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In the 1963 case Sherbert v. Verner , the Supreme Court read the First Amendment’s Free Exercise Clause to mean that, in certain cases, religious believers should be exempted from otherwise applicable laws. In 1990, the Supreme Court essentially overturned that framework in the case Employment Division of Oregon v. Smith . The Smith case has proved quite controversial, and numerous public-interest law firms, especially those that defend religious litigants, have regularly asked the Court to overturn it in favor of a re-application of the Sherbert precedent. Their contention is often that the Smith ruling is inconsistent with the original intent and history of the Free Exercise Clause, which they maintain was intended to establish a right to religious exemption from law. This dissertation considers the details of the Smith case, then provides an extended historical analysis of the American Founding in search of the original meaning of the Free Exercise Clause with regard to religious exemptions. The question it seeks to answer is whether the original intent of the Free Exercise Clause includes a justiciable right to religious exemptions. The dissertation begins by considering much of the available scholarship and using that scholarship to provide a useful background in seventeenth- and eighteenth-century laws and conditions in the American colonies. With a general view of history established, the dissertation looks to key primary sources to illuminate the contemporary understanding of religious liberty. Chapter 3 compares colonial charters and state constitutions and their language and provisions concerning religious liberty. Chapter 4 examines the legislative fight against religious establishment in Virginia and makes a careful analysis of Thomas Jefferson and James Madison’s writings on the topic of religious liberty. Chapter 5 considers the Constitutional Convention, the text of the Constitution, and The Federalist Papers for clues about how the writers of the Constitution intended to protect religious liberty. Chapter 6 includes a narrative history of the state ratification debates, since these debates provided the energy and some of the original language behind the federal Bill of Rights, including the First Amendment. Chapter 7 details the events and arguments of the First Congress as it deliberated and passed the religious clauses of the First Amendment, considering what they included, what they left out, and why. The dissertation concludes that there is little to no historical precedent at the time of the American founding for the Sherbert -standard of judicially-enacted exemptions for religious believers. While the American founders were concerned with protecting religious liberty, they were careful not to extend broad and unqualified protections of religious practice in their constitutions and bills of rights, but rather provided focused protections limited to belief and worship, and, in some cases, narrow allowances for conscientious objectors from military service. Their deliberation over the Constitution and the Bill of Rights suggests that these were intended to be consistent with contemporary practice, at least on the subject of religious liberty, which did not include a general right to religious exemption. Rather than an aggressive judicial application of a right to religious liberty, the American founders thought that religion could best be protected through the political process. James Madison’s “Federalist 10” and “Federalist 51” provide a guide for protecting all manner of minority positions, especially to include religious practice

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Claremont Colleges Scholarship @ Claremont CGU Theses & Dissertations CGU Student Scholarship 2024 Originalism & Judicially-Enacted Religious Exemptions: Revisiting Employment Division of Oregon v. Smith Eric Russell Coykendall Claremont Graduate University Follow this and additional works at: https://scholarship.claremont.edu/cgu_etd  Part of the American Studies Commons, Legal History Commons, and the Political Science Commons Recommended Citation Coykendall, Eric Russell. (2024). Originalism & Judicially-Enacted Religious Exemptions: Revisiting Employment Division of Oregon v. Smith. CGU Theses & Dissertations, 773. https://scholarship.claremont.edu/cgu_etd/773. This Open Access Dissertation is brought to you for free and open access by the CGU Student Scholarship at Scholarship @ Claremont. It has been accepted for inclusion in CGU Theses & Dissertations by an authorized administrator of Scholarship @ Claremont. For more information, please contact scholarship@claremont.edu.       Originalism & Judicially-Enacted Religious Exemptions:  Revisiting Employment Division of Oregon v. Smith  By Eric Coykendall        Claremont Graduate University 2024                  Copyright © Eric Coykendall, 2024 All Rights Reserved  Approval of the Dissertation Committee  This dissertation has been duly read, reviewed, and critiqued by the Committee listed below, which hereby approves the manuscript of Eric Coykendall as fulfilling the scope and quality requirements for meriting the degree of Doctor of Philosophy in Political Science.   Charles R. Kesler, Chair Claremont McKenna College Professor of Government  Joseph M. Bessette Claremont McKenna College Professor of Government  Ralph A. Rossum Claremont McKenna College Professor of Government  Vincent P. Muñoz University of Notre Dame Professor of Political Science      Abstract Originalism & Judicially-Enacted Religious Exemptions:  Revisiting Employment Division of Oregon v. Smith  By Eric Coykendall Claremont Graduate University: 2024 In the 1963 case Sherbert v. Verner, the Supreme Court read the First Amendment’s Free Exercise Clause to mean that, in certain cases, religious believers should be exempted from otherwise applicable laws. In 1990, the Supreme Court essentially overturned that framework in the case Employment Division of Oregon v. Smith. The Smith case has proved quite controversial, and numerous public-interest law firms, especially those that defend religious litigants, have regularly asked the Court to overturn it in favor of a re-application of the Sherbert precedent. Their contention is often that the Smith ruling is inconsistent with the original intent and history of the Free Exercise Clause, which they maintain was intended to establish a right to religious exemption from law. This dissertation considers the details of the Smith case, then provides an extended historical analysis of the American Founding in search of the original meaning of the Free Exercise Clause with regard to religious exemptions. The question it seeks to answer is whether the original intent of the Free Exercise Clause includes a justiciable right to religious exemptions. The dissertation begins by considering much of the available scholarship and using that scholarship to provide a useful background in seventeenth- and eighteenth-century laws and conditions in the American colonies. With a general view of history established, the dissertation looks to key primary sources to illuminate the contemporary understanding of religious liberty.  Chapter 3 compares colonial charters and state constitutions and their language and provisions concerning religious liberty. Chapter 4 examines the legislative fight against religious establishment in Virginia and makes a careful analysis of Thomas Jefferson and James Madison’s writings on the topic of religious liberty. Chapter 5 considers the Constitutional Convention, the text of the Constitution, and The Federalist Papers for clues about how the writers of the Constitution intended to protect religious liberty. Chapter 6 includes a narrative history of the state ratification debates, since these debates provided the energy and some of the original language behind the federal Bill of Rights, including the First Amendment. Chapter 7 details the events and arguments of the First Congress as it deliberated and passed the religious clauses of the First Amendment, considering what they included, what they left out, and why. The dissertation concludes that there is little to no historical precedent at the time of the American founding for the Sherbert-standard of judicially-enacted exemptions for religious believers. While the American founders were concerned with protecting religious liberty, they were careful not to extend broad and unqualified protections of religious practice in their constitutions and bills of rights, but rather provided focused protections limited to belief and worship, and, in some cases, narrow allowances for conscientious objectors from military service. Their deliberation over the Constitution and the Bill of Rights suggests that these were intended to be consistent with contemporary practice, at least on the subject of religious liberty, which did not include a general right to religious exemption. Rather than an aggressive judicial application of a right to religious liberty, the American founders thought that religion could best be protected through the political process. James Madison’s “Federalist 10” and “Federalist 51” provide a guide for protecting all manner of minority positions, especially to include religious practice.        Dedication To Michael Uhlmann, who taught me to love the institutions of American government and respect the Founders’ Constitution; and to my wife, whose patient support is my rock.     vii   TABLE OF CONTENTS  Chapter 1, Introduction ................................................................................................................... 1 Chapter 2, Background and Religious Liberty in the American Colonies ................................... 35 Chapter 3, State Constitutions ....................................................................................................... 89 Figure 3.1—Religious Liberties in State Constitutions through 1820 ...................... 92 Figure 3.2—Important Totals from Figure 3.1 ........................................................ 100 Chapter 4, The Positions of Jefferson and Madison ................................................................... 130 Figure 4.1—Outline of “Virginia Statute for Establishing Religious Freedom” .... 148 Figure 4.2—Short Outline of the Memorial and Remonstrance ............................. 169 Chapter 5, The Constitutional Convention ................................................................................. 188 Chapter 6, The State Ratification Debates .................................................................................. 242 Figure 6.1—Recommendations for Religious Liberty Amendments from State Ratification Debates ............................................................................................. 246 Chapter 7, The First Congress .................................................................................................... 273 Figure 7.1—Timeline of Religious Amendments in the First Congress ................. 291 Chapter 8, Conclusion ................................................................................................................. 342 Appendix: Bibliography .............................................................................................................. 383   1 CHAPTER 1 INTRODUCTION  The 1963 Supreme Court case Sherbert v. Verner saw the creation of a new regime of judicially-granted religious exemptions to law that, by Constitutional interpretation or statutory requirement, have been part of our jurisprudence ever since. Broadly supported by the political left and right in both their legal and popular quarters, these judicially-enacted religious exemptions are understood by the former as a protection for minority faiths and by the latter as an important stay on the encroachment of ever-enlarging government authority. Both groups view these exemptions as a key defense of a fundamental right guaranteed by the First Amendment. In recent years, for instance, this strategy has been successfully employed to exempt a religious group from the federal insurance mandate of providing abortion coverage for its employees—most of whom are nuns. What few have acknowledged or been willing to admit, however, is that these judicially-granted exemptions are wholly novel and bear little if any connection to the original intent of the First Amendment and its defense of religious liberty. And, like tax exemptions, these exemptions probably do more to promote the growth of government power than to curtail it.  Background  Adell Sherbert worked in the Carolina textile industry that once thrived along corridors of inexpensive hydroelectric power. The common practice in the industry at that time was to keep the mills running six days per week, Monday through Saturday, and to require the same working days of all employees. As a Seventh Day Adventist, however, Adell Sherbert refused to work on  2 Saturdays. She apparently was able to reach an accommodation with her employer exempting her from Saturday work, but the accommodation was nullified when changes in management or scheduling required all employees to work on Saturdays.1 Sherbert stuck to her beliefs and was discharged, then found that she was unable to find another job in her industry. While jobs were available, no one was willing to hire an employee who refused Saturday work. She therefore applied for unemployment benefits from the state of South Carolina and was denied on the grounds that “she would not accept suitable work when offered.”2 Sherbert sued the state, and her case eventually made its way to the Supreme Court of the United States. Justice Brennan determined that the state of South Carolina lacked a sufficient compelling interest for withholding its unemployment insurance funds and that the First Amendment required a religious exemption in this case. As Justice Harlan wrote in his dissent, “What the Court is holding is that, if the State chooses to condition unemployment compensation on the applicant's availability for work, it is constitutionally compelled to carve out an exception—and to provide benefits—for those whose unavailability is due to their religious convictions.”3 The jurisprudential result of the Sherbert ruling was for the Court to develop a balancing test for cases involving religious claimants who argued that a generally applicable law or government decision represented an infringement on their religious liberty rights under the First Amendment. The test required judges to answer two essential questions: First, does the law in question represent a compelling interest of the state? Second—supposing that the law does represent a compelling interest—does the law use the least restrictive means to accomplish that  1 Sherbert v. Verner, 374 U.S. 398 (1963), see syllabus and footnote 1. 2 Ibid., syllabus. 3 Ibid., 420.  3 interest?4 The Supreme Court ostensibly applied this test to numerous cases from the 1960s through the 1980s, and it came to be regarded as an essential means of protecting religious liberty. Despite its regular application, however, the compelling interest test only led the Court to find an exemption in a small number of cases, the majority of which (including Sherbert) involved unemployment benefit claims.5 While somewhat overstating the matter, Justice Scalia explained,  We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation. Although we have sometimes purported to apply the Sherbert test in contexts other than that, we have always found the test satisfied.6   In United States v. Lee (1982), for example, the Court applied the test in the case of an Amish employer who claimed an exemption from paying social security taxes, but the Court found in favor of the government’s interest in maintaining the tax.7 And the Court’s application of the test was anything but uniform. In many cases the Court simply declined to apply the test at all. The Court declined to apply the test in each case for some specific reason—determining it inapplicable in cases involving the military or the prison system, for example—but the sum of these suggested that the compelling interest test was more rhetorical than useful for protecting religious liberty.8 The matter came to a head in the now infamous case of Employment Division, Department of Human Resources of Oregon v. Smith (1990), with Justice Scalia writing the  4 See, for example, Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 718-19 (1981). 5 Thomas v. Review Board and Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136 (1987). 6 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), at 883. Scalia overstates the matter because he distinguishes at least one important case (Wisconsin v. Yoder, 406 US 205) that does not easily fit with his conclusion. 7 United States v. Lee, 455 U.S. 252 (1982) 8 Goldman v. Weinberger, 475 US 503 (1986); O’Lone v. Estate of Shabazz, 482 US 342 (1987).  4 opinion of the Court and effectively tossing out the Sherbert precedent and its call for the Court to carve out religious exemptions. The circumstances of the case brought the Court’s precedent of requiring religious exemptions in unemployment cases into a conflict involving a direct violation of law, requiring the Court to decide whether its scope for religious exemptions ought to include illegal drug use. The prior unemployment cases had allowed the Court to skirt around the central issue of Court-ordered exemptions because the stakes in these cases were low and the offending actions—the state’s refusal to extend unemployment benefits to the plaintiff—were easily remediated with little or no change to the underlying law. But Employment Division v. Smith brought the matter into stark relief: does the First Amendment require the Court to offer religious exemptions to law, even criminal law?  The History of the Smith Case The Smith case began with the firing of Alfred Smith’s colleague Galen Black in October of 1983 from a substance abuse counseling facility in Oregon where both men were employed as substance abuse counselors. Smith himself was dismissed several months later, and for identical cause: both men had consumed peyote, an illegal drug, while participating in a religious ceremony of the Native American Church. Company policy required counselors to abstain from all alcohol and non-prescription drugs, so their employer regarded the incidents as direct violations of policy. Black and Smith, however, regarded the incidents as part of their religion and believed that their actions were protected by the Free Exercise Clause of the United States Constitution. When the counselors applied for unemployment benefits with the state of Oregon, they were denied. Oregon unemployment law prevented them from receiving state benefits because they had been fired for misconduct related to their work.  5 Smith and Black appealed the decision of the unemployment office, and their claims were heard by the various levels of administration governing state unemployment claims before they appealed to the Oregon Court of Appeals. Once in the court system, the cases directly pitted Smith and Black against the state of Oregon and Oregon Attorney General David Frohnmayer, who was committed to winning the two cases. Frohnmayer feared that losing either case would open a Pandora’s box of similar religious appeals that would jeopardize his ability to prosecute drug-related offenses.9 Because of Frohnmayer’s commitment to the case, he insisted on appealing the court decisions in favor of Smith and Black, first at the Oregon Court of Appeals, then the Oregon Supreme Court. In the second appeal, the Oregon Attorney General filed a petition for certiorari with the Supreme Court of the United States, who agreed to hear the cases. Because the disputes in the two cases were so similar, the Supreme Court combined the two appeals into one, in the case which would henceforth be known as Employment Division, Department of Human Resources of Oregon v. Smith. When the case was heard in December 1987, oral arguments focused on a question specifically ignored by the appellate courts in Oregon: was peyote definitely illegal in Oregon, and, if so, did enforcement of state drug laws represent a compelling interest for the state?10 Like the Oregon courts, the Supreme Court recognized that the case should be evaluated in light of the compelling interest test in Sherbert, but in Sherbert and its immediate progeny11 no one sought relief for religious practice that was in violation of criminal law. Both statute and case law in Oregon suggested that the state provided no such exemption to its ban on peyote, but the Supreme Court lacked the background or  9 Garrett Epps, To An Unknown God: Religious Freedom on Trial (New York: St. Martin’s Press, 2001), 119-121; according to Epps, Frohnmayer also seems to have believed that the case was a test case (128). 10 Epps, To An Unknown God, 172-83. 11 Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981), and Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136 (1987)  6 jurisdiction to make that determination.12 The Court thus remanded the case to the Oregon Supreme Court with the task of determining the legality of ceremonial peyote consumption. The new question put before the Oregon Supreme Court significantly changed public and legal perception of the case.13 Whereas the prior question concerned whether the compelling interest standard of Sherbert could be applied to a broader set of circumstances, the new question potentially situated the First Amendment against the enforcement of criminal drug statutes. In a short and rather jumbled opinion, the Oregon court again found in favor of Black and Smith. To reach this finding, the court discarded state law—under which peyote was clearly forbidden—and refused to rule on the applicability of the Oregon Constitution.14 The state court then rested the entire case upon a brief argument about the First Amendment: “We are convinced that the First Amendment would not allow Oregon authorities to seize peyote used in good faith in a religious ceremony of the Native American Church and to prosecute those who possess it.”15 The result of the court’s opinion was another petition to the United States Supreme Court by the Oregon Attorney General. The ambiguity of both the state court’s argument and its implications gave Attorney General Frohnmayer the opportunity to put the matter very directly to the Supreme Court, focused on the matter which most concerned his ability to prosecute the law. In his petition for certiorari, Frohnmayer asked the court to settle the question of whether or not the First Amendment offered exemptions to criminal drug statutes. The Supreme Court again agreed to hear the case.16  12 In State v. Soto, the Oregon Court of Appeals had declined to exempt a practitioner of the Native American Church from the state’s statute banning the possession of peyote (Epps, To An Unknown God, 117-18). 13 Epps, To An Unknown God, 186. 14 Smith v. Employment Div., 307 Or. 68 (1988), Footnote 3. In a footnote the court explained, “Because no criminal case is before us, we do not give an advisory opinion on the circumstances under which prosecuting members of the Native American Church…for sacramental use of peyote would violate the Oregon Constitution.” 15 Smith v. Employment Div., 307 Or. 68, 75-76 (1988). 16 Epps, To An Unknown God, 187-89.  7 At oral argument on November 6, 1989, Oregon Attorney General David Frohnmayer was careful not to attack the Native American Church directly, but rather to describe the problem in terms of a slippery slope that represented a compelling state interest. The problem was not that the peyote ceremony represented a great threat to the civil order, or even that peyote was a significant law-enforcement concern, but rather that no principled distinction could be drawn between religions and drugs. If the court were to exempt the Native American Church from peyote laws, then it would have to offer similar exemptions to other churches and other drugs, thereby undercutting the state’s ability to police illegal substances. Black and Smith’s attorney ultimately presented the weaker argument, but he, too, argued on the grounds of compelling state interest—the language and framework established by Sherbert. Both would therefore be surprised when the Court’s response discarded that framework.   The Opinion of the Court  The Court announced its opinion on April 17, 1990, with six judges finding in favor of Oregon and against Alfred Smith and Galen Black. The Opinion of the Court was written by Justice Scalia and joined by Chief Justice Rehnquist and Justices White, Stevens, and Kennedy. Justice O’Connor agreed with the result of the majority, but not its particulars, and provided her own uneasy concurrence. Justices Blackmun, Marshall, and Brennan dissented. Scalia’s opinion sought, with varying levels of success, to accomplish three basic objectives in the course of reaching its conclusion: first, it sought to connect Court precedent over the previous century of free exercise cases and define a common and historically grounded position; second, it sought to explain more recent cases—including Sherbert and its progeny—in light of that established  8 tradition; third, it sought to limit the Sherbert test from applicability in this case and most future cases.  Scalia began his majority opinion with a short explanation and history of the Free Exercise Clause. At minimum, Scalia explained, the Free Exercise Clause means “the right to believe and profess whatever religious doctrine one desires.” But “exercise” intentionally goes beyond mere belief, as belief usually requires that one do or abstain from doing specific acts. So “Congress shall make no law…prohibiting the free exercise [of religion]” also means that Congress cannot prohibit specific actions or abstentions made in service to belief, like fashioning an idol or bowing before a god. The protection offered here, however, is quite limited. A general tax, for example, cannot be said to be in violation of someone’s right to free exercise simply because his religion forbids payments to the government. To allow otherwise would court anarchy. Simple logic supports this conclusion, as does the case law of the Supreme Court. To prove the latter point, Scalia’s case history began with Reynolds v. United States, the first major free exercise case to be heard by the Supreme Court. In Reynolds, an 1879 case involving a Mormon challenge to a federal anti-polygamy statute, the Court had ultimately decided that allowing the appellant’s free exercise rights to exempt him from federal law “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”17  Reynolds is not an especially controversial precedent in the field of free exercise litigation, though it does have its fair share of modern dissenters. In an attempt to draw the line of cases forward, however, Scalia also cited precedents that are quite controversial. Minersville v. Gobitis (1940), for example, provided clear support for Scalia’s opinion, but the opinion is  17 Reynolds v. United States, 98 U. S. 145 (1879) at 167, quoted by Scalia in Employment Division, 879.  9 rarely considered good law because the ruling was almost immediately superseded by the Court’s opinion in West Virginia Board of Education v. Barnette (1943). Both cases involved Jehovah’s Witness students who sought relief from local statutes requiring them to salute the flag as a condition of attending public schools. In Gobitis, decided in 1940, the court determined that the students did not have a First Amendment right to a statutory exemption—in short, if they wanted to attend public schools, they must participate in the daily flag salute. In Barnette, decided in 1943, the court reneged on its earlier position and found a First Amendment right for students to refuse participation in the flag salute.18  In order to reconcile Gobitis and Barnette, Scalia invented an unusual distinction which he then applied to the Court’s more recent history of considering and even applying significant exemptions to cases involving religious free exercise. According to Scalia, both Gobitis and Barnette involved First Amendment questions, but they did not ask exactly the same question. Gobitis was argued and decided on free exercise grounds; Barnette, on the other hand, was decided primarily on free speech grounds. As Scalia went on to explain, the difference here is vital. And the Barnette case was not alone. Scalia cited multiple other cases, which he termed “hybrid situations,” that involved free exercise rights as well as other rights. Cantwell v. Connecticut (1940), Murdock v. Pennsylvania (1943), and Follett v. McCormick (1944) all involved freedom of speech claims; Pierce v. Society of Sisters (1925) and Wisconsin v. Yoder (1972) involved parental rights. Scalia went so far as to argue, “The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to  18 Scalia relies on Gobitis and doesn’t mention Barnette until his explanation of hybrid rights, leaving his readers to to sort it out. Michael McConnell regards the move especially harshly: “Relying on Gobitis without mentioning Barnette is like relying on Plessy v Ferguson without mentioning Brown v Board of Education.” Michael W. McConnell, “Free Exercise Revisionism and the Smith Decision,” University of Chicago Law Review 57 (1990): 1124.  10 religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections.”19  O’Connor’s concurrence and Blackmun’s dissent significantly disagreed with Scalia’s treatment of precedent and especially his idea of hybrid rights.20 By their account, Scalia’s argument relies on novel, revisionist history that often differs from what the Court itself thought it was doing, especially with regard to his theory of hybrid situations. In Wisconsin v. Yoder, an important precedent and a key “hybrid” case in Scalia’s account, the Court ruled in favor of an Amish family who sought exemption from a statutory requirement that their children attend school until their sixteenth birthdays. The family in question (who was apparently acting as a representative of a larger Amish community) was willing to keep their children in school through eighth grade, but felt that high school represented a threat to their children’s religious development. The court did make note of the “right of parents” in Yoder (the basis of Scalia’s “hybrid” theory), but its opinion treated the family’s free exercise rights as the decisive matter in the case. According to the Court, the family’s religious claim “carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent.”21 The Yoder opinion certainly does not seem very distinguishable from the facts in Smith, at least not in the way that Scalia’s hybrid theory proposes.  The hybrid situation theory suffers from a significant vulnerability outside of its reliance upon a suspicious and revisionist view of history. Quite simply, the hybrid theory threatens to bleed the Free Exercise Clause of any real legal significance. Both O’Connor and Blackmun discount and move quickly past Scalia’s idea of hybrid cases, but others have raised a question  19 Employment Division, 881. 20 See O’Connor concurrence, Employment Division, 896; Blackmun dissent at 908. 21 Wisconsin v. Yoder, 406 U.S. 205 (1972), 218.  11 worth considering here: if Yoder, Cantwell, etc., were decided by a convergence of closely protected rights, then what right or benefit was offered by the Free Exercise Clause? This is an especially worthwhile question with regard to Yoder, because the Court’s opinion in that case explained that mere parental rights were insufficient—the success of the claim depended upon its religious quality. Professor Michael McConnell observes, “Thus, according to Yoder parents have no right independent of the Free Exercise Clause to withhold their children from school, and according to Smith they have no such right under the Free Exercise Clause.”22 Reasonable interpretations of the hybrid rights idea include first the possibility that two partial claims (e.g., free exercise and free speech) can have an accumulative effect on the outcome, or second that the Free Exercise Clause is merely incidental to other claims. The former case suggests that two or more partial violations of one’s rights can be combined into a single claim, at least when one of the rights involves free exercise, but this interpretation does not appear especially plausible. If two weak civil rights claims can equal one whole civil rights claim, then the Court will never hear the end of hybrid cases.23 In the latter interpretation, which seems closer to Scalia’s application of the idea, the Free Exercise Clause offers no protection at all, at least in the cases in question. The result of adopting this hybrid theory would be protection for religious claims that can be argued under the terms and precedents of freedom of speech, equal protection of the laws, parental rights, and so forth, but then these would not really be hybrid cases at all, but merely free speech or equal protection cases that happen to involve a religious claimant.  22 McConnell, “Free Exercise Revisionism,” 1121. 23 Justice Alito, criticizing the opinion in his concurrence in Fulton v. Philadelphia, writes, “It is hard to see the justification for this curious doctrine. The idea seems to be that if two independently insufficient constitutional claims join forces they may merge into a single valid hybrid claim, but surely the rule cannot be that asserting two invalid claims, no matter how weak, is always enough.” In a later section he notes that, “The “hybrid rights” exception, which was essential to distinguish Yoder, has baffled the lower courts. 593 U. S. ____ (2021), 57 and 62 (slip op.).  12 In short, Scalia’s initial arguments are fairly strong when he considers the meaning of the First Amendment and the Court’s early jurisprudence on the Free Exercise Clause, but grow weak then downright implausible as he tries to connect older precedent with many of the Court’s more modern cases, especially when those cases involve the Court bestowing religious exemptions. He also neglects to provide an analysis of what the First Amendment meant at the time of its passage in 1789—a surprising omission for a legal scholar like Scalia, who regards the original understanding of a law as authoritative to its modern application.24 But Scalia’s argument strengthens as he considers the history and applicability of the Sherbert test, which Scalia explained had only been used to find an exemption on three occasions, and all involved unemployment benefit claims.25 Though often cited as a defense of religious liberty, the Sherbert test had rarely done more than confirm the state’s interest in the law in question—and even then, the test had been irregularly applied. In the three unemployment cases, Scalia argued that the compelling interest test was useful because of their uniqueness. In other words, the very thing that made the Sherbert test useful was also what made it inapplicable to other circumstances. And the circumstances in those three cases were nearly identical: all involved a person unable to maintain employment for a specifically religious reason who was denied unemployment benefits as a matter of administrative discretion. The administrative discretion allowed room for an unemployment office to consider whether, based upon the circumstances of an employee’s dismissal, he or she ought to receive benefits. Because these systems already used a process that  24 Multiple critics of the Smith opinion have stressed this point. See, for example, Justice Alito’s concurrence in Fulton at page 20 (slip op.). 25 Scalia distinguishes Wisconsin v. Yoder (as described above) in order to come to the conclusion that applying the Sherbert test had only led the Court to find in favor of a religious claimant in the three unemployment cases. While distinguishing Yoder seems implausible, Scalia’s overall point that the test was rarely applied with consistency and rarely offered any actual protection to religious claimants is a fitting summary of case law.  13 could provide individualized exemptions, it was a small hurdle for the court to require that such exemptions be made in cases involving religious claims. Put another way, the state did not have a compelling interest in withholding those benefits because the government interest was so small and the ruling so unlikely to have broad consequences.  While Scalia would not go so far as to limit the Sherbert test to unemployment cases, he certainly found it reasonable to deny its extension to a case involving illegal behavior. And further, he argued that the Court should stop using the test to evaluate generally applicable laws. As he had already explained, using the test in such cases was hardly consistent with the tradition or even the modern practice of the Court. Moreover, using the test in the current case gave it undue authority and credibility. Scalia could have simply applied the Sherbert test, then found the test met by the government’s interest in preserving criminal drug statutes (as Justice O’Connor did in her concurrence)—but doing so would suggest that the test was appropriate and should be applied in other circumstances. The government might have a compelling interest in drug laws, but what about child labor laws? Or animal cruelty laws? Or compulsory vaccination laws? Or environmental protection laws?26 Simply making this a justiciable question would give religious believers a potential veto power over the law, and it does not require much imagination to see how a sympathetic court could give the question real teeth by defining an outer limit of acceptable government interest.  The courts have used compelling interest tests in other areas of law, including cases involving free speech and racial equality. In these areas, the compelling interest test is inherently  26 Scalia makes a similar point at 889, his citations include Prince v. Massachusetts, 321 U. S. 158 (1944) (child labor laws), Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 723 F.Supp. 1467 (S.D.Fla.1989) (animal cruelty laws), Cude v. State, 237 Ark. 927, 377 S.W.2d 816 (1964) (compulsory vaccination laws), United States v. Little, 638 F.Supp. 337 (Mont.1986) (environmental protection laws).  14 limited because speech and race are externally limited ideas. Supposing one wanted the courts to evaluate the compelling interest of a law because of its effect on a particular race, for example, one would first have to prove that the law had a disparate racial impact. But religion is a far more nebulous and internally defined concept, and thus a religious compelling interest test is inherently difficult to limit and potentially unlimited. Should the courts try to limit it, they would find themselves in the untenable position of defining religion or trying to parse which of a religion’s beliefs are sufficiently important to be worthy of protecting. Scalia argues, “Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them.”27 Scalia’s argument can be read—and, in fact, has usually been read—as a retraction of religious liberty, as a movement of the Court away from protecting religious believers’ First Amendment rights. While his opinion was certainly intended to limit the Court’s involvement in such disputes, he did not see the matter in such black and white terms. Just because the Court should limit its approach to defending a Constitutional right does not mean that a right will or should go undefended. According to Scalia,  Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.28  His opinion thus need not be read as a limit of religious liberty protections, but instead a limit on the court’s ability to parse free exercise claims. He’s arguing that the court should adopt a  27 Employment Division, 888. 28 Ibid., 890.  15 position of institutional humility in the face of institutional weakness. The court is not institutionally equipped to weigh government interests against religious claims, but legislatures, on the other hand, are so equipped—and they regularly exercise this power. In fact, many states had already enacted legislative exemptions to religious peyote use, thus removing the necessity for the courts to weigh in. Depending upon legislatures to defend religious rights will put minority religions at a relative disadvantage, but this disadvantage is common to democratic government and much to be preferred to the alternative (“a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs”29).  Consequences of the Case  Scalia’s theory of hybrid rights has not made much of an impression upon free exercise jurisprudence, at least not in the thirty-odd years since the Smith case. But his rejection of the Sherbert test and of judicially-granted religious exemptions had immediate and lasting consequences, first in the broader legal community and then with Congress’s passage of the Religious Freedom Restoration Act (RFRA). The response from the legal community was swift and fierce: legal conservatives and liberals alike widely panned the decision, with conservatives believing that Scalia had gutted a fundamental religious right and liberals aghast at the potential consequences for native Americans and others with fringe religious practices. While RFRA has provided a statutory basis for avoiding the Smith decision in federal cases, Smith remains the ruling precedent on Free Exercise Clause interpretation, despite ever more and louder hostility, especially from the conservative legal community.  29 Ibid.  16  Opposition to the Smith decision began immediately after the Court’s decision was announced. Columnists condemned the decision in The Washington Post, The Economist, The Christian Science Monitor, and beyond.30 An unlikely coalition of law professors, civil rights groups, and religious entities joined Al Smith and Galen Black in their petition for rehearing with an amicus brief written by Professor Douglas Laycock. While the petition was denied and the Court refused to receive the coalition’s supporting amicus brief, the coalition itself was an interesting representation of the wide variety of dissent against Scalia’s majority opinion. Law professors in the coalition included notable left-leaning academics like Erwin Chemerinsky and Laurence Tribe alongside right-leaning academics like Phillip Johnson and Michael McConnell. And the organizations that were party to the coalition included groups as politically and religiously disparate as the American Civil Liberties Union (ACLU), Americans United for Separation of Church and State, and church organizations representing Jews, Unitarians, and a wide variety of Christian denominations.31  When the Court declined to re-hear the case, the protest coalition pivoted towards Congress in support of a statute that would effectively overturn the Smith decision. While some of those in what became the “Coalition for the Free Exercise of Religion” wished to overturn the actual particulars of the Smith case—to ensure that Al Smith and Galen Black were afforded both unemployment benefits and the religious liberty to consume peyote without legal consequence—many members were unconcerned or even disinterested in those details.32 The shared interest of  30 Epps, To An Unknown God, 228-29. 31 Douglas Laycock, “The Supreme Court's Assault on Free Exercise, and the Amicus Brief That Was Never Filed,” Journal of Law and Religion 8, No. 1/2 (1990): 99-100. 32 Epps notes that the political coalition behind RFRA specifically excluded native American interests that were primarily concerned with prohibitions on peyote, 230-31; see also Committee on the Judiciary, Religious Freedom Act of 1993, 102nd Cong., 2d. sess, 1993, HR Report 103-88, 7.  17 all members was to return to the Sherbert compelling-interest test and make its scheme of exemptions the standard for all free exercise cases. The legislation, which came to be known as the Religious Freedom Restoration Act, or RFRA (pronounced “rifra”) for short, was introduced to the House of Representatives by liberal New York Democrat Steven Solarz.33 The legislation was introduced in July 1990, only months after the publication of the Smith opinion. Support for the bill was clear from its list of co-sponsors, which started at 34 and grew to 99, and included a wide variety of members from both parties, but the initial legislation hit a major road block when pro-life groups feared that it might be used to justify a right to an abortion.34 Though the bill was delayed for several years, it received overwhelming support when it finally passed in 1993, passing on a voice vote in the House and receiving 97 out of 100 votes in the Senate.35  The Religious Freedom Restoration Act sought to do what Congress has rarely done by statute.36 The purpose of RFRA was not to clarify a statute or even to clarify the meaning of the First Amendment—the latter of which would have required a Constitutional amendment—rather, the purpose of RFRA was to override Court precedent by replacing Constitutional interpretation with a statutory requirement. As stated in the text of the law, the purposes of the law are “(1) to restore the compelling interest test as set forth in Sherbert v. Verner…and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to  33 Epps, To An Unknown God, 231. 34 Epps, To An Unknown God, 231-32; Information about The Religious Freedom Restoration Act of 1990, HR 5377, is available from the legislative record at Congress.gov, accessed on February 28, 2022, https://www.congress.gov/bill/101st-congress/house-bill/5377. 35 Information about The Religious Freedom Restoration Act of 1993, HR 1308, is available at Congress.gov, accessed on February 28, 2022, https://www.congress.gov/bill/103rd-congress/house-bill/1308. 36 Douglas Laycock argues that Congress acted in similar fashion with the 1982 Voting Rights Act, which was passed in rejection of the Court’s opinion in City of Mobile v. Bolden (1980). As part of his argument in the City of Boerne case, Laycock argues that there are other instances of such action on the part of Congress. See Douglas Laycock, “Federalism as a Structural Threat to Liberty,” Harvard Journal of Law and Public Policy 22, no. 1 (Fall 1998): 67.  18 provide a claim or defense to persons whose religious exercise is substantially burdened by government.” The purpose points clearly to the mechanism, which is simply to require courts to use the Sherbert balancing test in all cases involving questions of religious liberty, including some cases (like cases involving prisoners or the military) where the Supreme Court had previously declined to apply the test. More than simply a rebuke of Smith, the statute codified and considerably enlarged the Sherbert precedent.  According to the legislative report prepared by the House Committee on the Judiciary, Congress possesses the authority under Article I and the Fourteenth Amendment to “provide statutory protection for a constitutional value when the Supreme Court has been unwilling to assert its authority.”37 These constitutional sources of authority are a good reminder, however, that Congress’s power is limited to its enumerated powers in the Constitution. While the text of the law and the legislative reports prepared by the House and Senate Committees on the Judiciary all assumed or indicated that RFRA would be equally applicable at the federal, state, and local level, that assumption was a significant and potentially unjustified extension of congressional power under the Fourteenth Amendment.38 The bill presented a sleight of hand in which Congress used its statutory authority on a matter related to Constitutional interpretation, but then communicated about the statute as though it possessed all the authority of the Constitution or unquestionable Constitutional interpretation. In other words, the Congress has the authority to bind the Courts to statutory rules—including rules governing the treatment of religious claimants—but Congress lacks the authority to tell the Court how to interpret the First  37 Committee on the Judiciary, HR Report 103-88, 9. 38 Ibid., 7; Committee on the Judiciary, Religious Freedom Act of 1993, 102nd Cong., 2d. sess, 1993, S Report 103-111, 9ff; Religious Freedom Restoration Act of 1993, Public Law 103-141, especially 107 Stat. 1489, § 5.  19 Amendment. RFRA tries to accomplish the latter under Congress’s authority to do the former. In City of Boerne v. Flores (1997), the Supreme Court corrected Congress’s error.  The City of Boerne v. Flores case was brought forward when the Historic Landmark Commission for the City of Boerne, Texas refused to grant construction permits to expand the local St. Peter Catholic Church. Archbishop Patrick Flores of San Antonio, the presiding authority over the overcrowded church, had applied for building permits with municipal authorities to expand the church building. His application was denied by the local Historic Landmark Commission, a commission invested by the city with authority over the church and the surrounding neighborhood to review and potentially deny changes affecting the neighborhood’s historic look and feel. Flores then sued the city, including in his claims that the commission’s actions were in violation of RFRA.39 Writing for the majority of the Court, Justice Kennedy explained that RFRA had overextended Congress’s power under Section 5 of the Fourteenth Amendment. Congress is permitted to enforce the guarantees of the Fourteenth Amendment—including the fundamental rights outlined by the Bill of Rights and understood by the court to be “incorporated” into the meaning of the Fourteenth Amendment—but is not able to redefine those rights as matter of statute. Justice Kennedy succinctly articulated the problem: The design of the [Fourteenth] Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].”40   39 City of Boerne v. Flores, Archbishop of San Antonio, et al., 521 US 507 (1997) at 512. 40 Ibid., 519.  20 The result of City of Boerne was to rule RFRA unconstitutional, at least insofar as the law applied to state and local governments.  While the City of Boerne decision does not clarify the extent to which RFRA remains a controlling statute, subsequent legal argument and case law have established that the statute still applies in cases concerning federal law or action. The Supreme Court was unanimous on this point in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006), a case similar to Smith that considered the legal ramifications of possessing and importing ayahuasca tea for use in religious services, which is a hallucinogenic drug containing a federally regulated substance.41 The Court has subsequently used RFRA as the basis for a number of important decisions, including the Hobby Lobby and Little Sisters of the Poor cases fought over the applicability of federal contraceptive mandates to organizations with religious objections.42 In response to the City of Boerne decision, many states have also passed their own versions of the federal RFRA statute, applying the same Sherbert test to the local and state laws to which RFRA cannot now be applied. The phenomenon of state RFRA statutes began at the same time as the federal statute’s passage in 1993 with equivalent state laws in Connecticut and Rhode Island. That phenomenon quickly accelerated after City of Boerne with nine more states adopting RFRA statutes in the subsequent three years.43 Arkansas and Indiana were the most recent states to follow suit when they passed RFRA statutes in 2015, bringing the total number of states to 23.44  41 Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006); oral argument about the case also confirms that there was no disagreement among the justices about the applicability of RFRA to federal law. See “Oral Argument—November 1, 2005,” accessed on April 13, 2022, https://www.oyez.org/cases/2005/04-1084. 42 Burwell v. Hobby Lobby Stores, Inc, 573 U.S. 682 (2014); Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U.S. ___ (2020). 43 Marci A. Hamilton, “Development of RFRA Statutes,” accessed on April 13, 2022, http://rfraperils.com/states/. 44 National Conference of State Legislatures, “State Religious Freedom Restoration Acts,” accessed on April 13, 2022,  https://www.ncsl.org/research/civil-and-criminal-justice/state-rfra-statutes.aspx.  21  Despite the brief growth in state-level RFRA laws, however, more than half of the states do not yet have a RFRA law, and the most recent legislative arguments over state-level RFRA laws suggest that the remaining states will not be adopting such statutes anytime soon. RFRA laws have been used by religious defendants to avoid providing goods and services to homosexual couples in certain cases, and the laws have therefore increasingly been cast as anti-homosexual legislation that raises the ire of the homosexual lobby, the political left, and the media.45 This entrenched opposition will likely prevent any future efforts at state-level RFRA laws. Meanwhile, Smith is still the controlling interpretation of the Free Exercise Clause, both in actual fact and as a matter of practical applicability everywhere that a RFRA law does not provide statutory basis for an alternative ruling. For the original lobby against Smith—and especially the politically conservative legal community—the situation is unacceptable, and they aim to see Smith overturned in favor of the Sherbert balancing test discussed at the beginning of this chapter. 46  The Continuing Argument Against Smith (the Purpose of this Dissertation) A recent cert petition filed by the Becket Fund in a case the organization hopes will prove an opportunity to reverse the Smith decision claims, “Smith is contrary to the text and historical  45 Georgia has been the most significant flashpoint for RFRA arguments. For one example and some background, see Charles Bethea, “How ‘Religious Freedom’ Laws Became a Flash Point in the Georgia Governor’s Race,” The New Yorker, October 31, 2018, https://www.newyorker.com/news/news-desk/how-religious-freedom-laws-became-a-flash-point-in-the-georgia-governors-race. 46 See, for example, Brief of Amici Curiae, New Hope Family Services Inc. and Catholic Charities West Michigan, Sharonell Fulton, et. al., v. City of Philadelphia, et. al., filed by Alliance Defending Freedom in June 2020 with Christopher Schandevel as the Counsel of Record.  22 meaning of the Free Exercise Clause.”47 In fact, the petition makes this same claim at least three times. In his concurring opinion in the recent case Fulton v. Philadelphia (2021), Justice Alito makes the same argument: “It [the Smith decision] can’t be squared with the ordinary meaning of the text of the Free Exercise Clause or with the prevalent understanding of the scope of the free-exercise right at the time of the First Amendment’s adoption.”48 The same charge has been leveled at Smith time and time again, perhaps beginning with Douglas Laycock’s 1990 “Amicus Brief That Was Never Filed.”49 Given the response to Smith in the politically conservative legal community, a community that largely regards Originalism as the gold standard for legal arguments, it should not surprise us to find the argument being made in terms of the original meaning of the First Amendment.50 In fact, given the strength and frequency of such charges, the casual reader could be forgiven for believing that the text and historical meaning of the Free Exercise Clause are a stinging rebuke to Scalia’s majority opinion in Smith. But this belief is entirely mistaken. As the following chapters demonstrate, the text and historical meaning of the Free Exercise Clause—and therefore the “Originalist” understanding of the clause—is not a conclusive rebuke to Smith, and, to the contrary, Originalist arguments tend to support Scalia’s Smith interpretation and refute the constitutionality of judicially-enacted religious exemptions.  47 Petition for a Writ of Certiorari to the United States Supreme Court, George Q. Ricks v. State of Idaho Contractors Board, et. al. (No. CV 14-7034, 1st Judicial District Court, Kootenai County, Idaho, 2015). Petition filed by The Becket Fund for Religious Liberty in July 2019 with Eric Baxter as the Counsel of Record. See pages 4, 12, 13, 15. 48 Alito concurrence, 10 (slip op.). 49 Laycock, “Assault on Free Exercise,” 99-114. Epps explains in To an Unknown God that the brief in question was written as an amicus brief to accompany the petition for rehearing after the Smith case, but that the Supreme Court does not accept amicus briefs under such circumstances (229). 50 This dissertation uses “Originalist,” “Originalism,” and “Original Intent” interchangeably and somewhat loosely to refer to the historical meaning or intent of a law (and especially the Constitution and the Bill of Rights) at the time of its passage, and the modern legal movement that privileges that historical understanding as the best and binding legal interpretation.  23  The Becket Fund’s recent cert petition is an excellent case study for examining the strength of Originalist arguments against Smith. Though the petition suggests that there is significant extant scholarship supporting its claims, it really only cites one author and two essays. The author in question is Professor Michael McConnell, who wrote “The Origins and Historical Understanding of the Free Exercise of Religion” as a historical defense of the kind of judicially-granted exemptions struck down by Smith, and “Free Exercise Revisionism and the Smith Decision” as a refutation of Scalia in that case. McConnell is a well-known author on the subject who holds the distinction of being cited on the topic in Supreme Court opinions.51 But McConnell is not just a well-known author on the topic. From a certain perspective—namely the perspective of the attorneys for the Becket Fund and others of their persuasion—he is the only author on the subject. In their petition, they cite McConnell; then they cite Justice Souter, who is apparently citing McConnell; then they cite Professor Douglas Laycock, who is citing McConnell.52 Scattered throughout the petition are additional direct references to McConnell and a handful of references to Justice O’Connor’s dissent in the City of Boerne v. Flores case, an opinion that cites McConnell no fewer than six times.53 The heavy emphasis on McConnell’s scholarship is not due to a lack of other scholarship on the topic; rather, there is plenty of scholarship on the topic, as the following pages will explore. It is likely a combination of two separate but related phenomenon: a shortage of Originalist scholarship in defense of the Becket Fund’s position and a regard for McConnell as the authority on the topic.54 Even the Supreme  51 See City of Boerne, Petitioner v. P. F. Flores, Archbishop of San Antonio, and United States, 521 U.S. 507 (1997). McConnell is cited by Scalia in his concurrence (538) and O’Connor in her dissent (548). See also Fulton v. Philadelphia, especially Alito’s concurrence. 52 Petition, Ricks v. State, 5, 13, 16. 53 Ibid. McConnell is cited on 5, 12, 17-19, 21-22, and 26-27. O’Connor’s dissent in Boerne is cited on 3, 13, 15, 17-18, and 20. O’Connor cites McConnell in her Boerne dissent on 548, 551, 553, 557-59. 54 See, for example, Ellis M. West, “The Right to Religion-Based Exemptions in Early America: The Case of Conscientious Objectors to Conscription,” Journal of Law and Religion 10, no. 2 (1993-1994), 371: “To the extent  24 Court has been arguing about McConnell’s scholarship for nearly three decades.55 Justice Alito’s citations in Fulton provide a little more balance, but he still relies on McConnell’s scholarship almost to the exclusion of all others.56  The casual reader might protest on several grounds. Perhaps McConnell’s essays are so well-documented and well-argued as to put the matter to rest. Perhaps there are no good or readily available rebuttals to McConnell. Perhaps his essays comprise the majority of the historical scholarship on the matter. None of these suppositions, however, are anywhere near correct. The first two can and will be settled quite quickly. The third—covering the extant scholarship on the topic—will require the majority of the following chapters, but it will allow us to say with considerable certainty what the American founders might have said about judicially-enacted religious exemptions.  In the first case, as to whether or not McConnell’s historical analysis has settled the matter, it is worth turning to his own arguments and conclusions. While the substance of these arguments will be addressed alongside the other relevant scholarship below, we can learn something important about his research and conclusions right from the outset. In compliment to Professor McConnell, his research scope is appropriately but ambitiously wide—after all, what the Founders meant or intended can encompass a wide field of historical writings, ideas, and practices—and he keeps a keen focus on the right question. That question is also the essential  that there is historical evidence bearing on the issue, most scholars who have examined it have concluded that the free exercise clause was not intended to guarantee a right to religion-based exemptions. To my knowledge, only one study of any length—a 1990 article in the Harvard Law Review by the law professor, Michael McConnell—comes close to arguing the contrary, and its conclusion is guarded and qualified.” 