The James Wilson Foundation on Natural Rights and the American Founding

“In Search of Original Meaning- The Religion Clauses Part I”- Ted Hirt in Anchoring Truths

by James Wilson Institute on January 27, 2023

In the first of two articles in Anchoring Truths, Ted Hirt describes the central claims advanced by Prof. Vincent Phillip Muñoz in his book Religious Liberty and the American Founding, Natural Rights and the Original Meanings of the First Amendment. Muñoz’s analysis centers on the adoption of the Establishment and Free Exercise Clauses of the First Amendment, seeking to advance an originalist interpretation of the legal architecture concerning government interaction with religion and what ought to be done when religion comes into conflict with other natural rights. In Munoz’s estimation, while there was wide agreement among the Founders that religious freedom was a right inherent to the individual, they differed in terms of how freedom of religious exercise should be viewed in light of competing priorities.

Below are a few excerpts. The full article can be read here.

“This core of natural rights means that individuals “do not grant government authority over the “how” aspects of religious free exercise. The government possesses “no legitimate authority to determine what constitutes the obligations we owe to God, how we fulfill them, or whether we fulfill them at all.” Muñoz cites texts from the state constitutions confirming that government is not granted jurisdiction over religious worship as such, and it may not prohibit, nor mandate, forms of religious worship. This was a point made in James Madison’s famous 1785 Memorial and Remonstrance against Religious Assessments. Muñoz also summarizes the political writings of Madison, Thomas Jefferson, and the Reverend Isaac Backus, a prominent spokesman on behalf of the Baptists in New England during the 1770s and 1780s, to support his proposition that the natural right to religious freedom was acknowledged throughout our new nation.”

“Muñoz acknowledges that…their agreement on fundamentals ‘did not yield agreement on all matters of public policy.’ He describes two competing viewpoints–the ‘more classically liberal Founders’ (by which he means classical liberalism, not modern progressivism)–had an expansive view of religious freedom, one that broadly limited the scope of legitimate state action. In contrast, the ‘more republican Founders held a narrower view on religious liberty,’ that provided more ‘constitutional space’ for the adoption of “majoritarian-church-and state public policies.”

“Muñoz devotes considerable analysis on the original meaning of the two Religion Clauses. His inquiry is based in part on ‘the new originalism.’ Quoting Professor Keith Whittington, Muñoz states that originalism ‘argues that the discoverable public meaning of the Constitution at the time of its initial adoption’ should be considered ‘authoritative’ for constitutional interpretation. Muñoz explains that ‘we ought to be governed by the original meanings of the Constitution’s principles, at least insofar as those meanings can be determined.’ What Muñoz describes as ‘construction originalism’ recognizes that ‘lawmakers’ principles might differ from their expected applications of them, and also that lawmakers might either mistakenly apply their principles,’ or fail to ‘fully appreciate their meaning.’”

Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790