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.
Originalism
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
These commissions have produced carefully written reports on the contexts and challenges regarding national identity and the impact of greater diversity on the law, public institutions, integration and religion. Analysing the work of public commissions in Britain, France, Belgium, and Canada, Australia, New Zealand, Italy, Singapore and Norway the book reflects on how they were formed, the way they framed religious and cultural diversity, the questions and controversies they examined, the key political actors involved, public and media reception, legal challenges and the impact they had both on public policy and in concrete situations such as work, schools and health care. The reports represent a rich body of work charting the fundamental questions nations face about their nature, history, and future while the different ways they were initiated and their impact on peoples’ lives tells us much about different approaches to the issues of cultural identity between countries.
shaping the course of secularization. Drawing upon detailed historical analysis of religious education policy in the United States and Australia, Damon Mayrl details how administrative structures, legal procedures, and electoral systems have shaped political opportunities and even helped create constituencies for secular policies. In so doing, he also shows how a decentralized, readily accessible American state acts as an engine for religious conflict, encouraging religious differences to spill into law and politics at every turn. This book provides a vivid picture of how political conflicts interacted with the state over the long span of American and Australian history to shape religion’s role in public life. Ultimately, it reveals that taken-for-granted political structures have powerfully shaped the fate of religion in modern societies.