In the past few years, the U.S. Supreme Court and America as a whole have divided over whether prayers can be said at city council meetings, whether a Christian baker must design a wedding cake for a same-sex couple, and whether it is proper for the government to maintain on state property a war memorial featuring a 40-foot cross.
Such disputes and the disagreements underlying them are nothing new. Before the most recent clashes, Americans fought over whether “under God” could be included in public school recitations of the Pledge of Allegiance, whether Ten Commandments displays could be placed on public property, and whether religious individuals and institutions have a right to exemptions from religiously burdensome laws. Before that, it was prayer in public school and religious participation in state-funded programs.
Since the Supreme Court declared in the 1940s that the First Amendment erects a “wall of separation between church and state,” we have been debating the proper height and width of that wall and even whether it should be torn down. Justices across the ideological spectrum have agreed that the founders’ thought ought to guide our construction of the Constitution’s religious freedom protections. That shared commitment to our founding history has not, however, generated agreement about the Constitution’s meaning, nor a consistent, coherent, and compelling jurisprudence of the First Amendment’s Religion Clauses.
Our church-state constitutional confusion results, in part, from the Court’s failures to understand how the founders agreed about religious liberty but disagreed about the separation of church and state. This book attempts to provide that understanding and construct the First Amendment’s Religion Clauses on the basis of the founders’ shared political philosophy of religious freedom, while remaining cognizant of and open to their (and our) disagreements about the separation of church and state.
Part 1 of my book sets forth the founders’ natural rights political philosophy of religious freedom. I attempt to show that the founders held the right to worship according to conscience to be a natural right possessed by all individuals.
- the founders understood this right to be inalienable, meaning that authority over religious worship was not granted, and could not be granted, to governing authorities.
- the founders reached an “overlapping consensus” about the inalienable character of the right to religious worship through Enlightenment philosophy (e.g., Jefferson), natural theology (e.g., Madison), and Protestant theology (e.g., Isaac Backus).
- the founders’ agreement on the inalienable character of the right to worship did not preclude disagreement on how far natural rights protections extended. “Narrow republicans” (George Washington, Patrick Henry) understood the scope of the right to be more limited, and therefore took a more republican disposition to church-state public policies such as state funding of religion. “Expansive liberals” (James Madison, Thomas Jefferson) held a more expansive view of the right of religious liberty, and thus a more robust view of how it limited government action.
Part 2 explains how the founders’ agreements and disagreements help elucidate the original meanings of the First Amendment’s Religion Clauses. Specifically the framers designed the Establishment Clause to enforce two rules:
- Congress shall make no law erecting a religious establishment.
- Congress shall make no law concerning state-level religious establishments.
The framers designed the Free Exercise Clause to recognize and protect the principle of religious liberty.
Part 2 concludes that, although we can know something about the text’s original design, there is no clear, unambiguous, original public meaning of what constitutes an “establishment” of religion or the “free exercise” thereof. For reasons that have to do with the politics surrounding the adoption of the Bill of Rights, the founders didn’t need to be precise when they drafted the Religion Clauses. They could agree to draft text that prohibited the national government from violating an unspecified right to the free exercise of religion (whatever that might be), from making a religious establishment (whatever that might be), and that did not interfere with existing state-level, church-state practices (thus agreeing to disagree about the proper separation of church and state). The underdetermined nature of the First Amendment’s church-state provisions requires that both the Establishment Clause and Free Exercise Clause be “constructed,” to use the nomenclature of contemporary constitutional theory.
In part 3, using a method I call “design originalism,” I construct the Religion Clauses in a manner that coheres with the First Amendment’s text, is consistent with what we can discern about the text’s original meaning, and is grounded in the founders’ natural rights political philosophy. I constructed the Free Exercise Clause to prohibit laws that exercise jurisdiction over religious exercises as such. I constructed the Establishment Clause to forbid legislation creating relationships of privilege and control between government and institutional churches. I accepted the incorporation of the First Amendment against the states, which for the Establishment Clause necessitated dropping the framers’ original concern with federalism. Thus constructed:
- The Free Exercise Clause prohibits the government from punishing, prohibiting, mandating, or regulating religious beliefs or exercises as such.
