Tim Hornbaker: National Wrestling Alliance: The Untold Story of the Monopoly That Strangled Pro Wrestling. Toronto: ECW Press, 2007.

 

Professional wrestling in the United States began in the circuses and traveling carnivals of the nineteenth century, with who knows what mixture of competition and hoax. In Germany, staged matches were firmly in place by the 1880s, so it is unlikely that Europe’s American cousins trailed less than a generation behind, if that. Whatever its provenance, the early pros had to know how to wrestle for real, not only how to put on a show. If your opponent decided to ‘shoot,’ try to beat you when he was supposed to lose, you needed to be able to defend yourself and your reputation. For this reason, the best-trained performers learned ‘hooks’—potentially crippling, always painful holds that could save them if, well, a situation arose. 

Along with boxers, wrestlers became sports celebrities late in the century—John L. Sullivan the boxing champ in the 1880s, Martin “Farmer” Burns the wrestling champ in the 1890s. Burns trained Frank Gotch, the first American claimant to a pro wrestling ‘world’ championship in 1905. Gotch reportedly enjoyed inflicting pain on his opponents, whether the match was a contest or a show. By the time of the Great War, the top promoter in the United States was Jack Curley, a.k.a. Jacques Armand Schmuel, headquartered in New York City and allied with Midwest promoters Billy Sandow and Tony Stecher in the wrestling “Trust.”  Such a dangerous business cried out for reform, which began in the Progressive era in the person of Ed “Strangler” Lewis.

Robert Herman Julius Friedrich took his ring name from a famous wrestler of the previous generation, Evan “Strangler” Lewis. The new Strangler was managed by Billy Sandow, a.k.a. Wilhelm Baumann, trained by Joe “Toots” Mondt. A finer group of German-American lads could scarcely have been assembled, and, whether intentionally or not, they broke from Curley’s Trust and followed their countrymen’s tradition by gathering “a stable of grapplers who followed [Sandow’s] orders.” Those who chose not to conform were quickly schooled to the contrary by the ‘policeman,’ John Pesek, “a shooter beyond compare,” who “simply could not be beaten.” In the first half of the 1920s, the “Gold Dust Trio,” as the sports journalists of the day named them, dominated the industry with short, fast-paced matches that kept the marks coming back for more. In the Strangler, pro wrestling had found its Babe Ruth, its Jack Dempsey, as sports became part of the entertainment and mass media industry of that decade.

Alas, the boys outsmarted themselves. A popular University of Nebraska football star, Wayne Munn, looked like money to the boys. They arranged for him to win a spectacular upset match against the Strangler in 1925, planning to promote a return match that would make all parties to the deal a boatload of money. The deal went down in Kansas City, with Munn next undertaking a national tour of championship bouts while, for his part, the Strangler kept on the heat by refusing to relinquish his diamond-studded championship belt, prompting a sham court case, well publicized by the cooperative journalists of the day. The flaw in the plan was Munn’s lack of shoot-wrestling experience. One of his opponents on the tour was Stanislaus Zbyszko, a veteran wrestler who had taken a fall for Munn in the past. But in April, Zbyszko crushed the hapless footballer in Philadelphia, and it transpired that Jack Curley was behind the double-cross.

In an attempt to bring a touch of order and (it was fondly hoped) respectability to the game, the National Boxing Association established the National Wrestling Association in 1930, headquartered in New Orleans. This organization competed with the American Wrestling Association, which had been founded a couple of years earlier by Boston promoter Paul Bowser. Curley allied with Lewis and eventually formed a new version of the Trust in 1933. A year later, he installed the photogenic Jim Londos as champ. Lewis, half-blind from trachoma, did the job, although even then he could have mauled the diminutive Greek hero. 

After Curley died, in 1937, promotional wars continued, with more double-crosses and title changes. By 1940, the dominant promoters were Tom Packs of St. Louis, head of the National Wrestling Association, whose ‘world champion’ was Bill Longson, and Bowser, who installed Frank Sexton as his champ. Bowser was the more influential of the two because he had connections with more state athletic commissions, which had designated the ‘world’s champion’ since 1930. Annoyed at the National Wrestling Association’s secondary status, other Midwestern promoters, notably Sandow and Maxwell Baumann, broke with the Association and founded the first entity called the National Wrestling Alliance in 1941, putting their headquarters in Wichita, Kansas and naming Roy Dunn, a legit amateur wrestler (a former Olympian, in fact) as their champion. A couple of years later, Des Moines promoter Paul “Pinkie” George appropriated the National Wrestling Alliance name for his own promotion, naming his own champion. Partnering with Wichita promoter and wrestler Orville Brown, he expanded the new Alliance to Minneapolis and Omaha. By 1944, Brown himself was the Alliance champion. As Hornbaker duly notes, a champion was whomever a promoter or consortium of promoters called a champion.

After the war, back in St. Louis, a former sportswriter named Sam Muchnick began a promotion in competition with Packs, with support from Stecher and Sandow. He was successful, and in July 1948 Muchnick, Stecher, Sandow, Brown, and Chicago promoter Fred Kohler met in Waterloo, Iowa, founding a third entity called the National Wrestling Alliance; the Pinkie George organization remained intact but allied with the larger organization. Brown was its first champion, thus giving some continuity to two of the “Alliances.” By the end of 1948, the Alliance had members in twenty states, including Ohio (Al Haft in Columbus) and Michigan (Harry Light in Detroit) to its membership, thus forming a strong Midwest, though as yet hardly ‘National,’ organization in rivalry with the National Wrestling Association. Muchnick was elected president in September 1950, a position he held for more than two decades. Muchnick was that rarity, an honest and trustworthy promoter, proving once again that in the kingdom of the blind the one-eyed man is king.

