Abusing History: Original Intent, the First Amendment, and Religious Freedom (Part I): A Critique of Vincent Phillip Muñoz’s “The Original Meaning of the Establishment Clause and the Impossibility of its Incorporation”

In 1946 Everson v. Board of Education borrowed Thomas Jefferson’s simple phrase, “a wall of separation between Church and State,” (1) to describe the meaning of the Establishment Clause of the First Amendment. While the memorable metaphor caught the public’s imagination it also provoked the ire of those who sought a more prominent role for religion in public life. Unhappy with the implications of this separationist interpretation of the Establishment Clause (“Congress shall make no law respecting an establishment of religion”), conservatives mounted a campaign aimed at undoing Everson. While they have been largely unsuccessful in achieving that goal, they have had some success in chipping away at the wall of separation. The power of the Establishment Clause has been brushed aside in recent years to make way for an ever more expansive interpretation of the Free Exercise Clause by the conservative Roberts Court (see Trinity). A fatal blow to the clause could come from a new interpretation that is quickly becoming the standard interpretation in conservative circles. The “federalist” (or “jurisdictional”) interpretation denies that the Establishment Clause created any substantive rule concerning church-state relations. Instead, they insist, the clause was originally intended to prevent the federal government from intervening in state establishments, and, therefore, it is a mistake to apply a substantive rule (separation) to state governments via the Fourteenth Amendment. If applied this interpretation would return power to the states to make laws concerning religion while also preventing the establishment of a national religion. In other words, “the wall of separation” would be a thing of the past.

The U.S. Supreme Court 2017

As part of a larger trend towards originalism the advocates of this federalist interpretation insist that they are above the fray, and are simply recounting the “original intent” of the Founders. Originalism has become a significant force for change in constitutional law, including the infamous Supreme Court Cases Citizens United (opened the floodgates to large sums of money in politics) and Heller (declared that the Second Amendment was an individual right). These devastatingly consequential cases grew out of the radical fringes of constitutional jurisprudence, thanks in large part to the Federalist Society, a conservative networking organization. (2) The dubious historical grounding of these “originalist” interpretations have been pointed out by historians, but to no avail.

As noted by the constitutional scholar Eric Berger, what makes this flawed methodology particularly regrettable is “originalism’s pretense that it captures the Constitution’s singular, objective meaning creates an especially misleading illusion of certainty.” (3) Originalism, as it has been practiced, has been marred by the abuse of history as scholars attempt to bend the historical record to their preferences, while pretending to be simply disinterested bards revealing a forgotten past. Pre-determined conclusions require deceptive narratives. To make matters worse, originalists have further politicized their project as they seek to galvanize large segments behind their “originalist” interpretations. This has had a polarizing effect across America; the originalists paint themselves as objective purveyors of the original intent of the Founders, in contrast to their opponents who are portrayed as political actors seeking to insert their own biases into the law. It becomes a war of good vs. evil in which the originalists are the honest heroes fighting against an un-American other. (4) With that in mind, I took up this project of examining the scholarly integrity of influential ideas and people who put forward “originalist” interpretations of the First Amendment.

Rather than reviewing the growing “federalist” scholarship in this series, I will focus on a single representative example by a well-known and respected constitutional scholar in this camp. (5) Vincent Phillip Muñoz argues that the Framers of the First Amendment meant for the Establishment Clause to be a federalist provision that explicitly left the issue of religious establishments to the state. Consequently, he argues, it was a mistake to “constitutionalize one proper relationship between church and state” and then impose this solution on the states via the Fourteenth Amendment. (6) Only Justice Clarence Thomas, Muñoz boasts, is brave enough, “to appreciate the Founders’ original concern with federalism.” (p. 636) Whereas, he declares that the Supreme Court as a whole is guilty of an “alarming misuse of history.” (p. 637) He further heaps disdain upon them by claiming that the modern Court’s Establishment Clause jurisprudence is “little more than arrogance cloaked as humility,” a quote originally used by Justice William Brennan to criticize originalism. (7) In contrast, he presents himself as an unbiased messenger claiming to have found “the original meaning and clear intention” of the Establishment Clause. (p. 604) This confidence seems particularly out of sorts with the limited and flawed nature of the extant evidence surrounding the creation of the First Amendment. While this evidence sets limits on possible interpretations it is too fragmented to yield the certainties that Muñoz ascribes to his own findings, even if his scholarship had been rock solid.

