Vincent Phillip Muñoz’s superb new book is an indispensable guide to the issue that will soon replace abortion as the most important point of contention in our constitutional law. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will not put an end to legal conflicts over abortion in America. But the biggest fights in that war will now occur in the political branches of our government. Abortion will no longer be the Court’s most pressing and controversial topic. Instead, the relationship between church and state will become the defining concern of a new era in the courts.
The singular value of Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses is that it can help rectify our pervasive ignorance about the First Amendment. Muñoz, the Tocqueville Associate Professor of Political Science at the University of Notre Dame, writes in his opening paragraphs that “[i]t is ironic that we so little understand the Founders’ political philosophy of church and state, since originalism has arguably influenced no other area of constitutional law more.” He provides the analysis necessary for a robustly originalist approach to those clauses of the First Amendment that touch upon religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging…the right of the people peaceably to assemble.” Drawing on copious documentary sources, but also deploying a rich understanding of founding-era philosophy, Muñoz illuminates what the founders intended the religion clauses to do.
* * *
“Originalism” is the escutcheon of contemporary constitutional conservatives. Founded in the mid-1980s by legal theorists and practitioners Edwin Meese, Robert Bork, and William Rehnquist, originalism was carried to fin-de-siècle prominence by Justices Clarence Thomas and Antonin Scalia. It is currently the professed creed of, well, maybe everyone: at her Senate confirmation hearing in 2010, Elena Kagan famously proclaimed that “we are all originalists” now. This much is for sure: liberal Justices as much as conservatives are all-in for historical interpretation when applying the religion clauses. All are agreed that properly construing these clauses hinges on discerning what James Madison, Thomas Jefferson (who was not in Congress then, but whose views remained influential), and their peers understood the words to mean.
In my judgment, it is an entirely sound practice to interpret the Constitution according to its original public understanding, as nearly as possible given the limitations of historical sources. In doing so, we recognize two essential things about constitutional adjudication: that the constitutional text remains authoritative, and that the point of interpreting it is to understand the meaning that legislators intended to convey by ratifying it. But it is perhaps ironic that Muñoz should serve as our pathfinder in applying this technique to matters of church and state, since he is himself rather a lukewarm originalist. He favors originalism more as a penultimate measure of contemporaneous constitutional meaning than as a final or definitive criterion of constitutional doctrine. He intends “to present a historically and philosophically sound account of the Founders’ church-state constitutional thought,” enabling readers “(a) to better evaluate how the Founders have been used and misused, especially by judges, (b) to consider with greater depth and understanding whether we ought to attempt to implement the Founders’ church-state natural rights constitutionalism, and (c) should we choose to follow their lead, to facilitate a more accurate application of the Founders’ natural rights political thought to contemporary constitutional issues.”
* * *
Recovering faithfully the original meanings of the Religion Clauses does not render them immune from criticism. But it does help us to interpret the constitutional text. And in my view, if not in Muñoz’s, that text—not the contemporary debate surrounding it or a more ideal version of it—is what carries authority in court. So if Muñoz is suggesting that judges discard what they determine to be the original meaning of the text in favor of an amended version more critically satisfying to them, I disagree. But so far as I can tell, nothing important in Muñoz’s book depends for its cogency upon resolving this disagreement. He and I agree that the founders’ “political philosophy of church and state” lights up the text and brings its meaning into focus, but that doing so only gets us part of the way to good court decisions. For the Constitution’s original norms of religion, liberty, and the common good are, to some extent, indeterminate. Resolving those indeterminacies in specific cases will require a precise understanding of the framers’ original intent.
Muñoz thus seeks the founders’ deepest convictions about church and state. Diligent scholars and archivists are always unearthing new facts about matters of religion at the founding. But more facts do not always translate to greater critical understanding. Unearthing George Washington’s hymnal or the archival sermons of angry backwoods preachers may make for satisfying intellectual history. But what does it tell us about legal normativity in matters of faith? About the precise ways in which religion is, and is not, part of our political common good? To answer those questions, and many more like them, you don’t need more old letters or second glances at ancient gravestones in Salem. You need better philosophy. That is what Muñoz supplies. His main contention is that “[w]e no longer understand, however, what the Founders meant when they declared religious liberty to be an ‘inherent,’ ‘natural,’ or an ‘inalienable’ right.” We suffer from what he calls “intellectual amnesia,” an inability to read the founders’ words as they themselves understood them.
This is because Christian belief, especially that of the more familiar Protestant varieties, has undergone a Copernican shift since the founding. In volume 5 of The Christian Tradition (1989), the great doctrinal historian Jaroslav Pelikan describes how faith gradually became, as Darwinism and natural science grew more dominant, a matter of personal conviction rather than absolute truth: “Miracle, mystery, and authority, whose validity as objective realities seemed to have reached a dead end, took on new life when they became, instead, ways of speaking about the subjective validity of inward experience.” This reduction of the supernatural to the subjective began to affect the Supreme Court in the 1940s. Then, in the landmark Planned Parenthood v. Casey (1992), the Court doubled down on solipsism: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Now the individual’s will or imagination constitutes “his truth,” in lieu of an objective religious truth against which external reality can be measured.
