Vincent Phillip Muñoz: Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses. Chicago: University of Chicago Press, 2022.
Because most judges and scholars today have no sense of the natural-rights foundation of the United States Constitution, they have for the most part made a hash of the legal right to freedom of worship and the prohibition of religious establishments. “We no longer understand…what the Founders meant when they declared religious liberty to be an ‘inherent,’ ‘natural,’ or ‘inalienable’ right” and, since the Founders considered government as rightly intended to secure that and other such rights, “we” no longer understand the Constitution as written.
In his task of recovery, Vincent Phillip Muñoz proceeds cautiously, illuminating the meaning of the Free Exercise Clause and the Establishment Clause insofar as the Founders explained them, then consulting their writings on natural rights themselves to construe those dimensions of meaning not made explicit in the founding documents. Additionally, the church-state provisions of contemporaneous states’ constitutions provide insights into what the Framers of the U. S. Constitution were likely to have been thinking. Some of the vagueness of the Bill of Rights owes to the fact that statesmen at the time already ‘knew what they were talking about,’ and didn’t need to elaborate their meanings to one another. Another reason for proceeding cautiously, indeed slowly and with patient repetitions of points previously made, is that Muñoz hopes to influence today’s judges and Constitutional scholars; typically, they have no background whatever in natural-rights philosophy, so writing for them is rather like lecturing to college sophomores. Clarity and reinforcement, clarity and reinforcement. His “new approach to the First Amendment Religion Clauses”—new to this generation because faithful to the Founders—takes a lot of careful explaining to members of such an audience, set in their own several interpretative ways.
The first of the book’s three parts concerns “the Founders’ political philosophy of religious freedom”; Part Two addresses the original meanings of the Religion Clauses and Part Three offers an originalist construal of those clauses based upon the doctrine of unalienable natural rights, which the Founders’ more or less unanimously upheld.
The Founders considered religious liberty to be a natural right of all human beings, “not just white men,” as some of our contemporaries never tired of asserting in their efforts to seize rhetorical advantage over their political enemies. A clear example of this conviction was Virginia’s 1776 Declaration of Rights, drafted by George Mason and amended according to a recommendation proposed by James Madison. Where Mason had religion “toleration,” Madison had “full and free exercise” of religion—this, on the grounds that toleration implies a right granted by a government, not a natural right endowed by God, inherent in human individuals as such. The Virginia Declaration “mark[ed] the official beginning of the new nation’s commitment to religious freedom,” inasmuch as Virginia’s language was included in the preambles to eight of the twelve state constitutions drafted between 1776 and 1786. “Only South Carolina failed to recognize the right of religious liberty” and, “not coincidentally,” became “the only Founding-era state to erect an official religious establishment.” And even South Carolina changed its ways, inserting a free exercise clause in 1790. Connecticut, which had no declaration of rights, instead enacted a statute securing “the Rights of Conscience in Matters of Religion,” restricting these to persons “professing the Christian Religion,” making it “the one Founding-era state after 1790 that clearly limited freedom of worship to Christians.”
This doesn’t mean that all states refused to impose restrictions on the civil rights of non-Christians or non-Protestants. Some did. It is “the failure to appreciate the Founders’ distinction between natural and acquired rights [that] has led some to conclude—mistakenly—that the Founders limited religious freedom only to Christians or even just to Protestants.” But it is one thing to affirm a natural right to worship (or not to worship) as one’s conscience dictates, another to extend the civil right to hold public office or to vote. One deduces the right to worship from the laws of nature and of nature’s God; the community derives civil rights from the political process, from the consent of the governed as determined by the regime—in the case of the American states, republics of one sort or another, none of them monarchies.
