Talks with Authors: Vincent Phillip Munoz on Religious Liberty and the American Founding

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What did the American Founders mean when they declared religious liberty to be an “inherent,” “natural” and “inalienable” right? Does the right to religious liberty provide religious exemptions from generally applicable laws? What is wrong with a state establishment of religion?


In Religious Liberty and the American Founding, Vincent Phillip Muñoz addresses these questions and others, offering a novel interpretation of Founders’ philosophy and constitutionalism of religious liberty. Drawing on early state constitutions, declarations of religious freedom, Founding-era debates, and the First Amendment’s drafting record, the book documents and articulates the Founders’ understanding of religious liberty as an inalienable natural right, uncovers what we can and cannot determine about the original meaning of the First Amendment’s Religion Clauses, and constructs a natural rights jurisprudence of religious liberty, exploring and explaining how the Founders’ principles would adjudicate First Amendment church-state issues. Contrary to what many might assume, Muñoz contends that adherence to the Founders would lead neither to consistently conservative nor consistently liberal results, but rather to a novel church-state jurisprudence that, in most cases, would return authority from the judiciary to the American people.


Join us for a conversation of Professor Muñoz’s new book, with Professor Muñoz himself and moderated by Michael McConnell, the director of Stanford Law School’s Constitutional Law Center.



  • Vincent Phillip Muñoz , Tocqueville Associate Professor Department of Political Science and Concurrent Associate Professor of Law, University of Notre Dame Law School
  • Moderator: Michael McConnellRichard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School; Senior Fellow at the Hoover Institution



As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Chayila Kleist:  Hello, and welcome to The Federalist Society’s webinar call. Today, October 25, 2022, we discuss Vincent Phillip Muñoz’s new book Religious Liberty and the American Founding. My name is Chayila Kleist, and I’m Assistant Director of the Practice Groups here at the Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call, as The Federalist Society takes no position on particular legal or public policy issues.


Today, we are fortunate to have with us Professor Michael McConnell, who is the Richard and Frances Mallery Professor and the Director of the Constitutional Law Center at Stanford Law School. He’s also a Senior Fellow at the Hoover Institution and an author himself. He’ll be moderating today’s session with our speaker and other panelist, Dr. Vincent Phillip Muñoz, the Tocqueville Associate Professor of Religion & Public Life at the Department of Political Science at Notre Dame and Concurrent Associate Professor of Law at the University of Notre Dame Law School.


Dr. Muñoz is the founding director of Notre Dame University’s undergraduate minor in Constitutional Studies, directs Notre Dame's Tocqueville Program for Inquiry into Religion and Public Life, and, perhaps most pertinent to today’s program, is the author of the recently published Religious Liberty and the American Founding.


Throughout the panel, if you have any questions, please submit them to the question-and-answer feature so the panel will have access to them when we get to that portion of the webinar. With that, thank you for being with us today. Professor McConnell, the floor is yours.


Prof. Michael McConnell:  Well, thank you very much. This is really a pleasure to be on this program with Phillip, whose work I’ve been following for, actually, I think, all the way back to when he was in graduate school. And this recently published book, Religious Liberty and the American Founding, is a real contribution, I have to say, in the last few years, maybe because of the Supreme Court’s renewed interest in trying to get history maybe a little bit more accurately than they have in the past. Maybe that’s an over-optimistic statement, but I think that’s true.


We’re really seeing much more serious work about some of the fundamental questions and constitutional law, and I highly recommend this book to anyone who would like an introduction into the connection between the deep theoretical political theory and theological theory held by the Founders. And I don’t mean to say there’s one. I shouldn’t use the word “theory,” singular.


One of the great things about this book is the way in which Phillip teases out differences between figures that are actually allied in the cause for religious liberty but from somewhat different perspectives. That includes a wonderful chapter on Madison, Jefferson, and Isaac Backus. Backus was a Baptist minister and great advocate for religious freedom. So they come to the same place but by different paths, different theories, and with different implications for that. And then, the book connects the political theory. It’s not just about that. It connects the political theory to a very close lawyer-like, close, textual reading of the Founding-era documents, especially the framing of the First Amendment itself but also the framing of each of the state constitutional provisions, which is so interrelated to the First Amendment. So I have nothing but praise for this. I have many more reservations about Phillip’s application of this to some modern issues.


But let’s begin at the beginning. Phillip, some of our listeners may not be steeped in natural rights theory. One of the most important points you make in the book is to root religious liberty in a theory of natural rights. What does that mean, and what difference does it make?  


Prof. Vincent Phillip Muñoz:  Yeah, let me just begin by saying thank you to The Federalist Society but especially to Professor McConnell. When the folks at The Federalist Society asked me if I was interested in doing this and, if I was, who would I like to be on a panel with, I said, “Well, Professor McConnell. I mean, he is the dean of church-state scholars and the leading church-state scholar in the nation.” And I said to them, “And we disagree about some things, so it would be interesting, too.” So, thank you, Professor McConnell, for your time and for the kind words you said about the book.


So you asked about natural rights. First of all, let me start with the word “natural.” Natural is opposed to, I suppose, an acquired right. Natural rights inhere in our human nature. They preexist government. So some rights come from the government, the right to serve on a jury. Some rights do not. And the Founders all held that religious liberty was a natural right. The really foundation of natural rights theory is the idea that all men are created equal. There are no natural rulers, no natural slaves.


I know what equality means in the Declaration of Independence and for the Founders is, of course, controversial, but I actually think it’s pretty clear that the Founders believed in human equality because we’re equal in our rights in our rights—in our natural rights. That’s the plain language of the Declaration of Independence. One of the most fundamental rights is the right, natural right to religious liberty.


Prof. Michael McConnell:  And so natural rights preexist and the government exists “to protect them.” That’s the language of the next sentence in the Declaration of Independence -- is that governments are created to secure these rights. But the government also then, at that point, begins to define them, and this is often done through constitutions but other fundamental laws as well.


