All this month, the Law and Religion Forum hosts an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In this leadoff post, Muñoz summarizes his argument. For other posts in the series, please click here.
“[I]t is proper to keep in mind, that all power in just & free Govts. is derived from Compact . . .”
– James Madison, “On Sovereignty,” (1835)
In the wake of Antonin Scalia’s untimely passing earlier this year, originalists and conservatives praised the Justice’s legacy with one notable exception—his majority opinion in the Free Exercise Clause case, Employment Division of Oregon v. Smith (1990). Stanford Law Professor Michael McConnell identified Smith as his least favorite Scalia opinion. Michael Stokes Paulsen went even further, writing an entire essay about Smith titled, “Justice Scalia’s Worst Opinion.” Calling it a “constitutional disaster,” Paulsen, who holds a Distinguished University Chair at the University of St. Thomas, claimed that Scalia overturned the only interpretation “that makes sense of the decision to have a free exercise clause in the first place” and overthrew the “understanding [that] accords with the founding generation’s understanding of religious freedom as a ‘natural right.’” Even for a “fainthearted” originalist, as Scalia once labeled himself, that is harsh criticism.
I certainly agree that Scalia’s Smith opinion has significant shortcomings (including everything about “hybrid rights”), but from an originalist perspective, its basic conclusion is correct. I’ll go even further: Justice Scalia’s non-exemptionist reading of the Free Exercise Clause is the only construction consistent with the American founders’ natural rights political philosophy and their attendant social compact constitutionalism. As much as I admire the scholarship of McConnell, Paulsen, and other originalist defenders of the Sherbert approach, they are simply wrong when they claim the founders’ natural rights constitutionalism supports a constitutional right to exemptions.
Let me start, however, with a point of agreement. I applaud Professors McConnell and Paulsen for emphasizing the founders’ understanding of religious liberty as a natural right. Recovering the idea of natural rights is essential to contest the idea that the state grants religious liberty and can limit it according to its own interests and preferences.
The founders rejected the language of toleration, because toleration presumes that the state possesses legitimate authority over religious exercises. Instead, the founders recognized that the right of religious liberty inheres in the individual prior to state recognition. Individuals possess a right of religious free exercise on account of their created nature and their pre-political obligations to God. That is why it is a natural (as opposed to an acquired) right. George Washington beautifully stated the founders’ understanding in his 1790 letter to the Hebrew Congregation at Newport, Rhode Island. “All possess alike liberty of conscience and immunities of citizenship,” Washington writes. He continues:
It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.
The founders taught, and Professors McConnell and Paulsen helpfully remind us, that the natural right of religious liberty sets the boundaries of legitimate state action, not vice-versa.
The founders’ natural rights understanding, however, does not lead to a constitutional right to exemptions. The originalist defenders of exemptions, I believe, misunderstand what the founders meant when they identified religious liberty as an inalienable natural right.
The concept of inalienability only makes sense within the founders’ social compact political philosophy. So to understand what they meant when they said the rights of conscience are an “unalienable” natural right, we have to recall the basic elements of the social compact. To simplify, social compact theory can be divided into three analytical steps:
A. All individuals are, by nature, born equally free and thus possess certain natural rights.
B. To protect their rights, free and independent individuals voluntarily enter into society with one another and then form a constitution to govern themselves. When forming civil society and then a government, individuals alienate—that is, they entrust to the government—their executive power to protect and enforce their rights. Legitimate government arises via consent, and the primary purpose of government is to protect natural rights.
C. Some natural rights are fully inalienable, however. Direct authority over these natural rights is not granted to the government. Even within the social compact, individuals retain full and complete sovereignty over their non-alienated natural rights.
That the founders understood worship according to conscience to be an inalienable natural right can be seen in the founding-era state declarations of rights, the founders’ philosophical defenses of religious liberty—including Jefferson’s Virginia Statute for Religious Liberty and Madison’s Memorial and Remonstrance—and in influential political sermons of the time. (See Part I of this article for further documentary evidence.) The inalienable character of the individual’s authority over worship meant that the state could never legitimately acquire sovereignty over religious exercises per se.
