Part One of a Review of Religious Liberty and the American Founding, Natural Rights and the Original Meanings of the First Amendment, Vincent Phillip Muñoz (University of Chicago Press, 2022).
Historians, lawyers–and even Supreme Court Justices–still struggle to understand and apply the First Amendment’s two Religious Clauses, which protect the free exercise of religion and forbid laws “respecting” an establishment of religion. In Religious Liberty and the American Founding, Professor Vincent Phillip Muñoz, the Tocqueville Associate Professor of Political Science and an Associate Professor of Law at the University of Notre Dame, expounds on the original meaning of those provisions. His book is a valuable contribution to the ongoing debate on this important topic.
Muñoz provides a wealth of information and insights about the origins of the Religion Clauses. This review cannot do justice to Muñoz’s scholarship, one clearly developed over years of study and refinement, as corroborated by his extensive sources and notes. I will first describe his themes, which are both innovative and provocative. I also will note a few concerns about the application of his principles to current church-state controversies
First, this book is very well arranged–each chapter asserts one, or more typically, several propositions, and proceeds to defend each one empirically. For example, in chapter 1, “The Founders’ First Agreement: Religious Liberty, is a Natural Right Possessed by All Individuals,” Muñoz explains why these two principles were embraced by the Founders when they crafted the Religion Clauses. He emphasizes that it is important to articulate, and defend, these corollary principles, in part because many writers argue that the Clauses only embody governmental “neutrality” in the treatment of religion, rather than the protection of every individual’s natural right to religious liberty.
Muñoz acknowledges that it is no easy task to discern the Founders’ intent, because our founding was “a collective action undertaken by numerous individuals and several distinct political bodies.” Nevertheless, he assembles considerable evidence that early state charters, representing the “collective voice of the citizens” of several of the states, did recognize religious liberty as our natural right. This right is natural, he explains, in the sense that “neither the state nor any other human authority creates” it, and the right is “inherent” in the sense that it “inheres in the individual on account of human nature.” Thus, during the 1776 debate on the drafting of Virginia’s Declaration of Rights, George Mason proposed text positing that all men should “enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience.” But James Madison prevailed in the convention by substituting broader language, i.e., to protect the “full and free exercise” of religion. Muñoz concludes that the Founders understood that religious liberty was possessed by all individuals, even though, in some individual states, there were distinctions made between Christians and non-Christians. Connecticut was the only Founding-era state after 1790 that clearly limited freedom of worship to Christians.
The universal possession of natural rights is a key point for the Founders. James Wilson observed that, although men were not equal as to “their virtues, their talents, their dispositions, or their acquirements,” the “natural rights and duties of man belong equally to all,” and each “forms a part of that great system, whose greatest interest and happiness are intended by all the Laws of God and nature.” As Muñoz emphasizes, men “are equal in their natural dominion over their own lives,” and this fundamental equality in freedom “lies at the foundation of the Founders’ conception of natural rights.” A corollary principle is that a government derives its legitimacy by the consent of the governed, but only insofar as the government serves the “general good,” understood, “first and foremost, as the liberty of the naturally free and independent individuals who form that social compact.” Natural rights thus exist in the context of a “social compact theory of government.”
This core of natural rights means that individuals “do not grant government authority over the “how” aspects of religious free exercise. The government 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.” Muñoz cites texts from the state constitutions confirming that government is not granted jurisdiction over religious worship as such, and it may not prohibit, nor mandate, forms of religious worship. This was a point made in James Madison’s famous 1785 Memorial and Remonstrance against Religious Assessments. Muñoz also summarizes the political writings of Madison, Thomas Jefferson, and the Reverend Isaac Backus, a prominent spokesman on behalf of the Baptists in New England during the 1770s and 1780s, to support his proposition that the natural right to religious freedom was acknowledged throughout our new nation.
One critical issue is whether the Founders understood that the individual’s natural right to religious liberty also required exemptions from generally-applicable laws. Muñoz contends that the exercise of natural rights “was always understood not to license actions that interfere with others’ prerogatives to exercise their natural rights.” Instead, the “community can grant legal exemptions to religious and other citizens from burdensome laws,” but this is “a matter of discretionary civil rights, not natural rights.” (original emphasis). I will return to his contention at the end of this review.
Muñoz acknowledges that, although the Founders shared the two principles that I have described, their agreement on fundamentals “did not yield agreement on all matters of public policy.” He describes two competing viewpoints–the “more classically liberal Founders” (by which he means classical liberalism, not modern progressivism)–had an expansive view of religious freedom, one that broadly limited the scope of legitimate state action. In contrast, the “more republican Founders held a narrower view on religious liberty,” that provided more “constitutional space” for the adoption of “majoritarian-church-and state public policies.”
