Why Does America Have Religious Liberty?

Can Political Theorists Be Trusted? 

Was the creation of America and American law substantially dependent on social contract theory? What freedoms or obligations would have been gained or surrendered by Americans declaring their independence and submitting themselves to the new governments? Notre Dame’s Vincent Phillip Muñoz considers these questions essential for church/state jurisprudence in his Religious Liberty and the American Founding: Natural Right and the Original Meanings of the First Amendment Religion Clauses. Unfortunately, what the book too often demonstrates is that the list of books that American political theorists study is so short, and the eyes through which they read them so remarkably myopic, that what could be a wonderous view of a vast sky of thinking on the church and the civil magistrate, sometimes even in Muñoz ’s favor, becomes a dim squint at a small and blurry constellation of ideas. 

Muñoz ’s contribution is ambitious and does well to revisit oft-overlooked watershed moments like ratification of the state constitutions. His footnotes are extensive, and his prose and arguments are clear. As a recounting of some select historical context, the book has merit. But while Muñoz has not written the umpteenth book about how Roger Williams invented religious liberty in America, he has probably written the umpteenth book asserting that Thomas Jefferson invented religious liberty in America. His sources are deployed to bolster a Year Zero reading of the American Founding, seen through a Hobbesian interpretation of social contract theory that makes it little more than a mutual defense pact. The resulting applications are sometimes sympathetic to public religion but sometimes not, and too often eccentric, theoretical, and impractical.

It cannot be emphasized enough that while Muñoz wants to appear to summon the Founders in support of his “Natural Rights Philosophy” (NRP), what he calls his new constitutionalism or jurisprudence, the NRP is more his own creation than the Founders’. He admits as much at the end of his book when he writes, “The Founders’ expectations do not determine the natural rights constructions; natural rights philosophical thinking does.”¹ In other words, the Founders are only a means to the end of Muñoz telling you what he thinks your natural rights are. 

He also claims that his NRP reflects an overlapping consensus of Enlightenment philosophy, natural theology, and Protestant theology. It doesn’t. We shouldn’t be surprised that the weakest link of Muñoz ’s argument is what he thinks Protestant theology is: a small dip into Isaac Backus, as if all America was Baptist. His reliance on Jefferson and Madison constitutes only a particularly American strain of Enlightenment philosophy. (We hear nothing of that other strain of Enlightenment philosophy in which the entrails of the last priest are used to strangle the last king.) He thinks Madison is representative of natural theology. Such omission of a more robust background of ideas keeps Muñoz’s NRP from reflecting public understanding then and handicaps its application now. 

Muñoz has a mixed agenda for the faithful in America. he opposes exempting religious people from what are called “religiously burdensome laws” or those that may violate the conscience. This argument rests mostly on a broad application of a narrow case: the poor reception of conscientious objectors during the Founding. He thinks that exemptions are permissible, but he denies that they are a natural or constitutional right. His aversion is not owed to any conviction that the government should be neutral toward conceptions of the good (an approach he explicitly rejects). Rather, his aversion to exemptions is also owed to his belief that the Founders advocated majoritarian approaches to policy about religion. In forums supplemental to the book, Muñoz has asked that if religious people believe something is wrong, why shouldn’t they seek to exempt everyone from having to do it? You can’t help but appreciate the reasoning there, but the social contract isn’t supposed to be a suicide pact. He also opposes appointment of chaplains for those engaged in public service or public affairs, but more on that later. Just as in mid-century jurisprudence “Free from” too often overwhelms “freedom to” in Muñoz ’s mind.

On the other hand, Muñoz departs from many “strict separationist” constructions of the First Amendment, which is welcome. Some of what he says is consistent with more honest treatments of the First Amendment for sure and will chip away at current secularist orthodoxy. He resists the common secular/sacred dichotomy, acknowledges that there was no intention in the First Amendment to interfere with state establishments, and understands that there was no clear definition of establishment. He also asserts, contra strict separationists, that majorities may adopt laws that promote religion, including nudging that “influences a person to go to or remain away from church.”²

Muñoz’s interpretation of “religious liberty” corresponds to no existing approach to the First Amendment. He is neither what one would call conservative nor liberal on matters that have come before the court. Such contrarianism is fine enough. Academic drama has but one plot line:  “Everyone was more or less wrong until I came along.” My intention is not to sustain that academic game by proposing a competing jurisprudence, but to point out what makes Muñoz’s argument unpersuasive in both its reasoning and its application and explain why I don’t think anyone should take it very seriously. 

What did Establishments Presume to do? Did Enlightened Statesmen Liberate Us? 