Religious exercises, accordingly, remain beyond the jurisdiction of government. This means that state officials lack legitimate authority to directly prohibit, mandate, or otherwise regulate religious exercises as such. As I discuss in my just-published American Political Science Review article, “Two Concepts of Religious Liberty” (May 2016), this lack of sovereignty also means that judges—who, too, are agents of the state—lack authority to balance elements of the inalienable natural right to religious liberty against other state interests. The act of balancing itself assumes jurisdiction: The “balancer” places competing rights and interests on a scale. Even if the scale is tilted toward religious freedom (as it is under the Sherbert Test), the act of weighing assumes an authority that the founders deny. Judges may not exercise such authority because the state itself lacks jurisdiction over religious exercises as such.
The text of the Free Exercise Clause is consistent with this jurisdictional understanding. The First Amendment imposes an absolute ban; Congress can “make no law . . . prohibiting the free exercise” of religion. Its scope is different from the Fourth Amendment’s protection against “unreasonable” searches and seizures or the Fifth Amendment’s protections against deprivations of life, liberty, and property “without due process of law.” The First Amendment affords no constitutional space for “reasonable” prohibitions of religious free exercise if “due process” is afforded or if, to use modern terminology, “compelling state interests” are pursued. The categorical character of the Free Exercise Clause comports with the idea that the state lacks sovereignty over the non-alienated right to religious liberty.
Let me anticipate three objections:
(1) This natural rights jurisdictional interpretation of the Free Exercise Clause offers too much protection for religious individuals. It shields religious individuals from all laws they find burdensome.
(2) This interpretation offers too little protection. It fails to shield individuals from any burdensome laws that do not target religion directly.
(3) What about the “peace and safety” provisos of the state declarations of rights? These texts only make sense in light of some sort of compelling state interest balancing analysis that your interpretation rejects.
To answer (1) requires clarifying what the founders included within the inalienable right of religious freedom. Largely because of Sherbert, we tend to think that any belief or action motivated by religion falls within the First Amendment’s protections. The founders’ understanding is more nuanced and more limited. The founders distinguished core inalienable elements of religious free exercise from what we might call religious “interests.”
The inalienable core includes the “freedom to embrace, to profess, and to observe the Religion which we believe to be of divine origin,” to use Madison’s language from Article 4 of the Memorial and Remonstrance. These core elements of religious worship remain beyond the state’s direct jurisdiction. Religious “interests” include activities of faith that fall within the state’s otherwise legitimate sovereignty. When exercising its legitimate authority and pursuing otherwise legitimate civic ends, the state may burden religious “interest.” It also may relieve burdens on religious “interests” through discretionary exemptions.
Quakers and military service may provide a helpful example. At the time of the founding some Quakers asserted that their religious tenets did not allow them to participate in warfare and, therefore, they could not perform mandatory militia and military service. According to the dichotomy I have just set forth, whether the Quakers’ plea lies within the inalienable rights of religious free exercise or is properly categorized as a religious “interest” depends on the state’s legitimate authority.
Within social compact theory, the protection of citizens’ lives is the most basic purpose for which the political community comes into being. To use more technical language, individuals turn over executive authority regarding self-preservation to the state, which then protects all members of the political community in common. As citizens, Quakers, too, are understood to grant such authority to the government and to receive its protection. Given that common defense, including the defense of citizens’ lives, clearly falls within the state’s legitimate authority, the Quakers’ plea necessarily falls under the category of religious “interests;” it is not properly regarded as part of the non-alienated natural right of religious free exercise.
As equal members of the political community, accordingly, Quakers can be required to share in the common burden of the community’s self-defense. The political community could choose to exempt Quaker and other pacifists (religious or not) from military service; the natural rights understanding does not prohibit exemptions to accommodate what I have labeled religious “interests.” But it does not require them.
When we examine how the founders actually addressed Quaker pacifism, we see that they followed their natural rights political philosophy. Quakers often were exempted from military service (usually on terms the Quakers themselves found insufficient), but such exemptions were not granted as a result of constitutional religious free exercise provisions. Exemptions were issued either under the authority of separate and distinct state constitutional provisions that specifically recognized a right of exemption or through ordinary legislation. How the founders granted religious exemptions shows that they did not understand exemptions to be a part of the inalienable natural right of religious free exercise.
