For my money, Professor Vincent Philip Muñoz of Notre Dame is doing some of the best work in Political Science these days. He and Michael Zuckert have run the Center for Citizenship & Constitutional Government up there, and been instrumental in getting the American Political Thought journal and APSA section off the ground. It is particularly important that APT started doing those panels at APSA now that the Claremont Institute is seemingly no longer welcome there; it’s one of only places a Constitutionally-minded Conservative like myself could give a paper, other than the Voegelin society.
Muñoz in his own scholarship has made big contributions to the historical debates about the 1st amendment religion clauses. I read everything I can by him on it- and I’m not persuaded by his approach to the 1st amendment right now, but I always learn a great deal.
His approach to the original meaning of the establishment clause is what he considers Madison’s approach to be- a “non-cognizance” or religion blind approach to public benefits. This fits very well with the recent case of Trinity Lutheran (2017); the court struck down a law preventing a church from getting recycled tires for their playground, simply because they were a church, while every other group got the recycled tires benefit. Just treat the church like every other group is the logic- “no special benefits, no special penalties” is how Ralph Rossum used to put it, who taught both Muñoz and myself Constitutional law at Claremont (note also that Muñoz has been helping Rossum and Tarr update and continue their excellent originalist Con Law hornbook. I seem to remember remember Carl saying he liked that book too).
That religion blind approach to establishment differs from the strict separationism espoused by liberal secularists (taking a page from Thomas Jefferson) and the non-preferential support espoused by religious conservatives (taking a page, for example, from George Washington). And on the free exercise side of things, the “no special benefits” aspect of the religion blind approach means no exemptions should be offered when indirect burdens incur on religion, pace Sherbert v. Verner, Michael McConnell’s arguments, and the RFRA laws. Muñoz distinguishes these 3 approaches in his first book God and the Founders: Madison, Washington, and Jefferson (2009) and argues for the religion blind “Madisonian” approach in his latest book, Religious Liberty and the American Founding (2022). He argues that the structure of the social contract and natural rights arguments espoused by Madison entail the religion blind approach.
I am out of my league when it comes to debating the historical point of what exactly Madison’s view on religious freedom was, and whether religion blindness was the consensus original meaning of the 1st amendment (I tend to think not based on the primary sources I’ve read thanks to Mark David Hall’s collections and books). But I do know something about natural rights arguments and Madison- so I’ll make a little critique of Muñoz of my own here on that point.
Specifically what I’d like to take up is Muñoz’ 2021 essay in APT, “James Madison’s Political Science of Religious Liberty.” In that essay he goes beyond Madison’s speech on religious liberty, the “Memorial and Remonstrance,” to Federalist 10 and its discussion of religious sects. He thinks a correct reading of Federalist 10 would leave out the possibility of exemptions for religious freedom. My one big critique of Muñoz’ reading of Madison:
It’s all Bargaining, No Deliberation.
Muñoz offers a fine summary of Madison’s argument that large republics will work better than small republics in controlling the effects of faction. The answer, as Muñoz points out, is twofold: a multiplicity of interests and representation taken from that multiplicity which will “refine and enlarge the public views.” Muñoz depicts the large and small republics’ interest groups with helpful diagrams, showing whether they would oppose or favor a given policy favoring a given group. How will large republics lead to better policies? Muñoz thinks Madison considered “centrist” policies to be inherently better, and that those are “most conducive toward securing the public good.” As Muñoz sees it:
Madison believes that representatives will be more likely to build moderate coalitions consistent with the public good than to form coalitions to advance partial or unjust policies…
When Madison speaks of ‘refining,’ he has in mind representatives changing the substance of views, moderating them, ideally toward a shared sense of justice and common understanding of the public good.
This view that centrist public policy is inherently better public policy leads Muñoz to argue Madison couldn’t have envisioned exemptions for religious freedom, since that would undermine the necessity of groups on the extremes to compromise.
I don’t agree with Muñoz about this reading of Federalist 10- but it is a very common misreading. Muñoz’ reading of Madison is not much different than James Buchanan and Gordon Tullock’s Calculus of Consent; the true public good is ultimately what the median voter wants, or the aggregate of people’s preferences. Good and bad public policy is not judged by its rationality, but its reasonableness on this bargaining conception of the role of representation.
But pace Muñoz, when Madison says he wants representatives who will “refine,” I think he means deliberation. Deliberation is the consideration of information, goals, and arguments about means; bargaining and logrolling ignores the merits of issues to only consider preferences. Note that Madison also says he wants representatives who will “enlarge”; that is closer to bargaining. In the full and correct reading of Madison, both deliberation and democratic bargaining are present. This is even more evident if we consider Madison’s later essays advocating parties in the National Gazette; where is the “centrism” there?
Some have argued that the later Madison of the National Gazette articles contradicts the earlier Madison of the Federalist. Following my teacher Joe Bessette, I disagree- if anything, we ought to read Federalist 10 with those party essays in mind. What it means is that Madison envisioned a TRUE PLURALISM, not a bracketed deliberation. Centrism was not the goal of the large republic, but good public policy based on the “mild voice of reason.” And in fact, polarization is sometimes the prudent and appropriate response to a problem, rather than centrism. That is Madison’s view in full I think- and it is also the Constitutional path we have followed in practice; see for example, the “extremism” of Abraham Lincoln or Martin Luther King Jr. American politics allows for extremist contributions to our national deliberation- and though we don’t realize it at the time, the extremists are sometimes right.
This devastating critique notwithstanding (ha), Muñoz’s discussions of Madison (and in particular natural rights in Madison’s thought) are a most welcome part of the political science scene these days.
Great Article! I couldn't agree more.
Three full cheers for Bessette, and on con-law, for Rossum & Tarr & Munoz! They won't lead you wrong.