James Madison’s Political Science of Religious Liberty

Abstract

In Fulton v. City of Philadelphia (2021), Justices Alito, Thomas, and Gorsuch called for the reversal of Employment Division v. Smith (1990), the Supreme Court’s leading Free Exercise Clause precedent. For years, Smith has been targeted by originalists who contend that, among other things, Smith is incompatible with a Madisonian understanding of religious freedom. This article challenges that conclusion. It attempts to do so not by employing the typical tools of originalist legal scholarship, but rather by setting forth Madison’s political science of religious liberty. The article argues the logic of Federalist 10 is incompatible with exemptions from generally applicable laws and, therefore, that a Madisonian construction of the Free Exercise Clause would not support a constitutional right to religious exemptions. Insofar as Federalist 10 articulates the Constitution’s underlying structural design, Free Exercise Clause exemptions undermine one of the principal mechanisms that Madison believed would protect liberty, including religious liberty.