- The Establishment Clause prohibits (1) “state establishments”: government itself exercising the functions of an institutional church, including the regulation of internal church matters, such as the content of doctrine and the selection of ministers and (2) “church establishments”: delegation of governmental coercive authority to churches, especially in matters of taxation and financial contribution.
Incorporation of the Establishment Clause and the
Nationalization of Church-State Separation
In chapter 4, I argue that founding-era state declarations of rights demonstrate that the founders agreed that the right to worship according to conscience is an inalienable natural right. This conception is the core of the founders’ principle of religious liberty and, as such, I use it to construct the First Amendment’s Free Exercise Clause. I also argue that founding-era state declarations of rights and constitutions reveal that the founders disagreed about the proper separation of church and state. I map that disagreement by categorizing the founders as “narrow republicans” and “expansive liberals.” “Narrow republicans,” such as George Washington and Patrick Henry, held a narrower view of the scope of the natural right of religious liberty, and thus a less stringent view of the constitutional limitations it imposed. “Expansive liberals”—“liberal” here referring to classical liberalism, not modern progressivism—held a more expansive view of the scope of the natural right of religious liberty, and thus a more stringent view of its constitutional limitations.
The founders themselves dealt with their disagreement primarily through federalism; they agreed to disagree. Virginia adopted the “expansive liberal” understanding by adopting Jefferson’s 1786 Virginia Statute for Religious Freedom. Massachusetts and New Hampshire were governed by their respective “narrow republican” constitutions. Other states adopted middling positions. One of the original purposes of the Establishment Clause was to enshrine this agreement to disagree. As I document in chapter 5, the Establishment Clause was originally designed (1) to recognize that the national legislature could not establish a religion and (2) to keep most church-state affairs at the state level. By keeping most church-state questions at the state level, the founders did not need to resolve their differences regarding the proper separation of church and state.
Incorporating the Establishment Clause to restrict state government practices necessarily clashes with the Establishment Clause’s original design. It transforms text that was designed to recognize the states’ authority into a restriction on the states’ authority. The path most consistent with the Establishment Clause’s original design would be to apply its limitations only against the national government; the Free Exercise Clause alone would be incorporated to restrict state governments. The availability of that path depends on the meaning of the 14th Amendment and its relationship to the Establishment Clause, a topic that exceeds the scope of this study. If we accept the Establishment Clause’s incorporation—either because it is mandated by the 14th Amendment or because it is an accomplished fact—the founders’ path of federalism is foreclosed to us. Incorporation nationalizes constitutional questions pertaining to what I have colloquially called “the separation of church from state.”
The natural rights argument for applying the constructed Establishment Clause’s prohibitions against the states is that it would ensure, beyond the Free Exercise Clause’s prohibitions, that state governments respect the jurisdictional limitations correlating to the individual’s nonalienated right to worship according to conscience.
The “state establishment” prong prohibits state actors from exercising religious authority. The “church establishment” prong prohibits state actors from delegating its coercive authority to churches, a delegation that leads to religious authority being enforced by law. Preventing “state” and “church” establishment facilitates protection of the natural right of religious liberty by keeping governmental power in its proper sphere. While the authors of the First Amendment did not design the Establishment Clause to impose these restrictions against the states, the natural rights constructions offer an approach to the Establishment Clause’s incorporation consistent with the deepest currents of the founders’ political philosophy of religious freedom.
