This past autumn, we hosted an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In this post, Professor Muñoz responds to the comments of the symposium’s participants:
It’s gratifying when scholars you respect and admire take your work seriously. I am therefore deeply grateful for the symposium hosted by the Center for Law & Religion and to its directors, Mark Movsesian and Marc DeGirolami. I am especially appreciative of the symposium’s participants for their careful readings, probing questions, and thoughtful challenges to my post and the articles on which it was based.
The primary purpose of my recent scholarship has been to recover the American founders’ understanding of the natural right of religious liberty. That investigation is itself a prologue to addressing the more fundamental philosophical question of whether individuals actually do possess by nature a right to religious liberty and, if they do, whether we should adopt the founders’ understanding of it to guide our understanding of political justice.
One can best approach these fundamental questions as they appear in our political and constitutional practice, which right now means addressing the availability of religious exemptions from laws that religious believers find burdensome. That is why my original post focused on Justice Scalia’s Smith opinion. Most of the symposium participants followed my lead and commented on the jurisprudential implications of my natural rights argument. I note this only to clarify that my underlying purpose is not to defend Justice Scalia in particular or explicate church-state originalism more generally (though I am sympathetic to both enterprises), but rather to attempt to think clearly about the existence and meaning of natural rights and to examine what natural rights constitutionalism might look like.
Don Drakeman perceptively picks up on this discrepancy by noticing that I presume the First Amendment protects the natural right of religious freedom. An originalist, he gently suggests, needs more evidence to substantiate this claim.
It’s a fair point, given that the First Amendment’s text does not use the term “natural right.” I know of no single document that reveals the drafters, ratifiers, average founder, and/or well-informed founder understood “free exercise” to be shorthand for “the natural right of religious liberty.” The difficulty with the Free Exercise Clause is that the text is underdetermined. “Free exercise” at the time was not a term of art and, as best I can determine, did not have a precise, commonly accepted constitutional meaning. As I have written elsewhere, I think evidence exists in the drafting record to suggest that “free exercise” was not understood to include a presumptive right to exemptions from generally applicable laws; but even if I am correct about that point, it still does not reveal what “free exercise” was understood to protect.
If the meaning of “free exercise” is indeterminate (I realize that this argument requires much more elaboration), the text must be “constructed” (in the sense of Keith Whittington’s use of the term). An originalist is led to ask: What construction of “religious free exercise” best reflects the founders’ constitutionalism of religious liberty? I have argued that the early founding-era state declarations of rights provide the best resources to answer that question. Church-state issues were primarily state issues at the time of the founding, and the early state declarations of rights contain the founders’ first principles. Those documents unmistakably reveal that the founders conceived religious liberty as an inalienable natural right. Professor Drakeman is right to notice that I am offering a natural rights construction of the Free Exercise Clause, not simply an originalist interpretation, but it is a construction that I believe best reflects the founders’ political philosophy.
Thomas Berg might accept the previous two paragraphs, but he rejects my interpretation of the early founding-era state declarations of rights. Following the distinguished jurist Michael McConnell, Professor Berg contends that these state charters anticipate exemptions, because their “peace and safety provisos” only make sense in light of a Sherbert-like interpretation of religious liberty. The provisos, he says, indicate the founders’ intentions to limit religious exercises only when they cause harm to others or society. This harm standard, he writes, “certainly contemplates exemptions and does not mean that a law gets a pass merely because it is generally applicable.”
I agree with Professor Berg that the founders sought to limit religious freedom (and, I would add, liberty more generally) only in those instances that cause harm to others or society. But this harm standard need not entail constitutionally-mandated exemptions. The founders’ classical liberalism held (1) everything is permitted that is not prohibited, and (2) the only activities that should be prohibited are those that harm others or society. Laws proscribing behavior were justifiable only if they prevented harm to others or society. The founders designed the Constitution to preserve liberty (including religious liberty) by discouraging bad laws from being passed (i.e. laws that restricted non-harmful behavior) and, in a few instances, imposing jurisdictional limits on state power. They did not understand constitutional rights to empower unelected judges to grant discretionary exemptions from laws that, in the judges’ view, caused no harm if not enforced.
It is simply not true, moreover, that the state “peace and safety provisos” only make sense in light of exemptions. In fact, once one realizes that the state declarations of rights were primarily statements of political principles and not (as Professors McConnell and Berg mistakenly assume) legally enforceable constitutional rules, one can see that the provisos were intended to describe the natural law limitations on natural rights. These concepts are somewhat foreign to us today but, as I try to explain in my Notre Dame Law Review article (see especially pp. 1409-16), they make perfect sense in light of the founders’ natural rights political philosophy.
We can set aside the state declarations of rights, however, and just focus on the actual text of the First Amendment. As I discussed in my original post and as Gerry Bradley emphasizes in his response, the First Amendment imposes a categorical ban on laws that prohibit the free exercise of religion. Nobody who takes the text seriously could plausibly interpret “Congress shall make no law . . . prohibiting the free exercise [of religion]” to mean “Congress shall make no law . . . prohibiting the free exercise [of religion] unless it has a compelling reason to do so and it uses properly tailored means when it does.” Doesn’t “no law” mean “no law?”