How do we know the boundaries of natural rights in their natural state? You talk about the law of nature, and I think that’s really what I’m asking you to --


Prof. Vincent Phillip Muñoz:  Yeah, no, no, it’s a very -- it’s a very good question, and you’re getting right to the fundamentals here. The expression I like to use is “Natural rights have natural limits.” I could use fancy language, but let me just illustrate what I mean with a very simple example, which certainly will be familiar to all the lawyers out there. We have a right to free speech, but we don’t have a right to libel someone, to say false things about them—maliciously false things. It’s still speech if I’m saying untrue things about you—things that I know are not true. Everyone understands that libel is not part of free speech— the natural right of free speech.


The way the Founders put it is that natural rights are bounded by a natural law. It’s not so much that, to speak precisely, it’s not that your natural rights are limited by something. It’s just that natural rights have boundaries, and the boundaries of a natural right are set by the natural moral law. Right? I have freedom of movement, but I can’t hit you. Right? That would be to transgress your rights, and so one way of thinking about it is the limits of my rights are where your rights begin and vice versa. So you have a right to your reputation. My free speech rights means I can say things about you, but I can’t say false things about you.        


Prof. Michael McConnell:  So it’s not that we're balancing things. It’s that natural rights only go so far.  


Prof. Vincent Phillip Muñoz:  Exactly, that’s an elegant way to say exactly what I was trying to say.


Prof. Michael McConnell:  So how does that relate -- the modern Supreme Court, at least since the 1940s, has spoken in terms of compelling governmental interest. So we have the right to free exercise of religion but not if the government has a compelling governmental interest. How does that compare? Is that at all similar to your understanding of the natural rights theory of the Constitution?


Prof. Vincent Phillip Muñoz:  Yeah, I don’t think so, and this is -- I obviously disagree with some other scholars here, and maybe we disagree a little bit on this. So my understanding -- or my interpretation of the Founders’ natural rights understanding is when the Founders said we have an inalienable natural right to religious liberty, whatever is protected is protected. It can’t be balanced against other competing governmental interests. I would point to the text of the First Amendment. Right? “Congress shall make no law prohibiting the free exercise of religion.” So whatever free exercise is cannot be prohibited. It cannot be balanced against a competing state interest or compelling state interest.


     So I think the phrase I use in the book is “It’s narrow but deep.” The scope of the right is narrow, but it’s deep, meaning if something is protected, it can’t be balanced against. Now, the right has limits, right? So let me use maybe a simple example. Your right of religious liberty, just like your right of free speech, is bounded by the natural moral law. So your right of religious liberty doesn’t include to do religiously motivated actions that would transgress the moral law. So if you practice a religion that included child sacrifice, your right of free exercise doesn’t include religiously motivated child sacrifice. Why? Well, because just like libel is not part of free speech, child sacrifice is not part of the right of religious liberty. All rights, natural rights, are bounded by the natural law.


Prof. Michael McConnell:  But who gets to decide what is a -- what are moral limits?


Prof. Vincent Phillip Muñoz:  Yeah. Yeah.


Prof. Michael McConnell:  What if I say it’s immoral to deprive same-sex couples of being able to get married in church?


Prof. Vincent Phillip Muñoz:  Sure, so let me give you the Founders’ answer. I mean, in a way, Alexander Hamilton -- the young Alexander Hamilton and his “Farmer Refuted” essay articulates the common understanding that these matters are accessible to reason. I mean, we can certainly disagree with them. These are principles of justice, so there is a natural moral law. That there is a natural moral law doesn’t mean we’ll all readily agree to what nature demands, just like that there is justice doesn’t mean we’ll all agree to what justice consists of. At least in the Founders’ theory, we can reason about these things. And if you reason well, that’s how we understand what the limits are. It’s easier to start with easier cases than hard cases, but you proceed from the easier cases to the harder cases.


Prof. Michael McConnell:  Well, I reason probably as much as anybody. You probably do too. And my experience is that seemingly reasonable people don’t always agree with me. Let’s assume that there is some disagreement. I mean, again, the example of a same-sex couple. There are reasonable people on both sides of that. Does the democratic legislature choose between moral visions? How is this -- how is this hashed out?


Prof. Vincent Phillip Muñoz:  Yeah, so --


Prof. Michael McConnell:  Because if it’s a boundary to free exercise right, we need to know who draws the boundary and where and how.


Prof. Vincent Phillip Muñoz:  Yeah, so, in practice, the first boundary drawing is by the people when they establish the government. Right? If you go -- you made a reference to -- there’s a chapter in the book -- first two chapters start with the state declarations of rights, and when you read those state declarations of rights—these were drafted between -- 1776, Virginia Declaration of Rights was the first one, and the last of the Founding-era declarations of rights is 1784. It was prior to the Constitution in New Hampshire. What they say there -- these are statements of political principles adopted in the various states. “The rights of conscience or the free exercise of religion is unalienable.” That’s their term. We’d say “inalienable.” They’re marking the boundary.


     Now, your question is, “Okay, well, what does that boundary include or not include?” And, well, there’s all sorts of interpretations, right? First, when Congress or the legislative branch is making a law, they implicitly judge, “Is this something within our power or not?” If the right is inalienable, at least in my understanding, that means the state has no jurisdiction to legislate over that right directly. So Congress would have to make its first determination, and if there’s an executive veto, then the executive, and then, ultimately, the judiciary. So these are the institutional mechanisms. I’m not saying anything that everyone listening doesn’t know. They can error, of course, and you have to argue it out. I mean, I think that’s what the Founders would have understood.