The National Wrestling Alliance compact stipulated that each promoter would, in the words of the by-laws, “run his existing territory as he sees fit without the interference of any other member.” The promoters agreed to mutual aid in terms of sharing talent, including the recognition of one heavyweight champion and one junior heavyweight champion, whose appearances would be distributed “so that each member receive[s] equal benefit in showing said champions” in his territory. The Alliance members would “act as their own commission to police wrestling,” whereby a wrestler suspended in one territory would be suspended in all territories. Each territory had several promoters, with only the top promoter as a member of the Alliance; he was also the ‘booker,’ that is, the person who sent wrestlers under contract to ‘his’ promoters for their local shows.

Less materially but far more entertainingly, the incorporation documents also included among its purposes the intention “to enlighten and direct public opinion with regard to the relation between professional wrestling and public welfare”—as if there could ever had been so much as a tincture of doubt—and to “promote good will between members of this association with state athletic commissions”—a mission rapidly accomplished, inasmuch as money talks—and “to promote fair play, sportsmanship, and a high standard of competition and interest in the wrestling profession.”

Meanwhile, Packs sold his promotion to wrestlers Lou Thesz and Bill Longson (both of whom had worked as champs for him), who were backed by Canadian promoters Frank Tunney (Toronto) and Eddie Quinn (Montreal), rivaling Muchnick in St. Louis. An initial meeting between the two groups ended in stalemate, but in July 1949 Thesz gave in, joining the NWA and quickly becoming its heavyweight ‘world champion,’ since Brown had been seriously injured in an automobile accident. Tunney and Quinn joined soon afterward, as did promoters in Los Angeles (Johnny Doyle, who gave the world Gorgeous George), San Francisco (Joe Malcewicz), and Honolulu (Al Karasick). Billy Wolfe, who controlled the principal stable of women wrestlers, also joined. The organization gained an important inroad in the northeastern U. S. when Toots Mondt of Pittsburgh joined; Mondt had the contract with Antonino Rocca, the star of Madison Square Garden shows since the late 1940s, a venue Mondt had booked since the beginning of that decade. Rocca exemplified a new sort of pro wrestler. He couldn’t wrestle much, for real, but within a well-disciplined promotion, that didn’t matter, since no one would shoot on him. (Although in one match Thesz disgustedly dropped him on his head, just to send a message.) This enabled Rocca to enliven the sport with spectacular but utterly ineffectual maneuvers like dropkicks, which his opponents ‘sold’ to the audience as devastating aerial strikes.

With forty members leasing ruling territories from New York to Honolulu, the NWA now had some real nationwide heft. Competitors were, of course, unwelcome. “Controlling the best talent in the business was the key in shutting down independents. Members used contracts to tie up wrestlers and the threat of suspension by state athletic commissions to keep their athletes in check,” and the athletic commissions, seldom offended by offers of cash, “limited the number of licenses issued to prospective bookers or promoters” and reserved the best arenas for NWA members. Even so, a stubborn challenger could still be countered. In such cases, “members united and sent their top grapplers to the [NWA] promoter engaged in the conflict,” and President Muchnick made sure that the champ would visit the territory for more than his usual allotment of dates. As supplementary measures, “verbal and physical threats were not unheard of.” 

All of this coincided with the rise of television. The small, black-and-white screens conveyed boxing and wrestling better than they did the more complicated team sports. Fred Kohler had put a weekly show on a local station, debuting in July 1946, proving that a TV show could be used to promote shows in the big arenas. With NWA backing, he built an empire within the empire, taking his shows national in 1949 by distributing them on the Dumont Network. Although he used Thesz, he also established his own champion, crowning the current NWA junior heavyweight champion Verne Gagne as the “United States Heavyweight Champion,” a title Kohler invented. He soon allied with Mondt and Madison Square Garden promoter Charley Johnston, never stepping outside the limits of the NWA but prospering beyond any others within it, until he lost his arrangement with Dumont in 1955 and his contract with its local affiliate, two years later.

Thesz proved a highly successful champion for the NWA. He had been trained in his native St. Louis by a shooter named George Tragos, then further by Strangler Lewis, so he could actually wrestle, lending credibility to the exhibitions and guarding the title against any wrestler bold enough to try to grab the title for himself. (Once established, he had the NWA hire Lewis as his traveling manager, exhibiting a sentiment, gratitude, that seemed a bit eccentric to his colleagues. Lewis was good for business, too, having mastered the art of publicity during the Roaring Twenties.) The very size of the NWA brought a new challenge, however. The bigger it was, the fewer times the champ could tour any one territory, and the more exhausting his schedule became. As usual, arrangements were made. In 1955, Thesz and San Francisco favorite Leo Nomellini staged a match with an intentionally ambiguous finish, thus enabling Nomellini to be billed as world champ in that city, Thesz everywhere else. Injured in 1956, he lost to Tunney’s Toronto hero, Whipper Billy Watson, another relatively trustworthy soul, who readily lost a return match once Thesz had recovered. In 1957, he lost a match by disqualification to Eddie Flynn’s top draw, “The Flying Frenchman,” Edouard Carpentier (a.k.a. Weczerkiewicz)—yet another dodge to split the title, since Thesz could claim that a DQ loss was no ticket to the championship and Flynn could bill his local boy as the ‘real’ champ. Thesz relinquished his title to one of the few wrestlers he respected, Dick Hutton, a former NCAA champion. Verne Gagne’s U.S. title had rubbed Thesz the wrong way, and the other major star of the period, Buddy Rogers, had not only jumped from Thesz’s St. Louis promotion to the fledgling NWA before Thesz did but had the temerity to joke about Ed Lewis in front of Thesz, a few years later. Thesz blocked both of them from becoming the NWA champ.

