So Richard Reinsch has a good article on the limits of James Madison’s religious thought–as expressed in the overrated MEMORIAL AND REMONSTRANCE. There the duty each of us has to our Creator is private or merely “conscientious.” It’s a limit to government, to be sure. But it’s a personal–or not social–limit. It’s far from clear that Madison is saying that government is limited by the freedom the church as an organized body of thought and action.
Richard is quick to add he’s not saying that America is ill-founded. That’s actually true if we remember that our First Amendment doesn’t embody the thought of Madison the polemical theorist. It was shaped, as Chief Justice Rehnquist reminded us, by Rep. Madison’s sensible legislative compromises. The Constitution, unlike the M and R, actually the protects “the free exercise of religion”–as opposed to “the [mere] rights of conscience,” and clearly our Framers understood religion to be more than “the religion of the self.”
So what separates the American Founding–a compromise throughout between Lockean (Cartesian) abstracted or isolated personalism and Christian or relational personalism–from the thoroughgoing “republicanism” of the French revolution is that our understanding of religious freedom is freedom of the church (meaning organized religious body). And that’s why the ObamaCare contraceptive mandate is unconstitutional (although I would want that fact expressed with a doctrine better than the “compelling” SHERBERT one affirmed in the RFRA).
As the underrated and unjustly neglected Orestes Brownson explained, our Constitution limits government “from below” by our freedom to satisfy our economic needs as material beings and “from above” by our freedom to satisfy our spiritual needs (and do our spiritual duties) as relational, religious beings. Brownson goes on to explain how our Constitution presupposes the truth of the doctrine of the Trinity, but I’ll save that weighty explanation for another time.