Abstract
There is a difference between the free exercise of religion as a fact (being free from any constraint or restraint on what a person wants to do), a moral right (being free from unnecessary or illegitimate constraints or restraints), and a constitutional right (being free from laws unauthorized or prohibited by a constitution), and only the last of these is explained in the book. The original meaning of religious freedom as a constitutional right can be ascertained by examining how the religion clauses were explained by those early Americans who advocated, drafted, and discussed them, even though they did not always practice what they preached.
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Notes
- 1.
See Thomas Curry, “Interpreting the First Amendment: Has Ideology Triumphed over History,” DePaul Law Review, 53 (Fall 2003): 6.
- 2.
Thus, in the US there are laws prohibiting businesses from discriminating against job applicants because of their religion or lack thereof. See, e.g., Civil Rights Act of 1964, Title VII, § 701(j). For an elaboration of this point, see Kathleen A. Brady, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence (N.Y.: Cambridge Univ. Press, 2015), 237.
- 3.
For more on the difference between natural or physical liberty and moral or civil liberty, see Morton G. White, The Philosophy of the American Revolution (N.Y.: Oxford Univ. Press, 1978), 186–95, and John P. Reid, The Concept of Liberty in the Age of the American Revolution (Chicago: Univ. of Chicago Press, 1988), 27–31.
- 4.
See Curry, “Interpreting the First Amendment,” 6–8.
- 5.
See, e.g., Daan Braveman, “The Establishment Clause and the Course of Religious Neutrality,” Maryland Law Review, 45 (1986): 375, and William P. Marshall, “Unprecedential Analysis and Original Intent,” William & Mary Law Review, 27 (1986): 930–31.
- 6.
Leonard W. Levy goes so far as to say that “the clauses of the First Amendment cannot be taken literally. They do not mean what they say nor say what the Framers meant.” Origins of the Bill of Rights (New Haven, CT: Yale Univ. Press, 1999), 85. Also see Lawrence B. Solum, “We Are All Originalists Now,” in Constitutional Originalism (Ithaca, NY: Cornell Univ. Press, 2011), p. 2.
- 7.
See Kent Greenawalt, Interpreting the Constitution (N.Y.: Oxford Univ. Press, 2015), 44–55.
- 8.
Id., 47.
- 9.
“James Madison in the House of Representatives” (4/6/1796), in The Records of the Federal Convention of 1787, ed. Max Farrand (New Haven, CT: Yale Univ. Press, 1911), 3:374.
- 10.
Charles Lofgren, “The Original Understanding of Original Intent,” Constitutional Commentary, 5 (1988): 79, and Michael J. Perry, “The Legitimacy of Particular Conceptions of Constitutional Interpretation,” Virginia Law Review, 77 (1991): 677.
- 11.
See below, Chap. 10.
- 12.
Daniel A. Farber, “The Originalism Debate: A Guide for the Perplexed,” Ohio State Law Journal, 49 (1988–89): 1085–1106, and Perry, “Legitimacy,” 674–77. For an explanation of a law’s public meaning, see Lawrence B. Solum, “The Fixation Thesis: The Role of Historical Fact in Original Meaning,” Notre Dame Law Review, 91 (Nov. 2015): 27–29.
- 13.
See, e.g., Chester J. Antieau, Freedom from Federal Establishment: Formation and early History of the First Amendment Religion Clauses (Milwaukee, WI: Bruce Pub. Co., 1964), ix–xi; Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, DC: American Enterprise Institute, 1978), 20, 25; Gerard V. Bradley, Church-State Relationships in America (Westport, CT: Greenwood Press, 1987), 19–20, 70–73, 88; William K. Lietzau, “Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation,” DePaul Law Review, 39 (Summer 1990): 1195; John Witte, Jr., Religion and the American Constitutional Experiment (Boulder, CO: Westview Press, 2005), 21–22; Vincent P. Munoz , “If Religious Liberty Does Not Mean Exemptions, What Might It Mean?” Notre Dame Law Review, 91 (2016): 1389–92; Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment. N.Y.: Oxford Univ. Press, 1986, 193–94, 213–15, 221–22; Brady, Distinctiveness, 162; and McConnell, “Origins,” 1456.
- 14.
Agreeing is Steven K. Green, “Federalism and Establishment Clause: A Reassessment,” Creighton Law Review, 38 (2004–2005): 796–97, and Brady, Distinctiveness, 120. For the argument that constitutional interpretation must rely on non-textual evidence, such as historical context, see William M. Treanor, “Against Textualism,” Northwestern University Law Review, 103 (Spring 2009): 983–1006, and Antieau et al, Freedom from Establishment, 143.
- 15.
See, e.g., Daniel O. Conkle, Constitutional Law: The Religion Clauses (N.Y.: Foundation Press, 2003), 19–20; Jay S. Bybee, “Taking Liberties with the First Amendment,” Vanderbilt Law Review, 48 (Nov. 1995): 1565; Kurt J. Lash, “Power and the Subject of Religion,” Ohio State Law Journal, 59 (1998): 1117; and Smith, Foreordained Failure, 6–8, 11–12, 19–22, 26–27, 30–34, 37–43.
- 16.
Frank Lambert, The Founding Fathers and the Place of Religion in America (Princeton, NJ: Princeton Univ. Press, 2003), 210.
- 17.
Catharine Cookson, Regulating Religion: The Courts and the Free Exercise Clause (N.Y.: Oxford Univ. Press, 2001), 81–82 & 227, n 177, and Witte, Religion and Experiment, 21–22.
- 18.
