Natural Rights and the
First Amendment Religion Clauses
Vincent Phillip Muñoz
The following is a modified excerpt from Vincent Phillip Muñoz’s 2022 book Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses, available now from University of Chicago Press.
It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
—George Washington, Letter to the Hebrew Congregation at Newport, Rhode Island (1790)
Upon being elected America’s first president, George Washington received numerous congratulatory letters from religious associations around the country. Washington’s responses, which he knew would be circulated, offered the new nation a civics lesson on the principle of religious liberty. To the Quakers, whose pacifist beliefs frequently put them at odds with military leadership during the Revolutionary War, Washington declared,
The liberty enjoyed by the People of these States, of worshipping Almighty God agreeable to their Consciences, is not only among the choicest of their Blessings, but also of their Rights.
The following year, in 1790, he wrote the beautiful passage that serves as the epigraph of this chapter. Washington’s identification of conscientious worship of God as a natural right reflects the Founding Fathers’ common understanding. We no longer understand, however, what the Founders meant when they declared religious liberty to be an “inherent,” “natural,” or “inalienable” right. One purpose of this book is to remedy our intellectual amnesia and make possible a reconsideration of the Founders’ natural rights constitutionalism.
It 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. When faced with its first significant Free Exercise Clause case in Reynolds v. United States (1879), and then its first significant Establishment Clause case in Everson v. Board of Education (1947), the Supreme Court turned to the Founders for guidance. It has continued to do so ever since. Of the nine current justices on the Court, at least six have cited the Founders in an opinion concerning the division between church and state. And not only the Court’s conservatives do so. Even Justice William Brennan, perhaps the Court’s leading twentieth century critic of originalism, said of the Establishment Clause, “I believe that the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.”
The consensus that the Founders’ understanding should serve as a guide has produced neither agreement nor coherence in church-state jurisprudence. Indeed, it has produced the opposite; it seems that almost any and every church-state judicial position can invoke the Founders’ support. Regarding the Establishment Clause, justices have argued both that the Founders erected a “wall of separation” between church and state, and that they never intended to erect a “wall.”
Some justices say the First Amendment demands government neutrality toward religion, or neutrality between religion and irreligion, or neutrality that does not exclude or endorse religion, or neutrality plus separation; others, only that government not prefer one religion over others. Still others claim that the Founders were not concerned with neutrality at all, but rather with state coercion of religion. Some eschew the attempt to develop a grand unifying theory at all; others recognize an “overarching set of principles,” and also see each category of cases as having “ its own principles based on history, tradition, and precedent.” Justice Clarence Thomas has suggested that all these positions are probably incorrect because the Establishment Clause was originally about federalism.
The range of constructions for the Free Exercise Clause is not as extensive but is equally divergent and divisive. In Fulton v. City of Philadelphia (2021), Justice Samuel Alito wrote a lengthy concurring opinion, signed by Justices Thomas and Gorsuch, contending that the Free Exercise Clause provides religious exemptions from burdensome laws, a construction also advanced by Justice Sandra Day O’Connor and defended by Michael McConnell, arguably the nation’s most distinguished church state originalist. Other justices and leading scholars, including Justice Antonin Scalia and Philip Hamburger, have argued that following the Founders does not require support for a First Amendment right to exemptions. In short, church-state originalism has failed to deliver conclusive accounts for either the Establishment Clause or the Free Exercise Clause. And that is not the worst of it. Church-state originalism has produced contradictory results for each clause and has also manufactured tensions between the clauses. As a result, First Amendment church-state matters remain in what Justice Thomas, writing over two decades ago, described as“ hopeless disarray.”
This disarray is not due to a dearth of originalist scholarship. A veritable cottage industry exists on the subject of religious liberty and the American Founding. Nonetheless, and as presumptuous as I fear this will sound, this book contends that we have neither grasped the Founders’ natural rights understanding of religious liberty nor accurately appreciated how it would inform First Amendment church-state jurisprudence. Religious Liberty and the American Founding attempts to provide this understanding by accomplishing three things:
- documenting and explaining the Founders’ understanding of religious liberty as an inalienable natural right.
