James Madison on Religion and Politics: Rhetoric and Reality

The recent Oregon v.Smith decision's shifting of the burden in free exercise cases from legislatures to minority religious claims has brought fierce opposition, most conspicuously from leading nonpreferentialist Richard J. Neuhaus, who sees in it the foundation of majority tyranny. Against Smith, Neuhaus employs Madison's “Memorial and Remonstrance Against Religious Assessments,” which is universally read to argue that the superiority of religion to politics proscribes majoritarian hegemony over religious practices. I contend that the Memorial's appeals are better understood as rhetoric than as reflecting Madison's true view. I find Madison hostile not only to religious establishments but also to religion itself. This hostility was the basis of his rejection of the nonpreferentialists' utility-based argument for government support of religion. In this light, I uncover a curious historical irony: the nonpreferentialist Neuhaus seeks today to protect religion from hostility by adhering to a position that was originally animated, in key respects, by hostility both to religion and to its nonpreferential support.