The reader may have noticed that the Establishment Clause construction I have presented does not precisely correspond to either “narrow republicanism” or “expansive liberalism,” but borrows elements from both. Like “narrow republicanism,” the construction allows religion-based classifications, such as exemptions for religious conscientious objectors from military service, that an “expansive liberal” approach would prohibit. Take Jefferson’s Virginia Statute, which provided that an individual’s religious opinions or beliefs “shall in no wise diminish, enlarge, or affect their civil capacities.” A strict application of “expansive liberalism’s” principle would prohibit religion-based exemptions that “enlarge” “civil capacities” on the basis of religious beliefs or opinions; it would require complete blindness or state noncognizance toward religion. The natural rights approach is not as restrictive. At the same time, the natural rights construction imposes stricter limits than “narrow republicanism” on certain forms of government involvement with religion. Like “expansive liberalism,” it would prohibit the state from employing religious chaplains to conduct religious services and would prohibit official state prayers. The approach acknowledges that the state may be cognizant of religion and may even support religion as a means to accomplish otherwise legitimate civic ends; but also that the state lacks authority over religious exercises as such, and thus can neither function as a church nor delegate its authority to religious authorities. This natural rights construction attempts to be faithful to the founders’ philosophy of natural rights, cohere with the First Amendment’s text, and also recognize the historical development of the doctrine of incorporation.
Are the Natural Right Constructions Too Elastic or
Too Susceptible to Judicial Willfulness?
Some originalists, especially those whose originalism is motivated by the desire to restrain the judiciary, balk at the idea of invoking natural rights or natural law. They fear that this would allow judges to roam wildly and impose their own view of natural justice on the Constitution’s text. I have attempted to construct relatively specific rules to cabin the natural rights constructions, though it must be recognized that any jurisprudential rule can be manipulated in such a way as to provide the interpreter with wide discretion. Doctrinal rules alone can’t guarantee their good-faith application.
For conservatives who prioritize judicial restraint, the proposed constructions will likely be viewed as a mixed bag. The constructions’ jurisdictional and democratic character calls for a relatively limited judicial role, which the proponents of judicial restraint should appreciate; at the same time, the approach sanctions judicial constitutional constructions, which some “restraintists” hold to be illegitimate. Michael Stokes Paulsen, for example, contends that the judiciary should not enforce underdetermined text and that, when faced with underdetermined text such as the Religion Clauses, judges should defer to constructions made by the political branches. I justify judicial constitutional constructions by the same reasons that would justify constructions by the more democratic branches: the Constitution is supposed to govern. If the Constitution’s provisions are not given meaning and enforced by the officers of government, including the courts, they do not govern.
Those who oppose judicial constructions must admit that some branch of government must construct underdetermined constitutional provisions if those provisions are to govern us. Even if judges don’t construct the Religion Clauses, other state actors must develop some operative understanding of their meaning if they are to be governed by the First Amendment’s restrictions. So even if one holds that the judiciary should not be the first branch to construct underdetermined text, and instead should defer to constructions first made by the political branches, legislators and executive branch officials will still need to construct the Religion Clauses. The reality of underdetermined text and the logic of constitutionalism require constructions. The preference for constructions by the political branches reflects a preference for majoritarian democracy and a distrust of the judiciary. These may be defensible preferences, but they are not required by a commitment to constitutionalism. Indeed, the “restraintist” position strays from the founders’ political philosophy insofar as the founders conceived America to be a constitutional republic devoted to the protection of natural rights, not simply a constitutional democracy.
One can recognize the legitimacy of constitutional constructions, including those performed by the judiciary, and also appreciate the concern that judges may make bad constructions or even abuse their power. Once one admits that judges must go beyond the text, there is no telling where they might go, even if they are supposedly identifying and applying the original meaning of the Constitution. Church-state jurisprudence is a case in point. Anyone who cares to look can see that originalism as practiced has not effectively constrained judicial willfulness. Historical examples and references have been used with impunity to support constructions that have no foundation in the founders’ political or constitutional thought. The jurisprudential record is now sufficiently complicated and convoluted, moreover, that a nod to supposedly originalist precedents can produce almost any result a judge wants. Philosophical history, like any method, can be abused. “Design originalism” is no different.
Are the Natural Rights Constructions Too Anemic?
I suspect a likely criticism of the natural rights constructions is that they are too anemic. Many, especially those on the Left, are committed to Everson’s construction of the Establishment Clause as gospel truth—that the separation of church and state means that government cannot support religion in any way, shape, or form. Religious individuals and institutions, in this view, must be treated differently from other similarly situated individuals and institutions, because the combination of state and church power is uniquely dangerous to democracy. Even if government promotes other forms of racial, ethnic, and cultural identity and practice, it cannot promote religious identification or belief.