All scholars have preferences and biases, but it is only when they interfere with one’s ability to fairly engage in objective scholarship that those preferences become a problem, especially when one is declaring that they have found “the original meaning and clear intention” of the Constitution. (p. 605) Two years before publishing “The Original Meaning,” Muñoz testified at a Senate subcommittee as a fellow of the conservative American Enterprise Institute, arguing that the Supreme Court’s separationist interpretation of the Establishment Clause encouraged hostility to religion in the public square. This common claim by conservatives is mistaken and at odds with the views of the evangelicals who fought for religious liberty during the Revolutionary years and the early Republic. (see What the Religious Right Gets Wrong about Religious Freedom) They insisted that the ends of government where civil, not religious, as is evident in this 1785 Presbyterian petition submitted to the Virginia legislature:

The end of civil government is security to the temporal liberty and property of mankind, and to protect them in the free exercise of religion. Legislators are invested with powers from their constituents for this purpose only; and their duty extends no further. Religion is altogether personal, and the right of exercising it unalienable; and it is not, cannot, and ought not to be, resigned to the will of the society at large; and much less to the Legislature, which derived its authority wholly from the consent of the people, and is limited by the original intention of civil association. (8)

The only role concerning religion appropriate for the government, according to these Presbyterians, was to protect their religious rights. This separationist stance was not seen by these devout Presbyterians as in any way hostile to religion. On the contrary, they saw it as essential to the purity of their religion:

Its Divine Author did not think it necessary to render it [Christianity] dependent on earthly governments. And experience has shown that this dependence, where it has been effected, has been an injury rather than an aid. It has introduced corruption among the teachers and professors of it wherever it has been tried for hundreds of years, and has been destructive of genuine morality, in proportion to zeal, of the powers of this world, in arming it with the sanction of legal terrors, or inviting to its profession by honors and rewards. (8)

There is nothing inherently hostile about a government that leaves religion to stand on its own, especially when this arrangement frees citizens to practice any religion, or no religion, freely. As a religious minority in a state dominated by Episcopalians, these Presbyterians understood that state support of religion in any way was the source of religious oppression.

Muñoz clearly does not share this perspective. Muñoz’s aversion to separation may have influenced his scholarship, but that does not necessarily mean that federalism is an illegitimate interpretation of the Establishment Clause. It must be judged on its merits alone, which is the aim of this series of posts. To do this I will follow the same basic chronological outline used by Muñoz, beginning with an examination of the establishments of religion in the states and ending with the deliberations of the First Federal Congress (1789). Rather than finding a serious historical enquiry, a review of Muñoz’s work revealed an “alarming misuse of history.” It turns out that Justice Brennan’s allegation was correct, originalism is “little more than arrogance cloaked as humility.”

Religious Establishments in the States: Virginia vs. Massachusetts

After the American colonies freed themselves from the yoke of the British Empire, they embarked upon the difficult task of creating their own constitutions. Guided by the republican principles of freedom and equality these new constitutions kicked off the experiment in American democracy. These documents shared many of the same characteristics as they exchanged ideas, and even language, from each other. Nevertheless, there were some significant differences on certain issues including the subject of religion. The treatment of religion rested upon distinct conceptions of religious liberty, which varied mostly by region. These regional differences are reduced to two basic church-state approaches by Muñoz: the “Virginia Understanding” and the “Massachusetts Way.” This simplified framing of church-state relations in the newly independent states sets up the essential framework for Muñoz’s federalist argument.

According to Muñoz the Virginia way is characterized by an arrangement that “effectively privatized religion,” whereas the Massachusetts way is defined by state support for religion. (p. 60) Any assessment of the merits of these arrangements is unnecessary, according to Muñoz, in order to “ascertain[] the original meaning of the Establishment Clause.” (p. 611) While there is no need to evaluate these systems on the basis of their compatibility with religious liberty, especially since most agree that the Virginia model is the clear winner, Muñoz’s over simplified description of the church-state arrangements that existed at the time is problematic. It creates a false equivalency and obscures the broader trend of separation.

This misleading overview, however, serves a purpose. It sets up his claim that those opposed to the proposed federal Constitution (Anti-Federalists) feared that it threatened their own particular state’s church-state arrangements, which then became the basis for the Establishment Clause as the representatives in Congress attempted to quell those fears after the Constitution was ratified. The contention that there was no way that the federal Congress could have agreed on any particular solution to the church-state problem is central to Muñoz’s argument. This is why the Establishment Clause specifically gave jurisdiction over the issue of establishments to the states, rather than settling on any particular solution such as separation, according to Muñoz.