55 Scalia takes up McConnell’s opposition to his Smith decision in his concurrence in City of Boerne v. Flores (1997) at 538. 56 See Alito concurrence, footnote 34 at page 20 (slip op.) for a sampling of Alito’s various sources, many of which are discussed at length in this dissertation. But the historical sections of Alito’s argument, especially section IV. B and C, are drawn overwhelmingly from McConnell.  25 question for this dissertation, so it merits explanation: Does an Originalist reading of the Free Exercise Clause require judicially-granted religious exemptions from otherwise constitutional laws? Or, to put the same question differently, is the Sherbert compelling-interest test (which was struck down by Smith) consistent with the original intent of the First Amendment? For Originalist critics and defenders of Smith, this question is the essential one.   In pursuit of an answer to this question, McConnell sets about the ambitious task of analyzing the primary sources to determine how church-state relations developed in the early colonies, the meaning and influence of important philosophical authorities on the Founding, the views of religious advocates at the time of the Founding, the early experience of the states involving religiously-contested matters, the Constitutional Convention, the First Congress’s debates on the First Amendment, and early judicial opinions on matters involving religious liberty. While the analysis that follows aims to cover all of these topics and more, McConnell’s scope and facility with primary sources is impressive. Working from so much material, we should reasonably expect McConnell to make a solid case resting on multiple near-irrefutable primary sources. Instead we find a lot of strained conclusions. In summary of his own historical research, McConnell explains, It is more difficult to claim, on this evidence, that the framers and ratifiers specifically understood or expected that the free exercise clause would vest the courts with authority to create exceptions from generally applicable laws on account of religious conscience. 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.57   57 Michael McConnell, “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review 103 (1990): 1512.  26 McConnell deserves our respect for his intellectual humility and honesty. He is not able to provide sufficient evidence for judicially-granted religious exemptions at the time of the Founding, so his conclusion is appropriate. But what should be manifestly clear before we weigh the details is that McConnell’s historical analysis, according to his own conclusions, has not settled the matter. It is, at best, one among several possible interpretations. McConnell approaches the matter as a defense attorney, believing that if he can create enough doubt around the historical meaning of the text, readers will indulge his position as a jury might doubt the guilt of a defendant. Yet McConnell has the burden of proof exactly backwards: his novel reading of the Free Exercise Clause needs to meet at least a burden of reasonable certainty.  Responding to criticisms of Smith in his concurring opinion in the City of Boerne v. Flores case, Justice Scalia similarly remarked on the strength of McConnell’s argument: The dissent’s extravagant claim that the historical record shows Smith to have been wrong should be compared with the assessment of the most prominent scholarly critic of Smith, who, after an extensive review of the historical record, was willing to venture no more than that “constitutionally compelled exemptions [from generally applicable laws regulating conduct] were within the contemplation of the framers and ratifiers as a possible interpretation of the free exercise clause.”58  Even if McConnell’s research was the only historical research on this question, we should hesitate before making any bold claim that Smith is in opposition to the historical meaning of the Free Exercise Clause, for even McConnell himself refuses to be so bold.  As it happens, McConnell’s research is not the only extant scholarship on the matter in question. Alongside lifetimes of research on the history and meaning of the Free Exercise Clause, there are at least two significant and lengthy scholarly responses to McConnell that  58 City of Boerne, 538. Scalia cites McConnell, “Origins,” at 1415. Emphasis is in Scalia’s text but not the original.  27 demand the attention of anyone relying on his arguments.59 In a 1991 article, law professor Gerard Bradley takes on McConnell’s argument as “the best originalist case made yet…for the conduct exemption” (Bradley refers to judicially-granted religious exemptions as “conduct exemptions”).60 Using McConnell as his point of reference, Bradley reviews nearly all of the evidence presented by McConnell, spending extra time on the early nineteenth-century cases that are so essential to McConnell’s argument. Bradley concludes that, McConnell’s historical methodology is perverse. Within its own terms, his analysis is frequently arbitrary and his conclusions are quite overdrawn. We have heard argument, and it is time to pronounce final judgment: conduct exemptions cannot be squared with an originalist account of constitutional law.61  Bradley ultimately ties arguments in favor of judicially-granted religious exemptions to the mid-twentieth-century neoliberal milieu from which the Sherbert opinion and the Warren Court arose—and not to any ideas in evidence near the American Founding.  In a 1992 article, legal historian Phillip Hamburger also takes up McConnell’s historical arguments. Before a careful analysis of some of McConnell’s sources and evidence, Hamburger notes that, Eighteenth-century Americans spoke and wrote extensively about religious freedom and about government. Yet Professor McConnell apparently cites no instance in which a late eighteenth-century American explicitly and unambiguously said that an individual’s right to the free exercise of religion included a general right of peaceable, religious exemption  59 Gerard V. Bradley, “Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism,” Hofstra Law Review 20 (Winter 1991): 245; Philip A. Hamburger, “Constitutional Right of Religious Exemption: An Historical Perspective,” The George Washington Law Review 60, no. 4 (1992): 915. Bradley and Hamburger are most notable for their broad coverage of McConnell’s arguments, but they are not alone in their criticisms. See, for example, West, “Religion-Based Exemptions,” 367-402; and Marci A. Hamilton, “Religion, the Rule of Law, and the Good of the Whole: A View from the Clergy,” Journal of Law & Politics 18 (2002): 387-443. 60 Bradley, “Beguiled,” 264. 61 Ibid., 307.  28 from civil laws.62  Hamburger’s assertion, which he supports with careful consideration of primary sources, is that McConnell’s evidence is conspicuously weak. Hamburger evaluates the same evidence and arrives at very different conclusions, including a general conclusion that McConnell is arguing for an idea and a mindset that simply did not exist at the time of the American Founding. In Hamburger’s words, “a constitutional right of religious exemption was not even an issue in serious contention among the vast majority of Americans.”63 McConnell’s arguments will be scrutinized in the following chapters, often with reference to the likes of Hamburger and Bradley. The purpose of mentioning their opposition here is not to settle the matter—that will require the bulk of the following chapters—but simply to establish that McConnell’s scholarship in favor of judicially-enacted religious exemptions is hotly contested. The matter is ripe for further review, especially with organizations like Becket Fund asking for the reversal of Smith, and Justice Alito making the same case in his concurrence in Fulton v. Philadelphia.   Chapter Outline The immediately preceding pages should make clear that most people arguing against Smith on Originalist grounds have not paid much mind to the historical evidence and have regularly relied on weak and contested scholarship. What remains in the following chapters is the significantly larger task of reviewing the available scholarship and primary sources to determine whether judicially-granted religious exemptions can be supported by the relevant historical sources. Before beginning this analysis, the reader may appreciate a point of clarification: the  62 Hamburger, “Constitutional Right,” 917. 63 Ibid., 948.  29 following analysis takes an especially wide view of Originalist arguments. Good arguments have been made in favor of only admitting certain kinds of historical or Originalist evidence, and it is not our intention here to engage or refute those arguments.64 Rather, the purpose in casting such a wide net is first to lessen the risk of missing anything of potential importance and second to demonstrate the relative consistency of Founding Era sources on the current question. For the sake of organization, the following arguments have been arranged in a more or less chronological fashion, beginning with a general overview and working towards more specific historical phenomena, and grouped according to categories that naturally follow from the arguments and historical scholarship around the topic of religious liberty and the American Founding. The analysis of Chapter 2 begins with the seventeenth-century ideas inherited by the Founding generation, including the philosophical ideas of John Locke and the early ideas and practices of the most religiously tolerant of the American colonies. Next, we turn to the general milieu of the Founding period, a perhaps overly-broad category meant to include background about relevant religious, philosophical, and political positions. The purpose of Chapter 2 is not to cover the ideas and positions of the most important people, but rather to get a sense for common or popular opinion. While Chapter 2 relies on some primary sources, its broad scope depends significantly on secondary accounts and frameworks, including McConnell’s own analysis. With a general overview of seventeenth- and eighteenth-century history in the background, Chapter 3 begins our narrower focus on the people, events, and documents that played a significant role or precedent in the formation of the Free Exercise Clause, beginning with colonial charters and state constitutions. Many of the early colonial charters and state  64 See, for example, Justice Antonin Scalia’s A Matter of Interpretation: Federal Courts and the Law, Princeton: Princeton University Press, 1998.  30 constitutions contained explicit guarantees of religious liberty, and these help to illuminate the intent and application of the Constitution’s Free Exercise Clause, and also were an obvious precedent for the First Congress. In Chapter 4 will follow an examination of the two most important Founders on the subject of religious liberty—Thomas Jefferson and James Madison—with some time and attention given to the fight over religious liberty in the state of Virginia in the 1770s and 80s. The writings of these Founders and the debate in Virginia have been central to modern arguments about religious liberty and also played a central role in the background of the First Amendment. Chapter 5 will consider the Constitution and any clues that the Constitutional Convention left for sorting out the questions of religious liberty and religious exemptions. In Chapter 6, we will turn to the record of the state ratification debates, especially their recommendatory amendments that created the political urgency around a federal bill of rights. And, finally, Chapter 7 will review the First Congress as it deliberated and passed the religious clauses of the First Amendment. Because the question of free exercise and religious exemptions was not litigated at the time of the Founding, a consideration of relevant case law is outside the scope of the current investigation, though it represents the most important topic for further research. While the historical evidence and investigation presented in the following chapters may not be a quite comprehensive account of the matter, they are nearly so. To the best ability of this author, they cover the current state of the historical research—they are all areas that have been significantly explored by those hoping to shed light on the original meaning of the Free Exercise Clause with regard to the question of judicially-enacted religious exemptions. And while future primary-source research may reveal additional and even conflicting particulars or new areas of consideration, it is unlikely to require a wholesale revision of the conclusions presented here.  31 The overwhelming sense of the evidence is that no one at the time of the American Founding was arguing that religious liberty required or that the courts ought to carve out exemptions from otherwise applicable laws.  Upon reflection, this conclusion should not surprise us. Defenders of the Sherbert test, who argue that religious free exercise rights require judicially-granted exemptions, are asking for a power of judicial review found in no other category of law. Elsewhere we regard judicial review as effectively asking, “Is this law constitutional?” And, “If not, can its unconstitutional parts be effectively severed from its constitutional parts?” Only regarding religious liberty are we asked to consider whether an unquestionably constitutional law needs to be adapted by judges to exempt those for whom application of the law is particularly burdensome.65 And while modern judicial review sometimes requires careful consideration of disparate impacts upon select minority populations, only free exercise cases allow litigants complete freedom to self-select, to identify themselves as requiring a judicially-granted exemption from a law that applies to everyone else. In short, defenders of judicially-granted religious exemptions are asking for a radical judicial power and a novel reading of the Free Exercise Clause.66 Without powerful evidence to the contrary, we should not expect that this view was contemplated at the time of the American Founding. The Sherbert view of the Free Exercise Clause, requiring judicially-enacted religious exemptions, also threatens the religious rights that the American Founders were actually trying to  65 For further discussion on this point, see Bradley, “Beguiled,” 271-72. 66 Vincent Phillip Muñoz makes the same point: “If the legislative power passes a law that exceeds its jurisdiction, the law is null and void and ought to be found so by the competent power. …No exemptions from such laws should be needed, because no citizens ought to be required to follow a law that the government lacks legitimate authority to enact.” See Muñoz, Religious Liberty and the American Founding: Natural Rights and the Original Meaning of the First Amendment Religious Clauses (Chicago: University of Chicago Press, 2022), 233.  32 protect. As we shall see, their scope for the Free Exercise Clause was quite narrow, but it was also deep. Rather than a compelling interest test about the needs of the political community on the one hand and the closely-held practices of religious believers on the other, the Free Exercise Clause was meant to guarantee complete freedom of belief and worship from federal interference, at least insofar as that interference directly concerned belief and worship (as opposed to incident interferences). While we may occasionally find sticky legal situations—e.g., whether a law was legitimately passed to protect animal welfare or illegitimately intended to prevent religious sacrifice—the Free Exercise Clause should protect belief and worship totally, not as a narrowly applied religious exemption. The position advocating for judicially-enacted exemptions, in contrast, aims to protect a much broader swathe of religious liberties, but at the cost of making those protections weaker.67 In short, the Sherbert-view of the Free Exercise Clause is broad, but not necessarily deep, offering the same kind of judicial protections to essential belief or worship and practices that are incidental to religion.68 Finally, as a matter of clarification, it may be helpful to provide a few caveats about the scope of this work. First, it is not a complete explanation or justification of the majority opinion in Smith. Scalia’s theory of hybrid rights and his attempts to explain or distinguish precedent are outside of our scope, and perhaps outside of this author’s abilities. Rather, what we will consider is the original meaning and intent of the Free Exercise Clause with regard to the question of judicially-enacted religious exemptions. In his Fulton concurrence, Justice Alito observed that  67 Muñoz explains, “The exemptionist reading effectively construes the text to state, ‘Congress shall make no law…prohibiting the free exercise of religion unless it has a compelling reason to do so and it uses properly tailored means.’” Religious Liberty and the American Founding, 235. 68 The comparison of narrow/deep vs. broad/shallow comes from Professor Vincent Muñoz, who used this language in an as-yet unpublished manuscript. “A conversation about religious exemptions: Vincent Phillip Muñoz, Michael McConnell, and Andrew Koppelman.” He hints at this same framework in “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion,” American Political Science Review 110, no. 2 (2016): 374.  33 Scalia’s Smith opinion made no effort to explain itself in terms of the original meaning and intent of the First Amendment: Smith…paid shockingly little attention to the text of the Free Exercise Clause. Instead of examining what readers would have understood its words to mean when adopted, the opinion merely asked whether it was “permissible” to read the text to have the meaning that the majority favored.69  This dissertation aims to fill-in where Scalia left off, to provide the needed historical explanation for why the Sherbert-view of the Free Exercise Clause is inconsistent with an Originalist position, and why the Smith opinion was right to prevent the growth of judicial exemptions. Second, the historical and constitutional argument presented here opposes only judicially-enacted religious exemptions, or exemptions understood as a necessary legal interpretation of the Free Exercise Clause.70 As we shall see in the historical record, religious exemptions were offered by legislatures quite regularly at the time of the American Founding as a matter of statute, and their constitutionalism is not in question. This author doubts that a proliferation of religious exemptions, even legislatively-enacted exemptions, creates an environment of religious liberty—that would be a bit like saying that a proliferation of tax exemptions creates an environment of low taxes. In most cases religious liberty would be best served by lowering legal burdens and stopping the growth of endless regulation for everyone. But there are some cases, especially concerning conscientious objection from military service, where the prudential answer is for legislators to exempt those who are religiously opposed, but in such a manner as not to undercut the public interest in military service (the draft) and war efforts more generally. The  69 Fulton, Alito concurrence, 20 (slip op.). 70 In the American legal system, there is no practical difference between these positions, but there remains a theoretical difference. We can imagine, for example, the Congressional or Executive branches offering religious exemptions on the ground that, based on their interpretation, such exemptions were a requirement of the First Amendment.  34 early state constitutions (see Chapter 3) and the arguments of the First Congress (see Chapter 7) support the view that legislative exemptions may be necessary in certain cases, but not as a function of the natural right to religious liberty or as a consequence of state or federal guarantees of religious liberty, and it will be helpful to keep this distinction clear throughout.    35  CHAPTER 2 BACKGROUND AND RELIGIOUS LIBERTY IN THE AMERICAN COLONIES  Standard accounts of American history often begin with the settlement of Plymouth Rock by Pilgrims and religious Separatists. While this settlement was not the earliest, largest, or most successful of European settlements in the New World, it represents important aspects of the mythos of American origins. One part of this myth we celebrate at Thanksgiving each year, recalling the debt owed by those settlers (and us as their inheritors) to the friendliness of local tribes and the fortuitous circumstances of their native benefactors. But the bigger part of that myth—and the term “myth” is not intended pejoratively in this context—is that America was founded by those seeking relief from religious persecution. The idea can be overwrought or overplayed in some tellings, as it is a poor description of most early American settlement outside of pockets in Massachusetts, Rhode Island, Maryland, and Pennsylvania, but there remains something quite true about it in terms of both our actual history and our collective memory of the past. What is often missed, however, is that the majority of those who first came to America, even those who sought to escape religious persecution, did not share a modern liberal view of religious liberty. As we seek to understand the American Founding, we need to look past woolly modern conceptions of religious freedom in America’s early origins and look instead to the ideas and institutions that the Founding generation inherited from earlier generations. Rather than  36 sentimentality about the plight of those fleeing religious persecution, we need to focus on the reality of what early proponents of religious liberty actually said and did.71  The following chapter is unique among the remaining chapters of this dissertation, most of which are focused on thorough analysis of primary source material. The purpose of this chapter, in contrast, is to provide the necessary background for the other chapters in terms of both historical setting and the relevant scholarship on the topic of judicially-enacted religious exemptions. Much of what is mentioned here will be covered in greater detail in later chapters. What follows in this chapter is primarily a restatement of secondary sources with the exception of our first topic: John Locke. Brevity is difficult in discussions of political philosophy, especially for thinkers as complex and important as Locke, but he is a crucial source for understanding how the Founding generation conceived of religious liberty. After brief consideration of John Locke, we will turn to a general overview of the American colonies, especially in the decades leading up to the American revolution. This overview is by no means comprehensive, but it will give us the opportunity to consider some of the contemporary positions on religious liberty and how those positions have been regarded in scholarship concerning judicially-enacted religious exemptions. It will also offer occasion to give a closer look to the situation of religious liberty in Pennsylvania from its colonial founding until the time of the American Revolution. Philadelphia and Virginia are the two states most often cited in scholarship concerning religious liberty, and Virginia will receive its due in chapter 4, thereby  71 There is a lazy kind of quasi-Originalism that says that America was founded by those seeking refuge from religious persecution, ergo early Americans were universally in favor of religious liberty and the First Amendment meant to instantiate a very liberal policy that included religious exemptions. For an example of this kind of lazy “Originalism,” see Kathleen M. Sullivan, “Justice Scalia and the Religion Clauses,” University of Hawaii Law Review 22 (2000): 449-67, especially at 466.  37 allowing us to consider Virginia at the same time as the famous Virginians James Madison and Thomas Jefferson.  John Locke on Religious Liberty John Locke was one of the most important philosophical influences on the Founding generation and the writers of the Constitution. Michael Malbin, for example, notes significant evidence that Thomas Jefferson wrote the Declaration of Independence with reference to Locke’s Second Treatise. And concerning religious liberty, Malbin explains that Jefferson wrote his Bill for Establishing Religious Freedom—which will be considered carefully in chapter 4—with reference to Locke’s “A Letter Concerning Toleration.”72 This second reference is particularly important because of Jefferson’s role in Virginia debates over religious liberty and the role of those debates in the larger context of the Founding Era.  Locke’s essay “A Letter Concerning Toleration” offers an important theoretical framework for thinking about the relationship between religion and political authority to which we will frequently return. The American founders differed from Locke’s own view in some important ways, but his overall conception of the theological-political problem as one of separate jurisdictions is consistent with our Founding-era sources. Locke’s basic formulation in “A Letter Concerning Toleration” distinguishes between two separate spheres—the civil and the religious. As the leader of the civil sphere, the magistrate’s authority is limited to the “life, liberty, health, and indolency of the body; and the possession of outward things such as money, lands, houses,  72 Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, D.C.: American Enterprise Institute for Public Policy Research, 1978), 19ff.  38 furniture, and the like.”73 Civil or political authority thus has no fundamental interest in religious matters. According to Locke, he has been able to define political authority quite apart from religion on the following grounds:  [F]irst, because the magistrate has no unique authority over souls; second, because the magistrate’s power is limited to external force, which gives him insufficient power for the inward persuasion necessary for true religion; third, because the magistrate has no clearer view of religious truth than any other man, and is thus an insufficient judge between competing religious claims.74  There is, in fact, no way to judge between competing religious claims on a political basis, for all beliefs and churches claim to be right, but there is no reasonable political basis upon which we might elect a neutral arbiter.  Separate from the political order, religion is the purview of a church. Churches are composed of voluntarily consenting persons who are free to relinquish their consent at any time. Since the church is contingent upon beliefs held individually, it cannot force itself upon a person; rather, its force is limited to the exclusion of those who do not abide by the common rules and beliefs of its communion. Religion is focused on things higher than or at least apart from the concerns of the magistrate, particularly upon worshiping God.75 The mode, method, and purposes of a church are therefore wholly different than those of the political order.  Despite being separate, the line between religious and political authority is not entirely fixed and tidy in Locke’s account.76 His interest is not to define where one stops and the other  73 John Locke, “A Letter Concerning Toleration,” trans. William Popple, in Great Books of the Western World: Volume 35, Locke, Berkeley, Hume, ed. Robert M. Hutchins (Chicago: William Benton, Encyclopaedia Britannica, 1952), 3. 74 Ibid., 3-4. 75 Ibid., 4. 76 Notably, however, the untidiness of Locke’s categories do not keep him from asserting their separateness with great resolve: “[T]he Church itself is a thing absolutely separate and distinct from the commonwealth. The boundaries on both sides are fixed and immovable. He jumbles heaven and earth together, the things most remote  39 begins, but rather to explain them in terms of their own unique methods and purposes, which, if observed, will result in few points of conflict. We can generally infer that those things that are most central to religion—namely, belief and worship—are furthest from political control, and vice versa. But this inference is not obviously a universal rule in Locke’s account, because some religious beliefs (i.e., atheism and Roman Catholicism) are regarded as averse to the political order and therefore cannot be tolerated.77 Furthermore, some religious practices, including worship, may have implications for the political order that change over time and must be evaluated accordingly. For example, Locke’s conception of separate political and religious spheres offers the magistrate no authority to forbid animal sacrifices on religious grounds. Whether such sacrifices should or should not be observed is a question that the magistrate cannot answer in his capacity as magistrate. He may, however, regulate religious sacrifice in the same way that he might regulate other forms of animal slaughter to best serve the health and safety of the people.78 Locke even imagines a circumstance like a famine that might cause a magistrate, acting within his rightful sphere of authority, to prevent the slaughter of animals, including those slaughtered for the purposes of religious worship or ritual. Locke’s distinction between the magistrate’s authority over action as it relates to the civil order despite his lack of authority over religious belief and action is essential, and a distinction to which we will return. We might summarize the position by saying that the political authority has no authority over religious belief or practice qua religion, but he might justly regulate belief or practice that threatens the civil order, regardless of the effect upon religion. This is a version of  and opposite, who mixes these two societies, which are in their original, end, business, and in everything perfectly distinct and infinitely different from each other.” (Ibid., 7.) 77 Ibid., 18. 78 Ibid., 13.  40 what we will later call “religious noncognizance,” the idea that political authority has no capacity to understand, promote, or prevent religious belief and practice but it is not therefore forbidden from regulations that serve a secular purpose while interfering with religious belief or practice. Locke’s prohibition against atheists and Roman Catholics was ultimately not accepted by the American Founders—at least not on a federal level—but it is important to recognize that his prohibition was animated by civil concerns. Roman Catholics owe fealty to a foreign prince (the pope), and therefore represented a civil threat to the magistrate: “That Church can have no right to be tolerated by the magistrate which is constituted upon such a bottom that all those who enter into it do thereby ipso facto delivers themselves up to the protection and service of another prince.”79 Atheists lack the fear of eternal consequences that provided the basis for civil oaths: “Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist.”80 How can a man swear a civil allegiance before God when he lacks a belief in God? Locke regards this as a critical concern of the civil magistrate, but only insofar as it relates to civil concerns. Locke’s formulation invites religious interests to establish apart from the magistrate and the sources of political authority, and even to push back against religious positions given the force of law, but he offers them no authority to establish a boundary that cannot be encroached by political authority. This situation undoubtedly puts political pressure on the magistrate to admit or tolerate a host of religious beliefs and practices, but it is ultimately the decision of the magistrate, as the symbol of political authority, to determine what to tolerate and what to forbid. In matters of religious-political conflict, Locke believes the magistrate to be the ultimate judge:  79 Ibid., 18. 80 Ibid.  41 But what if a magistrate believe that he has a right to make such laws and that they are for the public good, and his subjects believe the contrary? Who shall judge between them? I answer: God alone. For there is no judge upon earth between the supreme magistrate and the people.81  Practically speaking, when there is no judge but God, the magistrate will be the final authority in nearly all cases with the very rare exception in which the people take recourse to the extrajudicial means of revolution. In other words, the magistrate will be the final authority except in cases in which the magistrate ceases to be the magistrate. While the possibility of revolution may serve as political pressure on the magistrate to tolerate popular religious belief, Locke certainly does not contemplate some legal mechanism by which religious believers can appeal above the law or for exception to the law.  Locke’s view of religious liberty is unambiguously hostile to the idea of judicially-enacted religious exemptions from law, and this point is not disputed by proponents of such exemptions. Michael McConnell explains,  Locke’s assertion of legislative supremacy and his opposition to special religious exemptions from generally applicable laws are consonant with arguments against free exercise exemptions. Unless there is reason to believe that the understanding of the free exercise clause held by the framers and ratifiers differed markedly from that of their intellectual forebear, Locke, Sherbert is historically unsupportable.82  We therefore need not go searching for the origins of judicially-granted religious exemptions in Locke; rather, we should understand Locke’s position in order that we might consider how it was received by the Founding generation and whether it can be credibly distinguished in a manner likely to admit the possibility of religious exemptions.  81 Ibid., 16. 82 McConnell, “Origins,” 1435.  42  Professor McConnell distinguishes Locke from the American Founding in two important respects. First, McConnell says that, opposed to Locke, religion in the American Founding was regarded as primary, as both coming before government and taking a more important place than government in its claim on individual believers. McConnell’s conviction proceeds from his related conviction that arguments for religious liberty at the time of the American Founding were largely made by religious protagonists, that free exercise of religion was primarily defined by evangelicals and others responding to religious persecution: [Locke] was not the religious enthusiasts’ idea of religion and not their idea of religious liberty. To them, the church-state problem was principally a religious problem: the state too frequently used its power to prevent the practice and spread of the gospel. The Baptists languishing in the Culpepper jail and the Presbyterians fighting legislative interference with their form of church governance were not fearful of religion. They were fearful of government. To the evangelical spirit of the minority Protestant sects in America, Locke’s conception of the separation between the secular and the religious would have seemed absurd. Does not the will of God govern all of life? Is He not sovereign over all? To the preachers who only recently had been among the leading advocates of revolution against the King, Locke’s claim that they should be “forbidden meddling with making or executing laws in their preaching” must have seemed quaint, as well as presumptuous.83  McConnell is in good company arguing that the American founders regarded religious claims as taking priority over secular and political claims. Professor Steven Smith, who has also criticized Scalia’s decision in Employment Division of Oregon v. Smith, has described the founding position in similar terms, with emphasis upon the “priority claim” of religion. According to Steven Smith, “The priority claim asserts that ‘religious goods’—that is, the distinctive goods, benefits, or blessings toward which religious beliefs and practices are directed—are more valuable or more important than most or perhaps all other human goods.”84 Professor Vincent  83 McConnell, “Origins,” 1445-46. 84 Steven D. Smith, “The Rise and Fall of Religious Freedom in Constitutional Discourse,” Pennsylvania Law Review 140 (1991): 149-240.  43 Muñoz has even offered a fairly radical way of thinking about the First Amendment based on this idea of religious primacy, though he does not describe it in those terms. In Muñoz’s case, the argument is that religion was regarded as primary, but in a narrow sphere of authority. Muñoz explains, [T]he scope of the natural right of religious exercise can be expected to be deep but not necessarily wide. …The founders understood the natural right of religious liberty to have natural limits—namely, at the points where legitimate state jurisdiction begins, i.e., protecting public peace and the rights of others.85  Two observations must suffice for the moment. First, as the remaining chapters will demonstrate, McConnell’s contention that the free exercise of religion at the time of the American Founding was defined primarily by those on the religious fringe is not vindicated by the recorded historical debates, which are covered in significant detail in later chapters. Second, one can accept the primacy argument without also accepting the necessity or inevitability of judicially-enacted religious exemptions. Neither Professor Smith nor Professor Muñoz make such a connection—despite the former’s criticism for the Smith opinion—and McConnell’s sources do not clearly make the connection either. We can, as suggested by Muñoz, accept a deep but narrow view of religious liberty that offers strong protections to religious belief and worship without offering the broad (but potentially shallow) protections of a Sherbert-style compelling interest test.  McConnell’s second major argument distinguishing Locke from the American Founding is that the institution of judicial review provided a legal mechanism for deciding between the people and the magistrate, the role that Locke had left to “God alone.” McConnell explains, While Locke recognized the moral imperative to obey God instead of civil rulers, his conception of political institutions did not include a mediator who could transform this moral, prepolitical right into positive law. In the absence of such a mediator, individual  85 Vincent Phillip Muñoz, “Two Concepts of Religious Liberty,” 369-381; quote at 374.  44 conscience could be compelled to yield to government in the event of a conflict. For Locke, the field left to untrammeled conscience could only extend to that in which the civil magistrate had no particular interest—principally, to things pertaining to the world to come. … Locke's key assumption of legislative supremacy no longer holds under a written constitution with judicial review. The revolutionary American contribution to political theory was that the people themselves are sovereign and therefore possess inherent power to limit the power of the magistrate, through a written constitution enforced by judges independent of the legislature and executive.86  McConnell’s argument is both too simple and too clever by half. It is too simple because McConnell misunderstands Locke’s conception of the magistrate from the “Letter Concerning Toleration.” Locke is using magistrate as a kind of composite for all political authorities and institutions, not as a title for a specific authority. Based on his other writings, Locke very obviously contemplates a separation of powers between political institutions. If we imagine a Lockean government with both legislative and federative institutions, then we must understand his “magistrate” from the “Letter” to refer to both of these and to include judicial functions.  McConnell’s argument is too clever because he thinks he has resolved a fundamental problem at the heart of the modern liberal political order with simple reference to judicial review. Judicial review is an important development in constitutional theory, one that helps to maintain the Constitution as the fundamental law, one that defends the rights of individuals and the roles of institutions, and one that Locke does not appear to have contemplated. Judicial review has an important place in defending a narrow view of religious liberty—even if that liberty includes only belief and worship—without us accepting McConnell’s arguments for religious exemption. But Locke’s point goes well beyond institutional fixes. Locke’s point is that there is a fundamental tension between a people who form their own opinions about eternal things like  86 McConnell, “Origins,” 1444.  45 God or the purpose of human life and a secular government. While Locke tries to limit this tension by limiting religious possibility to Protestant Christianity, his overall conception has already allowed for religious claims to take priority over mere political claims. For “mere” political claims might be able to threaten a man’s life or liberty, but they cannot threaten his soul. The fault or problem here is not original to Locke—on the contrary, Locke is trying to propose a reasonable compromise that balances religious and political priorities to “fix” the problem—but the problem is at least as old as Christianity. To “render…to God the things that are God’s” has always had anarchic implications for rendering “to Caesar the things that are Caesar’s.”87 Locke’s compromise recognizes that, to avoid anarchy, the people must be permitted to render unto God, but that political authorities must have the final word in establishing limits on what is permitted. This situation may not produce justice in every case, but it is preferable to the alternatives of state-imposed religion or religious-inspired anarchy.  McConnell misses the fundamental tension explored by Locke, believing that the problem can easily be resolved by a bill of rights and an active judicial system. But to suppose that it can be resolved by the implementation of judicial review is wrong for several reasons. First, judicial review still amounts to political authority; judges are still part of the “magistrate” to which Locke refers. Second, even if judicial review could give judges infinite flexibility in particular cases (a position which is impossible and not the position defended by McConnell), judges would still be unable to relieve the overall problem. No amount of sincere belief could override the very basic needs of the political order. Or, to use the language of religious exemption and the Sherbert test, the idea of a compelling interest test might shift the balance between religious and political interests slightly, but the important or compelling political  87 Matt. 22:21 (English Standard Version).  46 interests still win out in a Sherbert analysis. Third, McConnell is playing fast and loose with his definition of judicial review and thereby assuming what he needs to prove. In order for judicial review to be effective at judging between “the people” and “the magistrate” on matters of religious belief, judges must be allowed something like the infinite flexibility just criticized. But in no other case would we describe that as judicial review. Judicial review is supposed to sort out the meaning of law in its relation to other laws, especially against or in terms of the fundamental law (the Constitution).88 It is ultimately interested in establishing the legal basis or precedent that should apply in all similar cases. It is not an attempt by the courts to weigh equity in each particular case. While McConnell may seem to imply that the idea of judicially-enacted religious exemptions requires an equity analysis in each individual case, he probably does not intend to make such a radical argument. His argument as it is treated in this dissertation is a much more confined one: not that judicially-enacted religious exemptions can solve the theological-political problem, but merely that Sherbert-style exemptions can help ameliorate the problem as a necessary and expected consequence of the Free Exercise Clause.  McConnell’s Four Approaches to Religious Liberty in the Colonies  John Locke is an important, perhaps even essential, beginning to the theory of religious liberty that informed the American Founding. But to provide a setting for our later chapters, we  88 As Chief Justice Marshall explained in Marbury v. Madison, 5 U.S. 177-78 (1803),  It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.   47 should consider the broad contours of people, events, and institutions that informed their immediate sense of history. This is obviously too broad of a topic to cover in much detail, and the following account depends entirely on secondary sources. In fact, in order to demonstrate that judicially-enacted religious exemptions were not a developed idea, practice, or implication during early American history, our account will closely follow that provided by Professor Michael McConnell. While we may not ultimately accept his conclusions, his presentation offers a broad and useful introduction to the topic in colonial history and the period immediately following the American Revolution. McConnell identifies four basic approaches to church-state relations in the American colonies from the late seventeenth to the mid-eighteenth century. First is the example of New England, colonies with strict Congregationalist establishments.89 These colonies were founded by dissenters from the Church of England, but without any clear idea of religious liberty or toleration. Rather, they provided the opportunity for Puritans to live and worship without distraction or persecution from other sects. While outright violent persecution of Baptists, Quakers, and other non-Congregational sects ended by the beginning of the eighteenth century, the official Congregational establishments were the longest-lived of all American religious establishments, with Massachusetts’s establishment surviving into the 1830s.  In contrast to the grassroots establishment of New England, McConnell identifies the second major approach as the crown-imposed Anglican establishment of the Southern colonies.90 The most notable early example was the colony of Virginia, and Virginia in time served as a model for Maryland, Georgia, and the Carolinas. Beginning in the seventeenth century, Virginia  89 McConnell, “Origins,” 1422. 90 Ibid., 1423.  48 forbid dissenters, including provisions banishing Quakers, but there seems to have been little need to enforce these provisions as dissenters generally chose to settle elsewhere. By the eighteenth century, Presbyterians and Baptists began settling in Virginia, and they were met with considerable animosity and legal prohibition. According to McConnell, “Baptists continued to be horsewhipped and jailed for their preaching until the Revolution,” and he furthermore notes that, “In the eighteenth century, Virginia was the most intolerant of the colonies.”91 This frank admission may surprise us because Virginia is probably the most cited of the early states (as a state, not a colony) for its example in breaking down establishments and promoting religious freedom.92 If McConnell is right—and we have little reason to doubt him here—then Virginia witnessed a radical transformation in the late eighteenth century from one of the most intolerant colonies to one of the most tolerant states. But given its prior position in favor of the Anglican establishment and its treatment of dissenters, we should keep in mind that the liberal positions of Jefferson and Madison were neither the universal position nor the common experience of their fellow Virginians.  McConnell identifies the third approach of the American colonies towards religious liberty as “benign neglect,” and classifies New Jersey and most of New York with this approach.93 New York did have an Anglican establishment in and immediately around New York City, but its reach did not extend to the rest of the state.94 Generally speaking, religious  91 Ibid. 92 See, for example, Malbin, Religion and Politics, 20: “In contrast with the lack of debate on the free exercise in the First Congress, the 1785 Virginia religious freedom debate led the noted authority Anson Phelps Stokes to describe it as probably the most significant debate on the subject ever to have been held in any legislative body. Furthermore, the Bill for Religious Freedom passed at the culmination of this debate was the most far-reaching piece of legislation ever passed on this subject up to the time of the First Congress. No other state—indeed, no other country—went as far toward protecting religious freedom in law as did Virginia in 1785.” 93 McConnell, “Origins,” 1424. 94 The Ministry Act of 1693 established Protestant ministers in New York City and the nearby counties of Queens, Westchester, and Richmond. Whether or not New York had a true establishment, even in these areas, is a matter  49 dissenters of all kinds, including Quakers and Jews, were unmolested for their beliefs, a circumstance that encouraged a multiplicity of sects, which in turn encouraged further political accommodation for dissenters.  The fourth approach, which is important for McConnell’s analysis, was taken by colonies explicitly founded to provide haven for religious dissenters, namely the colonies of Rhode Island, Pennsylvania, Maryland, and the Carolinas.95 Outside of Pennsylvania, to which we will give considerable attention later in this chapter, none of these colonies represents an enduring example for supporting religious dissent. Maryland was obviously an important haven for Roman Catholic believers at the time of its founding, but those efforts were short lived. After Lord Calvert’s proprietorship of Maryland was removed in 1689, the local colonists established the Church of England on the model of Virginia and discriminated against religious dissenters.  The Carolinas are also notable for early aspirations towards religious liberty that did not long survive in the eighteenth century. North and South Carolina were founded by a group of proprietors who, on several occasions in the seventeenth century, offered substantial religious liberty to settlers and would-be settlers. In McConnell’s telling, this began with an agreement offered in 1664 borrowing liberty of conscience guarantees from the Rhode Island Charter of 1663. The Carolina proprietors followed up their 1664 agreement with a new charter a year later that allowed the proprietors to make some case-by-case exemptions for dissenters from the established Church of England. This exemption power was apparently used to exempt Quakers from oath requirements and to allow non-Anglican communities to choose their own ministers. Just a few years later, the proprietors issued the Fundamental Constitutions in 1669, which are  debated by historians. See, for example, Thomas E. Carney, “A Tradition to Live By: New York Religious History, 1624–1740,” New York History 85, no. 4 (2004): 319. 95 McConnell, “Origins,” 1424ff.  50 notable because John Locke was directly involved in their drafting. Consistent with Locke’s own ideas, the Fundamental Constitutions established the Church of England but allowed for considerable toleration of beliefs and churches, provided that colonists were God-fearing (not atheists) and did participate in an organized church. Despite the historical curiosity of this last approach, it does not appear to have ever been fully implemented, and it is the last of the significant religious liberty provisions in McConnell’s brief history of the Carolinas. By the early eighteenth century, North and South Carolina had adopted established churches and begun discriminating against religious dissenters on the model of Virginia and Maryland. Roger Williams and the founding of Rhode Island is one of the best-known stories of religious dissent to modern readers, and one that is often explained as a kind of prototype for modern conceptions of religious liberty (McConnell does not make this error). But Williams paired his radical religious beliefs with a fairly authoritarian vision of government that could hardly be described as a predecessor to much later and more liberal ideas about religious toleration.96 Perhaps more importantly, however, and as Professor McConnell explains, Williams was not a historical figure who was well-known to the Founding generation.97 Interest in Williams was revived by Isaac Backus, a Founding-era Baptist preacher, denominational leader, and historian. While Backus himself is an important contributor to contemporary religious liberty debates, Williams was not yet broadly cited or widely recognized. And the example of Rhode Island, which owed its founding to Williams, was not regarded as a model by the Founding generation, who tended to view the colony as a poor example of order and stability.98 McConnell  96 Bradley, “Beguiled,” 99; West, “Religion-Based Exemptions,” 630-31. 97 McConnell, “Origins,” 1426. 98 Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986), 203.  51 concludes that, “It is unlikely that the Rhode Island provisions had much direct influence on subsequent developments of the free exercise principle.”99 While McConnell recognizes that the history of religious liberty in colonial Maryland and the Carolinas was short-lived, and further that Rhode Island was regarded as a poor example of colonial government among its eighteenth-century contemporaries, he argues that their example was important for introducing religious liberty provisions into law, and that these provisions were copied by other colonies and eventually the early state constitutions.100 By his telling, these provisions were significant enough to provide religious exemptions and provided a pattern for religious liberty laws in later state constitutions. He notes, for example, that Maryland was the first colony to use “free exercise” language in a legal document referring to religious liberty, and that Rhode Island’s charter was the first to use the language of “liberty of conscience.”  McConnell moves through the argument quickly, so it is difficult to give his treatment of these colonies much more attention without drawing upon other sources. His overall points, however, are as follows:  Three features of these early provisions warrant attention. First, the free exercise provisions expressly overrode any “Law, Statute or clause, usage or custom of this realm of England to the contrary.” Second, they extended to all “judgments and contiences [sic] in matters of religion”; they were not limited to opinion, speech and profession, or acts of worship. Third, they limited the free exercise of religion only as necessary for the prevention of “Lycentiousnesse” [sic] or the injury or “outward disturbance of others,” rather than by reference to all generally applicable laws.101   99 McConnell, “Origins,” 1427. 100 Ibid., 1427-30. 101 Ibid., 1427; quoting from The Rise of Religious Liberty in America, ed. S. Cobb (New York: Macmillan, 1902), 117.  52 Each of the quoted sections in the above block quote were taken from a contract offered to early settlers of the colonies that would become North and South Carolina. The relevant section from that contract reads: No person…shall be any ways molested, punished, or called in question, for any difference in opinion or practice in matters of religious concernment, who do not actually disturb the civil peace,…but all and every person and persons may, from time to time and at all times, freely and fully have and enjoye [sic] his and their judgments and contiences [sic] in matters of religion throughout all the Province, they behaving themselves peaceable and quietly, and not using this liberty to Lycentiousnesse [sic], nor to the Civill [sic] Injury or outward disturbance of others ; any Law, Statute or clause, usage or custom of this realm of England to the contrary hereof in any wise notwithstanding.102  There is much to consider here, some of which will be treated in greater detail in later chapters. This contract certainly represents a significant offering with regard to religious liberty. As McConnell notes in his first point above, it easily invites the conclusion of offering some exemption from law by overriding any contrary law or custom. We ought to regard McConnell’s second and third conclusions, however, with a touch more skepticism. McConnell says that the contract extended beyond religious belief, profession, and even worship to all “judgments and contiences [sic] in matters of religion.” But this conclusion requires a quite liberal reading of the contract. Would it have relieved Quakers of the responsibility to swear an oath prior to giving courtroom testimony? Or from contributing their sons or their tax dollars in support of a colonial militia? And would it have relieved a pagan worshipper from laws against bigamy? We simply do not know. What is interesting to note, however, is that the same colonial proprietors simultaneously gave the colonial assembly authority over a religious establishment—so theirs was not a wholly libertarian view of religion.103  102 Reprinted from The Rise of Religious Liberty in America, ed. S. Cobb, 117. 103 Ibid.  53  McConnell’s third point bears mention, but only insofar as it will be addressed in chapter 3. McConnell writes that the proprietors of the Carolinas “limited the free exercise of religion only as necessary for the prevention of ‘Lycentiousnesse’ [sic] or the injury or ‘outward disturbance of others,’ rather than by reference to all generally applicable laws.” Whether copied from the Carolinas or not, many later colonies and states would end up adopting similar provisions guaranteeing religious liberty up to a boundary of licentiousness. What this boundary meant in practice is not clear to either this author or to McConnell. The matter is fundamentally whether or not “licentiousness” did or did not include other laws, especially those that were generally applicable and did not specifically address matters of religion. In other words, what is unclear is whether religious liberty guarantees were intended to protect religious belief and practice up to the boundaries of generally-applicable law (the kinds of laws that might prevent licentious behavior), or whether those same religious liberty guarantees allowed religious practice to supersede otherwise-applicable law except in cases where the practice was regarded as licentious. If the latter, then McConnell has some important historical pretext for his broad view of religious liberty; if the former, then he does not. But because the matter will be addressed more clearly in our chapter on state constitutions, and because those constitutions are historically much closer to the passage of the First Amendment, we will consider this question in our next chapter. Before we move on from McConnell’s description of colonies founded as havens for religious dissenters, a few quick points bear mention. First, we have not yet given due to Pennsylvania, and will return to it shortly. Its history is important enough to our overall inquiry to merit detailed attention, and the development of religious freedoms there from its inception to the American Revolution is instructive for how religious liberty was regarded at the time of the  54 American Founding. Second, with the exception of Rhode Island (which was not well-regarded) and Pennsylvania, the religious havens established in Maryland and the Carolinas were short-lived. Maryland would of course remain a home to a notable (but small) population of Roman Catholics. But both Maryland and the Carolinas soon adopted religious establishments after the pattern of Virginia and ceased welcoming religious dissenters. Third, the examples of the early colonies do not explicitly point to judicially-enacted religious exemptions. McConnell has identified some exemptions that were permitted to Quakers and others, but it is important to recognize that none of these exemptions were granted by a judge. But what exemptions were granted in the American colonies? McConnell points to three main categories: oaths, military conscription, and religious assessments, plus some exemptions that do not fit neatly into these categories.104 Exemptions from oath-taking were the most frequently sought of all religious exemptions. Oaths were regarded as a necessary component of giving judicial testimony, and anyone who refused to take an oath was effectively cut off from the judicial system—or worse, would find himself the subject of a lawsuit that he could not take the witness stand to refute. McConnell notes, “By 1789, virtually all of the states had enacted oath exemptions,” and in every case, it seems that they did so through legislative action.105 Oath exemptions were most often sought by Quakers, who also commonly sought exemption to military conscription. We will discuss exemption to military conscription a bit more in our section below about Pennsylvania, but Pennsylvania was not the only colony with residents who conscientiously objected to military service. McConnell records that the colonies of Rhode Island, North Carolina, and Maryland adopted legislative exemptions to their conscription  104 McConnell, “Origins,” 1467-73. 105 Ibid., 1468.  