The natural rights construction rejects much of separationism’s dictate that religion be excluded from the public square. Others, especially contemporary social conservatives, will view the natural rights Free Exercise Clause as too feeble. Given the growth of the modern regulatory state over the last 100 years and, more recently, the legal enshrining of the norms of the sexual revolution, many social and religious conservatives hold that the protection of religious liberty demands religious exemptions from generally applicable laws. Separationists construct the Establishment Clause to exclude religion from the ever-expanding sphere in which government operates; exemptionists seek to construct the Free Exercise Clause to insulate religiously inspired beliefs and practices from the effects of the modern regulatory state.
Both sides eschew republican self-government in matters of church and state. From their own perspectives, it may be strategically sensible to do so. Allowing a creche to be displayed in the public square or tax dollars to fund religious schools may lead Americans to embrace more traditionally religious moral views and thus to reject the further advancement of LGBT rights or expansive abortion laws. Alternatively, not providing a constitutional right to exemptions may subject some (especially more traditional) religious believers to nondiscrimination laws that make it effectively impossible for them to participate in governmental programs, certain licensed professions, certain types of voluntary associations, or the marketplace without contradicting their religious beliefs. If applied to the employment contracts of Catholic priests, gender nondiscrimination laws would make the all-male Catholic priesthood illegal. Compared to these combative alternatives, the natural rights approach allows government to both benefit and restrain religion. It leaves to the people the authority over church-state matters that many on the Left and the Right would rather the people, operating through majoritarian political institutions, not possess.
Democratic republicanism in church-state matters might be insufficiently protective of liberty for reasons both the Left and the Right fear. It ought to be recognized, however, that these fears reflect a distrust of republican self-government and the American people themselves, or at least of those who govern as the representatives of the American people. It also should be recognized that these criticisms, from both Establishment Clause separationists and Free Exercise exemptionists, implicitly place enormous trust and authority in the legal professional class that exercises disproportionate influence through judicial power.
Both sides—for different reasons—prefer church-state matters to be governed through the judiciary rather than through majoritarian politics.
Leaving aside for the moment the principle of protection for the core inalienable natural right of religious liberty, the case for (and against) the natural rights constructions rests in no small part on their democratic character. In many areas of church-state legislation, the constructions themselves do not produce any particular result; they respect the authority of the people to decide for themselves the proper role of religion in the public square. Exemptions from generally applicable laws, state funding for religious schools, religious displays on governmental property, the inclusion or exclusion of religious organizations from governmental programs: these issues, for the most part, would be addressed through the democratic political process. Religious pacifists could be exempted from military service, but they need not be. Religious employers could be subject to nondiscrimination laws or exempted from them. Private religious schools could receive supplemental funds to improve mathematical education, or they could be excluded. Cities could host religious displays during the holiday season, or they could exclude them. The examples are numerous. One’s judgment of the prudence and wisdom of the natural rights approach will depend largely on which institutions of government one wants to exercise decision-making power, one’s evaluation of the character and fairness of the American people, and, relatedly, one’s estimation of the virtues and vices of representative democracy as applied to matters of religion and politics.
The natural rights approach vests authority to make many (though not all) church-state decisions in the people. The approach sets hard constitutional boundaries on what the people can do through their representative institutions (e.g., no coercion of worship, no delegation of taxing authority to churches), but as long as those institutions operate within their legitimate jurisdiction, the people can increase protections for religious liberty or erect more extensive barriers separating church from state. To emphasize the former point: that the natural rights constructions do not provide a constitutional right to exemptions from otherwise legitimate but religiously burdensome laws does not mean that exemptions cannot be legislated. The First Amendment’s protections can be augmented through ordinary legislation and executive action. First Amendment limitations are just one way—and certainly not the only way—that the Constitution was designed to protect religious liberty.
