Religious Liberty and the American Founding

What is religious liberty, anyway? What are its origins? What are religious exemptions? What would a jurisprudence of religious liberty based on the idea of natural rights look like? What is distinctive about such an approach and what are some of its pluses and minuses?

These are some of the questions addressed in Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses (U Chicago Press, 2022) by Vincent Phillip Muñoz.

The book explores the fraught legal and philosophical terrain of religious freedom. It is a meticulous study of the Founders’ common concern for the protection for our inalienable right of religious free exercise and their surprisingly divergent views on how to navigate the relationships of privilege and control between church and state.

Muñoz examines the attitudes of the Founding Generation on these topics as reflected in the understudied area of constitution making between 1776 and 1791 in America at the state level. He argues that we have to go beyond the First Amendment’s text to elaborate its meanings. We must, he contends, understand the intellectual and theological milieu of the time.

Muñoz provides the historical context of the creation of the Establishment and Free Exercise Clauses of the First Amendment and the intellectual underpinnings of their original meanings. He explicates in a thorough but reader-friendly manner what we can and cannot determine about the original meaning of the First Amendment’s Religion Clauses.

The book is a mixture of legal, intellectual, and political history in which we learn that the Bill of Rights was in many ways an afterthought, designed by the Federalists to counter opposition to the Constitution by Anti-Federalists. Indeed, Muñoz shows that many, if not most, of the individuals who drafted the First Amendment did not even think it was necessary. His detailed examination of the drafting records illuminates the Federalists’ lack of enthusiasm for amendments and says, “the aim of many in the First Congress was to get amendments drafted, not to draft precise amendments.”

He concludes the book with a discussion of the impact of natural rights constructions of those clauses. Muñoz contrasts fascinatingly, for example, his approach with those taken by recent Supreme Court justices (notably Samuel Alito) and argues that his novel church-state jurisprudence offers a way forward that could adjudicate First Amendment church-state issues in a legal, fair, coherent and, importantly, more democratic fashion.

This book is an outstanding guide to the many schools of thought on religious liberty in the United States and in his argument for an inalienable natural rights understanding as the Founders’ most authoritative view, Muñoz convincingly shows that competing accounts—(e.g., “neutrality,” “accommodation,” “separation,” “non-endorsement,” “minimizing political division,” and “tradition”) do not capture the deepest understanding of the Founders’ thought.

Muñoz notes that his constructions correspond to no existing approach. They do not fall into what are usually considered either the “conservative” or “liberal” positions on church-state matters. The aim of the book is to spur more robust conversations about whether we are interpreting the Founders correctly and what evidence is most relevant to develop the First Amendment Religion Clauses consistently with their original design.

Let’s hear from Professor Muñoz himself.

Hope J. Leman is a grants researcher.