by Vincent Phillip Muñoz. New York: Cambridge University Press. 252pp. Cloth. $85.00/£45.00. ISBN: 9780521515153. Paper. $24.99/£16.99. ISBN: 9780521735797. eBook format. $20.00. ISBN: 9780511590764.
Reviewed by Jacob M. Blosser, Department of History and Government, Texas Woman’s University. Email: JBlosser [at] mail.twu.edu.
According to Vincent Phillip Muñoz’s compelling new book, the penultimate trinity of Founding Fathers – James Madison, George Washington, and Thomas Jefferson – possessed divergent opinions on religious freedom and the separation of church and state. Contrary to scholars and policy makers who, in their pursuit of original intent, have described the Founders’ rationale for the First Amendment in sanitized, univocal categories such as strict separation or non-preferentialism, Muñoz’s nuanced study shows that three fundamental Founders profoundly disagreed on these issues and, consequently, the quest for a uniform and univocal consensus of Founding opinion on the First Amendment is quixotic. Describing a modern judicial climate in which “the Founders have been invoked time and time again to guide church-state jurisprudence,” Muñoz argues that the repeated conflation of Founding opinion with consensus-bearing univocal and a-historical categories (i.e. all the Founders were strict separationists or, alternatively, non-preferentialists), has resulted in a Supreme Court which has “never gotten the Founders right” (p.206). In contrast, Muñoz’s book aims to “set the historical record straight” by illuminating the contradictory and multivalent First Amendment opinions of Madison, Washington, and Jefferson (p.208).
According to Muñoz, James Madison’s public and private statements on religious freedom and the role of religion in public life advocated governmental noncognizance of religion. Arguing that religious views were inalienable, and therefore excluded from the Lockean social compact, Madison’s position maintained that the government “must be blind to religion” (p.26). Neither preferring religion nor punishing it, Madison’s noncognizance put religious faith outside the realm of state activity.
In contrast, Muñoz maintains that George Washington’s public and private statements envisioned a far different relationship between personal faith and state action. Unlike Madison’s governmental noncognizance of religion, Washington believed in harnessing the moral authority of religion to inculcate civic virtue. Far from being blind to religion, Washington believed that the state could support religions that benefitted the public good and, conversely, limit faiths deemed to be subversive of national civic ends. Importantly, in granting the state a role in the religious life of the nation, Washington avoided denominational sectarianism by appealing to civic ecumenism – any religion that improved the morality of citizens and, thereby, improved the public good, could receive state sanction and support. [*130]
Washington’s use of the civic good as a litmus test for religions that received public support echoed Thomas Jefferson’s belief that the federal government should only assist rationally-based religious groups. Muñoz paints Jefferson as an anticlerical Deist whose wariness of clerical political authority and opposition to orthodox Christian belief included the hope that, within seventy-five years of the nation’s founding, most Americans would be ardent, “rational” Unitarians. Until the national Unitarian conversion, however, Jefferson advocated governmental antagonism toward traditional revealed religion and its clerics. The state, Jefferson argued, could use its authority to restrict orthodox religious belief and limit the political power and influence of clerics while at the same time supporting non-sectarian “rational” religious views. Importantly, Muñoz is quick to point out that Jefferson’s desire to limit religious orthodoxy and champion rational religion directly contradicted his sweeping statement in the Virginia Statute for Religious Freedom guaranteeing the unrestricted freedom of the human mind. Describing yet one more fundamental contradiction in the mind of an American paradox, Muñoz attributes this example of Jeffersonian conscious dissonance to the distance between his philosophical ideals and his lived political reality. Describing Jefferson’s ideas on church and state in terms consistent with his political efforts to reduce governmental support for traditional Christianity, yet inconsistent with his broader philosophical platitudes, Muñoz paints a portrait of Jefferson as fiercely antagonistic to traditional religious exercise.