We might observe this last point in a different manner. Those who find the natural rights constructions anemic are likely to do so because they conceive the First Amendment to address a different and more robust mischief than that posited by the approach I have presented. Take the Free Exercise Clause. The natural rights construction conceives the Free Exercise Clause to address a specific mischief: state action that exercises jurisdiction over religious exercise as such, thus violating individuals’ inalienable natural right to worship according to conscience. It does not hold that the Free Exercise Clause was designed to protect religious individuals and institutions from every law that might burden religious interests. Its limited scope corresponds to the limited, albeit fundamentally important, mischief it was designed to remedy.
Alternative constructions hold the Free Exercise Clause to address a different mischief. Douglas Laycock, a leading proponent both of Free Exercise exemptionism and Establishment Clause separationism, defends a “substantive neutrality” approach because he holds that the underlying purpose of the Religion Clauses is “to minimize the extent to which it [government] either encourages or discourages religious belief or disbelief, practice or nonpractice, observance or nonobservance.” Jocelyn Maclure and Charles Taylor advance an exemptionist construction of the Free Exercise Clause in order to allow every individual “to choose and realize his or her own conception of what a successful life is.” Bill Galston, similarly, argues that an exemptionist approach to free exercise is needed to prevent the mischief of government encroachment on what he calls “expressive liberty,” which he defines as the freedom of individuals to live their lives in ways that express their deepest beliefs about what gives meaning or value to life. While less grand and philosophical, Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch reach a similar doctrinal rule through textual analysis that finds “the ordinary meaning of ‘prohibiting the free exercise of religion’ was (and still is) forbidding or hindering unrestrained religious practices or worship.” These approaches offer a stouter conception of the Free Exercise Clause because they construct it to remedy a more unbounded mischief.
The natural rights approach does not necessarily deny the concerns articulated by scholars such as Laycock, Maclure, Taylor, and Galston or Justices Alito, Thomas, and Gorsuch, but it denies that the Free Exercise Clause is the proper vehicle through which to address all of them. It would direct most of these concerns to the ordinary political process, relying on the various structural mechanisms established by the Constitution to preserve liberty, including representation, separation of powers, and federalism. The natural rights construction gives the Free Exercise Clause a fundamentally important but relatively limited role in America’s constitutional system of government, policing the jurisdictional boundaries of government that correspond to the inalienable character of the right to worship.
The natural rights constructions also recognize that, at least in practice, expanding the scope of constitutional protections has made them more porous. It is typically thought that constructing the Free Exercise Clause to include exemptions simply expands the provision by offering religious individuals and institutions some protections from otherwise valid but burdensome legislation. Exemptions, however, come with a jurisdictional price. Constructing the Free Exercise Clause to include protection for religious believers from generally applicable but particularly burdensome laws requires state actors to “balance” or otherwise limit such protection. Almost any law or regulation can impose burdens on the religious beliefs of some individual, which means that every law is potentially subject to a Free Exercise challenge. Since it is impractical to relieve every burden or accommodate every litigant, the availability of religious exemptions must be joined with an exemption-denial mechanism. As implemented by the Supreme Court, infringements of the free exercise of religion can be justified by “compelling state interests” pursued via properly tailored means. Once again, in the words of former Justice Anthony Kennedy, writing for a unanimous Supreme Court:
If the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral; and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.
Exemptions thus do not only expand the breadth of the Free Exercise Clause’s protection. They also reduce its depth by allowing laws “to restrict practices because of their religious motivation” as long as the state does so for “compelling” reasons pursued in the right manner. While the natural rights construction of the Free Exercise Clause is more limited than the exemptionist approach in one sense, it is more robust and complete in another. It never allows the state to target religious exercises because of their religious motivation. In affirming this categorical barrier on all state action, it establishes the primary jurisdictional restriction necessary for the maintenance of limited government.
Is It Coherent to Adopt Natural Rights Constructions Only for the Religion Clauses?
