Spring 2010 - Interpretation

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I n t e r p r e t a t i o n
as long as that religion satisfied his standards of enlightened rationalism:
“Jefferson believed America to be embroiled in a battle between religious
superstition and intolerance on the one hand and reason and freedom on
the other. He sought to achieve a decisive victory by using state power to
nurture the rational religious beliefs…and to suppress the irrational dogmas
and institutions that he believed to be hostile to liberty” (116).
It is possible to pause here and quibble about whether
their namesakes would fully own up to these characterizations, or question
whether it is fair to settle on what Madison said (in the Memorial and
Remonstrance) versus what he did (in declaring days of prayer when he was
President, for example) while doing just the opposite with Jefferson, whose
actions (in setting up the University of Virginia) speak louder than his words
(in the Virginia Statute for Religious Freedom). But Muñoz disarms this line
of attack in the Introduction, where he sets out his version of originalism:
“The Founders’ ideas should govern us today only to the extent that they are
persuasive,” not because “a powerful elite voted for the Constitution more
than 200 years ago” (5). As a result, it is less critical to fully explicate any
particular founder’s entire church-state record than to identify principles of
religious freedom that can compete for our—or the Supreme Court’s—attention
as potential constitutional philosophies.
Muñoz then turns to the Court’s church-state jurisprudence,
where he accomplishes a feat that has eluded judges and scholars alike: he
finds a consistent theme running through most of the establishment clause
cases—Madisonianism. Irrespective of the rationale cited by the Court in
these cases, which span three score years, Madisonianism predicts the result
nearly 75 percent of the time—and in one of the non-matched cases (over
legislative chaplains), the Court went with what Madison actually did rather
than what Muñoz’s Madisonianism would require. That is, the prevailing
judicial approach to the establishment clause has given us a largely Madisonian
non-cognizance standard that forbids the government from giving
aid or support to religion qua religion, even though the Court itself has not
advanced overtly Madisonian reasons. Meanwhile, Washingtonianism, and
even Jeffersonianism, would put more religion in the public schools than
the Court has allowed, although there would be a rationalism litmus test
in Jefferson’s schools by which old-time religion would be supplanted by an
appropriately enlightened faith.
One of the most intriguing elements of Muñoz’s link between
current establishment clause jurisprudence and these founding fathers is