Muñoz’s argument has three parts. Part 1 offers Muñoz’s own summary of the Founders’ political philosophy based on state declarations of rights and state constitutions: what he thinks they agreed about. Part 2 addresses what the Founders disagreed about. These two parts are valuable as a catalog and survey, but not for their insights into the documents surveyed. Part 3 offers Muñoz’s own semi-originalist construction of the Religion Clauses. 

In Part 1, Muñoz argues that Founding-era state declarations of rights were not legal documents. He’s probably right, but knowing what they are not should not imply knowing what they are. Founding-era statements of rights, especially those produced in wartime (including the Declaration of Independence) should be read as pragmatic but uncynical statements of general principle aimed at politically expedient outcomes.³ Statements about rights and liberties, especially in the crucible of crises, had the potential to limit disruption, promote unity, and encourage civil piety. Britain’s statements on religion were similar. We cannot presume to weave a decorative philosophical tapestry from a few utilitarian threads. Unfortunately, Muñoz attempts that interlacing on several occasions.

Most unpersuasive is his assertion (repeated several times) that declarations of rights were written to educate citizens and officeholders. He offers no reason to believe this. Inferring such pedagogical motives conflicts with the sentiments of his hero Jefferson who, when asked about the Declaration of Independence, gave every indication to the contrary. In his famous reply to Henry Lee in 1825, Jefferson explained that the object of the Declaration was, “Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before, but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take.” Jefferson claimed no originality in principle or sentiment, though it was not copied from any particular writing. Instead, he asserted that it was “intended to be an expression of the American mind.” It harmonized the sentiments of the day, Jefferson said, “expressed in “conversation, letters, printed essays, or the elementary books of public right.” I will add that the document had an essential external function, which was to justify secession and independence — a purpose consistent with just war theory and budding international law. In short, there is nothing in this statement of Jefferson’s to suggest that he intended or expected to educate anyone. We should therefore expect to find little in other declarations that will enlighten us, and we should instead read them with an eye to circumstances and give more attention to those. 

The problem with Muñoz’s implicit casting of these documents as pedagogical tools of enlightened statesmen rather than expedient statements reflecting common understanding and practice is that it bolsters his ahistorical and quirky jurisprudence. My point here is not to contend for “historicism” or historicizing that would confine ideas to their time, but to discourage a Year Zero approach blunting precedent entirely and basing all politics on an imagined social contract theory more akin to Rousseau than Locke. Muñoz confines most of his glosses on what is meant by a social contract and natural rights to a narrow reading of Madison and Jefferson. The result is not a good survey of American political thought. It isn’t even a good survey of the social contract theory. As with most political theorists, all the world is Locke and he deploys neither Samuel Pufendorf nor Hugo Grotius to bolster his insistence that social contract theory would sustain his conclusions.⁴ Once again, we learn that America can only be understood according to a particular reading of John Locke by some political theorist born in the twentieth century. Ho hum.  

A particularly notable error begun in Part 1, an error that becomes an essential part of his argument, is the presumption that religious establishments were thought to save souls. He writes, “Removing the salvation of souls from the legitimate purposes of government by denying governmental authority over the exercise of religion as such marks a revolution in political philosophy and political authority.”⁵ He is leveraging a popular mythology here. Not only does Muñoz give us no details about what the philosophical revolution precisely accomplished, other than in the broadest and most Whiggish strokes, but he also gives us no reason to believe that there was a revolution. Unfortunately, this is the kind of thing you can say now without explanation or evidence and everyone just nods: “Yes! It was terrible.” Cue pictures of those laconic workers in Fritz Lang’s “Metropolis” heading to the elevators, but the elevators lead to church, and Jefferson is Maria. He has discovered that you can’t make believers with establishments.

An examination of notorious establishments both Calvinist and American, however, reveals that Jefferson made no such discoveries, though his macaroni machine and adaptations to furniture do stand on their own merits. Consider what Calvinist jurist Johannes Althusius says in his Politica (1614): “A magistrate in whose realm the true worship of God does not thrive should take care that he not claim imperium over faith and religion of men, which exist only in the soul and conscience.” This is because, Althusius adds, “God alone has imperium in this area. To him alone the secrets and intimate recesses of the heart are known. And he administers his kingdom, which is not of this world, through his ministers of the Word.” Consider also what A Platform of Church Discipline (1649) drawn up by John Cotton, Richard Mather, and Ralph Partridge at the request of a Massachusetts synod, proclaimed in its final chapter: “The objects of the power of the magistrate are not things merely inward, and so not subject to his cognizance and views: as unbelief, hardness of heart, erroneous opinions not vented, but only such things as are acted by the outward man.” This distinction between the inner and the outer was pretty standard fare among Protestants and is known as “Two Kingdom Theology.”⁶ But because Muñoz hasn’t done the reading, so to speak, he thinks that Jefferson enlightened us all to the idea that “Coercive force can lead a man to profess disingenuously a belief or opinion, but it cannot create inner conviction.”⁷ Duh. Scholarship is not scholarship when the inquiry starts with its conclusion.  