55 requirements. New York refused to permit exemption throughout the seventeenth century and for the first half of the eighteenth before finally allowing conscientious objectors to pay a fee or provide a substitute; Virginia, Massachusetts, and New Hampshire adopted a similar policy, allowing exemption for a fee or substitute. As we will see, such policies were potentially both costly and unacceptable to those whom they were designed to exempt. Finally, some colonies offered exemption to religious assessments. In every case, these religious assessments were designed to support a state religious establishment, so it is not hard to see why those of dissenting faiths preferred exemption. But McConnell explains that the religious assessments and the potential exemptions offered alongside created considerable friction for religious dissenters: Exemptions were a far from perfect solution to the assessment problem. Having obtained inclusion in the certificate system [which exempted religious dissenters on a case by case basis], the Baptists of Massachusetts eventually concluded that the system would not work. In 1773, the association of Baptist churches voted to urge their members to refuse to provide the certificates required for legal exemption. Through civil disobedience, the Baptists resolved to pressure the legislature to abolish mandatory tithes altogether.106  This friction is a foretaste of the general objection by dissenters—perhaps most notably among Baptists—to laws allowing the state to take clear cognizance of particular religious belief and practice.  What these various types of exemption prove is that religious exemptions were often employed in the American colonies, including in the years immediately leading up to the Revolution. In every cited case, however, they were implemented by legislative action. McConnell is trying to build a historical case for judicially-granted religious exemptions, but at best his analysis of the most liberal of seventeenth- through mid-eighteenth-century colonial  106 Ibid., 1470.  56 governments proves only that there were some exemptions, not that any were judicially granted. This is an important distinction because Scalia’s Smith opinion leaves the door wide open for legislatively-enacted religious exemptions but refuses to allow this power to judges. McConnell is aware of this shortcoming in his historical account: An obvious objection to all these examples would be that they were initiated by the legislature. While these examples may refute the absolute no-exemption position, they are not inconsistent with the “judicial restraint” position. If, however, as seems to be the case, the exemptions were granted because legislatures believed the free exercise principle required them, it is reasonable to suppose that framers of constitutional free exercise provisions understood that similar applications of the principle would be made by the courts, once courts were entrusted with the responsibility of enforcing the mandates of free exercise.107  McConnell’s frank account of his argument is a good opportunity to take stock of our own. While this dissertation has not previously used the language of “judicial restraint,” it’s an appropriate term for the position described here. As described in the introduction, legislative exemptions are constitutional, and at times are the most elegant solution to theological-political conflict with religious minorities (oath and conscription exemptions are particularly good examples). The position disputed here is that such exemptions are a necessary interpretation of the Free Exercise Clause and therefore should be enacted by judges. McConnell believes that they are a necessary interpretation—as he says in the block quote immediately above, “the exemptions were granted because legislatures believed the free exercise principle required them”—and this is the focal point of our disagreement. While the current chapter will not be sufficient to resolve it, the weight of the remaining chapters tends against McConnell’s view.  107 Ibid., 1473.  57 Legislatures at the time of the Founding did grant exemptions, but they did not regard these exemptions as a necessary application of a right to the free exercise of religion. While McConnell obviously has a certain affection for the states either specifically founded to accommodate religious dissenters or that enacted more liberal religious exemptions, he does not think that these colonies or these attributes were necessarily regarded as models by the American Founders. Rather, McConnell believes that the American Founders were most likely to follow a hybrid approach based on the examples of Pennsylvania and New York.108 New York had no religious establishment outside of its southern metropolitan counties, and Pennsylvania had a long history of tolerating religious dissenters. As a consequence, both colonies experienced significant immigration, which was a boon to their eighteen-century development and prosperity. Before we continue, we should consider more carefully the situation of Pennsylvania from its founding to the American Revolution.  Religious Liberty in the Pennsylvania Colony  The most significant seventeenth-century proponent of religious liberty in the American colonies was William Penn. Penn, of course, is famous for founding the colony of Pennsylvania as a refuge for Quakers and others on the religious fringe. Among his primary concerns was to create a place free of the religious establishment in England where Quakers would be free of oaths—both courtroom oaths and oaths to the crown—and compulsory military service, all of which contemporary Quakers regarded as violations of conscience. Despite Penn’s founding intent, his idea of religious liberty and toleration were not elastic by modern libertarian standards, and he was still willing to use the force of law to prohibit “religious societies that were  108 Ibid., 1430.  58 possibly inconsistent with the safety of the civil government or whose presence was detrimental to governmental authority.”109 He furthermore believed that law and government played a significant role in enforcing standards of morality regardless of conscientious objections to the contrary.110  Penn’s initial charter of 1682 contained a religious liberty provision that prevented persons from being “molested or prejudiced for their religious persuasion, or practice, in matters of faith and worship, nor shall they be compelled, at any time, to frequent or maintain any religious worship, place, or ministry whatever.”111 While these were important and even novel guarantees for a seventeenth-century charter, they do not appear to have exempted Quakers from oath-taking or mandatory militia service. Penn appears to have thought that the colonial government would be controlled by Quakers and therefore no explicit guarantee or exemption was necessary. In 1701, however—perhaps realizing that a Quaker-controlled legislature could not be guaranteed—he revised the Pennsylvania Frame of Government with the Charter of Privileges, and included a broad provision seeming to require religious exemptions. The new provision forbid compelling anyone “to do or suffer any other Act or thing, contrary to their religious persuasion.”112 How far Penn intended this provision to extend is not entirely clear, but it certainly reads like a nearly-unlimited right to religious exemption from law. In part because of the provision’s unlimited breadth, the Board of Trade in London, a body with the authority to review Pennsylvania law, refused to allow it, finally deciding against it in 1724. Penn passed  109 Melvin B. Endy, Jr., William Penn and Early Quakerism (Princeton University Press, 1973), 325-26, quoted in West, “Religion-Based Exemptions,” 384. 110 See West, “Religion-Based Exemptions,” 383-88. 111 “Pennsylvania Charter of Privileges,” reprinted in Sources of our Liberties, ed. Richard L. Perry (American Bar Foundation, 1959), 220, quoted in West, “Religion-Based Exemptions,” 383. 112 Ibid.  59 away several years earlier in 1718, so he was unable to dispute their decision or propose an alternative. We are left with an impression of Penn as an advocate for a very broad view of religious liberty in early America, but without a definite sense of how liberal Penn was on the question of religious exemptions.  Perhaps because Penn’s 1701 religious provision survived for so long before being removed in 1724, it continued to be cited as authoritative until Pennsylvania developed a state constitution in 1776. This half-century period was transformative of the demographic makeup of the state, and its political disputes provide an interesting commentary on how the Founding generation and its immediate forerunners may have understood religious liberty.113 Pennsylvania was, by nearly any measure, a very liberal colony on the subject of religious liberty from its inception. But conflict over the subject was also sown at its inception by the avowed pacifism of its first Quaker colonists. The Pennsylvania frontier was not a particularly safe place, and the state immediately relied on goodwill with Indian tribes and external British authorities to protect them from foreign and domestic threats. The Quaker and other pacifist groups who held a majority in the colonial legislature refused to pass any laws creating or allowing a state militia. It seems that they regarded service in a state militia as a violation for themselves and, further, that it was unacceptable to ask or require non-pacifists to do what they would not. Importantly, the pacifists from the 1600s through 1750 did not consistently argue for any kind of religious exemptions; they were content to pay British taxes to provide some measure of defense and to otherwise avoid any legal circumstances from which they might desire exemption. Because of a growing population of non-Quakers and a series of conflicts involving the colonies (the French  113 West has written well on the subject (“Religion-Based Exemptions” ) and this analysis rests on his essay. Readers hoping to learn more should return to the source, especially pages 383-394.  60 and Indian War began in 1754), the colonial legislature’s refusal to pass a militia law became an increasingly contested matter. In 1755 the legislature finally passed a militia law, and its provisions provide a window into their contemporary view on religious liberty: the law itself contained language to the effect that requiring military service of Quakers would be a violation of the 1701 Charter of Privileges, and, furthermore, that a law requiring military service but exempting Quakers “would be inconsistent and Partial.”114 But the law also noted that some who were not bound by conscience against militia service believed themselves to have a conscientious duty to join the defense of the colony, thus putting a burden on the legislature to pass a militia law. The result was a voluntary militia law, one that laid out the structure of the militia without requiring anyone to join it.  The 1755 militia law was shortly overturned by authorities in London but was evidence of a kind of last gasp of the Quaker-dominated Pennsylvania Assembly. By 1757 pacifists only represented about a quarter of the colony’s population and finally lost control of the Assembly. This was the year when the legislature first attempted to pass a militia law allowing conscription. It was also at this time that Quakers and other pacifists began to argue that the Charter of Privileges required that they be exempted from conscription—even non-combatant roles—or any fines for those refusing to serve. This argument grew increasingly louder as pressure mounted against pacifism, especially as the colony began fomenting for independence in 1775. In truth, the period from 1756 to 1776 was a transformative period for both Quakers and non-Quakers alike on the subject of pacifism. While the Quakers of a generation earlier had been content to pay taxes towards the support of their own defense, the Quakers of the revolutionary generation  114 “Militia Act of 1755,” reprinted in Conscience in Crisis: Mennonites and Other Peace Churches in America, 1739-1789: Interpretation and Documents, ed. Richard K. MacMaster (Scottsdale, PA: Herald Press, 1979) 115-16, quoted in West, “Religion-Based Exemptions,” 387.  61 extended their pacificism to a refusal to pay any taxes that might contribute to war or even paying down war debts.115 Meanwhile, their non-Pacifist neighbors grew unhappy under the yoke of British rule before breaking into outright rebellion. The matter came to a head in 1775 and 1776 as various pro-colonist groups agitated for the formation of militias to take up the cause of independence. Pacifists continued to claim exemption as a right guaranteed by the contested provisions in the Charter of Privileges. Patriots did not dispute the legitimacy of those provisions (which, the reader will recall, were struck down by London authorities in 1724), but they did dispute the pacifist interpretation and application. For while those provisions had been written by William Penn with potentially unlimited applicability and access to religious exemptions, Patriots increasingly interpreted them as applying only to worship.  Pacifists formally lost the argument in 1776 with the passage of Pennsylvania’s first state constitution, a document whose religious liberty guarantees were limited to worship and conspicuously did not include any provisions for religious exemptions. The relevant section from the Pennsylvania Constitution of 1776 is as follows:  That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding: And that no man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent: Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship: And that no authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner control, the right of conscience in the free exercise of religious worship.116    115 Peter Brock, Pacificism in the United States: From the Colonial Era to the First World War (Princeton: Princeton UP, 1968), 134-40. 116 From The Essential Bill of Rights, ed. Gordon Lloyd and Margie Lloyd (Lanham, MD: The University Press of America, 1998), 202-215.  62 The frequency with which this guarantee mentions worship is notable. Aside from multiple guarantees for freedom of worship, the document only provides something like an “equal protection” clause, guaranteeing the rights of a citizen regardless of belief or worship. There is no provision that guarantees religious liberty beyond belief and worship—i.e., in a manner that might be interpreted to include religious exemption from law.  In a separate section, the new constitution did allow for conscientious exemption from military service, but only on the condition that those exempted pay a fee “equivalent” to military service: That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of that protection, and yield his personal service when necessary, or an equivalent thereto: But no part of a man’s property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives: Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.”117   The Pennsylvania legislature in turn had few qualms about heavily taxing Quakers and other pacifists throughout the American Revolution. The matter was readdressed with the state’s passage of a new state constitution in 1790 when a motion to remove the “equivalent” fee was soundly defeated. Historian Peter Brock records in his comprehensive account, Pacifism in the United States, that nearly all the states, including Pennsylvania, enacted conscription requirements with heavy annual penalties for those seeking exemption. These penalties started small in Pennsylvania at £2.10s—the equivalent of several weeks’ wages—but rose significantly with both skyrocketing inflation and the need for able-bodied soldiers. The matter was further  117 Ibid.,   63 compounded by the refusal of Quakers to pay the fine or to pay for a substitute, as both options were regarded as non-pacifist contributions to the war-effort that were grounds for eviction from Quaker society. Instead, the penalties were collected with an additional fine as distraints, with Quaker property seized and sold at auction to meet the financial obligation.118 Regardless of what William Penn might have wanted for the Quakers settling in Pennsylvania, the Founding-era generation of Pennsylvanians believed that government had sufficient authority to require military service. While their constitution made some allowance for an exemption, the exemption was phrased in terms of compromise and remuneration, not a right based upon religious liberty. The story of William Penn and early Pennsylvania indicates that religious exemptions may have been contemplated in colonial law as early as 1701—but that they were not claimed as such until much later when pacifists lost control of the colonial legislature, and we have clear evidence of them being employed as judicially-enacted religious exemptions. As a last-ditch effort to avoid military service, first in the French and Indian War and then in the American Revolution, the legal legitimacy of these claims was narrowed before being eliminated altogether. By 1790, the political representatives of Pennsylvania were still set against the kind of religious exemptions most likely to be sought by a significant minority of the population, and furthermore did not include religious exemptions as part of their constitutional guarantee of religious liberty.119  Religious Liberty after the American Revolution  118 See Brock, Ch. 5, “Quakers and the American Revolution,” esp. 199-200. For equivalencies of wages, see Historical Statistics of the United States, Colonial Times to 1970 (Washington: U.S. Dept. of Commerce, Bureau of the Census, 1975) vol. 2, 1196, accessed on October 4, 2022, via the HathiTrust Digital Library.  119 West, “Religion-Based Exemptions,” 388-394.  64 The American Revolution was itself an important turning point for American attitudes towards religious establishments and religious liberty in at least two regards. First, the Anglican establishment of the Southern and Mid-Atlantic states was undermined and discredited by its connection to England and the Loyalist position taken by many of its clergy. The states of Georgia, North Carolina, South Carolina, and New York had effectively ended their Anglican establishments by 1778, and the establishments in Virginia and Maryland were not far behind.120 Second, the Congregational establishments of the New England states were strengthened by their association with the patriot cause during the war. The New England establishments were thus better able to weather the transition from colony to state, allowing them to survive into the nineteenth century.121 The obvious consequence of this post-Revolution arrangement was that the Southern colonies with the strongest establishments and the harshest treatment of dissenters in the mid-eighteenth century were transformed in the years immediately following the war. Apart from the American Revolution and its immediate impacts on establishment churches, another important revolution was occurring in the form of religious revival. The First Great Awakening swept across the colonies in the mid-eighteenth century, and another revival would begin in the last decade of that century. Because the American Founding fell squarely between the First and Second Great Awakenings, it may not be appropriate to suggest that either had significant immediate impacts on the Founders’ view of religion or religious liberty, but the revivals had at least secondary impacts in two important ways. First, revival popularized evangelical expressions of Protestant Christianity that were apart from the beliefs and practices of the establishment churches. Second, the spirit of revival leavened the Enlightenment  120 McConnell, “Origins,” 1436. 121 Ibid., 1437.  65 influences on the Founding generation. While it is sometimes popular to conceive of the American Founding as deistic and characterized by Enlightenment rationalism in matters of religious belief, such a view is historically anachronistic.122 Americans were generally pious at the time of the Founding, and those under the significant influence of Enlightenment rationalism were, Jefferson aside, more likely to be members of establishment churches—not outside the church or members of an evangelical sect. Another scholar, Professor John Witte, Jr., provides us with a useful taxonomy for thinking about post-war positions on religious liberty.123 Witte also shares McConnell’s opposition to the Smith decision; while his own historical analysis is not quite so focused on the matter of religious exemption, he definitely has in mind to override the Smith interpretation with recurrence to the historical tradition.124 Witte’s taxonomy identifies four basic approaches to religious liberty that characterized Americans at the time of the American Founding: Puritan, Evangelical, Enlightenment, and Civic Republican. The first of these categories refers, as we should expect, to the Puritan or Congregationalist views and institutions common to New England. “Evangelical” is Witte’s expansive term—used similarly by McConnell and others—for those connected to a non-establishment church, but especially Baptists, who were an important political force at the time of the Founding. “Enlightenment” is a broad category for those animated by the ideas of John Locke and others who were thereby inspired towards certain government reforms and related views about religion. Finally, “civic republicans” were those of  122 Ibid. 123 John Witte, Jr., “Essential Rights and Liberties of Religion in the American Constitutional Experiment,” Notre Dame Law Review 71, no. 3 (1996): 376-88.  124 Notably, in an earlier and less comprehensive essay [Witte, “The Theology and Politics of the First Amendment Religion Cases: A Bicentennial Essay,” Emory Law Journal 40 (1991): 489-507], Witte actually takes a friendly view of the Smith decision.  66 various religious faiths, but especially Congregationalists in New England and Episcopalians in the southern states, who were inclined to see religious and political entities as united in a common moral and institutional project. Witte is careful to note that his categories are not mutually exclusive. Many important thinkers and writers from the Founding Era blended one or more of these approaches or moved between them over time. For example, “James Madison’s early writings on religious liberty had a strong evangelical flavor; his political speeches in the early sessions of Congress often pulsed with civic republican sentiments; his later writings, particularly after his presidency, were of increasingly firm enlightenment stock.”125 Witte’s point is therefore not to force particular voices into a single frame of reference, as though every New England Congregationalist is only a representative of Puritan views, but rather to describe the four basic mindsets characterizing at least some support for religious liberty at the time of the Founding. Furthermore, Witte argues that the religious liberty ideas emerging from the Founding, and especially the First Amendment, represent a common agreement or compromise of these four positions rather than a triumph of one or two over the others. This idea of compromise is in contrast to McConnell, who argues instead that evangelicals primarily drove the Founding-era argument in favor of religious liberty.126 The Puritan viewpoint, in Witte’s telling, was characterized by a fairly strict institutional division between church and state, but by very common purposes between these institutions. Though Witte does not specifically identify the theological roots of Puritan practice, the Puritan institutional separation was likely rooted in the Reformed Protestant understanding of Two  125 Ibid., 378. 126 McConnell, “Origins,” 1437.  67 Kingdoms, and it is easy to see similarities between Puritan New England and Calvin’s Geneva. Hoping to maintain important separations between political and religious institutions, Puritans of the seventeenth and eighteenth centuries refused to allow ministers to serve in political offices and even on juries. Ministers were forbidden to endorse political candidates, and political officials were similarly forbidden to weigh in on matters of religious polity or doctrine.127 Despite these institutional boundaries, however, Puritans encouraged considerable cooperation between church and state. Church buildings hosted important political and social functions, including town assemblies, political rallies, and public libraries. Churches kept census records and information on births, deaths, and marriages. Church parsonages were tasked with the care of widows, orphans, and others identified by the state as needing care or housing. The state in turn collected tithes (as taxes, of course) to support the church, donated property for the construction of churches and parsonages, and passed laws providing churches with various legal and moral supports. The Puritan mindset and framework was consistently imposed throughout New England—excepting Rhode Island, of course—and it was fairly intolerant of those with differing religious views. Even as dissenters began to be tolerated in the eighteenth century, they “enjoyed only limited political rights and social opportunities and were subject to a variety of special governmental restrictions, taxes, and other encumbrances.”128 The evangelical mindset can claim roots in the earliest religious dissenters in the American colonies, but it did not emerge as a real political force until the First Great Awakening of the mid-eighteenth century.129 The central idea behind evangelicalism—at least the central idea affecting religious and political liberty—is the idea of religious voluntarism. Evangelicals  127 Witte, “Essential Rights,” 379. 128 Ibid., 380. 129 Ibid., 381-83.  68 firmly believed that true religion was dependent upon the individual conscience and could not rightly be coerced. They were therefore opposed to all prohibitions on religious belief and worship. Furthermore, evangelicals agreed with Puritans in demanding strict separation of church and state. Beyond the mere institutional separation of Puritanism, however, evangelicals were nearly as opposed to state support as they were to state coercion, believing that state support caused religious entities to become beholden to the state and state interests. Free exercise was essential to the volunteerism at the heart of evangelical belief, especially insofar as the spirit and behavior of revival did not necessarily comport with the staid approach of the establishment churches. Disestablishment was essential to eliminate state control over religion and to promote strong, healthy churches that bore their own financial weight—as opposed to weak and rotten churches that could grind on with state support.130 Notably, these reasons for disestablishment precluded the possibility of a multi-establishment arrangement whereby the states might have collected taxes and distributed them to various churches, a plan that was proposed and almost successful in Virginia. Evangelicals increasingly wanted no such financial involvement on the part of the state. Though their ideas had obvious and strong political implications—Massachusetts Baptist preacher John Leland put the matter so bluntly as to say, “The notion of a Christian commonwealth should be exploded forever”—Witte maintains that evangelical motivation was overwhelmingly religious in nature.131 Their religious ideas and practices had been persecuted and pushed to the fringe for hundreds of years in Europe and the American colonies, and they were motivated to create conditions of religious equality and freedom.  130 McConnell, “Origins,” 1438-39. 131 Witte, “Essential Rights,” 382.  69 The enlightenment view shared several important similarities with the evangelical view. First, proponents of the enlightenment view advocated for a strict separation of church and state and opposed most forms of state support for religion. Second, they too were proponents of religious voluntarism, believing religion to be a matter of individual belief and conscience.132 The difference in the two cases, however, was one of orientation: the enlightenment view was primarily interested in the political order and protecting it from the tyranny so often borne out of attempts to combine civil authority and religious purposes. Whereas evangelicals wanted separation of church and state in order to keep religion pure, proponents of the enlightenment viewpoint wanted to keep politics free of religious influences and otherworldly ends. This meant opposition to all forms of direct state support to religious entities and even opposition to some supports that modern Americans might regard as, at best, indirect supports—like tax exemptions and the ability to incorporate. The enlightenment position even sought to remove religiously-motivated arguments from the political arena. Witte reports that, though many enlightenment ideas came from seventeenth-century European sources like John Locke, they had only scattered and politically insubstantial representation in the American colonies until the mid-eighteenth century. The American Revolution had the effect of drawing out and popularizing enlightenment ideas, thereby leading to their political prominence. Major proponents of this position included Jefferson and Madison, who famously led important arguments on the subject of religious liberty and religious disestablishment in Virginia. While it is not hard to see the importance of Jefferson and Madison’s contribution, the political efficacy of their overall view is a somewhat contested point between McConnell and Witte. Witte thinks that the enlightenment position was an important political force in its own right; McConnell, on the other hand, sees it primarily as an  132 Ibid., 383-85.  70 outlier position, a secular position in the midst of a pious population. For McConnell, the strength in the position came from the resonance of its ideas with evangelicals and the political alliance forged between them.133 The fourth and final view described by Witte, civic republicanism, shared important similarities and differences with the other three views. Like the enlightenment view, civic republicanism was primarily concerned with the political order; like Puritanism, it encouraged mutual support between church and state; like evangelicalism, it advocated for rights of conscience and against monolithic religious establishments. As the enlightenment view shared many of the underlying assumptions of evangelicalism but with a fundamentally political orientation, so too did the civic republican view share underlying assumptions with Puritanism, but with a more political orientation. Civic republicans saw religion as an essential pillar of society, one that tamed human passions in a manner essential to republican government. Perhaps because of its broad political interest and religious appeal, republicanism was espoused by many important statesmen and leaders of the Founding Era, including George Washington, John Adams, and James Wilson. Its influence is easily seen in legislation creating military chaplains, requiring legislative prayers, supporting religious schools and missionaries, and providing tax exemptions for churches. The Northwest Ordinance of 1787 is a good example of this kind of legislation as it even provides a republican argument justifying federal support for potentially sectarian schools: “Religion, morality, and knowledge, being essential to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”134 While Witte’s four categories are not intended as geographic descriptions, he notes that the civic  133 McConnell, “Origins,” 1442-43. 134 Northwest Territory Ordinance of 1787, ch. 8, art. III, 1 Stat. 50, 52 (1789), quoted in Witte, “Essential Rights,” 388.  71 republican view was especially important in post-revolutionary Massachusetts. The flexibility of this view regarding public support for religion, morality, and churches seems to have resonated and found allies with those who were religiously from a more Puritan persuasion.135 In contrast to Witte, McConnell does not regard civic republicans as an asset in the fight for religious liberty. In his telling, civic republicans tended to share an affinity for the establishment churches, and to have poor regard for the evangelical views at the forefront of an agenda for disestablishment and religious liberty.136 While they certainly pushed back against evangelical and enlightenment ideas regarding disestablishment, McConnell is less clear regarding their reaction to efforts on behalf of religious liberty. He does, however, make clear that evangelicals and evangelical religious practice was often reviled, leading us to believe that republicans probably had little interest in offering it additional legal protections.137 Witte’s four categories provide him with a starting point for identifying a common language and common ideas in support of religious liberty at the time of the Founding. Before considering those, however, we ought to consider two potential objections to Witte’s overall approach. The first objection is that Witte and McConnell are in at least partial disagreement regarding whose ideas about religious liberty were the essential ones to inform the religious clauses of the First Amendment. Witte thinks that the four views he identified were all significantly represented in Founding-Era debates, and while he ties certain laws (e.g., the Northwest Ordinance) to particular viewpoints, his overriding premise is that the authoritative  135 Witte, “Essential Rights,” 387. 136 Ibid., 1442; McConnell quotes Isaac Backus (“An Appeal to the Public for Religious Liberty,” in Isaac Backus on Church State, and Calvinism: Pamphlets, 1754-1789, ed. W. McLoughlin (Cambridge: Harvard UP, 1968), 303, 324) observing that, “ ‘a little while ago’ the establishment was ‘for religion,’ but now is said to be ‘for the good of civil society” (emphasis in original). 137 Ibid., 1438.  72 Founding-view of religious liberty was informed by—or is a compromise position between—all four of his identified positions.138 McConnell, on the other hand, focuses almost exclusively on evangelicals as the originators and drivers of the Founding-Era debate.139 McConnell’s point seems to be that evangelicals, using the language of the enlightenment position, were responsible for the ideas and political influence behind the religious clauses of the First Amendment, over and against the Puritan and civic-republican positions. McConnell explains, The paradox of the religious freedom debates of the late eighteenth century is that one side [civic republicanism] employed essentially secular arguments based on the needs of civil society for the support of religion, while the other side [evangelicals] employed essentially religious arguments based on the primacy of duties to God over duties to the state in support of disestablishment and free exercise. … Thus, the evangelical position ultimately coalesced with the secular liberal position, as against the dying tradition of civic republicanism. This explains why the more fervent evangelicals, including the Baptists, tended to become Jeffersonians, notwithstanding the deism of Jefferson and the piety of his opponents.140  McConnell’s point is not that civic republicanism was not involved, but that it ultimately represented the losing position. The evangelical position was the historically triumphant position and is where we should look to understand contemporary religious liberty guarantees, including the Free Exercise Clause. The enlightenment position is valuable in McConnell’s framing of things, but mainly because of the way that it was embraced and modified by religious dissidents.  We will discuss the connection between the enlightenment position of Madison and Jefferson and their evangelical neighbors in Chapter 4, so we need not consider that connection too closely here. What we should note, however, is that McConnell’s argument about evangelicals and religious liberty relies upon two suspect conclusions. In the first case,  138 Ibid., 388. 139 McConnell, “Origins,” 1440-43. 140 Ibid., 1442-43.  73 McConnell wants us to conclude that religious liberty provisions should primarily be understood in light of the language and ideas of their proponents, not as a compromise position between a variety of different interests. On this point, McConnell is at least in disagreement with Witte. In the second case, McConnell’s argument depends upon evangelical proponents to make a strong and clear case for Sherbert-style judicial exemptions. The analysis of his sources in Chapter 4 suggests that they did not make such a case and tended to refute the idea of religious exemptions. A second objection, this time to both Witte and McConnell, is neither has sufficiently considered the variety of opinions at the time of the Founding and how this might have influenced the actual language and terms codified in the First Amendment. McConnell’s account is obviously the narrower and therefore more suspect of the two. While he may be correct that evangelicals drove the argument that ultimately resulted in the religious clauses of the First Amendment, it hardly follows that we ought to interpret it primarily in reference to evangelical support instead of in reference to those who tempered its language or accepted it as a compromise. But Witte is not free of suspicion either, as his four categories do not represent the full scope of possible or even expected positions. Rather, his intent is to include the basic arguments made in the late-eighteenth century in favor of religious liberty and to demonstrate that proponents of these four positions often made common cause in political and legislative arguments on behalf of religious liberty.141 But what of Episcopalians in the Southern states who thought it the proper and long-established role of the state to support their establishments? And what of those who were unwilling to extend legal protections to the revival enthusiasm of Quakers and Baptists, especially when such enthusiasm ran against laws passed to encourage public order and decency? Such views may have been falling out of fashion, but it is implausible  141 Witte, “Essential Rights,” 377.  74 to suggest that they were not prevalent and incomplete to disregard the ways that they influenced the overall argument. We should therefore keep in mind that Witte’s selection bias may prevent him from seeing the whole picture.  The purpose of Witte’s taxonomy is to argue for a common set of ideas and principles that he claims underly the First Amendment. If his four categories are regarded as the sources, then these principles are where the sources meet, a confluence of important ideas defined both by their origins and by the compromises and political development necessary at the nexus of differing viewpoints and traditions. From these separate but overlapping streams of late-eighteenth-century religious liberty, Witte identifies liberty of conscience, free exercise, pluralism, equality, separationism, and disestablishment as the essential ideas and terms of the argument.142 Despite some variety of interpretation and application, all four viewpoints basically agreed on these as a mutually reinforcing and balanced set of ideas.143 Few wanted simply pluralism, for example, but many thought it an important part of an overall program of religious liberty. Witte provides extensive definitions and examples to explain each of his key terms. For our purposes here, however, it is sufficient to focus on those most likely to provide some sort of clue about religious exemptions: liberty of conscience and free exercise. Witte regards the former of these as the essential and foundational ground of religious liberty in the late eighteenth century, and a point on which all—including old guard defenders of religious establishments—were agreed. Yet having established liberty of conscience so universally, Witte is compelled to equivocate on its uses and meanings. Apparently the term was often used alongside or  142 Ibid., 389ff. 143 Ibid., 388.  75 substituted for a host of other terms related to religious liberty in a manner suggesting a less than clear and specific meaning. Witte warns us that to “read the guarantee of liberty of conscience dogmatically is to ignore the fluidity of the term in the eighteenth century.”144 In spite of his warning, Witte gives us two clear and one partial meanings or applications of liberty of conscience. In the first case, Witte identifies it with defending religious voluntarism, the right of each individual to reach his own conclusions in matters of belief. Following from the implications of voluntarism, Witte identifies the second application of liberty of conscience in a prohibition against religious discrimination. If each is free to reach his own conclusions in matters of belief, then he must not be punished or shunned when he reaches answers at variance with the general community. Witte’s third application of liberty of conscience—described here as a partial application—comes qualified by less than universal applicability. Everyone might have agreed on liberty of conscience, but only “some eighteenth century writers” identified it to guarantee “a freedom and exemption from human impositions and legal restraints, in matters of religion and conscience.”145 So liberty of conscience might mean religious exemption from law to some, but not to others. Furthermore, Witte confesses to being unable to solve the question of Smith on historical grounds: Where general laws and policies did intrude on the religious scruples of an individual or group, liberty of conscience demanded protection of religious minorities and exemption. Whether such exemptions should be accorded by the legislature or by the judiciary, and whether they were per se a constitutional right or simply a rule of equity—the principal bones of contention among recent commentators—the eighteenth century sources at my disposal do not clearly say.146   144 Ibid., 390. 145 Ibid., 391. Emphasis added. The second half of the quote is originally from John Mellen, The Great and Happy Doctrine of Liberty (Boston: Samuel Hall, 1795), 17. 146 Ibid., 393  76 Like Professor McConnell, Witte is ready to say that the language of religious liberty at the time of the Founding required religious exemption, but he is unable to connect it to any institutional mechanism or responsibility. Seeking a historical justification for modern judicial exemptions, we are once more without clear precedent.  Historical Scholarship Opposing Judicial-Exemptions The categories and frameworks offered by Witte and McConnell are useful for introducing the topic of religious liberty in seventeenth- and eighteenth-century America, but despite the best intentions of their authors, they are basically inconclusive to the cause of Sherbert-style religious exemptions. Other authors have considered some of the same evidence and have not seen a favorable case for a theory of judicially-enacted religious exemption. Notable among these contrary positions are Professors Marci Hamilton and Philip Hamburger, both of whom have a broad research scope. Hamilton’s relevant research concerns the collected works and sermons of various ministers in Colonial and Founding-Era America. Many of the ministers she cites were broadly read and are still widely known, men like Jonathan Edwards, John Witherspoon, and Isaac Backus, but her reading is not confined to such notables. Her sources may not be an entirely representative sample of clergy in the latter half of the eighteenth century, but they are at least broadly drawn from major Protestant denominations, including Baptist, Presbyterian, Congregational, and Episcopalian.147 Hamilton directly disputes McConnell on the grounds that his view of religion and religious liberty is very personal, very dependent upon the individual conscience, and naturally bent on a kind of antagonism to the  147 Hamilton, “Religion,” 394.  77 political order, but that this view is not similarly conveyed by any of her eighteenth-century religious authorities.148  In fairness to McConnell, it is worth pointing out that some of Hamilton’s sources are the same as those he cites (i.e., Isaac Backus), though her sense of them is very different. And further, Hamilton explains in similar fashion to Witte that many of these ministers were expositing a two-kingdoms or two-spheres view separating religious and political realms (or aims, institutions, or authorities). What Hamilton brings to our attention is a focus on what specifically ministers had to say about it during the tumultuous periods of revival (the Great Awakening), then revolution, then founding, with the reasonable assumption that ministers would be the most likely group to argue for a larger sphere of religion and a smaller one of political authority. But Hamilton’s overall sense of these sources, in contrast to McConnell, is to highlight their support for law and order. And in contrast to Witte, Hamilton argues that ministerial explanations of the limits of the political realm were usually given in a context favorable to and applauding obedience to the law. Despite the potential for evangelical religious enthusiasm to fall afoul of laws intended for the common order, churches were not full of ministers fomenting for political-religious revolution. This point is not necessarily in contradiction to Witte or McConnell but does suggest that we temper our interpretation of their sources. Contra Hamilton, McConnell especially is prone to accept the most radical possible interpretation of his sources, even when radicalism may have been far from their intent.  The difference, therefore, between Hamilton and McConnell is not that they are looking at very different sources, but rather that they are reading those sources from opposing  148 Hamilton, “Religion,” 400-01.  78 perspectives. For example, Hamilton favorably quotes the Founding-era Baptist leader Isaac Backus: The portrait of society painted by the sermons of the eighteenth century brought Christians from a wide sweep of denominations under a shared horizon of working toward the public good in concert with the government, a task that required obedience to duly enacted law governing actions. Backus captured this worldview when he explained that religious believers had “an unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby.”149   Hamilton’s emphasis on “obedience to duly enacted law” suggests that we recognize the final clause of Backus’s quote as a significant limitation, one that would permit free exercise up to the boundaries of law (or other injury), but no further. We can easily imagine McConnell seizing upon the same quote as evidence that Backus advocated for free exercise beyond the limits of law—therefore requiring exemption—so long as one’s actions did not cause injury. Both readings are potentially consistent with the text, but they are certainly inconsistent with each other.  While the flexibility of language and the subtlety of emphasis may make it difficult to choose between these competing interpretations, we can still draw several important conclusions about the position of Founding-era ministers from Hamilton’s analysis. First, they often employed a two-kingdoms or two-realms approach to thinking about the institutions and purposes of religion and politics. The idea is arguably as old as Christianity (“Render unto Caesar…”), but certainly as old as the Protestant reformation when it was articulated in these terms by both Luther and Calvin. We have observed a similar view in Locke, though of course Locke’s view tended to privilege the political magistrate over the religious sphere. While the  149 Hamilton, “Religion,” 405.  79 approach can be revolutionary, especially in the hands of someone who would strike the balance opposite of Locke, that was likely not the intent of eighteenth-century American ministers.150 Second, evangelical ministers especially were prone to use the two-realms approach to argue for a wider range of religious exercise and a narrower range of political authority over areas connected to religion and religious exercise. What is implicit from Hamilton’s evidence, however, is that they rarely did so with the express intent of seeking religious exemption from law. The two kingdoms approach is an effort to settle the boundaries between the kingdoms, not to suggest different boundaries (exemptions) for those with religious exemptions. Third and finally, the general tone of ministers at the time of the American Founding was patriotic and supportive of the political common good and rule of law. Even those seeking to limit or rollback political authority were likely to argue in terms of justice and the common good, an approach that is not easily directed towards special exemptions.  Professor Hamburger underscores Hamilton’s points and is able to take his conclusions considerably further based upon his broader historical scope. Regarding Americans’ general opinions about religious liberty in the latter part of the eighteenth century, Hamburger draws three important conclusions. First, “free exercise” was not an especially radical subject or idea at the time of the Founding, and it was broadly agreed to by both dissenters and members of establishment churches. Second, dissenters did not seek a general right to exemption and typically thought of religious-political problems in terms that undercut a rationale for exemptions. Third, the primary aim of dissenters was equality before the law, an aim at odds with religious exemptions.  150 Ibid., 396-97.  80  In the first case, Hamburger cites a wide variety of both religious dissenters and defenders of religious establishment making arguments for the necessity of individual conscience and free exercise in matters of religion.151 Hamburger attributes the common emphasis on individual conscience to Locke, who regarded conscience as primary in matters of religion. For Locke, all men are completely free in the pre-political state of nature, and political authority has but limited jurisdiction over men as they move into civil society. Conscience is not surrendered with entrance into civil society, and indeed political authority has no power to control it. By the American Revolution, dissenters and defenders of establishment alike agreed about the freedom of conscience and made provision for the free exercise of religion. Hamburger cites the earliest constitutions and bills of rights in Maryland, Massachusetts, New Hampshire, and Virginia as proof that Revolutionary-era Americans were willing to accept free exercise provisions while still supporting religious establishments.152 In their view, conscience required freedom of belief and often a related freedom of worship, but equality of civil rights and state support did not automatically follow. Indeed, Hamburger observes that the narrow scope of free exercise is evident from the fact that it was not the object of dissenters’ political interest. Rather, dissenters were primarily interested in receiving equal civil rights and eliminating laws that conferred sectarian privileges. Hamburger explains the dissenters’ rationale very succinctly: “they took one of Locke’s arguments further than Locke himself: If the civil authority had no power over any but civil matter, then it had to refrain, not merely from penalizing the free exercise of religion, but from making any laws respecting religion.”153  151 Hamburger, “Constitutional Right,” 933-36. 152 Ibid., 934, footnote 82. 153 Ibid., 936.  81  The dissenters’ case against any laws respecting religion was closely tied to the two-spheres or kingdoms view of religion and politics. Hamburger brings this two-sphere distinction back to our attention as the fundamental understanding of both dissenters and defenders of religious establishment. Further, Hamburger ties together both religious and secular origins for this view, noting the relative similarity between the Christian reformed view of two kingdoms and the Lockean view of separate spheres. By Hamburger’s telling, both versions were mixed up in the sermons and political arguments of the era. What is particularly notable about this framework is that dissenters and establishmentarians agreed on the general framework and only quibbled about the gray areas in the middle—the areas where the establishments justified civil support for religion or where dissenters argued against a wide swathe of laws respecting religion. In the words of Connecticut minister Levi Hart,  Admitting that an exact determination of the boundaries between the rights of conscience, and of the magistrate, may be difficult, in some cases—the most important and practical principles, on the subject, are extremely plain; and are admitted by the most enlightened, of every denomination, as essential to good order and happiness in society.154  This framework of fundamental agreement is essential to our current search for religious exemptions because, if true, it means that exemptions, at least as a matter of settled, judicially-enforceable principle, were effectively foreclosed from the terms of the argument. Exemptions generally concern matters that fall solidly within the political realm and only concern the conscience or religion of a small number. The objection leading to an exemption is that a particular practice ought to be allowed for a minority based upon their unique beliefs, not because that practice falls outside the legitimate purview of law, but because it causes a  154 Levi Hart, “The Description of a Good Character,” Connecticut election sermon (Hartford: Hudson and Goodwin, 1786), quoted in footnote 90 of Hamburger, “Constitutional Right,” 937.  82 particular hardship for that minority. But if everyone coming to the debate about religious liberty agrees that the political authority has total sovereignty in civil matters—as Hamburger alleges to be the case at the time of the American Founding—then the argument is about where to draw the line between civil matters and things that are beyond the realm of political authority. Once that line is drawn, however, it represents a sphere of complete freedom for religious liberty. As we pointed out in our introduction, this is a “narrow but deep” view of religious liberty. We might still allow for exemptions within this framework, but not as a principled requirement of it, and certainly not of the sort that could be introduced by judicial fiat. Hamburger acknowledges that laws and even state constitutions at this time made allowance for specific kinds of exemptions, but he argues that these were not offered as a matter of principle or as a general defense of religious liberty: [D]issenters…typically asked, not for a general right of exemption, but merely for exemptions from a small number of specified civil obligations. Of these limited exemptions, moreover, only those relating to military service frequently were granted in constitutions. Even constitutional military exemptions, however, often appear to have been given largely for reasons of compassion and politics. Indeed, the idea that individuals had a general right to be exempted from civil laws contrary to their consciences was so unpopular that establishment writers attempted to use it to smear their opponents.155  Religious exemptions require muddying the boundaries between the rights of conscience and rights of the magistrate. While those defending religious establishments in the late eighteenth century may have been more comfortable than their dissenting peers with uncertain boundaries in this area, they had little interest in carving out religious exemptions. Dissenters, on the other hand, might have had some interest in exemptions, but they were primarily concerned with  155 Hamburger, “Constitutional Right,” 940-41.  83 clarifying and fortifying the boundaries between religion and political authority. According to Hamburger, this meant that dissenters wanted political authority to be non-cognizant of religious categories and beliefs, to refrain from any laws respecting matters of religion. While it may not at first appear so, this formulation is a radical defense of religious liberty that assumes that religion is best protected by the state when it is left entirely alone. But the argument cuts both ways: if the state cannot recognize religion in order to confer benefits, then it cannot recognize religion to offer protections, either. This is especially true of exemptions, which explicitly involve the state offering special protections on account of religious belief. In short, one cannot consistently argue against laws concerning religion and claim a right to religious exemption. Religious dissenters of the late eighteenth century tended to adopt the former position and reject arguments favoring exemptions.  Instead of finding arguments for exemption in the words of eighteenth-century dissenters, Hamburger finds them explicitly disavowing such arguments as a radical and unsubstantiated accusation made by their political opponents. Hamburger notes several instances where religious exemption was used as a straw-man argument to suggest that dissenters were interested in religious lawlessness. In one example, a series of pamphlets published in 1762 told stories of deluded believers forsaking family and law to follow the guiding of an inner light or voice, and the pamphlets ultimately conflated all Separatist religious belief with the opinions and actions of the Rogerenes, a radical sect prone to violations of law.156 While a few on the fringe (such as the Rogerenes) might have embraced arguments in favor of violating the law or at least offering religious justification for doing so, the majority recoiled from that position in favor of clearer  156 See Ibid 941-42, footnote 107. Hamburger references pamphlets “A Brief Account of the Deluded Dutartes,” “A Narrative of the Life…of John Lewis,” and a third pamphlet connected to the first two, all written by Alexander Garden (New Haven: James Parker and Co, 1762).  84 boundaries between religious and political authority. Baptist Isaac Backus objected to the straw-man characterization, saying that “Even to this day they can hardly preach a sermon or write a pamphlet for infant baptism without having something to say about the madmen of Münster who, they tell us, rebelled against their civil rulers.”157 Backus and other dissenters thus had good reason to separate themselves from the charge of lawlessness and happily and effusively did so.  While Hamburger’s significant point that dissenters’ arguments in favor of equality cut against arguments for exemption has already effectively been made, it does bear a moment of further reflection. Dissenters sought to clarify the uncertain area between religious and political authority, to do away with sectarian political privileges, to keep the state from active cognizance of religious differences. Because they did so in the name of religious liberty and sought a broader scope of permissible activity in the name of religion and because their arguments sometimes implied less than total fealty to existing or possible limitations of law, Professor McConnell interprets dissenters as defenders of a nascent right to religious exemption. Contra McConnell, however, Hamilton argues that religious exemption requires exactly the sort of state cognizance of religion that dissenters ardently claimed to oppose. Had there been a vigorous debate about a general right to religious exemption at the time of the Founding—and our background scholarship suggests that there was no such debate—it is reasonable to think that religious dissenters might have opposed such a right on the grounds that it was a law respecting religion.  Conclusion  157 Ibid., 941, footnote 106, citing Isaac Backus, “An Appeal to the Public” (1773), from Backus on Church, State, and Calvinism (supra), 337.  85  The eighteenth century presents a very dynamic picture of religion and religious liberty in America. The century opened with various religiously liberal colonial experiments coming to a close, especially in the southern colonies, and strong religious establishments across most of the colonies in the South and the northeast. By the middle of the century, the Great Awakening saw the emergence of a large number of evangelical dissenters from those establishments, people who sought both additional religious liberty and to rid their colonies of the perquisites and penalties associated with religious establishments. The American Revolution further saw the demise of the Southern establishments, which had the misfortune of association with the Crown and the cause of Loyalism. Especially in the Southern states, the latter part of the eighteenth century was characterized by an unraveling of religious establishments, beginning with the removal of penalties associated with dissenting faiths and ending with the removal of the de jure benefits associated with the established church. But despite how radical all of that change may sound, it was neither a lawless nor an irreligious transformation in religion or religious liberty. Rather, the genuine and personal faith popularized by the Great Awakening meant that religious concerns, especially those connected with the conscience of individual believers, were given high priority.  