A slightly shorter version of the following essay was delivered at the 2023 James Madison Program Giuffra Conference at Princeton University, where Professor Muñoz was asked to present his recently published book, Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses (Chicago, 2022).
Anchoring Truths continues its featuring of Prof. Muñoz’s work after a two-part review of Muñoz’s recent book by Assistant Editor Ted Hirt. Read both reviews here and here.
I thought I might frame my remarks this afternoon by attempting to answer a question that this particular audience might find of interest: What would an originalist, natural rights jurisprudence of religious liberty look like?
While there are different varieties of originalism, all originalists start with text. For the First Amendment religion clauses, the originalist asks: What is the original public meaning of an “establishment” of religion? What is the original public meaning of religious “free exercise”?
It turns out that it is not altogether clear how the Founders understood these terms, though it is clear that they were not terms of art, like “letters of marque and reprisal.”
When the text is unclear, most originalists turn to the historical record. They often start by asking what we can discover by reviewing the text’s drafting and adoption.
In my book Religious Liberty and the American Founding, I devote a chapter to a review of the historical record surrounding the drafting and adoption of the Establishment Clause and the Free Exercise Clause, respectively. These chapters are primarily written for lawyers and judges, though those who would spend part of their summer vacation at a James Madison Program conference would likely find them of interest as well. The conclusion that I reach after reviewing all the available records is not a happy one for the typical originalist: the historical record does not shed much light on the texts’ original meaning. The text is underdetermined.
We can know something about the Establishment Clause’s original meaning—mainly that the Framers wanted church-state questions to remain at the state level—but we don’t find what an originalist needs most for jurisprudence, a clear definition of what constitutes an establishment of religion. The same is true for the Free Exercise Clause. When we review the drafting record, we find that the framers spoke of religious liberty as a fundamental principle, but they didn’t define the term “free exercise” with precision.
And so, I conclude, echoing a point that Hadley Arkes has made for years, that we have to go beyond the text to interpret the text. To use the language of contemporary constitutional theory, because the First Amendment religion clauses are underdetermined, we have no choice but to construct the text. We can’t just interpret it.
As everyone in this audience knows, non-originalists and political progressives go beyond the Constitution’s text all the time. For example, the latter typically look to contemporary progressive values, which often means that they look to the values of the Ivy League professoriate, sans Professor Robert (“Robby”) George of Princeton University, to interpret the Constitution. Some of them probably look at Robby George and conclude that the Constitution means the opposite of whatever he believes. Conservatives may get nervous about going beyond the text, because they presume that means the judge or scholar is importing his or her own views into the text, something a faithful constitutionalist is not supposed to do.
But if the text lacks a clear original meaning, or if the original meaning is underdetermined, as in the case of the religion clauses, conservatives have a problem. They believe the text’s original meaning ought to govern. But if there is no discernable original meaning, then the text can’t govern; or at least it cannot govern without recourse to some non-textual authority. At this point, some conservatives say that if the text is unclear, then judges should not interpret it and should instead defer to the popular branches . But this proposition, we ought to note, is itself not grounded in the Constitution’s text and relies on a non-textual source of authority. Moreover, it leaves members of Congress and the President without guidance as to how they should interpret the Constitution. They, too, are constitutional officers and must necessarily interpret the Constitution to exercise their own constitutional powers.
The solution I propose in my book is that originalists need to be more capacious than they have been in the past. In those cases when the text is underdetermined and its original meaning cannot be deciphered, originalists should read the Constitution in light of its original design and purposes.[1]
The Founders drafted and the American people adopted the Constitution to secure our natural rights. When the founding generation discussed religious liberty, they said that it was an “unalienable natural right.”[2] An approach to the Constitution consistent with the original philosophy that animated it would construct the First Amendment in light of America’s original natural rights political philosophy. This is what I try to present in my book.
That the Founders understood religious liberty to be an inalienable natural right is easy to document by turning to the pre-1787 state declarations of rights and constitutions. Twelve states (if we count Vermont, which didn’t become a state until 1791 but drafted its first constitution before then) drafted declarations of rights and/or constitutions between 1776–1786. These state charters capture the American mind at the time of the Founding. They make clear the founding generation’s natural rights understanding of religious freedom.[3] Article II of the 1776 Pennsylvania Declaration of Rights, for example, provided:
II. That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding: And that no man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent: Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship: And that no authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner controul, the right of conscience in the free exercise of religious worship.
To understand what the Founders meant by an “inalienable” natural right, we have to understand their natural rights constitutionalism more generally. As I discuss in Religious Liberty and the American Founding, the Founders spoke of two types of natural rights: “alienable” and “inalienable.” To oversimplify—but also to get to the heart of the matter—we grant government jurisdiction over our “alienable” natural rights in order to better secure them. We do not, and could not, give government jurisdiction or direct authority over our “inalienable” natural rights.[4] These we retain our full authority over. And the Founders agreed that religious liberty is an inalienable right.
So what would a natural rights approach to the First Amendment look like? What results does this approach produce? Alas, in my judgment, this is not a combination that will make anyone entirely satisfied.
For the Free Exercise Clause, we must understand that the Founders’ conception of inalienable natural rights is jurisdictional. The Founders held that we the people do not grant government authority over religious exercises as such. This lack of authority means that government cannot punish, prohibit, mandate or regulate religious beliefs or exercises as such.[5] A natural rights construction of the Free Exercise Clause would prohibit laws that directly regulate religious exercises, and it would do so categorically, without tests for compelling state interest or least restrictive means analysis.