If religious liberty is “a natural right possessed by all individuals,” what does it mean to hold that right to be “inalienable”? All men are created equal in (among other matters) “their natural dominion over their own lives,” their right to govern themselves. They are, typically, competent to the tasks of self-government, and those tasks are humanly possible to perform. Given the unfortunate propensity of many individuals to violate other individuals’ natural rights in the hope of aggrandizing themselves, human beings first enter into a civil society aimed at mutual respect for one another’s natural rights; this “compact” is, as Madison puts it, “implied or presumed,” not written down. The United States has taken the further step to agree ‘in writing’ to “a Government over them.” As Muñoz puts it, “the original compact exists among all the individuals who are parties to it, rather than between the government”—which did not exist, yet—and “the people.” The people’s subsequent institution of a government determines the regime that will rule them. The sovereign people institute the regime-forming laws, the ‘constitutional’ laws, which are then ratified (in America’s case) by the people in the persons of their representatives within each state. Following John Locke, Madison holds that “unanimity establishes (and then simple majority rule governs) the initial [civil] society; constitutions, however, can legitimately empower one person, a few, many, or some combination of those” in the subsequent political order, the ruling offices, institutions, forms of the regime. “Unanimous consent to the original compact is required because all individuals are naturally free,” but majority rule suffices when a subsequent government’s design “actually secure[s] the ‘general good,’ understood first and foremost as the liberty of the naturally free and independent individuals who form the social compact.” That is, either “the consent of the governed alone is not sufficient to legitimate political rule,” or consent itself means rational assent, assent that accords with the laws of nature and of nature’s God. Insofar as the government protects my rights, I assign to it the guardianship of my natural rights, but if the government fails to do that, I remain entitled to act to enforce them myself, up to and including the revolutionary act of overthrowing the delinquent government. That is, Americans haven’t so much as surrendered their natural rights to the government they have surrendered the power to enforce them so long as the government is doing that form them, and that surrender, so-called, is revocable if the government fails to secure their rights or, worse, itself violates them. We provisionally suspend our right to the “how”—to enforcement—in order better to secure the “what”—the right we want enforced reliably and impartially.
Even so, “individuals do not transfer authority over every right when they enter the social compact,” let alone frame their government. Inalienable rights are “those over which individuals cannot, and hence do not, grant the state authority.” Such is the right to free exercise of religion, as “each individual must fulfill his own obligations to God,” which have nothing to do with his obligations to his fellow men in the social compact, let alone to any government of men, even one of, by, and for the people. Government, indeed, “possesses no legitimate authority to determine what constitutes the obligations we owe to God, how we fulfill them, or whether we fulfill them at all,” except if we disturb the public peace or disturb others in their own religious worship (thereby violating natural rights the government is and can be designed to secure). “The absence of governmental authority to hurt, molest, or restrain individuals on account of their religious worship, beliefs, or affiliation is the very core of the Founders’ understanding of religious freedom.” “Removing the salvation of souls from the legitimate purposes of government by denying governmental authority over the exercise of religion as such marks a revolution in political philosophy and political authority.”
Muñoz rightly stipulates that “the Founders understood the natural right of religious liberty to be categorical but not unbounded.” They intended to guard “religious worship as such”—meaning that the Founders distinguished outlawing a practice “on account of its religious character” from “enacting a general prohibition that incidentally outlaws a religious practice.” You may practice the Aztec religion but not to the point of sacrificing a virgin to the Sun God, since the sacrifice would violate the virgin’s inalienable right to life. More generally, “to have a right to do X does not imply that one can do anything to secure, enact, or practice X,” but only the right to do those things “in a manner consistent with the law of nature.” Even in the state of nature, such moral restraints apply, inasmuch as “God endowed man with rational faculties…through which man can discern both his interests and his duties.” If God hadn’t done that, who would think of entering into civil society in the first place? “The law of nature sets boundaries on the exercise of a natural right”; liberty “does not extend to actions that injure another.” In Jefferson’s words, liberty “is unobstructed action according to our will: but rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others.”