    Again, let me just say -- it’s kind of like what is commerce? Well, Congress can regulate interstate commerce. It doesn’t mean that there’s -- you know, we still have to reason what commerce is, and Hamilton puts forward a view, and the minor Supreme Court puts forward a view, and you have to argue it out, and we have institutions to do that. But the fact that people disagree doesn’t mean that there’s not something that is commerce.


Prof. Michael McConnell:  Now, one of the points you make in the book is emphasize the equality of, first, all human beings but also, inferentially, all religious faiths. There have been a few scholars, and very conspicuously, Justice Stevens, have argued that if we look to the original understanding, that would be a bad thing because the original understanding only protected Christians. How do you respond to that?


Prof. Vincent Phillip Muñoz:  Yeah, I think Justice Stevens—and he’s relying on other scholars—just makes a mistake there. If you actually look at the religious liberty provisions, especially in these early state constitutions, they clearly specify that all individuals or all people or sometimes all men—but “men” being the generic for all people—have the right of free exercise or rights of conscience.

It is true other places in the constitution talk about equal protection, and some of those state provisions talk about equal protections for Christians, but these were in civil and political rights, not in natural rights. The key is understanding that the Founders drafted their language very precisely. When they spoke about natural rights, they talked about all individuals. When they spoke about acquired, like voting rights or political rights, they did sometimes limit it to Christians. That was controversial and debated at the time of the Founding. Justice Stevens presumes that because there was some limitations of political rights for Christians, the Founders limited all rights to Christians, and it’s just not a careful reading of the actual primary documents.


Prof. Michael McConnell:  And did that extend to Native American religions?


Prof. Vincent Phillip Muñoz:  You know, that’s a good question. I don’t know of any documents that specifically reference to Native American religions. But the language of natural rights, it’s not limited to Christianity. It talks about the rights of conscience or free exercise of religion, as you know better than anyone else, and that would certainly seem to include Native American religions and non-Christian religions—religion simply. The place where Christianity really appears most clearly in the Founding states is religious tests for office. Various states did limit office holding to -- sometimes to Christians, sometimes just to Protestants. The Massachusetts constitution of 1780, to be governor, you had to be a Christian. Other states limited it through an oath of office. You had to profess belief in the Old and New Testament, therefore excluding Jews, but these were more controversial. Men like Madison said there should be no religious test for office. And over time, these religious limitations on office holdings based on religion were eliminated. But they did exist in some of the Founding-era states.


Prof. Michael McConnell:  This is one of the small differences—there’s some big ones, too—between Jefferson and Madison is that Jefferson thought that clergy should not hold public office, and Madison disagreed with him about that.


Prof. Vincent Phillip Muñoz:  Yeah, Jefferson wanted to go the other way. He was like, “Wait, let’s get rid of the religious test for office, limiting it to Christians, and then let’s exclude the clergy.” Madison wanted to get rid of all the religious tests for office. And let me just clarify one thing. These religious tests for office were not usually defended in terms of religious tests for office, actually. They said, “Look, we limit office holding to—” you have to reach a certain age, right? You have to be 35 to be president or 30 to be a member of the senate or whatever it is in the states. Well, why 35? Well, because you want an individual of mature judgment. We don’t let anyone be governor. Right? We want certain—you have to reside in the state. You have to be a certain age because we want wisdom or prudence.

The defenders of the religious test for office said, “Well, we also want virtue.” What’s the test we use for virtue? Well, we’ll say if you’re willing to express belief in God or if you’re a Protestant. But notice how they’re defended. Not “We’re a Christian nation.” We want men of virtue, and we’re using religion as a proxy for being virtuous. Now, Madison thought that was wrong—that you can’t use religion as a proxy for virtue. But the way it’s defended is not “We’re a sectarian regime, and only Protestants are of good standing.” So there is a real shift in the defense, in a liberal direction -- in the defense of even religious tests for office.


Prof. Michael McConnell:  Well, one of the reasons I bring up Native American religion is because of one of the most famous recent cases. Although, I guess -- 1990, is that recent? I’m showing my age when I think that’s recent because I remember when it happened. Many of our audience probably weren’t even born yet. But this is the famous peyote case involving a sacramental practice of the Native American church, which involved the ingestion of a hallucinogenic substance, which is on the federal government’s—and I guess every state’s—list of controlled substances. And these are illegal drugs. And yet, at least, the anthropological evidence in the case indicated that it’s been at least 500 years, maybe longer, that what we now call the Native American church—but going back under Indigenous names -- for 500 years this has been a part of their religious practice. How do we go about analyzing whether somebody who’s in the Native American church has a right to use this as their sacrament instead of, you know -- in my faith, we use wine?


Prof. Vincent Phillip Muñoz:  Yeah, no, the Smith case -- I was in high school -- I was in high school when it started and college when the decision came down. And in a way, this was the case that got me really interested in these questions because I remember reading the case for the first time and reading Justice Scalia’s opinion and thinking that was right and then reading the dissents and thinking, “No, no they’re right,” and really trying to think through this issue. It sort of started everything.

And so here’s where this is where you and I disagree on this. I would say it’s not exactly that Scalia was right because I think there’s all sorts of problems with his opinion, and he basically turns the Free Exercise Clause into an Equal Protection Clause, which I think is not quite right. But in general, I think Smith was resolved correctly, meaning that there’s no constitutional right to be exempt from a generally applicable law that makes peyote illegal. In practice, that means, for the individual practitioners of the Native American church, that the practice of their religion has become illegal. Lots of people, yourself included—you’re the most articulate defender of this—have said, “Well, you have just effectively made religious exercise impossible, illegal.” My response to that –




Prof. Michael McConnell:  Prohibited is the [inaudible 22:02].


