Conventional wisdom on the separation of church and state sees two principal camps: followers of the strict separationist reading of Jefferson and Madison provided by the Supreme Court in its 1947 Everson v. Board of Education decision, which would prohibit any official relation between religion and civil authority; and followers of the view first introduced by then Associate Justice William Rehnquist, in his dissenting opinion in the “moment of silence” public school case, Wallace v. Jeffree in 1985, which insists that Madison and the founders only sought to prohibit preferential aid to one religion over another. Vincent Phillip Muñoz, professor of religion and public life at the University of Notre Dame, in this very important book sees no problem in relying on the founding fathers as guides to modern church-state jurisprudence, but he dismisses the either/or quality of the appeal as woefully simplistic. He complicates citing the founders on church-state matters in subtle and interesting ways, which in turn complicate any originalist application of their views to contemporary Supreme Court deliberations in this area.

His central claim is that there is not one founders' church-state position, but three. There is a Madisonian perspective, which calls for a “religion blind” Constitution, where the state is prohibited “from taking cognizance of religion” (p. 12). There is also, and here Muñoz breaks new ground, a Washingtonian view, in which the first president holds “that the state could and should nurture citizen's beliefs and encourage religious practices” (p. 50). Finally, Muñoz depicts a Jeffersonian attitude, quite at odds with traditional readings, in which Jefferson sought to use the state to cultivate rational religious opinions and to hinder superstitious beliefs peddled by meddlesome clerics.

Once he has isolated these three different founding church-state philosophies in the first half of the book, Muñoz turns in its second half to a fascinating translation of each of them into a judicial doctrine that he then applies to leading church-state constitutional questions faced by the modern Supreme Court. He extrapolates a set of legal rules from each of the three philosophies and applies them to cases adjudicated under the Establishment clause today, such as religion in public schools, governmental support of private religious schools, and the presence of religion in the public square. He also applies them to current free-exercise cases, such as those dealing with direct or indirect burden on religious exercise, or cases dealing with identification of religion for regulation or preferential exemptions.

Charts are presented in each doctrinal area showing how an application of each of the three founding philosophies would have decided the particular case. There are also charts summarizing the ratio of agreement between each of the three church-state positions and the Court's findings and charts describing the agreement between individual Supreme Court justices and the three views. There are not many surprises on this last one: Rehnquist, Scalia, and Thomas are the most Washingtonian; Stevens and Souter the most Jeffersonian; O'Connor and Kennedy the most Madisonian.

Muñoz concludes that using originalism today in church-state cases seldom provides a judicial trump card because “if one founder supports one side, a different founder supports the opposing side” (p. 207). Still, he has his preferred founding philosophy, which he thinks should govern the contemporary Court's findings, what he labels “modified Madisonian, no legal privileges, no legal penalties” (p. 218). It would modify Madison, many might argue beyond recognition, because it would lead the Court, he hopes, “to allow the state to become cognizant of religion in symbolic ways … [to] allow the state to set up religious displays in the town square, to celebrate holidays and allow public officials to endorse religion in non-coercive ways” (p. 218), such as postings of the Ten Commandments and the recitation of prayers at public school graduations. The book ends with policy outcomes all of a non-liberal piece, legitimized by painstakingly novel and creative scholarship.

But here is the rub. Even if one accepts the originalist logic, as this reviewer does, the whole argument, clever and thoughtful as it is, depends on accepting the three abstracted founding philosophies as accurate descriptions of each of these person's church-state views and accepting, as well, the three as exhaustive of the founding generation's attitude to the relation of religion and politics. But in his crafting three founding philosophies for present-day analytical and prescriptive use, distortions and omissions occur, mainly with respect to Washington and Jefferson. Relying so heavily on General Washington's Revolutionary War support of military chaplains as proof that “he thought government could and should support religion” (p. 58) is suspect. So, too, Washington's “deliberate intention to sanctify solemn public statements and occasions” (p. 53) is hardly “his approval of government support of religion” (p. 69). Yes, Washington believed morality, religion, and a pious citizenry were important for republican government, as did many in the 1780s, but that in and of itself, absent specific statements, does not indicate “the propriety of government support” (p. 54) for religion.

Muñoz provides a long and informative discussion of Jefferson's educational plans for his University of Virginia, but it is surely a stretch to read these as proof that he envisions a role for government to legislatively oppose irrational religion. It distorts Jefferson's minimalist view of government, which he expresses in his Notes on the State of Virginia, specifically in terms of a laissez-faire government leaving religious unreason alone. The passage is Jefferson's most important philosophical statement on religion and politics, and while Muñoz cites the opening sentence—“The legitimate powers of government extend to such acts only as are injurious to others”—in a footnote (p. 90), he makes no mention of the statement's next two sentences, where Jefferson rejects governmental action: “But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither breaks my leg, nor picks my pocket.”

Particularly problematic is the suggestion that these three positions exhaust the possible views on church-state matters in the founding that are worthy to be noticed by justices today. Muñoz is particularly proud that in offering Washington's views, he broadens our notion of who speaks for the founding generation on issues of religious freedom and broadens our understanding of the range of principles the founders put forth. How unfortunate, then, that Muñoz did not look even further. He makes no mention of what was the founding generation's most profound and most democratic discussion of the relationship of religion and the state, the debates in each of the thirteen state ratification conventions in 1787 and 1788 over the “no religious test” clause in Article VI of the Constitution. Here is where large numbers of people in the founding generation, in fact, actually voted on church-state issues as they repeatedly turned down efforts to put God, Christ, or even merely religion into what many of its opponents called the “godless Constitution.” These views of church and state, a possible fourth perspective, are nowhere in the book, nor, for that matter, is a possible fifth, the many Anti-Federalists in these conventions seeking to Christianize the new Constitution. There are, as Muñoz teaches us, founders, and there are other founders who contemporary jurists might turn to for guidance. He concludes that “the Court, however, has never gotten the Founders right” (p. 206). I'm not sure the author of this indisputably interesting and provocative book has done so either.