Faith in Government
The strikingly divergent opinions of the Founders.
May 17, 2010, Vol. 15, No. 33 • By RYAN T. ANDERSON
God and the Founders
Photo Credit: AP
Madison, Washington, and Jefferson
Everybody wants the Founding Fathers on their side, especially when it comes to First Amendment jurisprudence. Want to promote religion in the public square and the necessity of religion for good morals and politics? Just pull out a few choice quotations from George Washington’s Farewell Address, or his public proclamations of days of prayer and thanksgiving. Want to defend your secularism or rationalism? Just refer to Thomas Jefferson’s “wall of separation,” or his redacted Bible. Want to split the difference and push governmental impartiality among religions, and between religion and non-religion? Why, just invoke (incorrectly, as we’ll see) the authority of James Madison and his famous “Memorial and Remonstrance.”
Perhaps this helps explain why questions of religion and politics are so messy in American public life—and even messier in today’s Supreme Court jurisprudence. Consider how, on the same day in 2005, the Court issued two different 5-4 decisions on cases involving public displays of the Ten Commandments. The Court allowed a Texas state capitol Decalogue monument but ruled against Kentucky courthouse postings of the same—repeatedly invoking the Founders in both majority and dissenting opinions. The merits of each case aside, how could educated and intelligent judges repeatedly disagree with each other, all the while claiming that the Founders are on their side?
The answer, according to Vincent Phillip Munoz, professor of political science at Notre Dame, is simple: There is no view that belongs to “the Founders” as such, and any attempt to treat them as one is destined to fail. In what is sure to become required reading for anyone working in the field, God and the Founders, Munoz explains how our misreading of the Founders has led to 60 years of incomprehensible jurisprudence. He carefully studies the historical record to tease out the philosophies on religion of our three most prominent Founders: Washington, Jefferson, and Madison. Beyond simply noting their intellectual diversity, Munoz does something quite helpful: He interprets them correctly, which is no small feat when it comes to this topic.
Though touted as the Father of our Country, George Washington is regularly overlooked by scholars doing work on church-state relations—in part because the Supreme Court, in its landmark 1947 case Everson v. Board of Education, assumed that the Founders agreed on religion and that Madison and Jefferson (themselves agreeing, the Court assumed, on strict separation) therefore spoke for them all. But Washington’s neglect can also be explained by his never having written extended treatises on the topic: His views have to be pieced together from his letters and actions. Trudging through this material, Munoz concludes that “Washington consistently sought to use governmental authority to encourage religion and to foster the religious character of the American people.” Washington’s theory was simple: Since republican self-government was impossible without moral virtue, and moral virtue impossible without religion, the state had a legitimate interest in promoting religion. So long as the state’s action was broadly ecumenical (not favoring any particular sect), and didn’t force anyone to worship against their will, the good of religion could be promoted without violating religious liberty. At the same time, since civic goods and the obligations of citizenship reigned supreme for Washington, an individual’s right to free exercise of religion could be limited as the public order required.
If George Washington thought religion could be promoted for its civic value, Thomas Jefferson took a similarly instrumental approach to church-state relations. The difference is that Jefferson looked askance on organized religion. On his accounting, the state could promote religion, provided it was of the right, rationalist sort. But what, then, of the most famous of all Jeffersonian quips about the wall of separation? As Munoz carefully documents, Jefferson meant it to separate church and state, not religion and state. In particular, the wall was to “impede a specific type of religious belief and to suppress a particular type of religious influence”—namely, ecclesiastical clergy of the orthodox variety.
Taking a quite different tack from Washington, Jefferson argued that history “furnishes no example of a priest-ridden people maintaining a free civil government.” The state, then, could try to diminish this type of religion and promote a healthy alternative. But because Jefferson was a staunch defender of religious liberty—a natural right, in his book, based upon his Lockean religious epistemology—he thought that the state could do so only in noncoercive ways, without punishing citizens for their beliefs or affecting their civil rights. After exploring the intricacies of Jefferson’s theory, Munoz diligently documents how Jefferson the statesman diverged from it in practice.
