The Possibility and Meaning of the Natural Right of Religious Liberty: A Response

Abstract

I find it deeply gratifying to have my work scrutinized so seriously by scholars whom I hold in such high regard. Two primary themes emerge in the four reviews: (1) whether a natural rights approach to American constitutionalism is possible in this century, and (2) whether I have adequately and accurately captured James Madison’s natural rights constitutionalism. Letme prefacemy response by returning to the idea that guides the book as a whole. Whether a recovery of natural rights constitutionalism is possible requires first that we understand the founders’ natural rights philosophy, including the philosophical and theological foundations on which it rests, and then that we deduce the constitutional doctrines that follow from it. My book’s primary aim is to articulate and explain the founders’ thought. Only after we comprehend their natural rights constitutionalism canwe then consider whether we ought to attempt to return to it in our law and politics. Andrew Koppelman thinks that such a recovery ought not be attempted because it is not possible. Referring to the founders and their natural rights political philosophy, hewrites that “theirworld is not ours, and they relied on premises that we cannot share and that cannot now be the basis of public law” (Koppelman 2023, in this issue, 392). I note that Koppelman draws an “ought” from an “is”—we should not rely on the founders’ political philosophy