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God and the Founders


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God and the Founders
Cambridge University Press
9780521515153 - God and the Founders - Madison, Washington, and Jefferson - By VINCENT PHILLIP MUÑOZ

Introduction: The Founders, Religious Freedom, and the First Amendment’s Religion Clauses

First Amendment religion jurisprudence may have reached the height of its incomprehensibility on the last day of the Supreme Court’s 2004 term. Faced with two separate cases involving public displays of the Ten Commandments, the Court found postings of the Commandments in Kentucky courthouses unconstitutional but ruled a Ten Commandments monument on the grounds of the Texas state capitol constitutional. In the two cases, the nine justices issued ten separate opinions totaling 140 pages to explain their different positions. With one exception, every opinion included significant claims about the intentions of the Founding Fathers, and Justice Stephen Breyer’s opinion – the only one that did not discuss the Founders – cited Tocqueville. Despite their common reliance on history, the ten opinions invoked at least four different tests to determine the outcomes of the cases – the “Lemon” test, prevention of “civic divisiveness” along religious lines, no “endorsement,” and no “legal coercion” – a disagreement that reflected the justices’ divergent interpretations of the Founders. David Souter, who wrote the majority opinion in the case that struck down the courthouse displays, claimed that the Founders’ intentions made state-sponsored postings of the Ten Commandments unconstitutional. Looking at the same history, Antonin Scalia and Clarence Thomas reached the opposite conclusion.

The Court’s confusing decisions regarding the Ten Commandments are emblematic of its church-state jurisprudence. For more than sixty years, the Constitution’s protection of religious liberty has vexed the judiciary, spawning case law mired in bad history, unpersuasive precedents, and incongruous rulings. The Court’s inability to settle church-state questions decisively has led

to confusion about the meaning of the First Amendment and has made church-state relations an enduring theater in the nation’s culture war, a battle that flares up with almost every Supreme Court religious liberty decision.

One might have expected that by now the Founders’ views would be well understood and the meaning of the Constitution’s religion clauses would be decided. The Supreme Court first turned to Jefferson to elucidate the Free Exercise Clause in 1878, and since the landmark Establishment Clause case Everson v. Board of Education in 1947, both liberal and conservative jurists have repeatedly appealed to the Founding Fathers to guide church-state jurisprudence.1 The last three generations of scholarship and constitutional argument, however, have failed to resolve the historical record. If anything, the opposite has happened. Scholars and judges are more divided now than ever on how the Founders intended to protect religious liberty and what they meant by the separation of church and state. Those on the left often claim that the Founders were skeptical deists who sought to erect an impenetrable wall of separation. Their counterparts on the right regularly contend that the Founders were religious men who expected a Christian spirit to infuse American political and public life.

Previous studies have failed because they have been too focused on utilizing the Founders and insufficiently interested in understanding them. In an effort to influence constitutional decision-making, most interpreters have accepted a paradigm established by the Supreme Court’s twentieth-century Establishment Clause jurisprudence and, accordingly, have tried to categorize the Founders as either “strict separationists,” who would not allow government support of religion, or “nonpreferentialists,” who would allow such support on a nondiscriminatory basis. This approach has failed because the leading Founders did not address questions of church and state through the separationist/nonpreferentialist dichotomy. Grafting twentieth-century legal categories onto eighteenth-century texts has led to distortions of the Founders’ positions. A methodological assumption of originalist jurisprudence, moreover, has led historical studies astray. Originalism presumes that each provision of the Constitution has one definitive original meaning and that that meaning should govern contemporary constitutional disputes. Its use in church-state jurisprudence has led to the assumption that because each of the religion clauses of the First Amendment must have one original

meaning, the Founders more generally shared a uniform understanding of the proper relationship between church and state. But as this book attempts to demonstrate, the leading Founders disagreed about the meaning of religious freedom and how church and state ought to be separated. Ironically, the use of the Founders in modern legal disputes has created categories of thought and an approach to history that does not and cannot understand the Founders correctly.