In this hackneyed and ham-fisted intellectual history, not at all unique to Muñoz, Jefferson brings Promethean fire by making a categorical distinction between beliefs and opinions on the one hand and conduct on the other. He summarizes Jefferson to say, “Government has legitimate jurisdiction over actions; over beliefs and opinions, it has not.”⁸ But Jefferson’s distinction between actions and beliefs was known and agreed to by every magisterial Protestant political thinker for generations and insisted on as a way to distinguish themselves from Roman Catholic predecessors. This Protestantism was essential to the Transatlantic British identity. That doesn’t mean that the general consensus about matters of “church and state” did not vary over more than a century, but the insistence that Jefferson discovered an inner/outer distinction demonstrates just how impoverished many studies of political theory and church-state relations are. 

Even when Muñoz admirably tries to break out of the usual hangouts for political theorists, he doesn’t tell the whole story. A short treatment of Isaac Backus, for example, implies that he is representative of Protestant theology. He wasn’t. He also mentions Elisha Williams, who crafted a particularly Lockean argument for religious liberty during the Great Awakening, but he conveniently overlooks how unpopular Williams’s argument was. Nor does he note that John Dunn (who, as a noted scholar of Locke had every reason to make Williams entirely beholden to Locke) also credited Williams’s argument to “the insistent Puritan demand for emotional autonomy.”⁹

 What does Muñoz mean by Nature and Right?

Muñoz’s NRP hinges on how he understands both nature (natural law) and right (which depends in part on natural law). By nature or natural law, Muñoz means not just rationality but a particular kind of skeptical and autonomous rationality ever jealous of its near-absolute freedom. He acknowledges moral order, teleology, and duty to God as part of natural law, but he does not aggressively define or defend them. We get only vague assertions like, “If a positive law is reasonable – that is, if it is consistent with the law of nature and within the state’s legitimate ends – an individual’s nonalienable natural right of religious liberty is not implicated” ¹⁰

But if the law of nature does not include a robust and precise spiritual anthropology, then what are the obligations of the individual, the state, and the church? Muñoz insists that his natural rights approach is teleological and affirms a moral order with “obligations to our Creator” rejecting “human autonomy and willfulness.”¹¹ But how do Muñoz ’s applications defend against such autonomy and willfulness? His natural law does not reflect the remarkable scholarship of the last twenty years demonstrating its robust teleological and religious character, but instead reflects a reading of what Leo Strauss first said in Natural Right and History (1965) and was then echoed by devotees ever since: Locke (relying on Thomas Hobbes) overthrew the Christian moral order that preceded him.¹² 

It is not surprising then that Muñoz is left with rights often coming down to little more than non-interference rooted in a harm principle. He calls the founders classical liberals on multiple occasions. Such anachronistic readings of the Founders as liberals certainly enjoys a kind of academic stare decisis, but Jonathan Clark was right to say that any history of liberalism before 1820 makes as much sense as a history of the eighteenth-century motor car. Reading classical liberalism backward into this period is not just anachronistic, however. It is also deontological to a fault, relying more on abstract theoretical principles of what constitutes harm than on actual experience past or present. There is too much reason and not enough experience. It is notable that the great natural rights theorist John Dickinson, who commended experience over reason, makes only one appearance in the book.  

But let’s suppose that we read liberalism’s non-interference principle back into the Founding; what in particular would we not want to interfere with? The Christian and Protestant answer, of course, is conscience. Conscience wasn’t an end in itself. It was a means to a heavenly end, as Locke himself argued in his Letter Concerning Toleration (1689). It isn’t that conscience, when invoked, never means what Muñoz wants it to mean, but Christians disagreed about when the conscience was violated, how it was formed and informed, and what church and state action was justified. Even Locke argued with himself about it over three decades, and only came to his more famous conclusions of religious liberty after much of the British (and Protestant Atlantic) had been moving there already. Americans wrestled with the significance of the conscience not only before and during the Founding but long afterward.  