Prof. Vincent Phillip Muñoz:  Prohibited, yeah. My response to that is that the First Amendment was not designed to solve that problem. The mischief that the First Amendment—the Free Exercise Clause was designed to resolve was government legislating on religion directly. “You must go to church,” or “You cannot go to church,” and so the language of incidental burdens—that this law didn’t mention the Native American church. It didn’t mention --


Prof. Michael McConnell:  But let’s get back to, I mean, just -- what’s the connection between this and your natural right’s theory? Do Native American members of this religion -- do they have a natural right to use peyote in their religious ceremonies?


Prof. Vincent Phillip Muñoz:  Yeah, so Native American --




Prof. Vincent Phillip Muñoz:  Yeah, so --


Prof. Michael McConnell:  And is it religious?


Prof. Vincent Phillip Muñoz:  So all individuals have a natural right to exercise their religion. When we set up a government, we give our consent to a government, and we charter it with certain powers, right? We don’t give that government authority over our religious exercises, but—let me finish here—we do give the government authority over what’s generally known as the health, wealth, and morals of the community, right? This community, the State of Oregon, said, “The health, wealth, and morality of the residents of Oregon means we’re going to classify hallucinogenic drugs as illegal.” The members of the community, in consenting to the government, have consented to abide by that law. Let me finish. When they say our religious right is inalienable, what they’re saying is “You, the State of Oregon”—or you, the national government, if we’re talking about the First Amendment—“you can’t make laws directly on religious exercises. You can’t say, ‘You must worship on Saturday,’ or ‘You may not go to confession,’ or whatever.”


      This gets back to the mischief analysis I’d begun, right? The inalienability of the right of free exercise, at least in my understanding—it’s not really my understanding. It’s my explanation or my best understanding of the Founders’ understanding. It’s not necessarily my position. The Founders are saying, “We’re withdrawing,” or “We’re not actually giving jurisdiction or state authority -- the state authority over making laws that target religious exercises as such. But we have given the government authority to make laws on morals of the community or the health of the community that may, incidentally, burden. So, to the Native Americans, the response is, “That power has been granted. You don’t have to join the political community. Once you have joined the political community, you are subject to the law. The political community can give you an exemption, a digressionary exemption, but it’s not part of your right of religious free exercise that’s been reserved.” At least that’s the Founders’ natural rights understanding as best I can determine.


Prof. Michael McConnell:  So I don’t -- so natural rights are before the existence of a government, and they have boundaries. We talked about what the boundaries are, although they’re going to be hard to actualize. But the law of nature sets the boundaries of the right of free exercise. I get all that, but now you tell me that the boundary is not the law of nature but is a limitation of government. And you’re saying that government can legislate for health, wealth, safety, welfare, and morals but not for religious reasons. But that’s not state-of-nature logic. That’s political -- that’s a limitation on government. It’s not a definition of a natural right.


Prof. Vincent Phillip Muñoz:  So this is where the work of the word “inalienability --" what does it mean to possess an inalienable natural right? And let me give you -- again, with a simple example. So the right to revolution is an inalienable natural right. So it’s a natural right. We have justified -- why we are justified in overthrowing King George III is because he was being tyrannical, at least that we said. So we said, “Look, we’re withdrawing our allegiance.” We have a natural right of revolution. In fact, that natural right is inalienable because you can’t turn it over to the government to secure it. The nature of the right itself means, by definition, by understanding, it’s inalienable, right? Okay, religious liberty in an inalienable right.


   For the Founders, that meant there’s a certain realm of our natural freedom—how we worship—that we don’t give a government authority over. Not giving authority over means government can’t legislate directly on that matter. We do give government authority over property, which is a natural right, health, wealth, and morals, as we were talking about. Listen, let me just use property. So the right to property is a natural right, but it’s an alienable natural right. So in the state of nature, I pick the apple. It’s my apple. I mixed my labor. In civil society, we have property law. Right? When do we have a valid contract? Well, there’s laws to specify that. It’s not when you have a handshake, it’s when you have two signatures or whatever. The role of government in securing property right is to facilitate the acquisition and enjoyment of property rights by passing laws that specify for a particular community the dictates of the law of nature for that community. The law of nature is when you make an agreement, keep it. In civil society or in political society, this is what you need to make an agreement. So we alienate our property rights, meaning we turn over to the government the power to make laws to facilitate them.


    Religious liberty, we say, is an inalienable natural right. We do not turn over power to the government to specify how we worship, on whether we can worship. Government can’t make laws on religious exercise. That power is withheld. So that’s why I say government can’t tell the Native American individuals, “You must worship this way,” or “You may not worship this way.” But when government is acting within its given jurisdiction, in this case, the health, wealth, and morals of the community, Native Americans and everyone else are subject to that law. At least, that’s the social contract natural rights understanding.


Prof. Michael McConnell:  So the natural right of religious exercise is inalienable, meaning that we don’t give it up to the government, but -- and I assume it carries with it the boundaries from the state of nature. So it’s a bounded right, but bounded by the state of nature, which is to say by the equal rights of others.




Prof. Vincent Phillip Muñoz:  Yeah.


Prof. Michael McConnell:  The boundary, the state of nature has nothing to do with how the government frames its laws because the government doesn’t even exist. And as I understand --


Prof. Vincent Phillip Muñoz:  Can I pause you real quick?




Prof. Michael McConnell:  -- your position and Scalia’s position is that if it is a neutral and generally applicable law, then the government can enforce it whether or not it interferes with your exercise of religion, and if it’s framed in a non-neutral, not generally applicable way, that they can’t. But the natural right, I would have thought, was the same. This doesn’t sound like -- it doesn’t seem to me that that interpretation of the Free Exercise Clause has anything to do with natural rights. What it has to do with is a theory in a rule-of-law government. The government ought to operate according to neutral and generally applicable laws. It seems to me that your conclusions here might be reasonable. There’s a perfectly good political theory behind insisting on neutrality and general applicability, but it isn’t -- it can’t be natural rights theory because natural rights theory is about what we have a right to do and the boundaries of that, not how government operates.