According to Justice Kennedy it doesn’t. As George Thomas points out,
Justice Kennedy’s Lukumi opinion ventures that “a law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” This sounds akin to a conditional approach to religious liberty, potentially taking us back to the days of mere toleration.
Professor Thomas is exactly right. Kennedy does take us back to conditional toleration and he breaks from the founders’ inalienable natural rights constitutionalism. Laws that target religious exercises as such should not “undergo the most rigorous scrutiny”—they should be struck down fully, completely, and without “balancing,” because they trespass the authority the American people granted to their government. Thomas Berg assures us that Kennedy’s “most rigorous scrutiny” approach practically guarantees that laws targeting religious exercises as such will always be struck down. His confidence reminds me of another Minnesotan, Senator Hubert Humphrey, who guaranteed that the 1964 Civil Rights Act “would prohibit preferential treatment for any particular group.”
Corey Brettschneider directs our attention to the Establishment Clause and suggests that while my account of the founders’ jurisdictional approach supports “weak” free exercise protections, it supports “expansive” separationism. I would use “limited,” not “weak,” to describe the jurisdictional approach to free exercise because, as I have just discussed, it offers categorical protection for a narrow (and exceedingly important) realm of activity. And I don’t think the inalienable natural right approach necessarily entails the Establishment Clause implications that Professor Brettschneider deduces.
Professor Brettschneider reasons that limits on secular authority in matters of worship provide government an expansive authority over secular matters. As a matter of constitutional logic, the conclusion he draws does not follow. To say that government may not regulate religious exercises does not affirmatively grant it jurisdiction over any other area of political life. Professor Brettschneider’s position assumes that whatever power is not explicitly withheld from government is possessed by government, but that is not the founders’ understanding. They held, following classical liberal social compact theory, that the state possesses only the authority given to it—what is not given is withheld. That jurisdiction over religious exercises as such is not granted says nothing about what is granted.
I agree with Professor Brettschneider, however, that an inalienable natural rights approach would have implications for issues typically litigated under the Establishment Clause. The state could neither proscribe nor prescribe religious exercises. It would certainly lack authority to punish an individual for not exercising a religion—e.g. a school child for refusing to participate in prayer or Bible readings at the beginning of the public school day—and it might lack authority to direct such events. James Madison hesitated to proclaim official days of prayer when he was president on account of his belief that doing so exercised an authority not given to government. If the state lacks authority over religious worship, he reasoned, it should not formally request citizens to pray, even if such prayers were offered voluntarily. Madison also believed religious tests for office—and would argue, I believe, that religious tests for immigration—violate natural rights constitutional principles for the same reason. Not all the founders’ agreed, of course. I have tried to explain elsewhere that while the founders generally agreed to natural rights principles, they disagreed about the application of those principles in particular areas of policy. Professor Thomas helpfully reminds us that we cannot and should not ignore history if we want to understand constitutional development. I would add that if we want to apply natural rights principles to contemporary constitutional questions, we have to think through those principles ourselves. We cannot simply follow the founders’ practices (or expected applications), in no small part because the founders disagreed among themselves and adopted different and contradictory practices.
Professor Brettschneider and Professor Rakove also suggest the jurisdictional approach might require the state to prevent “third-party harms” if the second party (e.g. Hobby Lobby) acts for religious reasons. I don’t think that follows. The state’s lack of jurisdiction over religious exercises does not require it to mandate that non-governmental actors refrain from exercising their religion or acting in ways consistent with their religious convictions. I do not see any necessary implications for “third-party” harms, one way or the other.
I’ve left Matthew Franck’s questions for last in part because they are so difficult to answer. Let me address his two most challenging ones: whether justice demands that the right of religious liberty protect different individuals differently, and whether “inalienability” is as precise a concept as I have presented.
Regarding the former, Dr. Franck asks if protecting religious liberty does not require that Quakers (and peyote users) deserve more robust protections on account of their particular religious tenets and practices. For Quakers, pacifism is an exercise of religion. Should not the right of religious free exercise, accordingly, include protections for pacifism, at least for them? Professor Franck’s underlying point is that justice may demand that the range of religious free exercise protections be determined by the individual rights-bearer, not by a universal notion of proper religious worship.
One can conceive a right to religious liberty that is defined subjectively as opposed to objectively such that the right’s scope is determined by the religious beliefs and practices of those who claim its protections. Martha Nussbaum offers a leading example in Liberty of Conscience. Such a right, however, requires a different philosophical foundation than that offered by the founders. As I attempt to explain in my APSR article (see p. 370), Madison derives the right of religious liberty from an understanding of the type of worship that is due the Creator. He grounds his understanding of proper worship in human nature. Religious free exercise is a natural right precisely in the sense that it is derived from man’s universal human nature. The scope of the right, accordingly, is established objectively by our rational understanding of human nature, not subjectively by the individual’s own conception of what is due to God. As I discuss at the end of my APSR article, I believe that there is much to be said for a subjective, exemptionist approach to religious freedom, though we should recognize that it breaks from the founders’ natural rights social compact constitutionalism.