Religious liberty is not the only categorical barrier the First Amendment imposes. Congress (and the states, assuming incorporation) also shall make no laws “abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The First Amendment makes clear that the Constitution’s protection of religious freedom is part of a larger whole. Whether it makes sense to adopt natural rights constructions for the Religion Clauses alone, absent a larger commitment to construing the Constitution in a natural rights framework, is not a simple question to answer.
The complexities of the issue can be illustrated by considering a number of different cases, but let me use Masterpiece Cakeshop as an example. The case involved a Colorado cakeshop owner who refused to design a wedding cake for a same-sex couple. As I note in chapter 8, the natural rights Free Exercise Clause would not shield the cakemaker from the state’s nondiscrimination ordinances. It is conceivable, however, that a natural rights construction of other constitutional provisions might have protected the cakemaker—say, perhaps, the Free Speech Clause or the First Amendment’s protection of freedom of assembly, or even the Fifth Amendment’s protection of property rights. Let us say, for the sake of argument, we have good reason to conclude that the First Amendment was originally designed to protect the natural right of free speech and that, so constructed, the Free Speech Clause would have protected the baker. Let us also stipulate that settled precedents foreclose that result and the adoption of a natural rights construction of the Free Speech Clause. Should a champion of natural rights adopt the natural rights Free Exercise Clause, and thus fail to reach the result that the natural rights Free Speech Clause should have achieved? Or should that champion distort the Free Exercise Clause in order to restore, in some sense, the protection that should have been provided by the natural rights Free Speech Clause?
I have argued that the Free Exercise Clause was designed to protect only a narrow slice of our natural liberty. Other constitutional provisions were designed to work in tandem with the Free Exercise Clause. I have not discussed those other provisions; I have presented only natural rights constructions for part of one amendment. Whether it is coherent to adopt these constructions in the absence of a more general acceptance of the natural rights approach to other constitutional provisions (or, indeed, the entire Constitution) would require a more comprehensive analysis than I have attempted. For a champion of natural rights, it would require comprehension of how the various provisions of the Constitution relate to one another, and the degree to which those provisions are currently construed (or likely to be construed) toward the common end of the protection of natural rights.
The Natural Rights Constructions and the Worship of God
Insofar as the natural rights constructions limit Free Exercise Clause protections to traditional conceptions of religious belief and practice, they might be considered narrow in another way as well. While some contend that liberal constitutionalism requires special restrictions on religion in the public square, others, such as Micah Schwartzman, argue that “religion cannot be distinguished from many other beliefs and practices as warranting special constitutional treatment.” Jocelyn Maclure and Charles Taylor espouse what is probably the prevailing position among contemporary political and legal theorists:
Within the context of contemporary societies marked by moral and religious diversity, it is not religious convictions in themselves that must enjoy a special status but, rather, all core beliefs that allow individuals to structure their moral identity.
As I have already discussed, most advocates of this view envision the Free Exercise Clause to mandate a robust scheme of exemptions for religiously and nonreligiously inspired conscientious beliefs and practices.
In chapters 7 and 8, I do not directly define “religion” or identify precisely what beliefs ought to be considered “religious” for the purposes of First Amendment protections. The most philosophically persuasive argument that justifies the inalienable character of the right to religious liberty would require “religion” to be defined narrowly and to not include beliefs and practices divorced from the conception of a Creator God. To see this, we need to revisit Jefferson and Madison’s natural rights philosophical arguments.