Muñoz never wrestles with conscience in any substantial way, certainly not as Americans or Britons did, so his “historical” reading involves a lot of quoting of references to conscience, or rights, but no real insight. Conscience is studied primarily as a means to an end of denying exemptions (because conscientious objectors in the Revolution weren’t given much slack) but never becomes an inquiry in its own right. Muñoz’s reading suggests that the only ones talking about conscience were dissenters arguing for greater degrees of disestablishment or for exemption from military service, like some incantation used to hopefully bring about more individual freedom and less government. 

Of course, the incantation doesn’t yield freedom from military service (or other exemptions). Do your civic duty, citizen. Can we at least worship while we serve? Not really. Muñoz happily follows the Founders (as he reads them) in denying certain freedoms, but he does not follow them when conscience obliges religious duties or offices. Hence, while the Founders readily funded legislative and military chaplains, Muñoz forbids them. Muñoz even forbids outsourced provision. Never mind that public prayer, including at legislative sessions or during school days, existed forever. He forbids them. All of this falls under what Muñoz considers the regulation of religious doctrine, the appointment of ministers, or other matters of internal church governance. Of course, the recognition of ordination to make chaplains isn’t done by the government. It is done by recognized denominations. But this is still too much for Muñoz, because then government has to have criteria to recognize who does the ordaining.¹³ Just remember that this is Muñoz’s NRP and not the Founders’.¹⁴ Their natural right was robust and could withstand the provision of chaplains. His natural right is a delicate flower to be protected at all cost, compromising the rights of believers not once but twice. They are expected to serve and obey the law as public servants or schoolchildren, but they are left to exercise corporate piety and reverence in their own heads. This looks less like classical liberalism and more like progressive liberalism. 

The Roots of Religious Liberty: Big Ideas or Prudence?

Muñoz still wants to distance himself from some of the more progressive and separationist anti-religious SCOTUS rulings, but is hamstrung by the same approach afflicting the jurisprudential turn he criticizes: he thinks that religious liberty was a big idea that dramatically swoops in to rescue us from bondage. In this case, all the world was persecution until Locke brought social contract theory that then changed America…though a century after Locke. Is that possible? 

First, were advocates of “natural rights” the ones who broke the establishments? British Whigs were arguably more radical than Jefferson, but even they did not substantially threaten the existing religious establishment. In England, they only created what Mark Goldie called a world of voluntary Anglicans while maintaining the civil benefits of the church. The real destroyer of Anglican worlds was Cromwell and the Puritans who damaged the establishment much more than any philosopher did. Facts like that are essential to any study of religious liberty, but political theorists don’t engage with Protestant theology. Instead of reading history, they just parrot early twentieth-century historiography in which philosophers rescue us from theologians, even though the most intense debates about religious toleration and liberty were among Christian theologians and preceded Locke by several decades. 

Insofar as establishments in America withered, it was not because of what a social contract theorist said. The American establishments were incredibly weak to begin with and only grew weaker. Dissenters built New England’s establishments, Anglican establishments were managed by vestries rather than bishops, and the American clergy and church lacked the standing of estates enjoyed in Europe — thanks in part to Protestant theology. The growing problem with establishments in both America and Britain wasn’t because they offended Locke or whoever; they were complicating a pan-Protestant union. Since at least the 1680s, British Protestants felt increasingly threatened by something they called Popery. Popery was a term hearkening back to attempts by Popes to subvert English monarchs. Popery also referred to Catholic rebels who tried to murder Protestant magistrates (Guy Fawkes), though such plots were often called “Jesuitical.” Likewise, to be a “Papist” didn’t necessarily mean that one was a confirmed Roman Catholic; it may have only meant anyone who opposed English constitutionalism or Protestant rulers anywhere. 

To be British, and Americans were Britons until 1776, was to be Protestant.¹⁵ As hysteria about popish plots proliferated, particularly around the time of the Exclusion Crisis in the 1680s, transatlantic Protestants looked for similarities more than differences. After the “Glorious Revolution,” subsequent wars against Catholic powers only made this alliance of Protestants (and Protestant Britons) stronger, culminating in the French and Indian War when the rhetoric of Protestants fighting for survival of law and liberty against Catholic foes reached a fever pitch. It is impossible to understand not only the martial spirit of Americans in the Revolution but also their more ecumenical character without glancing back a generation to the Seven Years War.¹⁶ 

Another essential episode in religious liberty that Muñoz overlooks entirely is the Great Awakening. Americans seeking revivals were willing to weaken their establishments to enable itinerant preaching, though they were hardly unified on the question. But what is notable about the Awakening is the patriotic character of some of its itinerants, notably George Whitefield, who preached a doctrine of Protestant existential struggle against Catholic powers. If anything tilled the soil for greater religious liberty in America, it would be the ecumenical and enthusiastic fighting spirit of Whitefield whose reach to thousands of eyes, ears, and hearts far exceeded what few minds were reached by comparatively highbrow rationalistic theism of Jefferson or Madison.