- uncovering what we can and cannot determine about the original meaning of the First Amendment’s Religion Clauses.
- in light of the foregoing, constructing a natural rights jurisprudence for the First Amendment’s Religion Clauses and explaining how the approach could adjudicate First Amendment church-state issues.
I should make clear that my aim is not to provide a systematic argument for the adoption of a natural rights jurisprudence of religious liberty. While I am sympathetic to some aspects of the Founders’ political and constitutional thinking, my purpose is not advocacy and my goals are more modest. I hope instead to present a historically and philosophically sound account of the Founders’ church-state constitutional thought that will equip the reader (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 the Founders’ lead) to facilitate a more accurate application of their beliefs about natural rights to contemporary constitutional issues.
As noted, Supreme Court justices repeatedly invoke the Founders in church-state cases. Opinions differ on the viability of looking to the past to guide the present; however if history is to be consulted, one should consult the most accurate and comprehensive historical accounts available. Toward that end, I hope this book will contribute to the ongoing scholarly effort to better understand the Founders’ constitutionalism of religious liberty. I also hope that it will be useful to citizens whose civic responsibilities include keeping a watchful eye over those whose duties include fidelity to our Constitution and the liberties it is meant to protect. One of this book’s findings is that the Founders have been misused in a number of important church-state opinions.
This book also aims to contribute to the broader scholarly discussion of whether we ought to attempt to return to the Founders’ understanding of our constitutional practice. It does so from a perspective somewhat different than most originalists. At the core of the originalist method is the proposition that a legal text’s original meaning ought to govern us. That might be true in a narrow and immediate sense, especially as it applies to the role of judges in a constitutional republic. But that a text’s original meaning is thus and such is not a compelling reason to follow it in a more comprehensive sense. Unjust and ill-considered laws have original meanings too, and one should not be eager to give them effect even if obligated to do so. Ultimately, the most persuasive reason to adopt the Constitution’s original meaning is that its meaning helps to make the Constitution a good constitution. I do not think it sufficient, therefore, only to know the Constitution’s original meaning. We necessarily must make judgments about its merits. To make considered judgments, we need to understand the mind of the lawgiver and how desirable it would be to follow it. I attempt, therefore, to present the Founders’ understanding of religious liberty; to explore the political, philosophical, and theological reasons that guided it; and to explain how the Founders’ approach would resolve leading church-state issues.
Just as my authorial orientation differs from those originalists who accept the Constitution’s original meaning only because it is the original meaning, I am not inclined to agree with conservatives who are disposed to follow tradition because it offers a path that is tried and true. I do not believe that the old is the same as the good. At the same time, and unlike many (though certainly not all) progressives, I do not start from the premise that the Founders’ thought is outdated or impoverished because it is old or is the thought of elite white men, some of whom owned slaves. 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. Only by doing so, I believe, can we then place ourselves in a position to judge its suitability for our own times.
In this book I attempt to demonstrate the following:
- Founding-era (1776–91) state declarations of rights and constitutions, as well as the Founders’ philosophical and theological political writings, reveal that the Founders’ most authoritative understanding of religious liberty is that it is an inalienable natural right.
- The First Amendment’s framers left the original meanings of the First Amendment’s Religion Clauses underdetermined. We can know something about the texts’ original meanings, but there is no clear, unambiguous original public meaning of what constitutes an “establishment” of religion or the “free exercise” thereof. To [ the text, accordingly, we must go beyond the text.
- An originalist construction of the Religion Clauses consistent with the First Amendment’s text and the Founders’ most authoritative understanding would be based on the Founders’ conception of religious liberty as an inalienable natural right.
- For the Free Exercise Clause, an inalienable natural rights construction would prohibit Congress and the states (assuming incorporation) from making laws that exercise jurisdiction over religious exercises as such. Thus constructed, the Free Exercise Clause would prohibit state actions that punish, prohibit, mandate, or regulate religious beliefs or exercises as such.