Jefferson and Madison state that religious exercises are to be directed only by “reason and conviction.” They derive that conclusion from the freedom of the human mind—from our capacities for reason and free choice. Their argument holds that human beings’ capacities for reason not simply unreflective slaves of our instincts or passions. As Jefferson says in his Virginia Statute, even God, “lord both of body and mind,” chose not to coerce man, but rather to teach him by and through reason. Our ability to apprehend moral principles and norms (including those that are divinely revealed), and our freedom to choose to follow them, make possible a distinctly human manner of worship. Man can worship God freely according to his conviction and conscience. This capacity to worship freely—which, of course, includes the capacity to choose not to worship—suggests that, if men do have the duty to worship God, that duty can only be discharged through worship animated by conscientious conviction. The only worship fittingly expressed toward a God that created us and authored our nature is a movement of mind and heart that is freely chosen and pursued. This natural theology is implicit in Madison’s understanding, and is reflected in his 1813 presidential proclamation calling for a day of “public humiliation and prayer”:
If the public homage of a people can ever be worthy [of] the favorable regard of the Holy and Omniscient Being to whom it is addressed, it must be that, in which those who join in it are guided only by their free choice, by the impulse of their hearts and the dictates of their consciences;
A reasonable inference from our capacities of reason and freedom is that our creator would settle for nothing less than freely given worship that reflects conscientious convictions. Only worship “freed from all coercive edicts” and “free-will offerings of humble supplication, thanksgiving and praise,” Madison continues in his proclamation, “can be acceptable to Him whom no hypocrisy can deceive, and no forced sacrifices propitiate.”
As I discuss in chapter 3, that religious duties can only be fulfilled according to conviction and conscience leads Madison to conclude that freedom of worship is an inalienable right. His argument for the inalienable character of the freedom to worship is premised upon the possibility and knowability of a creator god, as well as the normative status of nature. From these premises—that God authored nature (including human nature), and that this nature establishes moral guidelines for human behavior—Madison reasons that religious duties can only be fulfilled according to conviction and conscience. Thus conceived, religious freedom is oriented toward the divine. Its purpose is to secure for individuals the freedom to fulfill their obligations to their Creator.
The natural rights understanding does not and cannot exhaustively determine the content of those obligations or specify how they are to be discharged, other than in freedom and according to conscience. It is grounded, however, in a moral reality that accepts reason’s ability to discern an objective moral order. It therefore understands the natural moral law to establish the boundaries of the legitimate use of freedom: in the founders’ understanding, natural rights have natural limits. It also defines what types of beliefs and practices are protected by the right of religious freedom: those that are directed toward the discharge of duties toward the Creator.
Thus understood, the original meanings of the Religion Clauses do not pertain to “all core beliefs that allow individuals to structure their moral identity,” to use Maclure and Taylor’s phrase—at least not if that moral identity is separated from a concept of the divine or necessitates actions opposed to the natural moral law. The founders grounded the natural right to religious liberty in duties to God and the moral fabric of human nature, of which they understood God to be the author. Their conception of religious freedom is oriented toward the divine; individuals require freedom so they can worship according to conscience. This does not imply that the founders thought political authorities could legitimately suppress religious freedom if individuals blasphemed or committed idolatry. It also does not exclude nonbelievers and atheists from the Religion Clauses’ protections; the liberty to worship freely also includes the freedom not to worship. But the founders understood religious freedom to be an endowment from the Creator. While establishing religious liberty is a great political accomplishment, it is not the final end or even an end in and of itself. The purpose or telos of protecting religious freedom is to make possible the worship of God according to conviction and conscience. Our rights are oriented toward the fulfillment of our duties.
My book attempts to show how the First Amendment’s Religion Clauses might be constructed to facilitate that end. The best justifications for these constructions are the philosophical arguments for the existence of the inalienable right to worship according to conscience. If those arguments are sound, then developing constitutional law to recognize and respect that right advances the cause of justice, which one hopes is the final cause of any method of constitutional interpretation.
The founders’ philosophical and theological arguments for the natural right of religious liberty are likely to seem foreign to us, in part because we have grown accustomed to the social fact of pluralism and are committed to the belief that “reasonable disagreement” cannot be overcome by reasoned arguments. These intellectual commitments—held as if they were articles of faith—lead some to believe that only state neutrality toward religion can secure a peaceful society. The founders disagreed. They held a contrary and more optimistic view about the power and authority of reason, and they designed the Constitution accordingly.
This book is an attempt to recover the founders’ reasoning and thereby, in the spirit of Publius, to make the founders’ constitutional principles and design once again the object of our reflection and choice.
Reprinted with permission from Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses by Vincent Phillip Muñoz, published by the University of Chicago Press.
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