Constitutional Freedom

Religious Liberty and the American Founding:
Natural Rights and the Original Meaning of the First Amendment Religion Clauses
by vincent phillip muñoz
university of chicago,
344 pages, $30

Vincent Phillip Muñoz (Phillip to his friends, among whom I count myself) is a rising star at Notre Dame, which is becoming a powerhouse of serious constitutional scholarship. This book is the culmination of a decade of Muñoz’s scholarship on the religion clauses of the First Amendment. Those who imagine there is nothing new and valuable to say on this much-analyzed topic should think again. Muñoz has written the best account in one place of the way in which the political theory of the founders regarding religious liberty connects with the delphic legal text of those clauses, which together state that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

These clauses have, of course, often been the subject of high-profile debates—for instance, over whether members of the Native American Church are constitutionally entitled to use the hallucinogenic drug peyote in their ceremonies (Muñoz agrees with the Supreme Court that they are not); or whether a religious baker or website designer has a free exercise right not to design a cake or website for a same-sex wedding. Munoz writes that “the Free Exercise Clause would not mandate such an exception.” (He does not discuss whether the exception could be justified on other grounds.) In other words, his view of the “free exercise clause” is a narrow one—far too narrow, in my view. Yet his argument is worth exploring.

In seeking to discern the meaning of the religion clauses, most analysts focus almost exclusively on either the theory or the ­practice—on the legal philosophy of James Madison and Thomas ­Jefferson (sometimes supplemented with Locke, Hobbes, ­Spinoza, or Mill), or the U.S. Supreme Court’s ­incoherent and internally inconsistent corpus of cases on free exercise, establishment, and religious speech and association. Muñoz is one of the few scholars to offer an integrated analysis of the legal texts—meaning the First Amendment and also the related state constitutional provisions—in light of the theoreticians. He is also ­unusual in recognizing that ­Madison and Jefferson, far from being heroic loners, developed their ideas in concert with other major players in the debate, among them ministers and theologians.

Muñoz’s book has two aspects. It argues convincingly for the importance of “natural rights” in understanding the Founders’ views on religious liberty, and—less convincingly, in my view—it advances an interpretation of the limits of religious free ­exercise.

The concept of “natural rights” is not much discussed in modern constitutional jurisprudence. (Perhaps this is because Justice Hugo Black used the term disparagingly to mean rights not grounded in the constitutional text or tradition.) But as Muñoz demonstrates, the concept was ubiquitous at the time of the Founders, and fundamental to their reasoning about rights and obligations, particularly in the religion clauses. The book’s central argument is that their understanding of natural rights remains compelling and attractive today.

As Muñoz skillfully explains, natural rights are rights held by all persons by virtue of their humanity, to be distinguished from “acquired rights,” which are bestowed by civil society. “Natural rights, in the Founders’ understanding, exist prior to government. They are ‘natural’ in the sense that neither the state nor any other human ­authority creates them.” ­According to the social compact theory to which almost all our Founders subscribed, constitutions were adopted to specify and secure these rights, not to create them. Note that the Constitution states that no person shall be “deprived” of the rights of life, liberty, and property, which presupposes that those rights existed before the Constitution was adopted. Religious liberty was universally recognized as one of these natural rights, now to be protected as civil and constitutional rights. All but one of the twelve states that adopted new constitutions in the decade following the Declaration of Independence recognized religious liberty as such a right.

As Muñoz demonstrates, natural rights lie at the foundation of the American understanding of civil and religious freedom. Nevertheless, the differences among the Founders are important. Jefferson focused mostly on a general freedom of the mind, rather than a specific freedom of religion. He dismissed religion as largely irrelevant to civic life—surely an ahistorical view as well as a naive one. Muñoz quotes Jefferson’s famous statement that “our civil rights have no dependance [sic] on our religious opinions, any more than our opinions in physics or geometry.” In his Notes on the State of Virginia, ­Jefferson wrote that “it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” This is obviously a slender reed on which to build religious freedom, because as soon as people begin to think that religious teachings are injurious to their interests or political agendas, which they sometimes are, the reason for toleration ­disappears.

