I've attended numerous lectures open to the public given by the James Madison Program at Princeton (Robby George's baby), an outstanding program. On Monday, for the first time, I was invited as a guest for a private lunch seminar. V. Phillip Munoz, the Madison Program’s William E. Simon Visiting Fellow in Religion and Public Life, and Assistant Professor of Political Science at Tufts University, who invited me, discussed “The Original Meaning of the Establishment Clause.” After he finishes at Princeton, Munoz is moving from Tufts to Notre Dame.
I've previously blogged about his work on religion and the founding (see here, here, here, here and here). He's one of the best up and coming scholars of the religion clauses representing the "originalist perspective." He is taking his ideas and publishing them in a book from one of the big named academic publishers which I think will make a serious mark.
At the lunch I was one of about ten people with whom he discussed his ideas. Other notable guest (well everyone was notable, except maybe me) included Matthew J. Franck of Bench Memos (like Munoz, a visiting fellow at the James Madison Program), Bradford P. Wilson, Executive Director of the Madison Program, and Michael New of the Witherspoon Institute, and an adjunct scholar at the Cato Institute.
I need not speak of everything Munoz discussed; you can read his articles and eventually buy his book. What I think most important (what breaks new ground) is how his research addresses the thorny issue of what the original Constitution says about what the FEDERAL government may do regarding religion. Ignore, for now, "religion is left to the states" and focus on what the FEDERAL government may do.
The original meaning of the Establishment Clause didn't mean Jefferson's Wall of Separation Standard or the Jeffersonian-Madisonian "Virginia" ideal for religion and government. Yet, we must remember, the original Constitution -- one of limited, enumerated powers -- did not endow or empower "religion" at all. As Walter Berns put it:
[W]hereas...[the Constitution] grants Congress the power "to promote the Progress of Science and useful Arts" (see Article I, section 8), it nowhere gives it the power to promote religious belief. Rather, the First Amendment seems to deny it such a power. -- "Making Patriots," p. 43.
Were America founded to be a "Christian" (or an "orthodox Christian") nation, one might expect such an empowerment in the original Constitution. However, that doesn't mean the "strict separationists" are right either.
The lack of empowerment of religion in the original Constitution plus the First Amendments' restrictive language might lead one to conclude the Federal government had no power to "touch" religion. James Madison once described the First Amendment as "a positive denial to Congress of any power whatever on the subject." Representing the Federalist point of view, Madison believed the First Amendment largely unnecessary and superfluous for that reason. Why restrict the federal government's power over religion, speech, press, etc., when they are given no enumerated power over such matters? [The answer is the Federalists did it to assuage anti-Federalist concerns and, consequently, needed to nip those concerns in the bud to secure ratification of the Constitution.]
As Leonard Levy once remarked:
[T]he clearest proposition about the establishment clause is that it limits power by placing an absolute restriction on the United States: "Congress shall make no law...." Reading an empowerment from that is about as valid as reading the entrails of a chicken for the meaning of the establishment clause or for portents of the future.
Munoz points out one problem with this theory is that Congress proposed a standard for the First Amendment -- "Congress shall make no laws touching religion, or infringing the rights of conscience," -- but didn't adopt that language. This is important: Congress proposed and rejected many different wordings of the First Amendment. Some folks, for instance, inaptly argue that because Congress proposed forbidding a "national religion," that's all the Amendment forbids. That's wrong because Congress rejected that very language. Ultimately Munoz concludes Congress (or the Federal government) is NOT forbidden from "touching religion" provided it takes no legal action "respecting an establishment of religion."
So, given the Federal government has no enumerated POWER over religion, HOW might they "touch" religion (provided they do so while not respecting an establishment of religion)? The answer is such action must be pursuant to an enumerated constitutional power like Congress' Commerce Clause power or whatnot.
The next question is WHAT might the federal government do that "touches" religion pursuant to one of its enumerated secular powers? And that answer is more nebulous; the Founding record is less than clear on the matter. Munoz notes this will require some "constitutional construction" (to use Keith Whittington's terminology).
Another thorny issue Munoz addressed is whether the Establishment Clause properly incorporates through the 14th Amendment at all (arguably it doesn't) and if not, then what? Phil noted how the originalist theory was not "feasible" in that the Supreme Court will not overrule its entire post-Everson line of cases. He is thinking about writing a chapter with some more modest suggestions about how to interpret the Clause. At that point in the dialog the very conservative crowd balked. They said sell your modest suggestions to legislatures not the Supreme Court. Many folks will, no doubt, react harshly to the idea of states having the theoretical right to establish their own churches. My own view, which I (and at least one other present at the lunch) expressed is even if the Establishment Clause doesn't properly incorporate (which it probably doesn't) the Equal Protection Clause could still do much of what the Court has the EC doing, but without the idea of separation qua separation. This is similar to what Akhil Amar of Yale law school, Christopher Eisgruber, Provost of Princeton, and Martha Nussbaum of University of Chicago have argued.
I noted, after them, the original Founding and the 14th Amendment are "pregnant" with equality implications. Liberalism, after all, was founded on the twin pillars of liberty and equality. [For more on the relationship between religious equality and some modern EC results, see my past post which discusses Akhil Amar's position.]
The "indeterminacy" of the Constitution's text regarding the Establishment Clause (and other parts of the Constitution), and the consequent need for "constitutional construction" raised another important issue: what originalist political theory might properly "ground" constitutional "construction" or even "interpretation"? I suggested the Declaration of Independence to which Matthew Franck objected. He noted if anything is "non-justiciable," it is that.
This issue was relevant when we discussed what the states originally did under the original Constitution (and perhaps still should be able to do, even under the present post-14th amended Constitution). The states, among other things, imposed religious tests for public office. When we tried to glean a "pattern" of those religious tests, Matthew Franck noted something about "Trinitarianism" as the "general" standard. After the lecture I noted to Franck how J. Adams & Jefferson were without question unitarians as Washington and Madison may have been. And what did it say that 2 of the 4 perhaps 4/4 of the first Presidents wouldn't have passed these religious tests? I further relayed how Ben Franklin as acting governor of PA helped remove their state religious test that required belief in the divine inspiration of the Old and New Testament in part because he couldn't pass it! As Franklin noted, "the[re are] several Things in the old Testament impossible to be given by divine Inspiration,..."
His response was they didn't "own" the Constitution and the Constitution represented serious "compromises" with the certain enlightenment, unitarian ideals of those aforementioned "key Founders." I noted perhaps we should read the Constitution through its ideals (ala the DOI), not compromises with those ideals. He again expressed how he explicitly rejected the Harry Jaffa/Hadley Arkes notion of reading the Constitution through the lens of the DOI. I brought up Randy Barnett's book on natural rights and the Constitution (for which he expressed his distaste) and I think he (rightly) understood if we view the American Founding (Constitution) through the lens of the DOI, you don't necessarily get Jaffa's/Arkes' desired results, but rather Barnett's or Tim Sandefur's. And to that I say let's party on that "low but solid ground." But let's give conservative evangelicals and Roman Catholics (and others) an equal place at that party.
I think the resurrected Founders and John Locke would agree; but that's just my opinion.