Religious Liberty and the American Founding

BOOK REVIEW: Religious Liberty and the American Founding: Natural Rights and the Original Meaning of the First Amendment Religion Clauses by Vincent Phillip Muñoz (Chicago: University of Chicago Press, 2022)

We are told in the Declaration of Independence that certain rights are “unalienable.” Have you ever wondered what that means? Are other rights “alienable?” Notre Dame’s Professor Vincent Phillip Muñoz, author of Religious Liberty and the American Founding, wants you to ask that question.

The importance of the First Amendment is universally understood. It is the most-discussed part of the Constitution and the courts have ruled on its meaning many times. Professor Muñoz argues persuasively, however, that scholars, lawyers, and judges have all done a consistently sloppy job of seeking to understand what the founders actually meant by the words they used. So much so, in fact, that the original meaning of the Establishment and Free Expression clauses has effectively been lost. The result is that the text has become an ideological Rorschach test. It can be made to mean almost anything. “The consensus that the Founders’ understanding should serve as a guide has produced neither agreement nor coherence in church-state jurisprudence,” Dr. Muñoz writes. “Indeed, it has produced the opposite; it seems that almost any and every church-state judicial position can invoke the Founders’ support.”[1]

Many readers will be surprised to hear that the Founders themselves are largely to blame for this. The language of the First Amendment itself (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) is not very precise. The reason for this is that “Many, if not most, of the individuals who drafted the First Amendment did not think it was necessary.”[2] Establishment was a state issue and the Federal constitution already banned religious tests in Article VI.[3] It was the Anti-Federalists who insisted on the Bill of Rights, but they were in the minority in the 1st Congress.

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The challenge, then, is to rediscover the Founders’ own original understanding from other sources. This is an exercise in “originalism” connected with a conservative school of scholarship and law. Professor Muñoz is clear, however, that understanding the original meaning does not in his view necessarily mean we have to agree with it. Bad laws, he says, have original meanings too. “I do not believe that the old is the same as the good. . . . We may, in fact, find any number of reasons to disagree with or disregard the Founders. Those conclusions, however, must follow from arguments, not from a presumed intellectual or moral superiority, faith in progress, or bias against the past. I attempt to take the Founders’ political and constitutional thought seriously and understand it on its own terms with as few preconceived notions as possible.”[4]

Because the First Amendment’s two religion clauses have “underdetermined meanings,” Dr. Muñoz looks to other documents of the era, especially state constitutions and declarations of rights. Including Vermont, which had not yet been admitted to the union, twelve states wrote new constitutions before 1791 and eight of them produced declarations of rights. In these twenty different texts from every corner of the union he finds a remarkable consistency in language. They are not entirely uniform, however. Maryland, in 1776, guaranteed religious liberty to all persons “professing the Christian religion.” New York was careful in 1777 to stipulate that “the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness.” South Carolina was alone in actually establishing Protestant Christianity as its state religion in its constitution of 1778. Over time and in sum, the state charters and declarations arrive at a consensus so strong as to constitute the collective voice of the Founding generation.[5]The Founders disagreed with each other frequently, but there were of one mind on the source, nature, and means of protecting human rights.

The Founders believed religious liberty to be a natural and unalienable right. This belief was partially founded in the Social Contract Theory familiar to many people, described by John Locke. All people are born equally free, but we surrender certain freedoms to government in exchange for safety and to “secure” our rights generally. Jefferson included a short expression of this in the Declaration of Independence, borrowing directly from George Mason’s Virginia Declaration of Rights. Dr. Muñoz finds a better expression of it in the New Hampshire Declaration of Rights:

I. All men are born equally free and independent; therefore, all government of right originates from the people, is founded in consent, and instituted for the general good.
II. All men have certain natural, essential, and inherent rights. among which are—the enjoying and defending life and liberty—acquiring, possessing and protecting property—and in a word, of seeking and obtaining happiness.
III. When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others; and, without such an equivalent, the surrender is void.
IV. Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the RIGHTS OF CONSCIENCE.
V. Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession, sentiments or persuasion; provided he doth not disturb the public peace, or disturb others, in their religious worship.[6]

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Alienable rights are the rights we surrender to society in the social contract. “Inalienable rights are, as the name suggests, those rights that cannot be alienated—that is, those over which individuals cannot, and hence do not, grant the state authority.” The state has no legitimate need or even practical ability to control our minds. Professor Muñoz quotes The Essex Report to illustrate this. The Massachusetts legislature (the “General Court”) proposed a new constitution to the towns of that Commonwealth in 1778. A convention of towns convened in Essex County to review it, and the Report is a summary of its proceedings written by a young lawyer named Theophilus Parsons.