Prof. Vincent Phillip Muñoz:  Well, yeah, let me try to clarify. So the state of nature is just a state of where there’s no common authority. Okay? Within the state of nature, we have certain liberties. We call those natural rights. Right? I can pick an apple. I can worship as I wish. Those natural liberties are limited by the law of nature. So the state of nature, according to the Founders’ understanding, is governed by a law of nature. Natural rights are part of that law of nature. So the law of nature says, “If I own my own labor, I pick the apple, it’s mine.” The limits on using my labor to acquire things are: I can’t take your apple. That would violate the law of nature. So the right of acquisition—the natural right of acquisition—is limited by the natural law. I don’t have a right -- I have a right to pick the apple from the apple tree. I don’t have a right to take your apple. Okay? That’s all enforced -- who executes the law of nature? Well, we do. Everyone does. Everyone has the executive authority of the state of nature, so if I take your apple, you can make it an ill bargain, as Locke would say, right? You enforce the law of nature.


    When we enter into a social compact and create a government, we transfer our executive power to enforce the law of nature to the state—so that’s the police powers of the state—and we alienate some of our rights, not all of them. We alienate our natural rights, and what that means is we give the government that we create authority to make laws to regulate those rights. Regulate has a precise meaning: to make regular, to facilitate the enjoyment of. That just gets us back to where we were before. So property is an alienable natural right. We give government authority to make laws to protect our property, how like contracts are valid and all that. When the Founders use the language of inalienable, that conveys governmental jurisdiction. That is, we don’t give government authority over that right. This is the connection between natural rights theory or inalienable natural rights theory and governmental power. To say something is inalienable means there’s no grant of governmental jurisdiction. So inalienable rights are inherently connected to governmental jurisdiction.


Prof. Michael McConnell:  So let me just tell you -- so the way I would have thought -- let’s say we all believe the first half of your book. And I find it very persuasive. So the Native Americans have a natural right to practice their religion. This involves the ingestion of peyote. Now, the Constitution comes along. Now, we didn’t actually consult them at the time of the Constitution, but let’s pretend for a moment that they’re part of the social contract. Since I’m [inaudible 33:50] my point. But they don’t alienate. They keep their natural right of religious exercise, which includes the sacrament that they believe their gods recognize. And I would have thought that the significance of being an inalienable right is that the government’s role in the state of civil society is simply to define what that right is—that is, what the natural right is, which includes defining the boundary. This is why I asked you way back at the beginning who defines the boundary, and I think you said, in the first instance, it’s the legislature, and then the executive has a role, and the court. That’s all defining the boundary, but I would have thought that whether what the government is doing is legitimate or not—it respects inalienable natural rights or not—has to do with the substance of the law, not how it’s formed. So I don’t care whether it’s -- I don’t see why we care from a natural rights point of view whether it’s neutral and generally applicable. I would think what we would ask is, “Is the ingestion of peyote something that is beyond the boundary of the natural law,” that is, “Does it injure somebody else. Does it respect the equal rights of others? Is it profoundly immoral in some sense that we could all agree?” To which I think the answer to all those things is no.


Prof. Vincent Phillip Muñoz:  I agree with everything you just said, yeah.


Prof. Michael McConnell:  And so why doesn’t -- why isn’t that the answer? They didn’t give up this natural right. It’s exactly the same. The boundaries are the same. Government defines the boundary, but the government doesn’t ignore the boundary.


Prof. Vincent Phillip Muñoz:  No, no, so I agree with everything you just said, though it has a different implication than I think you -- I would draw a different implication than you did. Okay? So from the perspective of the governmental authorities, government has been given the -- let’s just assume government has been given the authority to regulate the health, wealth, and morality of the community. It has not been given the authority to regulate religious exercises. Okay? From the government's point of view, it really has nothing to do with general applicability in terms of religious rights. Government says -- the people say, “We want laws protecting our community from hallucinogenic drugs.” A question from the government’s point of view is, “Is this within our authority? Can we pass a law prohibiting peyote and other hallucinogenic drugs?” The answer in this case, in the State of Oregon, was yes.

Now, if you say, “This law is not necessary; peyote does not harm anyone; it encroaches on people’s liberty, including their religious exercises,” those are good reasons for the government not to pass that law. It’s a very bad law. It’s like when speed limits were all 55 everywhere. Those were bad laws. I mean government had authority to pass speed limits, but I lived in Los Angeles. It was not -- no one followed the laws. They were bad laws, at least for that community. Right?

But our question is “Does government have authority to pass a law involving hallucinogenic drugs?” If the answer is yes, then the answer is yes. And it might be a dumb law, but it’s still a valid law.


Prof. Michael McConnell:  Now, government has the power after the passage of the Eighteenth Amendment to prohibit the use of alcohol?


Prof. Vincent Phillip Muñoz:  Let’s assume there was no exemption for Catholic mass.




Prof. Michael McConnell:  -- happened to have an exemption, but you’re saying that was not constitutionally required?


Prof. Vincent Phillip Muñoz:  Well, it was required politically to get the Amendment passed.


Prof. Michael McConnell:  But it’s not constitutionally required. 


Prof. Vincent Phillip Muñoz:  Let’s leave that aside. It would not be constitutionally required.


Prof. Michael McConnell:  Okay.


Prof. Vincent Phillip Muñoz:  No, it would not be constitutionally required.


Prof. Michael McConnell:  And then does the -- the government has the power to tell people that they have to testify to evidence of a crime, I think, so that means that the government doesn’t have to respect the confidentiality of the confessional.


Prof. Vincent Phillip Muñoz:  There’s not --




Prof. Michael McConnell:  -- the very first written free exercise case in America, in New York, protecting that particular exercise.