This book attempts to set the historical record straight for three of America’s leading Founding Fathers: James Madison, George Washington, and Thomas Jefferson. I argue that none of these Founders embraced strict separationism or nonpreferentialism as those positions are typically understood. Moreover, I contend that Madison, Washington, and Jefferson disagreed about the separation of church and state and embraced different understandings of the right to religious liberty. When we let go of the strict separationist/nonpreferentialist dichotomy and abandon the assumption that the Founders shared a uniform understanding of church-state separation, we can start to understand individual Founders more precisely and with greater accuracy.

Before proceeding, let me anticipate two objections to the focus of this study, which may help to clarify this book’s scope and purposes. Readers who are primarily concerned with consulting history to adjudicate constitutional jurisprudence – we can call them “originalists” – might discount the importance of Madison, Washington, and Jefferson as individual political thinkers. For most originalists what matters is the original meaning of the Constitution’s text, not the political thought of individual Founders.2 Other readers – let us call them “progressives” – might contend that a concern with the Founders is misguided, especially if the Founders themselves disagreed about church-state matters. Progressives are more interested in settling contemporary disagreements in light of contemporary values. Why attempt to understand admittedly difficult historical records, progressives might ask, if the end result is only to discover that the Founders, too, disagreed about church-state matters?

In partial response to the originalists, let me make clear that this book does not attempt to uncover the original meaning of the First Amendment’s

religion clauses. By articulating Madison’s, Washington’s, and Jefferson’s understandings of religious freedom, I am not claiming that any one of these Founders’ individual positions represents the original meaning of the First Amendment. I will address the First Amendment’s original meaning in a sequel to this volume.3 This book does, however, have implications for originalist constitutional arguments. Madison, Washington, and Jefferson have been used by originalists in their attempts to articulate the original meaning of the religion clauses. To the extent that they misinterpret the leading Founders as individuals, originalist legal arguments lie on erroneous historical grounds. And, as already mentioned, originalist scholarship and jurisprudence tend to assume that the leading Founders shared a uniform understanding of the separation of church and state. This book attempts to show that that assumption is mistaken. Because the leading Founders disagreed, no one Founder can be cited to represent “the Founders’ position.”

A more complete response to the originalists also contains my response to the progressives. Somewhat ironically from the progressive point of view, it involves identifying what I believe to be a deep philosophical problem with the usual defense of originalism. A review of recent books on the subject states the problem succinctly:

At the end of the day, words in a legal text, without more, cannot carry the philosophical weight that originalists place upon them. It is one thing to point out, as originalists do most effectively, that such-and-such a phrase had, and was meant to have, a particular, relatively fixed meaning at the time of its adoption. Persuading others that the identified meaning has, or should have, binding effect in our own day is another argument altogether. Ultimately, that argument must rest on the reaffirmation of the enduring, self-evident truths that must undergird the case for limited government, that is, on premises that are not explicitly identified in the constitutional text itself. A true originalism, in short, must look beyond the Constitution to justify the ground of its intellectual authority.4

One of the most well-known justifications for originalism was set forth by Attorney General Edwin Meese, who, in 1985 in a series of speeches explaining the Reagan White House’s judicial philosophy, defended originalism in

terms of democratic willfulness. “[B]elief in a Jurisprudence of Original Intention,” Meese said, reflects “a deeply rooted commitment to the idea of democracy. … The Constitution is the fundamental will of the people; that is why it is the fundamental law.”5 In Meese’s view, what justifies originalism and the use of the Founders’ political theory for constitutional jurisprudence is the historical fact that the Constitution and Bill of Rights were willed by the American people. But, of course, only a fraction of the American people actually voted to ratify those documents, and no American living today has cast such a vote. If the will of the American people is the primary basis for constitutional authority, then it would seem that the will of contemporary democratic majorities ought to govern our fundamental law. In the name of democracy, Meese’s position binds the living by the votes of the dead, which is an odd understanding of democracy to say the least.6

Whatever its merits, Meese’s view is insufficient. The Constitution may have legal authority because it was originally willed by the people, but its contemporary moral authority cannot rest on those grounds alone. If the Founders’ constitutionalism is worthy of respect today, it is because the rules it establishes and the rights it protects embody fundamental principles of justice, not because a powerful elite voted for the Constitution more than 200 years ago. The Founders’ ideas should govern us today only to the extent that they are persuasive. To determine the extent to which their political theories are rationally defensible, we must attempt to understand them and the arguments that the Founders set forth in their defense.