Farewell to Christendom: The Future of Church and State in America (N.Y.: Oxford Univ. Press, 2001), 14.
- 19.
Thomas B. Colby & Peter J. Smith, “Living Originalism,” Duke Law Journal, 59 (November 2009): 253. Perhaps the most thorough explanation and criticism of Justice Scalia’s theory that original meaning equals original application is contained in Mark D. Greenberg and Harry Litman, “The Meaning of Original Meaning,” Georgetown Law Journal, 86 (Jan. 1998): 569–619. Justice Kennedy also subscribes to this theory. See County of Allegheny v. ACLU, 492 U.S. 573, 670 (1989) (J. Kennedy, dissenting).
- 20.
463 U.S. 783 (1983).
- 21.
See, e.g., Van Orden v. Perry, 545 U.S. 677, 686–90 (2005) (C. J. Rehnquist, plurality opinion) (upholding on the basis of historical practice a monument to Ten Commandments on Texas’ Capitol grounds).
- 22.
Colby & Smith, “Living Originalism” 253–54. Andrew Koppelman calls it “phony originalism.” “Phony Originalism and the Establishment Clause,” Northwestern University Law Review, 103 (2009), 727–50; Randy E. Barnett calls it “faint-hearted.” “Scalia’s Infidelity: A Critique of ‘Faint-Hearted’ Originalism,” University of Cincinnati Law Review, 75 (Fall 2006): 7–24; and Michael J. Perry calls it “unsophisticated originalism.” “Legitimacy,” 679–83.
- 23.
“On Reading the Constitution,” Cornell Law Review, 73 (January 1988): 363. Agreeing with McConnell is Steven K. Green, “‘Bad History’: The Lure of History in Establishment Clause Adjudication,” Notre Dame Law Review, 81 (June 2006): 1724–25.
- 24.
Andrew Koppelman, “Corruption of Religion and the Establishment Clause,” William and Mary Law Review, 50 (May 2009): 1895.
- 25.
Jed Rubenfeld, Freedom and Time: A Theory of Constitutional Self-Government (New Haven, CT: Yale Univ. Press, 2001), 178–95; Laycock, Religious Liberty, 1:699; and Perry, “Legitimacy,” 681–84, 704–09.
- 26.
See, e.g., Madison’s “Letter to Thomas Jefferson” (10/17/1788), in The Papers of James Madison, ed. Robert A. Rutland & Charles F. Hobson (Charlottesville, VA: Univ. Press of Virginia, 1977), 11:297–300.
- 27.
Greenawalt, “Common Sense,” 479, 497.
- 28.
As will be seen below, see Chap. 10, some members of the First Congress who voted for the first ten amendments may have done so not because they believed in them or thought that they were necessary, but because they had made a “deal” with several of the state ratifying conventions that they would do so if those conventions would ratify the Constitution of 1787. Those legislators, therefore, might very well have voted for laws inconsistent with one or more of those amendments.
- 29.
For scholars who say that is a possibility, see Laycock, Religious Liberty, 1:629–30, and Perry, “Legitimacy,” 704–09.
- 30.
See John L. McGinnis & Michael Rappaport, “Original Interpretative Principles as the Core of Originalism,” Constitutional Commentary, 24 (Summer 2007), 371–82.
- 31.
Carl H. Esbeck, “Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation,” Utah Law Review, 2011 (2011): 613–14, and Perry, “Legitimacy,” 683, 705–06. Douglas Laycock says that such unexamined actions are “the most worthless form of intentionalist argument.” “Religious Liberty as Liberty,” Journal of Contemporary Legal Issues, 7 (Fall 1996): 343.
- 32.
For example, early Americans disagreed on the legitimacy of a law prohibiting clergy from serving in a legislature or holding public office. The debate, especially between Madison and Jefferson, on this issue is presented in Vincent P. Munoz , God and the Founders: Madison, Washington, and Jefferson (N.Y.: Cambridge Univ. Press, 2009), 11–12, 40, 124.
- 33.
Esbeck, “Uses and Abuses,” 613.
- 34.
Even Thomas Jefferson and James Madison often compromised their positions, including those on religious freedom, in order to obtain other objectives or the support of their constituents. For examples, see Donald L. Drakeman, Church, State, and Original Intent (N.Y.: Cambridge Univ. Press, 2010), 273, 281, and Daniel Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State (New York: New York Univ. Press, 2002), 57–58.
- 35.
Jefferson wrote: “[T]here is no rule without exceptions: but it is false reasoning which converts exceptions to the general rule,” just “like the want or imperfection of the senses of sight and hearing . . . is no proof that it is a general characteristic of the species.” “Letter to Thomas Law” (6/13/1814), in The Papers of Thomas Jefferson: Retirement Series, ed. J. Jefferson Looney (Princeton, NJ: Princeton Univ. Press, 2010), 7:414.
- 36.
Greenawalt , “Common Sense,” 492, noting that legislators may enact “a principle into law even when they disagree about its scope.” For an extended discussion of the difference between a law’s “interpretation” or principle and its “construction” or application, see Solum, “Fixation Thesis,” 9–12, 15, 33–35.
- 37.
The writings on this issue are too numerous to list.
- 38.
See Colby & Smith, “Living Originalism,” 242–43. One especially compelling example of such an argument is made by Gary L. McDowell in The Language of Law and the Foundations of American Constitutionalism (N.Y.: Cambridge Univ. Press, 2010), 1–8, 395–400.
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West, E.M. (2019). Constitutional Rights and Ascertaining Their Original Meaning. In: The Free Exercise of Religion in America. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-06052-7_2
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