The Free Exercise Clause would not limit or prohibit otherwise valid laws that indirectly burden religiously motivated beliefs or practices. The approach, in other words, would not provide a constitutional right for exemptions for religious individuals from otherwise valid but religiously burdensome laws. Natural rights originalism would not support the approach taken by Justices Alito, Thomas, and Gorsuch in Fulton v. City of Philadelphia (2021). A natural rights construction also would differ from the approaches taken by Justice Scalia and Chief Justice Roberts, who read the Free Exercise Clause as a non-religious discrimination provision. The natural rights approach is both more limited and more focused: it prohibits laws that directly regulate religious exercises as such.[6]
My analysis of the Free Exercise clause has received significant attention, probably because many (though not all) conservatives do not like it. Regardless , I actually think that the book’s approach to the Establishment Clause has more to offer the Court.
For the Establishment Clause, the translation from natural rights theory to constitutional doctrine is a bit less direct. If we gather what we know about the text’s original design and consider the actual words adopted, a construction of the Establishment Clause consistent with the Founders’ natural rights political philosophy would prohibit both what I call “state establishments” and “church establishments .”[7]
Here the most useful example from the founding era is not the state of Virginia, which the Court recurred to in its early Establishment Clause jurisprudence, but rather South Carolina. The 1778 South Carolina Constitution is the only state constitution that explicitly and textually established a religion. It makes sense, therefore, to look at it to grasp the Founders’ original understanding of a religious establishment.
The 1778 South Carolina Constitution legislated state privileges for, and state controls on, established churches. The constitution prescribed specific tenets of faith, it specified how ministers were to be selected, and it contained a provision like an oath of office that ministers of established churches had to recite. The constitution also extended specific privileges to state churches. Most notably, the state delegated its taxing power to church so that churches could assign “pew assessment” taxes on their members. Unlike a voluntary offering in support of ministry, these taxes were backed by the coercive force of the state. Congregants joined their churches voluntarily, but once they registered, the church effectively possessed the state’s taxing power over them .[8]
Drawing on the historical example of the 1778 South Carolina Constitution in addition to the Founders’ social compact theory, we can generalize what a natural rights approach to religious establishments would look like. A natural rights construction of the Establishment Clause (assuming incorporation) would prohibit:
• “state establishments”: government itself exercising the functions of an institutional church, including the regulation of internal church matters such as the content of doctrine and the selection of ministers
• “church establishments”: the delegation of government’s coercive authority to churches, especially in matters of taxation and financial contribution.
Whereas the Free Exercise Clause was designed to protect an individual right, the Establishment Clause was designed to prohibit certain types of relationships of privilege and control between the government and institutional churches. It was designed, for example, to prohibit government from prescribing religious doctrines or from regulating the manner in which church officials are selected. The Establishment Clause, accordingly, prohibits government from issuing preaching licenses. The state cannot require licensure for religious ministers because the state lacks authority over religious exercises as such. In short, a natural rights approach to the Establishment Clause would prohibit government from exercising over religious institutions any authority not granted to it and from delegating to religious institutions its own authority.
As I try to make clear in my book, my aim as a scholar is not primarily to defend the Founders or to recommend that we implement their ideas here or now. Rather, I seek to recover the Founders’ ideas about political liberty so that we might more deeply reflect on—and then choose wisely how to protect—our first freedom today. But for those committed to originalism, to do their craft intelligently, they must understand the Founders’ political philosophy. To be a faithful guardian of the Constitution’s original meaning in the most decisive sense requires understanding why the Founders adopted the constitution they did.[9] It is not enough to be respectful of the words in the document; one must comprehend the purpose of the Constitution if one is to understand all the words it contains. If we wish to understand and faithfully apply the text of the First Amendment, we must understand the Founders’ natural rights political philosophy. Explaining the words and the theological, philosophical, and political reasoning that led to their adoption is what Religious Liberty and the American Founding seeks to do.
[1] Vincent Phillip Muñoz, Religious Liberty and the American Founding, 118-24, 217-28.
[2] See, Vincent Phillip Muñoz, Religious Liberty and the American Founding, Chapter 1.
[3] See, Vincent Phillip Muñoz, Religious Liberty and the American Founding, Chapter 2.
[4] For a discussion of the Founders’ social compact theory, see Religious Liberty and the American Founding, Chapter 2.
[5] For an elaboration of this point, see Religious Liberty and the American Founding, Chapter 7.
[6] For a more thorough explanation of these points, see Chapters 6-8 in Religious Liberty and the American Founding.
[7] See, Religious Liberty and the American Founding, Chapter 7.
[8] For a more thorough discussion of the 1778 South Carolina Constitution’s and how it might shed meaning of the original public meaning of a religious “establishment,” see Religious Liberty and the American Founding, 242-45.
[9] The late Michael Uhlmann, with whom I had the pleasure of studying, stated a similar point with far more elegance in The Claremont Review of Books:
At the end of the day, words in a legal text, without more, cannot carry the philosophical weight that originalists place upon them. It is one thing to point out, as originalists do most effectively, that such-and-such a phrase had, and was meant to have, a particular, relatively fixed meaning at the time of its adoption. Persuading others that the identified meaning has, or should have, binding effect in our own day is another argument altogether. Ultimately, that argument must rest on the reaffirmation of the enduring, self-evident truths that must undergird the case for limited government, that is, on premises that are not explicitly identified in the constitutional text itself. A true originalism, in short, must look beyond the Constitution to justify the ground of its intellectual authority.
