Religious Freedom, The Right To Worship, And Premodern Thinking

To be honest, writing a critical review of Phillip Muñoz’s American Liberty and the American Founding was a painful task. It was painful in part because I sincerely admire Muñoz and his scholarship, and in part because within the prescribed word limits (which I struggled against, and exceeded as flagrantly as I was allowed to) it was impossible adequately to acknowledge the book’s considerable virtues or to do justice to the intricacy of the argument. I agreed to undertake the task anyway mainly because, as Muñoz says, “the stakes are high.”

More specifically, religious freedom is now an embattled commitment: prominent officials, scholars, and others contend that constitutional protections for religious freedom should be withdrawn or at least minimized. Muñoz provides support to this minimizing project by arguing, basically, that the Constitution’s free exercise clause should be understood to protect only religious worship “as such.” Free exercise would not protect—not even presumptively—a person’s right to live in accordance with his religion; indeed, it would not even protect worship so long as government is not regulating it “as such”—i.e. as worship. As a practical matter, this position would give the contemporary secularist opponents of religious freedom pretty much everything they want. And the fact that Muñoz himself seems genuinely friendly to religion and religious freedom, and purports to be applying the natural rights philosophy of the framers, will make his book all the more welcome to those who would shrink constitutional protection for religious freedom.

But I don’t for a moment suspect Muñoz of being some closet collaborator with the opponents of religious freedom. He contends for his minimalist conclusions because he believes that is where the evidence and the analysis lead. I admire that integrity, and if I found Muñoz’s argument persuasive, I would reluctantly join in his constitutional conclusions, unwelcome as they might be. Unfortunately (or rather fortunately), the argument is not persuasive—not to me anyway.

My reasons for remaining unpersuaded, however, are not those that Muñoz ascribes to me. I am not some nihilistic skeptic about natural law, rights, or “premodern thinking.” The opposite is closer to the truth (and indeed, I have more than once been accused of “premodern thinking”). The problem with the natural rights reasoning favored by Muñoz is not that it is premodern, but rather that it is not premodern enough. Thus, as I have argued repeatedly elsewhere, many modern forms of reasoning may be rhetorically useful and may (or may not) be enlisted in behalf of sound conclusions; and yet these forms of reasoning lack cogency because they do not acknowledge the deeper (and, if you like, “premodern”) ethical and ontological presuppositions on which they implicitly depend. This criticism applies, I think, to the “state-of-nature, social-contract” rhetoric that was part—only part—of the discursive repertoire sometimes employed by people like Locke, Madison, and Jefferson, but that is the central theme in Muñoz’s interpretation of religious freedom. Read More»

Steven D. Smith | “Minimalist Religious Freedom as a Self-Inflicted Wound” | November 1, 2022




  1. Interesting. So this guy Smith seems to have a good handle on the right way to view these vital concepts.

    I’m fighting the good fight personally. It’s insane the lengths I’ve had to personally go through to maintain reasonable autonomy at my workplace. But my religious conscience is my only out at this point. Although I make my case via reasonable precedent, my only grounds for exemption is religious conscience. If that’s taken away, we are in a very bad place.

  2. “…Free exercise would not protect—not even presumptively—a person’s right to live in accordance with his religion; indeed, it would not even protect worship so long as government is not regulating it “as such”—i.e. as worship…”

    As I’ve mentioned in response to previous blog posts, if Muñoz view were to be completely adopted – which I assume would require SCOTUS to hand down consensus on the “proper” way to view what the Constitution says in these “post-modern” times – what effect would that have on Islamic communities? Muslims aren’t about to go along with SSM or much of the other nonsensical secular opinions on how the culture should be organized. I suspect that the powers-that-be would simply turn their heads to the Muslims because, whether anyone wants to admit it or not the real target in this argument is Christianity.

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