oregon v. Smith (1990) ruled that Smith’s and other Native American
Church members’ sacramental use of peyote was not constitutionally
protected.

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Madison’s Principle of Religious Liberty February 2003

every man to render to the Creator such homage, and
such only, as he believes to be acceptable to him.” “This
duty,” Madison continues, “is precedent both in order
of time and degree of obligation, to the claims of Civil
Society.” McConnell (1990, 1453) reasons,

If the scope of religious liberty is defined by religious duty
(man must render to God “such . . . homage as he believes
acceptable to him”), and if the claims of civil society are
subordinate to the claims of religious freedom, it would
seem to follow that the dictates of religious faith must take
precedence over the laws of the state, even if they are sec-
ular and generally applicable. This is the central point on
which Madison differs from Locke, Jefferson, and other
Enlightenment advocates of religious freedom.

If religious duties conflict with civic regulations, civic
regulations must give way. Although McConnell admits
that the “Memorial” does not call for judicial exemp-
tions explicitly, he claims that it “suggests an approach
toward religious liberty consonant with them” (p. 1453;
see also McConnell 2000).

To support this reading of the “Memorial,”
McConnell also introduces into evidence Madison’s
proposed revisions of the “free exercise provision” of
the Virginia Declaration of Rights. He reports that, as
drafted by George Mason, Article XVI proposed

that all men should enjoy the fullest toleration in the exer-
cise of religion, according to the dictates of conscience, un-
punished and unrestrained by the magistrate, unless under
color of religion any man disturb the peace, the happiness
or safety of society. (McConnell 1990, 1462)

Madison, McConnell claims, objected on two grounds.
First, Madison criticized the use of the word “tol-
eration,” because religious liberty is a right derived
from duties more sovereign than civic obligations. He
moved, accordingly, to strike Mason’s language of tol-
eration and substitute instead, “All men are equally
entitled to the full and free exercise of religion accord-
ing to the dictates of conscience.” Second, Mason and
Madison clearly anticipated exemptions from generally
applicable laws, which is why they included balancing
test standards at the ends of their drafts. Mason would
have extended exemptions only to religious actions that
did not disturb the “peace, happiness, or safety of soci-
ety,” a standard, McConnell suggests, “that would en-
compass virtually all legitimate forms of legislation”
(p. 1463). Madison, according to McConnell, aimed to
create a test much more favorable to religious citizens.
He proposed to narrow the compelling state interest in
denying religious exemptions only to cases manifestly
endangering “the preservation of equal liberty and the
existences of the state.” This standard, McConnell con-
cludes, “only the most critical acts of government can
satisfy” (pp. 1462–63).11

McConnell’s arguments have found a voice on the
Supreme Court in Justice Sandra Day O’Connor. In her

11 McConnell’s history on this point suffers from his reliance on
Sanford Cobb’s (1902, 491–92) incomplete account of Madison’s
proposed revisions to Mason’s text. What McConnell presents as
Mason’s original proposal is actually a slightly amended committee
version of Mason’s initial draft. Madison then offered two different
sets of revisions on two different dates. What McConnell reports as
Madison’s proposed revisions is actually the second set of revisions

dissenting opinion in City of Boerne v. P.F. Flores (1997,
549), Justice O’Connor calls for a reversal of Smith and
a restoration of the Sherbert balancing test because “the
historical evidence casts doubt on the Court’s current
[nonexemption granting] interpretation of the Free Ex-
ercise Clause.” For her historical evidence, she relies
heavily on McConnell’s Madison.

McConnell’s and O’Connor’s arguments have been
criticized sharply both on and off the bench by those
who deny that the First Amendment secures a right
to religious exemptions from generally applicable
laws. These critics have failed, however, to address
adequately the McConnell/O’Connor interpretation
of Madison. Philip Hamburger (1992), the most
thorough and persuasive critic of religious exemptions
on historical grounds, has countered McConnell’s
historical research point by point. When it comes to
McConnell’s reading of Madison’s “Memorial and
Remonstrance,” however, Hamburger is noticeably
silent (see especially pp. 926–29, which discuss
McConnell’s use of Madison). The same omission
also can be attributed to Justice Antonin Scalia, the
Court’s leading critic of exemptions. In both his Smith
majority opinion, in which he originally overturned the
Court’s exemption-granting balancing test, and then
his defense of Smith in response to O’Connor in City
of Boerne v. P.F. Flores, Justice Scalia fails to address
McConnell’s and O’Connor’s strongest argument: that
James Madison, architect of the First Amendment,
grounds the right to religious liberty on the premise
that religious obligations are precedent in time and
obligation to civil obligations. Those who defend
a constitutional right to religious exemptions from
burdensome laws seem to have Madison on their side.

As is true of the “strict-separationist” and “nonpref-
erentialist” interpretations of Madison, so too is the
“proexemption” interpretation incorrect. Madison is
misinterpreted for both Establishment Clause and Free
Exercise jurisprudence because scholars and judges
have failed to see the social compact framework of the
“Memorial and Remonstrance.” Prior interpreters thus
fail to see Madison’s clearly stated doctrine about the
meaning of religious liberty in a constitutional republic
limited by and dedicated to the protection of natural
rights—namely, that the state must remain noncog-
nizant of religion.

MADISON’S PRINCIPLE
OF “NONCOGNIZANCE”

The Historical and Political Context of
the “Memorial”

Madison’s most mature and most philosophical de-
fense of religious liberty is his “Memorial and

he offered—Madison’s initial revisions were rejected. McConnell ap-
pears to be unaware of Madison’s first proposed revisions and thus
fails to consider them. Unfortunately for McConnell, it is these re-
visions that reveal most clearly Madison’s intentions (see discussion
below, under The “Memorial’s” Argument). For a complete account
of the drafting of Article XVI of the Virginia Declaration of Rights,
see Dreisbach 2000, 9–18.

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American Political Science Review Vol. 97, No. 1

Remonstrance.” He drafted the “Memorial and Re-
monstrance” in the spring of 1785, in the midst of a
fierce debate over Patrick Henry’s proposed bill “Es-
tablishing a Provision for Teachers of the Christian Re-
ligion.”

Before discussing the “Memorial’s” argument, it is
important to note what exactly Madison was arguing
against. According to Leo Pfeffer (1958, 66), as noted
above, Henry’s proposed assessment bill

represents the closest approximation in American history
to absolutely non-preferential government aid to religion.
It is difficult to conceive of any measure which adheres
more closely to the requirements of non-discrimination
and equality among sects.

Pfeffer is simply wrong. Though more accommodat-
ing than the prerevolutionary establishment or the
proposed establishment of 1779, it is incorrect to
claim that Henry’s bill was nondiscriminatory or es-
tablished equality among all religious sects. The title
alone, “A Bill Establishing a Provision for Teachers of
the Christian Religion,” belies Pfeffer’s interpretation.
Only ministers of recognized Christian sects were eligi-
ble for state funding. In December 1784, an amendment
was passed to drop the word “Christian,” in order to
open up the assessment to any religious society, but
Benjamin Harrison, the former governor, managed to
have the change reversed (Buckley 1977, 108). Instead,
in the final text appeared a statement of the bill’s liber-
ality, which more clearly reveals its limits:

[I]t is judged that such a provision may be made by the
Legislature, without counteracting the liberal principle
heretofore adopted and intended to be preserved by abol-
ishing all distinctions of preeminence amongst the different
societies or communities of Christians.12

Henry’s bill may have erased distinctions among
Protestants, but it was not nonsectarian.

What it was a property tax. Under the bill’s provi-
sions, each property owner was to specify the Christian
denomination to which he wished his tax directed. The
sheriffs of the several counties would then distribute
the taxes accordingly, minus 5% for administration. If a
taxpayer failed or refused to specify a Christian society,
his tax would go to the public treasury “to be disposed
of under the direction of the General Assembly, for
the encouragement of seminaries of learning . . . and
to no other use or purpose whatsoever.” Similarly, the
taxes received by the various denominations were to be
“appropriated to a provision for a Minister or Teacher
of the Gospel, or the providing of places of divine wor-
ship, and to none other use whatsoever.” An exception
to this rule was made for Quakers and Mennonites, who
were allowed to place their distribution in their general
funds because they lacked the requisite clergy.