Despite Tertullian’s rhetorical question, “What has Athens to do with Jerusalem?” the Founders “appealed to both reason and revelation” as “sources of knowledge they held to be compatible and reinforcing” as foundations of “their political thinking about religious freedom.” In his “Bill for Establishing Religious Freedom in Virginia,” Jefferson argued, following Locke, that “the opinions and beliefs of men depend not on their own will, but follow involuntarily the evidence proposed to their minds,” which “Almighty God hath created” free. “Coercive force,” by contrast, “can lead a man to profess disingenuously a belief or an opinion, but it cannot create inner conviction.” The Virginia legislature eliminated the Lockean determinism but kept the natural right of religious freedom, recognizing that “lawmakers who legislative beliefs…attempt to do what cannot be done”; nor should it be done, even if possible, since “individuals cannot and thus do not cede such authority to the state,” the right to determine one’s own beliefs being inalienable. Government does have “legitimate jurisdiction over actions,” for which individuals, having free minds, can take responsibility. (It might be added that Christianity teaches something parallel to Locke’s philosophy, that consent to the truth of religion occurs because the Holy Spirit enters into and convinces the otherwise wayward human mind, an act of God that does nothing if not propose evidence to that mind, as Saul the Persecutor learned just before becoming Paul the Apostle. A Government superior to that of the Roman Empire had intervened.)
In his “Memorial and Remonstrance against Religious Assessments,” Madison argued in a manner similar to Jefferson but with a different emphasis. He pointed to men’s duties to God more than their rights against one another. To be sure, “our duties to God and the manner in which we discharge them must be directed by reason and conviction, not force or violence,” but we know those duties only by reason—specifically, the ‘argument from design,’ whereby we can reason from the facts of nature to the existence of nature’s God. “Taken together, these capacities for reason and freedom allow men to be self-directed moral agents, not unreflective slaves of instinct or passion” who might very well rightly be ruled by force. This duty to God is the basis of the right to religious freedom, not only because “force simply cannot produce belief” but because the type of worship we owe to God is free worship and our obligation to God is prior to any obligations to men. Given “God’s superior ability to reward and punish,” it would be stupid to think otherwise. “What we have here,” Madison wrote, “is a right towards men” and “a duty toward the Creator.”
Whatever may have been the private religious convictions of Jefferson and Madison, the New England Baptist minister Isaac Backus agreed with them. Given “the individual’s election by God’s mysterious grace,” “only the individual who has experienced the ‘internal call’ of the Holy Spirit” can truly evangelize on God’s behalf. As he aphorized, “God will have no pressed soldiers in his army.” Backus, with his fellow Baptists to this day, thus rejected infant baptism and opposed “all forms of state authority over religion.” “Civil rulers are so far from having any right to empower any person or persons, to judge for others in such affairs,” he affirmed, “and to enforce their judgments with the sword, that their power ought to be exerted to protect all persons and societies, within their jurisdiction from being injured or interrupted in the free enjoyment of this right, under any pretense whatsoever.” Nor were these strictures exclusive to Baptists. They were held across every religious denomination, and President Washington, in his justly celebrated letters to each of the major denominations in the United States (most famously, to the Jewish congregation at Newport, Rhode Island), enunciated the same principle, in his case on the basis of natural right. “Reason and revelation were understood to be complementary sources of knowledge, including of the truth of natural rights political principles.”
While unanimously endorsing religious liberty, members of the founding generation sometimes disagreed on the question of the separation of Church and State. Patrick Henry, and even Washington himself, initially, advocated taxpayer funding of religious ministers and on the imposition of religious qualifications for political and civil rights, including the right to hold public office. In Virginia, this brought Henry and Washington into a dispute with Jefferson and Madison over “the extent to which” the right to religious liberty “limited democratic governance and whether it was politically prudent for government to support religion directly.” Both sides understood taxpayer support of religion as differing from an establishment of religion, which means the establishment of a state-controlled church, as for example the Church of England. The state legislatures of Maryland, Massachusetts, and New Hampshire “did not understand the freedom of conscientious worship to preclude compelled financial support of religion,” and New Jersey, Pennsylvania, North Carolina, Georgia, and South Carolina also imposed such taxes, although they also exempted conscientious objectors to the practice. The Supreme Court would later associate the Constitutional ban on religious establishments with a prohibition against taxpayer funding of religion, but “that connection is not immediately evident from the texts of the Founding-era state declarations of rights and constitutions.” And with respect for religious tests for political office and several other civil rights, for some time only Virginia had none.
