In March 2010, the U.S. Court of Appeals for the Ninth Circuit affirmed the Constitutionality of the phrase “under God” in the Pledge of Allegiance as used in public schools. Writing for the majority in Newdow v. Rio Linda, Judge Carlos Bea cited the noncompulsory nature of the daily recitation, the founders’ consensus that “people derive their most important rights, not from the government, but from God,” and the symbolic, patriotic purpose of the Pledge. Dissenting Justice Stephen Reinhardt countered that the framers’ deliberate omission of references to the deity in the Constitution provided better guidance that called for a radical separation of religion from government activity. The religious motives of advocates who inserted the phrase in 1954, he added, exposed its true character. Consequently, even a noncompulsory daily ritual remained inherently coercive and offensive in an increasingly diverse and secular society. While Bea celebrated “the proud recitation of some of the ideals upon which our Republic was founded,” Reinhardt lamented “the very real Constitutional injury” done to the plaintiffs.
It is not the routine appropriation of the founders in cases such as Newdow, however, that bothers Vincent Phillip Muñoz. Rather, it is their collective deployment along hardened and restricted lines that he indicts for causing more confusion than clarity. While “nonpreferentialists” defend the neutral accommodation of religion in the public square, “strict separationists” call for its systematic exclusion. Muñoz’s central argument is disarmingly simple: First Amendment interpreters too often fail to consider the underlying principles of the founders they claim as allies. Consequently, combatants ignore both the diversity of the founders’ views and the significance of their philosophical dependence on natural law to shape their opinions. “If any of the founders are to be consulted to guide contemporary church-state questions,” he concludes, “it should be because of the profundity of their thought, not because of their status as the Constitution’s authors” (7).
Muñoz casts James Madison, George Washington, and Thomas Jefferson—the founders recalled most frequently in modern First Amendment court cases—as his protagonists. While his opening chapters establish [End Page 157] the historical basis for their prominence, he is primarily interested in uncovering the philosophical frameworks that informed their opinions. Madison, as revealed principally through his “Memorial and Remonstrance Against Religious Assessments” (1785), binds the state to “noncognizance.” Because religious belief is not a part of the social compact, the state cannot recognize it at all. Washington, on the other hand, ties religion to republican morality so closely in private correspondence and especially in his “Farewell Address” (1796) that he effectively endorses state solicitation of religion as a civic responsibility. Though bound to sectarian neutrality, the state can selectively support religious activity consistent with its civic needs. Finally, Muñoz finds a gap in the now famous “wall of separation between church and state” that Jefferson explained in his letter to the Danbury Baptist Association (1802). The author of the Virginia Statute of Religious Freedom (1786) also endorsed the republic’s practical capacity to resist religion, especially what he viewed as the irrational variety wielded by an influence-peddling clerical elite.
Muñoz notes as well that his trio’s philosophical positions did not always predict their actions. Although Jefferson’s pen regularly protected religious opinions from state interference, he also sought to limit clerical political participation in a 1783 constitution draft for Virginia. He rejected this proposal years later, but only because he was satisfied that waning clerical influence meant republicanism was no longer threatened by a “priest-ridden culture.” Likewise, Madison’s devotion to noncognizance did not prevent him from announcing national days of prayer as president and, in an early draft of the Second Amendment, even offering to excuse from military service those individuals “religiously scrupulous of bearing arms” (37).
From these discrete positions, Muñoz constructs a working legal doctrine for each founder and then compares their projected decisions with those of modern jurists in landmark First Amendment cases. The results expose a...