The restrictions on how funds were to be distributed,
with the noted exceptions, were due to the bill’s stated
educational purpose. The bill began,

12 The text of Henry’s assessment bill can be found in Buckley 1977,
188–89.

WHEREAS the general diffusion of Christian knowledge
hath a tendency to correct the morals of men, restrain their
vices, and preserve the peace of society, which cannot be
effected without a competent provision for learned teach-
ers . . . .

This educational facade was not present in the
bill’s original version, which was designed to support
Christian ministers, churches, and worship. A drafting
committee added it, probably to increase the bill’s ap-
peal (Buckley 1977, 105; cf. Braun 1997, 210). Even with
these changes, however, all knew that the purpose of
the bill was to keep the Christian ministry, particularly
Episcopalian clergy, active and solvent (Buckley 1977,
109). And even with the educational preamble, minis-
ters who received appropriations were not required to
use them for educational purposes. In its effect, the bill
granted a direct subsidy to Christian clergymen.

Madison revealed his perception of the measure and
what he thought was at stake in a letter to Thomas
Jefferson on 9 January 1785. “Should the bill ever pass
into law in its present form,” he wrote, “it may and will
be easily eluded.” Madison probably had in mind the as-
sessment’s provision that allowed citizens not to name
their denomination and thereby steer their taxes to a
state general education fund. “It is chiefly obnoxious,”
he continued, “on account of its dishonorable principle
and dangerous tendency” (Madison 1884, 1:131). For
Madison, defeating Henry’s assessment was primarily
a matter of principle. This understanding is reflected in
the nature of the “Memorial’s” argument. It addresses
specifics of Henry’s bill and its immediate political
consequences, but its true force is its theoretical ar-
gumentation. While not ignoring immediate politics—
indeed, while intending directly to influence them—the
“Memorial” offers a philosophical understanding of the
proper relationship between church and state.

The “Memorial’s” Argument

The “Memorial and Remonstrance” consists of 15 arti-
cles. Each article is written as if to stand alone, but there
is an obvious sequence. Articles 1 through 4 argue from
principle articles 5 through 14 offer pragmatic reasons
for defeating Henry’s proposed assessment. Article 15
returns to the principle articulated in article 1. Madison
sets forth his doctrine of religious liberty in the first
article. Although almost all commentators focus on it,
its exact meaning has been missed.

The structure of article 1’s argument follows Locke’s
social compact theory. In the Second Treatise ([1689a]
1960), Locke teaches that men are originally born into
the state of nature, a condition in which every man
possesses the rights to life, liberty, and property and
the right to execute the law of nature. But because of
the tendency of each man to execute the law of na-
ture to his own advantage, no effective common law
exists among men. The state of nature tends to break
down into a state of war. To escape this situation of
war and poverty that ill secures man’s rights to life, lib-
erty, and property, men enter into a social compact with
one another. They consent equally to give up their full

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Madison’s Principle of Religious Liberty February 2003

natural right to execute the law of nature in exchange
for governance under the rule of law as expressed by
the majority. Rights such as property, which in the state
of nature are left to each individual to secure for him-
self, are protected by common civil law executed by a
government whose ultimate authority derives from the
unanimous consent of the governed.

Following Locke, the “Memorial” begins with a
statement of natural rights: Men have a natural right
to exercise religion according to conviction and con-
science. Madison derives this right from the “funda-
mental and undeniable truth” that had been set forth
previously in Article XVI of the Virginia Declaration
of Rights:

Religion or the duty which we owe to our Creator and the
Manner of discharging it, can be directed only by reason
and conviction, not by force or violence. (article 1)

The “Memorial” presupposes this truth as its funda-
mental starting point. It does not attempt to demon-
strate how or why religion can be directly only by reason
and conviction; it takes this as given.13

Because the exercise of religion must follow one’s
own conscience and conviction, it is a particular kind
of natural right, an inalienable natural right. Madison
gives two reasons why. The first is

because the opinions of men, depending only on the evi-
dence contemplated by their own minds, cannot follow the
dictates of other men. . . . (article 1)

Since religion is a matter of conviction and conscience,
the essence of religion is opinions—namely, opinions
about the duties man owes to the Creator and how those
duties ought to be discharged. And opinions, Madison
says, depend only on the evidence contemplated by
the mind. He follows here the argument of Locke’s
([1689b] 1983) A Letter Concerning Toleration. Every
man, Locke claims, comes to his opinions and beliefs
individually by virtue of the evidence he sees and finds
persuasive. Since opinions and beliefs can be shaped
by evidence alone, no man can impose his opinions on
any other man: all that can be proffered is persuasive
evidence and argument. Similarly, no man can simply
accept the opinions of another, even if he wishes to,
if he is not truly persuaded (Locke [1689b] 1983, 27).
Opinions, then, are very different from other types of
property such as land and money. Whereas a man can
freely give away his money or have it stolen from him,
no man can cede or lose his opinions unless he loses
his mind. The right to one’s opinions, accordingly, is
different from one’s right to other forms of property.

13 Gary Rosen (1999, 23) identifies this starting point as “the obvious
Protestant subtext” of the “Memorial and Remonstrance.” Rosen
then draws out the following theological implications: “Religious
truth becomes a particular sort of experience rather than a doctrine.
In this view, sincerity takes the place of right-thinking and -acting.”
Rosen is correct that the starting point of Madison’s argument is
compatible with certain strains of Protestantism, but this does not
make Madison’s argument necessarily Protestant or even theologi-
cal. Madison leaves it unclear whether the “Memorial’s” argument
is theological, strictly rational, or both.

Whereas men transform their natural right to one’s pos-
sessions into a civil right to property upon entering into
the social compact, men do not similarly transform the
right to their opinions. Opinions by their nature cannot
be alienated, and therefore religion, which is essentially
opinion, is an inalienable natural right.14

The second reason Madison gives for the inalienable
character of man’s natural religious right is that

what is here a right towards men, is a duty towards the
Creator. It is the duty of every man to render to the Creator
such homage, and such only, as he believes to be accept-
able to him. This duty is precedent both in order of time
and degree of obligation, to the claims of Civil Society.
(article 1)

Here, again, Madison relies on a distinction made by
Locke in A Letter Concerning Toleration. Civil society,
Locke maintains, arises in order to overcome war and
poverty. At the most basic level, the social compact
aims at the protection of life and to secure the condi-
tions that allow for material comfort (Locke [1689b]
1983, 26). Religion, in contrast, is concerned with the
good of the soul, which means, ultimately, either eter-
nal salvation or damnation (Locke [1689b] 1983, 28).
Madison assumes Locke’s separation of religion from
civic obligations and, from this, concludes that religious
duties take precedence over the claims of civil society.
Religious duties are precedent in time because a man’s
relationship with God exists prior to his citizenship.
More importantly, religious duties are precedent in de-
gree of authority because man’s eternal soul is of higher
status than his temporal body. Just as no rational man
would ever sacrifice his eternal soul for the temporary
good of his body, a man could never rationally forsake
his duties to God in order to fulfill his duties as a citi-
zen. Duties of citizenship—that is, the obligations one
agrees to upon entering the social compact—cannot
trespass upon duties to God. It would be irrational and
contrary to the gravity and nature of man’s religious
obligations for men to agree to a social compact that in-
cludes religious obligations or precepts. Religion, thus,
is an inalienable natural right.

Having established the inalienable nature of man’s
natural religious right, Madison’s argument reaches its
pinnacle:

We maintain therefore that in matters of Religion, no
man’s right is abridged by the institution of Civil Society,

14 Madison also makes the distinction between alienable (e.g.,
money) and inalienable (e.g., opinions) types of property in his essay
on property, which appeared in the National Gazette in 1792:

In its larger and juster meaning, it [property] embraces everything
to which a man may attach a value and have a right, and which
leaves to every one else the like advantage. In the former sense, a
man’s land, or merchandise, or money, is called his property. In
the latter sense, a man has a property in his opinions and the free
communication of them. He has a property of peculiar value in
his religious opinions, and in the profession and practice dictated
by them. . . . In a word, as a man is said to have a right to his
property, he may be equally said to have a property in his rights. . . .
Conscience is the most sacred of all property; other property de-
pending in part on the positive law, the exercise of that being a
natural and unalienable right. (1981, 186–87; Madison’s emphasis)

22



American Political Science Review Vol. 97, No. 1

and that Religion is wholly exempt from its cognizance.
(article 1)

The inalienable character of man’s natural right to re-
ligion has a precise meaning and implication.15 Be-
cause man’s religious right is inalienable, it does not
become part of the social compact. Literally, it is
not alienated; men retain what they possessed in the
state of nature. The status of man’s religious right,
then, is different from property rights such as land
and money within the social compact. Whereas the
right to land or money is limited equally within civil
society (and thereby better secured), religion, Madi-
son says, “is wholly exempt from its [civil society’s]
cognizance.”