Furthermore, both dissenters and establishmentarians came to view arguments about religious liberty and civil authority in similar terms as fundamentally an argument about jurisdiction. This common framework, which had roots and justification in both the secular Enlightenment and Christianity (especially the Protestant Reformation), maintained separate realms of authority between religious and civil obligation. Viewing the religious-political problem in a common framework did not solve all or even most of the related arguments, but it did provide substantial common ground and agreement on some key points. Most seem to have  86 accepted rights of conscience and rights concerning the free exercise of religion as necessary consequences of the general framework, but whether those rights extended beyond a freedom of belief and worship was not clearly settled. Further, defenders of religious establishments increasingly defended state-enacted religious privileges in civic terms, pointing to the moral benefits of religion on a free people instead of a religious necessity to preserve the faith. Dissenters were not so easily convinced to maintain those privileges, however, and the common framework allowed for plenty of argument about where to draw jurisdictional lines between religious and political authorities. Dissenters increasingly advocated for a religiously-blind arrangement whereby political authorities could pass no laws respecting—neither penalizing nor privileging—religion. While their critics may occasionally have characterized such an arrangement as tending to anarchy, dissenters did not think of it in such terms, believing instead that a wide range of religious belief and practice could exist alongside fully-empowered civil authorities. What ensued was a series of vigorous debates at every level of government about how best to fix the boundaries between religious and civil authority in each particular case, with few universal solutions across all the states or other jurisdictions.  The foregoing background on seventeenth- and eighteenth-century religious liberty has significant and fairly clear consequences for the historical argument about Sherbert-style religious exemptions. First, there was no very significant debate about a general right to religious exemption during the seventeenth or eighteenth century. Some of the early colonial charters may have contained an invitation to debate here, but none of these provisions lasted long nor seems to have had an obvious influence on Americans of the Revolutionary or Founding Eras. Americans of those periods occasionally did argue about specific legal exemptions—in cases of oaths or military service, for example—but these exemptions were offered in a spirit of compromise, not  87 as a natural consequence of a right to religious liberty. Second, the terms of debate about religious liberty in the late eighteenth century did not readily permit arguments regarding a general right to religious exemption. McConnell has tried to read exemptions into the Founding-Era arguments by insisting that arguments for religious liberty were beholden to evangelical religious dissenters who both set the terms of argument and pushed forward the political agenda. While he never identifies anyone openly advocating for a general right of religious exemption, his assumption seems to be that such a right would have been beneficial to religious dissenters and was therefore consistent with their aims. Leaving aside the dubious notion that the First Amendment should be read entirely from the perspective of religious dissenters, McConnell’s argument falls short of accounting for what dissenters actually said. Even if we unquestioningly accept the position of dissenters as the authoritative position on religious liberty, we are left with an overall framework that does not easily admit arguments for exemption and likely prohibits such arguments. Taking dissenters at their word, arguments at the time of the Founding tended to focus on correctly setting the boundaries between religious and civil realms, and dissenters were strong advocates for eliminating the kinds of laws that muddied these boundaries. Beyond even the First Amendment, dissenters wanted to prohibit laws respecting religion, a prohibition that, consistently applied, would prevent religious exemptions from law.  The intent in this chapter was to provide a general context for arguments about religious liberty at the time of the Founding without dwelling for long on any specific person, document, or event, and furthermore to introduce some of the key scholarship on the topic. The rest of the dissertation will afford more time to slow down and consider the primary sources most relevant to interpreting the First Amendment. While this chapter can hardly be called conclusive to the question of judicially-enacted religious exemptions, it helps to frame the matter and establish that  88 the matter was not obviously settled by colonial precedent, even in the colonies like Pennsylvania that were organized and governed by religious dissenters for much of the eighteenth century.   89 CHAPTER 3 STATE CONSTITUTIONS  The prior chapter provided both a general introduction to Smith in the context of Originalism and occasion to review the context of religious liberty disputes from the late seventeenth through the late eighteenth century. Originalist arguments, those seeking the original meaning or intent of Constitutional provisions, have been important to Conservative jurisprudence for at least the past half-century and have increasingly grown in importance to other jurists.158 Those seeking to dismiss Smith on Originalist grounds, however, have almost exclusively turned to several essays by Professor Michael McConnell in defense of their position, regardless of contrary scholarship or McConnell’s own admission that his evidence does not settle the matter. The previous chapter provided general background here, showing that arguments for religious exemption were unlikely to have arisen from seventeenth-century influences and were not the object of passionate debates over religious liberty and religious establishment that characterized the latter-half of the eighteenth century. What remains in this analysis of Smith and Originalism is to weigh the more particular debates at the time of the Founding to show that they do not support the position of judicially-enacted religious exemptions, beginning with the language of state constitutions. State constitutions have rightly been seen as an important interpretative framework for understanding the original meaning and intent of the First Amendment’s religion clauses. From the moment at which the colonies declared independence from England, nearly all recognized the immediate  158 Supreme Court Justice Elena Kagan made the now well-known claim “We are all Originalists now,” in her Senate confirmation hearings in 2010.  90 necessity to establish a fundamental law to provide form and legitimacy to their common action and well-being in the form of a state constitution. As they proceeded to write these fundamental laws, most included a list of formal rights that included guarantees of religious liberty. By the time that the First Congress passed the Bill of Rights, only the state of Connecticut had failed to include a guarantee of religious liberty at the level of its fundamental law, and Congress had already provided some guarantees of religious liberty in the Northwest Territory. As a historical matter, the religious rights identified in the First Amendment are following a common pattern, so it makes considerable sense to evaluate the pattern and identify important commonalities and outliers. Several significant commenters on Smith and the historical basis of Free Exercise exemptions have relied heavily on state constitutions to inform or complement their view of the First Amendment, including most recently Justice Alito in his concurrence calling for the overturning of Smith in Fulton v. Philadelphia (2021).159 Despite the fact that everyone is looking at the same dataset (the state constitutions are not difficult to find), everyone has not reached the same conclusions. While those conclusions will be discussed in the following pages, we should begin by reviewing the fundamental laws in question. Readers will recognize that this area of review is something of a departure from analysis in the prior chapter, which was primarily focused on meta-analysis, not original research, but looking at the source material is worthwhile in several respects. First, the actual sources, the religious liberty guarantees in state constitutions, are quite short. None of our commenters has substantially researched any state’s constitutional convention, so our commenters are also dealing primarily with these short guarantees. The context for our purposes and the purposes of our commenters is therefore the  159 593 U. S. ____ (2021), section IV.B.3., 36-39 (slip op.).  91 context of these guarantees vis-à-vis one another and the text of the First Amendment. In other words, the question is not “how did Massachusetts finally arrive at its religious liberty guarantee?” but rather, “how does Massachusetts’s guarantee compare to its contemporary guarantees in other states and the First Congress?” Second, while each of our commenters treats the state constitutions in this comparative context, none has explicitly provided the raw context to his readers, making it difficult to tell whether their general conclusions are broadly descriptive or not. Figure 3.1, therefore, in the immediately following pages seeks to provide the background context as a convenient and useful reference.    92 Figure 3.1—Religious Liberties in State Constitutions through 1820 Note: Shading denotes laws in-place at the time of the First Congress’s deliberations on the First Amendment.  State, Year Religious Liberty Clause Religious Equal Protection Clause Licentiousness proviso Unique Features AL (Decl. of Rights)160  1819 (-1861) “No person shall be hurt, molested, or restrained in his religious profession, sentiments, or persuasion…” (emphasis added throughout) “The civil rights, privileges, or capacities of any citizen, shall in no way be diminished, or enlarged, on account of his religious principles.” “…provided he does not disturb others in their religious worship.” [tied to RL Clause] Right to conscientious objection from military service with equivalent payment CT (Charter)161 1662 [none] [none]   CT  (Decl. of Rights)162   1818 (-1965) “The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in this state...” [none] “...provided, that the right hereby declared and established shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state.” [tied to RL Clause]   DE  (Dec. of Rights)163  1776 “That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understandings...” “That all persons professing the Christian religion ought forever to enjoy equal rights and privileges in this state...” “...unless under color of religion any man disturb the peace, the happiness, or safety of society.” [tied to EP Clause]  Right to conscientious objection from military service with equivalent payment; prohibition on clergy holding civil office  160 “Alabama: Constitution of 1819,” The Avalon Project, Yale University, accessed on September 15, 2020, https://avalon.law.yale.edu/19th_century/ala1819.asp. 161 “Charter of Connecticut – 1662,” The Avalon Project, Yale University, accessed on September 10, 2020, https://avalon.law.yale.edu/17th_century/ct03.asp. The “Fundamental Orders of Connecticut,” the colony’s first governing document issued in 1639, also did not contain any provisions related to religious rights or rights of conscience. 162 “1818 Constitution of the State of Connecticut,” Office of the Secretary of State (CT), accessed on September 10, 2020, https://portal.ct.gov/SOTS/Register-Manual/Section-I/1818-Constitution-of-the-State-of-Connecticut. 163“The Delaware Bill of Rights of 1776,” presented by Max Farrand in The American Historical Review 3, no. 4 (July 1898): 641-49, accessed via JSTOR on September 10, 2020, https://www.jstor.org/stable/pdf/1834141.pdf.  93 DE (Decl. of Rights)164  1792 (-1831)  “...no power shall or ought to be vested in or assumed by any magistrate that shall in any case interfere with, or in any manner control, the rights of conscience, in the free exercise of religious worship...” [none] [none] Prohibition on clergy holding civil office  GA (Constitution)165 1777 “All persons whatever shall have the free exercise of their religion...” [none] “...provided it be not repugnant to the peace and safety of the State...” [tied to RL Clause]  Prohibition on clergy holding legislative office GA (Constitution)166 1789 “All persons shall have the free exercise of religion...” [none] [none]  Prohibition on clergy holding legislative office GA (Constitution)167  1798 (-1861) “No person within this State shall, upon any presence, be deprived of the inestimable privilege of worshipping God in a manner agreeable to his own conscience...” “...nor shall any person be denied the enjoyment of any civil right merely on account of his religious principles.” [none]   IL (Constitution)168  1818 (-1848) “That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences…that no human authority can, in any case whatever, control or interfere with the rights of conscience…”   Right to conscientious objection from military service with equivalent payment IN (Constitution)169  1816 (-1851) “That all men have a natural and indefeasible right to worship Almighty God, according to the dictates of their own consciences…That no human authority can, in any case whatever, control or interfere with the rights of conscience…”   Right to conscientious objection from military service with equivalent payment; flexibility with regard to oaths KY “That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own “That the civil rights, privileges, or capacities of any citizen shall in nowise be diminished or enlarged  Right to conscientious objection from military service with  164 “Constitution of Delaware (1792),” from Part I, National Constitutions/State Constitutions (Alabama-Frankland) (New York: K. G. Saur, 2006) 221. 165 “Georgia Constitution of 1777,” GeorgiaInfo: An Online Georgia Almanac, accessed on September 10, 2020, https://georgiainfo.galileo.usg.edu/topics/government/related_article/constitutions/georgia-constitution-of-1777. 166 “1789 Georgia Constitution,” GeorgiaInfo: An Online Georgia Almanac, accessed on September 10, 2020, https://georgiainfo.galileo.usg.edu/topics/government/related_article/constitutions/georgia-constitution-of-1789. 167 “1798 Georgia Constitution, GeorgiaInfo: An Online Georgia Almanac, accessed on September 10, 2020, https://georgiainfo.galileo.usg.edu/topics/government/related_article/constitutions/georgia-constitution-of-1798. 168 “Constitution of the State of Illinois,” (Washington City, IL: E. De Krafft, 1818), https://archive.org/details/constitutionofst00inilli/mode/2up. 169 “Constitution of 1816,” IN.gov, Indiana Documents Leading to Statehood, accessed on September 16, 2020, https://www.in.gov/history/2460.htm.  94 (Constitution)170  1792 consciences… that no human authority can, in any case whatever, control or interfere with the rights of conscience…” on account of his religion.” equivalent payment; flexibility with regard to oaths; prohibition on clergy serving in the state legislature KY (Constitution)171  1799 (-1850) “That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences…that no human authority ought, in any case whatever, to control or interfere with the rights of conscience…” “That the civil rights, privileges, or capacities of any citizen shall in nowise be diminished or enlarged on account of his religion.”  Right to conscientious objection from military service with equivalent payment; flexibility with regard to oaths; prohibition on clergy serving in the state legislature LA (Constitution)172  1812 (-1845) [none] [Louisiana had neither a Bill of Rights nor a section of its constitution enumerating rights.] [none]  Right to conscientious objection from military service with equivalent payment; prohibition on clergy holding civil office MA  (Decl. of Rights)173  1780 (-pres.) “It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe...” “And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments...” “...provided he doth not disturb the public peace, or obstruct others in their religious worship.” [tied to EP Clause]   MD  (Decl. of Rights)174  1776 (-1851) “...all persons, professing the Christian religion, are equally entitled to protection in their religious liberty...” “...wherefore no person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice...” “...unless, under colour of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights...” [tied to EP Clause] Oath exemption for Quakers; officeholders required to be Christian  170 “First Constitution for the State of Kentucky,” from The Statute Law of Kentucky, ed. William Littell, Vol. I., 1809, pgs 21-38, accessed on September 16, 2020, http://apps.sos.ky.gov/secdesk/sosinfo/SOStimeline.aspx?id=1. 171 “Second Constitution for the State of Kentucky,” from The Statute Law of Kentucky, ed. William Littell, Vol. I., 1809, pgs 38-58, accessed on September 16, 2020, http://apps.sos.ky.gov/secdesk/sosinfo/SOStimeline.aspx?id=4. 172 “Constitution or Form of Government of the State of Louisiana” (New Orleans: Jo Bar. Baird, 1818), accessed on November 12, 2023, available at https://njlaw.rutgers.edu/cgi-bin/constitution.cgi?funct=1&document=LA003. 173 “Massachusetts Constitution,” from the website for the General Court for the State of Massachusetts, accessed on September 10, 2020, https://malegislature.gov/laws/constitution. 174 “Constitution of Maryland - November 11, 1776,” The Avalon Project, Yale University, accessed on September 10, 2020, https://avalon.law.yale.edu/17th_century/ma02.asp.  95 ME (Decl. of Rights)175  1820 (-pres.) “All men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences…” “…no one shall be hurt, molested or restrained in his person, liberty or estate for worshipping God in the manner and season most agreeable to the dictates of his own conscience, nor for his religious professions or sentiments…and all persons demeaning themselves peaceably, as good members of the State, shall be equally under the protection of the laws…” “…provided he does not disturb the public peace, nor obstruct others in their religious worship…” [tied to EP Clause] Militia exemption specifically for Quakers and Shakers with no stated penalty; flexibility with regard to oaths MS (Decl. of Rights)176  1817 (-1832) “The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in this State…” “That no person shall be molested for his opinions on any subject whatever, nor suffer any civil or political incapacity, or acquire any civil or political advantage, in consequence of such opinions except in cases provided for in this Constitution.” “…provided, that the right hereby declared and established shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of this State.” [tied to RL Clause] Right to conscientious objection from military service with equivalent payment; prohibition on clergy serving in statewide office NC  (Decl. of Rights)177  1776 (-1868) “That all men have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences.” [Declaration of Rights] “...all persons shall be at liberty to exercise their own mode of worship...” [Constitution] [none] “Provided, that nothing herein contained shall be construed to exempt preachers of treasonable or seditious discourses, from legal trial and punishment.” [tied to RL Clause in Constitution]  Prohibition on clergy holding legislative office or position on executive council NH (Constitution)178 1776 [none] [none]   NH (Bill of Rights)179  1784 “Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason...” “...no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping God, in the manner and season most agreeable to the dictates of his own conscience...” “...provided he doth not disturb the public peace, or disturb others, in their religious worship.” [tied to EP Clause]  Right to conscientious objection from military service with equivalent payment  175 “Maine State Constitution, 1819,” Maine State Library, Digital Maine, 2018, accessed on September 17, 2020, https://digitalmaine.com/cgi/viewcontent.cgi?article=1000&context=me_constitution. 176 “The Mississippi Constitution of 1817,” Mississippi History Now, accessed on September 18, 2020, http://www.mshistorynow.mdah.ms.gov/articles/103/index.php?s=extra&id=267. 177 “Constitution of North Carolina: December 18, 1776,” The Avalon Project, Yale University, accessed on September 10, 2020, https://avalon.law.yale.edu/18th_century/nc07.asp. 178 “Constitution of New Hampshire – 1776,” The Avalon Project, Yale University, accessed on September 13, 2020. 179 “State Constitution – Bill of Rights,” NH-at-a-Glance, NH.gov, an official New Hampshire government website, accessed on September 10, 2020, https://www.nh.gov/glance/bill-of-rights.htm.  96 (-pres.) NJ (Constitution)180  1776 (-1844) “That no person shall ever, within this colony, be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience...” “...no Protestant inhabitant of this colony shall be denied the enjoyment of any civil right, merely on account of his religious principles...and shall fully and freely enjoy every privilege and immunity, enjoyed by others their fellow subjects.” “...all persons, professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably under the government...shall be capable of being elected into any office of profit or trust, or being a member of either branch of the legislature...” [tied to EP Clause]   NY (Constitution)181  1777  (-1821) “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind...” [none] “...liberty of conscience... shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.” [tied to RL Clause]  Militia exemption for Quakers with equivalent payment; Prohibition on clergy holding civil or military office NW Ordin-ance182  1787 “No person…shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.” [none] “…demeaning himself in a peaceable and orderly manner…” [tied to RL Clause]   OH (Bill of Rights)183  1802 (-1851) “That all men have a natural and indefeasible right to worship Almighty God, according to the dictates of conscience; that no human authority can, in any case whatever, control or interfere with the rights of conscience…” [none]   PA  “That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding...” “Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar [none] Right to conscientious objection from military service with equivalent payment   180 “New Jersey Constitution July 3, 1776,” The Essential Bill of Rights, ed. Gordon Lloyd and Margie Lloyd, (Lanham, MD: The University Press of America, 1998), 196–201, https://teachingamericanhistory.org/library/document/new-jersey-constitution/. 181 “The Constitution of New York: April 20, 1777,” The Avalon Project, Yale University, accessed on September 11, 2020, https://avalon.law.yale.edu/18th_century/ny01.asp#1. 182 Transcript of Northwest Ordinance (1787), OurDocuments.gov, https://www.archives.gov/milestone-documents/northwest-ordinance. 183 The Constitutions of Ohio of 1802 and 1851, with notes of the decisions construing them, and references to the constitutional debates, (Columbus: Nevins and Myers, 1873), accessed on September 18, 2020, http://hdl.loc.gov/loc.gdc/scd0001.00206868892.  97 (Decl. of Rights)184  1776 mode of religious worship...” PA (Constitution)185  1790 (-1838) “That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences...” “That no person, who acknowledges the being of a God and a future state of rewards and punishments, shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this commonwealth.” [none] Right to conscientious objection from military service with equivalent payment  RI  (Royal Charter)186  1663 (-1843) “...all and every person may...at all times hereafter, freely and fully have and enjoy...their own judgments and consciences, in matters of religious concernments...” “...no person within the said colony, at any time hereafter shall be any wise molested, punished, disquieted, or called in question, for any differences in opinion in matters of religion...” “...and do not actually disturb the civil peace...” [tied to EP Clause] “...they behaving themselves peaceably and quietly, and not using this liberty to licentiousness and profaneness, nor to the civil injury or outward disturbance of others, any law, statute, or clause therein contained, or to be contained, usage or custom of this realm, to the contrary hereof, in any wise notwithstanding.” [tied to RL Clause]   SC (Constitution)187 1776 [none] [none]  [none]    184 The Essential Bill of Rights, ed. Gordon Lloyd and Margie Lloyd, (Lanham, MD: The University Press of America, 1998), 202-215, https://teachingamericanhistory.org/library/document/pennsylvania-declaration-of-rights-and-constitution/. 185 “Constitution of the Commonwealth of Pennsylvania – 1790,” PA Constitution, Duquesne University School of Law, accessed on September 10, 2020, https://www.paconstitution.org/texts-of-the-constitution/1790-2/. 186 “Rhode Island Royal Charter, 1663,” Primary Source Document Transcription, made available through the Rhode Island State Archives, accessed on September 10, 2020, https://www.sos.ri.gov/assets/downloads/documents/RI-Charter-annotated.pdf. 187 “Constitution of South Carolina – March 26, 1776,” The Avalon Project, Yale University, accessed on September 10, 2020, https://avalon.law.yale.edu/18th_century/sc01.asp.  98 SC (Constitution)188  1778 “That all persons and religious societies who acknowledge that there is one God, and a future state of rewards and punishments, and that God is publicly to be worshipped, shall be freely tolerated.” “That all denominations of Christian Protestants in this State...shall enjoy equal religious and civil privileges.” “That all denominations of Christian Protestants in this State, demeaning themselves peaceably and faithfully...” [tied to EP Clause] Flexibility with regard to oaths; prohibition on ministers holding civil office; Protestant limitation for state legislature  SC (Constitution)189  1790 (-1865) “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed within this State to all mankind…” [none] “Provided, that the liberty of conscience thereby declared shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.” [tied to RL Clause]  TN (Decl. of Rights)190  1796 (-1834) “That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences…that no human authority can in any case whatever control or interfere with the rights of conscience…”   Exemption from militia service for those belonging to certain religious sects; prohibition on clergy serving in the state legislature VA (Decl. of Rights)191 1776 (-1830) “...all men are equally entitled to the free exercise of religion, according to the dictates of conscience...” [none] [none] Religious liberty with no written stipulations; Prohibition on clergy holding legislative office or position on executive council  188 “Constitution of South Carolina – March 19, 1778,” The Avalon Project, Yale University, accessed on September 10, 2020, https://avalon.law.yale.edu/18th_century/sc02.asp. 189 “South Carolina Constitution of 1790,” South Carolina – Key State Documents, accessed on September 10, 2020, https://www.carolana.com/SC/Documents/sc_constitution_1790.html. 190 “The First Constitution of the Great State of Tennessee, 1796,” Tennessee Law, the Early Days, TN GenWeb Project, accessed on September 18, 2020, https://www.tngenweb.org/law/constitution1796.html. 191 George Mason, “Virginia Declaration of Rights and Constitution, June 12, 1776,” Statutes at Large, ed. W.W. Hening, (Richmond: George Cochran, 1823), 109-119, https://teachingamericanhistory.org/document/virginia-declaration-of-rights-and-constitution/.  99 VT (Decl. of Rights)192  1777  (VT was not part of the union until 1791) “That all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences and understanding, regulated by the word of God…no authority can, or ought to be vested in, or assumed by, any power whatsoever, that shall, in any case, interfere with, or in any manner controul, the rights of conscience, in the free exercise of religious worship: nevertheless, every sect or denomination of people ought to observe the Sabbath…” “…nor can any man who professes the protestant religion, be justly deprived or abridged of any civil right, as a citizen, on account of his religious sentiment, or peculiar mode of religious worship…” [none] Protestant oath of office for members of the state House; right to conscientious objection from military service with equivalent payment  VT (Decl. of Rights)193  1786 “That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understandings, as in their opinion shall be regulated by the word of God…no authority can, or ought to be vested in, or assumed by any power whatsoever, that shall in any case interfere with, or in any manner control the rights of conscience, in the free exercise of religious worship: Nevertheless, every sect or denomination of Christians ought to observe the Sabbath…” “…nor can any man be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments, or peculiar mode of religious worship…” [none] Protestant oath of office for members of the state House; right to conscientious objection from military service with equivalent payment  VT (Decl. of Rights)194  1793 (-pres.)  (passed after VT joined the union) “That all men have a natural and unalienable right, to worship Almighty God, according to the dictates of their own consciences and understandings, as in their opinion shall be regulated by the word of God…no authority can, or ought to be vested in, or assumed by, any power whatever, that shall in any case interfere with, or in any manner controul the rights of conscience, in the free exercise of religious worship. Nevertheless, every sect or denomination of Christians ought to observe the Sabbath…” “…nor can any man be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments, or peculiar mode of religious worship…” [none] Protestant oath of office for members of the state House; right to conscientious objection from military service with equivalent payment  192 “Constitution of Vermont – July 8, 1777,” The Avalon Project, Yale University, accessed on September 11, 2020, https://avalon.law.yale.edu/18th_century/vt01.asp. 193 “Constitution of Vermont – July 4, 1786,” The Avalon Project, Yale University, accessed on September 11, 2020, https://avalon.law.yale.edu/18th_century/vt02.asp. 194 “Vermont Constitution – 1793,” Secretary of State, Vermont State Archives and Records Administration, accessed on September 11, 2020, https://sos.vermont.gov/vsara/learn/constitution/1793-constitution/.    100 Figure 3.2—Important Totals from Figure 3.1 34  fundamental state laws controlled in the  23 states that were part of the Union by 1820  (Totals do not include the NW Ordinance in this row) 30 include a religious liberty guarantee  20 of those guarantees are limited to religious profession or worship  18 include a religious equal protection clause  14 of those clauses are limited …13 are limited to religious belief or worship …7 are limited to a specific set of beliefs 15 include a proviso forbidding religious freedom to extend to certain unacceptable behaviors  …8 are tied to religious liberty guarantees …7 are tied to religious equal protection clauses 17 include a separate provision related to conscientious objection from military service  15 of those condition the exemption on an “equivalent payment” 13 States + 1 Republic of Vermont + 1Northwest Territory at the time of the First Congress  (Totals do include the NW Ordinance in this row) 14 include a religious liberty guarantee at the time of the First Congress  11 of those guarantees are limited to religious profession or worship  9 include a religious equal protection clause at the time of the First Congress  8 of those clauses are limited …6 are limited to religious belief or worship …4 are limited to a specific set of beliefs 10 include a proviso forbidding religious freedom to extend to certain unacceptable behaviors at the time of the First Congress  …4 are tied to religious liberty guarantees …7 are tied to religious equal protection clauses 5 include a separate provision related to conscientious objection from military service at the time of the First Congress  5 (all) of those condition the exemption on an “equivalent payment”   Figure 3.1 provides comparative information about every state constitution adopted between 1776 and 1820, plus three fundamental laws other than state constitutions that were controlling at the time of the First Congress. Of these three, two are colonial charters—Connecticut relied on its charter until 1818 and Rhode Island until 1843—and the remaining is the Northwest Ordinance, which governed the Northwest Territory until it was organized into states. The year 1820 bears no obvious significance; the purpose of extending our analysis well beyond the First Congress in 1789 is to afford the opportunity to consider any patterns that might    101 or might not have emerged in the decades immediately following. Maine was the twenty-third state to join the union in 1820, so Figure 3.1 includes twenty-three states and a total of thirty-four fundamental laws in those states, a total that reflects how many of the early states had two or more constitutions in their early history. In order to more easily focus on the First Amendment and its passage in 1791, Figure 3.1 highlights (in gray) the fundamental laws that were controlling at the time, including the thirteen states, plus the Republic of Vermont, plus the Northwest Ordinance. The treatment of state declarations of rights and constitutions here as “fundamental law” basically follows the modern pattern for interpreting such documents: the pattern of the current Supreme Court, for example, to treat violations of the Bill of Rights as unconstitutional. This is not necessarily consistent with contemporary practice at the time of the American Founding, however, when such documents (especially declarations of rights) were often treated as statements of fundamental principle, not as clear prohibitions on executive, legislative, or even judicial power. The role and meaning of a bill of rights is discussed at greater length in chapter 5.  Each fundamental law is included and categorized in Figure 3.1 according to four basic areas that weigh upon arguments for religious liberty and religious exemption. The first and most universal of these categories is in the column identified as “Religious Liberty Clause.” This column includes a direct quote (though often abbreviated) of the constitutional provision guaranteeing a certain sphere of liberty related to religious belief, worship, and/or practice. Perhaps the most archetypal of these religious liberty clauses is that passed by Delaware in 1776 and later substantially copied by at least nine other states prior to our 1820 cutoff: “That all men have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences and understandings….” Notably, this first category of religious protections is    102 primarily focused on the right of conscience or belief and the actions—usually worship—that immediately follow from it. The second category of religious protections, identified as “Religious Equal Protection Clauses,” is focused on protecting individuals on account of their beliefs. These constitutional provisions follow a less regular pattern of language and inclusion than the religious liberty clauses, and it may suggest too much to refer to them in the context of “Equal Protection,” but the basic idea is to prohibit legal discrimination on the basis of a person’s religious profession. These provisions are interesting to our consideration of the Free Exercise Clause because the first drafts of the Bill of Rights considered by the First Congress included a similar provision that was eventually dropped, probably because it was understood to be included in the language that they kept. But this analysis will have to wait until Chapter 7, when we specifically consider the debates of the First Congress. The next column in Figure 3.1, “Licentiousness provisos,” includes additional language to either the religious liberty or religious equal protection clauses (or both, in one case) that serves as a significant limitation, caveat, or modifier. The Rhode Island colonial charter, which was the fundamental law there from 1663 to 1843, seems a likely model for these caveats in state constitutions, and it hits several recurring ideas about how religious freedom should not provide occasion to “disturb the peace,” should not be used “to licentiousness,” and should comport with the laws. These licentiousness provisos occur in slightly fewer than half of the total cases (1776-1820), but in significantly more than half of the fundamental laws in place at the time of the First Congress. Ten of the thirteen original states included such a proviso at the time when the First Amendment was written and ratified. The meaning and purpose of these clauses is a matter of considerable dispute among those seeking historical precedent to justify religious exemption, and this will be discussed at length below.     103 Finally, the fourth and final column identifies specific additional provisions that bear on religious belief, especially those offering unique protections or limiting the public offices available to religious ministers. Unlike the other columns, the provisions in this column are not quoted verbatim, but are summarized in the interest of brevity. None of these “Unique Features” is directly tied to a state’s religious liberty or religious equal protection clauses; all of these provisions are listed elsewhere in a state’s constitution, usually in sections bearing on qualifications for officeholders, the organization of the state militia, or the oaths taken by witnesses and officeholders. The most common of these unique features is some kind of conscientious exemption to military service, a provision nearly always accompanied by the requirement for “equivalent payment.”195 Astute readers will note that Figure 3.1 does not include any of the state-level establishment clauses, which often guaranteed freedom from a religious establishment or freedom from mandatory support of a state church. This is not because state-level establishment clauses did not exist—to the contrary, many states had some form of guarantee absolving citizens of coerced support for a state church—but rather because establishment clauses have rarely been part of the argument about religious exemptions.196 Also, the language of the  195 See Chapter 2; in New York, Arthur Alexander records that “exemptions were confined solely to members of the Society of Friends,” and that, after the passage of the state constitution in 1777, the legislature was quick to take advantage of the clause allowing for payment. In 1788 New York legislation required a payment of £10 per year to exempt Quakers from military service, and this payment did not exempt them from all militia activities. As radical inflation set in, the state adjusted legislation in 1780, then again in 1782. A published volume of pre-federal statistics puts an average daily salary for skilled labor in the late colonies or early states at about five shillings per diem, and unskilled labor at two or three shillings per diem. At those rates, a £10 exemption would cost between eight and twenty weeks of wages, roughly the modern equivalent of at least $10,000 for each year of exempted service. See Arthur J. Alexander, “Exemption from Militia Service in New York State During the Revolutionary War,” New York History 27, no. 2 (April 1946): 206-07, accessed at https://www.jstor.org/stable/23149592. For equivalent wages, see Historical Statistics of the United States, Colonial Times to 1970, vol. 2 (Washington: US Dept. of Commerce, Bureau of the Census, 1975), 1196, accessed via the HathiTrust Digital Library. 196 In Religious Liberty and the American Founding, Muñoz records laws prohibiting compelled support for religion in Georgia, Delaware, Maryland, New Jersey, North Carolina, Pennsylvania, Vermont, and Virginia by the late    104 religious liberty guarantees presented in Figure 3.1 seems to have little connection to the presence or absence of a state religious establishment.197 The point of Figure 3.1 is not to determine everything that Founding-Era constitution writers intended on the subject of religion, but instead to determine how their framing of religious liberty contributes and compares with the First Amendment’s Free Exercise Clause and the related matter of judicially-enacted religious exemptions. Various totals and trends from the columns in Figure 3.1 are tallied immediately below it as “Important Totals” in Figure 3.2. While more will be said about these trends in the course of argument, it is worthwhile to point out a few trends from the outset. Most notable is the extent to which religious guarantees and allowances were tempered by explicit limits, which are emphasized with italics throughout Figure 3.1. By 1820, the twenty-three states had variously adopted thirty constitution-level protections of religious liberty (out of thirty-four fundamental laws). Twenty of the thirty limited religious liberty to worship or profession. Six of the remaining ten followed the pattern of Illinois, offering a natural right to worship but preventing interference with the “rights of conscience”—though the distinction between these positions is not clear. The same trend is evident in the religious equal protection clauses, with fourteen of the eighteen total clauses containing some sort of limitation. The majority of these fourteen limitations were focused on worship or belief—meaning that the law prevented discrimination based on worship and belief, but not necessarily other religious-inspired behavior. A minority share of the equal protection provisions actually limited their guarantees to specific religious  1780s. New York’s 1777 Declaration of Rights forbid discrimination or preference of religious profession and worship, which would seem to have the same effect. See pages 32-33 and 57-58. 197 Michael McConnell makes this point in “Origins,” 1455.    105 beliefs, as in the case of South Carolina, which guaranteed “equal religious and civil privileges” to “all denominations of Christian Protestants,” but not to Catholics or non-Christians. In constitutions passed between 1776 and 1778, New Jersey, South Carolina, and Vermont all limited their non-discrimination clauses to Protestants; Pennsylvania first limited its non-discrimination clause to theists, then further limited it to theists who believe in “a future state of rewards and punishments.” While limitations based upon a narrower set of beliefs (like Protestantism) tended to loosen in the period from 1776 to 1820, it is not immediately clear that overall guarantees of religious liberty grew more liberal in that period. Licentiousness provisos, for example, were passed in the majority of states in the period from 1776 to 1790 but are found in fewer than half the states by 1820. What that simple trend ignores, however, is that the implementation of such clauses stalled after 1790 but resumed again in 1817, with Mississippi, Alabama, Vermont, and Maine adopting them between 1817 and 1820. Certainly religious opinions were changing during this period—a period that experienced the elimination of nearly all state religious establishments and the enthusiasm and sectarian proliferation of the Second Great Awakening—but changes in religious liberty guarantees do not tell a simple and obvious story of expanding religious freedoms, even while state religious establishments were losing any remaining support and fading away. Georgia’s three constitutions from 1777 to 1798 are a good example of the variety of available approaches to religious liberty and its boundaries. Georgia’s first constitution, passed in 1777, guaranteed “free exercise of religion” without limitation to mere worship or belief, but subject to the limitation that such free exercise “be not repugnant to the peace and safety of the state.” This entire guarantee, including the “peace and safety” boundary appears to draw significantly from the original Georgia charter of 1732, which provided “that all such persons    106 Except Papists shall have a Free Exercise of their Religion so they be contented with the quiet and peaceable Enjoyment of the Same not giving Offence or Scandal to the Government.”198 The 1777 constitution dropped much of the anti-Catholicism of the colonial charter, but still required that representatives in the state government be Protestants. By 1789, the constitution writers in Georgia appear to have decided that the “peace and safety” proviso was no longer necessary, so they dropped it while keeping the expansive language of a right to free exercise of religion. Beginning with the 1789 Constitution, they also dropped the Protestant requirement for state representatives. The 1789 Georgia Constitution joins the Virginia Declaration of Rights (1776) as the least-limited of all founding-era guarantees for religious liberty, as it does not explicitly limit religious freedom to worship or belief, nor does it contain any explicit boundaries or caveats. It is quite notable that the federal First Amendment appears to have followed this pattern. By 1798, however, the state of Georgia seems to have taken a different course. Perhaps legislators regretted possible interpretations of its open-ended guarantee or thought that more narrow language better fit their actual intent, as the constitution passed that year is quite limited in comparison, guaranteeing only the privilege of worship and prohibiting legal discrimination on account of one’s religious principles. The uniqueness of the Virginia Declaration of Rights and the Georgia Constitution of 1789 is worthy of further comment, especially because these documents come closest to a template for the federal Free Exercise Clause (“Congress shall make no law…prohibiting the free exercise [of religion]”). Professor Hamburger describes the language of free exercise as being the most elegant solution to religious liberty, and these guarantees provide an interesting  198 “1732 Georgia Charter,” GeorgiaInfo: An Online Georgia Almanac, accessed on September 29, 2020, https://georgiainfo.galileo.usg.edu/topics/government/related_article/constitutions/georgia-charter-of-1732.    107 contrast to the solutions adopted in most other states.199 Using the categories of Figure 3.1, we can compare the guarantees of free exercise against the offerings in other states according to our basic categories of religious liberty clauses and equal protection clauses. In the first case, the language of “free exercise” would seem appropriate to cover belief, sentiment, persuasion, profession, worship, and conscience as defended in other states. The same is arguably true of religious equal protection clauses, that “free exercise” prevents discrimination on account of religion or religious principle, sentiment, belief, persuasion, practice, opinion, or worship, especially if we allow that the language of free exercise was selected in lieu of any such guarantees. Against those more specific guarantees, “free exercise” has the advantage of broad but unspecific coverage—which is, of course, also part of the problem with interpreting it, as we are attempting to do in this dissertation. Hamburger believes it to be an elegant solution because its unspecified nature leads us to think more about religion and government as operating in separate spheres of authority, rather than asking whether a specific action can be defined as “worship” and is therefore subject to protection. Hamburger’s point is not that “free exercise” opens up a wide range of judicially-enforceable rights or required religious exemptions, but rather that it encourages legislators to give religion a wider berth. McConnell takes a somewhat similar view, believing that “free exercise” is broader than any of the other language used in state constitutions and declarations of rights, including the also broad but unspecified language of “rights of conscience.”200 None of this analysis gives a definite or clear meaning to “free exercise,” except to say that it appears to be consistent with the whole range of religious  199 Philip Hamburger, “More is Less,” Virginia Law Review 90, no. 3 (May 2004): 850-57. 200 McConnell, “Origins,” 1488-1491.    108 guarantees enumerated in contemporary state-level constitutions and declarations of rights while offering those guarantees on simpler terms.  The Meaning of Licentiousness Provisos In Chapter 2 and earlier in this chapter we have hinted at the importance of the “Licentiousness provisos” in colonial charters and state constitutions to the argument in favor of religious exemptions. Chapter 2 included a line of McConnell’s analysis from a contract offered by the proprietors of the Carolina colony: “[T]hey limited the free exercise of religion only as necessary for the prevention of ‘Lycentiousnesse’ [sic] or the injury or ‘outward disturbance of others,’ rather than by reference to all generally applicable laws.”201 At the time we included a bit more of the contract in question to provide some context. Now we have the context of many more such provisos in the early states, listed in Figure 3.1, so it is time to fully consider the argument.  To understand the argument, it is useful to consider an example carefully. Immediately below is the religious liberty provision from Connecticut’s 1818 Declaration of Rights, with the relevant section in bold: The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in this state, provided, that the right hereby declared and established shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state.  The argument from McConnell and his allies is that the latter proviso represents a wide outer boundary on the former provision. The former provision—that “the exercise and enjoyment of  201 Ibid., 1427; quoting from The Rise of Religious Liberty in America, ed. S. Cobb (New York: Macmillan, 1902), 117.    109 religious profession and worship…shall forever be free to all persons”—is an unbounded guarantee, at least with regard to religious profession and worship. Its consequences for law are not clear. Would any law interfering with religious worship fall afoul of this guarantee? The answer is not obvious from context. The latter proviso serves to establish a boundary, and that boundary is not simply law, the due process of law, or something similar. Rather, that boundary is “acts of licentiousness” or “practices inconsistent with the peace and safety of the state.” For McConnell, this is an important distinction, for he believes it to imply that the exercise of religious worship is guaranteed over and above any laws to the contrary—including incidental and generally applicable laws—so long as that activity does not descend into licentiousness or represent a threat to peace and safety. In the interest of properly hearing and understanding his position, we should review the argument in McConnell’s own language: The state [licentiousness] provisions make sense only if free exercise envisions religiously compelled exemptions from at least some generally applicable laws. Since even according to the Lockean no exemption view, religious persons cannot be prohibited from engaging in otherwise legal activities, the provisos would only have effect if religiously motivated conduct violated the general laws in some way. The “peace and safety” clauses identify a narrow subcategory of the general laws; the free exercise provisions would exempt religiously motivated conduct from these laws up to the point that such conduct breached public peace or safety.202  Justice Alito subscribes to the same argument, for which he cites McConnell: When we look at [early state constitutions and declarations of rights], we see one predominant model. This model extends broad protection for religious liberty but expressly provides that the right does not protect conduct that would endanger “the public  202 McConnell, “Origins,” 1462.    110 peace” or “safety.”203  Alito uses legal authorities and dictionaries of the era to argue that the various boundaries (peace, order, licentiousness) are not merely a synonym for law, but allow activity beyond the law: Samuel Johnson’s 1755 dictionary defined “peace” as: “1. Respite from war…. 2.Quiet from suits or disturbances…. 3. Rest from any commotion. 4. Stil[l]ness from riots or tumults…. 5. Reconciliation of differences…. 6. A state not hostile…. 7. Rest; quiet; content; freedom from terrour; heavenly rest….” In ordinary usage, the term “safety” was understood to mean: “1. Freedom from danger…. 2. Exemption from hurt. 3. Preservation from hurt….” When “peace” and “safety” are understood in this way, it cannot be said that every violation of every law imperils public “peace” or “safety.” …But the ordinary meaning of offenses that threaten public peace or safety must be stretched beyond the breaking point to encompass all violations of any law.204  Alito therefore concludes that these provisos guaranteed a certain freedom for religious practice in violation of law, just so long as those violations did not fall afoul of the dictionary definitions of peace and order. For subscribers to the judicial-exemption view of religious liberty, these provisos suggest an area of conflict in the law that would necessarily require judges to decide where religious activity might violate law but be required as a function of the state’s religious liberty guarantee. In short, they necessitate something like a right to judicially-enacted religious exemptions. From the common language of licentiousness, peace, safety, and order used in Figure 3.1, however, we might conclude that these were boilerplate assertions of state interest, and therefore meant only to preserve religious liberty up to the point where it violated state interest or law. To  203 Alito concurrence, Fulton, 33 (slip op.). 204 Ibid., 37-39. All quotations are from Samuel Johnson’s 1755 dictionary.     111 prove that these provisos was carefully considered and therefore implicitly offered a range of exempt-able behavior, McConnell points to a conflict between George Mason and James Madison during the passage of the Virginia Declaration of Rights: George Mason, chief architect of the religious liberty clause of the Declaration, proposed “that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless under color of religion any man disturb the peace, the happiness, or safety of society.” Madison objected to the proposal on two grounds. First, he criticized the use of the word “toleration”…. He offered a substitute that read, that “all men are equally entitled to the full and free exercise of religion according to the dictates of conscience.” This change was accepted, with minor alteration. Second, Madison criticized the breadth of Mason's proposed state interest limitation. Madison proposed instead that free exercise be protected “unless under color of religion the preservation of equal liberty and the existence of the State are manifestly endangered.” This is obviously a much narrower state interest exception than Mason’s.205  Neither man’s text was part of the final Virginia Declaration of Rights, which contains no caveats of any kind. McConnell assumes their text was dropped because Virginia legislators were unable to agree on the right set of boundaries: Apparently, the legislature could not decide between the Mason and Madison formulations and compromised through silence. It is fair to assume, however, that the state’s interest must fall somewhere between “the peace, the happiness, or safety of society”—Mason’s broad formulation—and “manifest danger” to the “preservation of equal liberty, and existence of the State”—Madison’s more limited formulation.206  McConnell never considers that, if the legislature had been working from his view of things, Madison’s version would have opened the door for an almost unlimited right of exemption. Forget peace, order, and licentiousness: if religious activity is permitted in violation of law up until it threatens “the existence of the state,” then Madison had a much more radical view of a  205 McConnell, “Origins,” 1462-63. 206 Ibid., 1463.    112 compelling interest test than even McConnell says. McConnell further assumes that, by dropping the provisos altogether, the authors of the Virginia Declaration of Rights intended for the boundaries on the right of religious liberty to fall somewhere between Mason’s broad and Madison’s narrow formulation. But we have no evidence for either assumption, nor does accepting the assumptions prove that Mason, Madison, or the Virginia legislators intended any version of religious exemptions. All we can say is that Madison took a more capacious view of religious liberty than George Mason, and that a majority of the Virginia legislators opted against any specific enumeration of boundaries to the right.  The jarring point in the whole analysis by McConnell (which is repeated by Alito) is the extent to which they ignore how the licentiousness provisos limit the guaranteed right, that they are evidence of a narrow view of the right to religious liberty. While neither author ever says it, they seem to assume that the licentiousness provisos actually enlarge the right. If we re-read the Connecticut provision above, for example, we see first an offering of the right: “The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in this state.” The text that immediately follows is not an enlargement of this right, but rather a substantial narrowing of it: “provided, that the right hereby declared and established shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state.” The right without the licentiousness proviso is almost certainly much broader. It is the difference between “you may play outside” and “you may play outside so long as you do not hit your sister or muddy your shoes”—the former version may imply limits, but it does not stipulate them, thereby offering a freer range of deniable plausibility.  Neither McConnell nor Alito considers the possibility that the language of the licentiousness proviso may actually be more restrictive than law, not less. Consider, for example,    113 the possibility of a town forbidding preaching by a well-known circuit rider of the Second Great Awakening (by denying a permit for a large assembly or some similar mechanism) on the grounds that the enthusiasm, emotion, and noise associated with such revival gatherings qualified as licentious behavior.207 And we can certainly imagine the licentiousness provisos as an affirmation of law. For example, a local court might insist upon an oath before receiving witness testimony on the grounds that such a requirement is necessary to maintain order, and certainly a state might prohibit religious-inspired polygamy on the grounds that such behavior is licentious. In short, there are several ways to read the licentiousness provisos in a manner that does not suggest a freedom to religious liberty in violation of otherwise-applicable law. Contrary to this reading, McConnell intends for us to read peace, order, safety, licentiousness, and similar provisos in the opposite fashion, as a means to allow religious behavior that, while in violation of law, does not violate these terms. While the terms are not an entirely clear rule, we can imagine how McConnell might apply them to important free exercise cases. In Reynolds v. United States, for example, the Court could have determined that polygamous marriage was not a threat to the public peace and safety and was therefore deserving of a religious exemption from law. McConnell is not arguing that we should so easily apply this supposed state standard to the federal Free Exercise Clause, but he does see it as a historical gateway to a federal doctrine of religious exemption. From this angle, it is substantially less clear whether the wording of the federal Free Exercise Clause is more protective of religious activity than many of its state counterparts. “Free Exercise” might be broader than the “religious  207 Baptist preacher John Leland records the sense of a contemporary revival: “Such a heavenly confusion among the preachers, and such a celestial discord among the people, destroy all articulation, so that the understanding is not edified; but the awful echo, sounding in the ears, and the objects in great distress, and great raptures before the eyes, raise great emotion in the heart.” The Writings of the Late Elder John Leland, Including Some Events in His Life, Written by Himself, with Additional Sketches, Etc., ed. L.F. Greene (New York: G.W. Wood, 1845), 115.    114 profession and worship” offered by the Connecticut Declaration of Rights, but the state constitution makes permissible all relevant religious activity that observes the boundaries of licentiousness, peace, and safety—if McConnell is right, anyway.  