Drakeman: The Free Exercise Clause, State Constitutions, and Natural Rights

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 impressively helpful. It offers us a well-known fundamental principle standing behind this otherwise indeterminate text, thus providing clearer insights into what it was likely to have meant not just to well-known Framers but to the broader public as well. That is, Phillip has identified a principle that may well be inherent in our constitutional DNA.

In analyzing how the founding generation thought about religious liberty, Phillip persuasively points us to the relevant provisions of the new state constitutions. In doing so, he mines a rich vein of natural rights language, and identifies the key documents that illuminate the widely shared philosophical understandings behind the concept of religious freedom. One result is that Madison, Jefferson and other once-prominent Framers return to constitutional center stage because they best articulated these broadly held themes of religious and political philosophy.

Invoking these particular Framers’ views is not cherry-picking, but employing texts that were, in fact, widely embraced by many Americans. Even beyond the language in the state constitutions, we can see an impressive range of Americans expressing the same basic themes. As 19th century evangelical Presbyterian minister Robert Howison put it, Jefferson “though infidel in his opinions,” proves that “the most learned of infidels, and the most enlightened of Christians, may attain to the same conclusions as to religious liberty.” Similarly, Baptist historian Robert Semple wrote in 1810 that Madison’s Memorial was “[f]or elegance of style, strength of reasoning, and purity of principle… never surpassed by anything in the English language.” At the same time, writings from New Englanders such as Theophilus Parsons and Roger Sherman would sound the same natural rights notes. They may have argued – sometimes vociferously – about how to put those principles into practice, but they shared the same core concepts and vocabulary.

Phillip has thus returned us to one of the – probably few – places where there is impressively strong documentary evidence that the founding generation saw eye to eye: the natural right to religious liberty. Perhaps not all were equally conversant with Locke, or as clever with language as Jefferson and Madison, but the commitment to that concept can be seen resonating from frontier evangelicals to urban intellectuals, and from New England’s civic republicans to the Southern gentry.

Once Phillip has made these philosophical foundations apparent, the next question is whether this widely shared, principled view of the nature of the liberty of conscience was, in fact, the extended play version of the Free Exercise Clause. In considering this question, it might be useful for Phillip to expand the analysis to see what kind of evidence is available to link the natural rights principle that is visible in the state constitutions to the Free Exercise clause, where the text does not display the classic formulations. Richard Helmholz has recently argued, for example, that the natural rights language that is featured in the Declaration of Independence and the state constitutions was absent from the federal Constitution, which he thinks “must have been a conscious choice.” (See his 2015 Natural Law in Court). A reasonable case could be made not only that the First Amendment language departed from the conventional linguistic pattern found in the state constitutions but also that the federal government was seen as being of an altogether different genus and species than the state governments. In short, Phillip has made a powerful case for philosophical foundations for the liberty of conscience provisions in the state constitutions. How confident can we be that the Framers and ratifiers were thinking along the same lines about the First Amendment as they were about their state constitutions?

Substance or Process?

My final thought relates to what the natural rights interpretation means for contemporary church-state questions, such as the issue of judicially-crafted exemptions. Here Phillip draws on the concept of jurisdiction, as he has very effectively done with the Establishment Clause (as Justice Thomas acknowledged in Greece v. Galloway), and I wonder whether this fundamentally procedural concept will be able to do the necessary work here. Phillip argues that that the concept of inalienability means that the state, through either legislative or judicial actions, “may never legitimately exercise direct sovereignty over elements of the natural right to religious liberty,” and, hence courts lack the jurisdiction to do the balancing required to grant exemptions.  It seems to me that Phillip’s two First Amendment jurisdictional arguments may, in fact, be quite different, and the Free Exercise version leads to some complexities that might require more substantive language.

In his 2006 article on the “Establishment Clause and the Impossibility of its Incorporation,” Phillip concludes that at least one principal meaning of the clause is that it “recognizes a jurisdictional boundary that protects state authority” over religious establishments. Practically speaking, then, the federal government, including the judiciary, has no jurisdiction over state-level establishments. This is what might be seen as a classic issue of jurisdiction. Some government body has decision-making authority over religious establishments, and the Constitution firmly declares that it resides in the states, not the federal government.  If a dispute arises, everyone knows where to turn.

In the Free Exercise context, things become murkier. If it is a truly inalienable natural right, over which no government, federal or state, can claim decision-making authority, who, other than God, can resolve a dispute? If courts are as disabled as legislatures by this jurisdictional interpretation, then it is hard to see how a religious liberty claim could give rise to any judicial remedy, exemptions or otherwise. Yet it seems unlikely that the Framers, or anyone else in the founding generation, imagined that religious liberty conflicts would need to wait for the heavenly councils to resolve.

This may be primarily an issue of semantics, however. The basic concept, I think, is that religious liberty is an inalienable right, and thus not something that courts can restrain or restrict via some sort of balancing against interests of the state, no matter how compelling those interests  might seem to be. This is a powerful point, whatever we call it, and it demands serious attention from religious liberty scholars. Religion, by this account, is not a choice like any other, but the essential answer to a call to duty.

Many thanks to Phillip for an outstanding paper, and to the Center for the opportunity to respond to it. Ultimately, all of my questions and comments are simply requests for more of the same. This is fascinating and fruitful scholarship, and I look forward to seeing these ideas take our future constitutional conversations in important new directions.

— Don Drakeman

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