Madison provides a rationale that is both specific to religion and more robust. Muñoz explains the difference: “Madison places Jefferson’s (and Locke’s) philosophical considerations in the context of man’s religious duties. Indeed, Madison’s emphasis on religious obligation is the most distinctive element of his church-state thinking” (emphasis added). It is an emphasis Madison shared with overtly evangelical thinkers, such as the Baptist minister and public advocate of religious freedom Isaac Backus. It is also the logical predicate of Madison’s conclusion that religious freedom is an inalienable right—though Madison bases his thinking on what Muñoz calls “natural theology” rather than on biblical or other religious authority. In a passage in his Memorial and Remonstrance, Madison states that “it is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him.”

Strikingly, Madison states that “[t]his duty is precedent both in order of time and degree of obligation, to the claims of Civil Society.” As Muñoz explains, “our duties to the Creator are both prepolitical (they exist before a polity is established) and transpolitical (they go beyond and are superior to the purposes and authority of the polity). Their fundamental and authoritative character requires that we recognize them as rights vis-à-vis other men—in Madison’s words, ‘What is here a right towards men, is a duty toward the Creator.’”

Even so, natural rights were not understood to be absolute. Natural rights were bounded by the law of nature, which entails equal respect for the rights of others, and in civil society by respect for public peace and good order. Muñoz quotes Jefferson as saying, “rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others.” This means not that the laws and regulations of the state are superior to the natural right of religious exercise, but that the natural right of religious exercise is inherently bounded by the law of nature. It is the function of civil law, including constitutional law, to give these rights and boundaries legal definition.

As Muñoz notes, most of the early state constitutional free exercise provisions contained “peace and safety provisos.” He quotes the Maryland provision, which was typical: It declares that the right of free exercise of religion does not extend to acts that “disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights.” As Muñoz says, these provisos were “written to communicate the natural law limits on the natural right of religious free exercise.”

How, though, should such limits be understood? Here a disagreement arises. I and others (Justices Alito and O’Connor among them) have a more expansive view of the free exercise right: We have argued that, in the Founders’ understanding, it protected at least some violations of positive law. If it did not, the “peace and safety provisos” would be unnecessary. When the framers of state provisions crafted texts to communicate those boundaries, they did not insulate all generally applicable laws from the invocation of free exercise rights, but only some of them—those protecting public peace and safety and the natural, civil, and religious rights of others.

Muñoz, who disagrees with ­Alito, O’Connor, and me on this point, responds that if we were correct then we would expect such provisos “in every Founding-era declaration of rights or constitution.” Yet Muñoz himself explains why that conclusion does not follow. “Strictly speaking,” he writes, “boundary provisions are not needed, because natural rights are by their nature bounded.” Just so. It was not necessary to point this out in every state constitution.

If I understand him correctly, Muñoz limits the natural right of religious liberty to the freedom to “worship according to conscience” (emphasis added). To be sure, some of the early state constitutions use the formulation “right of worship” instead of the seemingly broader term “free exercise of religion.” Some uses of the word “worship” are compendious, according to which all of life is meant to be an act of worship, but the word is commonly used more narrowly, in reference to the ceremonial and sacerdotal practices of a religious community. This would exclude ethical dictates and proscriptions: doing “those things we ought not to have done and [leaving undone] those things we ought to have ­done,” in the words of the (old) prayer book. The term “free exercise of religion”—the term chosen by the framers of the First ­Amendment—is broader. The Virginia Declaration of Rights defined religion as “the duty which we owe to our ­Creator and the manner of discharging it.” No one at the founding seemed to doubt that compulsory military service at least implicated religious freedom, though it does not compel or forbid “worship.” I do not think it is true to the sources to truncate the liberty of religious exercise by including only acts of worship, narrowly understood.

On one other point—the question of religious ­exemptions—Muñoz seems to me to overstate his case. He argues that the 1789 First Congress “did not understand religious free exercise to include a right to religious exemptions from generally applicable laws.” This has been a major theme in his scholarship, not just in this book but in a series of articles. In this, Muñoz agrees with Justice Antonin Scalia’s decision in the so-called peyote case, Employment Division v. Smith (1990), which held that the clause provides no protection against “neutral and generally applicable laws.” A law forbidding the use of wine in a religious ceremony would be unconstitutional, but not a law forbidding all wine consumption.

In making this argument, Muñoz takes issue both with my own scholarship and with the position taken by Justice Samuel Alito in Fulton v. City of Philadelphia (2021), in which Alito called for overruling Employment Division v. Smith. This is one of the most important and contentious issues in modern constitutional law, because many laws that intrude on religious conscience are framed in generally applicable terms. Examples include military conscription, jury service, grooming and dress requirements, land use laws, health care mandates, and laws against sexual orientation ­discrimination.