Used in a legal sense, the word “cognizance,” then
as now, means “the action of taking judicial or au-
thoritative notice,” or “jurisdiction.” More generally,
it means “knowledge,” “perception,” or “the state of
being aware of” (Oxford English Dictionary, 2nd ed.,
s.v. “cognizance”; see also the entries under “cognition”
and “cognizance” in Johnson 1755 and Ash 1775). A
state noncognizant of religion lacks jurisdiction over
religion. It may not take authoritative notice of or
perceive religion or the religious affiliation of its cit-
izens. A government noncognizant of religion, in other
words, must be blind to religion. It cannot use reli-
gion or religious preference as a basis for classifying
citizens. This is the doctrinal teaching of the “Memo-
rial and Remonstrance.” The state, which is a prod-
uct of the social compact between men originally born
in the state of nature, must remain noncognizant of
religion because religion is not a part of the social
compact. Religion cannot be part of the social com-
pact because of the inalienable character of man’s
right to direct his religion according to conviction and
conscience.16

Insofar as Henry’s bill is cognizant of religion, then,
it usurps power. It violates the fundamental princi-
ples of the social compact. This is why Madison uses
the language of tyranny and slavery in article 2 of the

15 For a discussion of the founders’ understanding of the differ-
ence and relationship between natural rights and civil rights, see
Hamburger 1993.
16 Although the “Memorial and Remonstrance” adopts Locke’s ba-
sic social contract framework, Madison’s derivation of the principle
of “noncognizance” represents a significant break from Locke. In A
Letter Concerning Toleration, Locke does not speak of religion as an
“inalienable” right, nor does he claim that the state must remain
noncognizant of religion. He explicitly says that civil magistrates
are not obliged to tolerate “opinions contrary to human society,
or to those moral rules which are necessary to the preservation of
civil society” (Locke [1689b] 1983, 49). In this context, Locke fa-
mously teaches that civil magistrates need not tolerate atheists or
“that church [whose members] . . . ipso facto deliver themselves up
to the protection and service of another prince” (p. 50), i.e., Catholics.
Locke clearly allows the state to be cognizant of a citizen’s religious
belief or lack thereof. Madison breaks from Locke on this point; his
principle of “noncognizance” is uniquely his own. In this context,
one should also note that other leading American founders adopted
an approach more Lockean than Madisonian. George Washington,
for example, did not share Madison’s conclusion that the state must
remain noncognizant of religion. For a discussion of Washington’s
differences from Madison on matters of church and state, see Muñoz
2003.

“Memorial.” The preservation of free government, he
says, requires, first, the separation of powers, but also,
and more importantly, that no branch of government
“overleap the great Barrier which defends the rights
of people.” This great barrier is the social compact
through which the people grant legitimate authority
to those who govern. Rulers guilty of an encroachment
on the social compact “exceed the commission from
which they derive their authority, and are Tyrants.” It
may seem hyperbolic and demagogic to characterize
the Virginia House of Delegates as tyrannical if they
pass a bill favored by a majority of the voting citizens,
but Madison’s point is that every encroachment of the
social compact, even a popular one, usurps power. It
is to rule without legitimate consent, which is tyranny.
“The People who submit to it,” Madison continues, “are
governed by laws made neither by themselves, nor by
an authority derived from them. . . ” (article 2). No free
people can approve legislation that classifies citizens
and grants them benefits on account of their religious
affiliation, because religion lies outside the jurisdiction
of any social compact that respects and secures natural
rights.

In the “Memorial’s” fourth article, Madison derives
the implications of “noncognizance” with regard to
equality. “If all men are by nature equally free and
independent,” Madison reasons,

all men are to be considered as entering into Society on
equal conditions; as relinquishing no more, and therefore
retaining no less, one than another, of their natural rights.
Above all they are to be considered as retaining an equal ti-
tle to the free exercise of Religion according to the dictates
of conscience. . . . As the [Henry’s] Bill violates equality
by subjecting some to peculiar burdens; so it violates the
same principle, by granting to others peculiar exemptions.
(article 4; Madison’s emphasis)

Madison does not identify whom the law burdens
but presumbly he means non-Christians. Like every-
one else, they had to pay the tax, but their religions
alone were not eligible for funding under the bill. The
“extraordinary” privilege Madison rails against is that
Quakers and Mennonites (or “Menonists,” as both the
bill and Madison called them) would receive their ap-
propriations with no restrictions attached. On its face,
this exception does not seem like a distinct privilege
but rather a realistic accommodation for denomina-
tions that lacked ministers of the gospel—in order to
use the funds appropriated to them for Christian ed-
ucation, Quakers and Mennonites would have to fall
under a different set of rules. A corollary to the doc-
trine of “noncognizance,” however, is equality. Mem-
bers of different religions may not be treated differ-
ently on account of their religion, because any legal
exemption or exception based on religious affiliation
by definition takes religion into the state’s cognizance.
To grant exemptions or exceptions on the basis of re-
ligious affiliation requires the recognition of religion.
All exemptions and exceptions, therefore, no matter
how miniscule or convenient, violate the principle of

23



Madison’s Principle of Religious Liberty February 2003

religious liberty.17 The principle of equality follows
from the principle of “noncognizance.”18

Articles 5 through 14 of the “Memorial” offer prag-
matic arguments. The assessment should be rejected,
Madison contends, because it implies either that the
civil magistrate is a competent judge of religious truth
or that he may employ religion as an engine of civil
policy (article 5), is not needed for the support of the
Christian religion (article 6), will corrupt the purity
and efficacy of religion (article 7), is unnecessary for
the support of civil government (article 8), is a signal
of persecution and thus will discourage immigration
(article 9) and encourage emigration (article 10), will

17 I disagree with Steven D. Smith’s criticism of the “Memorial”
regarding its treatment of Quakers and Mennonites. Smith (2000,
66–68) writes, “The fudginess in Madison’s treatment of Quakers
and Mennonites points to a larger problem that afflicted Madison’s
‘Memorial and Remonstrance’ at all levels”; namely, that Madison
begged the question of the meaning of religious liberty by appeal-
ing to “equality.” Smith fails to recognize that Madison’s use of
“equality” in article 4 derives from his social compact argument
in article 1. Smith thus does not see the solid grounds from which
Madison derives his principle.
18 Although I agree with most of Weber’s (1982) interpretation, I
disagree with his contention that equality is the fundamental teaching
of the “Memorial and Remonstrance.” The “Memorial’s” argument
from equality, Weber correctly points out, clearly reveals Madison’s
understanding that a proper church–state relationship requires the
state to treat all religions and religious citizens equally to one another
and equally to nonreligious citizens. Equality does not exhaust the
principle of “noncognizance,” however. The demand for equal treat-
ment could be met while still using religion as a basis for classification
(the 1790 census, discussed below, is an example of such a case). To say
the same thing differently, equality relates only to the application of a
law to different classes of citizens; it says nothing about the authority
of the state to make those classifications in the first place. In the
assessment case, equality demands that all citizens be treated equally
regardless of religion. But equality alone does not consider whether
the state has the authority to pass an assessment for religion. The
“Memorial’s” fundamental teaching, with which it both begins and
ends, is jurisdictional—namely, that states lack jurisdiction to enact a
law that takes cognizance of religion. This is why Madison concludes
in article 15 by calling Henry’s bill a dangerous “usurpation” by the
legislature, violating “the trust committed to them.” While the assess-
ment does violate the equality “which ought to be the basis of every
law,” its most egregious offense is its “dangerous abuse of power,”
which will allow the legislature to act tyrannically, thus enslaving the
people.