All of this might strike the casual observer as monopolistic, in light of the venerable Sherman Antitrust Act. “Although the monopolistic practices of the NWA were not yet on the radar of government officials, it was just a matter of time.” Corruption of state athletic commissions had been routine for decades, but corruption coming from a traceable, centralized source eventually raised some eyebrows. By the mid-1950s, there had developed a sufficiency of disgruntled promoters and wrestlers to enable U.S. Department of Justice investigator Stanley Disney to begin building a case, starting with L.A.’s Doyle, who had quit the organization in 1954. That old trouble-maker, Stanislaus Zbyszko, also got in touch with the Antitrust division; “his disdain for the Alliance’s methods were well known,” and he went to the extreme of writing an article exposing the theatrical character of the genre, although the limited circulation of The Man’s Magazine, where the article appeared, made the publication in itself unthreatening to the industry. But by June of 1955, Muchnick was interrogated by Disney on NWA business practices. “One thing Muchnick sought to avoid was a public proclamation, either by the Department of Justice or in a federal courtroom, that wrestling was a scripted sport,” which might “demoralize the fans,” “sinking the industry.” That never happened, but Disney did issue a memorandum recommending a grand jury investigation, “elaborat[ing] on a conspiracy of 38 bookers in controlling specific territories, browbeating promoters into dealing with Alliance associates, the sale of towns, discrimination, price fixing, and systematic blacklisting.” He additionally recommended a civil case, resulting in United States of America v. National Wrestling Alliance, which resulted in a consent decree ordering the NWA to “cease illegal practices.” For his part, President Muchnick generously admitted that some members of the organization had, well, “deviated from the true purposes of the organization, and that some corrections should be made.” This enabled him to admit no wrongdoing while agreeing to reform. In an especially fine turn, he named Doyle as one of the delinquents. Congressman Mel Price of East St. Louis, a Muchnick ally, may have been influential in limiting the Justice Department to the consent decree, and Hornbaker also suspects United States Senators Everett Dirksen of Fred Kohler’s Illinois and Estes Kefauver of Tennessee of intervening. (Upon the occasion of Dirksen’s death, many years later, the conservative writer William F. Buckley, Jr., claimed that the only thing the senator really cared about was getting the marigold designated as the national flower—a manifest calumny, as this shows.)

The real effect of the investigations was that a reformed NWA was no longer an especially effective NWA. Its members had less incentive to stay in it and independents were less intimidated by it. The most significant secessionists were Verne Gagne, who formed the American Wrestling Alliance, centered in Minneapolis—a lucrative promotion that endured for three decades—and (as it turned out, much more significantly), Vincent McMahon.

McMahon’s family had been involved in sports promotion since the early years of the century. Brothers Edward and Roderick “Jess” McMahon promoted baseball and boxing after graduating from Manhattan College, with Jess promoting the Jack Dempsey-Jack Sharkey fight in Madison Square Garden, one of the major sports events of 1927. He also promoted wrestling in the New York City area. Son Vincent, born in 1914, moved to Washington, D.C., after serving in the Coast Guard during World War II, managing the Turner Arena, the main wrestling venue in the city. He bought the territory from NWA affiliate Joe Menendez in 1952 and began producing TV shows on the local Dumont Network affiliate, four years later. The matches were syndicated to the Dumont affiliate in New York, and “Wrestling from Capitol Arena” (as McMahon renamed Turner Arena) became a popular weekly feature on Channel 5 until the mid-Sixties. Philadelphia-based promoter Ray Fabiani ran opposition shows at the Uline Arena, featuring Buddy Rogers, the top ‘heel’ performer in the business, but McMahon won the ‘war’ and the two promoters became allies. Rogers would prove instrumental to McMahon’s eventual plans.

The main attraction in the New York-Philadelphia-D.C. area was Antonino Rocca. Allying with Toots Mondt, who had Rocca signed to a contract, “McMahon devised a strategy to rule wrestling in the Northeast, partnering with Charles Johnston, his nephew Walter Smallshaw, and matchmaker Kola Kwariani, who controlled Madison Square Garden and other smaller venues in city.” McMahon and Mondt supplied the wrestlers, and with both Rocca and now Rogers in the stable, the New Yorkers had little choice but to play. The first McMahon-Mondt card in the Garden, in February 1957, drew the biggest crowd for any sports event in 25 years—without Thesz in the main event, it might be noted. This earned Mondt status as co-promoter with Johnston, and McMahon replaced Kwariani as matchmaker. Rocca, who was in the main event, was “the biggest wrestling attraction in New York since Jim Londos,” headlining every card there until January 1961. That the fans were suitably engaged may be seen not only in the attendance figures, but in the riot that occurred at the November show in 1957, when Dick the Bruiser and Dr. Jerry Graham committed acts of manifest felony against Rocca and his tag team partner, Edouard Carpentier, leaving the crowd no righteous choice but to engage in prompt citizen action. Rocca next teamed with the young Miguel Perez, the first Puerto Rican star in the territory, to defeat ‘brothers’ Eddie and ‘Dr.’ Jerry Graham in another record-setting show held in January 1959. (Jerry explained his doctorate by claiming alternatively, a B.S. in psychology from Arizona State or, only a bit less impressively, by saying “I’m a tree surgeon.”)