All men are born equally free. The rights they possess at their births are equal, and of the same kind. Some of those rights are alienable, and may be parted with for an equivalent. Others are unalienable and inherent, and of that importance, that no equivalent can be received in exchange.
This equivalent consists principally in the security of his person and property, and is also unassailable by the supreme power: for if the equivalent is taken back, those natural rights which were parted with to purchase it, return to the original proprietor, as nothing is more true, than that Allegiance and protection are reciprocal.
Those rights which are unalienable, and of that importance, are called the rights of conscience. We have duties, for the discharge of which we are accountable to our Creator and benefactor, which no human power can cancel. What those duties are, is determinable by right reason, which may be, and is called, a well informed conscience. What this conscience dictates as our duty, is so; and that power which assumes a controul over it, is an usurper; for no consent can be pleaded to justify the controul, as any consent in this case is void.[7]

Professor Muñoz’s goal is to restore our understanding of the Founders’ philosophy, not as an end point but as a starting point. There are several high-level lessons. The founders believed that religious liberty was a natural right endowed in us by our Creator, not by decree, legislation, or plebiscite. This right was, perhaps contrary to modern assumptions, believed by the Founders to be possessed by all people, including non-Christians. These beliefs were held almost unanimously by the Founders, including Evangelical clergy who asserted (for example), “Christ will have no pressed soldiers in his army.”[8]

This is an academic book, but it is written in a clear way and is free of unnecessary jargon. Nevertheless, the second half of the book drills down deeply into the law and may be a challenge for many readers. Perhaps the most important contribution for the general reader is the knowledge that the Founders really did have a specific philosophy of human rights, and they cared deeply about it. Moreover, they did not think of rights as mere policy preference but rather as inherent, rooted in nature, and inextricably tied to human dignity.

Religious topics are sometimes controversial. It is notable that in the many Founding documents the author presents, the words “opinion” and “conscience” are sometimes substituted for “religion.” Social Contract Theory teaches that we cannot grant the state authority over our minds. But that does not mean that our minds can’t be starved of information. Professor Muñoz’s approach is inspired by the writings of Leo Strauss, a German Jew who fled Nazi Germany and taught for decades at the University of Chicago. Strauss wrote in a 1941 essay, referring to formerly free people then living under dictators, “A large section of the people . . . accepts the government-sponsored views as true, if not at once at least after a time. How have they been convinced? . . . They have not been convinced by compulsion, for compulsion does not produce conviction. It merely paves the way for conviction by silencing contradiction.”[9] It is not a coincidence that the freedoms of speech, press, and assembly are grouped together with religion in the First Amendment and a threat to any one of them is a threat to all of them.

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[1]Vincent Phillip Muñoz, Religious Liberty and the American Founding: Natural Rights and the Original Meaning of the First Amendment Religion Clauses (Chicago: University of Chicago Press, 2022), 3.

[2]Ibid., 9.

[3]Michael D. Breidenbach, Our Dear Bought Liberty: Catholics and Religious Toleration in Early America (Cambridge: Harvard University Press, 2021), 172-177.

[4]Muñoz, Religious Liberty, 7-8.

[5]Ibid., 32-33.

[6]“Constitution of New Hampshire, June 2, 1784,” lonang.com/library/organic/1784-nhr/.

[7]“The Essex Result,” constitutioncenter.org/the-constitution/historic-document-library/detail/theophilus-parsons-the-essex-result.

[8]Muñoz, Religious Liberty, 83

[9]Leo Strauss, Persecution and the Wart of Writing (Chicago: University of Chicago Press, 1952), 22-23.