Prof. Vincent Phillip Muñoz:  Yeah. But again, the First Amendment is not -- the aim of the First Amendment, at least from my understanding and the Founders’ understanding of natural rights -- if we give a natural rights construction to the First Amendment. The aim of the First Amendment is not to resolve all matters of injustice, to make sure every religious person is never encroached upon in their freedom. That’s not the purpose of the First Amendment. The purpose of the First Amendment was to withdraw—or actually, not to withdraw jurisdiction—to recognize that certain powers were not given to the government.


     Government, and the powers it does have to do criminal investigations and prosecutions, to protect the health, wealth of the community, may pass laws that religious individuals of certain sex or certain beliefs do not like and feel very much burdened by. That is the nature of law-making. The government can make exemptions to that and say, “Look, in general, we need the ability to compel anyone to testify when they have knowledge of a criminal activity. But in certain circumstances, we’re going to make exemptions—say, for lawyers because they need to represent their clients or for psychologists or medical professionals, perhaps even for spiritual counselors.” So they can make exemptions to those cases. Right? Those would be wise and prudent to do so. The rule of law’s not perfect. But there’s no right to those exemptions, I’m saying, because that’s not what the First Amendment was designed to do. If you—as I do in this book—say, “Let’s give a natural rights construction,” it can be that the natural rights -- the First Amendment doesn’t solve all problems, but nor should we expect the First Amendment to solve all problems, right?


    I mean, think of Federalist 84. This is an important one: Federalist 84. The Constitution itself is a Bill of Rights. “We don’t need a Bill of Rights,” Hamilton said. Well, why? Well, because of representation, right? I mean, the primary way your rights are respected is because we elect them. So if the peyote law is a bad law, it shouldn’t be passed. If it’s a good law that has bad consequences for this one group that we don’t think the law should be applied for, we can pass an exemption for them. But the First Amendment was not designed to solve all those problems—all those imperfections in the rule of law.


Prof. Michael McConnell:  We should move to questions from the audience. May I -- if I’m going to have the last word, though?


Prof. Vincent Phillip Muñoz:  Of course, you can.




Prof. Michael McConnell:  -- last word. Of course, it doesn’t solve all problems. What it was supposed -- the problem it was supposed to solve is that people are supposed to continue to have their natural right to worship God in accordance with conscience, which, I think, I would have thought includes a confessional, includes peyote. It includes these things. Now, we may want for other reasons to limit the government to neutral and generally applicable laws, but in terms of the natural right of religious freedom, it’s the right to exercise your faith in accordance with conscience. But we should move to the audience. I’m not sure how we do that.


Prof. Vincent Phillip Muñoz:  Let’s see. I see. I think we have to click on the Q&A, and I see eight questions there.


Prof. Michael McConnell:  Hey, do you want to just -- do you want to --


Prof. Vincent Phillip Muñoz:  Let me try to -- let me try --


Prof. Michael McConnell:  Why don’t you – why don’t you read the first one, and I’ll read the second one?


Prof. Vincent Phillip Muñoz:  Okay. Jeffrey Wood asks -- this is the first one that popped up. I have not read it yet. “Without having yet read the book, which I hope to pick up”—I, too, hope you pick it up; available at and other fine booksellers—“I don’t know whether Professor Muñoz addresses the preexisting common law tradition. But I would be interested in his thoughts related to that—for example, Cromwell’s comment that he would rather permit Islam in England than compel religious conformity, obviously either mooted or proved by current realities.”


   I don’t really address the common law background, not because it’s not interesting or important, I just—you can only do so much. So the book really starts in the Founding era—no, really in 1776 with the state declarations of rights. So I don’t -- I just don’t address that material. I know, Michael, you have a new book coming out on the Establishment Clause. Would you address -- and you’ve written extensively on religious liberty before America, especially in the English experience. Will you address those issues in your book?


Prof. Michael McConnell:  Yes, but I think the U.S. is a conscious departure from the common law. In England, you did not have a right of free exercise of religion, and there was an established church, and there were religious tests for office. We deliberately departed from that model, and I’m not sure that’s an authentic Cromwell quote, but if it is, well, Cromwell is sounding like James Madison. But that wasn’t the law, and while Cromwell was in charge, they were persecuting religious minorities almost as viciously as the established church did, only differently. They were persecuting a different group.


   The next question’s from Victoria Sutton. Really great question. Apparently, she’s written an article about -- about Native American sacred sites involving land. How do you -- how do you analyze these land questions? So an example of this would be “Navajo mountain is sacred to the Diné people. What if the government decides to put a sewage dump on the top of the mountain?”


Prof. Vincent Phillip Muñoz:  Yeah, I mean, I don’t -- I’m trying to remember in the book I talk about some cases, not every case, obviously. And I don’t think I do any -- other than the peyote case, I don’t talk about any Native American cases per se. But the analysis of the book would be that -- assuming that there was no targeted government action, like the government -- assuming there’s nothing in the record that says, “We’re going to go build a sewage treatment plant or whatever it is on this land because we want to limit the Native American’s ability to practice their religion.” Let’s assume that for whatever reasons they select this site, and this site is owned by the government, it would just go to the political process. It might be that it’s unwise, and we shouldn’t build on that land, but there would be no constitutional right not to build on the land. Right?


    Again, this gets back to our earlier conversation. I read the First Amendment as -- and it’s not even -- it’s a narrow protection, but general applicability is not really the key question for me. The key question for me is “Does this law target religious exercises as such?” This is one of my criticisms of Scalia. Scalia, in Smith, doesn’t say what the Free Exercise Clause actually prohibits. What it prohibits is a law -- for example, the Santeria case occurred three years later. Here, the city council—this was outside of Miami, the city of Hialeah—they were trying to criminalize the exercise of a specific religion of Santeria. They passed ordinances targeting religious exercise—a series of ordinances—and they banned ritualistic sacrifice. I think a fair reading of the record clearly indicates that the city council was targeting a religious exercise. The question is not “Is this generally applicable?” The question for my approach and the Founders’ approach is, “Was the city council exercising jurisdiction that they did not have, criminalizing a religious practice?” If the answer’s yes—and I think it was yes—there’s no compelling state interest analysis, no least restrictive means. A city council can’t make -- target a religion directly and say, “You can’t practice it.”