With a second weekly television show, beginning in February 1959, McMahon could reach fans from Canada to Virginia, giving him “unparalleled leverage” in the industry, with a roster of some fifty wrestlers remitting booking fees to Capitol Wrestling. The organization earned as much as fifty percent of the gross in the shows its wrestlers worked. McMahon used his influence to have Buddy Rogers obtain the NWA championship in 1961, and since he’d had Rogers under contract since the previous year, he made sure the champ headlined his own shows on a regular basis. This displeased the other Alliance members, and when they moved to take the belt from Rogers (Thesz was tapped, for the sixth time), McMahon simply dropped out of the Alliance, forming the World-Wide Wrestling Federation in 1963 and ignoring the title transfer. The story line had Rogers winning an “international tournament” in Rio de Janeiro, a city Rogers in fact never saw in his life. McMahon also co-founded a Cleveland-based promotion, unknown to WWWF fans, wherein Rogers passed his title to Dory Dixon. McMahon took care not to break relations with his former colleagues entirely, continuing business dealings with many of the NWA promoters.

In his main territory, he had plans that didn’t include a major role for Dixon. Rogers suffered from a heart condition; although he was one of the top attractions in the country, he would have to be replaced. Rogers’ health condition was carefully concealed, not only from the fans but from the several state athletic commissions, which would have barred him from appearing if they had known about it. It is not inconceivable that money changed hands. Be that as it may have been, necessity led to the decision that would make the WWWF the most successful company in the industry: on April 17, 1963, “The Italian Strongman,” Bruno Sammartino, defeated Rogers in Madison Square Garden, a match that lasted only 47 seconds. (Incensed at having been passed over, Rocca started his own promotion, using workers from promoter Jim Crocker’s Charlotte-based territory, but the enterprise went bust in a year or so.) The difference between Cleveland and the Connecticut-to-DC corridor was simple: Cleveland’s fan base consisted of a high percentage of African Americans, who would buy tickets to see the Jamaican-born “Calypso Kid,” Dory Dixon. On the East Coast, however, the fan base consisted of a high percentage of Italian Americans, who had supported the now aging (and alcoholic) Rocca (and, indeed, the lumbering ex-boxer Primo Carnera before him); they now exulted in the triumph of their new hero over the detested heel, Rogers. Sammartino went on to become the biggest box-office attraction in wrestling, until Hulk Hogan came along, under much-changed promotional circumstances, twenty years later. By then, McMahon the Elder and his partners had sold their stock to McMahon the Younger, Vincent K. McMahon, the first promoter to establish wrestling as ‘sports entertainment,’ abandoning the claim that it was a competitive sport. It was a bold and potentially risky move at the time, but the revenues almost immediately spoke for themselves.

As for the NWA, it has never regained its dominance, although for a time the billionaire showman Ted Turner owned it and offered some competition to McMahon. Many people don’t know that it still exists, after many permutations. McMahon the Elder himself rejoined it in 1971, although his son jettisoned the partnership for good, twenty-two years later. 

Professional wrestlers are the true American gymnosophists. When called upon, they could speak with words and not merely bodies, deploying a variant of the ‘carny’ code they called ‘kayfabe’—which means ‘be fake’ in carny. But as Hornbaker’s well-researched book shows, they had nothing on their employers when it came to the arts of legerdemain.

 

 

 

Christopher Caldwell: The Age of Entitlement: America Since the Sixties. New York: Simon and Schuster, 2020.

 

Christopher Caldwell rightly understands the social and political reforms undertaken in the 1960s as a regime change in the United States, a change that has continued to into our own time and provoked strong efforts at counterrevolution. He means to explain “the crises out of which the 1960s order arose, the means by which it was maintained, and the contradictions at its heart that, by the time of the presidential election of 2016, had led a working majority of Americans to view it not a gift but as an oppression.”

The assassination of President Kennedy “gave a tremendous impetus to changes already underway,” including the questioning of the authority of modern science (seen in the writings of Thomas S. Kuhn), feminism (Betty Friedan), environmentalism (Rachel Carson), civil rights (Martin Luther King), and the Vietnam War (the New Left). Reformers and revolutionaries seized upon the emotional reactions to the assassination by making it a symbol of a regime they wanted to be in crisis. Meanwhile, the existing regime, itself the product of the revolution effected by Progressives in the Wilson and Roosevelt administrations, scrambled to answer these challenges, challenges coming not (as accustomed) from the Right but unexpectedly from the Left. “A welfare state expanded by Medicare and Medicaid, the vast mobilization of young men to fight in the Vietnam War, but, above all, the Civil Rights and Voting Rights acts—these were all memorials to a slain ruler, resolved in haste over a few months in 1964 and 1965 by a people undergoing a delirium of national grief.” These institutions, policies, and laws came to amount not merely to “a major element in the Constitution” but to “a rival constitution, with which the original one was frequently incompatible.” This explains the much-remarked ‘polarization’ and ‘incivility’ of our contemporary politics: “It is the disagreement over which of the two constitutions shall prevail.” Caldwell holds that this controversy sets “the de jure constitution of 1788, with all the traditional forms of jurisprudential legitimacy and centuries of American culture behind it” against “the de facto constitution of 1964, which lacks this traditional kind of legitimacy but commands the near-unanimous endorsement of judicial elites and civic educators and the passionate allegiance of those who received it as a liberation.” This ignores the intervening Progressive revolution—there are three political ‘layers’ to the matter, not two—but it does bring out the starkness of the conflict over the character of the American regime.