The founders thought that individuals enter a social compact to better protect their natural rights, including their right to life. To be full members of the political community and enjoy its advantages and protections, individuals must be willing to accept the obligations of citizenship. One of the most basic obligations of citizenship is a willingness to fight in defense of one’s community. If individuals are unwilling to accept that obligation, they can exercise their natural right to emigrate and disassociate from the political community. The ability to exit the political community is all that justice demands, at least according to the founders’ natural rights constitutionalism. That may seem harsh, but justice sometimes seems harsh.
Dr. Franck also asks whether “inalienable” means or requires the absence of jurisdiction. The Declaration of Independence declares life, liberty, and the pursuit of happiness to be “unalienable” rights; nonetheless, he points out, “all three of these unalienable rights—taking one instance of the pursuit of happiness, namely the acquisition of property—may be forfeited by our conduct under perfectly just laws, so long as the government supplies us with ‘due process of law’ before depriving us of them.”
Let me clarify two points, which will then allow me to address the heart of the objection.
First, the concepts of alienation and forfeiture are distinct in social compact theory. One alienates a right when one voluntarily cedes authority over it. One forfeits the ability to exercise a right when one acts contrary to the natural law (or civil law within civil society) and, as a result, others no are no longer bound to respect one’s rights. Alienation of rights pertains to the establishment of legitimate government; forfeiture of rights pertains to corrective justice.
Secondly, the natural right to property, precisely speaking, is not inalienable. The natural right to acquire property can be captured, in part, by the rule, “A man rightfully owns the fruit of his own labor.” But what constitutes sufficient labor to make something one’s own? If I shoot an arrow that injures but does not kill an animal in a hunt, is it mine? Or does it belong to my companion who lands the decisive blow? When we alienate our right to property, we agree to turn over such questions to civil society and the government formed to rule it. The underlying natural-rights rule that “a man rightfully owns the fruit of his own labor” is still operative within civil society, but the law determines the precise rules for what constitutes ownership and labor. It also sets forth rules to adjudicate disputes over such matters. In civil society, individuals no longer retain their natural authority to prosecute their natural right to property—what Locke calls the executive power of the state of nature—because they have alienated that executive power.
Religious exercises are inalienable because, unlike our right to acquire property, it would never be reasonable or to our advantage to delegate to the state our natural executive authority to make determinations about the exercise of our religion. The nature of religious obligation makes its exercise an inalienable natural right (see p. 370 of my APSR article for an explanation of this point).
Let’s turn to the first right mentioned by Dr. Franck, the natural right to life. If we take the natural right to life to mean self-defense, then it would be alienable. In civil society, we rely on the police powers of the state to defend ourselves. But if the right to life is conceived more narrowly in the sense of life or death—call it the right to live—then the natural right to live is inalienable. It would never be reasonable for us to turn over to civil society and its government discretionary authority to determine whether we live or die. The requirement of “due process of law” is meant to ensure that the state can deprive us of life only as a matter of corrective justice—that is, when we have forfeited our right to life on account of unjust acts. Again, alienation and forfeiture are distinct concepts. We can forfeit our right to live, but we cannot alienate it.
We can think about the right to liberty is the same way. If liberty is conceived narrowly in the sense of freedom versus slavery, it would never be reasonable for us to give the state discretionary authority to enslave us. Liberty in the sense of not being a slave is an inalienable right.
Religious exercise, life, and liberty are different from property in the following sense: it is reasonable for us to turn decision-making authority over to a government to establish precise rules for the acquisition of property; it is not reasonable for individuals to give to government the power to determine what constitutes proper worship for them, what constitutes their worthiness to live, and whether they can be made slaves.
I mentioned that my underlying scholarly aim is to think clearly about natural rights. I’ll let others judge the adequacy of my thoughts. But once again, let me thank the Center for Law and Religion and its directors for the forum to share them and the symposium participants for exchanging their thoughts with me.
 In his post, Professor Drakeman asked if my jurisdictional approach would disable the judiciary from remedying encroachments upon the inalienable right of religious freedom. It would not. The judiciary would be obligated to enforce constitutional limitations on delegated power by striking down exercises of undelegated power.
 Since I’m writing this in the gym, let me offer a basketball analogy. If a coach bans a basketball player from shooting three-pointers, it does not mean he gives the player a green light to shoot two-pointers. It may be that the coach just wants the player to shoot less and, specifically, that he doesn’t want the player jacking up threes.
 Madison did issue four such proclamations, but after he left the presidency he said that his own actions were unconstitutional. See Vincent Phillip Muñoz, God and the Founders: Madison, Washington, and Jefferson (New York: Cambridge University Press, 2009), 42-43.
 Unlike Professor Rakove, I see Madison’s defense of religious liberty primarily grounded primarily in natural theology, though this is not to say that Madison understood the dictates of natural theology as opposed or in contradiction with Protestantism.
 If one takes Locke’s teaching against suicide seriously, the right to live is inalienable because we do not possess authority over the choice to live. One cannot give away what one does not possess.