The shortcoming in Weber’s interpretation is that he overem-
phasizes article 4 of the “Memorial” at the expense of recognizing
Madison’s social compact argument in article 1. This leads him to
misinterpret article 15 of the “Memorial,” which begins “Because,
finally, ‘the equal right of every citizen to the free exercise of his
Religion according to the dictates of conscience’ is held by the same
tenure with all our other rights.” Weber takes this statement to mean
that individuals’ religious rights are protected just like other natural
rights. For Madison, Weber contends, “religion is an inalienable right
on a par with other natural rights such as life and property” (p. 185).
Madison’s point in article 15 is actually that religious rights, like other
rights, are secure only if the legislature respects the terms of the social
compact. Both inalienable natural rights (religion) and natural rights
limited and protected as equal civil rights (property) are secured by
the maintenance of the social compact. Madison’s point is not that
they have the same status under that compact, but that they are
both protected by respecting the limits of the compact. Nonetheless,
I agree with Weber’s conclusion that “Madison’s principle [of reli-
gious liberty] was that religious individuals had the same rights and
privileges—and no other—as any other individuals and associations”
(p. 185). It is precisely because religion is an inalienable natural right,
different from other natural rights, that this conclusion is true.

encourage rivalry between sects to control the gov-
ernment (article 11), is adverse to the diffusion of the
light of Christianity (article 12), and is obnoxious to a
great proportion of the citizens, who will not follow the
law, thus enervating the authority of the law in general
(article 13), and because a matter of such importance
should not be imposed without the clearest evidence of
a support of the majority, which is not secured (article
14).19 Article 15, as mentioned, concludes the “Memo-
rial” by returning to its social compact foundations. The
principal and principled argument of the “Memorial,”
to repeat, is that the exercise of religion is an inalienable
natural right and therefore that religion is not part of
the social compact. The state, accordingly, must remain
noncognizant of religion, which means that it can nei-
ther privilege nor punish citizens on account of religion
or religious affiliation.

The “Memorial and Remonstrance” offers
Madison’s most comprehensive philosophical
statement on the fundamental political principles
excluding religion as such from civil jurisdiction. It
stands as the pinnacle of his theoretical reflections on
the subject of church and state. We must not overlook,
though, that Madison was a man of political practice
as well as political philosophy. He labored for the
cause of religious liberty throughout his entire political
career, from his first year in the Virginia House of
Delegates to his final station as the nation’s foremost
retired statesman. These efforts offer ample material
to test any hypothesized interpretation of Madison’s
principle of religious liberty. A careful consideration of
these events demonstrates that the principle of “nonc-
ognizance” consistently explains Madison’s actions.
Madison maintained an unwavering commitment to
the maxim that the state may neither privilege nor
penalize citizens on account of their religion.

MADISON’S POLITICAL EFFORTS TO
ESTABLISH RELIGIOUS LIBERTY

Madison’s Revision of the Virginia
Declaration of Rights

Madison’s first political contribution to the cause of
religious liberty took the form of a proposed amend-
ment to the religion article of the Virginia Declaration
of Rights. In the late spring of 1776, Virginia’s Rev-
olutionary Convention moved to adopt a declaration
of rights. George Mason’s slightly revised initial draft
stated,

That religion or the duty which we owe to our CREATOR,
and the manner of discharging it, can be governed only
by reason and conviction, not by force or violence; and
therefore, that all men should enjoy the fullest toleration
in the exercise of religion, according to the dictates of
conscience, unpublished and unrestrained by the magis-
trate, unless, under colour of religion, any many disturb the
peace the happiness, or safety of society. And that it is the

19 For a helpful restatement of the bare bones on the “Memorial’s”
argument, see Braun 1997, 245.

24



American Political Science Review Vol. 97, No. 1

mutual duty of all to practice Christian forbearance, love
and charity, towards each other. (Madison 1962–91, 1:173)

Dissatisfied with Mason’s text, Madison initially pro-
posed the following revision:

That Religion or the duty we owe to our Creator, and the
manner of discharging it, being under the direction of rea-
son and conviction only, not violence or compulsion, all
men are equally entitled to the full and free exercise of
it accord[in]g to the dictates of Conscience; and therefore
that no man or class of men ought, on account of religion
to be invested with peculiar emoluments or privileges, nor
subjected to any penalties or disabilities unless under &c.
(Madison 1962–91, 1:174)

Most commentators highlight Madison’s replacement
of Mason’s language of toleration with the language of
rights (see, e.g., Buckley 1977, 18; Dreisbach 2000, 14;
and Hunt 1902, 1:166)20 More important, however, is
Madison’s clarification of what the right of free exercise
means. Men are equally entitled to the full and free
exercise of religion according to conscience; therefore,
Madison explains, no man or class of men is to be in-
vested with particular privileges or subject to particular
penalties on account of religion. The full and free ex-
ercise of religion and freedom of conscience means no
privileges or penalties on account of religion (cf. Soifer
2000).21 Madison says here exactly the same thing he
would declare a decade later in the “Memorial and Re-
monstrance.” Religious citizens are to be treated the
same as all other citizens, with no distinctions made on
the basis of religious affiliation. Civil government is to
be blind to religion as such.

The Virginia convention quickly rejected Madison’s
proposed amendment because his language seemed in-
compatible with the existing Anglican establishment
(Buckley 1977, 19). If no class of men was eligible for
peculiar emoluments on account of their religion, then
Anglican clergy could not be employed by the state.
Instead, Virginia adopted an amendment that declared
that “all men are equally entitled to the free exercise of
religion, according to the dictates of conscience. . . .”22
The exact parameters of “free exercise of religion”
were left unstated, and debate over the Anglican estab-
lishment was left for another day. Madison, however,

20 For a discussion of the difference between religious “toleration”
and religious “liberty,” see Palm 1997.
21 Michael McConnell (1990) fails to address the meaning of
Madison’s proposed language “therefore that no man or class of
men ought, on account of religion to be invested with peculiar emol-
uments or privileges, nor subjected to any penalties or disabilities.”
Because of his use of Sanford Cobb’s incomplete historical account of
Madison’s proposed revisions (see footnote 11), McConnell appears
to be unaware that Madison offered such language.
22 The following was adopted as Article XVI of the Virginia Decla-
ration of Rights:

That religion, or the duty to which we owe to our CREATOR, and
the manner of discharging it, can be directed only be reason and
conviction, not by force or violence; and therefore, all men are
equally entitled to the free exercise of religion, according to the
dictates of conscience; and that it is the mutual duty of all to prac-
tice Christian forbearance, love, and charity, towards each other.

had already arrived at his understanding of the princi-
ple of religious liberty. A decade later, when political
circumstances had changed, he would bring Virginia’s
law of religious freedom more in accordance with his
understanding of the right to religious freedom.

Madison and the Drafting of the Bill of Rights

By 1789 Madison had left the Virginia House of Dele-
gates to represent Virginia in the U.S. House of Rep-
resentatives. One of his first legislative aims was to se-
cure the adoption of a bill of rights. The drafting of
the First Amendment, however, offers little guidance
in understanding Madison’s principle of religious lib-
erty. Along with nearly every member of the Consti-
tutional Convention, Madison did not think a bill of
rights essential to the protection of liberty.23 Repub-
lican liberty required a carefully designed system of
representation, the separation of powers, and the culti-
vation of republican character in an extended, diverse,
commercial republic—elements that were provided by
the unamended Constitution. Bills of rights were no
more than parchment barriers and, therefore, not to be
relied on.24

Madison’s view of the necessity of adopting a bill
of rights would change, but not his appreciation of its
utility for protecting liberty. Robert Goldwin (1997, es-
pecially chaps. 4, 5) has demonstrated persuasively that
Madison’s leadership in securing amendments to the
Constitution was primarily defensive. Madison’s inten-
tion was to keep the promise made to those states that
had ratified the Constitution expecting amendments.
At the same time, he sought to silence the Consti-
tution’s critics and to prevent a second meddlesome
and damaging constitutional convention.25 Last in his
priorities was to procure amendments that might do
some good in further protecting the essential liberties
of the people.26 For Madison, the adoption of the Bill of
Rights was more pragmatic than principled. This is why
later in his life he identified the battle for disestablish-
ment in Virginia and the Virginia Statute, and not the
debates in First Congress and the First Amendment, as
“where religious liberty is placed on its true foundation
and is defined in its full latitude” (Fleet 1946, 554). It is
naı̈ve and mistaken to turn to the drafting of the First
Amendment to find Madison’s deepest reflections on
religious liberty.