- For the Establishment Clause, an inalienable natural rights construction would prohibit Congress and the states (assuming incorporation) from exercising the functions of a church and from delegating government’s coercive authority to churches, especially in matters of taxation and financial contributions.
Corresponding contributions I hope this book makes include:
- Elucidating the Founders’ inalienable natural rights political philosophy and explaining why an approach to religious liberty jurisprudence based on it captures the Founders’ most authoritative understanding.
- Explaining what we can know and what we likely cannot know about the original meaning of the First Amendment’s Religion Clauses, thereby clarifying why we have to go beyond the First Amendment’s text to elaborate its meanings.
- Presenting a natural rights construction of the Religion Clauses based on the Founders’ political philosophy of inalienable natural rights.
Jurists have long recognized that the First Amendment Religion Clauses lack clear meanings, but they have never clearly explained why, or forthrightly acknowledged the implications for church-state originalism. The cause of the clauses’ underdetermined meanings lies in part in the unique circumstances that led to the creation of the Bill of Rights. Many, if not most, of the individuals who drafted the First Amendment did not think it was necessary. It was the Constitution’s critics, the Anti-Federalists, who called for amendments, including a declaration of rights that recognized religious liberty. Anti-Federalists were not numerous enough to prevent the Constitution’s ratification, but they did elicit a promise of amendments from the Constitution’s supporters, the Federalists, during the ratification debates. These amendments were then drafted in the First Congress, a body dominated by Federalists. The drafting records reflect the Federalists’ lack of enthusiasm for amendments. As I will show in detail, the aim of many in the First Congress was to get amendments drafted, not to draft precise amendments. This background is not the whole story. Still, it helps explain why the First Congress could draft text without a clear and precise original meaning.
The Supreme Court has not acknowledged what the texts’ underdetermined character means for church-state jurisprudence. Take, for example, Reynolds v. United States (1879), the Court’s first major Free Exercise Clause case. Writing for the Court, Chief Justice Morrison Waite noted that “the word ‘religion’ is not defined in the Constitution,” and that therefore “we must go elsewhere, . . . to ascertain its meaning. . . .” “Elsewhere” turned out to be Thomas Jefferson’s 1802 letter to the Danbury Baptist Association, which, the chief justice said,
may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.
Good reasons may exist to turn to Jefferson—I myself will do so in chapter 3, though for different reasons than Chief Justice Waite did—but Waite’s quick move from unclear constitutional text to Jefferson’s Danbury letter both overlooked and precipitated a number of complications and difficulties. First and foremost, what Waite said about the relationship between the First Amendment’s Religion Clauses and Jefferson’s Danbury letter is not really true; no evidence exists to suggest that the scope and effect of the Free Exercise Clause was intended to distinguish beliefs from actions and to deny government authority over the former. Moreover, Waite perpetrated a sort of jurisprudential sleight of hand. He claimed to be merely interpreting the text—supposedly uncovering its original meaning through his knowledge of the Founding—when in reality he used Jefferson to create meaning.
In the language of contemporary constitutional theory, Waite “constructed” the Free Exercise Clause. I don’t fault Waite for making a construction. My argument, in fact, is that the First Amendment Religion Clauses’ underdetermined character means that they must be constructed. I fault Waite, rather, for his lack of candor, for his inadequate justification for turning to Jefferson, and for adopting Jefferson’s idiosyncratic belief action doctrine. Unfortunately, the Court has frequently followed Waite’s example in its church-state jurisprudence. The Founders and Founding era actions are too often cited with little justification, and citations to authority tend to take the place of reasoned argumentation.
There is a more coherent way to integrate respect for the Constitution’s original design and the need to develop meaning. Using the distinction between “interpretation” and “construction” recently introduced by leading constitutional theorists, I explain how we can utilize the Founders’ political philosophy of religious liberty to elaborate constitutional doctrines for the Religion Clauses that cohere with the Constitution’s text and are (mostly) consistent with what we can determine about the text’s original meaning. Unlike Waite, I acknowledge that I am offering a construction of the text, not simply applying its original meaning. Such candor about the necessity of construction will, I hope, spur more robust conversations about whether we are interpreting the Founders correctly and about what evidence is most relevant to develop the First Amendment Religion Clauses consistently with their original design.