Although much attention has been paid to the father of the Constitution, James Madison, few really understand his theory of religious liberty and church-state relations. Thankfully, Munoz is one of the few. Responding to the claims of Everson, both the late Chief Justice William Rehnquist and Justice Clarence Thomas have argued that Madison’s argument in the “Memorial and Remonstrance” was for nonpreferentialism—the view that the state can favor religion so long as it plays no favorites with any sects. Justice David Souter has countered that the “Memorial” argument was really separationist—that Everson was right after all. Meanwhile, Justice Sandra Day O’Connor has argued that, on Madison’s view, if a generally applicable law conflicted with some people’s religious obligations, the constitutional protection of the free exercise of religion required granting them exemptions.
But none of these opinions is correct. The key, Munoz argues, is to recognize the social-compact framework at the heart of the “Memorial.” According to that Madisonian framework, people leave the state of nature and enter into political community without in any way bringing their religious beliefs or practices into the social contract. For Madison, religious liberty is inalienable and requires the state never to recognize religion, as such, for any purpose, positive or negative. Rather than building a wall of separation—which would entail recognizing religion, if only to exclude it—Munoz argues that Madison thought the solution was “state noncognizance of religion.” Whereas Jefferson wouldn’t want clergy receiving state monies, Madison would say that their clerical status must not be taken into account: They should be judged for eligibility on the same basis as other civic groups.
After delineating the philosophies and practices of Washington, Jefferson, and Madison, Munoz turns to some recent Supreme Court jurisprudence. He translates his historical analyses into workable judicial precepts and applies these Washingtonian, Jeffersonian, and Madisonian legal theories to some 34 cases involving establishment or free exercise disputes. Unsurprisingly, we discover that not only do these three Founders more frequently than not disagree among themselves; they also disagree with our contemporary Supreme Court about half the time—which is what one would expect when the Court picks a Founder to cite based on its preferred outcome.
Munoz concludes with short evaluations of the three Founders’ views, finally endorsing a modified Madisonian theory—which he calls “no legal privileges, no legal penalties”—as the best. But best in what sense? Munoz never quite says. It can’t be best in a historical sense, for none of the Founders actually articulated it. Is it best in the practical sense that it gives us the results we most want? Or is it best in the philosophical sense of being the most reasonable? In any case, is Munoz’s modified Madisonian theory of any relevance to our actual Constitution? Philosophical soundness or practical value would not make it the principle that We the People duly ratified.
Which raises another question: Why write this book? Clearing away the weeds in the historical record is always a good thing, for which we are in his debt; but what are the practical and contemporary jurisprudential applications? The second half of God and the Founders deals exclusively with recent case law and reviews how using these Founders as interpretive keys to the First Amendment might help settle the disputes. But this is an odd approach to constitutional interpretation, especially for original-meaning constitutionalists. What matters is not what the Founders thought, or even what they might have intended, but what the Constitution meant to the Americans who ratified it.
For those who take constitutional republicanism seriously, the critical consideration is what We the People agreed to when we ratified the Constitution. Washingtonian, Jeffersonian, and Madisonian philosophies, as such, were never up for ratification. And it is implausible that the citizens of the early republic, or their representatives, were consenting to any of these philosophies. Clearly, for example, Americans eschewed Madisonian noncognizance when they demanded that President Madison declare “a day of public humiliation and fasting and of prayer to Almighty God,” or when they hired state-funded military and congressional chaplains. One must investigate, rather, the principles that the citizens understood themselves to be endorsing when they ratified the Constitution: If one doesn’t like the results, one can change the Constitution through the agreed-upon measures. Anything less fails to take constitutional republicanism—or the people’s right to self-determination—seriously.
Twice, Munoz suggests that he is sensitive to this criticism, promising to explore the original meaning of the First Amendment in his next study. That forthcoming volume will be important—especially since claiming the Founders as a whole for one’s side may be not only irrelevant to sound jurisprudence but, as Munoz shows us here, impossible as well.
Ryan T. Anderson is editor of the website forum Public Discourse: Ethics, Law, and the Common Good.
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