Against McConnell and Alito’s view that the licentiousness provisos are evidence of a broad view of religious liberty, our analysis here suggests an opposite view: that the majority of states took a reserved and narrow view of religious liberty. Figure 3.1 is full of boundaries on state-level guarantees of religious liberty, and the licentiousness provisos are but one variety of boundary. These limits, when taken altogether, suggest that early state constitutions wanted to recognize a right to religious belief and worship, but without giving religious believers any special legal privileges.208  That the licentiousness provisos are evidence of a rather narrow view of the right to religious liberty is borne out by consideration of how religious liberty provisions developed over time. Two cases are worth considering. In the first case, the overall trajectory of Georgia’s constitutional history demonstrates that licentiousness provisos corresponded with limitations on religious liberty offerings to Roman Catholics; the provisos were removed as a right to religious liberty became understood as a universal right. The first of these provisos in Georgia became part of the colony’s fundamental law with its 1732 charter, which provided “that all such persons Except Papists shall have a Free Exercise of their Religion so they be contented with the quiet and peaceable Enjoyment of the Same not giving Offence or Scandal to the Government.”209 The charter proviso for “quiet and peaceable Enjoyment” is notable as the clear predecessor to the  208 Notably, this same argument about the meaning of the “peace and order” provisions or “provisos” takes place in the context of O’Connor’s dissent and Scalia’s concurrence in City of Boerne v. Flores (1997). See Scalia’s opinion at 521 US 539-40 and O’Connor at 554-55. 209 “1732 Georgia Charter.”    115 similar proviso in Georgia’s 1777 Constitution. The colonial charter is also notable for its considerable bias against Roman Catholics, a bias that softens then disappears from later iterations of the state’s fundamental law. The 1777 state constitution requires that state representatives be “of the Protestant religion;” subsequent constitutions make no mention of sectarian limits or requirements. The Georgia Constitutions of 1789 and 1798 also shed the 1777 Constitution’s proviso allowing free exercise “provided it be not repugnant to the peace and safety of the State.” We therefore see that, of Georgia’s four fundamental laws from 1732 to 1798, the state included peace and order provisos simultaneous to the inclusion of Protestant limitations. When it dropped the latter, it also dropped the former—a correlation suggesting that the “peace and safety” boundary was not intended to open a wider scope of religious activity than was otherwise permitted by law, but was rather an artifact of a regime that would not even offer the right of religious liberty to Roman Catholics.  In the second case, the South Carolina Constitution of 1778 explicitly tied its religious liberties and its licentiousness proviso to adherence to the Protestant religion. The full text of the state’s religious equal protection clause (per Figure 3.1) reads, “That all denominations of Christian Protestants in this State, demeaning themselves peaceably and faithfully, shall enjoy equal religious and civil privileges.” In this particular case the proviso is a very short requirement—“demeaning themselves peaceably and faithfully”—but is obviously wrapped inseparably to a Protestant limitation. The nature of the sectarian limitation again demonstrates a correlation between licentiousness provisos and a parsimonious view of religious liberty. It is improbable that a state would refuse to extend “equal religious and civil privileges” beyond the boundaries of Protestantism, yet at the same time allow Protestant religious practice beyond the boundaries of law.    116  Legal historian Phillip Hamburger makes a similar point in his own analysis of licentiousness provisos. Against McConnell’s assumptions that these provisos were intended to exempt peaceable (if otherwise illegal) religious behavior and that they were intended as an extension of religious liberty, Hamburger asserts that “both assumptions are mistaken. The [provisos] reflected a willingness to allow government to deny the otherwise guaranteed religious liberty to persons whose religious beliefs or actions threatened the capacity of civil society to fulfill its functions.”210 In support of this conclusion, Hamburger makes three basic arguments. First, McConnell’s assumption that the provisos were intended to forbid only non-peaceable religious behavior is not consistent with how contemporaries of the Founding spoke of law and order. Hamburger observes that “eighteenth-century lawyers made clear that ‘every breach of law is against the peace.’”211 By this understanding, the specifics of each licentiousness proviso were less important or subject to litigation—their point was simply to establish the public prerogative in spite of the state’s religious guarantees. Second, Hamburger argues that McConnell’s interpretation of the licentiousness provisos is inconsistent with their context, which indicates that they represented tight boundaries to the corresponding right: The [licentiousness provisos], moreover, described the availability rather than the extent of the guaranteed religious freedom; instead of implying that the right of free exercise was very extensive—that it permitted peaceable departure from civil law—the caveats stated the conditions upon which religious liberty could be denied.212  Reading the provisos as boundaries, however, readily makes sense in their context within each of the state constitutions. Finally, Hamburger explains that religious dissenters of the Founding Era  210 Hamburger, “A Constitutional Right,” 918. 211 Ibid. 212 Ibid., 919.    117 understood the provisos as limitations on religious liberty and therefore condemned them as intolerant.213 Hamburger cites John Jay’s efforts to limit the religious liberty available to Roman Catholics during New York’s 1777 state constitutional convention, as Jay’s intended language included a strict version of a licentiousness proviso. While New York’s resulting constitution took a compromise position between Jay’s anti-Catholic faction and others of a more liberal disposition, the introduction and subsequent arguments about the proviso were borne out of a desire to limit religious guarantees—and certainly not as a way to expand them.214  Professor Vincent Phillip Muñoz adds two further important points in rebuttal of the argument by McConnell and Alito concerning the licentiousness provisos. First, Muñoz contends that the provisos were intended to indicate the natural-law boundary of the right to religious liberty: The exercise of natural rights was always understood not to license actions that interfered with others’ prerogatives to exercise their natural rights. Strictly speaking, boundary provisos were not needed, because natural rights are by their nature bounded. The Founders’ understanding of natural rights did not include the liberty to disturb the public peace or act licentiously, regardless of whether boundary provisos were textually specified. The provisos’ superfluity helps to explain why some states included them while others did not.215  In Muñoz’s view, the purpose of the licentiousness provisos was intended to be instructive, to help citizens understand that, while they had a natural right to religious belief and worship, the right had clear boundaries where it met the rights of others. While Muñoz does not believe that the natural right to religious liberty includes (or was thought to include at the time of the  213 Ibid., 924. 214 Ibid., 925-26. Professor Vincent Phillip Muñoz also argues that the licentiousness provisos were intended as limitations on religious liberty; Vincent Phillip Muñoz, “Religious Liberty: Why Justice Scalia was Right in Oregon v. Smith” (lecture, Hillsdale College, Hillsdale, MI, September 15, 2020). 215 Muñoz, Religious Liberty and the American Founding, 64.    118 American Founding) a right to exemption, his argument could certainly be put to this purpose. I would therefore refine his point slightly to notice that the licentiousness provisos often accompanied a view of religious liberty that was narrower than the natural rights view. As our example of the Georgia colonial charter and early state constitutions makes plain, Georgia initially did not want to extend religious liberty to Roman Catholics, despite the clear natural-rights argument favoring individual freedom of belief, even Roman Catholic belief. The more widespread adoption of a consistent natural-rights position led states to shed anti-Catholic protections in favor of protections for all religious belief. Adopting the consistent natural-rights position also gave some states the confidence to drop the licentiousness provisos—not because the state would not continue to limit the right to religious liberty in this way, but because the boundaries on the right were understood as an inherent and prudential consideration as part of the natural right to religious liberty.  Munoz also offers us a way to understand why the Georgia Constitution of 1798 trades the elegance of the “free exercise” language in its 1789 Constitution for a guarantee of religious worship and an equal protection-type guarantee for followers of all faiths: a key purpose of these constitutional provisions was to be instructive. This is not to say that the constitutions did not have the force of law, but it is to say that they understood them differently than as a mere guarantee against government intrusion. Muñoz explains, [E]arly Founding-era declarations of rights were not constitutional law akin to the federal Constitution’s Bill of Rights. One of their primary purposes was to educate newly independent Americans about their natural rights, including the limits of those rights. To interpret the boundary provisions as precise rules of constitutional law is to fail to read them in light of their proper historical context.216   216 Ibid., 65.    119 We will consider this argument at greater length in chapter 5, when we consider how the Constitutional Convention might have conceived of a Bill of Rights. For now, it is sufficient to see that Muñoz’s statement is an interpretive framework that consistently makes sense of the religious liberty rights presented in the state constitutions in Figure 3.1 and creates a harmony of purpose even where the language varies considerably. They therefore represent the efforts of many Founding-Era legislators to explain an important right—which seems to have included a right to belief and worship, but an unclear outer limit—to the citizens of their state as a bulwark to freedom and not an invitation to anarchic license.  The Narrow Scope of the Right to Religious Liberty While we have praised “free exercise” as the most elegant framing of religious liberty in the early state constitutions—as containing the language of belief, sentiment, persuasion, profession, worship, and conscience used variously by other states—we should consider how narrowly most states defined the corresponding right. “Free exercise” is not obviously limited to only belief and worship, but many of the states explained religious liberty in those narrow terms.  As listed in Figure 3.2, two-thirds of the religious liberty provisions in the period leading up to 1820 were limited to religious profession, worship, or both together. Eleven of the fourteen religious liberty provisions in place at the time of the First Congress included the same limitation. If we simply define “free exercise” in terms of its contemporary alternatives, then it guarantees only a right to belief and worship. It might well have an outer boundary beyond those terms, but the boundary is not clearly defined. McConnell treats them exactly the other way, choosing to think of state religious liberty provisions as “free exercise clauses,” rather than thinking of the First Amendment’s Free    120 Exercise Clause as simply an elegant “belief and worship clause.” The point here is a subtle one and does not take issue with the formal argument made by McConnell. In fact, his general argument about the state constitutions supports many of the points made here and vindicates the inclusion of Figure 3.1 and this chapter more generally: These state constitutions provide the most direct evidence of the original understanding, for it is reasonable to infer that those who drafted and adopted the first amendment assumed the term “free exercise of religion” meant what it had meant in their states.217  But alongside our common agreement about the value of the state constitutions is a subtle reframing of the matter by McConnell, who generically refers to all such state provisions as “free exercise clauses.”218 While the reader can certainly appreciate how McConnell has simplified the matter—we know the Free Exercise Clause and can thereby understand something about the state constitutions by reference to it—his simplification has missed an important truth: with few exceptions, the state constitutional guarantees are manifestly not free exercise guarantees, at least not in the sense of being potentially open-ended guarantees of religious liberty. McConnell further misunderstands the boundaries inherent in most of the state constitutions by neglecting their focus on worship. He comes to the argument about state constitutions ready to disprove the idea—from Jefferson, then cited in the nineteenth-century polygamy case, Reynolds v. United States—that the Free Exercise Clause was meant only to protect belief and opinion, not religious-inspired action.219 From this narrow frame, McConnell  217 McConnell, “Origins,” 1456. 218 McConnell, “Origins,” 1455ff. 219 Ibid., 1451. For more on Jefferson, see chapter 4. McConnell’s specific complaint about Jefferson here comes from Jefferson’s “Letter to the Danbury Baptists” where he states “that the legislative powers of the government reach actions only, and not opinions.” Much ink has been spilled over this letter, and it seems fair to say that this single clause is not entirely determinative of the meaning of the letter, much less Jefferson’s entire conception of the matter. Even the Supreme Court’s opinion in Reynolds recognizes some complexity in the area of religious action by summarizing Jefferson to mean that “Congress was deprived of all legislative power over mere opinion, but was left    121 praises the state constitutions for obviously protecting more than mere belief, as worship denotes at least some sphere of action. But worship does not invite the same latitude of protection as “free exercise” might. In the recent case of Fulton v. Philadelphia (2021), for example, it would be hard to say that Roman Catholic worship was jeopardized by the city of Philadelphia’s requirement that foster-care agencies work with same-sex couples. Broadly defined, this requirement prevents a certain kind of religious exercise—the kind of activity engaged in by religious entities and even encouraged as a function of religious belief—but “worship” is necessarily a narrower range of activity.  As Figure 3.1 makes plain, many of the early state constitutions did include explicit religious exemptions, most frequently from military conscription. The far-right column in Figures 1 and 2 includes various additional religious guarantees, requirements, and exemptions that were included in state constitutions. Many states likely offered similar provisions via statute, so Figure 3.1 does not include an exhaustive list of all Founding Era relief from oaths and military service, though it does include all such offerings that were included at the constitutional level. Of the seventeen fundamental laws that include an exemption from military service and the six that provided flexibility around the administration of oaths, none included such provisions in the same context as its guarantee of religious liberty. In every case these exemptions are offered quite apart from religious guarantees or sections establishing a declaration of fundamental rights.220 From context we can reasonably infer that, while important enough to be included in many states’ fundamental law, these exemptions were not understood as a clear requirement or  free to reach actions which were in violation of social duties or subversive of good order” (Reynolds, 164). That the final qualifier in Reynolds sounds similar to the licentiousness provisos in many state constitutions is a point lost on McConnell. 220 West makes the same observation; see West, “Religion-Based Exemptions,” 379.    122 implication of their commitment to religious liberty. This is an important point, but one that we should be careful not to overstate. It is an important point because the arguments of the First Congress will follow the same pattern in Chapter 7: they, too, considered a conscientious exemption, but never in the same context as their arguments about a right to religious liberty (which would eventually become the Free Exercise Clause). We should be careful not to overstate the case because the separation of these ideas is not definitive. It is, of course, possible to connect multiple sections of a contract without placing the connected sections next to each other. It does seem improbable, however, that in seventeen unique cases the states would have understood a conscription exemption to be directly tied to the right of religious liberty and put them in totally separate sections of their fundamental law. As previously discussed in Chapter 2, the majority of constitutional guarantees around conscientious objection from military service also include substantial cost to those who would claim the exemption. Rather than a broad extension of religious liberty, these provisions read like a realistic compromise that is unlikely to satisfy either those claiming the exemption or those desiring universal participation in the state militia. Professor Ellis West further argues that exemptions from military service were often granted to those without conscientious objections and that exemptions requiring an equivalent payment were not an acceptable solution to many religious dissenters.221 In the course of the First Congress’s deliberation on amendments to the new Constitution, Roger Sherman claimed that “it is well known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent. Many of them would rather die than do either one or the other.”222 The “equivalent payment”  221 Ibid., 378 and 381. 222 Annals of Congress, 1st Cong., 1st Sess., 779.    123 requirements were therefore not indicative of what conscientious objectors desired as an accommodation, but rather what state governments were willing to concede.  In Chapter 2 we mentioned oaths and religious assessments as two additional areas commonly offered religious exemption in the Colonial Era. Flexibility around oath-taking is offered in six of the constitutions and bills of rights considered above (IN, KY in 1792, KY in 1799, MD, ME, and SC), and two at the time of the First Congress (MD and SC), though these totals are not included in Figure 3.2. Maryland’s oath exemption is explicit about whom it intends to exempt: And that the people called Quakers, those called Dunkers, and those called Menonists, holding it unlawful to take an oath on any occasion, ought to be allowed to make their solemn affirmation, in the manner that Quakers have been heretofore allowed to affirm; and to be of the same avail as an oath, in all such cases, as the affirmation of Quakers hath been allowed and accepted within this State, instead of an oath. 223   In spite of its explicit mention of Quakers, Dunkers, and Menonists, it is easy enough to see how the Maryland Constitution adopted a rule that could be applied beyond these faiths. The oath “exemption” of South Carolina, Kentucky, and others applies that pattern without even bothering to limit the right to religious objectors: they simply permit an “affirmation” as a substitute to an “oath,” thereby making the exemption (if you can call it that) available to all. The interesting conclusion from oath exemptions is that, by the time of the First Congress, they were increasingly framed in terms that made no explicit mention of them as religious exemptions. And like conscription exemptions, they were not mentioned in close proximity to any religious liberty guarantees. In fact, in the case of the South Carolina Constitution, the required oath or  223 “Constitution of Maryland – November 11, 1776.”    124 affirmation for state legislators was explained right next to the qualification that legislators believe in the Protestant religion.224 Religious assessment, another regular area of exemption in colonial law mentioned in chapter 2, is not directly covered in Figure 3.1, though the topic was often covered in state prohibitions regarding religious establishments. Guaranteed relief from such assessments was often included alongside guarantees of religious liberty and was often listed in a declaration of rights. These provisions fall short of providing precedent for religious exemptions in two important ways. First, insofar as such guarantees offered relief, they offered relief from laws that explicitly provided financial support to religious entities in order to perform their religious functions. The incorporation of the Establishment Clause against state establishments has effectively settled questions on this type of legislation, and it is severable from our more general inquiry about religious exemptions from non-religious legislation. Second and more importantly, the state guarantees around religious assessment are not written as exemptions but as generally applicable freedoms available to all. McConnell recounts multiple cases of colonies offering exemptions from religious assessment laws.225 By the time of the American Revolution and the writing of state constitutions, however, most states recognized freedom from financial support of a specific church as a clear extension of the rights of conscience. This is not to say that some states did not continue to require support of state or local establishments, but rather that their constitutions guaranteed religious dissenters the right to support alternative churches. Because Massachusetts maintained a religious establishment for longer than any other state, its  224 “Constitution of South Carolina – March 19, 1778.” 225 McConnell, “Origins,” 1470.    125 establishment provisions are particularly useful for understanding how states sought to balance conscience against the financial needs of state-supported churches: Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require…to make suitable provision for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality…. And all moneys paid by the subject to the support of public worship, and of the public teachers aforesaid, shall, if he require it, be uniformly applied to the support of the public teacher or teachers of his own religious sect or denomination, provided there be any whose instruction he attends; otherwise it may be paid towards the support of the teacher or teachers of the parish or precinct in which the said moneys are raised.226  Not every state included allowances for public support of churches, and the Massachusetts Constitution is exceptional for how much it says on the topic. What the Massachusetts text should illuminate, however, is the extent to which the state constitutions were committed to allowing religious believers to support their own churches and not to require the forced support of a particular church. Massachusetts is an outlier in its requirement that all citizens commit to support of a church or willingly support the local establishment parish. States with less robust establishments or without establishments were content to guarantee that no one would be forced to support a religion in violation of his own beliefs and leave the matter of assessment to other legislation. In none of these cases do we see support or non-support of established churches in terms of requirement and exemption. In every case the law provides equally for all—that each citizen be given freedom from financial support of a church according to the dictates of his or her conscience.  226 “Massachusetts Constitution,” (supra, emphasis added).    126  Having reviewed the available exemptions offered to religious dissenters, we are left without any clear evidence that contemporary legislatures understood exemptions as an obvious extension of state or federal commitments to religious liberty. We might also notice that we have uncovered no evidence connecting religious exemptions with the role of the judicial system, since the available exemptions were provided by the state legislature or constitutional convention, and the stipulated “equivalent payment” required by most conscription exemptions would presumably have been defined by a legislature. Professor Ellis West reaches much the same conclusion, summarizing that “most persons [of the Founding Era] probably had no opinion on the issue because exemptions from draft laws were not discussed very much in terms of religious liberty.”227 But West resists what he terms the “minimal” conclusion that the evidence merely fails to demonstrate a connection between religious liberty and religious exemptions. There is sufficient evidence in his estimation to conclude that contemporaries of the American Founding did not regard exemptions as a necessary extension of a right to religious liberty, and he points especially to requirements around conscientious objection from military service. According to West, those receiving exemptions from conscription rarely regarded the corresponding limits or requirements to be satisfactory. Legislatures understood the related fees or fines to be an equivalent to military service and therefore set very high penalties, knowing full well that these would be objectionable to Mennonites, Quakers, and other pacifists.228 Given these conditions, West succinctly observes that “If the exemptions were granted for [concern about religious liberty], then it can only be concluded that the legislators had a very niggardly  227 West, “Religion-Based Exemptions,” 380. 228 Ibid., 381.    127 conception of religious freedom.”229 Our contention here is not that Founding-Era conceptions of religious freedom were niggardly, but rather that their conception was a narrow one: the right to religious liberty definitely included belief and worship, but beyond that was very much subject to prudential considerations. As we have made the point previously, that sphere of protection was understood to be near-total, a complete right to belief and worship without any consideration of the compelling interest of the state. The licentiousness provisos of this chapter have merely illuminated some of the boundaries of that narrow sphere of rights, that religious liberty is necessarily bounded by law and by the rights of others, as contained in provisos forbidding licentiousness or threats to peace, order, and safety.  Conclusion  McConnell’s argument that early state licentiousness provisos offer a clear precedent for religious exemptions has proved convincing to many. Justice Alito gives considerable space to reiterating the argument in his Fulton concurrence, and he, too, believes that it conclusively proves that early state constitutions intended to offer a right to religious exemption. What this chapter has attempted to demonstrate, however, is that their argument fails under closer inspection, especially when the provisos in question are viewed in context. The broader context of constitution-level rights to religious liberty at the time of the American Founding is that those rights were always granted within narrow boundaries, the sort of boundaries not likely to invite or permit religious exemption from law. The licentiousness provisos were an important boundary, but certainly not the only one, and they were sometimes even accompanied by  229 Ibid., 382.    128 Protestant limitations. In cases like the state of Georgia, it is not until we see Protestant limitations being lifted that we see those provisos being removed. McConnell might want us to view this transition as proof that even those discriminating against non-Protestants were willing to exempt religious practice from otherwise applicable law, but this conclusion does not readily square with the historical record. The better account is from Professor Hamburger, who argues that the licentiousness provisos were a reiteration of the boundaries of law, and from Professor Muñoz, who argues that the religious liberty rights articulated in state constitutions were intended to be instructive as much as they were intended as a defense of individual rights. From Muñoz’s interpretation, each of the religious liberty provisions in Figure 3.1 can be understood as an articulation of the right to religious liberty alongside a reminder that the right was limited by political concerns surrounding peace, order, and licentiousness.   One of the interesting features of the state religious liberty provisions, per Figure 3.1, is they that tend to guarantee a narrow range of religious activity. The most common limitations are to belief and worship. Informed by this context, we should be careful about setting the boundaries of “free exercise of religion” too far to the side of religious permissiveness. All of our authorities seem to agree that “free exercise” includes at least belief and worship, but how much more does it include? Looking again to Figure 3.1, it seems reasonable also to include the “Religious Equal Protection Provisions,” and understand “free exercise” as a guarantee that religious belief and worship cannot affect equality before the law. But beyond this point, “free exercise” does seem suggestive of additional religious practice: might it therefore include a right to all religious practice, regardless of law? The evidence reviewed here does not support that conclusion. Rather, what we ought to notice about “free exercise” against the competing articulations of religious liberty is its elegance in separating religion from state interests.    129 Whereas the licentiousness provisos condition the right within state interests, “free exercise” offers an unbounded right. Professor Hamburger explains this idea well: [T]he Virginia Bill of Rights had rested on the assumption that there was no need to preserve government interests with conditions or interpretive provisos, and it therefore stated simply that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” …The meaning of the First Amendment’s free exercise clause has been much disputed, but one conclusion is very clear. The First Amendment adopted neither the traditional governmental conditions nor even the interpretive provisos. Like the Virginia Bill of Rights and the second Georgia Constitution, it apparently rejected government interests as a condition or other measure of the free exercise of religion. The First Amendment thus guaranteed a sort of religious liberty that did not seem to threaten government interests and that therefore could be unconditional—indeed, utterly unqualified.230  Hamburger does not mean to suggest that “free exercise” allows for one’s religion to trump all state interests. Instead, what he means to point out is that the idea of “free exercise”—of the right to religious liberty explained in these words—necessarily separates religious and political realms. Because the political realm can have nothing to say about religion, then religion can be completely free to establish its own beliefs and prerogatives. From this perspective, the right to religious free exercise is deep: it goes all the way down and all the way up. But once religion enters the sphere of politics, with its concern for licentiousness, peace, and order, then religion must be kept within the boundaries of law—provided, of course, that those laws do not try to speak to religion qua religion.     230 Hamburger, “More is Less,” 855-57.    130 CHAPTER 4 THE POSITIONS OF JEFFERSON AND MADISON   Any historical analysis of the First Amendment is incomplete without significant focus on James Madison. Indeed, he has already been the subject of some discussion in prior sections and his importance to our history will only grow as we move closer to the passage of the First Amendment. He is not merely “the Father of the Constitution,” but also the primary driver of the Bill of Rights and was active in the religious liberty arguments in Virginia that likely shaped the First Amendment. As we consider the ideas of important contributors to the First Amendment, Madison is the clear linchpin, but it is worth casting a slightly wider net for the purpose of covering several related topics and providing additional context around this key protagonist.  The arguments around the role of religion in public life were more dynamic in Founding-Era Virginia than anywhere else in the new nation.231 Prior to the American Revolution, Virginia supported a strong religious establishment in the Anglican church and even provided punishments to those of other Protestant sects.232 As a young man, Madison observed Baptists punished for their beliefs, and it appears to have made a considerable impression upon him.233 By the time of the Constitutional Convention—little more than a decade later—Virginia had done away with all formal vestiges of its religious establishment and adopted one of the most permissive religious liberty guarantees of any state. The natural question to ask is what happened? In part, the Anglican establishment in the Southern states was delegitimized by the  231 Curry, The First Freedoms, 134. 232 Ibid. 233 Madison to William Bradford, January 24, 1774, National Archives: Founders Online, https://founders.archives.gov/documents/Madison/01-01-02-0029; also included in McConnell, “Origins,” 1452-53.    131 connection and association of the church to England and the Tory cause.234 Coming out of that considerable defeat, however, the final blows to the establishment and the expansion of religious rights in Virginia seem to belong to two groups and their allies. The first and more important group—at least for our purposes here—was Jefferson and Madison and their political allies, who included notables like George Mason. The second group, evangelical Baptists and other religious dissenters, left a less notable mark upon our national memory, but were hugely important political contributors to the cause of change in Virginia. While the bulk of this section will focus on the former group, we will begin by providing some historical context that includes discussion of the role that religious dissenters played in the arguments of late eighteenth-century Virginia.  The religious guarantee codified by the Virginia Declaration of Rights in 1776 marked a sea change in Virginia society. As remarked in the last chapter, this particular guarantee was one of the most expansive of any contemporary guarantee, offering as it did that “all men are entitled to the free exercise of religion, according to the dictates of conscience” and not explicitly limiting the right to particular sects, practices, or proscriptions against bad behavior. The immediate consequence of its passage was that the state could no longer punish dissenters from the established church. But could it still require dissenters to support the established church? Legislators gathered for the state’s constitutional convention in 1776 determined that all non-Anglicans should be exempted from support of the establishment, then further decided to suspend ministerial taxes until such time as they could deliberate how to support the church in a manner consistent with the new Declaration of Rights. The legislature continued to suspend ministerial taxes until 1779, when it abolished the tax altogether.235   234 McConnell, “Origins,” 1436. 235 Curry, The First Freedoms, 136.    132 In the ensuing years from 1779 to 1784, there was much debate about how best to support churches. Historian Thomas Curry documents how public positions changed over this period, with defenders of the religious establishment lowering their expectations for significant support of Anglican ministers, and the various dissenting sects wavering on whether or not their churches should be supported by voluntary contributions or with the help of the state. While the arguments may seem foreign to modern readers who are so accustomed to voluntary support of religion, the argument in Virginia was animated in part because they had so little experience or history of religion in absence of state support. Anglicans were obviously most accustomed to receiving state support, but even Presbyterians and Lutherans were accustomed to such support in their native countries. It was commonly argued that the public benefits of religion—instilling morality and order—meant that religion should be publicly supported in financial terms.236 While denominations without a voluntary tradition waffled on the matter, Baptists stood firmly opposed to any state supports, and they found strong support in the secular arguments of men like Jefferson and Madison.  The issue first came to a head in the Virginia legislature in 1779 with the presentation of two contrary bills. The first was Jefferson’s “Statute for Establishing Religious Freedom,” which aimed to settle arguments about public support of religion in favor of voluntary support, eliminating any kind of religious establishment. The second was a general religious assessment that intended to establish nonsectarian Christianity as the state religion. The assessment provided for financial support of Christian churches—and a corresponding tax on the general public—so long as churches met certain baseline theological requirements, including belief in the New  236 Ibid., 137-38.    133 Testament. While the assessment was broad-reaching by pre-Revolutionary standards, its exclusion of Jews, Deists, and Muslims seems miserly in comparison to the state’s Declaration of Rights. Neither bill passed in 1779, but the two bills framed the terms of the public argument.237 The argument for state support of churches resumed in the state legislature with the reintroduction of a religious assessment bill in 1884. The new bill would require a statewide religious assessment but allow taxpayers to designate the Christian denomination that should receive their individual contribution. Undesignated payments—and presumably payments that were not designated to a recognized denomination—would be put towards state support of education. While the new bill avoided some of the previous bill’s controversies, including enumerating theological requirements, it still attempted to establish a broad-based Christianity as the state religion. James Madison, Thomas Jefferson, and their allies remained opposed to the new bill for many of the same reasons that they had opposed ministerial taxes or religious assessments since the passage of the Declaration of Rights in 1776. But the new bill appears to have received broader support than its 1779 predecessor, and Madison was unable to defeat the bill during the 1784 legislative session. Instead, Madison and his allies worked to table the bill until the following legislative session in 1785. In the meantime, they helped Patrick Henry, the bill’s most visible supporter, win election as governor, a role that would neutralize his power in the legislature.238 Those opposed to the religious assessment bill also set about a public campaign of writing petitions and gathering signatures in opposition to it. The most famous of these is Madison’s own “Memorial and Remonstrance Against Religious Assessments,” but his was not  237 Ibid., 139. 238 Ibid., 140-42; see also Malbin, Religion and Politics, 22-24.    134 the most popular or widely circulated petition during the 1785 campaign. By Curry’s account, the petitions that received the most traction were those written from a religious perspective as evangelicals and even Presbyterians adopted the position that an establishment was not to the advantage of the gospel, warning that establishing Christianity would not arrest the perceived threat of deism, and furthermore looking to the example of religious flourishing in Pennsylvania.239 The changing tide of public opinion allowed Madison and his legislative allies to stop the general assessment bill in the 1785 legislative session. The following year they further triumphed by reintroducing and passing Jefferson’s “Statute for Establishing Religious Freedom” by a significant majority. The title of Jefferson’s bill was undoubtedly chosen with care as it allowed for “establishing” an anti-establishment: it prevented any religious tests or qualifications from applying to state offices, civil rights, and public benefits; it prevented any kind of coerced support for religion; and it guaranteed complete freedom of opinion in religious matters. And while the act contained language admitting that, as a statute, it could be overturned by a future act of the legislature, it maintained that its provisions were based upon “the natural rights of mankind” and that a reversal would constitute “an infringement of natural right.”240 The legislature passing such a bill could not easily afford to reconsider such a definitive and strongly-worded law, and the matter of religious liberty and establishment in Virginia were settled after a decade of remarkable change. But what has Virginia to do with the First Amendment? And more to the point, how does this argument in Virginia bear on the question of judicially-granted religious exemptions? In  239 Curry, The First Freedoms, 143-47. 240 “Virginia Statute for Establishing Religious Freedom (1786),” Encyclopedia Virginia, accessed on March 15, 2021, https://encyclopediavirginia.org/entries/virginia-statute-for-establishing-religious-freedom-1786/.    135 nearly all of the First Amendment scholarship, the Founding decade from 1776 to 1785 in Virginia is treated as a kind of Ur-story for the Free Exercise and Establishment Clauses, and with good cause. The Supreme Court has often cited Thomas Jefferson as the quintessential authority on the meaning of the First Amendment, and he was a key thinker and actor in these arguments.241 Proponents of judicially-granted exemptions point to Madison and especially to his “Memorial and Remonstrance Against Religious Assessments” as a principled background and justification of their position.242 They also point to the efforts of evangelicals, the political force behind Virginia’s transformation, as further proof of a connection between the First Amendment and radical guarantees of religious liberty.243 Those arguing against judicially-granted religious exemptions have not shied away from Revolutionary- and Founding-Era Virginia, either, and have provided considerable attention to Virginia’s evangelicals, and to both James Madison and Thomas Jefferson. Michael Malbin, who focuses especially on our two Founders, explains the matter clearly and succinctly:  No other state—indeed, other country—went as far toward protecting religious freedom in law as did Virginia in 1785. What this means for our purposes, as we attempt to understand the meaning of free exercise in 1789, is that…we may assume that the principles the representatives [of the First Congress] had in mind…were not likely to have been more liberal than those of the most liberal of Virginia religious freedom advocates.244  The radical transformation of Virginia did not correspond with equivalent and immediate transformations in most other states, though it did establish a pattern of abolishing all semblance of religious establishment and broadening religious guarantees that would eventually be adopted  241 See, for example, Everson v. Board of Education, 330 U.S. 1 (1947). 242 McConnell, “Free Exercise Revisionism,” 1151. 243 Ibid., 1117; McConnell, “Origins,” 1448. 244 Malbin, Religion and Politics, 20.    136 by all. It will also become clear in Chapters 6 and 7 that the experience of Virginia had an outsized influence on the introduction of a Bill of Rights and eventually on the language of the First Amendment. It is therefore worthwhile for us to consider whether these sources have anything to say about judicially-granted religious exemptions. In the case of Jefferson and Madison, whose intellectual influence on the First Amendment is so essential, it is also worthwhile to consider more broadly how they envisioned the relationship between religion and the political order.  The Role of Evangelicals, especially John Leland The foregoing account of Virginia’s religious transformation should make clear that, as a political force, the work of dissenting denominations was essential to change. What is far less clear, however, is whether any particular religious leaders were responsible for shaping the broader argument or rallying whole denominations. Thomas Curry mentions various denominational pronouncements that seem to reflect the ideas of church leaders and also provide a guide to congregants, but these were all the work of committees.245 Other accounts cite the importance of evangelical political support without reference to any specific article.246 Such general support for the legislative victories of Jefferson and Madison is therefore difficult to tie to specific voices and their theories about the relationship between political and religious order, especially as it concerns the question of religious exemptions.   245 Curry, The First Freedoms, 144-45. 246 See, for example, West, “Religion-Based Exemptions,” 630; also Gerald Bradley, “The No Religious Test Clause and the Constitution of Religious Liberty: A Machine That Has Gone of Itself,” Case Western Law Review 37 (1987): 726.    137 Professor McConnell latches onto Baptist minister John Leland in search of a voice for Virginia’s evangelicals and as a proponent of religious exemptions.247 While Leland is certainly an interesting figure—and one who left a substantial written record—McConnell is careless in his use and understanding of Leland. First, McConnell describes Leland as “the leader of the Baptists in Virginia” during the assessment controversy, a title for which McConnell gives no clear attribution.248 But Leland’s autobiography makes no mention of the controversy, let alone his participation in it.249 His collected writings have much to say on the subject of religious liberty and religious establishment, but the first such writings do not appear to have been published until 1790 and later, well after the legislative argument in Virginia was settled. Leland’s biographer praises his influence saying, “his efforts…contributed as much as those of any other man, to the overthrow of ecclesiastical tyranny in Virginia,” but she is unable to identify any impact prior to 1786—just after the assessment controversy—when Leland served on the General Committee of Virginia Baptists, a role that apparently included communication with the Virginia General Assembly.250 In his 1810 history of Virginia Baptists, Robert Semple records Leland’s participation in the August 5, 1786 Baptist General Committee meeting, a meeting wherein those in attendance praised the new law that settled the assessment controversy and resolved to send several representatives, including Leland, to the Virginia General Assembly  247 McConnell, “Origins,” 1442, 1448, 1476. McConnell cites Leland’s own work as well as Semple’s A History of the Rise and Progress of the Baptists in Virginia, but no secondary sources. 248 Ibid., 1448. Interestingly, McConnell is not the only scholar to make this mistake. Gerald Bradley similarly describes John Leland as the “leading spokesman” of the Virginia Baptists [Bradley, “The No Religious Test Clause,” 687]. Bradley cites Morton Borden, who does refer to Leland, but never as an authoritative voice for any group or geographical cluster of Baptists [see Borden, Jews, Turks, and Infidels (Chapel Hill: University of North Carolina Press, 1984), 12, 17. 249 John Leland, The Writings of the Late Elder John Leland, Including Some Events in His Life, Written by Himself, with Additional Sketches, Etc., ed. L.F. Greene (New York: G.W. Wood, 1845),  9-40. 250 Ibid., 52.    138 as delegates of the committee. Semple also notes that earlier meetings of the General Committee officially recorded opposition to Virginia’s Episcopal establishment and to the legislatively proposed general assessment to support churches, but Semple does not record Leland’s attendance at these earlier meetings.251 Leland was a traveling preacher, so it is quite possible that he had strong opinions about the assessment controversy and shared those opinions widely, but the historical record is unclear about his influence. A biographer of Leland writes, “It is difficult to say just what part John Leland had in this campaign [in Virginia in the 1780s] in which philosopher-statesmen and Baptist evangelists collaborated.”252 What the record does tell us is that Leland was young and was only starting his ministry in Virginia in the late 1770s, that he was active as a preacher and as a participant in Baptist associations, and that he left the state to return to Massachusetts in 1791.253 While Leland became an important figure among Baptists, he likely was only just coming into that role in the 1780s and had but a moderate influence in the Virginia legislative arguments about the role of an established church, religious assessments, and religious liberty. And from Leland’s writings about religious liberty, it is probable that the Virginia controversy shaped him more than he shaped it, a point to which we will return below. Second, McConnell attempts to pin a broad idea about religious exemptions on Leland, thereby offering some historical precedent to his defense of the Sherbert test. McConnell  251 Semple, A History of the Rise and Progress of the Baptists in Virginia (Richmond: self-published, 1810), 69-73. Thomas Curry’s authoritative historical account of religious arguments in the Founding Era also does not describe Leland as a leader during this time; Curry, The First Freedoms, 134-48. 252 L. H. Butterfield, “Elder John Leland: Jeffersonian Itinerant,” Journal of the American Antiquarian Society, October 1952: 177. 253 Leland was born in 1754; according to his autobiography, he moved to Virginia in 1776. See Leland, The Writings, 19ff. Semple describes Leland as a great preacher and a popular pastor who “was certainly very instrumental in effecting the just and salutary regulations concerning religion, in his state,” but his account is light on political details. He also records Leland as serving as pastor in Orange for a time, a location just a few miles from Madison’s residence at Montpelier. Semple, 117, 165.    139 specifically cites Leland criticizing laws that directly impinge upon the liberty of conscience, which Leland believes illegitimate: It is often the case, that laws are made which prevent the liberty of conscience; and because men cannot stretch their consciences like a nose of wax, these non-conformists are punished as vagrants that disturb the peace. …Let any man read the laws…and see who were the aggressors.254  But Leland also recognizes the need for public order and argues that religious motivations are no excuse for substantial violations of the peace: Should a man refuse to pay his tribute for the support of government, or any wise disturb the peace and good order of the civil police, he should be punished according to his crime, let his religion be what it will; but when a man is a peacable [sic] subject of state, he should be protected in worshipping the Deity according to the dictates of his own conscience.255  From these two arguments, McConnell infers a third argument, that Leland’s position is consistent with McConnell’s view that exemptions should be granted from general laws to religious claimants, except in cases where those laws concern peace and order: Like Penn, [Leland] condemned in the strongest language the notion that liberty of conscience would justify crimes such as murder or tax evasion… But also like Penn, Leland made clear that this did not mean that believers could be required to obey all laws. …Unfortunately, Leland supplied no clear basis for distinguishing between the cases. …Instead, he seems to have assumed that the distinction would be readily apparent.256  While this third argument is not inconsistent with Leland’s arguments above, it neither follows from context nor is it substantiated against his other writings on the topic. In the context cited by  254 McConnell, “Origins,” 1448; quoting Leland, The Writings, 228. 255 Ibid.; quoting Leland, The Writings, 228. 256 Ibid. Emphasis in original.    140 McConnell, Leland’s argument is actually that the state of Massachusetts should exercise its constitutional authority to amend its own constitution on matters concerning religious liberty. Leland describes the relationship of law and conscience as it should be, not as it is, and he recommends that it be changed through normal, non-judicial mechanisms. Leland is primarily interested in constitutional reform, not in carving out religious exemptions under existing laws.  And Leland is not merely opposed to religious exemptions in cases involving significant breaches of the peace. McConnell focuses on a passage (connected to the second block quote on the prior page) where Leland denies a defense of conscience to murderers, believing it inappropriate that such a vile action could be excused on account of religious motivation. Consistent with McConnell’s own argument, he understands this passage in the same terms as he understands the licentiousness provisos from state constitutions—as an outer limit on religious activity that contains a wide sphere of activity that should be allowed by way of religious exemption. But McConnell misses an important and generally applicable line from this section where Leland explains, “Laws should only respect civil society; then, if men are disturbers they ought to be punished.”257 In other passages Leland clarifies the statement that “Laws should only respect civil society” to exclude the possibility of religious exemptions of any kind. He consistently argues against any legal “baits” or “checks” to the ministry, for example, believing that laws should neither encourage pastors and would-be clergy with exemptions from taxes and military service, nor should they discourage the same with prohibitions against ministers serving in state assemblies.258 He further explains that government should stay out of the business of  257 Leland, 228. 258 Ibid., 122, 188, 190, 487, and 491. Per figure 3.1 in Chapter 3, a significant number of states had prohibitions against legislative service from members of the clergy.    141 establishing holy days, Sunday closure laws, and legislative and military chaplains.259 For while he is very concerned with defending religious liberty, he believes that religious liberty is best effected by the state taking no cognizance of religion. In Leland’s own words, Admit of the principle that religious opinions are objects of legislation, or any wise subject to the control of jurisprudence, and there remains no effectual barrier in the hands of the people against legislative oppression. The disposition of the legislature is all the defense that remains; and this disposition is as variable and changeable as the moon.260  Leland’s understanding of the proper relation between religion and the political order is not one that admits of religious exemptions—in fact, his understanding forbids religious exemptions because they require the state to make religious opinions the “objects of legislation.”  Whether or not Leland’s views are important for shaping or reflecting evangelical opinion in the eighteenth and early nineteenth century is difficult to say. Thomas Curry regards him as an important enough figure to mention but describes him in rather fringe terms as someone whose unique position represented a Christianized version of Jefferson and Madison’s more secular position.261 This seems like an apt description, and Jefferson himself occasionally whispers to us from Leland’s writings, especially in passages like the following: “Let every man…worship according to his own faith, either one God, three Gods, no God, or twenty Gods; and let government protect him in so doing….”262 Rather than characterize Leland as an important voice in the religious liberty and assessment debates in Virginia, it would seem more appropriate to describe him as a reflection of those debates, as absorbing their terms and sharing them as gospel, especially once he moved back to New England in the 1790s and encountered  259 Ibid., 119, 293, 355, and 562-64. 260 Ibid., 488. 261 Curry, The First Freedoms, 182 and 219. 262 Leland, The Writings, 184.    142 states who had not undergone Virginia’s disestablishment and broad acceptance of religious liberty.  In his account of Leland, McConnell correctly perceives a strong distinction between law and conscience. Where law infringes on conscience, Leland argues that law itself—or the writers of the laws—are the aggressors against good government. But McConnell concludes that Leland is unclear about the actual boundary between conscience and law, and further that he does not provide a means of distinguishing the boundary in each particular case, an ambiguity that allows McConnell to suppose an entry point for religious exemptions.263 But it is not quite true that Leland is ambiguous about how to resolve conflicts between law and conscience. While Leland does not supply a clear test, his terms and their consequences offer considerable clarity because they are so similar to the terms used by Locke, Jefferson, and Madison. Leland argues, often in extreme terms, that the political regime should be wholly apart from all religious concerns. This is not to say that religious concerns do not affect the political order, but that religion is best when it is left alone—with no supports, prohibitions, or encumbrances of any kind: no tax exemptions, no religious assessments, no ministerial exemptions to conscription, no ministerial prohibitions on public office, no holy days, no public chaplains. The law would still have something to say about taxes, conscription, public days of observance, and any number of items that would affect the religious and non-religious alike, but the law would not do so on religious grounds or in religious terms. The scope of law would be established in the same terms of social compact as described by Locke. And while Leland does not spend much time dwelling on the ways that this arrangement can give government considerable incidental authority over matters relating to  263 McConnell, “Origins,” 1448.    143 religious practice, it is apparent that it does, or at least it can, depending upon circumstances. In wartime, for example, conscientious objectors may find themselves subject to conscription laws. Considering the Virginia law exempting preachers from military service, Leland explains, “this is an indulgence that I feel, yet it is not consistent with my theory of politics.” 264 Leland also sees the condition and variety of the American people, and this presents at least one major improvement—or religious defense—that Locke did not mention. The wide variety of religious sects in Virginia and the United States more broadly means that there is no clear majority that can tyrannize over the others. We might call this the “Federalist 10” or “Federalist 51” defense of religious liberty, and, furthermore, we might reasonably hypothesize that Leland learned the argument from James Madison. Writing in 1790, Leland explains,  It is happy for Virginia, in a political point of view, that there are several societies, nearly of a size; should one attempt to oppress another all the rest would unite to prevent it. And the same may be said of the United States…. This is greater security for religious liberty than all that can be written on paper.265  Recognizing, then, that Leland does not offer a significant contrast to the views of Jefferson and Madison and furthermore that there is no obvious alternative voice of the Virginia Baptists in the 1780s requiring a closer look, we should move to consider the positions of Jefferson and Madison themselves.  Thomas Jefferson  Thomas Jefferson left instructions for how he should be memorialized on the monument erected over his grave. In spare language, Jefferson sought to highlight three key  264 Leland, The Writings, 122. 265 Ibid., 122.    144 accomplishments: his authorship of the Declaration of Independence, his authorship of the Virginia “Statute for Establishing Religious Freedom,” and his leadership in creating the University of Virginia.266 The second of these is easily the most surprising, for he apparently regarded this statute as a more important legacy than a host of other achievements as a politician, diplomat, architect, writer, and all-around Renaissance man, including eight years as President of the United States.  