He begins with race. “Today slavery is at the center of America’s official history, with race the central concept in the country’s self-understanding.” “Never before the 1960s was this the case”; previously, the theme of “building a constitutional republic” prevailed in and outside the classroom, as generations sought (in Lincoln’s words) to perpetuate our political institutions and even the Progressives sought to build what their flagship magazine called “the new republic.” But the Civil Rights Act of 1964 “empowered the Federal Government to reform and abolish certain institutions that stood in the way of racial equality and to establish new ones,” “subjecting to bureaucratic scrutiny any company or institution that received government money,” especially their hiring practices. Subsequent legislation built up “the mightiest instrument of domestic enforcement the country had ever seen,” the “largest undertaking of any kind in American history” in terms of money and rivaling the conquest of the American West, the construction of transcontinental railroads and highways, and the containment of Soviet communism in terms of time and effort. To civil rights, the Left added the ‘wars’ on poverty and on drugs, expanding the administrative state still further. But it is “the reinterpretation of America’s entire history and purpose in light of its race problem” that stands as “the main ideological legacy of the last fifty years,” animating not only the teaching of ‘social studies’ but of literature and some topics in the sciences. “The U.S. government sought to mold the whole of society—down to the most intimate private acts—around the ideology of anti-racism.” The civil rights ‘activists,’ as they called themselves, “were confident in resorting to coercion, indifferent to imposing financial burdens on future generations, and willing to put existing constitutional freedoms at risk in order to secure new ones” by exercising “permanent emergency powers” in “a new model of federal government” that “bypass[es] the separation of powers,” a government in which administrators legislate, execute, and adjudicate. 

The Supreme Court’s decision in the celebrated Brown v. Board of Education of Topeka anticipated this fusion of powers. “It was less a judicial argument than a judicial order.” The case evidently turned on the question of “whether the Fourteenth Amendment,” with its equal protection clause, “had intended to permit segregated schools.” But the justices instead “asked whether the doctrine of ‘separate but equal,'” enunciated in the earlier case of Plessy v. Ferguson “was possible in practice.” They determined that it was indeed possible, inasmuch as segregated schools had been equalized or were on the way to being equalized in their physical characteristics. They instead rejected separate but equal as injurious to the souls of black folk, as a badge of unjust prejudice against them. By “grant[ing] the government the authority to put certain public bodies under surveillance for racism,” an intangible phenomenon, the Court set “no obvious limit to this surveillance.” When the Civil Rights Act extended this authority to private bodies, desegregation began to imply “a revocation of the old freedom of association altogether.” “Eliminating freedom of association from the U.S. Constitution changed everything, inasmuch as Tocqueville understood civil associations the democratic substitute for the aristocratic class, which had served as a political buffer between the modern state and those ruled by it. Now, there was in principle no legitimate intermediary between ‘the state’ and ‘civil society.”’ This transformed what was still called liberalism into illiberalism—into a new form of absolutism, one ruled not by a Louis XIV but by the new administrative oligarchs. “The problem is that rights cannot simply be ‘added’ to a social contract without changing it.” “To establish new liberties is to extinguish others,” a sobering and true thought that deserves more attention than it usually gets.

“All sorts of constitutionalist and libertarian fears, chuckled at and pooh-poohed on the floor of the Senate” during the debates over civil rights legislation “came to pass” because supporters of the legislation thought that racial justice would be easier, entailing far less extensive and rigorous government intervention, than it did. Most black leaders knew better but they also proved more comfortable with tough remedies. “When riots eventually came, in big cities and on college campuses, blacks leaned toward thinking they helped more than hurt integration”; that, one might say, was their mistake, although violence may have spurred still more extensive regulation even as whites’ animosity towards blacks sharpened. 

The Civil Rights Act enabled the government to require private firms to take “affirmative action” to remedy intentional and unlawful forms of racial discrimination. In practice, however, “the act opened almost all American businesses to lawsuits for discrimination, whether they had engaged in it intentionally or not.” A subsequent Supreme Court decision further authorized the federal government “to act against racism even if there was no evidence of any racist intent”; once such “arbitrary power is conferred, it matters little what it was conferred for.” “Just a half a decade into the civil rights revolution America had something it had never had at the federal level, something the overwhelming majority of its citizens would never have approved: an explicit system of racial preference.” This “wrought a change in the country’s constitutional culture,” giving “progressives control over the most important levers of government, control that would endure for as long as the public was afraid of being called racist.” Progressives quickly moved to fortify the new regime by including “all aggrieved minorities” as its clients under the slogan, ‘Race, class, and gender.’