This project of originalist construction expands the range of Founding-era evidence considered and develops a more precise articulation of the Founders’ philosophical principles. Church-state originalism is dominated by the interpretations of Jefferson and Madison, in no small part because of the prominent roles they played in foundational Supreme Court cases such as Chief Justice Waite’s Reynolds opinion and the opinions of Justices Hugo Black and Wiley Rutledge in Everson v. Board of Education (1947). I, too, recognize the importance of Jefferson and Madison, but I also attempt to place Virginia and its statesmen in their proper historical context by offering a more wide-ranging and thorough investigation of the Founding era church-state provisions than typically has been done.
Founding-era state constitutions and declarations of rights are a treasure trove of underappreciated documentary evidence about how the Founding generation generally thought about religious liberty and the proper separation of church and state. To highlight just one example, the 1778 South Carolina Constitution is the one and only Founding-era state constitution that expressly established a religion. It offers particularly helpful insight into what a Founding era religious establishment was; however, for reasons that are not readily apparent, South Carolina’s actual establishment has never figured prominently in church-state jurisprudence or scholarship.
Other states, too, shed light on the Founders’ understanding of religious liberty. The period between 1776 and 1791 (marking the adoption of the Bill of Rights) was one of tremendous constitutional activity at the state level. Twelve states adopted constitutions, and eight prefaced their constitutions with declarations of rights that served to articulate fundamental political principles. These founding constitutions ought to carry great weight in our understanding of the Founding generation’s political and constitutional thinking. They embody the reason and will of the American people acting in their most sovereign political capacity. They offer evidence from every region of the new nation. Church-state matters, furthermore, were primarily state issues at the time. In these state charters, we can find the Founding generation’s considered and collective thoughts about religious liberty and the separation of church and state. Given that the Supreme Court turned to one of the first states (Virginia) in its first significant Free Exercise and Establishment Clause opinions, it is surprising that the Court and scholars have not more thoroughly investigated all the Founding era states so as to understand the Founding generation’s views as a whole.
These state documents and their church-state provisions provide the pivotal evidence of this study. In every region of the country, Founding era states recognized religious liberty to be an inalienable natural right. To identify the inalienable natural rights understanding as the Founders’ most authoritative view is to contend that other competing accounts—including “neutrality,” “accommodation,” “separation,” “non-endorsement,” “minimizing political division,” and “tradition”—do not capture the deepest understanding of the Founders’ thought. Though some of these accounts may state some individual Founder’s view or partially reflect the Founders’ more general position, a jurisprudence constructed to further one or more of these alternative notions inevitably departs from the essence of the Founders’ inalienable natural rights understanding.
To conclude that the Founders shared a common view of the principle of religious liberty does not imply that they agreed about every church-state matter. My review of the Founding-era states illustrates both how the Founders agreed about the principle of religious liberty and how they disagreed about the proper separation of church and state. Their agreement about fundamental principles did not preclude disagreements about secondary matters. This finding will help us better understand the drafting debates over the First Amendment in the First Congress. It also explains why I prioritize religious free exercise over church-state separation when I offer my constitutional constructions.
