Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses
By Vincent Phillip Muñoz.
The University of Chicago Press, 2022.
Paperback, 344 pages, $30.
Reviewed by Thomas G. West.
In a field crowded with books on religious liberty, Muñoz’s is especially welcome because it perhaps uniquely relies on the natural rights theory of the founding and its implications for constitutional interpretation. It is a radical book, in both senses of that term: he makes bold claims, and he returns to the roots: natural rights, which he argues are the original meaning behind the legal original meaning.
I only wish he had gone further. I would have liked a fuller discussion of the attack of modern civil rights law on religious liberty in everyday life.
The book has three parts with three main arguments.
Part I is the strongest. Muñoz demonstrates here that the founders shared a broad consensus on the basic meaning of religious liberty. The natural right of religious free exercise means that no one may be harmed on account of religion “as such” (Muñoz’s phrase). Using state constitutions and other founding documents, he shows what this means in practice: no one may be compelled to “profess or observe religious beliefs or practices.”
An important consequence of the founders’ definition concerns religious exemptions. Although they held religious freedom to be “inalienable,” there was no right to religious exemption from “legitimate generally applicable laws.” Government could grant such exemptions, but it was not required to. In other words, the right to free exercise was absolute, “inalienable,” as the founders said, but it was confined to worship, prayer, and so on (“religion as such”).
Today’s conservatives embrace the right to exemptions in order to hold back a complete ban on religious speech and practices, especially those concerning sex and marriage. I will return to this concern shortly.
The first part also shows, in spite of their consensus, that the founders disagreed on a subordinate but hotly contested question: What kinds of government support of religion are compatible with religious liberty, and what kinds conflict with it? Madison and Jefferson opposed most government support, while John Adams, Washington, and majorities in almost every state favored it.
Part II, on the First Amendment’s religion clauses, is also excellent. Muñoz shows that their original public meaning is in some ways “underdetermined.” The exact meaning of “free exercise” and “establishment” cannot be clarified from the debates in Congress or during the ratification process. This gives Muñoz an interpretive opening that he takes advantage of in the last part of the book.
In Part III the buried lede is finally unveiled. Muñoz reasons from the founders’ premises to a “constitutional construction” of the First Amendment. It is built on their agreements about religious liberty. It was this among other natural rights, after all, that the Constitution was designed to protect. Muñoz sensibly argues that the founders’ understanding should be our touchstone for understanding their Constitution’s religion clauses.
Muñoz’s plan to follow the implications of the original consensus is reasonable. However, questions may be raised about whether some of his conclusions follow from the founders’ principles. I will respond to four of them.
1. School prayer and government chaplains. From his correct statement that free exercise means no one may be compelled to “profess or observe religious beliefs or practices,” Muñoz infers that government may not mandate prayers in public school or at the beginning of city council meetings. Muñoz’s conclusion that there is a conflict between these policies and the right to free exercise of religion is at odds with the First Congress, which approved the First Amendment as well as legislative chaplains. In the Northwest Ordinance, it approved the teaching of religion in public schools. Muñoz argues that although most founders believed that these things are neither “establishments” nor violations of “free exercise,” they were wrong. They did not understand the implications of their own principles. Muñoz argues that their judgment must be overruled by going back to the original conception of “free exercise.”
Against Muñoz, I accept the founders’ judgment for the following reason: No one’s right to worship is infringed when children or legislators or soldiers listen silently to religious exercises as long as they are not compelled to participate.
2. Religious tests. Muñoz also rejects religious tests for political officeholding. These tests were required in almost every state. Such tests, Muñoz argues, require “an act of worship, specifically a profession of belief in God.” Muñoz calls this an establishment of religion, because when government prescribes oaths, it acts as a church.
But is this plausible? An affirmation of belief, I would suggest, is not an act of worship, but only a simple statement of fact (regarding belief), which the state in this case imposes as a job requirement. Non-eligibility for public office is not a denial of the right to worship. One might compare the oath requirement with the requirement of large property holdings for governors in some early state constitutions. Jefferson asserted (in the Virginia bill for religious liberty) that citizens who cannot take that oath are injured because they, together with other citizens, have the same natural right to attain public office as other citizens. Even Muñoz does not accept that claim. Serving in public office is not a natural right or even a right of citizenship.