Compounding this difficulty is also the fact that the
final text of the First Amendment was the product of

23 The Constitutional Convention spent almost no time considering
whether to include a bill of rights in the Constitution. When adopting
a bill of rights was proposed on September 12, no state delegation
voted in favor of the motion (Farrand 1966, 2:588). See also James
Wilson’s recollection during the Pennsylvania Ratifying Convention
of the Constitutional Convention’s near-unanimous opinion of the
lack of necessity of a bill of rights (Farrand 1966, 3:143–44).
24 For Publius’ (Hamilton) classic Federalist statement against a bill
of rights. See Federalist 84 (Madison, Hamilton, and Jay [1788] 1961).
25 For Madison’s (1884, 1:386) view of the possible danger of a second
constitutional convention, see his letter to Edmund Randolph, 10
April 1788.
26 See Madison’s (1884, 1:446–48) letter to George Eve, 2 January
1789.

25



Madison’s Principle of Religious Liberty February 2003

debate and compromise within and among legislative
committees. The religion clauses, in particular, went
through several changes offered by numerous congress-
men. Although Madison certainly had his influence, he
was not the sole author and, hence, not simply respon-
sible for the adopted text.27

What we know for certain is that Madison drafted
the intial text proposed and that he made a few com-
ments on subsequent proposals on the House floor. His
initial proposal consisted of two amendments. For the
national government he suggested,

The civil rights of none shall be abridged on account of re-
ligious belief or worship, nor shall any national religion be
established, nor shall the full and equal rights of conscience
be in any manner or in any pretext, infringed. (1962–91,
12:201)

He also proposed an amendment to apply against the
states,

No state shall violate the equal rights of conscience. (1962–
91, 12:201)

If we are searching for what Madison hoped to secure,
it is reasonable to assume that he expressed it in his
initial drafts (Weber 1982, 174).

The one clear principle that emerges is that Madison
sought to prevent the federal government from penal-
izing citizens because of their religious affiliation. This
can be seen in his proposal that “the civil rights of none
shall be abridged on account of religion or worship.”
Madison also sought to prohibit a certain class of privi-
leges toward religion—“nor shall any national religion
be established”—and prevent infringements of the lib-
erty of conscience by both the national and the state
governments. What he meant by “an establishment of
religion” and “the equal rights of conscience” is clari-
fied by a statement he made on the House floor on 15
August 1789. At the time, the text under consideration
was, “No religion shall be established by Law, nor shall
the equal rights of conscience be infringed,” which was
close to his initial proposal minus the first clause:

MR. MADISON said he apprehended the meaning of the
words to be, that congress should not establish a religion,
and enforce the legal observation of it by law, nor compel
men to worship God in any manner contrary to their con-
science; whether the words were necessary or not he did
not mean to say, but that had been required by some of
the state conventions, who seemed to entertain an opinion
that under the clause of the constitution, which gave power
to congress to make all laws necessary and proper to carry
into execution the constitution, and the laws made under
it, enabled them to make laws of such a nature as might
infringe the rights of conscience or establish a national reli-
gion. To prevent these effects he presumed the amendment
was intended, and he thought it as well expressed as the
nature of language would admit. (Annals of the Congress
of the United States, 1789–1834, 1789, 1:758)

Madison thought that the proposed text made clear
that Congress lacked authority to legislate a traditional

27 For a discussion of the degree to which Madison is responsible
for the final text of the First Amendment’s religion clauses, see
Drakeman 1983.

establishment akin to the Anglican Church’s privi-
leged position in England. What is most revealing in
his comment, however, is the indifference it reveals
toward the precise language used. The real purpose
of the amendment and the Bill of Rights as a whole,
Madison says, is to satisfy those who ratified the Consti-
tution with reservations. He is recorded here as say-
ing that it is not necessary to say whether such an
amendment is necessary, but all familiar with his politics
knew that one year earlier he had vehemently argued
that such an amendment was absolutely unnecessary.
At the Virginia Ratifying Convention on 12 June 1788,
Madison had argued that “there is not a shadow of a
right in the general government to intermeddle with
religion” and that the national government’s “least in-
terference with it [religion] would be a most flagrant
usurpation” (Elliot 1836, 3:330). Because the national
legislature’s powers were enumerated, what was not
granted was denied. With or without an amendment,
Congress lacked all authority over religion, and thus,
the exact language used to restrict Congress’s power
over religion did not matter. Any language aimed at
restricting Congress would be redundant.

The only amendment imposing a new, substantive
restriction on governmental power was Madison’s pro-
posal to prohibit state governments from violating the
equal rights of conscience. This is why Madison called
it “the most valuable amendment on the whole list”
(Annals of the Congress of the United States, 1789–1834,
1789, 1:784). Unfortunately, during Congress’s deliber-
ations, Madison was never recorded clearly defining
what he meant by the “equal rights of conscience.” His
August 15 statement directed at the national amend-
ment that prohibited Congress from infringing the
“equal rights of conscience” would have prohibited
states, in his recorded words, from “compel[ling] men
to worship God in any manner contrary to their con-
science.” This provides some insight into one type of
state legislation that Madison intended to prohibit, but
whether this is all that the “equal rights of conscience”
covers is unclear. Also unclear is how Madison would
have legally defined “compulsion” and “the worship of
God.”

Given Madison’s expressly stated political intention
in securing a bill of rights and the paucity and unre-
liability of the congressional record, the drafting of
the First Amendment is a relatively poor source of in-
formation for Madison’s doctrine of religious liberty.
From what can be determined, Madison’s proposals
in the First Congress approach the principle of “nonc-
ognizance.” Madison’s proposed clause preventing the
national government from abridging the civil rights
of citizens on account of their religion is the same as
the no-penalty provision. His prohibition against the
establishment of any national religion and his restric-
tions on infringements of the equal rights of conscience
approach the no-privilege provision.28 Thus regarding

28 No privileges on account of religion may be what Madison meant
by “the equal rights of conscience,” but he does not say so as explic-
itly as he did in the drafting of the Virginia Declaration of Rights.
Madison may have limited what he was willing to state on the House

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American Political Science Review Vol. 97, No. 1

Madison’s actions in the drafting of the religion clauses
of the First Amendment, we can say that they are con-
sistent with the doctrine of “noncognizance,” though
they do not reaffirm it in its full latitude.

Madison on Government Classifications
Based on Religious Affiliation

When Madison first had the opportunity to interpret
the First Amendment a few months later, however,
he returned to his strict “noncognizance” doctrine. In
early 1790, following Article I, Section 2, of the Con-
stitution, the House of Representatives made prepara-
tions to conduct the first national census. Madison sug-
gested that in addition to obtaining an enumeration of
the population, the census include questions that might
provide information useful to Congress, such as the
relative proportions of citizens engaged in agriculture,
manufacturing, and commerce (Annals of the Congress
of the United States, 1789–1834, 1790, 1:1115). There
was a limit, however, to what questions Congress could
ask. The census, he said, should ascertain information
“only so far as to be extremely useful, when we come to
pass laws, affecting any particular description of peo-
ple.” It could not ask, therefore, whether a citizen was
a religious minister:

As to those who are employed in teaching and inculcating
the duties of religion, there may be some indelicacy in sin-
gling them out, as the General Government is proscribed
from interfering, in any manner whatever, in matters re-
specting religion; and it may be thought to do this, in as-
certaining who, and who are not ministers of the Gospel.
(Annals of the Congress of the United States, 1789–1834,
1790, 1:1146)

