Religious Freedom and the American Founding: The Natural Right of Religious Liberty, the Original Meanings of the Religion Clauses, and Our 'First Freedom' Today

FAIN: FEL-262064-19

Vincent Phillip Munoz
University of Notre Dame (Notre Dame, IN 46556-4635)

Research and writing leading to publication of a book on the First Amendment's Free Exercise Clause and the American founders’ views on religious liberty.

I propose to complete a book titled "Religious Freedom & The American Founding: The Natural Right of Religious Liberty, The Original Meanings of the Religion Clauses, and Our 'First Freedom' Today." The book will: (1) articulate the founders' natural rights political philosophy of religious liberty; (2) explain what we can and cannot determine about original meanings of the First Amendment Religion Clause, thereby revealing the limitations, complications, and difficulties of church-state originalism; and (3) construct a natural rights approach to the First Amendment's Religion Clauses.

Associated Products

Religious Liberty and the American Founding: Natural Rights and the Original Meaning of the First Amendment Religion Clauses (Book)
Title: Religious Liberty and the American Founding: Natural Rights and the Original Meaning of the First Amendment Religion Clauses
Author: Vincent Phillip Muñoz
Abstract: Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses sets forth a new interpretation of the Founders’ understanding of religious liberty and, correspondingly, challenges the dominant originalist church-state jurisprudential interpretations. It argues that while we can know something about the original meanings of the First Amendment’s Religion Clauses, the clauses do not have unambiguously clear original public meanings. Even when carried out in good faith, church-state originalism necessarily requires that we look beyond the First Amendment’s text and perform what contemporary constitutional theorists call “constructions.” After documenting and explaining the Founders’ philosophies and theologies of religious liberty as an inalienable natural right and uncovering what we can and cannot determine about the original meaning of the First Amendment’s Religion Clauses, the book constructs a natural rights jurisprudence of religious liberty for the First Amendment Establishment and Free Exercise Clauses. The book shows, perhaps surprisingly, that following the Founder’s understanding of natural rights and natural law would lead neither to consistently conservative nor consistently liberal results, but rather a novel church-state jurisprudence that would, in many cases, transfer authority from the judiciary to the people.
Year: 2022
Primary URL: https://www.worldcat.org/title/religious-liberty-and-the-american-founding-natural-rights-and-the-original-meanings-of-the-first-amendment-religion-clauses/oclc/1298383602?referer=di&ht=edition
Publisher: University of Chicago Press
Type: Single author monograph
ISBN: 9780226821429
Copy sent to NEH?: No

James Madison's Political Science of Religious Liberty (Article)
Title: James Madison's Political Science of Religious Liberty
Author: Vincent Phillip Muñoz
Abstract: In Fulton v. City of Philadelphia (2021), Justices Alito, Thomas, and Gorsuch called for the reversal of Employment Division v. Smith (1990), the Supreme Court’s leading Free Exercise Clause precedent. For years, Smith has been targeted by originalists who contend that, among other things, Smith is incompatible with a Madisonian understanding of religious freedom. This article challenges that conclusion. It attempts to do so not by employing the typical tools of originalist legal scholarship, but rather by setting forth Madison’s political science of religious liberty. The article argues the logic of Federalist 10 is incompatible with exemptions from generally applicable laws and, therefore, that a Madisonian construction of the Free Exercise Clause would not support a constitutional right to religious exemptions. Insofar as Federalist 10 articulates the Constitution’s underlying structural design, Free Exercise Clause exemptions undermine one of the principal mechanisms that Madison believed would protect liberty, including religious liberty
Year: 2021
Primary URL: https://www.journals.uchicago.edu/doi/full/10.1086/716633
Primary URL Description: Journal Website
Access Model: Subscription
Format: Journal
Periodical Title: American Political Thought
Publisher: American Political Thought

What is an Establishment of Religion (Article)
Title: What is an Establishment of Religion
Author: Vincent Phillip Muñoz
Abstract: Faithfulness to the First Amendment requires grasping what it actually prohibits. The First Amendment explicitly prohibits Congress from making a law “respecting an establishment of religion.” To overturn establishment clause precedents, the justices have to explain what actually constitutes a prohibited religious establishment. Originalists and conservatives have failed thus far to do this persuasively, which is among the reasons why the Court’s “wall of separation” precedents have survived. The First Amendment’s prohibition of a “law respecting an establishment of religion” prohibits what I call “state establishments” and “church establishments.” In my forthcoming book Religious Liberty and the American Founding, I explain that “state establishments” occur when government itself exercises the functions of an institutional church, including the regulation of internal church matters such as the content of doctrine and the selection of ministers. “Church establishments” involve the delegation of government’s coercive authority to churches, especially in matters of taxation and financial contribution. The establishment clause means the state cannot function like a church nor delegate its powers to a church.
Year: 2022
Primary URL: https://www.firstthings.com/web-exclusives/2022/05/what-is-an-establishment-of-religion
Primary URL Description: Magazine Website
Access Model: Open
Format: Magazine
Periodical Title: First Things
Publisher: First Things

Natural Rights and Religious Liberty: The Founders’ Perspective (Article)
Title: Natural Rights and Religious Liberty: The Founders’ Perspective
Author: Vincent Phillip Muñoz
Abstract: In a clear and thoughtful reflection, the Notre Dame political scientist Vincent Phillip Muñoz recovers the Founders’ wisdom regarding religious liberty. Promoting neither a “wall of separation” between religion and politics nor a direct embrace of religion in their political acts, the Founders saw religious liberty as a “natural right,” part of a larger fabric of rights and duties within a free political order. Political institutions had no right to coerce religious affirmation or to preempt the “sacred and sovereign duties” that free men and women owe to the Creator God. Religion should be neither “established” nor actively undermined by government acting outside its proper sphere. But contra the jurisprudence of the Supreme Court on these matters since the 1940s, government, state or federal, need not be neutral between religion and irreligion, and is free to favor religion to serve valid civic purposes. The Founders’ vision suggests that one ought not to “penalize religious citizens to advance an exaggerated freedom from religion” or “exempt religious individuals from the civic obligation of following duly enacted law.” A return to the nearly forgotten wisdom of the Founders on these matters might encourage moderation and compromise. It is certainly worth a try, Muñoz suggests, since the dominant approaches on the left and right have led to a civic impasse and have further polarized an already badly divided social order. This essay is part of RealClearPublicAffairs's 1776 Series, which explains the major themes that define the American mind.
Year: 2021
Primary URL: https://www.realclearpublicaffairs.com/articles/2021/04/21/natural_rights_and_religious_liberty_the_founders_perspective_773649.html
Primary URL Description: Publication website
Format: Other
Periodical Title: Real Clear Public Affairs
Publisher: Real Clear Public Affairs

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