The natural rights approach does not offer “too much” protection (objection (1)), because it does not prohibit the state from burdening the interests or preferences of religious individuals when pursuing legitimate state ends. When acting within its legitimate sphere, the state is not obligated to accommodate religious “interests.”
This response to (1) can provoke the objection (2), that this natural rights interpretation eviscerates the Free Exercise Clause. If the Free Exercise Clause only protects against direct state restrictions on and regulations of religion, what protections does it really offer?
Response (2) accurately recognizes that the founders’ understanding does not protect against “indirect” religious burdens—that is, laws and regulations such as a military draft that do not target or mention religion as such but, when implemented, burden some religious individuals or institutions. I must acknowledge that, in the context of our modern regulatory state, the founders’ natural rights understanding may not seem adequate to protect against all the different ways the state encroaches on the lives and interests of religious individuals. This observation, I note, is what led Justice William Brennan to eschew the framers’ approach and adopt the Sherbert Test over fifty years ago.
Whether the founders’ approach is adequate for our times, however, is a different question from what the founders’ approach is. In the larger context of human history, moreover, denying the state authority over religious exercises is a monumental achievement in the service of human freedom. We often speak of “limited government.” We do not often remember that the fundamental limit the founders imposed on government was to deny it religious authority. That American governments still do not typically attempt to directly prohibit, prescribe, or regulate religious exercises is a testament to the founders’ achievement. We need only to look to the Middle East to appreciate what the founders bequeathed us.
Lastly, let me address objection (3), the “peace and safety” provisos in founding-era state declarations of rights. Every state that adopted a new constitution between 1776-1790 recognized the right of religious liberty in its declaration of rights and/or protected religious freedom in its constitution. Several states attached what are known as “peace and safety” provisos to their religious liberty protections. Some variation exists among the states, but they are all basically the same. For convenience we will just use the relevant part of Article XXXVIII of the New York State 1777 Constitution, with the “peace and safety” proviso in bold face type:
[T]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.
In Harvard Law Review and University of Chicago Law Review articles published around the time of Smith, Michael McConnell argues that peace and safety provisos indicate the balancing standard that the founders anticipated the judiciary would use to grant or deny exemptions. McConnell’s construction interprets the 1777 New York Constitution to grant exemptions to religious believers for all their religious practices except those consisting of “acts of licentiousness” or “practices inconsistent with the peace and safety of the state.” If the state free exercise guarantees were not understood to grant exemptions, McConnell asks, “what could have been the purpose of the ‘peace and safety’ proviso?” “The state provisions,” he concludes, “make sense only if free exercise envisions religiously compelled exemptions from at least some generally applicable laws.” Michael Stokes Paulsen recalled this argument in his criticism of Justice Scalia’s Smith opinion.
One difficulty with McConnell’s reading of the peace and safety provisos is that three state declarations of rights (DE, PA, VT) and Jefferson’s Virginia Statue for Religious Liberty lacked them. The First Amendment, notably, also lacks a peace and safety proviso. If the right of religious liberty means exemptions and the provisos indicate the standard by which exemptions are to be limited, what do we make of these “missing” provisos? The logical implication of McConnell’s construction is that their absence must be read to grant exemptions from any and all laws that religious believers find burdensome. But no scholar or jurist, including McConnell himself, is willing to go that far. Unlimited exemptions would, in the words of Chief Justice Waite, “permit every [religious] citizen to become a law unto himself.” As far as I can tell, McConnell has no adequate explanation for the lack of peace and safety provisos in several state constitutions and the First Amendment.
The founders’ natural rights theory as I have interpreted it, however, offers a plausible explanation for the existence and non-existence of the provisos. In this context, we need to recall that the founders did not understand the natural right of religious liberty (or any natural right) to be without boundaries. The scope of natural rights never was understood to include actions that interfere with the ability of others to exercise their natural rights. “No man has a natural right to commit aggression on the equal rights of another,” Jefferson said. In his Lectures on Law, James Wilson writes, “In a state of natural liberty, every one is allowed to act according to his own inclination, provided he transgress not those limits, which are assigned to him by the laws of nature . . . .”
