New Book Explores Contemporary Issues by Looking to Founders
Religious Liberty and the American Founding
Vincent Philip Muñoz
University of Chicago Press, $30
Can religious schools benefit from taxpayer-funded programs? Should Christians receive exemptions from vaccine mandates or sexual orientation anti-discrimination laws on free exercise grounds? The role of religion in public life remains a contentious issue in American politics. Professor Vincent Phillip Muñoz’s recent book Religious Liberty and the American Founding offers an interpretation of the First Amendment’s Religion Clauses, attempting to properly grasp the Founders’ understanding of the First Amendment and their philosophy of religious liberty. Professor Muñoz’s book, which he describes as “a work of interpretive political theory and a work of legal analysis,” makes the striking contention that religious liberty scholarship thus far has simply gotten it wrong: “One of this book’s findings, we shall see, is that the Founders have been misused in a number of important church-state opinions.”
He takes specific aim at the influential thesis of Stanford law professor Michael McConnell, articulated by Justices Alito, Thomas, and Gorsuch in the Supreme Court Case Fulton v. City of Philadelphia, that the First Amendment “requires a presumptive right of exemptions from religiously burdensome laws.” He hopes to remedy this error by presenting “a historically and philosophically sound account of the Founders’ church-state constitutional thought” that would “inform First Amendment church-state jurisprudence.”
Muñoz examines Founding-era state constitutions and declarations of rights to arrive at his first primary contention: “the Founders held religious liberty to be a natural right possessed by all individuals.” Understanding religious freedom as an inalienable natural right is crucial to avoiding the trap of approaching church-state questions with the aim of “neutrality,” a problem that he contends plagues current Religion Clause jurisprudence. “What is inalienable is the right to worship God according to conscience,” argues Professor Muñoz. The state lacks jurisdiction over religious matters as such, and therefore “lacks authority to prohibit or compel either believers or nonbelievers.”
Though inalienable, religious liberty is not unbounded, with the limits of this natural right delineated by the law of nature itself. Within these limits, however, the right to religious freedom is categorical, and can never be infringed upon by the state. This, contends Muñoz, “is the foundational political principle animating the Founders’ thinking on matters of church and state.”
Professor Munoz grounds the inalienable right of belief and worship according to conscience within the context of the Founders’ religious and political philosophy. By examining the arguments for religious freedom presented by Thomas Jefferson, James Madison, and the New England Baptist preacher Isaac Backus, he attempts to demonstrate that “leading Founders appealed to both reason and revelation—sources of knowledge they held to be compatible and mutually reinforcing—to ground their political thinking about religious freedom.” While there was a broad consensus in the founding generation that religious liberty is an inalienable natural right, the implications of this right for civil law was not always agreed upon, according to Muñoz.
One source of contention was support for religion with public money. While South Carolina was the only state to expressly establish a state religion in its constitution, many states did compel some degree of financial support for churches and ministers of certain denominations. Disagreements among the Founders regarding the implications of religious freedom, as well as partisan politics, resulted in the Religion Clauses being left “underdetermined.”
How are clauses with an indeterminate meaning to be applied to cases? Professor Muñoz posits the approach of originalist “construction,” in which the Religion Clauses are understood in light of the Founders’ natural rights understanding of religious liberty. He construes the Free Exercise Clause as follows (assuming incorporation under the Fourteenth Amendment): “Congress and the states shall make no law that exercises jurisdiction over religious exercises as such.” Importantly, this construction “protects religious liberty by establishing a hard boundary on state actions,” but it does not require exemptions from religiously burdensome laws that are made within these boundaries.
Closely examining South Carolina’s establishment of Protestant Christianity, Muñoz construes the Establishment Clause to prohibit Congress from “legislating relationships of privilege and control between government and institutional churches.” These two constructions form the backbone of Professor Muñoz’s Religion Clause jurisprudence.
Having developed an innovative understanding of the Founders’ philosophy of religious freedom and a new interpretation of the Religion Clauses, Professor Muñoz proceeds to apply his constructions to important church-state questions. His distinct natural rights approach to religious liberty cases “focuses on whether governments possess legitimate authority to pass a law, not on how the law affects religious believers when implemented.” He acknowledges the uniqueness of his approach, which produces outcomes that are neither consistently conservative nor liberal.
For example, regarding the question of public-school organized prayer raised in the landmark Supreme Court case Engel v. Vitale, he writes that the “school policy violated the Free Exercise Clause because it exercised jurisdiction over a religious exercise as such.” Moreover, the Religion Clause would not require exemption of religious believers from sexual orientation non-discrimination laws such as the statute considered in Masterpiece Cakeshop v. Colorado Civil Rights Commission.
On the other hand, Professor Muñoz’s proposed construction “would allow government to fund religious individuals and institutions as an instrumental means to further otherwise legitimate civic interests.” Allowing religious institutions to benefit from school voucher programs is fully compatible with the natural right to religious liberty.
Conservative originalists would be expected to support an approach to church-state questions that is consistent with the Founders’ understanding of the natural right to free exercise. Professor Muñoz’s persuasive description of this religious liberty philosophy and its implications for contentious cases, however, poses a formidable challenge. Most striking is its seeming failure to allow conscientious objection to laws on religious grounds. However, Muñoz’s natural rights philosophy has the potential to produce a defense of religious liberty that is far more robust than an exemptions-based strategy, as it focuses attention on the substance of law itself, rather than the procedural question of balancing interests to determine whether certain individuals must comply with a statute. As Professor Muñoz writes, “The basis of these laws is, or at least ought to be, the natural law.”
Without rejecting the baseline protections afforded by the First Amendment, Catholics must move beyond them and develop a more robust conception of religious liberty, one that seeks to promote the conditions necessary for individuals to pursue what is objectively good and worship and live in accordance with the Faith. Rather than relying on procedural protection from courts, Catholics will be forced to advance and defend morally substantive legislation through the democratic process. Whether this republic can once again be ordered towards the good will depend on our ability to build upon and further the natural law-natural rights philosophy excellently presented in Professor Muñoz’s work.
Adam Morys is a junior from Downingtown, Pennsylvania majoring in history and philosophy with a minor in constitutional studies. When he is not reading, you can find him listening to music and taking walks around campus. Please email him at firstname.lastname@example.org.
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