Progressives discount such efforts because they believe history itself is progressive, making old ideas obsolete. The progressive position concludes the inquiry without having made it. The Founders may, in fact, be outdated, but to reach that conclusion we have to understand their arguments and explain why they are wrong or why they are no longer relevant. My response to the progressives is thus the same as my response to the originalists: Whether we are to follow the Founders (as originalists assume we should) or to dismiss them (as progressives assume we should), we have to

understand the Founders and judge the merits of their ideas. This book attempts to undertake that project for the church-state political philosophies of James Madison, George Washington, and Thomas Jefferson.

On the topic of religious liberty, the leading Founders also deserve our attention for another related reason. Around the same time that Thomas Jefferson wrote the “self-evident” truths of the Declaration of Independence, a young James Madison rewrote the religious freedom provision of the Virginia Declaration of Rights. George Mason’s initial draft of the Virginia bill of rights had declared, “all Men should enjoy the fullest Toleration in the Exercise of Religion.” Madison thought the language of “toleration” was inappropriate for citizens, who possessed rights by nature. He proposed instead, “all men are equally entitled to the full and free exercise of [religion].” In amended form, Madison’s language would eventually appear in Article XVI of the 1776 Virginia Declaration of Rights and in the First Amendment of the United States Constitution. Perhaps thinking of Madison’s revision of Mason’s draft, George Washington wrote to a Jewish congregation a decade later, “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.…”7

Jefferson, Madison, and Washington did not believe that individuals possessed the right to religious liberty because it was willed by a democratic majority. Whatever their differences about church and state, all three Founders understood religious liberty to involve natural rights and, therefore, necessarily to limit the will of any just majority. We still use the language of rights today, but the idea of “natural rights” no longer holds much currency in America’s law schools or among most contemporary political theorists. Whether the right to religious liberty can be defended persuasively without recurring to natural rights, however, is at least an open question and perhaps doubtful.

That partisans of liberal democracy need to articulate a defense of religious liberty is not in question or doubtful. In the first days of the twenty-first century, the world witnessed unspeakable acts of violence committed in the name of religion. As I write this, the United States is engaged in a costly war to bring freedom, including some forms of religious freedom, to a part of the world that has never embraced it. It would be naïve to think that arguments alone can win wars or deter those who would kill in the

name of God. But if we wish to distinguish waging war in the name of freedom from terrorist acts committed out of religious fanaticism, we must be able to give an account of the freedoms that liberal democracies cherish and seek to spread. We must be able to explain why religious freedom is good and why it involves rights that belong to all individuals. Merely holding it as one of “our fundamental values” will never be persuasive to those who hold different values than we do, nor will it sustain the type of commitment and sacrifice needed to preserve freedom for ourselves or to secure it for others.

When the American Founders attempted to defend religious freedom, they turned to natural rights arguments.8 Even if it is intellectually unfashionable, that path remains open to us today. We might consider traveling it not only because individuals actually may possess rights to religious freedom by nature but also because the idea of natural rights has profoundly aided the cause of human freedom. It is said that ideas have consequences, but for any idea to have consequences it must be articulated and understood. In American history, no three men did more to articulate and to constitutionally protect the natural right to religious freedom than Madison, Washington, and Jefferson. Their individual political thoughts and deeds may not reflect the original meaning of the First Amendment’s religion clauses, but they help to illuminate the meaning of the right that the First Amendment seeks to protect. This study turns to Madison, Washington, and Jefferson because in coming to understand what they thought, what they did, and how they disagreed, we can think more clearly and more deeply about what it might mean for individuals to possess a natural right to religious liberty and how that right can be constitutionally protected.


This book contends that if any of the Founders are to be consulted to guide contemporary church-state questions, it should be because of the profundity of their thought, not because of their status as the Constitution’s authors. The book argues that Madison, Washington, and Jefferson disagreed about the proper relationship between church and state. While each of these Founders believed that religious freedom included natural rights, they

disagreed about what those rights consisted of and how they ought to be protected constitutionally. Part I consists of three chapters that explore, respectively, James Madison’s, George Washington’s, and Thomas Jefferson’s different understandings of the right to religious freedom. Madison and Jefferson are selected for study because of their Herculean efforts to establish religious freedom in Virginia and in America. Washington is considered because he embodies the leading alternative to Madison and Jefferson. Others might have been discussed to reflect this alternative position – John Adams, for example – but as the first president, Washington established many of the constitutional precedents that individuals like Adams followed. Since Madison, Washington, and Jefferson understood the meaning of religious freedom differently, Chapters 1, 2, and 3 place particular emphasis on how each Founder defended religious freedom as a natural right. These chapters also attempt to explain how the Founders’ different understandings of the right lead to their different positions on the proper relationship between church and state.