Part of the dispute consisted of “a political disagreement over the prudence of governmental utilization of religion.” Those who favored government supports for religion justified them not in terms of some imagined authority “to pursue the salvation of citizens’ souls or piety for its own sake,” but for the achievement of “otherwise legitimate civic ends,” such as “moral education consistent with the preservation of the public peace”—rather along the lines of arguments advanced by Paul the Apostle. In a bill proposed in 1784, Henry contended that “Christian knowledge” “helps foster among the people the virtues that republican government requires.” Massachusetts Supreme Judicial Court chief justice Theophilus Parsons agreed, ruling in an 1810 case that objectors to state funding of religion “mistake a man’s conscience for his money.”
Against this position, Madison advanced a ‘slippery slope’ argument: “Who does not see…that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?” Henry’s bill should cause Virginians “to take alarm at the first experiment on our liberties.” Even worse, “religion did not need government” to nurture moral character; government support rather tends to corrupt than to strengthen religion, doing nothing to save government from corruption by the means of religion.
Getting down to the language of the First Amendment itself, Muñoz quite reasonably supposes that both the Free Exercise Clause and the Establishment Clause were intended to translate the natural right to religious freedom into the Supreme Law of the land, making that natural right a civil right, as well. The Free Exercise Clause instantiates the natural right directly; the Establishment Clause instantiates it in a more complex way, by prohibiting the national government either from making a national religious establishment and from making any law concerning state religious establishments.
The Bill of Rights itself was adopted “to address an immediate political problem,” namely, the anti-Federalists’ continued opposition to the newly formed federal government. The absence of a Bill of Rights was one of the most frequently made criticisms during the ratification debate, and the resentment didn’t evaporate after ratification. “The fear of a national establishment was part of the Anti-Federalists’ more general concern that a country as large as the proposed United States could not remain free under a set of uniform laws”—as per Montesquieu’s claim that republics must remain small, lest they suffer the fate of the Roman Empire under the Caesars. They did not necessarily object to state religious establishments because “on account of their smaller size and greater homogeneity, [states] were the natural home for republican moral education.” (They objected to a national banking system but supported state banks on the same ground of small-state republicanism.) “Most anti-Federalists were not against religious establishments per se; they were for republican localism.”
In drafting the Establishment Clause (and the Bill of Rights generally), Congressman James Madison took the lead in the first Federal Congress. During the floor debate, Madison said that “Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.” The states would be left alone, in that regard. However, neither he nor any of his colleagues “identif[ied] with any sort of precision what an ‘establishment’ of religion was,” although Madison did indicate that the clause responded to the fear that “one sect might obtain a pre-eminence, or two combine together, and establish a religion, to which they would compel others to conform.” The House-Senate Conference Committee added an important nuance: the phrase that Congress shall make no law “respecting an” establishment of religion. This, Muñoz plausibly suggests, precludes not only a national religious establishment but denies Congress the power to make laws restricting state establishments. Politically, the resulting language satisfied all sides in the debate. “No constituency existed in the House to demand that the limitations placed on Congress be precisely defined,” and so the language remained imprecise.
Neither do the records of the First Congress give us a precise definition of the free exercise of religion. There is no reason to imagine that Congress abandoned the universal understanding of religious free exercise as “an inalienable natural right, possessed by all individuals, to worship according to conscience.” There was some debate over whether a clause should be inserted protecting the right of conscientious objection to taxation supporting churches or to military service, but this was removed by the Senate, then the guardian of states’ rights. Free exercise of religion evidently did not “include the right to exemptions from generally applicable laws,” that is, laws imposed on all citizens for nonreligious reasons, such as the inculcation of moral virtue or the manning of a well-organized militia.