Madison’s comments suggest two problems with asking
citizens if they are religious ministers. First, knowing
the relative number of ministers would in no way be
useful to Congress. Ministers as such could never prop-
erly be the subject of legislation because the Constitu-
tion proscribes the federal government from intermed-
dling with religion. Second, the very act of ascertaining
who is and who is not a minister itself violates consti-
tutional principles. To identify ministers as ministers is
to classify citizens on account of their religion. Even

floor on account of his experience in Virginia. Just as Virginia had a
state establishment in 1776, six of the 13 states had official religious
establishments in 1789. To deny explicitly the states’ authority to
privilege religion as such surely would have been rejected out of
hand, just as it was in Virginia in 1776. One of the primary reasons
Madison doubted the efficacy of adopting a bill of rights, in fact, was
that any public attempt to define the rights of the people would fail
to do so in the requisite latitude. “I am sure that the rights of con-
science in particular,” he wrote to Jefferson in 1788, “if submitted
to public definition, would be narrowed much more than they are
likely ever to be by an assumed [federal] power” (Madison 1884,
1:424). Madison may have hoped to secure whatever vague language
he could and then to define it later when the opportunity presented
itself. Regardless, Madison would have at least denied explicitly some
forms of privilege to religion, which may or may not have included
all privileges to religion as such.

in something as innocuous as a census, Madison stood
firm on the principle of “noncognizance.”29

Madison had taken exactly the same position on
a different issue two years earlier. In 1788 he had
received a letter from John Brown, a leading politi-
cian from Kentucky, asking his opinions about Thomas
Jefferson’s draft of a constitution. Jefferson had pub-
lished his proposed constitution for Virginia as an ap-
pendix to Notes on the State of Virginia, and it was
being read with attention because Kentucky was draft-
ing its own constitution in preparation for statehood.
Jefferson’s constitution included a provision excluding
“ministers of the gospel” from the legislative assembly,
a practice that was common at the time, especially in
the South.30 In his response to Brown, Madison singled
out this exclusion for particular disparagement:

EXCLUSIONS. Does not the exclusion of Ministers of the
Gospel as such violate a fundamental principle of liberty
by punishing a religious profession with the privation of a
civil right? does it [not] violate another article of the plan
itself which exempts religion from the cognizance of Civil
power? does it not violate justice by at once taking away
a right and prohibiting compensation for it? does it not
in fine violate impartiality by shutting the door against the
Ministers of Religion and leaving it open for those of every
other. (1900–10, 5:288)31

To single out ministers for exclusion from political of-
fice penalizes them on account of religion. It is to act
on the basis of religion, which is what the principle of
religious liberty forbids. Here, again, Madison requires
the law to be blind to the religious affiliation of citizens.

Madison on Government Support to Religion
as Such

As president, Madison employed the principle of “non-
cognizance” to veto two congressional statutes. In
February 1811, Congress passed a bill incorporating
the Protestant Episcopal Church of Alexandria, D.C.
In addition to recognizing the church as a corporate

29 Irving Brant (1951, 17–18) interprets Madison’s remarks on the
census to support his larger contention that Madison sought to pro-
hibit all federal aid to religion. While it is true that Madison would
prohibit aid to religion as such, Brant fails to recognize that this con-
clusion is derivative from Madison’s principle of “noncognizance.”
The principle of “noncognizance” also forbids singling out religion
for denial of aid. Madison would prevent the government from know-
ing the religious affiliation of its citizens, which means that govern-
ment may not single out religion for either privilege or penalty. Be-
cause of privacy concerns (see Mr. Livermore’s objections in Annals
of the Congress of the United States, 1789–1834, 1790, 1:1145), the
1790 census asked only the names and number of persons in every
household.
30 About half the states belonging to the Union in the first half-
century after independence, including Virginia, had constitutional
provisions excluding clergymen and ministers of the gospel from
serving in their state legislatures (Stokes 1950, 1:622–28).
31 Madison’s reference “to another article of the plan” refers to text
just three paragraphs below the provision excluding clergymen from
public office, which stated, “The general assembly shall not have
power to infringe this constitution, to abridge the civil rights of any
person on account of his religious belief, to restrain him from profess-
ing and supporting that belief. . .” The relevant passages of Jefferson’s
draft of a constitution can be found in Jefferson 1904, 2:286–87.

27



Madison’s Principle of Religious Liberty February 2003

body, the bill specified rules for electing and remov-
ing the church’s ministers. This, Madison said, would
make the church a religious establishment by law. It
would subject sundry rules and proceedings pertaining
purely to the church’s internal organization to enforce-
ment by the state. A government blind to religion can-
not make or enforce laws for the internal governance
of a church. Madison (1984–, 3:176) also objected to
Section 8 of the bill, which stated, “That it shall and
may be lawful for the said vestry to make such pro-
visions for the support of the poor of the said church
as shall by them be thought proper. . . .” This provision,
Madison (1984–, 3:176) claimed, “would be a precedent
for giving to religious Societies as such, a legal agency in
carrying into effect a public and civil duty.”32 The most
important words of Madison’s sentence are “as such.”
His objection is not that the bill would allow a religious
society to participate in the carrying out of public du-
ties, but that a specific legal sanction to help the poor
in a bill of incorporation would suggest that the church
had legal sanction to help the poor because it was a
church. Madison objects to giving religious societies as
such a legal agency in carrying into effect public duties,
which means giving religious groups a special privilege
because they are religious. It is the singling-out of reli-
gion, the treating of religious groups as religious groups
as such, that violates the Constitution.33

For the same reason, Madison vetoed a second bill
concerning religion one week later. Congress passed
a bill resolving the land claims of five individuals in
the Mississippi territory.34 The sixth section of the bill
granted five acres to the Baptist church, which had
erected a meeting house on the land. Madison (1984–,
3:193) vetoed the bill on the straightforward grounds
that

reserving a certain parcel of land of the United States for
the use of said Baptist Church, comprizes [sic] a principle
and precedent for the appropriation of funds of the United
States, for the use and support of Religious Societies. . . .35

32 Congress first passed the bill on 8 February 1811. Following
Madison’s veto, the House of Representatives debated the consti-
tutionality of the bill and the means of reconsidering it before voting
against its passage on 23 February 1811. See Annals of Congress, 11th
Congress, 3rd Session, 129, 453, 828, 983–85, 995–98.
33 James Hutson (2001, 16–17) claims that the veto represents
Madison’s effort undertaken later in life to limit the political influence
of ecclesiastical institutions, i.e., that Madison targeted religious in-
stitutions for unfavorable treatment. In his “Detached Memoranda,”
Madison does warn that “there is an evil which ought be guarded agst
[sic] in the indefinite accumulation of property from the capacity of
holding in perpetuity by ecclesiastical corporations.” But Madison
also says that “the power of all corporations, ought to be limited in
this respect” (Fleet 1946, 556; emphasis added). Madison’s concern
about the accumulation and concentration of property was not ex-
clusively about the property of religious institutions as Hutson seems
to suggest.
34 “An Act for the relief of Richard Tervin, William Coleman, Edwin
Lewis, Samuel Mims, Joseph Wilson, and the Baptist church at Salem
meeting house, in the Mississippi Territory,” passed by Congress on
20 February 1811 (American State Papers: 10, Miscellaneous 2:154).
35 On 2 March 1811, both houses of Congress reconsidered the bill.
The House failed to override Madison’s veto, then passed the bill
after removing Section 6. The Senate concurred on 3 March 1811.
See Annals of Congress, 11th Congress, 3rd Session, 125, 127, 150–

Both vetoes reflected Madison’s (1984–, 1:17) under-
standing that the rights of conscience and the functions
of religion are, as he stated in his first inaugural
address, “wisely exempted from civil jurisdiction.”

It would seem that Madison violated his principle
of “noncognizance” in 1812 when he issued the first of
his four presidential proclamations declaring national
days of prayer and thanksgiving. The practice of issuing
religious proclamations had been started by George
Washington and continued by John Adams. Jefferson
refused to issue them and Madison sought to follow
Jefferson’s example. During the War of 1812, however,
Congress requested that President Madison revive the
tradition. In his “Detached Memoranda,” (Fleet 1946,
562) Madison says that he issued the proclamations
because he thought “it was not proper to refuse a
compliance [to Congress] all together.”36 Removed
from the exigencies of war and politics, however,
Madison forthrightly revealed that his true position was
that religious proclamations by the president violated
the Constitution.