Regarding the latter, in her book The Feminine Mystique Betty Friedan charged that women had lost ground since the ‘first wave’ of feminism, the campaign for women’s right to vote, had been superseded by the masculine culture fostered by victory in World War II and institutionalized by the GI Bill, which benefited men far more than women when it came to preparing them for better-paying jobs. While “men became titans of, or at least soldiers in, the industrial economy,” “their women were left stranded in empty houses full of high-powered cleaning machinery”—a fix that “had never been their lot before.” What is more, most women were satisfied with that, a condition Friedan and her allies in the ‘second wave’ feminist movement successfully sought to reverse. As universities expanded to accommodate the additional men who could now afford higher education, they came to admit more women, too, thereby “insulat[ing] a critical mass of elite women from child-rearing expectations” and priming them for enlistment in another army of sorts, one “mobiliz[ed] against ‘sexism.'” The woman who coined that word defined it as “judging people by their sex where sex doesn’t matter.” The problem, Caldwell remarks, “is that sex often matters, and matters more than anything,” being “fundamental in a way that race or class is not,” namely, in the fact that “men don’t carry babies.” Thus “feminism had to contend not just against bigotry but also against nature.” Fortunately for the movement, modern science aims at the conquest of nature. “The power of feminism rested on advances in contraception and abortion, and on the spread of civil rights principles out of government and into the corporate world.” Despite the socialist rhetoric and indeed convictions of leading feminists, feminism itself became “an ideology of the innovative, entrepreneurial, and managerial classes, an ally of technocracy, modernity, progress, and wealth.” Corporations profited because when women entered their offices and factories salaries for men could be cut. By the 1970s, with both parents working, birthrates declined, and consumer spending increased, replacing an ethos of child-rearing and household investment with one of consumption. The Supreme Court’s decision in Roe v. Wade made abortion more readily available, and although Americans still “had a sense that abortion was bad,” they “lacked a moral framework that would allow them to think about abortion logically and confidently.” With the sexual libertinism of the 1960s already in place, “the hope that traditional sexual morality could survive the introduction and destigmatization of abortion was a vain one.” Politically, this moral revolution induced the Democrats to become “the party of new, court-mandated rights” of “all kinds” and of “promoting judges not for their impartiality but for their political reliability.” With Republicans taking the opposite stance, the authority of the Supreme Court itself became a matter of partisan controversy, “eroding [its] constitutional legitimacy” in the long run. Americans began “to identify the constitution-changers as a class—a new elite that had been formed in the crucible of protest against the Vietnam War.”

The Johnson Administration’s failure in Vietnam, the result of lying and incompetence at the Pentagon and in the White House, discredited the American military for a generation. The postwar “template on which the whole civilian order had been patterned”—animated by esteem for soldiers, cops, TV cowboys as our noble protectors—made “the sunny, can-do twentieth-century America Way now look mediocre and tainted.” The Baby Boom generation turned against the military draft, protesting the war “as much”—some of us would say much more—to “keep themselves out of the war as to end it.” While the draft existed, increasing numbers of young men avoided the draft by extending their years undertaking ‘higher education,’ which got them a deferment from service. Because better-educated, this Left-leaning cohort rapidly moved into positions of authority, across the professions. And because so large, “the biggest in American history,” “no generation was more fused over and pandered to” by politicians, businesses, and their advertisers. The result: “For three quarters of a century, other generations would be forced to share the preoccupations of their fellow citizens born in the late 1940s and early 1950s.” Electorally, this led to the apparently ‘conservative’ backlash of the 1980s. But institutionally, the Left had ensconced itself in the ruling institutions of the country.

Caldwell finds in President Ronald Reagan a man who “tapped rather than embodied” American conservativism, one who “changed the country’s mood for a while,” but did nothing to change the institutional structures now dominated by the Left. He failed to return political authority to local communities and failed to appoint genuinely constitutionalist judges to the Supreme Court. He did help to win the Cold War and to secure “for another generation of Americans the exorbitant privilege of using the U.S. dollar as the world’s reserve currency and getting to write the rules of international commerce.” His rhetoric touting ‘conservative values’ found no counterpart in domestic policy, and indeed when governor of California he liberalized abortion laws and introduced no-fault divorce under the guise of a “Family Law Act.” “By the time of his campaign for the presidency in 1980, it would have been fair to say Reagan had done more than any politician of either party to build up the institutions of post-feminist sexual liberation.” As president, he showed that “talking of values was a way of pretending that no one had any real grievance or interest worth arguing over,” a way of “arrang[ing] a truce between the World War II generation and the Baby Boomers” whereby the former G.I.s received economic independence while Boomers won social independence. More radically, Caldwell asks, “whether conservativism is possible at all in a political culture that has the ‘pursuit of happiness’ written into its founding documents.” (That, it is likely, depends upon what citizens say ‘happiness’ is.)

The centerpiece of Reagan’s economic policy, ‘supply-side’ economics, which held that high tax rates on the few rich people eroded investment capital without doing much for the many middle-class and poor. But the extra monies accrued went not so much from the government back to the people, rich or poor, as from discretionary domestic spending to the military Reagan was strengthening in his effort to win the Cold War and to Great-Society-spawned entitlements and interest payments. More indebtedness and borrowing ensued, as “Americans were unwilling to bankroll with their taxes the civil rights and welfare revolution of the 1960s and the social change it brought in its train.” Since “entire populations had become dependent on the Great Society,” its programs had by now become “too big” to be allowed to fail. Reagan’s tax cuts “provided a golden parachute for the white middle class, allowing it, for one deluded generation, to re-create with private resources a Potemkin version of the old order,” as “Reagan permitted Americans to live under two social orders, two constitutional orders, at the same time,” buying “through tax cuts those who stood to lose” from the 1960s revolutions, and winking at massive legal and illegal immigration of low-wage workers for the same reason. “It was an age of entitlement.” 