If Muñoz had stopped at saying that the drafting history of the First Amendment does not resolve the exemptions question one way or the other, it would be hard to disagree. As Muñoz concludes after his concise but comprehensive guide to the framing of the First Amendment, the drafting history “furnishes little insight into original meaning of the Free Exercise Clause.” The issue of exemptions simply did not come up during the initial debates (except obliquely in connection with ­mandatory military service, which I will discuss below). He ­reaches a similar conclusion about the ­Establishment Clause.

Most of what we know about the meanings of “free exercise of religion” and “law respecting an establishment of religion” comes from state constitutional experience and the surrounding debates (plus a few early cases). Muñoz treats the absence of evidence in the earlier drafting history as affirmative evidence that the framers “did not understand religious free exercise to include a right to religious exemptions.” I think he is getting out over his skis.

Oddly, as Muñoz discusses, the issue of religious exemption did arise in connection with what is now our Second Amendment. Because of the presence of large numbers of ­Quakers, Mennonites, and other members of peace churches in framing-era America, the issue of compulsory militia service was by far the most common and salient point on which religious convictions conflicted with legal duties. Several states requested, and Madison proposed, an explicit constitutional exemption for those persons “religiously scrupulous of bearing arms.” Members of Congress divided into three camps: (1) those (including Madison) who favored the exemption; (2) those who favored an exemption qualified by the requirement of providing a substitute; and (3) those who preferred to leave the question of exemptions to the legislature.

The most important lesson to be drawn from this debate is that virtually no one thought that a religious exemption would violate the Establishment Clause or any other principle of religious liberty; Muñoz does not disagree. This is an extremely important issue under the Establishment Clause. ­Many scholars and a few judges think the First Amendment not only does not require, but actually forbids, religious exemptions. The Second Amendment debate makes that interpretation untenable as a ­historical matter.

Beyond that, however, Muñoz argues that “the fact that the House continued to debate a conscientious objection 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 in original). That is one possible inference, but it is hardly clear. Our laws are studded with general protections for religious exercise, such as Religious Freedom Restoration Acts at the federal and state levels, alongside specific religious accommodations for a range of actions, including sacramental use of wine, kosher and halal butchering practices, Christian Science nursing facilities, religious headgear, and—of course—religious conscientious objection from military service. Specific exemptions provide clarity, pretermit litigation, overcome claims of compelling governmental interest, and set boundaries. Muñoz acknowledges that no member of the House was reported as connecting the debate over militia exemptions to the free exercise issue, and it is a stretch to draw a negative inference.

More to the point for a review of this book, Muñoz’s conclusion about free exercise exemptions seems incompatible with his central thesis that religious freedom is a natural right. Muñoz’s no-exemptions view frames the free exercise right not in terms of what the individual has a right to do (limited by the equal rights of others), but in terms of the kinds of laws governments are permitted to pass and enforce. Under Muñoz’s interpretation, which is the current interpretation by the Supreme Court, governments may interfere with, forbid, or prevent religious practices without constitutional constraint so long as they do so by virtue of “neutral laws of general applicability.”

For example, the Court held that the government could punish the use of peyote in the religious sacrament of the Native American Church because peyote is on the list of controlled substances that are forbidden to everyone. For the Supreme Court, in other words, the Free Exercise Clause tells the government what kinds of laws it may pass; it does not tell ­individuals what religious acts they have a right to engage in. Natural rights theory, by contrast, focuses on the freedoms people have, by virtue of their humanity, antecedent to government. So how can Muñoz both subscribe to natural rights theory and reject exemptions from generally applicable laws? He does not explain this contradiction.

Indeed, Muñoz seems to fall into precisely the error Jefferson tried to avoid. Jefferson defined “rightful liberty” as “unobstructed action according to our will, within the limits drawn around us by the equal rights of others”—but immediately saw the need for a clarification. “I do not add ‘within the limits of the law’; because the law is often but the tyrant’s will, and always so when it violates the right of an individual.” Here, Jefferson clearly affirms that the limit on the natural right of religious freedom arises from the law of nature—and not from positive law. Positive law, then as now, may be unjust and may ­violate the rights of the individual, even if crafted in neutral and generally applicable terms.

Muñoz, by contrast, gives much more scope to positive law. His excellent account of the natural rights foundation of religious freedom, and its connection to the First Amendment, should have led him to do the opposite.

Michael W. McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School.

Image by Justin Brendel. Image cropped.