While it was obviously important to Jefferson that he be remembered as a proponent of religious liberty, his record on the matter is somewhat complicated. The statute in question was written by Jefferson in 1779, but was not passed until 1785, when Jefferson was no longer a member of the legislature and was serving as a diplomat in France. He was also not active in the passage of the First Amendment, when he was serving as the nation’s first Secretary of State. His importance to arguments about the religious clauses of the First Amendment has come primarily by way of citations in Supreme Court opinions—opinions that have often limited rather than expanded the protection offered by the Free Exercise Clause.267 While we will account for his own thinking on religion and religious liberty in greater detail below, two key conclusions are worth noting at the outset: first, Jefferson was an important advocate for religious liberty, but from a very secular position that could be downright hostile to contemporary religious believers. Second, Jefferson’s secular approach does not lend itself to support arguments for judicially-enacted religious exemptions from law.  266 See, for example, “Jefferson’s Gravestone,” accessed on December 21, 2021, https://www.monticello.org/site/research-and-collections/jeffersons-gravestone. 267 See, for example, Reynolds v. United States, 98 U.S. 145 (1878); Everson v. Board of Education, 330 U.S. 1 (1947); and McCollum v. Board of Education, 333 U.S. 203 (1948).    145  Professor McConnell is well-aware of this second point and makes no effort to find supporting arguments for judicially-granted religious exemptions in Jefferson’s ideas or writings. McConnell instead uses Jefferson as a foil for Locke on the one hand and Madison on the other. Compared to Locke, Jefferson was a firm opponent of religious establishment and a proponent of extending religious protections to people of all faiths or no faith. But when it came to the substance or actions of those faiths, Jefferson was arguably less liberal than Locke, guaranteeing freedom of belief without protections for worship or other duties following from belief:  Jefferson’s understanding of the scope and rationale of free exercise rights, however, was more limited even than Locke’s. Like Locke, he based his advocacy of freedom of religion on the judgment that religion, properly confined, can do no harm: “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” On this rationale, Jefferson espoused a strict distinction between belief, which should be protected from governmental control, and conduct, which should not. As he wrote in his famous “wall of separation” letter to the Danbury Baptist Association, “the legislative powers of government reach actions only, and not opinions…. [M]an…has no natural right in opposition to his social duties.” It was in reliance on Jefferson that the Supreme Court later held that there can be no free exercise right to exemption from a generally applicable law when such laws are directed at actions and not opinions.268  Jefferson observed a clear distinction between belief and action, with total protection given to belief and only limited protection given to action. Madison, on the other hand, seems to have a more expansive view of religious protections, at least insofar as his “Memorial and Remonstrance” elevates religious above secular obligations.269 In order to support his overall thesis, McConnell describes Jefferson’s position as historically backwards, saying that  268 McConnell, “Origins,” 1451. Quoting from Jefferson’s Notes on the State of Virginia, ed. William Peden (University of North Carolina Press, 1955) 159, and “Letter from Thomas Jefferson to a Committee of the Danbury Baptist Association,” January 1, 1820, in The Writings of Thomas Jefferson, Vol. 10, eds. A. A. Lipscomb and A. E. Bergh (Washington, DC: Thomas Jefferson Memorial Society, 1903) 281-82. 269 McConnell, “Origins,” 1443-54.    146 “Jefferson’s advocacy of a belief-action distinction placed him at least a century behind the argument for full freedom of religious exercise in America” and “his position on free exercise was extraordinarily restrictive for his day.” 270 This claim should surprise us. For while it is no secret that Jefferson was not a great friend or advocate of religious belief, his influence on important religious liberty arguments in the Founding Era is undeniable. And except for James Madison, Jefferson was a far more important voice in contemporary arguments for religious liberty than anyone McConnell uses to paint Jefferson as historically anachronistic.271   While this author agrees with McConnell that Jefferson does not quite merit the status suggested by the many Free Exercise and Establishment Clause cases decided by reference to his ideas and letters, he is still very much worthy of our consideration.272 McConnell’s input simply relieves any need to argue about whether Jefferson supported religious exemptions, for McConnell is reliable on that point. Jefferson had much to say both publicly and privately about religion and religious liberty, but for our purposes we should turn back to his “Statute for Establishing Religious Freedom,” which was an important part of the argument in Virginia and which he personally regarded as his essential legacy. Much scholarship has focused on Jefferson’s writings and actions after the passage of the First Amendment, relying upon him as a kind of interpreter. Focusing on his Virginia legislation, however, gives a window into his own thinking, the common position of the Virginia legislature in 1786, and some of the ideas that inspired later legal developments including the First Amendment.  270 Ibid., 1451-52. 271 Ibid.; McConnell cites William Penn (1670), a Massachusetts Baptist by the name of Clark (1651), and St. George Tucker (1803). 272 That the Court has used Jefferson’s letter to the Danbury Baptists as the definitive treatment of the Establishment Clause is a perverse but apt example of the Court’s tenuous relationship with history and historical inquiry.    147  For the sake of clarity and reference to the historical record, the “Virginia Statute for Establishing Religious Freedom” has been outlined in Figure 4.1 on the following page, and each line includes citation to the original text, which is fully contained in the footnotes.273 As Figure 4.1 demonstrates, the bulk of the Statute is spent on its arguments, and only a very small part of it is binding prescriptions or proscriptions. But given this odd balance of legislative arguments with actual legislation, it is inappropriate to conclude that the Statute is mostly rhetorical flourish. Rather, it is an argument using legislative will and enactment as a rhetorical tool towards its common acceptance. There is certainly some irony in this arrangement given the Statute’s insistence that the mind is free, that government has no business in the realm of opinion—at least religious opinion—and that truth will prevail if given the opportunity. But in spite of the irony, legislative passage of such an argument lends it credibility and force, the kind of “evidence” that the Statute attaches to persuasion and belief. The longer argument for religious liberty is joined to two much shorter sections. The first of these contains the actual legislative action, first limiting the power of the state, then guaranteeing certain liberties to the individual. The second and final of the shorter sections is a postscript connecting the rest of the Statute to natural rights and natural right, suggesting that the Statute is a reflection of fundamental justice and that any future departure would therefore be fundamentally unjust.    273 While the outline in Figure 4.1 and the analysis that follows do not exactly follow the outline and analysis of the same historical document by Vincent Phillip Muñoz in God and the Founders: Madison, Washington, and Jefferson (New York: Cambridge UP, 2009), his outline and analysis were the inspiration for doing so here and deserve appropriate credit.    148 Figure 4.1—Outline of “Virginia Statute for Establishing Religious Freedom”274 I. Argument A) The mind is free 1) because it answers to evidence, not will275 2) because God made it that way and treats it that way276 B) Belief should not/cannot be imposed 1) because it produces the wrong effect and is therefore irrational277 2) because rulers and legislators lack special revelation to lead towards religious truth278 C) Support for belief should not be compelled 1) because forced support for opinions a man disbelieves is tyrannical279 2) because even forced support for shared belief discourages individual liberty280 3) because it discourages a virtuous clergy281 D) Belief should not affect civil rights   274 The text in the following footnotes combines both Jefferson’s original version of the bill, introduced in 1777, with the bill passed by the Virginia Assembly in 1786. Where the Assembly removed Jefferson’s original words, his language has been preserved in brackets. Where the Assembly added text, those words have been indicated with italics. The language of the 1786 bill comes from “An Act for establishing religious Freedom (1786),” from Encyclopedia Virginia, accessed on May 17, 2021, <https://encyclopediavirginia.org/entries/an-act-for-establishing-religious-freedom-1786/>; the text of Jefferson’s original 1777 draft comes from Appendix C of Muñoz, God and the Founders, 231-33. 275 “…the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds…” 276 “Almighty God hath created the mind free [and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint]…the plan of the holy author of our religion, who being Lord, both of body and mind yet chose not to propagate it by coercions on either, as was in his Almighty power to do, [but to extend it by its influence on reason alone;]…” 277 “…all attempts to influence it by temporal punishments or burthens, or by civil incapacitations tend only to beget habits of hypocrisy and meanness…” 278 “…the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time; that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty because he being of course judge of that tendency will make his opinions the rule of judgment and approve or condemn the sentiments of others only as they shall square with or differ from his own…” 279 “…that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves [and abhors] is sinful and tyrannical…” 280 “…even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness…” 281 “…and is withdrawing from the Ministry those [temporal] temporary rewards, which, proceeding from an approbation of their personal conduct are an additional incitement to earnest and unremitting labours for the instruction of mankind…”    149 1) because the two subjects are unrelated282 2) because depriving civil rights for matters of religious opinion is a violation of natural right283 3) because it perverts true belief284 4) because action is the proper sphere of civil authority285 E) If permitted, Truth will prevail286 II. Enacting Clauses287 A) State power should be very limited in matters of religion288 B) Certain individual liberties should be guaranteed to all289  III. Postscript A) This legislation bears only statutory authority290 B) But repealing or narrowing this statute would be a violation of natural right291    282 “…our civil rights have no dependence on our religious opinions any more than [on] our opinions in physics or geometry…[that the opinions of men are not the object of civil government, nor under its jurisdiction;]” 283 “…that therefore the proscribing any citizen as unworthy the public confidence, by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages, to which, in common with his fellow citizens, he has a natural right…” 284 “…that it tends only to corrupt the principles of that very Religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments those who will externally profess and conform to it; that though indeed, these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way…” 285 “…that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order…” 286 “…and finally, that Truth is great, and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them…” 287 “[We the General Assembly of Virginia do enact] Be it enacted by the General Assembly that…” 288 “…no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief…” 289 “…but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion,  and that the same shall in no wise diminish, enlarge or affect their civil capacities.” 290 “And though we well know that this Assembly elected by the people for the ordinary purposes of Legislation only, have no power to restrain the acts of succeeding Assemblies constituted with powers equal to our own, and that therefore to declare this act [to be] irrevocable would be of no effect in law…” 291 “…yet we are free to declare, and do declare that the rights hereby asserted, are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.”    150 Returning to the first section of the Statute, the argument, we find that it begins (Figure 4.1, Section I.A.) with an assertion or observation that the mind is free.292 This starting point is essential to all of the arguments that follow: it is because the mind is free that establishes the fundamental reason that belief cannot be imposed, that support for belief should not be compelled, etc. And while the assertion is tied to God himself, it is clear that references to God do not refer to any specific revelation, but rather refer to the authority behind the created and general arrangement of the world. We know the mind is free because we encounter it that way. Experience also confirms that everyone has different ideas about things as important as God, and that the mind seeks reasons, not coercion. From his premise about the freedom of the mind, Jefferson argues that belief should not be imposed because imposing belief tends to have the wrong effect. Rather than creating more believers, coercion makes hypocrites. This is the first of several occasions where the Statute implicitly relies on Christian ideas about belief, and particularly lower-church, non-liturgical Protestant (i.e., Baptist) ideas that emphasize sincerity of individual belief over participation in corporate action or worship. Faiths more concerned with corporate action may not worry as much about hypocrisy so long as their external forms are observed—or might view those outward forms as effecting inward change. Jefferson, however, emphasizes the need for sincerity of inward and personal belief. Jefferson next argues (Figure 4.1, Section I.B.) that religion should not, or perhaps cannot, be imposed because the rulers who would impose it lack the special revelation necessary for identifying true religion.293 His evidence is that rulers have established false religions across most of human history, though exactly which history he intends is unclear. Is the Statute  292 See Figure 4.1, section I.A.1., and its footnoted text. 293 See Figure 4.1, section I.B.2, and its footnoted text.    151 referring to pagan religion? To Roman Catholicism? To the Anglican establishment of colonial Virginia? Potentially all of these establishments are implicated as “false religions,” and the Statute trades on its ambiguity to help convince its readers. Somewhat unexpectedly, this section of the Statute fails to distinguish between ecclesiastical and civil rulers—or perhaps it would be clearer to say that this section indicts ecclesiastical authorities alongside their civil counterparts. The Statute’s indictment of ecclesiastical authorities might be a reference to the papacy or even directed against Anglican clergy who supported the cause of Royalism, but its terms are broad enough to implicate a wide swathe of religious leaders of all kinds. We might again trade on the Statute’s ambiguity to assume that leaders with whom we personally disagree are “uninspired” while thinking better of our own sectarian leaders, but the overall point is surprisingly impious. At best Jefferson seems to be recommending a low, non-hierarchical approach to religion; at worst, Jefferson has subtly worked his own irreligion and anticlericalism into an argument about the very nature of belief. Despite its impiety, the Statute’s argument about the intrusion of rulers into religious belief does reasonably follow from our starting premise about the freedom of the mind. If the mind is free, then some may see better evidence of religious truth or simply see general evidence more clearly, but this special revelation does not bestow a right to rule others. Rather, the proper role of such a prophet or theologian is simply to teach: to bring his or her evidence for examination by others, that it might result in individual belief among free minds. How this bare account of evidence, belief, and freedom should square with churches defending their own doctrine is not exactly clear. The Statute does not explicitly question the ability of a private institution to protect core beliefs among its membership, but the indictment of ecclesiastical leaders does tend in this direction. We should ask whether the mind is really free in this way and,    152 if so, whether the freedom of the mind really demands such a hands-off approach from political and religious leadership. As we have already mentioned, by elevating persuasion to the level of legislation, the Statute is already operating on a more subtle level than its own arguments suggest, so perhaps our answer lies within this irony. Another interesting implication of section I.B. is the expansion from religion to “opinion” more broadly, an idea that continues throughout the rest of the argument. This expansion clearly follows from our opening premise: if the mind is free, then it is free with regard to everything, not simply religious belief. The evidence of certain facts or common experiences should compel free minds to reach a basic set of common conclusions, but beyond these—in the realm of opinion—all are free to assess the evidence and reach their own conclusions. Yet the conflation of belief and opinion pushes the argument a bit too far. By conflating the two and suggesting that belief and opinion are outside the purview of government, the Statute puts impossible constraints upon the civil authority, who is now prevented from intruding “his powers into the field of opinion.”294 We might well wonder what such a prohibition should require. Must the civil authority prove that a question of justice can be settled as a matter of fact before passing a law about it? Who would be the final arbiter of whether a matter had been fully settled and was therefore no longer a matter of mere opinion? The nature of civil rule is such that this problem cannot be settled, and civil authorities must always rely on certain well-founded opinions. The Statute itself is proof enough of this point because its premise and arguments are simply a series of opinions and therefore violate the boundaries of its own argument. As though to prove the point, or to prove that the argument never intended to move beyond religious opinion, the  294 Muñoz makes a similar point in God and the Founders, 95.    153 enacting section of the Statute is silent on the matter of non-religious opinion, limiting state power in matters of religion but not matters of opinion more broadly. While the “mind is free” argument undoubtedly touches on an important truth about the human condition, it needs further refinement to keep from proving too much.  The difficulty in extending the argument from religion to “opinion” is further illustrated in the next section (Figure 4.1, Section I.C.) of the Statute, which argues that financial support for belief should not be compelled. As just mentioned, a strict adherence to facts is an impossible standard for civil authority, so financial support for any kind of government (to say nothing of public education, of which Jefferson was a proponent) will include support for various opinions that may or may not be agreeable to the individual taxpayer. Though the Statute remains ambiguous on this point and does not provide a clear means of limiting its own scope, we are forced to assume that by “opinion” it really means “religious opinion.” Having limited the argument accordingly, this section defines compelled support for objectionable religious opinion as tyranny. But even this limited point goes a bit far. We can extrapolate from context that compelled support for beliefs which one does not share is tyrannical because of prior arguments about the freedom of the mind, but the conclusion does not really follow from the premises. It might be tyrannical to force a free mind to believe what it will not or to worship in a manner inconsistent with its own beliefs, but compelled financial support is of lesser significance and is treated as such by law. Current tax law, for example, provides no legal standing or precedent for citizens to refuse to pay taxes on ideological grounds.  As though sensing that he has over-reached, Jefferson immediately follows the point with several prudential arguments (Figure 4.1, Section I.C.2. and I.C.3.) against compelled religious support that apply even in cases where people are compelled to support their own professed    154 faiths. This latter circumstance, of state assessment directed towards the church or denomination chosen by each taxpayer, was the arrangement just recently overcome by Madison and his allies in the Virginia legislature. Such an arrangement might not be tyrannical, but the Statute judges it to deprive the people of liberty and to discourage individual virtue in members of the clergy. The argument in favor of liberty requires little explanation and should be a regular consideration of any free society: should we simply let the people independently decide? The second argument is more complicated, for it implies that the desirable characteristics of a clergyman will be best encouraged if congregants are selective with their tithes. The implication is unimpeachable in one respect, for congregants are unlikely to tithe if they regard a local clergyman as lazy or ineffective, and a system of local and individual decisions will be more responsive than a centralized system in almost every case. On the other hand, however, we ought to notice how grassroots funding shapes the nature and form of religion and religious institutions. The potential distortions may vary widely based upon the peculiarities of a local population or class, but we should expect a kind of democratizing influence that rewards charisma and rhetorical prowess over other virtues. This arrangement may be preferrable to its alternatives—this author certainly thinks so—but its advantages do seem to encourage the kind of polity and worship typical to Baptists and other non-liturgical, non-hierarchical Protestants. Whether intentionally or not, Jefferson’s Statute has again connected with the growing faction of Virginia Baptists, and probably to the mild discomfort of Episcopalians whose churches were struggling to adjust to voluntary contributions. Moving from financial support for religious belief, the next section (Figure 4.1, Section I.D.) of the Statute focuses on the relationship between religious belief and civil rights. Right away the Statute explains that these subjects are completely unrelated, that one’s civil rights have    155 nothing to do with one’s beliefs. Civil rights are granted as a matter of natural right to all on the basis of their humanity and their common participation in the civil order, and these rights are not forfeited on account of belief—indeed, they can only be forfeited by action against the civil order. And reconnecting with opinions broadly, the Statute explains that civil rights are unrelated to religious opinions just as they are unrelated to opinions in physics or geometry. This is an interesting turn because most topics in physics and geometry are not matters of opinion but matters of discoverable and provable fact. Jefferson therefore implies that even manifestly wrong or ignorant opinion is not grounds for losing civil rights. And upon reflection, this implication is usually borne out in practice and is a potential inconsistency in civil society, where we might strip a man of civil rights for unacceptable beliefs against which we lack final proofs, yet we would not do the same for errant beliefs in matters of physical science and mathematics that are eminently provable. When we encounter someone misinformed in geometry and physics, we set about correcting them with explanations and arguments, not by bringing the force of government against them; the Statute seems to imply that misinformed religious opinions ought to be treated the same. As Jefferson wrote in his original draft of the Statute, “the opinions of men are not the object of civil government, nor under its jurisdiction.”295 While Jefferson’s line explaining that opinions are outside the jurisdiction of civil government was removed from the final version of the Statute, it is an important hint at the major idea undergirding the entire legislation. When we compare our original premise—that “Almighty God hath created the mind free”—with the notion of jurisdiction, we should notice that this freedom lies in contrast to our civil obligations. The mind may be free, but the body at least is  295 See Figure 4.1, section I.D.1, footnote 99.    156 obligated by the jurisdiction of government. Yet this contrast is not a contradiction, for as the Statute explains in its section on civil rights, opinions and beliefs are not the jurisdiction of civil government. Rather, government is only to be concerned “when principles break out into overt acts against peace and good order.” The subtext behind this whole explanation is a particular understanding of natural rights and the state of nature. According to the theory of the state of nature, man is entirely free while in the state of nature—not simply his mind, but also his body. But the state of nature is not secure, so men willingly surrender some of their freedom in favor of the security provided by civil society. In Locke’s account, which was carefully studied by Jefferson, men in civil society retain certain rights, including the rights to life, liberty, and property.296 Jefferson famously adapted Locke’s idea in the Declaration of Independence, which explained that “life, liberty, and the pursuit of happiness” are “unalienable” rights. By “unalienable,” Jefferson meant that these rights are inherent to men and can never be relinquished to civil society.297 His argument in the Statute follows the same line of reasoning, that the mind is inherently free, that religious belief is held in the mind, and that neither is relinquished or compromised as one passes from a natural state to a state of civil society. Religion and its accompanying opinions are unalienable possessions or rights, and it would be inappropriate—indeed, a violation of natural rights—for government to assume any jurisdiction over them. Locke also understood religion and civil society as separate spheres of sovereignty, but his explanation in A Letter Concerning Toleration provides for considerable overlap between these spheres. In Locke’s account, as previously discussed, there are limits on the religious beliefs that can be tolerated, and though the line between acceptable and unacceptable belief may  296 See, for example, Malbin, Religion and Politics, 29. 297 Muñoz, “Religious Liberty,” lecture (supra).    157 not be totally fixed, it is clear that the civil order must take an interest in the beliefs and opinions of its citizens. Jefferson’s Statute is therefore a considerable innovation from Locke, arguing that belief should be totally free and that government should not interfere until those beliefs manifest in actions that threaten peace and order. As Professor Muñoz explains, Jefferson was very familiar with Locke and his own deviations were quite intentional.298 And Professor Muñoz has explained elsewhere that this whole idea of jurisdiction and unalienable rights is essential to understanding the American founders’ view of religious liberty.299 While it is not fully articulated in the Statute, it is the background against which the argument of the Statute is clear and coherent. Readers will also recognize that it is consistent with the argument about separate religious and political spheres discussed in prior chapters, though with Jefferson’s particular view that the jurisdictional lines should be drawn where belief turns to action—or at least “overt acts against peace and good order.” The final point in the Statute’s argument (Figure 4.1, Section I.E) also connects well with its original premise. For if the mind is free and left uncoerced, then the best arguments are more likely to triumph on their own merits, and truth will therefore be more widely known. As the Statute explains it, “Truth is great, and will prevail if left to herself.” There is a hint of naïveté in this idea—who, for example, would raise children in such libertarian (or libertine!) fashion? Yet the statement is also rhetorically effective in its appeal to the reader’s vanity, for no one is likely to concede that his opinions and beliefs rely on anything but the best arguments and soundest reasoning. The appeal to truth is also noble, and most will agree that truth is best sought freely and unboundedly. As an eccentric and brilliant thinker, Jefferson probably approached the  298 Muñoz, God and the Founders, 90-91. 299 Muñoz, “Two Concepts,” 369-381.    158 subject more vigorously than his contemporaries, and he was not the sort to be satisfied by tradition or dogma. It is even possible that Jefferson intended this argument as a wedge between his contemporaries and their religious beliefs, for he personally believed that, given sufficient religious freedom and diffusion of learning, rationalism would triumph over organized religious faith. As Jefferson explained in a letter to Jared Sparks, “If the freedom of religion, guaranteed to us by law in theory, can ever rise in practice…truth will prevail over fanaticism, and the genuine doctrines of Jesus, so long perverted by his pseudo-priests, will again be restored to their original purity.”300 Towards the end of his life, Jefferson increasingly saw this transformation in terms of Unitarianism, which he thought would soon become the dominant religious identity in America.301 We must at last turn from the Statute’s argument to its enacting sentence (Section II), where those arguments result in some action or barrier to action on the part of the state:  Be it enacted by the General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.302  The enacting sentence has two parts, the first (Figure 4.1, Section II.A.) of which describes the limits of the state in matters of religion, and the second (Section II.B.) guarantees certain rights to the individual. This section is particularly interesting for the ways in which it does and does not fit with the arguments given above. In the first case, the enacting sentence forbids compelled  300 Thomas Jefferson to Jared Sparks, December 4, 1820, Jefferson’s Extracts from the Gospels, 402; quoted in Muñoz, God and the Founders, 102. Emphasis in original. 301 Muñoz, God and the Founders, 100-104. 302 “An Act for Establishing Religious Freedom (1786).”    159 support of religion, which is certainly treated in prior arguments, but it is not wholly settled by them, or at least not settled as a matter of natural rights. Prudence might dictate against state-assessed support for religion, but requiring citizens to support their own church is neither tyrannical nor a violation of natural rights. As Virginia had just been considering such a requirement, the matter is no mere hypothetical question. But the enacting section rolls the lesser offense of Virginia’s Religious Assessment Bill together with any and all kinds of coerced support for religion, and all are treated as tyrannical. Stripped to its barest parts, the argument is that a general religious assessment is a variety of coerced support for religion, that some varieties of coerced support are tyrannical, and that therefore a general religious assessment is tyrannical. As mentioned earlier, the Statute’s argument avoids this untenable logic, preferring instead to make prudential arguments against compelled support for one’s own church, but the enacting section relies on the matter being more soundly resolved.  The enacting section also seems to resolve—or merely skip over—a significant matter of concern from the prior argument by focusing exclusively on religious opinion and not opinion more broadly. This focus is evident in the next two clauses of the enacting sentence, with the first of these preventing any kind of enforcement or suffering related to religious opinions or belief, and the second guaranteeing freedom to profess and maintain religious opinions. As previously discussed, the Statute’s argument introduces us to opinion broadly, then quietly pivots to an exclusive focus on religious opinion; the enacting section follows the same trend. While the Statute provides no explicit logic or argument for the shift, we can reasonably assume at least two reasons to limit the overall argument about freedom of the mind to matters of religion. First, the argument applied to the whole sphere of opinion is untenable. Civil government cannot afford to be silent in all matters of opinion—in fact, the Statute itself is a clear attempt by civil    160 government to take a position and convince the public concerning a matter of opinion. Second, the mostly implicit argument about the separate jurisdictions of religion and politics offers the beginnings of a framework for sorting religious opinion from opinion more broadly. This distinction between religious opinion and non-religious opinion inherently lacks clarity because the overall framework assumes individual autonomy to define one’s own religious beliefs. We can and should expect considerable overlap and gray area between religious and non-religious belief in a pluralist society, but we can at least observe a theoretical distinction protecting a broad range of religious beliefs and incidentally protecting a variety of non-religious opinions as well. And as the statute explains, action remains the outer boundary for religious opinions such that no one is permitted to be physically destructive of the civil order.  While we opened this section on Jefferson with an explanation that he was never cited as an advocate of religious exemptions, it is worth pointing out that Jefferson’s view as represented by the previous analysis is exactly contrary to religious exemptions. The Statute provides considerable liberty to believe according to the dictates of one’s own conscience, but it argues against unique privileges for particular faiths and establishes common adherence to laws governing the sphere of action. Concerning unique privileges, the enacting section provides that “opinion in matters of Religion…shall in no wise diminish, enlarge or affect…civil capacities.” And while the Statute’s argument allows that actions should be free until “principles break out into overt acts against peace and good order” the enacting clause protects only belief, not action. The enacting section does not even explicitly protect religious worship, except insofar as it protects against compulsion “to frequent or support any religious worship, place, or ministry.” The one possible protection for action is in matters of speech, which are slipped into the end of the enacting section (Figure 4.1, Section II.B.) without comment or real justification. Speech is    161 presumably a matter of action, and therefore accordingly governable—at least in terms of time, place, and manner—yet it is protected by the enacting clause guaranteeing “that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion.” But based upon the context of the whole Statute, we should interpret this guarantee as a mere logical extension of belief, opinion, and the freedom of the mind. For any rights or guarantees surrounding these must include some ability to share and communicate about them, and therefore concern speech. But, as a matter of action, we must allow that civil society may put some parameters around when, where, and how that profession or argument can occur. In short, the Statute provides real protections for religious belief and profession, but it includes nothing in its enactments and little in its arguments that would offer support for religious exemptions from law.303 This conclusion is especially notable because the Statute, while written by Jefferson, was passed by the Virginia legislature at the encouragement of James Madison. While the motives behind legislative passage can be difficult or even impossible to determine in particular cases, it is reasonable for us to assume that the majority of the legislature agreed with the legislation and were satisfied with Jefferson’s presentation of the matter. As the postscript (Figure 4.1, Section III) of the Statute makes clear, neither the author nor its legislative supporters regarded the content of the Statute as unsettled or subject to further legislative review. The Statute recognizes that its authors possess only the legal authority to pass a revokable statute (Section III.A.) but it claims the moral authority of natural right (Section III.B.), stating that any future attempt “to repeal…or to narrow” the Statute “will be an infringement of natural right.” This bold claim is evidence of a shared moral commitment among  303 Muñoz makes the same basic point in God and the Founders, 93.    162 the supporting legislators, and especially from James Madison and his allies, who resurrected the old language and championed its passage. From Jefferson’s original 1779 text, the legislature of 1786 made a handful of small changes, but none that alter Jefferson’s meaning or soften his intent. After a decade-long legislative argument about the role of religion in political life, the Statute settled the matter as a permanent bar to a state religious establishment and an encouragement of individual religious sentiment. The Statute’s conclusiveness is important for a variety of reasons, not least of which is the manner in which it represents the popular opinion of the Virginia legislature in 1786, a legislature that was on the leading edge of religious liberty reforms in the years immediately prior to the passage of the Constitution and the Bill of Rights. Stepping back from the individual sections of the Statute and considering the preceding analysis broadly, we ought to notice a few important conclusions. First, the main argument of the Statute, the argument regarding the freedom of the mind, is incomplete because it lacks a limiting principle. While it is certainly a rhetorically compelling argument, its terms cannot be bound merely to religion, but necessarily spread over the whole possibility of opinion. If the mind is free, then it can hold whatever opinions it finds compelling, whether they are religious or otherwise. Jefferson is almost content to leave the matter thus, forbidding the state from intervening in matters of opinion and allowing the state to act only when opinion results in action against civil order, but his argument proves too much. The state must be proactive in some matters of opinion or be paralyzed, and the Statute itself is an attempt by a state actor to influence a matter of opinion. The main argument therefore requires a limit, and we observe that the Statute quickly limits itself to matters of religious opinion without much explanation. We consequently reach our second conclusion, that the Statute relies upon an implicit argument to limit its scope to religion (or religious opinion). We must proceed carefully when identifying an    163 implicit argument, but the majority agreement of the Virginia legislature on the subject means that the implicit argument cannot be too hidden or abstruse. Indeed, the argument that completes the Statute is a version of the jurisdictional argument between religion and government that has previously been mentioned, especially in Chapter 2, and which was hinted at in Jefferson’s original draft of the Statute. 304 The jurisdictional argument sets apart matters of religious belief, thereby isolating religious opinions, but without clearly identifying the limits of this independent jurisdiction. Religious belief is still subject to individual opinion and persuasion, but it is identified as something unique, apart from the political order, and an unalienable possession or right of each person. When combined with the other arguments of the Statute—that the mind is free, that the state has no business enforcing religious belief, and that the business of the state is to act in cases where action breaks out against the civil order—the jurisdictional argument is only a bit more permissive than that offered by Locke. Whereas Locke put limits on acceptable belief, the Statute removes all such limits. But regarding limits on state action, the answer is quite similar. The Statute forbids the enforcement of religious opinion or worship, but it offers no explicit protections for religious action, even at a time when many state constitutions were offering protections for religious worship. The third and final conclusion from our analysis of the Statute is that neither of our prior conclusions offers a foothold or entry for religious exemptions from law. The explicit argument of the Statute regarding the freedom of the mind is the basis for various limitations upon civil authority and guaranteed freedoms to the individual, but nowhere do these appear to include an exemption from law. The implicit argument about separate religious and political jurisdictions  304 “…[that the opinions of men are not the object of civil government, nor under its jurisdiction;]”    164 similarly clarifies civil limitations and individual rights, but even more clearly offers no opportunity for religious exemptions from law. Jefferson’s simple rubric for settling disputes at the boundaries of Individual rights, religion, and civil order—perhaps we might call it Jefferson’s razor—is essentially that matters of persuasion (which must include some right to free speech) and belief are wholly within the realm of the individual. Matters of action are the realm of civil authority, though the argument of the Statute makes clear that this jurisdiction is limited to actions that threaten the peace and good order of society. Applied to specific circumstances, we can easily see that Jefferson’s razor might identify a law as illegitimate; for example, a law preventing religious speech or limiting civil rights on account of one’s religious beliefs would be a violation of natural rights. But the razor does not admit of special exemptions; it applies equally to all. If a law runs afoul of this standard, then it is wrong in all cases, not merely those of a particular religious minority. Compared to our argument for narrow but deep protections for religious liberty, the standard presented here is just as deep, but probably narrower. While the argument of the “Statute for Establishing Religious Liberty” suggests that the legitimate scope of civil authority is when action overtly threatens peace and good order, the explicit protections of the enacting section say nothing about religious action beyond speech, including religious worship. In comparison to the state constitution-level guarantees discussed in Chapter 3, the Statute also protects belief and includes something equivalent to an equal protection clause—both of which we have suggested are reasonable to interpret as part of the “free exercise of religion.” It is interesting that legislators in Virginia believed it necessary to extrapolate on these items without also including any explicit guarantees for religious action.    165 Jefferson’s razor and the overall framework of the “Statute for Establishing Religious Liberty” may not be a clear guide for interpreting the First Amendment, which applies to “exercise of religion,” and not merely speech and belief. But we should not understand the Statute as falling well short of the First Amendment, either. The argument about the relationship between religion and politics in Virginia effectively began with the 1776 Declaration of Rights which, as noted in Figure 1, already established that “all men are equally entitled to the free exercise of religion….” A decade later and after multiple legislative arguments about religious assessments, the state legislature passed the Statute as a way of settling the argument—or at least many of the arguments concerning religious establishments—that began with the Declaration of Rights. There is no obvious indication that the majority responsible for passing the Statute regarded it as contrary to or in tension with the 1776 guarantee; rather, the obvious indications are that the 1776 guarantee did not satisfactorily settle the matter, at least with regard to religious assessments. More than an extrapolation of the 1776 guarantee, the 1786 legislation is therefore an extension of it, providing clarity in areas hitherto left ambiguous or undecided. We cannot directly apply the “Statute for Establishing Religious Liberty” as a commentary on the First Amendment, but we can reasonably expect it to be consistent with a growing consensus around religious liberty and religious establishment that was represented in the First Congress, and especially by James Madison, who shepherded Jefferson’s statute through the Virginia legislature just a few years prior to shepherding the Bill of Rights through the First Congress.  James Madison  In Professor McConnell’s account of the American Founding, Madison’s vision for religious liberty is absolutely central. Unlike the historically backwards and restrictive position    166 of Jefferson, Madison’s view is somehow both at the vanguard of promoting religious liberty and representative of the broad intentions of the First Congress. McConnell’s primary exhibit is Madison’s “Memorial and Remonstrance,” his anonymous letter circulated to help unite public opposition to the 1784 Virginia religious assessment bill. By McConnell’s telling, the “Memorial” lays out the essential argument for religious liberty that provides the groundwork for and necessitates a theory of religious exemptions, and is furthermore a template for understanding the First Amendment. We might reasonably question McConnell’s broad application of the “Memorial”—particularly in light of the fact that the document was published anonymously to spur public opposition to pending legislation, not as a religious or philosophical treatise—but the main defect in his analysis lies in the particulars. McConnell simply does a poor job of understanding the “Memorial”, and he ascribes to Madison ideas that the “Memorial” specifically rejects. In order to clarify his error and better understand Madison’s view, we shall first explain McConnell’s understanding of the “Memorial” and then thoroughly unpack its arguments for ourselves. McConnell ultimately does point to an important difference between the philosophies of Jefferson and Madison, but he misses both the overlap in their understanding of religious liberty and their common objection to religious exemptions.  In contrast to Jefferson, McConnell describes Madison’s “Memorial” as advocating “a jurisdictional division between religion and government based on the demands of religion rather than solely on the interests of society.”305 The reader will recall that Jefferson’s own “Statute for Establishing Religious Liberty” also establishes a jurisdictional separation. In Jefferson’s account, this jurisdictional separation is based upon the nature of belief and is broadly credited to  305 “Origins,” 1453.    167 God, if only in a general sense. McConnell’s attempt to differentiate Madison on this point is therefore rather weak, but he is correct in his estimation of the overall place given to religion in Madison’s “Memorial.” He quotes from Madison’s claim therein that “it is the duty of every man to render to the Creator such homage, and only such, as he believes to be acceptable.”306 Madison’s elevation of religious duty goes well beyond Jefferson, recognizing not simply an independent jurisdiction for religion, but also a separate authority with obligations over and above those of civil society. McConnell continues at length, Moreover, Madison claimed that this duty to the Creator is “precedent both in order of time and degree of obligation to the claims of Civil Society,” and “therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society.” This striking passage illuminates the radical foundations of Madison’s writings on religious liberty. While it does not prove that Madison supported free exercise exemptions, it suggests an approach towards religious liberty consonant with them. If the scope of religious liberty is defined by religious duty (man must render to God “such homage…as he believes to be acceptable to him”), and if the claims of civil society are subordinate to the claims of religious freedom, it would seem to follow that the dictates of religious faith must take precedence over the laws of the state, even if they are secular and generally applicable.307  Based upon McConnell’s selective quotes from the “Memorial,” his conclusions are completely reasonable. Madison does make a compelling defense of religious liberty from the perspective of a religious believer obligated by God to believe and practice his faith accordingly, without reference or care given to civil society. Yet this is not the whole teaching of the “Memorial,” nor even the central one. By asserting it as the central idea to the “Memorial,” and to Madison’s whole conception of religious liberty, McConnell is forced to contend awkwardly with clear evidence to the contrary. One of the Memorial’s fifteen objections to the religious assessment  306 Ibid., quoting from Madison’s “Memorial and Remonstrance,” Argument 1. 307 Ibid.    168 bill is that it “violates equality by subjecting some to peculiar burdens, [and]…to others peculiar exemptions.”308 Madison specifically identifies the bill’s exemptions for Quakers and Mennonites—who don’t have ministers that could receive financial support through a general assessment—as a violation of justice. As we shall see, this ostensible violation of justice is inconsistent with Madison’s overall scheme of religious liberty and, in that context, clearly extends to all manner of religious exemptions from law. Faced with such a clear refutation of his argument, McConnell’s strategy is bold but unconvincing: he includes the offending passage, then explains that its meaning is unclear or only specific to the circumstances.309 We shall unpack his argument in more detail below.  In order that this author not be accused of making a similar mistake to McConnell, let us now take a closer look at Madison’s own view of religious liberty as explained in the “Memorial and Remonstrance.” For the sake of clarity, the fifteen arguments given in that letter are outlined below as Figure 4.2. As Figure 4.2 shows, the “Memorial” was written as fifteen distinct arguments against the pending religious assessment bill. While there is some interaction and flow between the arguments, each is effectively distinct and numbered accordingly in the original, so the outline flows easily from the original text. The arguments in Figure 4.2 have been shortened considerably, but their order and number are consistent with Madison’s original version of the “Memorial.”    308 Qtd. from Argument 5, Madison, “Memorial and Remonstrance against Religious Assessments,” [ca. 20 June] 1785, from Founders Online, a project of the National Archives, accessed on September 1, 2021, <https://founders.archives.gov/documents/Madison/01-08-02-0163>. 309 Origins, 1454-55.    169 Figure 4.2—Short Outline of the “Memorial and Remonstrance”310 Principled/General Arguments 1. Religion can only be directed by reason and conviction, not force.311 2. The legislature has no power over religion.312 3. We should react against even minor offenses to our established liberties. 4. The Bill violates equality, which ought to be the basis for every law. 5. The Bill wrongly implies that either civil authority can judge religious truth or adequately employ it to achieve desirable outcomes.313  Circumstantial Arguments 6. The Bill is unnecessary to Christianity. 7. A Christian establishment is bad for Christianity.314 8. A Christian establishment is unnecessary to the preservation of civil order. 9. The religious establishment created by the bill would slow immigration to Virginia. 10. The Bill would also cause emigration out of Virginia for the same reasons in #9. 11. The Bill will rekindle old animosities between religious sects. 12. The Bill prevents the spread of Christianity. 13. Unpopular and unjust laws weaken the overall system of law, government, and society. 14. Such important legislation should not be passed without a clear mandate from the majority.  Additional Principled/General Argument  15. The fundamental right of religious liberty cannot be violated without jeopardizing our whole system of fundamental law.  310 Madison, “Memorial.” 311 Quotations in bold are similar to arguments from Jefferson’s “Statute for Establishing Religious Liberty” (supra). In this case, see Jefferson: “the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds….” 312 Jefferson (draft version): “that the opinions of men are not the object of civil government, nor under its jurisdiction….” 313 Jefferson: “the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time….” 314 Jefferson: “all attempts to influence [belief] by temporal punishments or burthens, or by civil incapacitations tend only to beget habits of hypocrisy and meanness….” Also, “that it tends only to corrupt the principles of that very Religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments those who will externally profess and conform to it; that though indeed, these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way….”    170 The original text of the “Memorial” does not include clear categories for the arguments, but there is a natural break between the first five arguments and those that follow, with the exception of the last argument. The first five arguments plus the last argument are identified here as “principled” or “general arguments,” and they are arguments asserting to be simply true concerning the nature of religion and civil society; the remaining arguments are circumstantial, and they speak to the more specific circumstances of the Christian religion or the conditions of eighteenth-century Virginia. For example, the first argument is about the nature of belief, an argument that, if true, would hold regardless of circumstances as a principled objection to the religious assessment bill. Argument 9, on the other hand, is a circumstantial argument about how the bill would affect immigration into Virginia based upon contemporary trends across the thirteen colonies. These categories are neither perfect nor perfectly clear, but they highlight the document’s overall arc from general and philosophical to specific and political, then back to philosophical.  If the first argument looks familiar, it should—the argument about the nature of belief is quite similar to Jefferson’s “Statute for Establishing Religious Liberty.” Arguments that repeat or reiterate claims from that statute are listed in Figure 4.2 in bold, with the similar text from the statute provided in the footnotes. Arguments that are otherwise similar to arguments from the statute are listed in italics. Though the similar arguments are not easily matched with selections from Jefferson, they do fit the overall argument from Jefferson’s Statute as described in the preceding section. As Figure 4.2 shows, three of the first five arguments, our principled arguments, reiterate arguments from the statute, and one more of the first five bears at least some similarity to it. The remaining, Argument 3, is perhaps the least philosophical and most political or prudential of the first five, arguing that citizens should oppose the assessment bill on the    171 grounds that its small violation of their rights is a first step towards larger potential violations. But even without dismissing the principled relevance of this argument, it should be clear that Jefferson and Madison shared many of the same ideas about religious liberty. On its face, Professor McConnell’s argument that Madison represents a significant departure from Jefferson is hard to square against the text.  We will return shortly to the first five arguments of the “Memorial,” as these are the arguments that provide a broader theory of religious liberty and are the subject of McConnell’s account of Madison. But first, for the sake of thoroughness and context, we will briefly review arguments 6-14 of the “Memorial.” While we have described these provisions as “circumstantial” as opposed to “principled,” this distinction is not because they lack any reference to principle. Rather, principled appeals abound in this section, but the overall approach is to speak to the political interests of readers and potential signatories (the “Memorial” was circulated in order to gather supporting signatures), first as Christians and then as citizens of Virginia. In the first case, speaking to Christians, Argument 6 explains that the general assessment bill is not necessary to Christianity, pointing to the history of Christianity’s strong growth and spread without the support of civil authorities. Argument 7 continues the theme by arguing that a religious establishment is actually bad for Christianity, repeating Jefferson’s argument that an establishment discourages virtue in the clergy. Arguments 8 and 11 repeat Arguments 6 and 7, but from the perspective of the civil order instead of Christianity: Argument 8 says that an establishment is not necessary to preserve the civil order and Argument 11 maintains that an establishment will be bad for civil order by introducing sectarian hostility. Between these latter two arguments, Arguments 9 and 10 claim that the bill would discourage immigration to Virginia and encourage emigration out of Virginia—a net loss for the state to    172 some more tolerant state like Pennsylvania or New York. And the Christian consequences of this immigration/emigration loss, per Argument 12, is prevention or slowing of the spread of the Christian faith. The overall effect of Arguments 6-12 is to answer the arguments of establishmentarians, first as Christians, then as citizens, and to speak to each of these constituencies about how the bill goes against their interests. Historian Thomas Curry observed, as was previously explained, that the “Memorial” was not the most popular of the letters opposing the general assessment to be circulated in 1785, and that the most popular letters were openly Christian in their orientation.315 Madison seems to be tapping into this same constituency—or at least trying—with his arguments in this section.  The final three arguments differ from Arguments 6-12 by raising our horizon from the particulars of the assessment bill to the category of legislation that it represents. As an establishment bill, Madison warned in Argument 12 that it would slow the spread of Christianity, but as an unjust and unpopular bill per Argument 13, it weakens Virginia’s whole system of law and government. Describing the bill as both unpopular and unjust represents two significant claims, and Arguments 14 and 15 take up each argument in turn. In Argument 14 we learn that the legislature resolved to solicit feedback from the people before passing the assessment bill, but without formalizing a mechanism for gathering feedback. The “Memorial” is therefore standing in the breach, offering the common citizen a vehicle for expressing discontent with the bill’s terms. But Argument 14 also tries to turn the tables on the legislature by charging that this kind of bill should not be passed without a clear mandate from the people. In other words, the onus is not on opponents of the bill to demonstrate majority opposition, but rather upon  315 Curry, The First Freedoms, 143-47.    173 defenders of the bill to prove that the majority really support it. The real reason for this shift in responsibility comes in Argument 15, which brings us back to the “principled” arguments that are the centerpiece of the “Memorial.” Argument 15 explains why the assessment bill is unjust: first, because religious liberty is a fundamental right; second, because religious liberty is a fundamental right that is at least equal to the other rights enumerated in the Virginia Declaration of Rights; third, if a right codified as part of the state’s fundamental law can be swept aside by mere legislative action without even the clear will of the majority behind it, then all rights can be likewise removed and the state’s fundamental law is meaningless. While Argument 15 does quote from the Virginia Declaration of Rights, it does not tell us exactly how the assessment bill is a violation of the religious liberty guaranteed therein, though presumably proponents of the assessment believed their bill to be consistent with Virginia’s fundamental law. The rhetorical appeal of Argument 15 is nonetheless quite strong in its assumption that the bill violates the Virginia Declaration of Rights.  