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Faith in Government

The strikingly divergent opinions of the Founders.

May 17, 2010, Vol. 15, No. 33 • By RYAN T. ANDERSON
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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.

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