The United States Supreme Court has at times exploited the broad language of the Free Exercise and Establishment clauses to give them whatever meaning current ideology, as held by the majority of justices, may favor. Muñoz proposes a more disciplined approach, which he calls the “text and design” or “design originalist” approach to construing the Constitution. “When the text articulates an abstract principle, we necessarily must ask: Whose understanding of the principle ought to guide a constitutional construction?” Shall it be the judges’ own opinion or shall judges “attempt to uncover how the principle was understood at the time of its adoption”? Muñoz’s “design originalism” looks at the meaning of the constitutional provisions that accords with the definitions of words and the meanings of “phrases, grammar, and syntax that characterized the linguistic practices of the contemporaneous public” along with “the ends or purposes of the textual provision in question within their historical context.” With respect to free exercise of religion, this points to the Founders’ stated intention to defend an inalienable natural right that exists prior to any government or indeed any civil society, a right retained after such a society and after whatever government rules it may be founded. “The nature of religious freedom itself does not allow individuals to give authority to government over it”; ergo, “the state lacks jurisdiction over religious exercises as such.” As stated above, “as such” means that the state may still enact legislation that incidentally restricts the natural right to free exercise “in pursuing otherwise legitimate ends,” such as securing other natural rights. “All natural rights have natural limits.” Religious practices “that trespass the law of nature” may and should be prohibited by government.
Regarding the meaning of religious establishment, the example of South Carolina, which had one, is instructive. The 1778 South Carolina Constitution provided that “The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State.” The definition of Christian Protestantism included monotheism, belief in “a future state of rewards and punishments,” the public worship of God, the truth of the Christian religion; the divine inspiration of the Bible, and the lawful duty “of every man being thereunto called by those that govern, to bear witness to the truth.” Churches professing these doctrines were entitled to apply for a charter of incorporation, enabling it to own property as a corporate body and “to prosecute and protect its own rights in courts of law.” Establishment also enabled a church to use the state’s power to collect financial obligations the church imposed on its members. For its part, the State of South Carolina gained the right to regulate the established churches, including articles of faith and rules for the selection of ministers.
Eventually, such state establishments came under critical scrutiny throughout the country. “The subdelegation of the state’s coercive power to churches, or to any other body, subjects the people to rule by agents other than those to whom they have consented,” thereby “depriv[ing] the people of the [natural] right of self-government.” It is in effect a form of taxation without representation. That is, the principles animating the federal Constitution began to pervade the minds of citizens as they considered the duties of the states’ governments.
Since “the natural rights approach” Muñoz so cogently advocates “does not correspond to any existing jurisprudential framework,” “consistently produc[ing] neither liberal nor conservative results as those classifications are usually understood,” he next offers some examples of how that approach would determine the outcomes of several important cases brought under the Religion Clauses. Generally, “the natural rights approach is more democratic than leading originalist and nonoriginalist alternatives, while at the same time it imposes a more thorough and categorical form of restriction on state action.”
In considering the 1879 case, Reynolds v. Sims, brought by George Reynolds, a member of the Church of Latter-Day Saints who maintained that the Morrill Anti-Bigamy Act violated his religious right to polygamy, Muñoz would have the justices ask whether the Act “explicitly targeted religious marriages” or instead banned bigamy and polygamy on non-religious grounds. In fact, the Court did ground its upholding of the federal law on just such grounds, and so the “polygamy ban would have been found constitutional under the natural rights approach.
