James Madison vs. Antonin Scalia

In a historic exclusive interview with Hamodia, a newspaper of Torah Jewry in Israel, U.S. Supreme Court Justice Antonin Scalia explains his view of church-state separation. After describing his commitment to constitutional "originalism," he said:

Whatever the Establishment Clause means, it certainly does not mean that government cannot accomodate religion, and indeed favor religion. My court has a series of opinions that say that the Constitution requires neutrality on the part of the government, not just between denominations, not just between Protestants, Jews and Catholics, but neutrality between religion and non-religion. I do not believe that. That is not the American tradition.

Note how Protestants, Jews and Catholics are named and personalized in Scalia's comments while the existence of non-religious persons can only be inferred from impersonal language. His comments appear to presume that non-religious persons have no rights of conscience.

Whenever the original intent of the constitution is discussed, I find it hard to understand how James Madison's Memorial and Remonstrance can be ignored. Madison is the framer of both the Constition and the Bill of Rights. His Memorial and Remonstrance should be originalism's locus classicus regarding religion and the first amendment. Madison's comments presuppose that all American citizens have rights of conscience:

If "all men are by nature equally free and independent," all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an "equal title to the free exercise of Religion according to the dictates of Conscience." Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us.