If religious liberty does not mean exemptions, what might it mean? The Founders' constitutionalism of the inalienable rights of religious liberty.

• Author: Munoz, Vincent Phillip
• Position: Religious Liberty and the Free Society: Celebrating 50 Years of 'Dignitatis Humanae'

Is religion special, and does it, accordingly, deserve unique constitutional protections? A number of leading scholars say it is not, and it doesn't. In his recent thought-provoking article, What if Religion Is Not Special?, Micah Schwartzman contends that "religion cannot be distinguished from many other beliefs and practices as warranting special constitutional treatment." (1) Christopher Eisgruber's and Lawrence Sager's conception of "Equal Liberty" similarly "denies that religion is ... a category of human experience that demands special benefits and/or necessitates special restrictions." (2) Jocelyn Maclure and Charles Taylor espouse what is probably the prevailing position among contemporary political and legal theorists: "Within the context of contemporary societies marked by moral and religious diversity, it is not religious convictions in themselves that must enjoy a special status but, rather, all core beliefs that allow individuals to structure their moral identity." (3) Other scholars have responded with various arguments to defend religion's special status and the practice of exemptions that they contend follows from it. (4) This latter group would seem to have at least one distinct advantage on its side: the First Amendment's text, whatever the Establishment Clause might mean, clearly gives special status to the "free exercise" of religion. (5) This obvious point leads Schwartzman to conclude that "if the Religion Clauses are interpreted according to their original meaning, then they should be criticized as morally defective." (6)

Schwartzman's verdict, like the entire debate in which he participates, presumes that religion's special status means religious individuals and institutions deserve special consideration for exemptions from burdensome laws. But what if religious liberty does not mean exemptions? Would we still find the Constitution morally defective? And if religious liberty does not mean exemptions, what protection would the First Amendment offer? Can religion retain its special Free Exercise status while not dictating constitutional exemptionism?

This Article addresses those questions by taking a different approach to religion's specialness, one that does not presume the Free Exercise Clause means exemptions. It attempts to set forth an alternative paradigm for the constitutional protection of religious liberty by explaining why the Founders thought religion is special and by articulating their attendant constitutionalism of religious freedom. In doing so, it continues a line of inquiry, begun elsewhere, (7) that attempts to distinguish the Founders' natural rights constitutionalism from what I call modern moral autonomy exemptionism.

The Article is divided into three Parts. Part I documents the Founders' shared understanding that religious liberty is a natural right possessed by all individuals. Part II explains what the Founders meant when they labeled aspects of religious liberty an "unalienable" natural right. The inalienable character of the core of religious liberty reveals what the Founders found special about religion. It also accounts for religion's special constitutional status, which for the Founders primarily meant specific jurisdictional limits on state sovereignty rather than exemptions. Part III further clarifies the Founders' constitutionalism of religious freedom by explaining how the Founders understood natural rights to have natural limits. The Founders' theory of religious liberty included within itself reasonable limits on religious exercise.

A more thorough understanding of the Founders may or may not help us resolve our current debate over the proper scope of religious exemptions. But should we seek to recognize the special character of religious liberty without committing ourselves to First Amendment exemptionism, the Founders offer an alternative approach, one that, at least arguably, animated the Founding's original natural rights constitutionalism. (8)

1. THE FOUNDERS' RECOGNITION OF THE NATURAL RIGHT OF RELIGIOUS FREEDOM

   1. State Declarations of Rights, 1776-1784

      Attempting to articulate "the Founders' understanding" about anything gives rise to immediate difficulties. Who counts as a Founder? Did the Founders--assuming they can be properly identified--actually share a common view about any significant legal or political matter? (9) My previous scholarly work on the church-state political thought of the leading Founders has emphasized their differences and disagreements, and I only address Madison, Washington, and Jefferson. (10) Scholarship focusing on the "forgotten Founders" rightfully adds more voices to an already seemingly cacophonous conversation. (11)