Prof. Michael McConnell:  Except for peyote. The government does say -- they target the Native -- I mean, it’s generally applicable, yes --


 Prof. Vincent Phillip Muñoz:  But then there’s not targeted --




 Prof. Michael McConnell:  -- undoubtedly are making a religious ceremony illegal.


Prof. Vincent Phillip Muñoz:  But if you said -- if the State of Oregon passed a law that said, “We are making the Native American church ritual of ingesting peyote illegal,” that clearly would be unconstitutional. If they pass a general drug law that has no mention of the Native American church or any church, that wouldn’t be constitutional. You can’t target religious groups or religious practices as such—as religious practices.


Prof. Michael McConnell:  And so Hialeah passes an ordinance saying, “Nobody can chop off the heads of rabbits.”


Prof. Vincent Phillip Muñoz:  And animal cruelty statutes --




Prof. Michael McConnell:  They say nobody can.


Prof. Vincent Phillip Muñoz:  And then the government --




Prof. Michael McConnell:  -- then they’re [inaudible 48:03].


Prof. Vincent Phillip Muñoz:  Yeah, that would just be an animal cruelty statute, and that would be okay. Yeah.


Prof. Michael McConnell:  That’s actually what they thought they were doing.


Prof. Vincent Phillip Muñoz:  Well, if --


Prof. Michael McConnell:  Well, there is one section of the opinion—I believe it’s joined by only two justices—that relies upon bigoted remarks made by the city council members. But mostly, the opinion proceeds on the theory that it’s not targeted, but it is also not generally applicable since there are so many exemptions.


Prof. Vincent Phillip Muñoz:  General applicability might be part of the analysis of “Does target religious exercises as such?” It’s been a while since I’ve read the record of that case. My memory of it is that there was a series of ordinances, and it clearly was meant to apply just to Santeria, but my memory’s not fresh on that.


Prof. Michael McConnell:  I wouldn’t actually disagree with you about the record. The court sanitized it a little bit.


Prof. Vincent Phillip Muñoz:  Yeah.


Prof. Michael McConnell:  The next question from Gabriella Wygal (sp) -- I think it’s a very general question. I’m going to put it in a general way and give her a particular example. I think her general question is whether your analysis is the same for laws that compel people to do something which is contrary to their religion versus laws that prevent people from doing something that is part of their religion. And she uses the example of a Christian physician who has conscientious objections to performing operations in the transgender context. Is that the same? Do you treat -- do you treat requirements the same? And the historical example here, I think, would be one of the early cases in state court was compelling Covenanters, I believe they were, to serve on juries.


Prof. Vincent Phillip Muñoz:  Yeah, I was actually going to think you were going to go to Quakers in military service.


Prof. Michael McConnell:  Right. Well, that, too.


Prof. Vincent Phillip Muñoz:  That’s probably the classic example in the Founding era, right? Can you compel the Quakers to serve in the military? I mean, Quakers are pacifists for religious reasons. I mean, they don’t believe in war or fighting. So can you compel Quakers to serve in the military, or do they have a constitutional right not to serve in the military or do something else? Now, I will note, at the time, the Quakers didn’t want to do the “something else” either, so the alternative you provide might not be acceptable to them as well. So that complicates the matter. But the essential matter is, “Do the Quakers have the right to an exemption?” The answer from the natural rights understanding, at least as I understand it, is no.


    Let me try to explain this. And I think the same answer would apply to the matter of the question at hand. Look, when you agree to be part of the social compact, the most basic thing a social compact is—a government is—is it’s a mutual defense pact. I won’t hurt you. You don’t hurt me. I’ll defend you. You defend me from our common enemies. That’s the most basic thing a government is -- is a mutual defense pact. From that perspective, the Quakers say, “We want to be part of the defense pact. We want to be part of the club. But we won’t fight.” Well, in justice, there’s no reason to say to the Quakers, “Look, if you want to be part of the community, if you want to be part of the mutual defense pact, you got to take the obligations of citizenship, and that means fighting. You don’t have to be a part of the club. You don’t have to join this community, but if you join, you got to fight.” That’s the natural rights understanding. Now, maybe we don’t want to have to compel anyone. Maybe an all-volunteer army is better. Quakers probably won’t make good soldiers. Maybe we give exemptions to the Quakers, but you don’t have a right to an exemption.


     Maybe compelling all doctors to perform medical treatments is a very bad idea. I happen to think it is a very bad idea—that these laws are not good laws. In general, we shouldn’t compel doctors to do things. I wouldn’t want a doctor having to perform something on me that they’re compelled to do. That’s just a bad -- it’s a bad law. But the solution to the bad law is just not to pass it or withdraw it, not to give exemptions from it.


Prof. Michael McConnell:  I have a question from Justin Jonkey (sp). “What do you make of the framers’ choice of the verb ‘prohibiting,’ where elsewhere, they use words like ‘abridging’ and ‘infringing?’” Is there significance to that?


Prof. Vincent Phillip Muñoz:  I don’t dwell on that. I think the more important words is “no law.” Congress shall make no law -- with incorporation of  Congress in the states. The Prohibition is categorical. It’s not “No law unless there’s a compelling state interest.” So I don’t -- I mean, I could talk [inaudible 53:08] –




Prof. Michael McConnell:  What if the law -- what if the law takes away something else? It penalizes, but it doesn’t actually make it illegal to practice your religion.


