To be honest, writing a critical review of Phillip Muñoz’s American Liberty and the American Founding was a painful task. It was painful in part because I sincerely admire Muñoz and his scholarship, and in part because within the prescribed word limits (which I struggled against, and exceeded as flagrantly as I was allowed to) it was impossible adequately to acknowledge the book’s considerable virtues or to do justice to the intricacy of the argument. I agreed to undertake the task anyway mainly because, as Muñoz says, “the stakes are high.”
More specifically, religious freedom is now an embattled commitment: prominent officials, scholars, and others contend that constitutional protections for religious freedom should be withdrawn or at least minimized. Muñoz provides support to this minimizing project by arguing, basically, that the Constitution’s free exercise clause should be understood to protect only religious worship “as such.” Free exercise would not protect—not even presumptively—a person’s right to live in accordance with his religion; indeed, it would not even protect worship so long as government is not regulating it “as such”—i.e. as worship. As a practical matter, this position would give the contemporary secularist opponents of religious freedom pretty much everything they want. And the fact that Muñoz himself seems genuinely friendly to religion and religious freedom, and purports to be applying the natural rights philosophy of the framers, will make his book all the more welcome to those who would shrink constitutional protection for religious freedom.
But I don’t for a moment suspect Muñoz of being some closet collaborator with the opponents of religious freedom. He contends for his minimalist conclusions because he believes that is where the evidence and the analysis lead. I admire that integrity, and if I found Muñoz’s argument persuasive, I would reluctantly join in his constitutional conclusions, unwelcome as they might be. Unfortunately (or rather fortunately), the argument is not persuasive—not to me anyway.
My reasons for remaining unpersuaded, however, are not those that Muñoz ascribes to me. I am not some nihilistic skeptic about natural law, rights, or “premodern thinking.” The opposite is closer to the truth (and indeed, I have more than once been accused of “premodern thinking”). The problem with the natural rights reasoning favored by Muñoz is not that it is premodern, but rather that it is not premodern enough. Thus, as I have argued repeatedly elsewhere, many modern forms of reasoning may be rhetorically useful and may (or may not) be enlisted in behalf of sound conclusions; and yet these forms of reasoning lack cogency because they do not acknowledge the deeper (and, if you like, “premodern”) ethical and ontological presuppositions on which they implicitly depend. This criticism applies, I think, to the “state-of-nature, social-contract” rhetoric that was part—only part—of the discursive repertoire sometimes employed by people like Locke, Madison, and Jefferson, but that is the central theme in Muñoz’s interpretation of religious freedom.
How so? Well, here is a shamelessly brief diagnosis. In a Thomistic conception, natural law rested on an understanding that the cosmos had been created by God for an exalted purpose and according to a providential plan or order. The part of the providential plan or order that applied to human beings and that was discernible by human reason was the “natural law.” By the time of Locke and Jefferson, however, this Thomistic conception was somewhat out of fashion. (Actually, the theistic conception itself was not wholly out of fashion; and Locke and Jefferson appealed to providentialist or theistic assumptions much more frequently and confidently than their modern, secularist interpreters acknowledge.) So then, insofar as the natural laws of a providential order were no longer acceptable grounds for political prescriptions and principles, what could serve as the basis for such prescriptions and principles? To some, an imagined pre-political condition from which we imaginatively emerged through an imagined “social contract” seemed to provide a serviceable substitute. Instead of starting with a providential order, we could start with a “state of nature.” And instead of classical “natural law” we had modern or Enlightened “natural rights” that had been reserved in the fictional contract.
And yet the “state of nature” substitute had its drawbacks. One serious drawback was that the pre-political condition and the social contract were made up; and so they could be, and can be, made up to suit the particular theorist’s or advocate’s preferred conclusions. Even if those conclusions happen to be sound, the social contract story does not really explain why they are sound. And if you disagree with some theorist’s particular conclusions, you can just make up your own contract with more favorable terms.
In his response, Muñoz appears to acknowledge this limitation. Natural rights thinking is valuable not as history, he says, but as philosophy. He does not explain, so far as I can see, how or why talking about a fictional state of nature and social contract is a sensible way to do philosophy; but he does make clear that this is all a way of presenting the crucial philosophical claim—namely, that “all men are created equal.” Fine; and yet that is a claim that I along with most people today take as given. Its relevant implication in this context is that the right to religious freedom, whether we construe the right more broadly (with Professor McConnell and Justice Alito—and, it seems, James Madison) or more narrowly (with Professor Muñoz), will apply to all citizens equally. The problem, in my view, is that there is no way to get from the premise that “all men are created equal” to the conclusion that religious freedom covers “worship as such” but not religious conduct.
As explained in my initial review, Muñoz tries to make the leap through the logic of “inalienability.” But that logic is flawed; indeed, it does not satisfactorily explain why even worship must be protected.
Despite his generally originalist approach, Muñoz also emphasizes in his response that what matters most is not what the framers did or intended but rather what conclusions can be justified by sound reasoning today. Fair enough. But then the reasoning that Muñoz gives for his exceedingly narrow and otherwise unattractive version of religious freedom pretty much consists of the deductions he draws from of the story he tells about the imaginary social contract.
I sincerely hope that nothing I’ve said here is taken as discounting the valuable historical contribution that Muñoz’s book provides. Among other things, the book offers numerous insights into the drafting of the religion clauses, whether or not one ultimately finds his interpretations of those clauses persuasive. As I noted in my initial review, his close analysis of the legislative history of the establishment clause is as careful and incisive as any I have seen (and notably superior to my own attempts to treat the same subject). More generally, the book helps illuminate the “social contract–natural rights” style of reasoning that was undoubtedly influential at the Founding.
But I find it hard to follow—or, for that matter, to fathom—when this sort of reasoning from fictions is deployed normatively to justify contemporary prescriptions that would otherwise seem unjust or undesirable. This use of “natural rights” seems like a gratuitously self-inflicted wound. It is the more gratuitous given that, as Muñoz acknowledges, some of the important Founders (including Madison) used the same social contract reasoning to defend a more generous version of religious freedom than the narrow version Muñoz endorses.
In the end, though, Muñoz is right: his analysis and evidence are more complex than a brief review can convey. Among other omissions, I have been unable to engage with Muñoz’s interesting claims that rights should be categorical rather than presumptive, that democratic protection of religious freedom is preferable to judicial protection under the Constitution, and that tradition should not serve as a significant criterion in the fashioning of the constitutional right. Each of these claims does significant work in the overall argument; and each is in its own right deserving of serious reflection.
So those who are interested in this vital topic should read the book. And because “the stakes are high,” as Muñoz correctly says, readers should study his argument carefully, and critically, and should compare it to the contrary interpretations and evidence offered by Professor McConnell and Justice Alito. Verdicts will differ—don’t they always?—but I know which interpretation I find more persuasive.