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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Sunday, September 25, 2011 ::
    Michael McConnell's "The Origins and Historical Understanding of Free Exercise of Religion" is a magnificently researched compendium of the early religious history of Anglo-America, and, as such, a valuable antidote to the silly oversimplifications often served up by the Court on the subject, usually in opinions by Justice Hugo Black.

    But as far as achieving its principle goal, however -- what do we really have here?

    * Conclusive evidence that Locke was a bitter opponent of McConnell's preferred Free Exercise theory;

    * Unsupported and improbable speculation that as early as 1663 (the Rhode Island Charter) a distinction may have intelligible between laws for the preservation of public order and "other" kinds of laws;

    * The suggestion that because William Penn uses the phrase "excellent laws," other laws must be non-excellent and thus ripe for religious exemptions;

    * ...as if the Rhode Island Charter or William Penn's views were the Free Exercise Clause, anyway!

    * Discussion of the views of Jefferson, which are perfectly irrelevant to the original understanding of the First Amendment;

    * Inconclusive attempts to tease out of Madison's statements on Free Exercise a meaning that isn't hostile to individual conduct exemptions;

    * Persistent refusal to recognize "of religion" as a term of limitation, whether in the federal clause itself or in the state constitutional Free Exercise clauses on which the federal one is "presumably" based; ("exercise" = "action"; yes, and "exercise of religion" = "religious action" = worship, as stated specifically in the New York version of the clause, one of those "presumably-based-ons")

    * anachronistic interpretation of "the provisos," which in any event aren't in the federal version (this issue is fully hashed out between O'Connor and Scalia in City of Boerne);

    * "Where the rights of others are not involved, however, the free exercise right prevails." What others? Other than the individual believer? Other than the individual defendant? Other than members of his church or sect? And what rights? "Others" have lots of rights.... What laws DON'T protect the "rights of others" in some meaningful sense? (Only the ones you don't agree with! Because of course those are the ones that don't protect the rights of others in any MEANINGFUL sense.)

    * an anti-perfectionist (in the Robert George sense) interpretation of the Declaration becomes the price of Free Exercise;

    * (about pp. 1467-1474) an amazing series of legislatively enacted exemptions; these of course prove nothing about McC's central thesis - indeed they tend to cut against it: the fact that legislatures grant exemptions does not prove they have to, or that courts are authorized to compel them to; and it tends to prove that constitutionally compelled exemptions are not even necessary to achieve religious-liberty goals.

    * a federal Free Exercise legislative history that runs, on the whole, against his thesis (tho' all must admit that the record is shockingly thin given the gravity of the issue);

    * He's right that "no structural distortions arise from assuming that, for modern purposes (after “incorporation”), the free exercise clause means the same thing for states that it has always meant for the federal government." (1485) Heavy emphasis on "structural." But this does not get around Steven D. Smith's argument that incorporating the Free Exercise Clause is as futile as incorporating the Establishment Clause because neither had a nationally agreed-upon meaning in the Founding era.

    * "Prohibit" (as against "abridge"): pick your favorite subsection of the Johnson's Dictionary definition. Most of them aren't helpful to McC's thesis; no more is Webster's.

    Catholics and Baptists were satisfied -- and why not? A federal government with enumerated powers to begin with (including none having to do with religion), now additionally barred from "prohibiting the free exercise of religion" -- what's not to like? That the same government is not also barred from causing incidental burdens to religion? But that assumes the conclusion: that incidental burdens on religion were seen as something that could be categorically avoided, consistent with the rule of law.

    With a limited federal government, and a legal culture favorable to legislative enacted exemptions (not constitutionally required ones), of course the Catholics and Baptists were happy. They had no reason not to be.

    Today we have reasons to be scared crapless (federal RFRA to one side), not because of Smith, but because of a vastly more powerful federal government, a judicial culture acclimated to seeing many of that government's functions as "compelling state interests," and a legal culture where the only enacted religious exemptions still familiar are ridiculously narrow ones (e.g. the kind that apply to churches but not to religious bookstores, religious hospitals, clergy organizations, etc.)

    * "Exercise"/"conscience": McC gets the "knowledge" aspect of "conscience" but misses the aspect of applying that knowledge to action, which is crucial to "conscience." Those who used "consience" in their FE clauses could have used "knowledge" or "veracity" or "private thoughts" or even just "belief" if that was all they meant.

    * "To protect everything is to protect nothing." 1493. Glad we've settled that.

    * Explication of Commonwealth v. Wolf (fn. 507 and preceding text) is very dangerous. The court apparently looked into the plaintiff's religion in detail to see if the law really was a burden on him or not. McC praises this, seeing in it a harbinger of conduct exemptions to come. It is just the sort of judicial inquiry into religion that is probably a per se violation of the Establishment Clause and that in any case religious people should flee like the plague.

    * The jury service cases -- admittedly few, which surprises McC but shouldn't -- show that compromises were worked out w/o putting conduct exemptions into constl law.

    * p. 1512 - Maximum claim: "Exemptions were not common enough to compel the inference that the term “free exercise of religion” necessarily included an enforceable right to exemption, and there was little direct discussion of the issue. Without overstating the force of the evidence, however, it is possible to say that the modern doctrine of free exercise exemptions is more consistent with the original understanding than is a position that leads only to the facial neutrality of legislation."

    * "A religious duty does not cease to be a religious duty merely because the legislature has passed a generally applicable law making compliance difficult or impossible." Who said it does?

    * The Conclusion. Contrary to article, church-state distinction was richly theorized in the Middle Ages; see e.g.. Pope Gelasius; Dante's De Monarchia. Expression "separation of church and state" was not used during that time -- but neither was it used during the Reformation either, at least not as a term of praise or desiderata; see P. Hamburger, Separation of Church and State.

    McC is rather more interesting and engaging about opposing an "Enlightenment" view (such as Locke's) to a radical pluralist view (his) that he calls "aggressive interpretation of the Free Exercise Clause." He's right that it's "aggressive" -- rather than accurate. He's wrong in thinking that the festival of unleashed minority religions that he hopes for can be, was, or ever will be allowed by the federal judiciary using "compelling interest" analysis. And he has proved, in spite of himself, that the Framers never required any such thing.

    :: David M. Wagner 7:22 PM [+] ::

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