All this month, we are hosting an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In today’s post, Donald Drakeman (Notre Dame) responds to Muñoz. For other posts in this series, please click here.
Phillip Muñoz has again brought us back to the Framers in a way that makes us think about First Amendment questions in an important new light. This alone is extremely difficult to do in contemporary church-state scholarship. Better still, he has done so with such a clear and persuasive style, even in the in-depth APSR version, that it deserves to be carefully read and widely discussed.
Since the article has been so clearly summarized, I will move directly to focus on areas where I think Phillip’s arguments will be highly influential, and a couple of points where he might fruitfully expand this line of thinking.
The Framers have been the religion clauses’ nearly constant companions ever since Everson, when Justices Black and Rutledge ushered in the modern church-state era with a focus on Madison and Jefferson. But the Framers are no longer in vogue for originalists. Over the last few decades, Justice Scalia inspired a generation of originalist scholars to maintain their focus on the founding era, but to shift constitutional debates away from the Framers themselves. Concerns about Supreme Court justices cherry-picking quotations from their favored Framers, as we can see in Everson, have largely banished the Framers from the search for original meaning. With dozens of members of the First Congress, and many more ratifiers, how can we pretend that they all had the same thing in mind?
For many “new originalists,” solving this problem requires us to concentrate not on what particular individuals may have thought about a constitutional topic, or on what specific Framers intended it to mean, but on the objective public meaning of the words − what the average, or perhaps well-informed, ratifier would have understood them to mean. Samuel Johnson and Noah Webster have thus taken the place of James Madison and Thomas Jefferson in the search for constitutional meaning.
Yet, looking up “prohibiting,” “free,” “exercise” and “religion” in either dictionary can only take us so far, especially in addressing difficult questions along the lines of whether the Constitution demands religious exemptions. On this point, Phillip’s paper is Read more