School prayer, legislative chaplains, and religious tests are all connected with public institutions, not private. The founders’ understanding of free exercise of religion referred to the right to worship in private life. The founders distinguished between laws for private society in general and government’s own rules for its own institutions, such as schools and legislative bodies. Muñoz is right to say that the founders’ principle meant that government may not mandate “religious beliefs or exercises as such,” but the founders would add “in private life.” In the founders’ approach, when government governs itself, i.e., within government’s own institutions, it has a broader latitude. For example, when the Constitution authorizes Congress to “make Rules for the Government … of the land and naval Forces,” it is understood that these rules would in many cases be unconstitutional in private life. Government may tell a soldier what to wear, when to get up, where to live. But it may not make rules like that for society in general. The same goes for civilian departments of government. Rules are always imposed (such as a dress and manners code) that would not be permitted if mandated for the whole of private society.
3. Taxpayer support of clergy. Muñoz also claims that the founders’ principles would forbid government funding of clergy or religious organizations except as an incidental consequence of a general benefit for a secular purpose (e.g., vouchers that happen to be used by parents for a religious school).
Certainly one may argue against such policies on practical grounds, as Madison did. But Muñoz does not answer the objection (raised in early court cases in Massachusetts and New Hampshire) that no one’s right to worship is violated as long as all are allowed to attend their own churches, whether funded by government or not. Jefferson’s arguments to the contrary were incoherent, as Muñoz correctly pointed out in his earlier book, God and the Founders. Jefferson says it is “sinful and tyrannical” when government subsidizes teachings that the minority disagrees with. But Jefferson knew that when public schools exist, there will always be people who disagree with what is taught there. Muñoz himself admits that it is hard to make a free-exercise argument against funding ministers.
Besides, Muñoz knows well that state support of ministers in the founding had a legitimate natural rights purpose, namely, to promote obedience to laws protecting person and property. The 1792 New Hampshire constitution explains that “morality and piety rightly grounded on evangelical principles, that is, on the principles of the Gospel, will give the best and greatest security to government, and will lay in the hearts of men the strongest obligations to due subjection.”
In the end, denominational resentments led all states to end taxpayer support of ministers in private society. In the early 19th century, most states supported religion in other ways, such as promotion of a generic, non-denominational Protestantism in public schools.
4. Religious liberty today. Fourth and finally, Muñoz’s somewhat legalistic approach (Part III focuses on court cases) pushes the overall meaning of liberty into the background. In Part I, Muñoz explains that in the founding, the right to religious liberty is part of the broader natural right to liberty. Its protection is the purpose of government. Muñoz argues that the “free exercise” right is limited only to the practice of “religion as such.” It does not include the right to do things in daily life that are prohibited by general laws. In the founding era and long afterwards, this limitation was not a threat to religion because laws were mostly limited to prohibitions of harm to person or property or to the state. That might be a problem for Aztecs sacrificing children, but not for Christians or other believers then present in America.
Today’s civil rights laws, however, by abridging liberty in the broader sense, frequently limit religion as practiced outside of the narrow realm of “religion as such.” This is what leads to the desperate but probably doomed conservative promotion of the right to religious exemptions from general laws. The law today equates civil rights with ensuring equal respect along lines of race, sex, and sexual orientation. This leads to the banning of freedom of association. The law now dictates the terms on which people may be hired, promoted, and excluded. It bans or limits religious speech and religiously motivated conduct in the workplace. It denies religious and other schools the right to determine admissions policy. Civil rights laws protect the right of unwed mothers, gays, and transgenders to nondiscrimination—which means religious schools or businesses may be required to admit them or hire them, contrary to their Christian moral convictions.
In short, without freedom of association, there can be no effective right to religious liberty in the common sense meaning of that term—to follow and teach in daily life the moral beliefs of Christianity as understood by most believers.
Muñoz has a solution for conservatives: win elections and change the laws. Leaving aside the impracticality of that advice in an increasingly oligarchic regime, why not mention and discuss freedom of association? Assuming Muñoz’s appeal to original meaning is not hopeless, why not revive a constitutional right that is arguably as fundamental as the right to worship?
My reservations about Muñoz’s very good book are limited to Part III. Even here, the book’s merit is that it provokes the reader (as it provoked me) to clarify one’s conception of religious liberty, and to raise the question of whether it has a future in America.
Thomas West is Professor of Politics at Hillsdale College. He is the author of Vindicating the Founders and The Political Theory of the American Founding.
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