There are several problems with this argument. The main problem is that Congress could have done, and did, both. Congress did agree upon a substantive solution, albeit one aimed specifically at the federal government, as the word “Congress” at the beginning of the Establishment Clause indicates. And, as such, this left the states free to legislate on the subject of religion in whatever way they saw fit. The clause was not specifically targeting the states; they were simply left free on this subject by default. The specifics of the making of the Establishment Clause will be addressed in the section on the First Federal Congress. The focus here will be on the issue of state establishments, or rather lack thereof. On this issue, Muñoz’s characterization is a misleading setup for the rest of his argument.

Muñoz sets up a false equivalency concerning church-state relations that leaves the impression that the “Massachusetts way” was equally as popular as the “Virginia way,” when in fact, most states had either never had a system of state-supported religion, or had abandoned it before the ratification debates. A clear majority of Americans actually favored separating religion and government. By the time of the First Congress in 1789 only the New England states (Massachusetts, Connecticut, New Hampshire, and Vermont) provided financial support for religion. Georgia and Maryland allowed religious assessments per their constitutions, but the pro-establishment forces in their states never succeeded in garnering enough support to pass any legislation for that purpose. Then in 1789 and 1810 respectively, these states passed constitutional amendments that banned all support of religion. (9) South Carolina had established the Protestant religion in 1778, albeit with no financial support, but abandoned it in 1790. (10) So, in reality, it was only the four New England states that maintained any kind of state-supported religion, and even there, support for establishments was waning. By 1833 all four had abandoned these relics of the past. The passion and momentum were clearly on the side of no establishments. As Muñoz notes, there were many across the new nation that did believe in government supported religion, but they were the minority in most states and their numbers were dwindling. So, it is disingenuous to set up the context of church-state relations in the states as if the two visions of church-state relations were equally popular.

While disingenuous, Muñoz’s false equivalency does not necessarily negate his point that there was no consensus on the issue, but it does indicate that there was more agreement on the subject than he claims, opening up the possibility that the representatives in Congress could have agreed on a substantive solution. What Muñoz must prove is that it was the desire to protect the distinct church-state solutions in each state that animated the Anti-Federalist opposition to the Constitution. If this was not their main concern, then Muñoz’s argument falls apart. The next post will examine the Anti-Federalist campaign against the Constitution to determine whether or not his argument holds up.

  1. Thomas Jefferson to the Danbury Baptists (January 1, 1802) Founders online https://founders.archives.gov/documents/Jefferson/01-36-02-0152-0006.
  2. Amanda Hollis-Brusy, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (New York: Oxford University Press, 2015) 31-89.
  3. Eric Berger, “Originalism’s Pretenses,” 16 University of Pennsylvania Journal Constitutional Law (2013-14), 329.
  4. Robert Post & Reva Siegel, “Originalism as a Political Practice: The Right’s Living Constitution,” Fordham Law Review 75 (2006) 545-574.
  5. For a broader critique of the federalist interpretation of the Establishment Clause see Ellis M. West, The Religion Clauses of the First Amendment: Guarantees of States’ Rights? (Lanham, Maryland: Lexington Books, 2011).
  6. Vincent Phillip Muñoz, “The Original Meaning of the Establishment Clause and the impossibility of its Incorporation,” University of Pennsylvania Journal of Constitutional Law 8 (2006), 604.
  7. 636.
  8. Ministers and lay representatives of Presbyterian Church (November 2, 1785) The Library of Virginia: Digital Collection (http://www.virginiamemory.com/collections/petitions)
  9. An 1810 amendment in Maryland precluded the possibility of any tax “for the support of any religion.” Ben Perley Poore, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States, Part II (Washington: Government Printing Office, 1878). Poore, The Federal and State Constitutions I, (Washington: Government Printing Office, 1877). The Constitution of 1798 finally gave Georgians full religious liberty:

No person within this State shall, upon any pretence, be deprived of the inestimable privilege of worshiping God in a manner agreeable to his own conscience, nor be compelled to attend any place of worship contrary to his own faith and judgment; nor shall he ever be obliged to pay tithes, taxes, or any other rate, for the building or repairing any place of worship or for the maintenance of any minister or ministry, contrary to what he believes to be right, or hath voluntarily engaged to do. No one religious society shall ever be established in this State, in preference to another; nor shall any person be denied the enjoyment of any civil right merely on account of his religious principles. Poore, The Federal and State Constitutions I, 395.

  1. The 1778 Constitution: “The Christian Protestant Religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State.” Poore, The Federal and State Constitutions, Part II, 1626. Nothing remained of this establishment in the 1790 Constitution. Instead, it stated: “The free exercise and enjoyment of religious profession and wordship, without discrimination or preference, shall forever hereafter be allowed with this State to all mankind: Provided, That the liberty of conscience thereby declared shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.” Ibid., 1632-3.



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