Prof. Vincent Phillip Muñoz:  Yeah. Well, I don’t know. Can you give me a concrete example with a penalty but not --


Prof. Michael McConnell:  So unconstitutional conditions doctrine -- if you exercise religion, then you can’t get -- then we will not let you compete for equal terms for playground surfacing.


Prof. Vincent Phillip Muñoz:  Yeah, I think the -- I mean, if it really is like -- in the statute, if you practice your religion or if you’re a member of this church or go to this religious ceremony, then you don’t—whatever—get government benefit. Unconstitutional conditions, I think, would also be prohibited. But it would have to be targeted, not just an incidental burden. So Sherbert, for example, was an incidental -- no, because she --


Prof. Michael McConnell:  But in your book, you defend the --or you disagree with the court’s decision in Trinity Lutheran v. Comer, the playground surfacing case.


Prof. Vincent Phillip Muñoz:  I disagree with it on terms of that it -- well, maybe the reasoning. I would say it does not violate the Establishment Clause to give the school funds.


Prof. Michael McConnell:  Right.


Prof. Vincent Phillip Muñoz:  That’s what I think I said in that --


Prof. Michael McConnell:  But the other -- but you also say that it doesn’t violate the Free Exercise Clause to take away their equal right to this government benefit because they do religious stuff. 


Prof. Vincent Phillip Muñoz:  I don’t think you could target -- you couldn’t target the group and eliminate them on account of religion.


Prof. Michael McConnell:  That’s what they did. That’s what Missouri did, and the court said that violated the Free Exercise Clause. And your book -- I thought your book said that was incorrectly decided, and I didn’t -- yes. So you say, “The natural rights”—I’m reading on page 269—“jurisdictional approach would concur with Justice Sotomayor’s dissent in Trinity Lutheran.” You say, “The Free Exercise Clause affords the government wiggle room.” I don’t -- wiggle room --


Prof. Vincent Phillip Muñoz:  I’d have to -- I need to know what --




Prof. Michael McConnell:  -- wiggle room’s fine, but I don’t understand how you can take away people’s equal right to government benefits because they practice religion.


Prof. Vincent Phillip Muñoz:  I have to -- I don’t remember the passage. I have to -- I have to understand in what context I’m saying I could agree with her. I just don’t remember, so I don’t know. I don’t have a good answer off the top of my head right now. But what’s the page? I’ll go look that up. I have to --


Prof. Michael McConnell:  I think it was 269.


Prof. Vincent Phillip Muñoz:  -- look at my own reasoning. 269, okay. Well, listeners should go -- I, along with the listeners, should go and read what I say there and see if it holds up. I just don’t remember. I’m sorry. Yeah.


Prof. Michael McConnell:  So here’s a question from Anthony Deardorff (sp). I haven’t read it, so I’ll have to read it to you rather than summarize. “If I understand Professor Muñoz correctly, incidental burdens on religious exercise do not contravene the First Amendment even if the religious community in question would experience the burden as severe or preclusive. That conception of free exercise seems likely to foment civil unrest among religious factions that feel seriously burdened and are large enough to wield political power as a block but not large enough to force an exemption or concession, and it seems in tension with the Federal’s concern with factional strife and the Constitution’s concern with diffusing power.


Prof. Vincent Phillip Muñoz:  Yeah, very good. It’s a great question, but actually, I think it’s exactly the opposite. I think if you read Federalist 10—and I’ve written on this, not in this book but in a political science journal article, which most normal people don’t read --but, no. So let me try to summarize what I think the question is asking, right? I mean, some laws that have passed would really burden religious people. We’ve been talking about all sorts of laws. And Mr. Deardorff’s question is “Well, if laws -- if I say there’s no First Amendment protections as a shield from these laws, well, I’m going to allow the community to pass laws that some religious people are going to find very burdensome, and wouldn’t that lead to factional conflict or tension in the community?”


     I think, for good reason, lots of people think that way. Madison’s response to that is “If a law is going to be passed that would really burden a part of the community, that part of the community will be activated to resist the law—that they will have to make common cause with other individuals and try to explain why this is a bad law.” Right? They’re going to have to be political. They’re going to have to make arguments about justice on why this is an improper law to be passed. And Madison thinks that actually applying the same law to everyone will lessen the chance that bad laws get passed. It’s a calculation of his political science.


      Let me go back to the Eighteenth Amendment, and what about if we passed a law banning all alcohol? That would make the Catholic mass -- I’m Catholic. That would make the Catholic mass illegal. Well, actually, Madison would say, “You would never get such a law passed if there was no exemption available.” In fact, the availability of the exemption is how you get laws like Prohibition. Right? In fact, Madison would say, “Exemptions facilitate laws that are unjust.” I mean, he goes even further than I go. Right?

The availability of legislative exemptions helps facilitate laws that burden religious people’s freedom. Or even to put it more candidly, exemptions are how they buy off religious opposition to law. Madison says, “The surest way to just laws is that they be applied on the lawmaker and their friends.” That is, the equal application of the law is the surest protection to make sure that bad laws don’t get passed. Now, he might be wrong. His political science might be wrong. It might not work, given our contemporary polarization—our decreasing religious character. I’m actually open to those conversations. I mean, it might be that the Founders’ natural rights approach to political science and constitutionalism does not work in our modern times. I’m just trying to set forth what that political science and constitutionalism is.


Prof. Michael McConnell:  And we had an hour to do that between us, and the time is now up. But thank you, Phillip, for a fascinating explication of your excellent book.


Prof. Vincent Phillip Muñoz:  Thank you, Professor McConnell.


Prof. Michael McConnell:  Errors and all. [Laughter]


Prof. Vincent Phillip Muñoz:  It’s an honor, actually, for me to have you participate in this discussion. And thank you to The Federalist Society.


Chayila Kleist:  Indeed, on behalf of both myself and The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today, and I want to thank our audience for joining and participating. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming virtual events. Thank you all for joining us today. We’re adjourned.