This revelation has been interpreted as conclusive
proof that Madison stood for the “strict-separationist”
wall between church and state (Brant 1951, 23).
Madison’s own explanation is more nuanced, however.
First, Madison explicitly permits public leaders to make
religious proclamations as private individuals, a point
that is often overlooked:

In their individual capacities, as distinct from their official
station, they [government officials] might unite in recom-
mendations of any sort whatever, in the same manner as
any other individuals might do. But then their recommen-
dations ought to express the true character from which
they emanate. (Fleet 1946, 560)37

What violates the Constitution are religious proclama-
tions made by a government official acting in his official
capacity. Even though proclamations alone are only ad-
visory, “they imply a religious agency, making no part
of the trust delegated to political rulers” (Fleet 1946,
560). For the president acting in his official capacity to
advise citizens to pray and give thanksgiving to God
suggests that prayer is a legitimate subject for govern-
ment legislation. But prayer, like every other aspect of

51, 329, 508, 900, 1098, 1103, 1105, 1106. See also Madison’s (1884,
2:511–12) letter, dated 3 June 1811, to the Baptist Churches on Neal’s
Creek and on Black Creek, North Carolina, discussing his veto.
36 Madison’s four proclamations requesting days of prayer and
thanksgiving can be found in Richardson 1896, 1:513, 532–33,
558, 560–61. A perusal of the text of the proclamations reveals
Madison’s ambivalence in issuing them. Each one begins with a state-
ment that Congress has requested that such a proclamation be issued.
Madison’s first proclamation, which is typical of all four, begins,
“Whereas the Congress of the United States, by a joint resolution
of the two Houses, have signified a request that a day may be recom-
mended to be observed by the people. . . .” Madison never takes per-
sonal responsibility for initiating the proclamations. He is extremely
careful, moreover, to emphasize their advisory character. He “rec-
ommends” “to all those who shall be piously disposed to” pray to do
so. Madison is also extremely careful to use nonsectarian language.
He recommends that citizens render homage to the “Sovereign of
the Universe” and “the Benefactor of Mankind” and celebrate “the
goodness of the Great Disposer of Events.”
37 Locke ([1689b] 1983, 27) makes this same point in A Letter Con-
cerning Toleration.

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American Political Science Review Vol. 97, No. 1

religious worship, is not a part of the social compact.
To issue an official religious proclamation implies that
the state has authority over religion, which indicates a
lack of understanding of the legitimate authority of the
state and nature of man’s inalienable religious right.

In his “Detached Memoranda,” Madison also writes
that congressional and military chaplains violate the
First Amendment for the same reason. The purpose of
chaplains is to facilitate religious worship, and although
“it [may] be proper that public functionaries, as well
as their Constituents shd [sic] discharge their religious
duties,” such is not a proper object for the law (Fleet
1946, 560). It would have been much better proof of
their pious feelings, Madison (1900–1910, 9:100) later
wrote to Edward Livingston, if individual congressmen
would have maintained a chaplain with contributions
from their own pockets. The same would go for the
military.

Madison’s discussion of legislative chaplains nicely
summarizes his doctrine of “noncognizance” and how,
in his judgment, that principle leads to better, safer
politics. The selection of a legislative chaplain neces-
sarily requires favoring one religion over others unless
a chaplain of every denomination is employed. With
such a selection before them, legislators are encour-
aged to think of themselves along sectarian lines. One
sect’s benefit is necessarily another sect’s loss. “Nonc-
ognizance” moderates sectarian politics by preventing
the government from either privileging or punishing re-
ligion as such. Sectarian political aspirations are limited
because religious affiliation is not allowed as grounds
for government action. Legislators and citizens are thus
encouraged to see themselves not as sectarian parti-
sans, but as fellow citizens who mutually respect one
another’s rights. The multiplicity of sects further en-
courages this by giving every religion an interest in
mutual toleration and respect. The intractable prob-
lem of religious oppression that follows from religious
diversity is thus submerged within a republic dedicated
to respecting individuals’ natural rights.

The ground for the principle of “noncognizance” is
man’s inalienable natural right to religious freedom.
Because religion is not part of the social contract, gov-
ernment must remain blind to religion as such. It can
neither privilege religion nor punish citizens on account
of their religion. Madison held fast to this position
throughout his entire political life, from his first year
in the Virginia legislature, when he proposed amend-
ments to the Virginia Declaration of Rights, to his last
reflections as the “Father of the Constitution” in his
“Detached Memoranda.”

MADISON AND CONTEMPORARY FIRST
AMENDMENT RELIGION JURISPRUDENCE

It is relatively easy to apply Madison’s principle
of religious liberty to contemporary constitutional
controversies.38 A Madisonian approach to the First
Amendment would utilize the straightforward rule that

38 It is important to note that one should not assume that Madison’s
principle of “noncognizance” represents the “original intentions” of

the state must remain noncognizant of religion. No
state actor or government policy could classify, punish,
distribute, or withhold benefits from individual citizens
or organizations on account of religion or religious
affiliation. To borrow from contemporary civil rights
discourse, the Constitution must be “religion blind.”39

The Establishment Clause

A Madisonian interpretation of the Establishment
Clause would prevent the state from singling out
religious citizens or religious organizations for any
reason. Government policies that require cognizance
of religion or religious affiliation in order to bene-
fit religion, then, violate the First Amendment. The
Nebraska taxpayer-funded legislative chaplaincy up-
held by the Supreme Court in Marsh v. Chambers
(1983) exemplifies such a violation. Nebraska became
cognizant of religion in two ways: It hired an em-
ployee on the basis of religious affiliation—a prereq-
uisite for the chaplain position, no doubt, was that one
be a religious minister—and it employed an individ-
ual specifically to conduct a religious exercise, to open
the state legislative session with a prayer. A second
example of an impermissible state recognition of reli-
gion is the New York tax exemption upheld in Walz
v. Tax Commissioners of New York City (1970). New
York exempted from taxation real property “owned
by a corporation or association organized exclusively
for . . . religious . . . purposes” and used “exclusively
for carrying out” such purposes. New York became im-
permissibly cognizant of religion from a Madisonian
perspective when it made religion a criterion for a
government classification (nontaxpayer status). For the
same reason, a Madisonian approach also would have
struck down the tax exemption ruled unconstitutional
by the Supreme Court in Texas Monthly Inc. v. Bullock
(1989). The Texas statute in question exempted from
sales and use taxes “[p]eriodicals . . . published or dis-
tributed by a religious faith . . . consist[ing] wholly or
writings promulgating the teachings of the faith and
books . . . consist[ing] wholly of writings sacred to a re-
ligious faith.” Government must remain blind to reli-
gion, which means that it cannot benefit individuals or
organizations on account of their religious character.

Walz offers a clear example of how “noncognizance”
differs from “nonpreferentialism.” Chief Justice
Warren Burger’s majority opinion upheld the New
York exemption on the grounds that tax exemptions
for religious organizations are “deeply embedded in

the framers and drafters of the First Amendment. Madison did not ex-
plicitly propose the principle of “noncognizance” in the First Federal
Congress and his proposed amendment protecting the equal rights of
conscience against state encroachments was not adopted. This article
attempts only to offer a “Madisonian” approach to First Amendment
religion jurisprudence, not a more general interpretation of the “orig-
inal understanding” of the First Amendment’s religion clauses.
39 Philip B. Kurland (1961) advocated for the Court to adopt a test
similar to Madison’s position. Kurland did not, however, trace his
position back to Madison, suggesting instead that a proper construc-
tion of the religion clauses “cannot now be confined to the application
they might have received in 1789” (p. 5).

29



Madison’s Principle of Religious Liberty February 2003

the fabric of our national life” and that such policies
reflect “benevolent neutrality toward churches and re-
ligious exercise generally” without favoring one reli-
gion over others (Walz 1970, 676–77). His opinion in-
voked what has become standard “nonpreferentialist”
reasoning: Government policies that aid religion meet
constitutional muster if they support all religions
equally. “Noncognizance” respects equality, but it does
not make equality among religions the grounds for
constitutional sanction. Under the principle of “nonc-
ognizance,” what matters is whether the government
makes religion a criterion for governmental classifica-
tion. As a result, all religions stand in formal equality
with one another before the law. But this is not all.
Madison’s principle also requires that religious indi-
viduals and organizations stand in formal equality with
nonreligious citizens and organizations, a demand that
“nonpreferentialism” does not make. In order for a tax
exemption to pass Madisonian constitutional muster,
it must base eligibility on a nonreligious classification,
e.g., charitable nonprofit organizations. Religious or-
ganizations as well as nonreligious organizations then
may apply for the exemption without needing to make
reference to the religious or nonreligious character
of their organization. An example of a permissible
“religion-blind” tax exemption came before the Court
in Mueller v. Allen (1983). The state of Minnesota al-
lowed a state income tax deduction for tuition, text-
book, and transportation expenses incurred for sending
a child to any elementary or secondary school. Since the
tax deduction did not inquire into the religious charac-
ter of the child’s school, the state remained noncog-
nizant of religion.