Consistent with the approach throughout the “Memorial,” Argument 15 concludes with a final appeal to God, “the Supreme Lawgiver of the Universe,” as an appeal to Madison’s religious audience and a nod towards his opening argument, which is the only other argument among the preceding fourteen to ascribe a name to God and appeal to him by it. We are therefore reminded of the religious tenor of the “Memorial” as well as the importance of its opening arguments. Argument 15 nods towards the initial arguments of the “Memorial” in several other important ways, most notably by its quotations from the Virginia Declaration of Rights (which appear also in Arguments 1 and 4) and its overall length. These opening arguments are the longest and go furthest to lay out an overall scheme for understanding religious liberty. We will therefore return to these arguments, each of which requires careful and individual attention.    174  Argument 1 opens with a quotation from the Virginia Declaration of Rights: “that the Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason or conviction, not force or violence.”316 Readers should immediately recognize the similarity between this argument and the primary argument in Jefferson’s “Statute for Establishing Religious Freedom,” which reads, “the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds.”317 In both cases, the point is clear that religion must be free of civil society because it is epistemically free of civil society—it literally cannot be appropriately controlled at that level. For this reason the “Memorial” goes on to describe religion as an unalienable right. Readers should again recognize the similarity between this point and the prior analysis of Jefferson’s Statute; the Statute itself does not use that language, but it depends upon the related ideas of a state of nature and unalienable rights that remain with the individual even as he enters civil society. This same language of unalienable rights was famously included by Jefferson in the Declaration of Independence. But Madison’s “Memorial” goes further than Jefferson’s Statute by also attributing religion’s unalienable status to God’s claim upon each individual. It is not simply that men believe independently and maintain the right to do so, but also that men have a duty to God bound up with their belief about Him. As Madison writes in Argument 1, “It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is a duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him.”318 This duty to God goes beyond Jefferson’s view of religion and religious liberty, at least as  316 Madison, “Memorial.” 317 Jefferson, “A Bill for establishing religious Freedom,” reprinted in Muñoz, God and the Founders, appendix C. 318 Madison, “Memorial.”    175 explained in his Statute, and connects with the orientation and experience of the ordinary believer. For in the eyes of the believer, faith is not merely a matter of personal conviction, but of calling or commandment. The believer is not free to redefine his obligations to God in a manner convenient to himself or convenient to life in civil society. Madison describes religious obligation as “precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”  With such a capacious view of religious obligation and religious liberty, it is easy to see how Professor McConnell reads these lines to include the possibility of religious exemptions from law. But his analysis of Argument 1 ends too quickly and he misses Madison’s resolution of the emerging tension between religious and civil obligations. At the end of Argument 1, Madison explains “that in matters of Religion, no mans [sic] right is abridged by the institution of Civil Society and that religion is wholly exempt from its cognizance.” The first clause in this sentence is a reiteration of prior arguments that religion is an unalienable right not relinquished upon entry into civil society. Madison is reiterating the proper relationship between religion and civil society, not guaranteeing it in all cases, as the sentence which follows makes clear. The second clause, on the other hand, provides Madison’s most succinct and definitive principle for resolving the relationship between religion and civil society: non-cognizance. Professor Muñoz has argued that this principle is central to the “Memorial” and central to Madison’s resolution of the political problem created by religion and religious liberty.319 Madison’s framing of religion as both epistemically free of civil society and also a duty to a higher power explains why religious liberty is a necessity, but it provides little guidance for dealing with the potential  319 Muñoz, God and the Founders, 20ff.    176 problems inherent in religion. If civil society cannot convince its citizens in matters of faith nor compete with each citizen’s obligation to God, then how can it introduce order in the myriad subjects that touch or are immediately adjacent to religion? Madison’s resolution is for civil society to exempt directly religious matters from its cognizance or awareness. While this formulation is unique to Madison, we can easily see that it follows from the epistemological argument shared by both Madison and Jefferson, that the epistemic independence of religion and civil society are such that civil society has nothing to say about religion directly. This does not mean, however, that civil society will have nothing to say about the myriad subjects related to religion; rather, civil society simply cannot identify these as specifically religious topics or approach them in a religious manner. Concerning directly religious matters—for example, the truth claims of various sects or religions—civil society can say nothing. Concerning matters that overlap between religious belief and the civil order—for example, sabbath and holy day observations and related business closures—civil society can speak within its domain and only within that domain.  Madison’s scheme of non-cognizance offers complete freedom within the sphere of religious belief and practice, and it is consistent with the argument for a narrow but deep view of religious liberty that would completely protect belief and worship. It does not, however, prevent the kinds of secular prohibitions that might limit religious practice on non-religious grounds. It therefore stops well short of offering religious exemption from law. The final sentence of Argument 1 clarifies the tenuous nature of this freedom by explaining that the will of the majority is the ultimate rule for deciding civil matters, but that these decisions sometimes violate    177 the rights of the minority.320 In other words, despite everything just said about the right and duty represented by religious belief and the relative clarity of our principle of non-cognizance, civil society will be forced into a messy balance between the will of the majority and the rights of the minority. This argument is a foretaste of later arguments from Madison, especially in “Federalist 10” and “Federalist 51,” which we will discuss at length in Chapter 5. Cases pitting the will of the majority against a minority will nearly always be resolved according to the will of the majority, but Madison’s framework in the “Memorial” offers a means of directing towards and measuring against an enduring standard of justice. The majority may not listen, but Madison thinks that justice requires that the majority should not target religion qua religion and furthermore the religious minority should defend its religious beliefs and practices in terms of the natural order and the common good. In the case of the general assessment bill, the implication is obviously that the bill falls well short of the principle of non-cognizance and the religious framework described in Argument 1, though Madison tells us in Argument 13 and 14 that it also fails to represent the will of the majority.  Arguments 2 and 3 are simple extensions of Argument 1, with Argument 2 explaining its consequences for the legislature and Argument 3 explaining the appropriate reaction of citizens to violations of this general framework. In the first case, concerning the legislature, the consequences of Argument 1 are so simple as to require little explanation. The legislative body is but a creature of civil society and can have no power or jurisdiction beyond the authority given to or appropriately assumed by civil society. Because the superseding institution (civil society)  320 “True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.”    178 has no authority over religion, then neither does the derivative institution of the legislature. The purpose of Argument 2 is to connect the broad theory of Argument 1 with the general circumstances of the Virginia legislature considering a religious assessment bill. Because Arguments 1 and 2 have demonstrated the injustice of the pending legislation, Argument 3 follows by explaining how ordinary citizens ought to react to the violation of their liberties. In Madison’s words, “it is proper to take alarm at the first experiment on our liberties,” and “we hold this prudent jealousy to be the first duty of citizens.” Madison does not encourage a violent response or a recurrence to the right of revolution—he is primarily interested in gathering signatures, after all—but he does applaud the example of the American revolution, which did not wait for violations of principle to become established in precedent and institutions. In the same manner, the citizens of Virginia should quickly and firmly defend their religious liberty and their constitutional rights, lest this violation become an invitation for additional and more grievous violations. To use a common turn of phrase, Madison is advising his fellow citizens to nip the problem in the bud before it reaches full flower. The religious assessment bill in question might provide for Christian denominations of most kinds, but it is nonetheless establishing Christianity in exclusion of other faiths, and it is in clear violation of the non-cognizance principle. Argument 3 ends by pointing out that a legislature with the authority to establish Christianity also possesses the authority to establish a single sect in exclusion of others. While many contemporary Christian sects may have been satisfied with the broad terms of the religious assessment bill, especially those with a recent history of state support, few would be comfortable with a precedent giving the legislature such authority.  Arguments 2 and 3 extend Argument 1 into the particular situation and institutions of late eighteenth-century Virginia. Argument 4 returns us to the theoretical framework of Argument 1    179 and extends the principle by connecting the argument for religious liberty with equality. The argument for equality easily follows from the framework of Argument 1: the conviction of belief and the duty of the believer to God are true equally in each particular case, and equality is a well-articulated feature of the natural rights philosophy undergirding the “Memorial” and the political theory of the American founding. As the Declaration so famously reads, “We hold these truths to be self-evident, that all men were created equal….” But the application of equality in Argument 4 is especially revealing to our overall concern with religious exemptions, which Madison clearly rebukes in the name of equality. Madison explains, “As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principal, by granting to others peculiar exemptions.” In the sentences immediately following, Madison explains that the bill’s allowance for the general assessment of Quakers and Mennonites to go to their churches’ general funds—as opposed to other Christian sects where the assessment would be designated more specifically to clergy and facilities—is unfairly prejudiced in favor of these two fringe groups. Obviously the bill was written in this manner because Quakers and Mennonites lacked the leadership structure of other sects, but Madison does not seem to care about that. By giving those sects more flexibility with their assessed income, the Bill has unjustly privileged them, and has done so by taking cognizance of their religious differences. The responsibility of civil society is to treat all religious believers equally by employing a kind of colorblindness to their differences, not by trying to find equal ways of treating their differences, as the general assessment bill intended.  The reader will recall that this very argument, Argument 4, was previously a point of disagreement with Professor McConnell and served as our entrée to a more careful reading of the “Memorial.” With that reading now mostly behind us, it is worth taking another look at McConnell’s explanation of the argument:    180 This passage provides some support for the no-exemptions view, since it describes the “peculiar exemptions” in the bill as “extraordinary privileges” that violate the principle of religious equality. However, the meaning of the passage is ambiguous and must be weighed against evidence that Madison departed from the Lockean objection to exemptions. Instead of indicating a general objection to exemptions, the passage can be read as objecting only to the fact that the bill singled out two sects by name, giving them a preference over others that might have similar scruples. Alternatively, the quoted passage may mean no more than that one reason to reject establishments is that they generate a need for otherwise unnecessary exemptions.321  This author cannot help but wonder if McConnell is looking at a different Argument 4 than the one that actually appears in the “Memorial.” Upon closer reading, the connections between Argument 1 and Argument 4 are obvious, and the combined picture they offer—of a Lockean approach to natural rights, of civil society’s non-cognizance of religion, and of the application of equality to the question of religious liberty—is not one that admits much opening to religious exemptions.  Aside from McConnell’s claim that Argument 4 is “ambiguous,” he offers three distinct arguments in the passage quoted above against the alternative reading of the text. In the first case, McConnell argues for a significant break between the Lockean objection to exemptions and Madison’s own understanding. In McConnell’s own words quoted above, “Madison departed from the Lockean objection to exemptions.” But this is simply a case of assuming the argument that he is meant to prove, as McConnell undoubtedly believes it to be true but has failed to demonstrate it. Madison’s conception of religious liberty does take quite seriously the position of the individual believer and of the believer’s obligations to God, and his overall framework for religious liberty arguably differs from Locke in this important regard. But Madison’s understanding of religious liberty does not thereby necessitate religious exemptions, and  321 Origins, 1454-55.    181 Argument 4 clarifies that point. In the second case, McConnell suggests that Argument 4’s real objection to the assessment bill is that the bill’s exemptions for Quakers and Mennonites do not extend far enough. McConnell explains, “the passage can be read as objecting only to the fact that the bill singled out two sects by name, giving them a preference over others that might have similar scruples.” The implication is that Madison would much prefer an exemption regime extending to other sects with similar claims, needs, or objections. But this solution would extend the religious cognizance of the legislature in identifying specific exemptions to the enforcers of the law, who would have to discern where and how the law would be enforced. In other words, the alternative to specific legislative exemptions is an executive or judicial system of weighing a general framework for exemptions against particular cases. While a regime of this sort is clearly what McConnell is after, it is far too complicated to draw easily from Argument 4 or anything else written by Madison on the subject. It is furthermore difficult to understand how to square such a system with Argument 4’s understanding of equality or Argument 1’s understanding of non-cognizance. In the third and final case, McConnell suggests that Argument 4 is a particular objection to religious establishments, which may, in McConnell’s words, “generate a need for otherwise unnecessary exemptions.” McConnell does not tell us how the need for exemptions automatically flows from an establishment, and the relationship is unclear to this author. But even supposing that religious establishments are more prone to needing a regime of religious exemptions, the point is far from a plain reading of the original text. Quite a few of the fifteen arguments in the “Memorial” are focused on the particular and prudential circumstances of the assessment bill and contemporary Virginia, but Argument 4 has a much wider scope. It touches on the particulars of the assessment bill’s treatment of Quakers and Mennonites only to make a much broader point about equality and the principle of equality’s consequences for our    182 understanding of religious liberty and religious exemptions. Had Madison wanted to make a narrow point, he would likely have made it elsewhere, not alongside his expansive and principled arguments. McConnell is simply wrong and his great champion of religious liberty, James Madison, is no supporter of religious exemptions, at least not as we find him represented by his arguments in the “Memorial and Remonstrance.” Argument 5 is the final principled or general argument and the last argument in our discussion of Madison’s “Memorial.” The argument itself is quite short and requires little comment. It opposes the assessment bill on the grounds that the bill either elevates civil authority to the position of determining religious truth or permits the same to employ religion as a tool in service to civil purposes. The implication here is consistent with a broader theme throughout this chapter: civil authority is in a separate sphere from religious authority, and the former has very limited authority where the two spheres meet or overlap. In order for civil authority to control in the sphere of religion, it must have some clear civil purpose—but in the present case of an assessment bill, Madison is only able to identify illegitimate purposes. The bill is claiming authority to define religious belief, collect (mandatory) tithes, and distribute the assessed funds. The only civil grounds for such decisions are first that civil authority is best equipped to make such decisions or second that civil authority has a strong enough interest in their outcome to justify the intrusion. The first is tantamount to an epistemic claim over religious truth, and Madison knows that the idea is offensive to nearly everyone. The second is probably closer to what proponents of the bill intended—to encourage virtue in the people by encouraging religion—but Madison turns the idea around to demonstrate that it, too, is offensive. The religious believer is concerned with his duty to God, and for the state to establish religious policy    183 around mere good behavior is to put the very high in service to the fairly low, to mix sacred with profane. While Madison did not likely have exemptions in mind when he wrote Argument 5, his objection to using religion as an engine of social policy is apropos of modern arguments about religious exemptions. Going back to our framework of overlapping but separate spheres, we can see how the assessment bill used the beneficial social outcome of religious flourishing (a virtuous citizenry) to justify intervention into the religious sphere. The overall result would have been to enlarge the sphere of civil society at the expense of religion and religious liberty. The modern doctrine of exemptions has a similar result but comes from the other way round. By exempting particular religious believers, it blunts religious objection to increased civil authority, thereby allowing civil society to expand at the expense of religious liberty with the exception of those specifically exempted. Exemptions are like modern tax policy, allowing massive tax increases so long as the preferred few (or those most likely to object) get special carveouts and kickbacks. The intention of the carveouts—or exemptions—is not to serve the general rights and freedoms of everyone, but rather to pacify objections to the unrestrained growth of civil authority. In this sense, modern exemptions at both the judicial and legislative level use religion as an engine of social policy in contrast to Madison’s doctrine of religious non-cognizance.  Conclusion Both James Madison and Thomas Jefferson are important figures for understanding religious liberty at the time of the American Founding. Both were serious thinkers and political actors, and the two played an especially important role in transforming Virginia from an established church with penalties for religious dissenters to a state on the vanguard of religious    184 liberty. That they did so in the years immediately prior to the Constitutional Convention and the passage of the First Amendment lends their contributions an outsized impact on how future generations would think about the subject, especially because of the role that Madison would soon play in writing the Constitution and the Bill of Rights. Professor McConnell certainly thinks that Madison is the key to understanding the founding’s theory of religious liberty, and this author is generally inclined to agree—though not in the particulars of what that theory included. And McConnell is in good company, since so many other commentators on the subject have focused on Madison and Jefferson, almost to the exclusion of all others. We should recognize some limits to our inquiry, and to any conclusions we draw from this chapter’s evidence. The arguments over religious liberty in Virginia are instructive to understanding the First Amendment, but they are hardly definitive. The intent of the Free Exercise Clause must be what was intended by a majority of those in the First Congress, then by a majority of the Republic that ratified it. We ought not to automatically assume that Madison or Jefferson’s preferred gloss is the correct one or is otherwise representative of the original intent. And of course neither Jefferson’s Statute nor Madison’s “Memorial” were intended as a gloss on the Free Exercise Clause, which was not yet written. We should also remember that these documents were artifacts of a particular argument or arguments involving political coalitions and elected representatives. It is difficult to draw out many conclusions from that context, but we should notice, for example, that Jefferson’s argument in his Statute seems to reach further than the actual legislation, that the whole thing seems like a clever way to have Jefferson’s view of the subject codified in law behind a fairly short and simple rebuttal of the former assessment bill. At the very least, this clever trick is why we are still paying it mind more than two centuries later. We might also notice that Madison’s “Memorial” was not signed, was not intended to be    185 his final or most philosophical presentation of the subject, and was likely intended to rally religious believers—especially Baptists—to oppose the assessment bill. We have no reason to believe that Madison secretly thought otherwise than what was written in the “Memorial,” but we should not automatically prefer it to other things that Madison wrote on the topic. What we can conclude, however, is that Madison and Jefferson shared a fairly common view of religious liberty, but with several key points of difference. Both subscribe to the idea from Locke and others that religion and politics represent separate spheres and separate authorities. Both subscribed to the idea that religious liberty, at least with regard to belief, is a natural right that is unalienable by the political sovereign. In matters of religious practice, they both recognized the potential for significant conflict between these separate spheres and authorities. Jefferson’s solution is simple, if somewhat harsh: all belief is acceptable, but in the realm of action, his statute offers little protection aside from protections for speech. Madison’s solution is somewhat more complicated, but likely to promote a wider sphere of religious action: political authority should be non-cognizant of religious belief and practice, at least insofar as it is religiously inspired. Madison’s solution would also allow political authorities to prevent religious practice, but only insofar as those practices fell afoul of distinctly civil interests. No laws specifically targeting or promoting religion could be allowed in this arrangement, which we might characterize as “colorblind” among religious differences. Neither view is obviously more expansive than the narrow but deep view of religious liberty that have noted in prior chapters. Madison’s view would seem to provide definite protections for belief and worship; Jefferson’s view would protect belief without necessarily protecting worship. Madison’s view especially is suggestive of a wider sphere of religious protection—whatever might be contemplated in the    186 religious sphere, of which the political order remains “non-cognizant”—but it does not clearly offer any justiciable religious rights beyond belief and worship. Beyond the views of Jefferson and Madison, we have given particular attention to the views of John Leland, a contemporary itinerant Baptist preacher in Virginia. This attention was not due to any obvious influence that Leland held over his fellow religious believers, because the historical record provides no proof that he was a significant leader at that time. What the historical record does seem to indicate, however, is that Leland absorbed the ideas and arguments of Jefferson and Madison with regard to religious liberty. He may have shared them in Virginia during his tenure there, and he certainly became an evangelist for this view upon his return to New England, where he fought against the remaining religious establishment. His case at least suggests an interesting political and philosophical alliance between Jefferson and Madison’s more secular view of religious liberty and a growing religious cohort. The importance of Madison’s view of religious liberty will only grow in our next chapters, as we consider what he had to say on the topic in the Constitutional Convention, in the ratification debates, and in the First Congress. But the considerations of this chapter have primarily been framed by those that McConnell regarded as important: Madison as the hero of a bold and expansive right to religious liberty (to include a rationale for religious exemptions), Jefferson as the regressive figure who would only protect religious belief (but not action), and Leland as the political cheerleader who shared an expansive right to religious liberty (to include religious exemptions). What is evident, however, is that McConnell’s account of all of these is incorrect, at least as a matter of degree. Madison did have an expansive idea about religious liberty, but then Jefferson was equally regarded as a strong proponent for it. Jefferson’s views are not as expansive as Madison’s views, but neither of their theories admit an easy opening for a    187 right to religious exemption, especially judicially-enacted religious exemptions. Leland remains an interesting figure, though even he seems to have objected to religious exemptions. In short, while we have allowed McConnell to frame the inputs to the chapter, we have reached vastly different conclusions. The distance between our conclusions—which are adapted as closely as possible from the historical record—will continue to grow as we spend more time with primary sources in chapters 5 and beyond.       188 CHAPTER 5 THE CONSTITUTIONAL CONVENTION & RATIFICATION DEBATES  The Convention and Religious Liberty Delegates from each of the thirteen original states, excepting Rhode Island, gathered in summer 1787 in Philadelphia to consider revisions to the federal government formed under the Articles of Confederation. That government, formed less than a decade earlier, was widely regarded as a failure. The delegates who gathered in what would become known as the Constitutional Convention were prepared to consider major changes to the Articles, and several delegations arrived with proposals to completely replace (not merely amend) them. The delegates would argue through the heat of the summer before finally agreeing on a new constitution on September 17. With minimal amendments, the constitution created that summer is still the Constitution serving our republic some two hundred years later, and it provides the formal context in which religious liberty is litigated and legislated.  The Constitutional Convention, however, is not a great wealth of source material on the subject of religious liberty. The First Amendment, which is the primary focus of modern free exercise litigation, was obviously not part of the convention’s deliberations, but was rather added by the First Congress in 1789 and not formally adopted until ratification by two-thirds of the states in 1791. The convention’s sole contribution to the topic of religion and religious liberty is neatly captured in Article VI, Clause 3 of the Constitution: “no religious Test shall ever be required as a Qualification to any office or public Trust under the United States.” And while this clause offers plenty of meaning to unpack, it was given very little formal attention by the Convention and was adopted with little discussion, debate, or protest. In short, there might be    189 more to say about what was not said or legislated concerning religious liberty at the convention than what was said. But the dearth of references to religion and religious liberty easily allows for a thorough account of their treatment at the convention, and we will therefore begin accordingly. After considering all relevant references to religious made at the convention, we will turn to consider their intent, whether the original Constitution provided sufficient protection to religious liberty, why the Constitutional Convention did not provide a Bill of Rights, and ultimately what all of this might mean for our concern with judicially-enacted religious exemptions.  The unlikely hero of religious liberty at the Constitutional Convention was Charles Pinckney, a young delegate from South Carolina. The delegation from South Carolina also included Charles’s older cousin General Charles Cotesworth Pinckney, a point which can be somewhat confusing when reviewing the convention records. Charles Pinckney (our hero, not his cousin) was not the youngest delegate at the convention—that honor belongs to Jonathan Dayton—but at only 29 years old, Pinckney was certainly one of the youngest. He was also obviously very ambitious, having already served as a representative of South Carolina in the legislature established by the Articles of Confederation, and he would go on to serve as Governor, then as a US Senator and House Representative from his home state of South Carolina. We know that Pinckney arrived in Philadelphia early and had time to spare, or perhaps to prepare, prior to the convention’s formal start on May 25, 1787. We also know that Pinckney’s lodgings for the summer were shared by several other members of the convention, including James Madison, so it is tempting to speculate that Pinckney’s contributions to the Constitution and the convention more broadly were informed by conversations with his fellow lodgers. The historical record is silent here, however, and later history suggests that Pinckney    190 and Madison, despite being the two delegates most interested in the junction of religion and politics, did not count one another as friends.322  Pinckney’s initial contributions to the convention are unusually unclear. On May 29, one of the first formal days of debate and discussion, Pinckney offered a plan of government alongside the now better-known plans of government from Virginia and New Jersey.323 Pinckney’s plan was filed but not read aloud, nor does he appear to have been given time to deliver his prepared remarks. After the convention he published the prepared remarks, but probably with considerable changes.324 Meanwhile, his draft plan of government was lost. When the records of the convention were gathered some thirty years later to prepare for publication, Pinckney provided a freshly copied version that, while potentially borrowing from his original draft, cannot have been an accurate copy of the one presented on May 29, 1787.325 A likely conclusion is that Pinckney continued work on his draft throughout the convention and potentially even beyond it, capturing important ideas from the debate and incorporating them with his own. This conclusion would explain why much of the Pinckney Plan as we have it is prescient of significant ideas and compromises of the convention that had not been reached by the end of May. That Pinckney published his prepared remarks of May 29 shortly after the convention (almost certainly with modifications) further muddies the water. In all likelihood,  322 Marty D. Matthews, Forgotten Founder: The Life and Times of Charles Pinckney (Columbia, SC: University of South Carolina Press, 2004), 37. See also Madison’s correspondence in The Records of the Federal Convention of 1787, Vol. III, ed. Max Farrand (New Haven: Yale University Press, 1911), at 123, 131, 502-516. 323 The Records of the Federal Convention of 1787, Volume I, ed. Max Farrand (New Haven: Yale University Press, 1911), 16-17; also The Records of the Federal Convention of 1787, Volume III, 595. Pinckney’s biographer, Marty D. Matthews, credits him for actually delivering his remarks in late May alongside his prepared plan for government, but the records of the convention do not support this conclusion, nor does Matthews provide an alternative explanation (Matthews, 41-42). 324Records, Vol. III, 106ff. 325 Ibid., 595.    191 Pinckney made important contributions in the early days of the convention, but his own records are too unreliable to explain the exact nature of those contributions.  But why worry so much about what was or was not said and written in one of the first days of the Constitutional Convention? According to Pinckney’s draft plan for a federal government—the copy he provided much later—he arrived at the convention with very similar language to what was later adopted by the First Congress in the First Amendment. The language from his draft plan reads “The Legislature of the United States shall pass no Law on the subject of Religion….”326 While this language misses the explicit language of the First Amendment concerning an establishment of religion and the right of free exercise, it is very similar to the first clause that reads, “Congress shall make no law.” The coincidence is particularly notable because the language of “no law” does not occur in any of the state constitutions of the era (at least not in the sections concerning religious liberty; see chapter 3) and has no obvious precedent prior to the First Amendment. Even if Pinckney did arrive at the convention with this language, there is no clear link from Pinckney’s lost draft to the language considered by the First Congress. Pinckney would not serve the Congress until much later, nor did the South Carolina ratifying convention recommend a similar amendment.327  Probably the specific language of “no Law on the subject of Religion” was added to Pinckney’s draft as a response to the First Amendment, not as a forecast or projection of it. But  326 Ibid., 599. 327 Matthews makes no mention of Pinckney’s involvement in the South Carolina ratification, though his attendance is recorded and his speeches included in Elliot’s Debates. Religion was not a topic much discussed at the South Carolina convention, however, and the only related provision to be recommended by that state as a constitutional amendment was to add “other” between “no” and “religious” in the “no religious test clause.” Discussion on this particular provision is not included in Elliot’s Debates. See Matthews, 57-68; also, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, ed. Jonathan Elliot, 2nd Edition, Vol. I (Washington: Taylor & Maury, 1836), 325 and Vol. IV, 253-340 (hereafter “Elliot’s Debates”).    192 we know from Pinckney’s other contributions to the convention that religion was a particular concern of his and was probably his most original and lasting contribution to the Constitution. Max Farrand, editor of the definitive Records of the Federal Convention of 1787—a three-volume set that has been heavily consulted in preparing this chapter—has proposed a new version of Pinckney’s draft constitution that is consistent with our knowledge of Pinckney and the state of consensus in the earliest days of the convention.328 Farrand does not think it likely that the “no law” language was in Pinckney’s original draft. Farrand credits him, however, with a concern for several basic rights, including the writ of habeas corpus, trial by jury, freedom of the press, and the prevention of religious tests as a qualification for officeholders.329 All of these except freedom of the press would be included in the convention’s final draft of the Constitution, and Farrand is obviously looking ahead to Pinckney’s documented contributions to the debates later that summer. Whether or not Pinckney arrived at the convention with language intended to secure religious liberty, it obviously concerned him from early in the debates. On June 25 Pinckney delivered extensive prepared remarks concerning the formation of the upper house of the Legislature (the Senate) and the quality of the American people that the Constitution should ultimately be tailored to serve. Madison, who obtained Pinckney’s written remarks for his own notes, records Pinckney saying, Our true situation appears to me to be this.—a new extensive Country containing within itself the materials for forming a Government capable of extending to its citizens all the blessings of civil & religious liberty—capable of making them happy at home. This is the  328 Records, Vol. III, 602ff. 329 Ibid., 609.    193 great end of Republican Establishments.330  The phrase “blessings of liberty” would reappear as part of the Preamble to the Constitution, but the inclusion of religion in Pinckney’s “blessings of civil and religious liberty” was unique among convention records. The phrase was not original to Pinckney, however, and was a popular expression among generations of English Whigs from the Glorious Revolution onward.331 The phrase would remain popular in American usage, including in the well-known 1790 letter of the Hebrew congregation to George Washington.332 Several generations later it would find use in the mid-nineteenth century articles of association for this author’s alma mater, Hillsdale College.333  Pinckney’s reference to religious liberty stands out because it was not a subject much discussed at the convention. As will be discussed later, few fundamental rights were openly considered, at least in terms of formal guarantees or a bill of rights, so the shortage of conversation about religious liberty did not necessarily equate to a shortage of concern with the topic. But after potentially raising the point in his plan of government, then raising it as one of the fundamental purposes of the new government, Pinckney was finally responsible for introducing it into the Constitution in the form of a prohibition against religious tests for office. Pinckney first submitted the proposal on August 20 alongside a slate of other proposals that he offered without comment for committee consideration. Pinckney’s recommendations were received without discussion from the assembly and were unanimously referred to committee.334  330 Records, Vol. I, 402. 331 Blair Worden, “Oliver Cromwell and the Cause of Civil and Religious Liberty,” in England’s Wars of Religion, Revisited, ed. Charles Prior and Glenn Burgess (Burlington, VT: Ashgate Publishers, 2013), 231. 332 “Moses Seixas to George Washington,” August 17, 1790, Papers of George Washington, Presidential Series, Vol. 6 (Charlottesville: UP of Virginia, 1996) 286. 333 Hillsdale College Articles of Association, 1855, accessed on December 13, 2022, https://www.hillsdale.edu/about/history/founding-documents/. 334 Records, Vol. II, 334, 340-41.    194 What became of Pinckney’s list of proposals in committee is unclear, but on August 28 Pinckney appears to have lost patience with the committee review process and reintroduced one of his August 20 recommendations—a guarantee for the writ of habeas corpus—for consideration by the whole convention. The motion was well-received and easily passed with little discussion and a few changes to Pinckney’s original language.335 On August 30, Pinckney acted in similar fashion to reintroduce his August 20 recommendation for a prohibition against religious tests for office.336  The focus of debate on August 30 was far-ranging and would ultimately inform significant parts of Articles IV, V, and VI of the Constitution—concerning the addition of new states (IV), the ability of the Congress to amend the Constitution in a special convention (V), and finally the oath of office (VI). The “no religious test” language would be conjoined with the oath of office language in Article VI, which was already substantially written and agreed upon at a prior date. The substance of the provision at the start of the day was as follows: “The members of the Legislatures, and the Executive and Judicial officers of the United States, and of the several States, shall be bound by oath to support this Constitution.”337 To this language was added “or affirmation,” as in “bound by oath or affirmation,” thereby allowing those unable or unwilling to take an oath to serve as officeholders. While we have no record of any discussion on the topic—the convention records do not even tell us who recommended the change of language—we can easily infer that the change was made for religious reasons. As mentioned in chapter 3, many state constitutions included oath exemptions due to the prevalence of conscientious objections to  335 Ibid., 435, 438. 336 Ibid., 461, 468. 337 Ibid., 468, footnote 24.    195 oath-taking, especially by Quakers. This change was then reflected in all three instances of oaths in the Constitution, though no further debate or votes were recorded on the subject.338 Perhaps seizing on the animating idea behind the “or affirmation” language, Pinckney then used this occasion to reintroduce his language of “no religious test.” His specific language, which differed very slightly from the language he offered on August 20, was the language adopted directly into Article VI of the Constitution: “But no religious test shall ever be required as a qualification to any office or public trust under the authority of the United States.”339 Madison records that “Mr. Sherman thought it [the no religious test clause] unnecessary, the prevailing liberality being a sufficient security against such tests.”340 Excepting Roger Sherman’s comment, the motion received no further recorded discussion, and Madison notes that it received no spoken disagreement. The motion was approved by Gouverneur Morris and Charles Cotesworth Pinckney, then passed by a strong majority. Madison recorded approving votes from all states except North Carolina, which voted against the provision, and Maryland, which was divided. Farrand’s footnotes suggest that Connecticut’s vote was also divided.341 From August 30 onward, the “no religious test” language appears almost unchanged. Only the “authority” language—reducing the final phrase to “under the United States”—would be removed in the Committee on Style’s near-final version, presented on September 12, and maintained through the  338 Article I, Sec. 3, “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation”; Article II, Sec. 1, the Presidential Oath (or affirmation) of Office; Article VI, discussed above. 339 Records, Vol. II, 461, 468. 340 Ibid., 468. 341 Ibid., footnote 26.    196 final version of the Constitution.342 Convention records include no other instances of discussion on the topic.  Pinckney’s final contribution on the subject of religion came on September 14 at the very end of the convention. He and James Madison together brought a motion to include an express power allowing Congress “to establish an University, in which no preferences or distinctions should be allowed on account of religion.”343 The motion does not appear to have attracted much debate, but Gouverneur Morris thought it unnecessary on the grounds that Congress’s authority over the “seat of government” was sufficient to the purpose. The motion was voted down. Despite its short life at the convention, the motion for a non-religious and national university is interesting for several reasons. First, the creation of such a non-religious university was novel in the early republic, where all institutions of higher learning had been founded with clear religious commitments and purposes. Second, the effort to start a non-religious school would be a common project of Thomas Jefferson and James Madison more than twenty years later, ultimately resulting in the establishment of the University of Virginia. Third, it is evidence of common cause and perhaps common communication between James Madison and Charles Pinckney. As already mentioned, we know that the two men lodged in the same house during the convention. We also know that Pinckney would later pin his political career to the Jeffersonian-Republican party of Madison against the Federalist affiliation of members of his own family.344 Yet history records or seems to imply some bad blood or tension between these two men,  342 The “no religious test” language appears in drafts of the Constitution in Records, Vol II, on 579 and 603 before appearing in the final version of the Constitution on 663. 343 Ibid., 616. 344 “Charles Pinckney,” a biographical article provided by the National Park Service, accessed on December 15, 2022, https://www.nps.gov/chpi/learn/historyculture/charles-pinckney.htm.    197 especially concerning Pinckney’s draft constitution.345 But on this particular instance we see the two men agreeing to submit a motion that had not been previously discussed in those terms. Madison first proposed the idea of establishing a university on August 18, but the proposal appears to have died in committee. Just as the Convention was wrapping up—Friday, September 14 was the penultimate day of debate on the provisions of the Constitution, which would be effectively finished on Saturday and signed on Monday—Madison and Pinckney reintroduced the idea, but with the addition of language concerning “no preferences or distinctions…on account of religion.” The motion does not necessarily inform our understanding of the Constitution directly, but it is interesting to note that Pinckney appears to have been concerned about religion from the very beginning to the very end of the convention. That his final motion regarding religion should concern such a particular and isolated idea or project suggests that the Constitution satisfied his initial concerns, even as the subject remained on his mind.  The fact that Pinckney’s final motion at the convention concerning religion was shared with James Madison is quite fitting. The historical record does not tell us if Madison was directly involved in either Pinckney’s draft constitution or his “no religious test” language, but Madison’s political theory is easy to see in both. As discussed in chapter 4, Madison’s theory of religious liberty depends upon noncognizance of religion on the part of political institutions. Pinckney is consistent with the approach in each case: noncognizance concerning the laws in his draft constitution, noncognizance concerning elected officials in his contribution to Article VI, noncognizance concerning education in his university proposal. Without diminishing the  345 Matthews, Forgotten Founder, 37.    198 importance of Pinckney’s contribution to the convention, it is fitting to notice the influence of James Madison likely underlying it.  Madison was the only other participant of the convention recorded with express concerns about religion and religious liberty. Though his only formal motion concerning the subject is the motion for a secular university, his concern about religion is evident in some of his earliest speeches at the convention. On either June 4, June 6, or both (the record is not entirely clear) Madison addressed the Convention with concerns about faction, and he is explicit in mentioning religion as a source of faction. Though the ideas of “Federalist 10” are yet nascent in this speech, Madison is thinking about how to form the Republic to prevent the tyranny of one faction upon others. Madison’s record of the speech includes the following: All civilized Societies would be divided into different Sects, Factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed the manufacturing…the followers of this political leader or that political leader, the disciples of this religious sect or that religious sect. In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger.346  Character and conscience are insufficient protections in Madison’s account, and even “Religion itself may become a motive to persecution & oppression.” The only way to prevent majority tyranny is to “enlarge the sphere & thereby divide the community into so great a number of interests and parties….”347 Madison hopes that such an extended republic with a wide variety of factions—including religious factions—will be less likely to have powerful enough factions to control the whole. We see a similar concern from Madison again on June 28 in defense of the Virginia Plan. Here Madison argues that the diversity of interests between the larger states of  346 Records, vol. I, 135. 347 Ibid., 136.    199 Massachusetts, Pennsylvania, and Virginia—a diversity of interests that includes religious differences—provides a framework of rivalries that protects the interests of the smaller states.348  We will yet return to the arguments of Madison, which find their clearest expression in “Federalist 10” and “Federalist 51,” and which reprise and extend his arguments from the Constitutional Convention. Of note, however, is that the idea of orienting political faction against faction to create a sphere of liberty, the argument of “Federalist 10,” was already established in Madison’s mind and in the arguments of the convention, and, furthermore, those arguments included a concern for religion and religious liberty. Having presented both Madison and Pinckney’s arguments concerning religion at the Constitutional Convention, we have also now given account for the whole subject of religion and religious liberty as it was discussed at the convention and recorded in the notes. As suggested earlier, there is much to be said about what was not said at the convention, particularly concerning a bill of rights. To that subject we must now turn.  The Constitutional Convention and a Bill of Rights The formal proceedings of the Constitutional Convention included very little discussion, or at least recorded discussion, of a bill of rights. Several particular rights were included in the original Constitution, including the guarantee for the writs of habeas corpus proposed by Charles Pinckney and mentioned earlier. But these rights were never proposed as part of a broad series of enumerated rights or guarantees. The first and last formal discussion of a bill of rights occurred on September 12, just as the convention was wrapping up. Per Madison’s notes, Elbridge Gerry  348 Ibid., 446-50.    200 proposed the addition of a clause requiring juries for civil trials.349 George Mason replied by suggesting that a broader bill of rights be added as a preface to the entire Constitution. Gerry agreed and proposed that a committee be formed to write it. Mason seconded the motion. Roger Sherman disagreed on the grounds that “State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient….”350 Mason countered on the grounds that federal law would supersede state bills of rights. No further discussion on the matter was recorded. Madison’s records do include the vote tally, however, and every state except Massachusetts voted against the motion. Gerry’s own state of Massachusetts abstained. Gerry and Mason would both refuse to sign the Constitution, and both would argue against its ratification on the ground that, among other problems, the Constitution lacked a bill of rights. Such a briefly recorded discussion does not provide much context or explanation for the strength of both Gerry and Mason’s later opposition to the Constitution. The text from Madison’s notes—the only record of the conversation—is no longer than described above and has the sense of being an afterthought, not something presented after careful planning or a ripe topic of discussion. It is certainly possible that the record provides a false impression of a much longer discussion, or perhaps there was much additional discussion held behind the scenes. It is also possible and much more likely that Mason and Gerry’s concern grew considerably from September 12 onward. When recounting the matter to the ratification convention in Pennsylvania, James Wilson explained that a bill of rights “never struck the mind of any member in the late convention till…within three days of the dissolution of that body, and even then of so little account was the idea that it passed off in a short conversation, without introducing a formal  349 Records, Vol. II, 587-88. 350 Ibid.    201 debate or assuming the shape of a motion.”351 Wilson is obviously wrong in some of his particulars (both Madison’s notes and the Journal notes include record of a motion and a vote), but we have little reason to doubt his overall impression that a bill of rights was not an especially urgent or pressing matter for most of those in attendance at the convention. Looking backwards, this result may surprise us. Almost every state in 1787 included something like a bill of rights or at least an enumeration of basic rights in its constitution (see, for example, Figure 3.1); furthermore, the matter of a bill of rights quickly became a rallying cry for those opposed to the new constitution. Why then were the majority of convention delegates satisfied with a Constitution that did not include an enumerated list of essential rights? To begin answering why the convention did not prioritize a bill of rights, we should consider the background behind the convention, which was not originally called to draft a new constitution but rather to propose reforms to the existing Articles of Confederation. As their name suggests, the Articles provided for a federation of independent and sovereign states with little in the way of federated or federal powers and institutions. Under the Articles, individual rights were understood to be protected at the state level. While the Constitutional Convention quickly moved past mere amendment to the Articles, the scope and role of the federal government developed as an iterative process. How the new federal government would relate to individuals and to state law, constitutions, and declarations of rights was not immediately clear and may have remained unclear to some delegates until the close of the convention.  A public exchange between Oliver Ellsworth and Luther Martin after the convention is useful for illustrating how the matter was shifting during the convention. Ellsworth, a proponent  351 Records, Vol. III, 143.    202 of the new Constitution, praised Martin for originating what is now known as the federal supremacy clause:  This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or the law of any State to the contrary notwithstanding.352  Ellsworth then criticized Martin, an opponent of the new Constitution, for demanding a bill of rights when he had remained silent on the matter during the convention. Ellsworth’s point is essentially that Martin is a hypocrite: he originated the federal supremacy clause, so he must have been aware of the role and scope of federal authority regarding both individuals and states; if he therefore thought a federal bill of rights was necessary, he was obligated to say so. In his response, Martin reveals that his original language and intent were quite different than what would become the federal supremacy clause. His proposal was a response to another proposal that the federal government have the authority to nullify duly-enacted state laws—a power to which Martin strongly objected. His original proposal, which is substantiated by the convention records of July 17, reads as follows: [T]hat the legislative acts of the United States, made by virtue and in pursuance of the articles of the union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective states, so far as those acts or treaties shall relate to the said states or their citizens, and that the judiciaries of the several states shall be bound thereby in their decisions, any thing in the respective laws of the individual states to the contrary notwithstanding.353   352 Quoted from Records, Vol. III, 273. Also, Article VI of the US Constitution. 353 Records, Vol. III, 286-87; see also Records, Vol. II, 22 and 28-29 for the convention record of the same from July 17, 1787.    203 While Martin’s proposed language sounds like the federal supremacy clause, he explains contra Ellsworth that his intent was actually to head off federal supremacy by making it answerable to state constitutions and bills of rights, even while allowing it to trump mere state laws. By his telling, his proposal was offered before it became clear that federal courts would decide in cases of conflict between state and federal laws, and Martin hoped to clarify that such cases would be decided by state courts that bore an affinity for state constitutional law and would uphold it against offending federal statutes. While his provision does provide for the supremacy of federal law over state law, its silence about state constitutions was intended to be a hidden and powerful prerogative of state courts to enforce over federal law. The whole scheme may have been too clever by half, and obviously it got away from Martin to become the federal supremacy clause to which he strenuously objected. But the whole affair helps to illustrate how much was in flux throughout the convention. The Luther Martins of the world may have been able to look at the finished Constitution and see the need for a companion bill of rights, but the matter was not so simple amid the convention. Luther Martin himself explained that a bill of rights was not initially necessary for a government “formed upon principles truly federal.” But as it became clear that the federal or national government would be empowered over both states and individuals, “it renders a recognition and a stipulation in favour of the rights both of states and of men, not only proper, but in [his] opinion absolutely necessary.”354  Supposing that the formal participants of the Constitutional Convention had all agreed on the necessity of a Bill of Rights, however, we cannot assume that they would have shared a common purpose and understanding of such a document, nor that their understanding would be  354 Records, Vol. III, 290.    204 consistent with our own. In the twenty-first century, we tend to view bills of rights through the history and historical development of our own federal Bill of Rights, especially as it has come to be understood by the courts. The average modern American likely understands a bill of rights as a series of formal legal guarantees that can reliably be enforced by the courts against all kinds of government (and sometimes private) action. But the British legal tradition in the eighteenth century understood bills of rights quite differently. Starting with Magna Charta, a bill of rights was a series of promises or guarantees wrung from a sovereign executive as the condition of his continuing to rule. Magna Charta was signed by the king at the insistence of England’s lords. By the eighteenth century, the controlling English Bill of Rights had been passed at the insistence of Parliament as part of the Glorious Revolution of 1689, and it represented a series of checks upon the monarch. According to Professor Donald Lutz, the “Whig” theory of government, which developed in the American colonies out of the British constitutional tradition, regarded executives as the source of tyranny, and legislatures were understood as the necessary check upon executive tyranny.355 A bill of rights was a useful tool for restraining executive abuses, but it was more a product of the legislature than a check upon one, meaning that legislatures were often responsible for writing bills of rights, but bills of rights were not necessarily understood as a prohibition or limit on legislative action.356  The role of bills of rights with respect to state constitutions is a further complicating factor. Most of the states passed a bill of rights or something similar at around the same time that  355 Donald S. Lutz, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (Baton Rouge: Louisiana State UP, 1980), 60-64. 