Part II of this work applies the Founders’ positions to leading church-state constitutional issues. Chapter 4 attempts to extrapolate legal doctrines from the church-state philosophies of each Founder. Chapters 5 and 6 then apply those doctrines to modern church-state constitutional law. Rather than use hypothetical issues or facts, I attempt to explain how the Founders’ different positions would have adjudicated actual cases that have come before the Supreme Court. Chapter 5 applies the Founders’ doctrines to nineteen different Establishment Clause cases. Chapter 6 applies the Founders’ doctrines to sixteen different Free Exercise Clause cases. The use of actual case law helps to clarify the Founders’ different positions and reveals how and when Madison, Washington, and Jefferson agreed and disagreed.

The book concludes by comparing the Founders’ different jurisprudential results with those reached by the Supreme Court and with the votes of a select group of Supreme Court justices who have been particularly influential on church-state questions. The concluding chapter also contains my evaluation of the strengths and weaknesses of each Founder’s doctrine and a brief proposal as to how the Founders might best be employed to help guide contemporary church-state jurisprudence.

1 According to Mark David Hall, between 1878 and 2005, Supreme Court justices made more than 200 different appeals to the Founders in First Amendment religious liberty judicial opinions. See Mark David Hall, “Jeffersonian Walls and Madisonian Lines: The Supreme Court’s Use of History in Religious Clause Cases,” Oregon Law Review 85, no. 2 (2006): 568.

2 For a discussion of the history and varieties of originalism, see Vasan Kesavan and Michael Stokes Paulsen, “The Interpretive Force of the Constitution’s Secret Drafting History,” Georgetown Law Journal 91 (2003): 1134–48; Keith E. Whittington, “The New Originalism,” Georgetown Journal of Law and Public Policy 2 (2004): 599–613; Jonathan O’Neill, Originalism in American Law and Politics: A Constitutional History (Baltimore: The Johns Hopkins University Press, 2005).

3 For initial statements of my interpretations of the original meanings of the First Amendment’s religion clauses, see: Vincent Phillip Muñoz, “The Original Meaning of the Establishment Clause and the Impossibility of its Incorporation,” University of Pennsylvania Journal of Constitutional Law 8, no. 4 (2006): 585–639; Vincent Phillip Muñoz, “The Original Meaning of the Free Exercise Clause: The Evidence From the First Congress,” Harvard Journal of Law and Public Policy 31, no. 3 (2008): 1083–1120.

4 Michael Uhlmann, “The Supreme Court v. the Constitution of the United States of America,” Claremont Review of Books 6, no. 3 (Summer 2006): 37.

5 Edwin Meese, speech before the American Bar Association, July 9, 1985, in The Great Debate: Interpreting Our Written Constitution (Washington, DC: The Federalist Society, 1986), 9.

6 For different criticisms of Meese’s position, see: William J. Brennan, Jr., “The Constitution of the United States: Contemporary Ratification,” in Interpreting the Constitution: The Debate Over Original Intent, ed. Jack Rakove (Boston: Northeastern University Press, 1990), 23–34; Harry V. Jaffa, Original Intent and the Framers of the Constitution (Washington, DC: Regnery Gateway, 1994), 55–73. For a more recent defense of originalism, see Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence: University Press of Kansas, 1999).

7 George Washington to the Hebrew Congregation in Newport, Rhode Island, August 18, 1790, Papers of George Washington, Presidential Series, ed. Mark A. Mastromarino (Charlottesville: University Press of Virginia, 1996), 6:285.

8 For a general discussion of the place of natural rights in the Founders’ political theory, including the relationship between the Founders’ political theory and Protestantism, see Michael P. Zuckert, The Natural Rights Republic (Notre Dame, IN: University of Notre Dame Press, 1996).

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