In describing three views on church state relations that vary from state noncognizance of religion (Madison), to outright state support for civic-minded religion (Washington), to state antagonism for non-rational religion (Jefferson), Muñoz definitely demonstrates the intrinsic multivalency of Founding opinions on the issue. And yet, legal scholars may be deeply troubled by Muñoz’s lack of historical context in describing these three views. While Muñoz grounds his treatment of the Founders’ opinions on religious freedom and church-state relations in a careful, close-reading of several key texts including Jefferson’s Virginia Statue and Madison’s “Memorial and Remonstrance,” his analysis does not go beyond these texts. For example, with very few exceptions, Muñoz completely divorces his analysis from the much larger religious culture of eighteenth-century Virginia. Consequently, the reader is left to wonder why, in a book about the three Virginians’ views of church-state relations, the author says almost nothing about Virginia’s Anglican establishment or the latitudinarian theology it communicated. Ostensibly, both the established church’s polity and its ideology formed and nurtured these founders’ personal religious views and their diverse reactions to church-state relations. While Muñoz clearly shows that Madison, Washington, and Jefferson possessed divergent views, he does not show the cultural or historical justification for their opinions. The reader is left to wonder why Jefferson was so anticlerical. Why was Washington, raised in the same colony as Jefferson, so trusting of clergy to inculcate civic virtue? Why did Madison, also a Virginian, think [*131] governmental blindness to religion was best? The answers to these questions lie in a far greater analysis of Virginia’s religious establishment, its denominational pluralism, and the colony’s pervasive latitudinarian theology. Consequently, while Muñoz is correct to extrapolate differences between Madison, Washington, and Jefferson in key church-state issues, far greater historical context is needed in order to, as Muñoz suggests, “set the historical record straight” (p.208).
Having distilled, with limited cultural context, the differing views of Madison, Washington, and Jefferson, Muñoz applies these views to thirty-five post 1878 First Amendment Supreme Court cases. Examining cases involving both the establishment and free exercise clauses, Muñoz predicts how Madisonian noncognizance, Washingtonian support for civic-minded religion, and Jeffersonian anticlericalism and antagonism of non-rational orthodoxy would have decided cases ranging from prayer in public schools, to public displays of religious symbols, to direct and indirect state burdens upon religion. While highly entertaining, this imaginative exercise assumes that Madison, Washington, and Jefferson’s views on religion can be systematically converted into “legal doctrines” (p.119). Given the fact that these three Founders never expressed their views from the bench but, rather, described them in a variety of public and private papers conditioned and inspired by disparate cultural and historical moments and considering that their own actions often contradicted their written views, one wonders if such opinions bear the weight of judicial doctrines. Nevertheless, it is counter-factually entertaining to imagine Jefferson sitting alongside Justice Black in MCCOLLUM v. BOARD OF EDUCATION or Washington sitting on the Rehnquist Court in VAN ORDEN v. PERRY.
Muñoz’s goal in imagining the Founders’ decisions in contemporary First Amendment cases is, of course, to reiterate the very different state we would live in if only one Founder’s views were uniformly followed. Indeed, the great accomplishment of GOD AND THE FOUNDERS is its demonstration of the multivalency of Founding opinion on religion in public life and the eclectic nature of the Supreme Court’s interpretation of the Founders’ views. In the closing chapter, Muñoz shows that all recent Supreme Court justices have cast votes consistent with all three Founders’ views. Even Justice Scalia, who would have unanimously agreed with Washington in the fourteen First Amendment cases adjudicated during his tenure, would also have found himself, at times, in agreement with Madison and, more rarely, with Jefferson.
In showing the great diversity of Founding opinion among three Virginia founders, albeit with limited historical context, the reader is left wanting more. How did the views of other Founders, from other parts of the country, compare with these Virginians? What other multivalent possibilities for imagining religious liberty and church-state relations did other Founders leave us with? For raising these and other provocative questions, Muñoz’s well-written and clearly-argued text will undoubtedly be beneficial to undergraduate and graduate students of church-state relations. [*132]
MCCOLLUM v. BOARD OF EDUCATION, 333 U.S. 203 (1948).
VAN ORDEN v. PERRY, 545 U.S. 677 (2005).
© Copyright 2010 by the author, Jacob M. Blosser.