In Religious Liberty and the American Founding, Vincent Phillip Muñoz offers an intriguing new argument on the meaning of the religion clauses of the First Amendment of the U.S. Constitution. His unconventional argument is not likely to please anyone in the heated political and legal debates over religious liberty, but this book deserves a close reading from anyone interested in religious liberty jurisprudence, natural rights theory, or originalist approaches to constitutional interpretation.
Muñoz has spent much of his career studying American political thought on religious liberty in the late eighteenth century. This book builds on that expertise, but extends his work in dramatic new directions. Although this book touches on the political thought of prominent founding-era figures like James Madison and Thomas Jefferson, the focus here is extracting principles of religious liberty from the eighteenth-century context that can be embodied in judicial doctrines and applied to the problems of today. The book moves speedily through its arguments, and is admirably clear about what it argues, what it does not, and what the limitations to his approach to understanding these constitutional provisions might be. He mostly confines his explicit disagreements with other scholars to the footnotes, so his text is particularly streamlined and focused on primary materials, whether historical documents or Supreme Court opinions. There are places where the book might have benefitted from drawing out the arguments a bit more and working through the potential objections to the points being made, but there are a lot of interesting ideas put on the table that can be considered further in future works.
The book is explicitly originalist in its basic orientation, which is to say that it is concerned with uncovering the meaning of the free exercise and establishment clauses of the First Amendment as they would have been understood at the time of their drafting and ratification. This makes his argument particularly relevant to the current Court, which is more open now to originalist arguments than it has ever been. It might also make the book off-putting to some scholars who eschew originalism. But it would be a mistake for anyone interested in religious liberty debates to skip over Muñoz’s contribution, since it should be highly informative and thought-provoking regardless of one’s jurisprudential philosophy. One certainly need not think that original meaning is determinative of constitutional meaning to learn from the arguments that Muñoz offers here.
One interesting feature of the book is that Muñoz is not a traditional originalist. He engages with the various features of current originalist theories and scholarship, but the book takes a distinctive approach to thinking about originalist theory and evidence that sets him apart, and the book is worth considering from that theoretical perspective alone. His approach to thinking about originalist practice is at sharp odds with how Justice Clarence Thomas structures his arguments, for example. Muñoz also embraces the distinction between constitutional interpretation and constitutional construction that has been featured in some recent originalist theories, and that leads him to offer a more nuanced account of these issues, one that simultaneously recognizes the limits as to what we can extract from the historical materials and the possibilities for more distinctly normative efforts to construct some guiding principles that are consistent with—but go beyond—what the historical meaning by itself can provide.
The book is divided into three parts. The first section is concerned with reconstructing a set of fairly widely endorsed ideas about religious liberty in late eighteenth-century America. He thinks this is best characterized as a theory of religious liberty as a natural right. This account draws on a broader intellectual context in which the founding generation was operating, but the evidence that Muñoz most prefers to marshal is the set of political and legal texts that shaped early American governance. From a close reading of early American constitutional documents, supplemented by some contemporaneous commentary, he extracts a set of core commitments and understandings. Having put together a set of principles that commanded some broad consensus, Muñoz then concludes this section of the book by showing where there was substantial disagreement on these issues at the time. Both public policy and constitutional provisions on such issues as religious test oaths and taxpayer support for religious institutions complicate the picture of religious liberty at the outset, and Muñoz works to show the conceptual frames that made sense of those particular policies and how they fit within—and pressed against—the kind of natural right to religious liberty that he lays out in the previous chapters.
The second section of the book divides simply into two parts. With the theoretical foundations squared away in the first section, the second section tries to nail down a core original meaning of both the establishment clause and the free exercise clause as they were added to the federal Constitution. The chapters seek to identify what the constitutional framers were attempting to accomplish and what constitutional rules they embodied, and it takes particularly seriously the dialogue that develops between the Federalists and the Anti-Federalists during the ratification process over how the newly drafted Constitution might implicate religious liberty and how skeptics about the proposed Constitution could be mollified. It also neatly identifies some unresolved ambiguities in the text as adopted that unavoidably limits how comprehensive a strictly originalist jurisprudence can be. Regarding the establishment clause, Muñoz perceives two basic rules: Congress is barred from making any law “erecting” a religious establishment, and Congress is barred from making any law “concerning” state-level religious establishments. Thus, the establishment clause has an important federalism component designed to protect state-level religious establishments from federal interference, but the clause cannot be understood merely as a federalism-reinforcing amendment. Turning to the free exercise clause, Muñoz thinks that it is clear that religious liberty was understood to be an individual right and that such a right did not require religious exemptions or accommodations. But Muñoz thinks that some important issues remain indeterminate given the historical materials.
The third section likewise divides into two chapters. It seeks to take what we learned from the theory and the history of religious liberty and deduce some plausible doctrinal rules that courts could apply to current debates. The first step is a “natural rights construction of the First Amendment religious clauses” (p. 288), Muñoz wants to recognize the limits of how far historical arguments can take you in explicating the meaning of these clauses while creatively developing some concrete doctrine that would realize the spirit of the originalist text. This effort as a judicially enforceable constitutional construction regarding religious liberty is relatively modest. He particularly emphasizes what he characterizes as the “text’s design,” which especially includes “the mischief it was designed to address and the ends or purposes it was intended to realize” (p. 226). He seeks some doctrine that is not only consistent with the originalist constitutional text but also does not violate what we know about what was excluded from those historical constitutional protections.
The final chapter compares and contrasts his proffered judicial doctrine, giving flesh to the two constitutional provisions with the doctrines laid out by the Supreme Court in landmark cases from the Warren Court through the Roberts Court. He mostly thinks the Court has misunderstood the logic and scope of religious liberty though it has sometimes still managed to reach the right result. Ultimately, he thinks the First Amendment provides less protection for religion than conservatives would now prefer but allows more room for political accommodations for religion than liberals would now prefer. His First Amendment does less and leaves more discretion in the hands of democratically elected government officials than the justices have tended to think it does.
Muñoz’s argument is elegant, sometimes surprising, and often compelling. It topples sacred cows right and left and tries to focus our attention squarely on the narrow set of worries that drove the constitutional debates of the late eighteenth-century and to step back from the heated political and legal arguments that sprang up later in the nation’s history. Unfortunately, the book makes little effort to address the question of how constitutional protections for religious liberty worked their way into the Fourteenth Amendment, though he has no doubt that (at least) the core commitments of the First Amendment now apply against the states. There is more work that could be done following in his footsteps.