This radically new understanding of religion as an inner subjective experience has blinded us to the true meaning of the founders’ statements. The founders affirmed their theistic principles as true facts about reality, visible and invisible. As historian Owen Anderson aptly wrote in “Religious Liberty and Common Ground” in the journal Starting Points (July 2020): “The United States was founded on natural religion.” “Natural religion” is and was understood to be philosophy. It was not a leap of faith but a reasoned argument for the true and objective existence of one creator God. When the founders pronounced “in God we trust,” they meant it literally.
* * *
In order to deny this, Justices must explain away such vestiges of natural religion as legislative prayer, the Pledge of Allegiance, and monuments like the Bladensburg Peace Cross commemorating those killed in World War I. The Court has decreed all such religious ceremony and symbolism to be instances of “ceremonial deism”—vestiges of yesterday’s faith persisting among us as remnants of days gone by. But the whole notion of “ceremonial deism” is a desperate anachronism. The Court invented it to save these national treasures from demolition by the Court’s own misguided “secularizing” purge. In fact, Cornell’s R. Laurence Moore and Isaac Kramnick, neither of whom favors public displays of faith, write in Godless Citizens in a Godly Republic (2018) that “ceremonial deism” is a “phrase that would have meant nothing to our founders.” By reading the founders’ statements of belief as mere window dressing or personal preference, we blind ourselves to the plain meaning of their words. The founders envisioned a non-sectarian but theistic commonwealth—one whose citizens are obliged to worship their creator, but whose government is obliged not to dictate how they should do so.
Lately, however, judges seem to suppose that all affirmations about divine realities are matters of faith, intuition, and feeling—not of reason. They write as if there is no such thing as “natural religion.” Whereas the founders meant to put sectarian distinctions beyond the remit of government, our judges rule as if the Constitution mandates nationwide “secularism.” From this has arisen an ahistorical misreading of Jefferson’s call for a “wall of separation” between church and state. Those words have been misinterpreted as a command to restrict government operations—their purposes and primary effects—to “secular” things. “Secularism” thus became the lynchpin of all that the Court has done with and to the religion clauses over the last 60 years. It remains a sine qua non of the “Lemon test,” so named because the Court ruled in Lemon v. Kurtzman (1971) that government actions “must have a secular legislative purpose.” In case after case, Justices have insisted that a “naked public square” was the framers’ strict requirement.
But, as Muñoz writes, the “dichotomy between ‘secular’ and ‘religious’ is not one the Founders used, and it does not cleanly map on to the categories the Founders did use.” Faced with a law concerning religion, the founders “would not ask whether [the] legislation has a ‘secular’ or ‘religious’ purpose, but rather whether it lies within the state’s legitimate civic jurisdiction.” The founders’ question would have been something like: is the proposed legislation necessary to promote and encourage the people’s religious faith, and does it do so while respecting the individual right of religious liberty?
* * *
To illustrate some important practical applications of this approach, Muñoz takes up at length the most pressing question of free exercise in today’s jurisprudence—namely, whether judges can mandate “exemptions” from general legal obligations which burden a particular person’s or group’s religion. The question arose repeatedly during the dark days of COVID coercion: could the governor shutter churches? Could the city fire unvaccinated employees for refusing on religious grounds to take the shot? Before ruling on these pandemic-related cases, the Supreme Court decided in Fulton v. City of Philadelphia (2021) that Philadelphia could not exclude a Catholic agency from its foster care service program just because the Church only licensed heterosexual couples to foster. Earlier high-profile cases involved Native Americans’ use of a banned hallucinogen (peyote) in a religious ritual (Employment Division v. Smith, 1990), and potential exemptions for the Amish from compulsory school attendance laws (Wisconsin v. Yoder, 1972).
The Court’s answer to the exemption question is sometimes “yes” and sometimes “no,” depending on the precise facts of a given case. More fundamentally, the Court has seesawed on the philosophical question at stake: are judicially crafted exemptions ever required by the religion clauses? From the founding until 1963, the answer was negative. From then until 1990, it was positive. Then, in Employment Division v. Smith, the Court allowed employers to deny unemployment benefits to users of peyote, once again striking down the possibility of exemptions. Now the Court seems poised to endorse exceptions once more—at least, Justice Samuel Alito, with the concurrence of Justices Clarence Thomas and Neil Gorsuch, signaled that intention in the Fulton case. Justices Amy Coney Barrett and Brett Kavanaugh also expressed a certain level of support for the idea.