Muñoz elaborates an important point here. Such decisions are binary. “In the Framers’ natural rights understanding, the rights of religious free exercise cannot legitimately be evaluated in light of or ‘balanced’ against ‘competing state interests,'” as the Supreme Court justices did in Lukumi Babata Aye, Inc. v. City of Hialeah (1993). “The state can never have a constitutionally compelling interest that allows it to suppress religious exercises as such, because such suppression per se always exceeds the state’s jurisdiction.” Similarly, in the famous case of Engel v. Vitale (1962), in which the Court struck down a mandated, government-written prayer at the beginning of the school day, the natural-rights approach would have upheld the decision, not on the basis of Justice Hugo Black’s metaphor of the “wall of separation between church and state” but on the grounds that the public school had “exercised jurisdiction over a religious exercise as such.” “Lacking jurisdiction over religious exercises, no government body or political subdivision may make prayer an official part of its meetings”—this, despite the fact that the Founders themselves did exactly that. In this (rare) instance, the Founders failed to abide by the strict sense of their own Constitution.
Some but not all religious tests for public office can be licit. In McDaniel v. Paty (1978), the plaintiff challenged a provision of the Tennessee Constitution that blocked “Ministers of the Gospel” from serving in the state legislature on the grounds that they “ought not to be diverted from the great duties of their functions” by mere government service. In this provision, the State of Tennessee “avoided exercising jurisdiction over religious exercises as such” (emphasis added). “The same authority that would allow the state to exempt religious ministers from civic obligations such as paying taxes or military service also would allow the state to deny ministers the enjoyment of specific civil privileges.” Similarly, in adjudicating claims of exemption from military service, draft boards may “examine the sincerity of the petitioners’ beliefs, but not their religious veracity.” More generally, free religious exercise registers the natural, inalienable right of “the individual’s sovereignty over his or her worship according to conscience, but “the nonworship elements of religion…are not inalienable in the same way,” and may be restricted by the state “when pursuing otherwise constitutional policies.
As mentioned earlier, a state establishment of religion exists when “government exercises the functions of an institutional church, including the regulation of internal church matters such as the content of doctrine and the selection of ministers”; a church establishment exists when government delegates its “coercive authority to churches, especially in matter of taxation and financial contribution.” For example, in Locke v. Davey (2004), which challenged a Washington state policy offering scholarships to college students except those majoring in theology, the Establishment Clause would neither mandate the exclusion of such students nor prohibit it. “State legislators could have decided that it was not in the state’s interest to fund residents to acquire more theological knowledge or, as the state contended, that the provision was necessary to comply with the Washington State Constitution.” That does not run counter to the Establishment Clause. “The natural rights approach holds that the government’s purposes do not include saving citizens’ souls.” This means that when the Founders funded military and legislative chaplains, they violated their own natural-rights principles.
The “wall of separation” metaphor is too extreme. The natural-rights approach “would allow government to fund religious individuals and institutions as an instrumental means to further otherwise legitimate civic interest, provided that a nexus exists between ends and means and that state actions to not establish jurisdiction over religious exercises as such.” In Everson v. Board of Education (1947), in which the plaintiff challenged state-funded reimbursements to parents who paid their children’s transportation costs to and from public or Catholic schools, “the state clearly [had] an interest in facilitating the safe transportation of children to and from school, no matter the school’s religious affiliation.” The “wall of separation” was inapt. More, “it is permissible…for the state to recognize the religious identities of citizens, and even to nurture and advance the religious character of the people for the purpose of inculcating the moral character that sustains a constitutional republic.” Thus, in Stone v. Graham (1980), the Court wrongly struck down a Kentucky law requiring the Ten Commandments to be posted in public elementary schools, if the purpose of the law was “to foster the moral character requisite for democratic citizenship” rather than “to foster religious observance for religious reasons.” The same goes for religious displays such as creches on public property.
The natural-rights approach “focuses on the jurisdictional limits of state power—a consideration that is all but ignored by existing approaches to church-state jurisprudence, but central to the Founders’ understanding of religious liberty.” “The approach looks only to the subject matter, not the effect, of legislation,” relieving judges of the self-imposed burden of policy analysis. “Judges would enforce jurisdictional boundaries” between governments and their citizens’ natural rights, doing their part in securing those rights, which is what the Declaration of Independence says government is for, guided by “reasoned judgment affirming a moral order that we discover, not create,” in turn leaving such creation to God, who is better at it than judges are.
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