We are told that judicial engagement will not lead to dueling natural rights jurists usurping republican government. But what rights do they see?
Over at the Law and Religion Forum, we are hosting an online symposium on a very interesting article by Professor Vincent Phillip Muñoz, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion.” Muñoz’s basic claim is a historical one about the nature of the Founders’ constitutional commitment to religious freedom: They supported a narrow, but powerful, right of religious free exercise that protected fairly absolutely what were thought to be certain core features of religiosity—such as worship—but that did not protect the panoply of religious “interests” that might be dear to any given constituency.
Exemption from laws interfering with such interests might be granted as a matter of legislative grace, but were not constitutionally compelled. The constitutional right of religious freedom was intended to protect a natural right, and like other natural rights, its authority was supreme until precisely the point where its natural limits ran out. Beyond that point, the authority of the state to protect the peace and the rights of others was supreme.
Muñoz is not the first to make this general claim, though he supports it with some important new evidence. Indeed, the claim has been made by, among others, Professor Philip Hamburger in his fine 2004 essay, “More Is Less,” and the general idea can be made to apply to rights of all kinds. The greater the coverage of the right, the more likely that the right will conflict with other interests that a government might wish to protect, and the more qualified the right may become.
As Hamburger puts it:
If a right is defined with greater breadth, will this necessarily stimulate demands for a diminution of its availability? Surely not. Nonetheless, the danger may be inherent in every attempt to expand a right, for at some point, as the definition of a right is enlarged, there are likely to be reasons for qualifying access.
The danger, moreover, is not only that more coverage means greater opportunity for conflict with governmental interests at the periphery of the right. It is that by conceiving of natural rights broadly, and as by their nature in a kind of perpetual give-and-take with governmental interests, even the core of the right becomes negotiable. By and by, we become accustomed to thinking of natural rights just in this way—as just one more set of interests to be balanced by the government as it pursues its own purposes. Rights, in sum, are like taffy. They may be chewy and tough out of the wrapper, but as you stretch them out they become ever thinner, and ever weaker.
Some have contested this general account. Professor John Inazu, for example, has argued that the rights-confinement claim ignores the cultural context within which some rights grow more powerful while others decline. Free speech, after all, seems as powerful as ever, while religious freedom declines. But the ambit of both has expanded greatly over the last century, which suggests that the latter has declined for reasons other than rights-expansion.
I wonder, though, whether rights-expansion and cultural devaluation may be mutually supportive rather than mutually exclusive explanations for the decline of a right. Free speech, for example, has both grown exponentially as a right over the last several decades and has itself come under threats of all kinds in more recent years, as the government plays an ever larger role in the life of the citizenry. In that sense, we could say that more is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state.
On the other hand, examples of the more-is-less thesis are visible on an almost daily basis. One of the latest on the religious freedom front: churches in Massachusetts are now going to be compelled to abide by transgender discrimination regulations when they host “secular events.” I suppose this move by Massachusetts’s regulators is intended to exclude the sort of “worship” that lies at the core of the natural right of religious free exercise—an exclusion with which Professor Muñoz might agree. But it does mean that precisely what counts as “worship” will need to be closely defined (that is, litigated), lest the core of religious freedom be balanced away in favor of the government’s relentlessly swelling interests.