      Nonetheless, in their fundamental charters of government, the Founders themselves set forth a set of public documents that articulated common political principles. Between May 1776 and July 1786, eleven states and Vermont (which became a state in 1791) drafted state constitutions. (12) Eight of those twelve states also drafted a declaration of rights. These state documents may be the best available sources for understanding the common mind of the Founders. (13) They represent every part of the new nation; more importantly, an examination of them provides a more complete account of the Founders' political principles than considering only the Declaration of Independence and the creation of the Constitution and Bill of Rights. (14) With regard to the core of religious freedom, moreover, the Founding-era state charters adopt substantially the same natural rights political principles. (15)

      A few Supreme Court opinions have noted the importance of these state materials, (16) and Justice Sandra Day O'Connor identified them as "perhaps the best evidence of the original understanding of the Constitution's protection of religious liberty. After all," she wrote, "it is reasonable to think that the States that ratified the First Amendment assumed that the meaning of the federal free exercise provision corresponded to that of their existing state clauses." (17) Nonetheless, these state provisions generally have been overlooked and their value for understanding the Founders' shared political philosophy of religious liberty has been underappreciated. (18) These documents are the data through which this Article attempts to understand the Founders' constitutionalism, recognizing the inherent limitations of relying on any document or set of documents to understand the Founders' collective enterprise(s).

      One other methodological point ought to be made before proceeding. The state declarations of rights should be interpreted in their proper context, something we are liable not to do because of our familiarity with the Federal Bill of Rights. The pre-1787 declarations were not simply constitutional law in the way that the Bill of Rights is part of the Federal Constitution. They included non-justiciable statements about the fundamental purposes and principles of the political community. (19)

      Section 15 of the Virginia Declaration of Rights exemplifies the non-legal character of some of the provisions of the state declarations:

      That no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles. (20) Or consider Article VII of the 1776 Pennsylvania Declaration of Rights:

      That all elections ought to be free; and that all free men having a sufficient evident common interest with, and attachment to the community, have a right to elect officers, or be elected into office. (21) These admonitions were not of a legal character and they demanded no specific legal action. They were non-justiciable in the sense that they were not designed for a Virginia citizen, for example, to file an Article 15 lawsuit if he believed the state was being insufficiently frugal. (22)

      Political scientist Donald Lutz labels the state declarations "vague yardstick's]" against which the people could measure the work of their legislatures. (23) That characterization is unnecessarily disparaging and also overbroad insofar as some church-state provisions effectively functioned as constitutional law. (24) Lutz's observation, however, is helpful to remind us that we cannot and should not assume that every provision of the pre-1787 state declarations of rights was understood to announce a legal rule or a restriction enforced by judicial review. The primary purpose of the state declarations was to educate the people about liberal political principles and, in particular, the natural rights social compact political philosophy that animated Founding-era constitutionalism. (25) That is why they remain so valuable a resource for us today.

   2. Recognition of the Natural Right to Religious Liberty

      The eight pre-1787 state declarations reveal that the Founders held religious liberty to be a natural right that belongs to all individuals. This was the foundational principle that animated the Founders' political thought and action on matters of church and state. (26) As can be seen in Table 1, all eight state declarations of rights drafted between 1776 and 1786 included a statement of religious freedom. Five states (Delaware, Pennsylvania, North Carolina, Vermont, and New Hampshire) explicitly identified religious worship according to conscience as a natural and inalienable right. Three states (Virginia, Maryland, and Massachusetts) did not. But Massachusetts and Maryland included natural rights language elsewhere in their declarations of rights and adopted text protecting religious liberty that was consistent with, if not suggestive of, the natural rights understanding. (27) Virginia would recognize religious liberty as "of the natural rights of mankind" in 1786 when it adopted Jefferson's Statute for Religious Freedom. (28)

      The drafting record of the 1776 Virginia Declaration of Rights suggests that those...