This is an issue for all seasons. Objecting believers could petition for relief from obligations stretching from the delivery room to death row—and everywhere in between. That is what makes the matter so explosive. It is a tail wagging the dog of abortion access, same-sex marriage, transgenderism—you name it. The basic constitutional question was put on hold in Fulton when Justices Barrett and Kavanaugh hesitated to join their conservative brethren in overturning Smith. Sometime soon, however, the Court is likely to re-embrace judicial authority to issue exemptions. The Justices will present that holding as the command of the founders. Most scholars and religious liberty lawyers will say they are right.
* * *
Muñoz dissents, as do I. one devastating piece of evidence comes from Congress’s debates over whether to exempt members of “peace churches” from mandatory militia service. Muñoz carefully unpacks the question, and concludes: “The fact that the House continued to debate a conscientious objector provision immediately after it had adopted language protecting ‘free exercise’ suggests that it did not consider ‘free exercise’ to include the right to exemptions from generally applicable laws” (emphasis added). Further, “no member of the House connected the debate over conscientious exemptions from military service to the text protecting religious free exercise.”
In reflection upon the implications of this argument, Muñoz identifies a foundational operative principle of religious liberty as the founders understood it: public authorities are forbidden to regulate any practice on account of its religious character, but not to enact a general prohibition that incidentally outlaws a religious practice. “A municipal ordinance that specifically prohibits the Catholic Mass” would be unconstitutional, but “an ordinance that requires traffic control for all gatherings that draw two hundred vehicles or more” would be perfectly valid, even if some Catholic Masses were thereby subject to traffic control.
* * *
In principle, then, the putative truth or falsity of any mode of worship is beyond the ken of the state. One corollary of this principle is to remove the salvation of souls from among the legitimate purposes of government. This was a revolutionary move, and its good effects have reverberated through the ages. Muñoz writes that “limiting governmental authority over religion is at the core of the Founders’ liberalism.” But stipulating Congress’s incompetence to rule on these questions nevertheless presupposes that there is a truth about such matters as worship, sacraments, doctrines, and ecclesiastical governance. Today’s Justices (liberal as well as conservative) write as if this incompetence entails an epistemological impossibility: lawmakers cannot rule on religion because religion is not the kind of thing that is either true or false. This is a category mistake.
On this crucial point, Muñoz cites Madison’s “Memorial and Remonstrance” of 1785. Madison wrote that each individual must fulfill his own obligations to God, because God requires their fulfillment and they cannot be discharged by proxy. Each person’s duty is “to render to the Creator such homage and such only as he believes acceptable to him.” One’s acts of worship get the job done only insofar as they represent what the creature sincerely believes to be true worship.
The right of religious liberty exists, then, precisely to enable everyone to perform an inalienable duty. This moral obligation to worship God is not solely a revealed truth. It is also the plain implication of natural religion: if (since) there is a creator God who continues to care for all there is according to a providential plan, it is fitting that creatures respond accordingly, by giving homage pleasing to that God, whom the founders often referred to as “the Great Governor of the Universe.”
The founders were thus dedicated to enabling every citizen to be religious in the manner he or she deemed appropriate. Muñoz asserts that the evidence “fail[s] to yield a definite or precise meaning of what constitutes ‘an establishment of religion.’” My own research indicates, however, that the defining feature of an “establishment” for the founders was government favoritism for one or another of the various churches or denominations, such as the Congregational establishments in New England and the Anglican ones in the South. But it did not follow that religion was privatized or the public secularized. Religion was (in the paradigmatic phrasing of the Northwest Ordinance) necessary not only to “the happiness of mankind,” but also to “good government.” On this subject, Muñoz wisely features the handiwork of Patrick Henry and George Washington. Henry argued that “the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society.” Muñoz explains that Henry advocated government support for religious teachers because they would help reinforce public morality, not “because they teach the true religion or because they are necessary for the salvation of citizens’ souls.” The government could not assign salvation, but it had an interest in fostering a religious people.
* * *
These ideas were advanced most famously by President George Washington in his Farewell Address. “’Tis substantially true,” he stated, “that virtue or morality is a necessary spring of popular government.” But virtue and morality, he warned, require religion: “[L]et us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure—reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.” Thus, though a national church was forbidden, the founders intended states to foster public religion and morality on their own terms. This was the state of affairs until the Court intervened, starting in the 1940s.
As Muñoz shows, the founders believed that society is most just and most free when it holds two essential forces in tension. One is the centrifugal force of individual devotion: the inalienable transcendent obligation of each human soul to worship God as seems truly good to the conscience. But binding and restraining that individualism is the centripetal force of common good, the imperative for religious restraints to set moral limits in a free society. The equilibrium between liberty and cohesion was always bound to be fraught. Often in our history, it has been elusive. But the framers wrote the religion clauses of our Constitution to set the parameters, as best they could, for a healthy and noble balance between freedom and order. Recovering the original meanings of those clauses is essential if we are to restore that balance, and Vincent Phillip Muñoz’s book gives invaluable aid in that necessary task.