The founders did not understand the scope of natural rights, including the inalienable right of religious liberty, to include actions that infringed on the natural rights of others. The founders understood every natural right to have a natural limit. The saying, “you have no right to do wrong,” captures this understanding insofar as “wrong” is defined in terms of violating the natural moral law and the natural rights of others.
The peace and safety provisos in the state declarations of rights were meant to indicate these natural limits. Instead of “peace and safety” provisos, it would be more accurate to call them “boundary” provisos. Strictly speaking, these boundary provisos were not necessary, because the scope of the natural right of religious liberty was bounded by respect for the natural rights of others. The superfluous character of these provisions, I believe, best explains why some states included them but others did not.
* * *
Church-state scholars are so accustomed to assuming that the right of religious liberty means exemptions that we tend to fail to consider the obvious alternative: that the state may not prohibit or otherwise regulate religious exercises as such. The founders did not share our presumptions. At the level of constitutional design, rather than having judges protect religious liberty via the superintendence of allegedly burdensome state action, they sought to demarcate that a relatively narrow but profoundly important area of human life remained outside of the sovereignty of the state.
As I try to explain in the conclusion of my APSR article, a construction of the Free Exercise Clause consistent with the founders’ inalienable natural rights understanding would provide narrower but deeper constitutional protection than the exemptionist approach that was (mostly) overturned by Justice Scalia in Smith. Again, whether it is wise or prudent to adopt the founders’ (and Scalia’s) approach today is a different question from what the First Amendment’s original meaning dictates. We cannot begin to answer that question well, however, without first understanding the founders’ constitutionalism and the natural rights political philosophy that animated it. It is my hope that this essay and the forthcoming responses to it help us gain a better understanding of the alternatives before us.
— Vincent Phillip Muñoz
 The influential Baptist preacher Samuel Stillman, for example, preached the following in Boston in 1779:
That some of the natural rights of mankind are unalienable, and subject to no control but that of the Deity. Such are the Sacred Rights of Conscience. Which in a state of nature, and of civil society are exactly the same. They can neither be parted with nor controlled, by any human authority whatever.
Samuel Stillman, A Sermon Preached Before the Honorable Council, and the Honorable House of Representatives of the State of Massachusetts-Bay, in New-England, at Boston, May 26, 1779 (Boston: T. and J. Fleet, 1779), 11.
 That exemptions for religious pacifists were not understood to be a part of the right of religious free exercise is also documented in the drafting of the Bill of Rights. As I have discussed elsewhere, when the First Congress took up the issue of religious exemptions, they did not associate exemptions with the text that became the First Amendment. Moreover, some of those who opposed the conscientious objector amendment specifically argued that the matter should be left to the discretion of the legislature because it was not a matter of natural rights.
 Michael W. McConnell, “Free Exercise Revisionism and the Smith Decision,” University of Chicago Law Review 57 (1990), 1118.
 Michael W. McConnell, “The Origins and Historical Understanding of Free Exercise of Religion.” Harvard Law Review 103 (1990), 1462.
 Reynolds v. United States, 98 U.S. 145, 167 (1879).
 Thomas Jefferson, letter to Francis W. Gilmer, June 7, 1816, in The Writings of Thomas Jefferson, 20 Vols., eds. Andrew A. Lipscomb and Albert Elley Bergh (Washington, DC: Thomas Jefferson Memorial Association, 1903), XV: 24.
 James Wilson, Lectures on Law, in Collected Works of James Wilson, eds. Kermit L. Hall and Mark David Hall (Indianapolis: Liberty Fund, 2007), 2: 1056. For further discussion of the founders’ understanding of the natural law boundaries on natural rights with particular reference to James Wilson, see Hadley Arkes, “On the Dangers of a Bill of Rights: A Restatement of the Federalist Argument, in To Secure the Blessings of Liberty: First Principles of the Constitution, ed. Sarah Baumgartner Thurow (Lanham, MD: University Press of America, 1988), I: 130-35.
 I discuss the natural law limits on natural rights at length in Part III of this article.
 Philip Hamburger first discussed this point, in a somewhat different manner, in his article, “A Constitutional Right of Religious Exemptions: An Historical Perspective,” George Washington Law Review 60 (1992): 915-48.