Religious Liberty and the American Founding: Natural Rights and the Original Meaning of the First Amendment Religion Classes
Vincent Philip Muñoz
(University of Chicago Press, $41 pb, 334 pages)

Notre Dame professor of law Vincent Philip Muñoz thoroughly examines the original meaning of the religion clause of the First Amendment of the U.S. Constitution as understood through the debates at America’s founding, including those that took place at the state level. Canvassing those debates and the whole spectrum of views presented at the time, Muñoz concludes that the concept of religious liberty was rooted in natural law and natural rights, and that there was broad support for such a view. No human authority grants an inalienable right; it is, rather, one that emanates from “the laws of nature and nature’s God” (in the words of the Declaration of Independence). But religion is not an unlimited right; it cannot justify violating other people’s fundamental rights, so the debate is about the role of the state to adjudicate disputes when fundamental rights bump up against each other.

Muñoz divides Founders into “expansive liberals” and “narrow republicans”; expansive liberals such as Thomas Jefferson and James Madison sought to severely restrict government’s scope to limit religion, while narrow republicans such as John Adams and Patrick Henry took a variety of positions that were more encouraging of religion like requiring office-holders to profess a belief in God or the establishment of taxes that were to be directed to the church of the taxpayer’s choice (as they do in some European countries). Both believed that they were upholding a fundamental right to religion although they differed how to achieve broadly supported end of religious freedom. The author concludes that despite these differences there was broad recognition that the State should not establish Church (officially propping up one denomination, regulating internal church matters) and that the Church should not establish State (providing coercive powers to church establishments). The history can be dense and so far, so good. What is novel in Muñoz’s argument is that he reads this separation of powers to permit denying conscience rights for Christians who run afoul of officially sanctioned views such as same-sex marriage or abortion. At the same time, his distinct natural rights approach leads Muñoz to focus on “whether governments possess legitimate authority to pass a law, not on how the law affects believers when implemented.” In other words, the state should avoid (as much as possible) creating the conditions that require conscientious objection in the first place.