Religious Liberty and the American Founding

Vincent Phillip Muñoz

Reviewed by: David VanDrunen

Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses, by Vincent Phillip Muñoz. University of Chicago Press, 2022. Paperback, 344 pages, $30.00. Reviewed by OP minister and professor David VanDrunen.

The First Amendment of the US Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” Americans have celebrated these provisions, but what exactly they mean is perennially controversial. Scholars have proposed many interpretive theories, but none has gained widespread acceptance.

The theory of originalism has attracted much attention recently. It holds that courts should interpret the Constitution according to its original public meaning. Originalism has been especially dear to people on the political Right, in important part because it constrains left-leaning judicial activism. Originalists themselves, however, don’t always agree about what the Religion Clauses prohibit and require.

Vincent Phillip Muñoz, professor of law and political science at Notre Dame, provides one such originalist interpretation of these clauses. His argument isn’t especially difficult to understand, but it is very detailed. I can only offer a small taste of it here.

In short, Muñoz argues that although the American Founders came to their convictions by different routes (such as Enlightenment philosophy or Protestant theology), they all believed that everyone has an inalienable natural right to worship God according to his conscience. That is, people may delegate authority to the government concerning many matters, but they cannot delegate authority over religious worship. Muñoz notes that the Founders had internal disagreements about the extent of this natural right, and he recounts the history of how they landed upon the Establishment and Free Exercise clauses. Nevertheless, he concludes that there is no clear original meaning of what the “establishment” or “free exercise” of religion is. Therefore, Muñoz seeks to “construct” the Religion Clauses in ways consistent with the text of the First Amendment, with what we can know about its original meaning, and with the Founders’ views of natural rights.

The final result is a fairly narrow view of what the Religion Clauses should do: the Free Exercise Clause prohibits the government from regulating religious belief or exercise “as such,” while the Establishment Clause prohibits government from performing the functions of a church and from delegating its own authority to churches. Muñoz suggests what this interpretation would mean for a number of controversial issues and famous Supreme Court cases. As he correctly says, it produces results that follow neither predictably “liberal” nor predictably “conservative” lines. Perhaps most notably, Muñoz contends that the First Amendment does not provide for exemptions from generally applicable laws that burden people’s religious exercise. Thus, for example, the First Amendment doesn’t protect churches with an all-male ministry from anti-sex-discrimination laws or protect Christian wedding-cake bakers from anti-sexual-orientation-discrimination laws. Muñoz believes that legislatures may grant such exceptions but denies that the Constitution guarantees them.

This is an academic work, not designed for a popular-level audience. Nevertheless, Muñoz writes in a clear and organized way, so non-scholars could understand this book if they’re willing to devote some time to it. Those interested in religious-liberty issues or originalism may well find this work informative and stimulating.

I don’t have the specialized knowledge necessary to make a final judgment on the book’s claims. Muñoz is arguably correct that this is the best originalist view of the Religion Clauses. But other originalist scholars as accomplished as Muñoz have come to different conclusions that are just as, if not more, persuasive than his.

One thing New Horizons readers should note: No theory of constitutional interpretation is guaranteed to give traditional Christians all the judicial results they may want. Originalism provided them the result they wanted regarding abortion because cases such as Roe v. Wade were so clearly at odds with the Constitution’s original public meaning. But that isn’t necessarily true for the sorts of religious-freedom controversies likely to affect us in the coming decades. Traditional Christians may have to decide whether it’s more righteous to adhere to a principled method of constitutional interpretation or to promote whatever available arguments enhance their chances of winning judicial cases.