The principle of “noncognizance” also forbids the
state from using religious affiliation to exclude in-
dividuals or organizations from generally available
benefits. If, for example, New York extended tax
exemptions to nonprofit organizations but excluded
religious organizations as such from qualifying for
them, this would violate the First Amendment. In
Rosenberger v. University of Virginia (1995), the Court
evaluated a University of Virginia policy that explic-
itly excluded groups that sponsored religious activities
from receiving student activity funds. Following its own
rules, the university denied funding to a student group
that published a multicultural Christian newspaper,
despite its general policy of funding student-sponsored
newspapers. A majority of the Supreme Court struck
down the university regulation on the grounds that it
violated the free speech rights of students. A
Madisonian interpretation of the First Amendment
would have reached the same result on the grounds that
to deny a student newspaper generally available news-
paper funds because their paper contains religious con-
tent subjects religious students to a particular disability.
The university became unconstitutionally cognizant of
religion by singling out religious activities for exclusion
from generally available funds. The state must remain
blind to religion, which means that if a public univer-
sity chooses to fund student-sponsored newspapers, it
cannot exclude religious newspapers because they are
religious.

Rosenberger reflects the distance between a Madiso-
nian approach to the Establishment Clause and “strict
separationism.” As discussed above, in Rosenberger
Justice Souter (with whom Justices Stevens, Ginsburg,
and Breyer agreed) offered a “strict-separationist”
dissent that argued that to allow direct funding to
core religious activities by an arm of the state vio-
lates the Establishment Clause. Justice Souter’s “strict-
separationism” demands that no government benefit
directly support religion or religiously motivated activ-
ities. If pushed to its logical conclusion, it requires state
actors to identify and to monitor religious recipients of
benefits to ensure that they do not use them in a man-
ner that directly supports religion. To ensure compli-
ance with prior “strict-separationist” rulings, the Uni-
versity of Virginia adopted the safest course of action—
singling out religious groups in order to deny funding
them so as to avoid a possible Establishment Clause
violation. Madisonian “noncognizance” requires a dif-
ferent course of action and a different line of inquiry. It
asks whether the policy in question takes religion into
account for either privilege or penalty. If religion or re-
ligious affiliation is not made the basis for qualification
or exclusion, the policy stands. “Noncognizance” does
not require state actors or judges to ask about or to
monitor the use of governmental benefits by religious
recipients. Quite the opposite, it prevents the state from
taking religion or religious affiliation into its view.

The simplicity of the principle of “noncognizance”
offers perhaps its most important advantage in the
vexing realm of religion in public schools and public
money supporting private religious schools. Madison
would have viewed prayer in public schools in the same
way that he viewed government-funded military chap-
lains and religious proclamations made by the presi-
dent. Religion is not part of the social compact, and
therefore, the state has no authority over religious ex-
ercises as such. States and state actors acting in their
official capacity lack authority to command or direct
religious activities. A Madisonian interpretation of the
Establishment Clause, then, would have supported the
Court when it ruled that public school officials cannot
compose and direct prayer (Engel v. Vitale 1962) or
mandate daily Bible readings at the beginning of the
school day (Abington v. Schempp 1963). By the same
principle, however, voluntary prayer and Bible read-
ings by students—or even school officials when not act-
ing in their official capacity—on public school grounds
or at public school events are constitutional. A public
school may not require such activities, but it also may
not single out religious activities to prohibit them.

Regarding the constitutionality of public money go-
ing to private religious schools, the Madisonian ap-
proach would adjudicate the issue like any other policy
of governmental funding. The government may not use
religious affiliation as a classification or criterion for
either privilege or penalty. The government may not
fund schools because they are religious, but it also may
not fund schools only because they have a religious
affiliation. If the government chooses to adopt a gen-
eral policy to fund educational programs in public and
private schools, it may not adopt standards that take

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American Political Science Review Vol. 97, No. 1

religion into account. Religiously affiliated schools can-
not be disqualified automatically from federal or state
funds that provide, for example, sign-language inter-
preters for deaf students (upheld in Zobrest v. Catalina
Foothills School District 1993), school teachers for
remedial education for disadvantaged children (ini-
tially ruled unconstitutional in Aguilar v. Felton 1985
but then ruled constitutional in Agostini v. Felton 1997),
or library services and computer hardware for secu-
lar education (upheld in Mitchell v. Helms 2000). The
First Amendment prohibits religion or religious affilia-
tion from entering the government’s consideration. A
Madisonian interpretation of the Establishment Clause
would allow a general program of school vouchers, in-
cluding vouchers to private religious schools, so long as
religious schools are in no way singled out for special
privileges or particular penalties. Similarly, “charitable
choice” legislation, which extends government funding
to faith-based organizations, would pass a Madisonian
test as long as funding decisions do not require cog-
nizance of religious affiliation.

The Free Exercise Clause

The same standard for Establishment Clause jurispru-
dence would also apply to Free Exercise cases: Gov-
ernment must remain blind to religion and, hence, may
not privilege or penalize religion as such. The domi-
nant free exercise issue over the last decade has been
whether the Free Exercise Clause grants to religious
individuals and organizations exemptions from neutral,
generally applicable laws that have the indirect effect
of burdening religious exercise. As discussed above,
Michael McConnell and Justice Sandra Day O’Conner
invoke Madison as the founding father who champi-
ons religious exemptions. A proper understanding of
Madison’s principle of “noncognizance,” however,
leads to the conclusion that Madison would find re-
ligious exemptions from neutral, generally applicable
laws to violate the principle of religious liberty. To clas-
sify citizens or organizations as “exemption eligible”
on account of religion requires the government to take
cognizance of religion. It grants religion as such special
treatment, which violates the principle of a “religion-
blind” constitution. Madison would have agreed with
most of the Court’s early Free Exercise jurisprudence,
which denied to religion and religious groups exemp-
tions from generally applicable laws (e.g., Reynolds
v. United States 1879; denying a practicing Mormon
an exemption form federal laws banning bigamy and
polygamy). He would have objected to the modern
Court’s introduction of a compelling state interest test
in Sherbert v. Vener (1963; granting a religious exemp-
tion to a Seventh-Day Adventist from unemployment
insurance regulations requiring Saturday work) and
its subsequent implementation in Wisconsin v. Yoder
(1972; granting Amish parents exemptions for state
laws requiring school attendance past the eighth grade).
He would have cited with approval the Court’s return
to its pre-Sherbert position in Employment Division v.
Smith (1990; ruling that the Free Exercise Clause does

not grant religious individuals and organizations a con-
stitutional right to exemptions from generally applica-
ble laws that do not target religion but have the effect
of burdening religious exercise). A Madisonian inter-
pretation of the Free Exercise Clause would prohibit
the government from making laws that single out a reli-
gion or religion generally for unfavorable treatment. It
would also deny the government the authority to make
laws or exemptions singling out a religion or religion
generally for favorable treatment under the law.

Although James Madison has been invoked by jus-
tices and judicial scholars for over 100 years, Madison’s
principle of religious liberty has never been fully rec-
ognized or adopted by the Supreme Court. Judges and
scholars have failed to understand Madison’s radical
but simple teaching: Religion is not part of the social
compact, and therefore, the state may not take religion
within its cognizance. A Madisonian interpretation of
the Establishment Clause would prevent the state from
supporting religion as an end in itself, but it also would
prevent the state from excluding religious individu-
als and organizations from generally available benefits
supporting a secular purpose. A Madisonian interpre-
tation of the Free Exercise Clause would prevent the
state from prohibiting religious exercises directly, but
it would not extend to religious individuals and orga-
nizations special exemptions from generally applicable
laws that indirectly burden religious exercise.

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