To overlook this entire century before the 1770s and instead claim some kind of philosophical revival is to demonstrate just how paltry the reading list is for many political theorists, but their ignorance is hardly confined to that century. American Protestants (increasingly less British) became even more unified in the wake of several crises forced by Britain: the Quebec Act, the threat of an Anglican bishop (including fears of ecclesiastical courts), and the assertion of American rights – by force if necessary – in the wake of the Stamp Act Crisis. Closing ranks against these threats further discouraged the infighting that had already waned over a century, Jefferson’s own dramas about Baptists nearly getting hanged in Virginia notwithstanding. 

Like too many American political theorists, Muñoz seems to know little or nothing about this, or he doesn’t seem to care. But why doesn’t he know about it when there are plenty of primary sources and secondary literature.¹⁷ How can he presume to craft jurisprudence without the circumstances and particulars that birthed it? That’s certainly not how common law was supposed to work – then or now. It’s hard to imagine a more frivolous jurisprudence than one tied to an ahistorical eclectic reading of a few bookend authors (e.g., Locke or Jefferson) expected to serve as a Rosetta Stone for unlocking the Founding and leading to conclusions that the Founders themselves did not support. 

A Jurisprudence of Omissions

It is foolish to rely on presumed philosophical revolutions to explain or prescribe changes in law. The alternative, albeit less dramatic, to a presumed philosophical revolution is a sometimes gradual, sometimes forced, often pragmatic and sometimes principled, change forced more by circumstances and ecclesiastical differences. The documents Muñoz marshals must be read in this light rather than through the mind of Madison or Jefferson. Even the supposedly enlightened Jefferson groused about the Quebec Act expanding liberty for Roman Catholics in what is now Canada, and so did many others. Why? Because religion at this time was anything but apolitical, and no one brushed it aside by talking about a social contract.  

It would be easier to take Muñoz ’s proposed jurisprudence seriously if he made not only a more persuasive effort to explain away the Founders’ approval of chaplains but also the support for Christianity enabled in the Northwest Ordinance. And what of Justice Kent’s assertion that Christianity, not religion, is part of the common law? Around this same time, Justice Story (whom Madison, that great champion of religious liberty and natural rights appointed to the Supreme Court) asserted the compatibility of establishment and free exercise. Also, how did Protestants gain de facto ownership of the public schools for over a century? Had Americans forgotten their natural rights? Closer to the Founding, what of those debates over establishment in South Carolina or Massachusetts, the last establishments to fall? What about the Constitution’s own use of affirmations along with oaths? Was this not an exemption? What of its inclusion of Sunday, the Christian sabbath? Why did this not violate natural rights? Muñoz ’s NRP may not contest all of these, but they do raise questions about just what was intended in the Revolution and Founding, and they all provide insight into how circumstances and particulars inform law much better than abstracting from philosophers. 

Because Muñoz wants to base his jurisprudence on a philosophical revolution, his understanding of religion is essentially individual and only accidentally public, corporate, or institutional. This isn’t surprising since he has no precise definition of what it even means to be religious, despite the claim that his natural law is teleological. He fumbles through expansive definitions even in his concluding pages: “worship vs nonworship elements, ” “inculcation of dogmas,” “religious exercises,” or “elements of religion.”¹⁸  

If Muñoz wants to treat religious exercise as a natural right, and he isn’t interested in historical theology (or history?), perhaps a better alternative would be to treat it like the natural right to trade: government never forces it, but instead encourages and facilitates, creating conditions conducive to it. Like the provision of goods and services by governments, it is supplemental and circumstantial and should not preclude private provision, though provision obliges taxation that may as such violate rights. But as with all taxation, it is justified for truly public goods, and it would be prudent to view piety and reverence as public goods to be supported and as rights to be protected. Locke himself believed that the Gospel was a shorter route to morality than philosophy, but Muñoz sometimes puts them needlessly in opposition. 

It seems more reasonable to value the priority of public piety as much as the Founders and generations of Americans did, as well as the larger endorsement of mankind to that end. That testimony is more trustworthy than a newfangled jurisprudence, supposedly owed to the Founders but fully evident not even to them, now divined by political theorists almost 250 years into the history of the nation they founded. 

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