That white middle class eventually found itself boxed in by a new rhetorical and political strategy adopted by the Left to counter Reaganite rhetoric. By 1990s, the phrase ‘people of color’ heralded “the strategy of bundling different minorities into a coalition,” one which has expanded beyond race to include class and ‘gender,’ a term that makes sexuality less a matter of biology than of grammar, of the manipulation of words. The manipulation of words is the province of the educated few, the new (or at least more extensively empowered) professional classes. “The weakening democratic grip of the public on its government” continued, as “power disappeared into back rooms and courtrooms” while mass immigration of ‘people of color’ coupled with the civil rights laws of the 1960s lent the Left ever-increasing political heft. The business classes went along, inasmuch as “those who profited most in the 1980s” turned out not to be entrepreneurs chasing the American Dream but “highly credentialed people profiting off of financial deregulation and various computer systems that had been developed” by the Pentagon, “the sort of people you met at faculty clubs and editorial-board meetings,” a “new social class” which “had at its disposal both capitalism’s means and progressivism’s sense of righteousness, ready “to breathe life back into the 1960s projects around race, sex, and global order that had been interrupted by the conservative uprisings of the 1970s.”

The characteristic buzzword for this project has been ‘diversity.’ Previously, Senator Stephen Douglas had defended his policy of allowing America’s western territories to enter the Union as free or slave states by citing the diversity of soils and climates; surely, he argued, the wide differences in such geographic conditions justified the adoption of equally diverse laws respecting slavery. Whether a territory blocked or permitted slavery within its borders should be decided democratically, by popular sovereignty, with no reference to such abstractions as natural rights. The ‘diversity’ movement issuing from the 1960s New Left, as its partisans settled into influential positions in business, politics, and education, found substantial material aid in the globalization of economics and, to some extent, law, and in the main technological innovation of the time, the personal computer. With globalization, “American businessmen freed themselves from the customs that had bound them to their country’s workforce,” moving their factories overseas and moving foreign workers into their businesses at home. By these stratagems, business owners managed to blind themselves, and many others, from the continued reality of nation-states, especially after America outlasted the Soviet Union in the Cold War. Simultaneously, personal computers have enabled two generations of Americans to imagine that national boundaries are meaningless. (At one point in the early 2000s, I told a group of college students that wars would eventually be fought in cyberspace, a thought they rejected. Didn’t I know that computers were making war obsolete by breaking down political borders? I didn’t at the time, and I confess that I still don’t.) Indeed, unlike economic globalization, the ‘virtual reality’ of computers distracts on-line ‘communities’ from reality itself, including real community: “Befriending people was once life’s profoundest joy, and it was free,” but ‘friending’ people on Facebook only “required buying a machine and paying Mark Zuckerberg.” None of this bothered most among the academic and media classes, who turned from much of their hostility toward technology, prominent in the 1960s, to delight in the ease computers brought to their chattering. Globalization and computerization empowered each other, as computers made economic globalization possible by lengthening supply chains; low-paid foreign workers could assemble machines remotely, leaving high-wage workers in the United States and elsewhere scrambling in search of work in the ‘service’ sector.

Diversity and egalitarianism combine to make moral relativism, now baptized ‘postmodernism.’ Postmodernists used their newfound technological and economic reach to delegitimize existing social bonds, “from communism to mainline Christianity.” “Every institution it penetrated, it politicized.” Politics, however, requires some form of authority; the ideology of ‘diversity’ itself proved a ready instrument. In its 1978 Bakke decision, the Supreme Court effectively transformed the rationale of affirmative action programs in universities. In the decade or so prior to the decision, affirmative action was justified on the basis of righting past wrongs—slavery and segregation. Now “racial preference was meant to remedy not past but present discrimination,” which was simply assumed to exist in every college and university, whether there was any evidence of it or not. Anyone who argued “that any part of the difference in outcomes” of, for example, standardized admissions tests or graduation rates, “was attributed to anything other than racism, the entire logic of civil rights law would break down.” Sex (renamed, tellingly, ‘gender,’ a word taken over from grammar) received the same treatment, with the term ‘sexism’ deployed in the same way as ‘racism.’ Opinion itself needed to be surveilled and policed. “Thus began a process that would saturate the national culture with racial and gender politics,” the insistence not on free speech or academic freedom but on ‘political correctness,’ enforced not by Jacobin-like mobs but by academic and government administrators “frightened of civil rights law.” “In the quarter-century after Reagan, conservatives lost every battle against the substance of political correctness,” its advocates having effected “the most comprehensive ideological capture of ideological power in the history of the United States.”