Not surprisingly, one controversial issue was taxpayer support of religious activities. A wide array of state constitutional provisions existed, sometimes, but not invariably, related to whether the individual state had an established church. Muñoz explains that the relevant state laws that compelled financial support of churches were distinct from laws pertaining to state religious establishments. Patrick Henry was an example of the “narrow republicanism” perspective; he supported tax assessments to fund religious ministers in Virginia. In contrast, James Madison epitomized what Muñoz calls “expansive liberalism,” the proposition that the “inalienable right of religious liberty places not only worship but religion itself” beyond the government’s jurisdiction.
Muñoz devotes considerable analysis on the original meaning of the two Religion Clauses. His inquiry is based in part on “the new originalism.” Quoting Professor Keith Whittington, Muñoz states that originalism “argues that the discoverable public meaning of the Constitution at the time of its initial adoption” should be considered “authoritative” for constitutional interpretation. Muñoz explains that “we ought to be governed by the original meanings of the Constitution’s principles, at least insofar as those meanings can be determined.” What Muñoz describes as “construction originalism” recognizes that “lawmakers’ principles might differ from their expected applications of them, and also that lawmakers might either mistakenly apply their principles,” or fail to “fully appreciate their meaning.”
Muñoz appears to embrace “text and design” or “design originalism.” He explains that “[d]esign originalism respects the fundamental originalist commitment to understanding and applying the meaning of the Constitution as originally embedded in its text, principles, and underlying purposes.” Muñoz endorses the approach of Professors John McGinnis and Michael Rappaport, who contend that discerning original meaning requires consideration of “the relevant originalist evidence–evidence based on text, structure, history, and intent,” in order to select the interpretation that is supported “more strongly by the evidence.” Consistent with those tenets of originalism, Muñoz examines the pertinent texts. His chapters are replete with excerpts from the relevant state-level debates during ratification and also during the First Congress in 1789.
Turning first to the Establishment Clause, Muñoz concludes that it does not create a “blanket prohibition” against legislation pertaining to religion. Instead, the most straightforward reading of the Clause, as enacted, is that Congress is prohibited from passing laws regarding an establishment of religion. Congress cannot erect any type of religious establishment itself, or make any laws concerning existing or potential state-level establishments. Thus, the term “respecting an establishment” imposes an explicit substantive limitation on the national government in creating a national religion or compelling adherence to it. The relevant debates showed the fear of a “national religion” that could interfere with state churches.
For example, the House of Representatives had adopted language that Congress “shall make no laws touching religion.” But this was altered several days later to “Congress shall make no laws establishing religion.” The first phrasing could have reached any aspect of Congress’s lawmaking power, while the “establishing religion” language prohibited a specific type of legislation.
Muñoz also cites the work of a House-Senate Conference Committee that crafted the final language of the Clause. That process created a “jurisdictional component” to the clause, meaning there would be no interference with state establishments, nor the creation of a national establishment either.
Although Muñoz concludes that the Clause embodies a rule, not a standard, he asserts that there is no clear or definitive meaning on what constitutes “an establishment” of religion. Ultimately, we cannot determine what the Framers, or the state-level ratifiers, intended by that word.
Practically speaking, the Establishment Clause prohibits the government from “functioning like an institutional church, and from directly legislating articles of faith or modes of worship.” Finally, Muñoz accepts the “incorporation” of the Clause to the individual states, as held in Everson v. Board of Education, but he observes that applying the Clause against the states is not “fully consistent with the text’s original design.”
In contrast, the Free Exercise Clause, Muñoz asserts, embodies several normative principles. First, “no authority over religious free exercise can be vested in government given its inalienable character. The nature of religious freedom itself does not allow individuals to give authority to government over it.” The Clause thus creates a “hard boundary on state action,” i.e., the government cannot exercise jurisdiction over “religious exercises as such,” and it can “never punish, prohibit, mandate, or regulate religious beliefs or exercises on account of their religious character.”
Muñoz concludes that the “original meaning” of the Free Exercise Clause, with respect to the substance of religious exercise, was left “underdetermined.” That does not surprise me. Religious worship, and the principle of individual conscience, were both deeply embedded in the fabric and culture of our colonial societies, although there were variations of practice and belief in our multi-denominational, then-predominantly Protestant, country. I would not expect protracted debate on that issue. The Founders (and the anti-Federalists in particular) feared that a national government would intrude into the natural right to religious belief and worship. They did not need to describe such beliefs or their manifestations.
This concludes Part 1 of this review. Part 2 will be posted soon. There, I will complete my review of Muñoz’s views on the Religion Clauses. I also will provide my reflections on his originalist interpretation of them.
 Constitutional Construction: Divided Powers and Constitutional Meaning (Harvard University Press, 1999) 5.
 John O. McGinnis and Michael B. Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case against Construction, 103 Northwestern U. Law Rev. 751, 774, 789 (2009).