Developing constitutional constructions on the basis of the inalienable natural rights character of religious liberty requires a new approach to the First Amendment Religion Clauses. My findings clash with those reached by leading church-state originalists, both on and off the bench. For the Free Exercise Clause, I challenge the conventional wisdom, most powerfully articulated by Michael McConnell and recently championed by Justices Alito, Thomas, and Gorsuch, that the Founders’ constitutionalism requires a presumptive right of exemptions from religiously burdensome laws. I argue that a more thorough understanding of the Founders’ principle of inalienable natural rights leads to the conclusion that exemptions from burdensome laws, while constitutionally permissible, are not a natural or constitutional right. Regarding the Establishment Clause, I challenge the “strict separationist” construction first articulated by the Court in Everson v. Board of Education (1947) and championed most recently by Justices Ginsburg, Sotomayor, and Kagan. To the extent that the Founders believed religious establishments to be noxious (and not all the Founders did), it was because they believed that establishments fostered a politics that tended toward the violation of the principle of religious liberty. Founders who advocated against religious establishments did not advance non-establishment as its own independent principle, as “separationists” tend to do, but rather opposed establishments in order to better secure the fundamental principle of religious liberty. I also present an alternative to “accommodationist” constructions. Typically championed by conservatives, including several on the current Supreme Court, “accommodationist” constructions tend to rely on the Founders’ post-1789 church-state practices alone, and thus fail to identify those practices that are inconsistent with the Founders’ own principles. My constructions correspond to no existing approach, and they do not fall into what are usually considered either the “conservative” or “liberal” positions on church-state matters.
While the Founders remain a significant force in the Supreme Court’s jurisprudence, contemporary church-state scholars advance approaches based on seemingly everything but natural rights: liberal egalitarianism, neutrality, social coherence theory, religion’s distinctiveness, religion’s lack of distinctiveness, constitutional agnosticism, tradition, multiple traditions, the scholar’s own creative thinking, or the rejection of theoretical foundations. The natural rights understanding should at least be considered as a serious alternative. And, of course, other countries have their own constitutional traditions; articulating and explaining the natural rights understanding will contribute to comparative constitutional analyses and allow scholars of comparative law to include the American Founding among their case studies.
Let me offer one additional thought about this study. While it is focused on the issue of religious liberty, I hope the book will be helpful to those interested in the political and constitutional thought of the American Founders more generally. In it, one will find a corrective to the misunderstanding of the Founding advanced by a number of “postliberal” critics. To take the most noteworthy example, my friend and Notre Dame colleague Patrick Deneen contends that “liberalism has failed because liberalism has succeeded,” that the liberal political project, of which the American Founding is the exemplar, was bound to fail on account of its impoverished philosophical foundations. Professor Deneen asserts that liberalism is “most fundamentally constituted by a pair of deeper anthropological assumptions that give liberal institutions a particular orientation and cast: (1) anthropological individualism and the voluntaristic conception of choice, and (2) human separation from and opposition to nature.”At least as applied to the political thought of the American Founding, this statement is mistaken. The Founders’ natural rights constitutionalism, as this book shows, embraces neither of these “anthropological assumptions.” The Founders distinguished liberty from license, and they firmly judged that the law of nature—objective morality—required political authorities to recognize and protect natural rights. The American Founding brought forth neither a “procedural republic” nor a democracy committed to “neutrality toward competing conceptions of the good,” but a constitutional republic dedicated to political liberty grounded in the “laws of nature and nature’s God.” The Founders protected religious liberty because they held it to be an inalienable natural right. If the Founders were correct, we ought to consider following them not primarily because they are our founders or the authors of our Constitution, but because they help us better understand and realize the demands of justice. If what George Washington wrote in 1790 to the Hebrew Congregation in Newport is true, and the liberty to worship God according to conscience is one of our inherent natural rights as human beings, we ought to understand the nature and meaning of that right, so as to better protect it. To the extent this book improves our knowledge of America’s founding principles, contributes to a better understanding and jurisprudence of the First Amendment’s Religion Clauses, and facilitates a more thorough understanding and realization of the blessings of liberty. I hope it will be useful to the legal community, and of interest and benefit to citizens generally.♦
Vincent Phillip Muñoz is Tocqueville Associate Professor of Political Science and director of the Center for Citizenship & Constitutional Government at the University of Notre Dame.
Muñoz, Vincent Phillip. “Natural Rights and the First Amendment Religion Clauses.” Canopy Forum, October 28, 2022. https://canopyforum.org/2022/10/28/natural-rights-and-the-first-amendment-religion-clauses/