What had begun as a ‘subversive’ movement against ‘the Establishment’ had pervaded the Establishment, animating the mild, softly despotic administrative state, not only in government and academia but in business corporations. Conservatives won elections but the offices they held were ones “from which real political power had been withdrawn.” Administrative regulation had largely replaced laws framed by elected representatives. And such regulation came not only from governmental and academic regulators but from the ‘private enterprise’ American conservatives had long lauded. “Reagan had won conservatives over to the idea that ‘business’ was the innocent opposite of overweening ‘government,” but now “businesses were the hammer of civil rights enforcement, in the forefront of advancing both affirmative action and political correctness,” having established departments of ‘human resources” staffed with “diversity compliance officers” who “carried out functions that resembled those of twentieth-century commissars.” “Only with the entrenchment of political correctness did it become clear what Americans had done in 1964: They had inadvertently voted themselves a second constitution without explicitly repealing the one they had.” When these two constitutions, instantiated by two different regimes, came into conflict, “it was the new, unofficial constitution, nurtured by elites in all walks of life, that tended to prevail,” intimidating their opponents with charges of racism, sexism, homophobia, and xenophobia. At the same time, the “behavioral economics” propounded by such academic eminences as Cass Sunstein and Richard Thaler found ways to enable government to shape the choices consumers make. “The strongest case for letting people make choices without the interference of the state rests not on their competence as choosers but on their dignity a persons,” Caldwell remarks, but if human nature is almost infinitely malleable, as the new economists were happy to assert, what does human dignity really amount to?

“The New Economy” of globalization and computerization thus empowered a new political as well as economic oligarchy by “rendering nonsensical, at least for a while, all kinds of inherited cultural and political beliefs about sovereignty, national independence, and social cohesion.” Presidents beginning with Bill Clinton promised to compensate the classes who had lost work and seen their moral and political convictions trashed. The way to do this was by helping them to borrow money, especially for housing and education (the latter ostensibly to ready their children for jobs in the New Economy). Personal and government debt have ballooned ever since, with ever more of that proverbial American ingenuity going into inventing “new ways to borrow money.” “Anti-racism women’s rights, sexual liberation, world hegemony, government through technology—none of these was free. All would have to be paid for, which meant that they would be fought over.” One may deplore contemporary ‘polarization’ in American politics. One cannot evade it. 

Barack Obama was the first post-Baby Boom generation president (Trump was a throwback, as is Biden, but their days are obviously numbered). In point of fact, Obama descended from American slave owners, not slaves, and “until he went to college, Obama had had less direct contact with black American culture than almost any of his white Senate colleagues.” But no matter, politically. His story “owes more to postmodern university narratives of chosen identity”—for example, the carefully drawn barbershop scene in Dreams of My Father —than “to anything inherited from the racial confrontation and injustices of the segregated South.” Such a narrative fits perfectly into the new, “permanent regime,” in which “everything appear[s] in a different light” than it did in the regime it replaced. Under this regime, the internet empowered people “as consumers” and producers, but it left them vulnerable as citizens, enthralling them with the charms of economic life while distracting them from the rigors of citizenship. Self-government became government by the new elites or, more precisely, the new elites in coalition with the old minorities, both “benefit[ing] in the same way from laws passed to constrain majority power,” laws passed because the majority was either distracted or, when not distracted, demoralized by the chatter of the chattering elite classes—chatter purveyed not only on the Internet and in the news and entertainment media but in the schools, whose educational policies were formulated by foundations funded by the new billionaires. President Obama issued the necessary executive orders to implement those policies, carefully “bypassing Congress on controversial matters” as “intellectuals and pundits egged him on,” recommending “lines of policy that would only recently have been thought autocratic.” If there’s no real human nature, and no Homo economicus as a result of that nature, then “there’s no Homo democraticus, either.” Indeed, no Homo politicus of any kind, only administrators and their clients. Civil rights as defined by administrators “thus does not temper popular sovereignty, it replaces it.” There can and should be “no areas of human life in which the state’s vigilance is not called for.”

“But wait: If people’s calculations are always under suspicion of bias, then what places the calculations of ‘activists’—of politicians and professors, behavioral economists and diversity counselors—in the Socratic position above suspicion? Aren’t their minds fallible, too? Why do they get to be the ‘choice architects,’ while others merely inhabit the structures of their design? This is a bit of a mystery.”

What is considerably less imponderable is the consequent instantiation of a legal right to marry for homosexual couples. Judge Margaret Marshall of the Massachusetts Supreme Judicial Court, ruled in favor of ‘gay marriage’—arguably a contradiction in terms no matter which of the two main definitions of ‘gay’ one has in mind—by “reason[ing] from, not to, a redefinition of marriage, taking it not as a foundation of society anterior to and recognized by government but as a welfare institution established by government, like a dog park or a VA hospital which carried” what the justice termed a “cornucopia of substantial benefits.” This “reversed the burden of proof on all marriage questions that came before courts,” and it wasn’t long before the U.S. Supreme Court justices followed along in Obergefell v. Hodges, making “gay marriage the law of the land.” In his dissent, Justice Antonin Scalia wondered if “the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.” For his part, Justice Kennedy never said that they had, assuming that “the Civil Rights Act of 1964 had not enhanced the Constitution as it had once been understood but had replaced it.” For his part, Mr. Obama, “the first president to understand civil rights law this way, a de facto constitution by which the de jure constitution could be bypassed,” undertook “to lead the country on that new constitutional basis,” his considerable rhetorical skills aiding to make the new race bias seem bias free as “a sort of official fiction”—the noble lie, as it were, of the newest of new ‘republics.’ 

“The United States had re-created the problem that it had passed the Civil Rights Act to resolve: It had two classes of citizens,” with white, heterosexual males as the new lower rail on the fence. Those who still respected the pre-1964 regime and the understanding of civil rights prevailing within it “could not acknowledge (or even see) that the only way back to the free country of their ideals was through the repeal of the civil rights laws.” They partook of “a society-wide inability to talk to think straight about anything.”

 

 

 

 

 

 

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.