356 Marc Kruman cites Lutz and Gordon Wood to describe the “Whig” view of using bills of rights to restrain executive but not legislative authority, but he finds considerable evidence to the contrary in numerous founding-era state constitutions. See Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America (Chapel Hill, UNC Press, 1997), 37-49.    205 they adopted a constitution. Some of these bills of rights were included as part of their respective constitutions, but their actual legal consequences were unclear. They might, as we have come to understand bills of rights, represent a higher law to which all subsequent laws need adhere—provisions which are enforceable against the executive, the legislature, and the courts, usually through the mechanisms of the judicial system. They might, as the eighteenth-century Whig tradition suggested, represent a check on the executive function of government, but not the legislature. This interpretation seems especially plausible in situations where the state’s constitution and bill of rights were written by the legislature instead of a special convention requiring extraordinary passage or ratification.357 Alternatively, bills of rights as an addendum to state constitutions might have no legal ramifications in a strict sense. Several of the earliest state bills of rights rely on the language of “ought” rather than “shall,” and some scholars have concluded that such provisions were intended to establish the goals or philosophy of government rather than define strict outer boundaries.358 This does not mean that bills of rights were meaningless or wholly unenforceable, but that their primary intention was to establish moral obligation. We might think of them like the prefatory remarks on a contract (“Resolved…”) that explain the intent of the parties entering the contract, but without necessarily representing enforceable terms. Professor Lutz describes them as offering citizens “a vague yardstick against which to measure legislative law,” and further a kind of moral test to legislators, who took an oath to uphold them.359 We can see this confusion in direct evidence during the Virginia ratification debates, which became overwhelmingly concerned with the lack of a federal bill of  357 Lutz, 60-64; Kruman, 15-27. Notably, Kruman explains but then refutes the thesis from Lutz and Wood that constitutions were passed by legislatures as ordinary law and not treated as a limitation on state legislatures. 358 Lutz, 60-64; G. Alan Tarr, Understanding State Constitutions (Princeton: Princeton UP, 1998), 76-82; Muñoz, Religious Liberty and the American Founding, 31. 359 Lutz, 62.    206 rights in the original Constitution. Responding to calls for a bill of rights, Governor Edmund Randolph replied that, “Virginia has a bill of rights, but it is no part of her Constitution. By not saying whether it is paramount to the Constitution or not, it has left us in confusion.”360 His overall point was that the role of a bill of rights outside of the framework of a monarchy (per the tradition of British law) was not yet settled precedent across the states or even in the context of his own state.  The finished form of the federal Bill of Rights cuts through much of this confusion. While it was written by the First Congress, it was passed as formal amendment to the Constitution following the requisite and extra-congressional amendment process.361 It therefore is not a simple product of the legislature. It also explicitly establishes—in its very first words—limits on the legislature: “Congress shall make no law….” We can therefore easily understand that the federal Bill of Rights was intended as a check on more than simply the executive branch of government. Finally, the content, form, and timing of the Bill of Rights make clear that it is not simply an accessory statement of purpose to the larger Constitution. These conclusions do not settle all questions about the purpose or intent of the Bill of Rights, but they do demonstrate that it was unique from state precedents in some important ways. But none of these differences were discussed as a matter of public record at the Constitutional Convention—indeed, almost nothing was said about a bill of rights at the convention—and we cannot assume that delegates shared a common view on the subject.  360 “Elliot’s Debates,” Vol. III, 191. 361 The role of constitutional amendments against the original constitution was a matter of some conversation during the First Congress, however, especially as they were deliberating whether or not to pass amendments as formal edits to the original Constitution or merely in a supplementary form, as they later determined. See especially Annals of Congress, 734-744.    207  Aside from confusion about the scope of the Constitution or the purpose of a bill of rights, we should also notice the physical circumstances of the convention. At least part of the reason why the delegates at the Constitutional Convention opted not to adopt a bill of rights was because the convention needed to be brought to a conclusion. The convention formally began on May 25, but many of the delegates arrived in Philadelphia several weeks prior. By September 12, when a formal motion was introduced concerning a bill of rights, delegates were rounding out their fourth month, which meant four months of being away from homes, farms, businesses, families, and local politics. They were understandably tired and strongly desired to bring the convention to a successful close. Outside pressures must also have been immense. The original charge given to the convention was simply to reform the Articles of Confederation, not to write a new constitution, and furthermore the convention’s proceedings were kept secret. The public must have been anxiously awaiting some result, which they would not receive until the convention was brought to a formal close. In a letter to Thomas Jefferson dated October 24, 1787, James Madison explained, “Col. Mason left Philada. in exceeding ill humor indeed. A number of little circumstances arising in part from the impatience which prevailed towards the close of business conspired to whet his acrimony.”362 In the lines that follow, Madison makes clear that the lack of a bill of rights was one of George Mason’s principal objections, and it is reasonable for us to infer that the matter was not sufficiently resolved on account of the “impatience” that characterized the end of the convention. Ending the convention with impatience, however, does not mean that the final work of the convention was slipshod or incomplete. With more leisure the convention might have  362 Records, Vol. III, 135-36.    208 considered a bill of rights more fully, but it is not a foregone conclusion that they would have agreed to include one. Aside from the circumstances and confusions already mentioned, the records and recollections of the convention offer solid opposition to a bill of rights in two significant ways. First, at least some delegates opposed a bill of rights as a poor defense of individual liberty. Second, delegates believed—especially Madison—that the Constitution as it was framed did a better job defending individual rights than a mere bill of rights could.  Pennsylvania delegate James Wilson gave voice to the first category of opposition during his state’s ratification debates: [I]t appears from the example of other states, as well as from principle, that a bill of rights is neither an essential nor a necessary instrument in framing a system of government, since liberty may exist and be as well secured without it. But it was not only unnecessary, but on this occasion it was found impracticable—for who will be bold enough to undertake to enumerate all the rights of the people?—and when the attempt to enumerate them is made, it must be remembered that if the enumeration is not complete, everything not expressly mentioned will be presumed to be purposely omitted.363   Wilson’s point about “the example of other states” is slightly confusing in the narrow context included above. In the full text he indicates that quite a few of the contemporary state constitutions, including Virginia and New York, did not include a bill of rights, and that rights were nonetheless defended well in these states.364 The point is clarified by Governor Edmund Randolph, who made a similar point in the Virginia ratification debates when he observed that the Virginia Declaration of Rights was not obviously on an equal footing with the Virginia Constitution, and that this was a matter of some confusion when determining whether its  363 Ibid., 143-44. 364 For the full text, see Pennsylvania and the Federal Constitution, 1787-1788, eds. John Bach McMaster and Frederick D. Stone, (Pennsylvania: Inquirer printing, 1888), accessed via HathiTrust Digital Library, 252-254.    209 provisions were legally enforceable.365 Regardless of these details, Wilson’s argument is much stronger when he turns to principle and to the example of England. According to Wilson, bills of rights have grown out of the tradition of Magna Charta, which was effectively a deal to secure specific enumerated rights from an otherwise all-powerful sovereign. For Magna Charta, it was certainly the case that whatever rights were “not expressly mentioned” were “purposely omitted.” In this arrangement a bill of rights was effectively the only guarantee and mechanism for protecting individual rights because the people in need of protection were separate from the sovereign authority of the regime. The arrangement of Magna Charta was an agreement to recognize the sovereign’s authority so long as certain conditions were not breached. But this is not the situation of the young American states. Wilson further explained,  an attention to the situation of England will show that the conduct of that country in respect to bills of rights, cannot furnish an example to the inhabitants of the United States, who by the revolution have regained all their natural rights, and possess their liberty neither by grant nor contract.366   In the American circumstance, government is not founded as a bargain between a sovereign leviathan and ruled subjects, but rather an arrangement in which there are no subjects. The American people themselves are the sovereign authority, and the rights of the people are natural to their condition and character as human beings. The orientation of rights and government is opposite to that of Magna Charta and rule under the English crown. No longer do we need to enumerate the rights of the people because we have instead enumerated the powers of government—and whatever powers are not enumerated have been left to the people. Wilson’s point is therefore that adding a bill of rights changes the way that people think about the new  365 “Elliot’s Debates,” Vol. III, 191. 366 Pennsylvania and the Federal Constitution, 254.    210 government, regressing to the old model, looking to a government of limited rights instead of limited powers. You can have both if you manage to enumerate all the rights that should be protected in an arrangement of limited powers, but Wilson thought that doing so was very impractical. In his words, “who will be bold enough to undertake to enumerate all the rights of the people?” And, supposing that you tried, the resulting bill of rights would cut both ways, protecting whatever was enumerated and leaving all else subject to the whims of those holding the institutional controls.367 Within a government of limited powers, citizens with an enumerated bill of rights are potentially less free than in the same government without one.368 In the latter condition, the presumption is that a significant set of undefined yet broadly perceived and defended rights are inherent to each person unless the enumerated powers of government specifically say otherwise. James Wilson’s view was repeated by enough other members of the convention to suggest that the matter was commonly discussed and that his view was shared by at least a powerful minority of delegates. Speaking to the South Carolina ratifying convention, Charles Cotesworth Pinckney (cousin to Charles Pinckney) explained that the convention decided against an express declaration of liberty of the press after the matter “was fully debated, and the impropriety of saying any thing about it in the Constitution clearly evinced.”369 As C.C.  367 Speaking to the First Congress about constitutional amendments, Georgia Representative James Jackson explained the matter succinctly: “There is a maxim in law, and it will apply to bills of rights, that when you enumerate exceptions, the exceptions operate to the exclusion of all circumstances that are omitted; consequently, unless you except every right from the grant of power, those omitted are inferred to be resigned to the discretion of the Government.” Annals of Congress, 460. 368 See also Madison’s arguments in the Virginia ratifying convention: “[E]very thing not granted is reserved. This is obviously and self-evidently the case…. Can the general government exercise any power not delegated? If an enumeration be made of our rights, will it not be implied that every thing omitted is given to the general government?” [“Elliot’s Debates,” Vol. III, 620.] 369 Records, Vol. III, 256.    211 Pinckney understood it, the Constitution had given the federal government no powers except those “expressly granted,” and these did not include power over the press. Furthermore, to have mentioned a right to a free press “would perhaps furnish an argument, hereafter, that the general government had a right to exercise powers not expressly delegated to it.”370 Pinckney then immediately connected the argument with the matter of a bill of rights more broadly: “For the same reason we had no bill of rights inserted in our Constitution,” and furthermore, “by delegating express powers, we certainly reserve to ourselves every power and right not mentioned in the Constitution.”371 George Washington is on record agreeing with the same argument. In a letter to Lafayette, Washington explained that no one at the convention objected to the aims of those seeking a bill of rights, but because “the people evidently retained every thing which they did not in express terms give up,” a bill of rights was unnecessary.372 Washington even went so far as to credit James Wilson for more fully explaining the matter, indicating a common opinion that proceeded from the convention and continued into the state ratification debates. We finally see the argument against a bill of rights laid out by Alexander Hamilton in “Federalist 84.” Like Wilson, Hamilton explains that the history of bills of rights came from efforts to claw back rights from all-powerful kings and is therefore the wrong orientation for a government of enumerated powers and formed by the people. In a government “founded upon the power of the people and executed by their immediate representatives,” Hamilton explains that “the people surrender nothing; and as they retain everything they have no need of particular  370 Ibid. 371 Ibid. 372 Ibid., 298.    212 reservations.”373 Hamilton regards the Preamble to the Constitution as a better defense than any bill of rights because it clarifies by whom and for whom the institutions of government were formed. Like both James Wilson and Charles Cotesworth Pinckney, Hamilton expresses concern that a bill of rights might actually invite abuses into a government of enumerated powers: a bill of rights “would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”374 Hamilton clarifies that a bill of rights would not provide that power, but it would invite a reorientation to how we think about individual rights and government powers. As already mentioned, the Constitution was intended to open a much wider sphere of rights by enumerating the powers of government and leaving all else to the people and the states. By also enumerating individual rights, “Federalist 84” suggests that a bill of rights would invite us to expand government powers until reaching those outer boundaries rather than maintaining a regime of limited powers. But “Federalist 84” does more than simply repeat arguments from Wilson and C.C. Pinckney. Hamilton goes two steps further, first to denigrate bills of rights as mere parchment barriers, and then to claim that the Constitution already has the important features of a bill of rights and effectively both replaces and supersedes one. For the first of these steps, Hamilton reflects upon the difficulty inherent in defending freedom of the press, though many other rights or liberties could furnish a like example. Liberty of the press is not a right explicitly mentioned in the New York Constitution of 1777, which was the controlling state constitution where  373 Alexander Hamilton, “Federalist 84,” The Federalist Papers, ed. Clinton Rossiter (New York: Signet Classics, 1999), 512. 374 Ibid., 513.    213 “Federalist 84” was first published, though we are not led to believe that this oversight has left the press at great risk in New York. And even supposing that the press was formally protected in New York as it was by several other state constitutions, it would still present a problem of interpretation. Does freedom of the press mean that no limitations can be placed upon the press? Certainly not. As constitutional law has developed over the subsequent two centuries, we have developed a general understanding of time, place, and manner restrictions that can apply to all kinds of speech, including freedom of the press. But these restrictions can easily be used to impede the fundamental freedom that a particular bill of rights set out to protect, and only careful judgment can navigate between the opposing needs of order and liberty. Hamilton specifically focused on taxation, arguing that duties laid against press publications are not, in principle, violations of freedom of the press. Newspapers are taxed in England, yet the press there is still regarded as being free. “And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend upon legislative discretion, regulated by public opinion.”375 According to Hamilton, therefore, many of the time, place, and manner restrictions we might place upon fundamental rights are not, in principle, a violation of the right; in practice, however, they certainly can become violations of fundamental rights. Determining practice that is consistent with the principles of liberty requires discretion and deliberation. But behind all of that sits the will of the people, and the people are equal parts problem and solution. The real trouble is not to determine which rights ought to be enumerated and defended, but rather how to protect those rights against the will of the majority. Simply ratifying a bill of rights does not solve this problem, and Hamilton believes that the new Constitution offers a better solution.  375 Ibid., 514 (footnote).    214 When Hamilton says that the Constitution is a bill of rights already, he means it in two senses. In the first sense, the Constitution is a bill of rights because it identifies certain privileges and immunities of citizenship. The Preamble, for instance, says much about the role of the citizen (“we the people”) and the limits of government (“to form a more perfect union…”). Furthermore, the text contains various requirements and guarantees that protect individual liberty—e.g., provisions requiring jury trial in criminal cases and defending writs of habeas corpus. Because it fulfills some of the basic functions of a bill of rights, the Constitution effectively serves as one. In Hamilton’s words, “Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention.”376 But Hamilton also means that the Constitution is a bill of rights because it has replaced the need for one. It has perfected the form by breaking the paradigm, by providing a better way of defending the minority from abuses of government power. To understand and appreciate this point, however, we must turn to the broader scope of the Federalist Papers, and especially to the political theory of “Federalist 10” and “Federalist 51.”  Federalist 10 and Federalist 51 as a New Bill of Rights “Federalist 10” and “Federalist 51” are key to understanding the theory of the new Constitution and how it was designed to protect individual rights. “Federalist 10” explains the causes of faction and how republican government—particularly the republican government contemplated by the new Constitution—mitigates and controls the worst effects of faction, which  376 Ibid., 515.    215 consistently lead to the violation of minority rights by a politically-motivated majority.377 As Madison explains in that essay, there are theoretically two ways to solve the problem of faction: to eliminate its causes or to control its effects. But eliminating the causes of faction would either require the elimination of liberty or the elimination of the unique and varied interests arising from men’s individual circumstances and abilities. You can eliminate faction if no one is free or if everyone has exactly the same interests; either way, removing the causes of faction can only be accomplished by unspeakable tyranny. Madison considers, for example, how different abilities among men lead them to possess different kinds and amounts of property, and this in turn leads to different political interests. Karl Marx would famously make a similar observation, then use this observation as the basis for his whole political theory. Marx, too, saw the inherent political problem that naturally grows out of private industry and private property, but Marx’s solution was to eliminate the problem by socializing all industry and property. There can be no “rich interests” and “poor interests” if there are no rich and poor. Madison, however, sees that Marx’s cure is worse than the disease—and worse still, it is no cure at all because it misses the wider variety of factional human interests beyond mere property.  Because controlling the causes of faction is impossible (or at least very undesirable), Madison instead looks to control the effects of faction.378 He begins by ruling out three possibilities: enlightened statesmen, morality, and religion. None of these forces alone or taken together is sufficient to control the negative effects of faction. Enlightened statesmen cannot be counted upon at all times, nor is it reasonable to think that even they will be able to connect both  377 James Madison, “Federalist 10,” from The Federalist Papers, ed. Clinton Rossiter (New York: Signet Classics, 1999), 71-79. 378 Ibid., 75.    216 the long- and short-term interests of the majority faction with the cause of justice and the defense of natural and civil rights. Morality and religion are equally impotent. While they might be helpful guides and useful for establishing good mores, they tend to be weak barriers. When we raise our view from the individual case to consider the behavior of a group, they lose all efficacy as barriers and may even become justifications for vice and factional bigotry. The problem of faction is akin to the problem of original sin: religion and morality might help to temper and direct it, but they cannot stop it. And worse yet, both religion and morality are oft associated with institutions that come to represent factional interests. It is easy enough to see that churches can become factions, and Madison does not shy away from describing religion as an important source of faction. And morality is caught up in law and justice and the various institutions that write law and enact justice, but these are the very institutions that need to be protected or immunized against the excesses of a willful majority. To the seemingly intractable problem of faction, “Federalist 10” offers two related solutions. First, government should be organized and led under a system of representation. The process of electing representatives is a refining process that privileges certain talents and capabilities over the mass of mankind. Done well, elected representatives will exemplify patriotism, love of justice, and a keener understanding of the public good. But there remains the threat that elected representatives will lean the other way, that the refining process of election will instead raise “Men of factious tempers, of local prejudices, or of sinister designs.”379 To encourage the former qualities and discourage the latter qualities, Madison turns to his second solution, that republican government should involve a large number of citizens, preferably spread  379 Ibid., 77.    217 across a large extent of territory. This solution is directly contrary to most prior political theories, which regarded only small republics as being viable. Against the conventional wisdom, Madison recognizes that small republics are likely to experience significant turmoil from the parochial interests of their citizens. Expand the republic and these parochial interests remain, but the ability of any one faction to gain a majority and tyrannize over others becomes increasingly more difficult. By expanding the number and type of people, a large republic balances faction against faction, preventing any single faction from becoming a majority. This does not cure the inherent problem or source of faction, but it does significantly mitigate its negative effects. It furthermore changes the scope of representation, requiring representatives of ever larger numbers of people to reflect a broad swathe of smaller interests. This arrangement does not guarantee the election of virtuous men, but the larger electorate and commensurately higher exposure of elected representatives acts as a filter to sift out vice and reward virtue.  Madison is quick to admit that the ratio of representatives to the electorate is a prudential balance, “a mean, on both sides of which inconveniences will be found to lie.”380 We cannot infinitely expand the electorate or shrink the class of representatives on the logic that fewer representatives and a larger electorate will remove all factional ties from elected officers and raise only the most excellent to public office. Elected officials must still have knowledge of and attachment to the specific needs and way of life of the citizens that they represent—just not so close an attachment that representatives become unable to comprehend the broader public good. And local problems will still, in the main, need to be handled at a local level. The arrangement of “Federalist 10,” with a federal or nationwide system of representative government, has become  380 Ibid.    218 the universal norm, so we must remind ourselves of how novel this argument must have sounded to Madison’s contemporaries. Earlier political theorists had believed that republics must be small in size and narrow in interest. Madison believed that idea to be exactly backwards—that the size and variety of interests across the new republic of the United States was actually its strength, at least when properly organized. “Federalist 51” picks up a similar question but extends the answer into the framework of institutions and offices prescribed by the new Constitution. In “Federalist 51,” Madison is not merely concerned with faction, but with the kind of institutional faction common to departments of government. How do you keep a powerful executive or legislature or court from reaching beyond the prescribed limits of its power? How do you keep departments of government from conspiring together to enlarge their powers or to control other departments? Madison does not promise to explain the solution systematically, but he does identify a variety of solutions in the arrangement of the new Constitution.381 First, each department of government should have a will of its own. We can understand “will” here in the sense of purpose, that each department must serve a unique function, and on the fundamental level that these are executive, legislative, or judicial. But we should also understand “will” in terms of an independent charge, that the “will” behind each department comes from the authority of the people, not from the authority of a different department. It might be the case that courts are arranged and financed by an act of the legislature, but the judicial branch is not thereby a derivative creature of the legislature. Furthermore, while certain connections are necessary, we must ensure that the salaries (Madison uses the word “emoluments”) due to a particular department are not easily controlled by another  381 Ibid., “Federalist 51,” 317-22.    219 department.382 Legislatures should not control judges, for example, by having an easy means to withhold their salaries.  Second, each department should be invested with institutional prerogative. Each department should have built-in protections from the others and the institutional factions of each department ought to counter each other, to cancel one another out in a way that controls the power and checks the growth of government. Here Madison employs his famous formulation that “Ambition must be made to counteract ambition,” which immediately follows his observation that “the provision for defense must…be made commensurate to the danger of the attack.”383 The attack he has in mind is an internal one: ambitious men will bend the powers of government departments to their own designs and expand the powers of government beyond the limits of the Constitution. To prevent that, you must counter their attempts with the same ambition in other men in other departments, altogether pushing against one another in a manner that provides balance to the whole arrangement. To borrow a metaphor, they are like the stones in an archway, pushing down and against one another to produce both a safe passageway below and a strong foundation for the edifice above. Madison’s third observation is that balance between the departments of government requires attention to their unique strengths and particularities, especially in the case of the legislature.384 The dominant department in a republic is the legislature, and it will easily tyrannize over the others. To prevent this, the legislature should be partitioned into separate branches—as we see in the Constitutional structure of bicameralism—and those branches should  382 Ibid., 318. 383 Ibid., 319. 384 Ibid., 319-20.    220 be arranged separately to discourage easy collusion between them. While both legislative houses should represent the people, the modes of their election and the manner of their work should be different. Furthermore, Madison argues that an equal balance between the relatively weaker executive and the relatively stronger legislature requires the executive to possess veto power. A complete veto seems like the obvious choice, but the partial veto power contained in the Constitution provides a more prudent tool, one that is more likely to receive use but less likely to be abused. The Constitution’s executive veto over Congress is calibrated to provide balance between the ambition of both branches of government. In the conclusion to “Federalist 51,” Madison mentions two key additional checks on the power of government and its individual departments. The first of these is federalism, which means that power is not only separated into different departments, but into separate and overlapping jurisdictions as well. Just as the ambition of the executive and the legislative branches will keep both in check, the ambition of the state and federal governments will provide balance and limitation to each. In Madison’s words, “The different governments will control each other, at the same time that each will be controlled by itself.”385 The second and final check is a reprise of “Federalist 10”: Madison reminds us of the problem of faction more generally—the sort of interest that can align multiple departments or jurisdictions of government in violation of the rights and liberties of a minority—then finds that the best remedy is a multiplicity of factions. Whilst all authority in [the federal republic of the United States] will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little  385 Ibid., 320.    221 danger from interested combinations of the majority.386  The solution of “Federalist 10” and of the final pages of “Federalist 51” offers a real solution to the problem of parochial factions by diluting them with other parochial factions, such that each loses the ability to rule in favor of narrow interests. It also works by changing the mentality of each interest, which comes to recognize itself as a minority interest (because nearly all interests are now minority interests), and one that could easily be swept aside by a majority that bears no regard for minority rights. In this sense each small faction becomes a partisan for protecting the rights of minorities. Defense of the abstract “minority party” thereby becomes a legitimate majority position. Fearing that he might be stripped of his own rights, each man becomes an earnest defender of the rights of every other man.  What remains to be discussed is how the prior pages’ discussion of faction, the defense of minority parties, and the Constitution as an improved bill of rights bears on the subject of religion. Given modern treatment of religious liberty, especially under the Sherbert or RFRA framework, we might expect to find religion treated as a unique case, as different than the political scrum of ambition against ambition and faction against faction, but this is not the case in The Federalist Papers. In the sentences immediately following the above block quote (in the previous paragraph) from “Federalist 51,” Madison addresses religion directly:  In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects….387   386 Ibid., 321. 387 Ibid., 321.    222 The orientation of interests and sects in this example is quite telling. Religion is not simply an example of faction (though it is that), religion is the archetypical interest, the fundamental form of faction that illustrates the problem and the solution. Want liberty? Gather enough unique and disagreeable partisans about the nature of God, the most fundamental being (or absence) in the universe, and then arrange them in institutions that maintain a constructive tension between their differences. “Federalist 51” is not alone in its treatment of religion as faction. “Federalist 10” makes a very similar comparison: “A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source.”388 Once again, religion is described in the same terms as a political faction, consistent with both the problem and Madison’s resolution of the problem through a dilution of factional interests. Altogether The Federalist Papers include twelve references to religion, with three of those references in “Federalist 10” and one in “Federalist 51.” Of the remaining eight references, five deal with religion in a political context that suggests factiousness, meaning that more than two-thirds of the references to religion occur in a context focused on faction.389 Madison is responsible for eight of the twelve references to religion, and seven of his references are in the context of faction; the sole exception occurs in “Federalist 18,” which Madison co-authored with Hamilton, and which observes the religious authority of the ancient Greek Amphictyonic council without particular comment.390 In contrast, Madison also co-authored “Federalist 19” with  388 Ibid., “Federalist 10,” 79. 389 See “Federalist 1,” 29 (Hamilton); “Federalist 2,” 32 (Jay); “Federalist 5,” 44 (Jay); “Federalist 10,” 73, 75, 79 (Madison); “Federalist 18,” 118 (Madison with Hamilton); “Federalist 19,” 129 (Madison with Hamilton); “Federalist 31,” 190 (Hamilton); “Federalist 51,” 321 (Madison); “Federalist 52,” 324 (Madison); “Federalist 57,” 349 (Madison). 390 “Federalist 18,” 118    223 Hamilton, and there he relates the history of confederacy between various Swiss cantons that were ultimately severed by “controversies on the subject of religion, which in three instances have kindled violent and bloody contests.”391 None of the Federalist papers deal exclusively with religious liberty, at least not as a concern separate from the political question of religious faction, but this should not surprise us. As we have already seen in “Federalist 84,” Hamilton regards the new constitution as an improvement on the bills of rights that might establish parchment barriers around religious liberty, and “Federalist 10” and “Federalist 51” explain just how that arrangement is intended to work. John Jay does offer a fine and useful distinction from Madison’s arguments of “Federalist 10” and “Federalist 51” in “Federalist 2.” In contrast to Madison’s call for a multiplicity of sects, Jay includes the observation that “Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government….”392 The implication of “Federalist 2” is that the faction arguments of the later essays do have limits. Even among different factions, there must be some common understanding of identity and unity to bind the people together. On the religious front, America seems to be uniquely situated in having many sects but one religion. The tension of this fundamental unity and disunity creates the circumstances in which individual liberty can thrive and find institutional protection.  “Federalist 52” and “Federalist 57” bring us back to the Constitution’s specific institutional protection for religion by reminding readers that the new Constitution prevents any religious tests for office holders. “Federalist 57” asks, “Who are to be the objects of popular  391 “Federalist 19,” 129. 392 “Federalist 2,” 32.    224 choice” for elected office? Madison then immediately answers, “Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people.”393 Once again, we see religion in the context of faction, or the kinds of things like wealth, position, or birth that tend to create political divisions. In similar fashion, “Federalist 52” applauds the candidate of “merit,” and adds that representatives can be drawn from a wide variety of factional interests, to include both youth and old age, native-born and immigrant, rich and poor, and “any particular profession of religious faith.”394 While the Article VI prohibition on religious tests is not specifically mentioned in either case (or anywhere in The Federalist Papers), it is implied in both. Because the new Constitution forbids religious tests for office, Madison can confidently say that religion will not be a barrier to elected office in the new government. Moreover, in the same way that the new Constitution aims to balance the factions of rich, poor, young, old, etc., the prohibition on religious tests helps to ensure the same balance among religious factions. Taken in the broader context of The Federalist Papers, the prohibition against religious tests for office should be seen as a very important check against the excesses of religious faction. Taken together with the institutional protections of the Constitution that allow the people to control the government and the government to control itself, Madison believes that the no-religious-test clause is both an improvement and a replacement to the religious liberty guarantee of a bill of rights. This last point is especially important: the implication of the religious test ban in “Federalist 52” and “Federalist 57” in the context of other factional interests  393 “Federalist 57,” 349. Emphasis added. 394 “Federalist 52,” 324.    225 demonstrates its consistency with the factional problems and solutions of “Federalist 10” and “Federalist 51.”  Further Considerations on Article VI The Article VI ban on religious tests for office is an appropriate topic for the penultimate section of our chapter on the Constitutional text, convention, and ratification. It is the only explicit reference to religion or religious liberty in the original Constitution.395 The clause was proposed by the member of the Convention (Charles Pinckney) who expressed the most concern for religious liberty. The clause fits very well into Madison’s scheme of a limited government that is self-limiting, a government in which ambition checks ambition and counterweighted institutions are preferred to parchment barriers. What is surprising, however, is how the religious test ban has been overlooked in nearly all of the relevant literature and judicial opinions.396 Before there was a First Amendment, Madison seems to have regarded the terms of the Constitution—including its religious liberty protections, an area of considerable past interest to him—as an improvement on any then-existing bill of rights. Yet our current mountain of First Amendment case law and legal scholarship is almost silent on the topic. One important exception  395 Notably, there may be two implicit references to religion which we have not considered here. First, Article I, Section 7 reads, “If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law….” The reference to “Sundays excepted” seems to be an implicit reference to the Christian sabbath. Second, the final and signatory section notes the date as “in the Year of our Lord one thousand seven hundred and Eighty seven,” with “our Lord” a reference to the Christian God. 396 The exception that proves the rule is Girouard v. United States, 328 US 61 (1946), a case that struck down a Congressional requirement that foreigners must be willing to bear arms on behalf of their adopted country as a condition of being admitted to U.S. citizenship. The case concerned a Seventh Day Adventist who sought U.S. citizenship but was unwilling to serve in a combatant role on account of his pacificist faith. In a single reference that offers little by way of interpretation, the court notes that Article VI, which prohibits religious tests, does not make willingness towards military service a condition of holding office, and “it is hard to believe that one need forsake his religious scruples to become a citizen but not to sit in the high councils of state.”    226 is Professor Gerard Bradley. Bradley similarly remarks on the dearth of scholarly interest in the Article VI ban on religious tests for office:  Neither court nor commentator has shown any interest in it as a clue to the Constitution’s “philosophy” of religion. The absence of any judicial opinions actually resting on article VI—there are indeed none—is no excuse, for there are no cases construing Madison’s “Memorial and Remonstrance” either. Judges and scholars, however, are still infatuated with it.397  The situation has not changed much in the three decades since Bradley wrote those words. (Regarding infatuation with Madison’s “Memorial and Remonstrance,” this author is guilty as charged.) But Bradley has sought to rectify the situation, at least for his own part, and his historical analysis of the Constitution’s ban on religious tests raises several observations and conclusions worth our consideration.  First, Bradley points out that Article VI’s prohibition on religious tests is very different from what many of its proponents advocated for in their own states.  This “opposition” to religious tests [at the Constitutional Convention] included George Read, responsible for the test clauses in the 1776 Delaware Constitution, and probably Delawareans Richard Bassett (who assented to tests in that Convention) and John Dickinson (who had earlier written to Read favoring a general assessment for Christian teachers). New Hampshire and Massachusetts offered no objection, and the Bay State representation included Rufus King and Elbridge Gerry, both clearly committed in their long public careers to state sustenance of religion. The New Hampshire delegates were Federalists John Langdon and Nicholas Gilman, whose political cohort enthusiastically supported the New Hampshire state constitution’s limit of public office to Protestants. Georgia’s Abraham Baldwin voted for article VI despite his sponsorship of the Georgia General Assessment Regulation, and his authorship of laws creating the State University with a Board of Trustees limited to Christians. George Washington supported both article VI and the Virginia General Assessment, as did fellow Virginia delegate Edmund Randolph, who was later Washington’s Attorney General.   397 Bradley, “The No Religious Test Clause,” 677-78.    227 Bradley’s litany continues, and in total indicts at least six states and their convention delegates for favoring local legislation that instituted religious tests or otherwise promoted a religious establishment. In short, many of those present at the Constitutional Convention appear to have wanted a provision at the Federal level that they openly opposed at the local level. What is more, the example of these convention delegates was not unique or unusual. Their opinions about religion broadly represented the popular opinions of their own time, including a strong conviction that elected positions should be limited to Christians and more specifically to Protestants. The Constitutional Convention did not represent a great change of opinion on this front—it neither changed the opinion of delegates nor the opinion of the general populace, at least regarding state-level religious tests for office. The challenge for us as observers is not to account for a sea change in public opinion, but rather to explain how founding-era Americans simultaneously believed that the federal government should ban religious tests for office while state and local governments should continue to use them.  Second, Bradley explains that the religious oaths used at the state level rarely kept anyone from office. Most of the states had religious tests, and the majority of these limited officeholding to Protestants. Virginia was a rare exception and offered no religious requirement for officeholders, though it still had statutes that criminalized the public utterance of unorthodox religious views, so non-Protestants were likely to be quiet about their beliefs.398 What we tend to forget from a modern perspective, however, is how few people were actually implicated by these laws at the time of the Founding. Surely Jefferson and Madison had unorthodox religious views—and we know that Jefferson’s views were a political liability in his 1800 presidential  398 Ibid., 683.    228 campaign—but there is no record of religious tests or oaths keeping such men from public office. The threats identified implicitly by such tests were basically Roman Catholics (at least in some states), Jews, Muslims, and atheists. The last two of these categories were essentially unheard of in eighteenth-century America, even if “atheist” was used as a popular boogeyman.399 The first two categories were extant, but in such small numbers as barely to represent a political force. Bradley accounts for about four million people living in the early American states. Of those four million, estimates put the number of Jews at about two thousand and Roman Catholics at about ten thousand—so about 1/20 of 1% for the former and ¼ of 1% for the latter.400 Even without religious tests, it is hard to imagine that many from these fringe populations would have been elected to high public office, especially if they were regarded as a religious threat.401 Bradley therefore concludes that religious tests were established, not to keep anyone out of office, but rather to establish community values and mores.402 They were an affirmation of the beliefs already held in common, not a true barrier to political service, even for Jews, Roman Catholics, and unorthodox Protestants.  Third, Bradley notes the considerable opposition from Anti-Federalists to the no-test clause and the treatment of religion in the Constitution more generally. The latter point follows easily from Bradley’s prior observation that the Protestant religion was regarded as a common value and important social more, thus making its absence in the new Constitution all the more notable. Whereas the Declaration of Independence made several references to God and most of  399 See, for example, ibid at 696, and James Turner, Without God Without Creed: The Origins of Unbelief in America (Baltimore: Johns Hopkins University Press, 1985), 44. 400 Bradley, “No Religious Test Clause,” 686. 401 Bradley notes (at 715) that at least three Catholics were elected to the First Congress. While Bradley does not make the point, such a high number of Roman Catholics should surprise us, since they represented less than 1% of the total population and more than 3% of the total representatives in the House and Senate. 402 Bradley, “No Religious Test Clause,” 687.    229 the state governments affirmed Christianity, at least insofar as they included religious oaths of office or guarantees of religious liberty to Christians, the new Constitution included no references to God—outside of its date reference “in the Year of our Lord”—and only one small reference to religion.403 The lone reference to religion was not an affirmation of the religion held in common, but rather a hindrance to religious establishment of any kind. Antifederalists therefore seized onto the religious test ban as a mechanism whereby a “Turk, a Jew, a Rom[an] Catholic, and what is worse than all, a Universal[ist] may be President of the United States.”404 Bradley notes especially the hostility around Roman Catholics and the Antifederalist argument that Article VI might allow the Pope to ascend to the American presidency.405 The result was an environment in which Federalists were forced to argue on behalf of the Article VI religious test ban and clarify why it was the right approach for maintaining religious practice and religious liberty across the new federal government. Within this context Bradley situates the arguments of “Federalist 10” in much the same manner as we have already considered them. He aptly identifies Madison’s formulation of faction against faction as a “perpetual motion machine—one that yielded a raucous but just equilibrium once the contending forces of sectarian ambition were unleashed.”406 Bradley also takes the argument one historical step further by connecting it to the arguments of the ratification debates, and his analysis merits our consideration.  “Federalist 10” was obviously a creature of the ratification debates, and Bradley sees it as the seminal argument that informed other Federalists and ultimately put Article VI in an acceptable light to state ratifiers. But beyond “Federalist 10,” Bradley traces an interesting  403 See footnote 485 on page 232. 404 Ibid., 696, quoting from “Letter of Sullivan to Belknap on February 26, 1788,” in Life and Letters of Paine Wingate, ed. Charles E.L. Wingate (Medford, MA: self-published, 1930), 487. Brackets added by Bradley. 405 Bradley, “No Religious Test Clause,” 700. 406 Ibid., 703-706, quoted at 706.    230 narrative arc of arguments made by Federalists in favor of the ban on religious tests. The arguments began, at least in his telling, from the position that religious tests were connected to tyranny. Alternating between lectures on world history and guided tours of the late eighteenth-century globe, federalist lectors hailed the demise of religious tests—“that grand engine of persecution in every tyrant’s hand”—as a triumph of the light of American freedom over the darkness which haunted mankind through the ages.407  The trouble with these bold claims was that religious tests were still the norm in nearly every state, were basically supported by the people, and in many cases had been written by the same leaders involved in the state ratification debates. The people could see easily enough that their own states did not represent a tyranny—and certainly not a religious tyranny—so religious tests could not be as bad as Federalists now advertised. Federalists were therefore obligated to lower their reach. They in turn came to focus on Article VI for guaranteeing sect equality and for preventing a nationwide establishment of religion.408 These objectives are easily consistent with the argument of “Federalist 10” and “Federalist 51.” They also respond to the concern of Antifederalists that Article VI and the new Constitution provided an opportunity for a Muslim, Jew, Roman Catholic, or Universalist to ascend to the Presidency: such a threat is possible (if not plausible in 1780s America), but Article VI has removed its teeth. The real fear is for one’s own belief and welfare, fear of an order that might strip some citizens of their religious liberties or establish one religion over and above the others. But to do that successfully, completely, or permanently would require supporting religious tests for office, which Article VI prohibits. Against a mere guarantee of religious liberty, Article VI contains within itself the mechanism of  407 Ibid., 707. 408 Ibid., 709.    231 its own enforcement, whereby jealousy and factiousness among religious groups will prevent any one group from asserting a federal establishment or barring the rights of others. The religious test ban was therefore finally explained as a combination between a defense of the status quo—an allowance that state establishments could stay but would not lead to federal establishments—a check on the worst excesses of religious tyranny, and a solution that would work of itself.  Bradley makes much of Article VI as an elegant solution to the problems of religion and religious liberty. Its primary virtue in his telling is the extent to which the provision has been effective without requiring further input, legislation, or litigation. Rather, the long judicial vacation here testifies that Congress had abided the pluralistic settlement. There are no cases, not because the first amendment has been drafted to invalidate tests, for there have been no tests. Since the very first Congress convened in 1789 with at least three Roman Catholic members, the machine of sectarian jealousies has worked. Even when Congress—and the people—might have wanted to exclude undesirables like Catholics and Mormons from office, they have not. The remarkable factor is that in an area so conflict-ridden as church-state, one teeming with judicial interventions, the ban on religious tests has been self-executing.409  But Bradley is also quick to note that the religious test ban is not a proper philosophy of religious liberty and does not pretend to be one. It was certainly informed by a theory of religious liberty from Madison and others, but it exists on a simpler level than that. It does not require that its adherents share that philosophy. So long as factions continue to act as factions, it will remain enforced and help to prevent the ascendance of one religious faction over others. It is not, however, a complete solution to religious liberty concerns on the margin. A ban on religious tests for office can prevent one sect from establishing itself over all others, but it does not necessarily prevent legal or political bigotry against fringe religious groups. From a historical perspective,  409 Ibid., 715.    232 Article VI made federal offices available to Jews, Roman Catholics, and (a few years later) Mormons from the First Congress onward, yet this allowance neither guaranteed any elections nor assured that their beliefs and practices would be unencumbered.410 On the contrary, Article VI leaves most questions of religious liberty to the political scrum with the sole restriction that one’s religious identity cannot be a prohibition on entering the field. In this sense the religious test ban actually encourages the political scrum: get out there and defend your religious position; there is no use in hiding behind the Constitution as a reliable source of protection. This conclusion is implicit from the arguments of “Federalist 10” and “Federalist 51,” but was undoubtedly understood by many as a clear deficiency of the original Constitution and an inspiration for the Free Exercise Clause. In similar fashion, the arguments presented here connecting Article VI to a prophylactic against a religious establishment undoubtedly struck many as insufficient. The religious test ban raises the questions of religious free exercise and religious establishment—and it offers a very useful and effective answer for mainstream concerns—but it is not a direct guarantee in either case.  The Original Constitution and Religious Exemptions  Thus far our chapter on the Constitution and the Constitutional Convention has not had occasion to consider our thesis regarding religious exemptions. The reasons should be fairly clear: religious exemptions were not discussed during the convention, are not obviously covered in the original Constitution, and this author has not discovered any reference to religious exemptions in the ratification debates. The absence is instructive for two reasons. First, those  410 Ibid., 723.    233 present at the Convention saw no apparent need to discuss the matter or include any provision for it in the new Constitution. Second, the Antifederalists who opposed the new Constitution and found any number of objections to it did not raise any questions about religious exemptions. If religious exemptions were a concern at the time of the Constitutional Convention and Ratification, the burden rests with their proponents to find that concern expressed in the historical record.  More importantly, however, the current chapter provides a coherent paradigm for considering religious liberty concerns independent from and mutually exclusive of a regime of religious exemptions. The substance of that paradigm has already been covered at length, so it will suffice to summarize here, beginning with the Constitutional Convention and working forward through the ratification debates. Charles Pinckney and James Madison were the consistent and only sources of concerns about religion and religious liberty at the Constitutional Convention, at least as far as we can tell from the historical record. Pinckney appears to have had some ideas about it from the very beginning of the convention, and we see Madison talking about it in terms that look like an early draft of “Federalist 10” in some of his first convention speeches. We do not know enough about Pinckney to say definitively how he thought about the problem of religious liberty, but his ideas at the convention appear to conform well with Madison’s ideas, and this is true in at least two respects. First, his contributions at the convention fit easily into the Madisonian framework of “noncognizance” of religion. From his first potential contribution—a draft constitution that might have included language preventing the legislature from passing a law on the subject of religion—to his and Madison’s joint motion for a non-religious national university, his contributions are consistent with what we know about Madison from his “Memorial and Remonstrance.” Second, Pinckney’s proposal to ban religious tests for    234 office fits very well with Madison’s ideas about faction that were percolating from the earliest days of the convention and saw their fullest articulation in The Federalist Papers. The historical record of the Constitutional Convention provides us with no other significant voice on the subject of religion or religious liberty, and the combined efforts of Pinckney and Madison appear to have been broadly accepted and codified, then repeated by Federalist defenders of the new Constitution in ratification debates.  The overall framework of the convention, the Constitution, The Federalist, and the ratification debates came to explain religious differences as a particular species of faction among a larger family of factional differences. Factions are both a necessary consequence of free government and the greatest threat to its survival. Figuring out how to deal with faction was the greatest challenge and perceived triumph of the new Constitution, and the solution was a careful combination of federalism, a large and varied republic, and federal institutions with both separated powers and a system of interconnected checks and balances. Religion is particular among factions insofar as it is specifically named and protected in Article VI through the religious test ban. The intent of this protection was not to take religion out of the political scrum of faction against faction, but rather to ensure that the argument between religious factions was never simply or definitively decided in favor of a single religious majority.  The question of a bill of rights and specific protections for religious liberty cannot be fully resolved in this chapter. As will be discussed in our next chapter, the ratification debates concluded with strong support for a bill of rights to be added to the new Constitution, and even James Madison conceded the point or was convinced that the addition was necessary. For the purposes of this chapter, however, it is sufficient to record that the Constitutional Convention was not of a single mind on the need for or even the potential use of a bill of rights. The strongest    235 defenders of the new Constitution, however, argued in the strongest terms that a separate bill of rights was not necessary and that the framework of the Constitution was effectively better than a formal guarantee of civil and natural rights. “Federalist 84” is the clearest and most authoritative account of this argument, and it fits very well with the arguments of “Federalist 10” and “Federalist 51” to describe how the new Constitution provides a means to check the majority abuses of minority rights that were previously unresolved despite bills of rights to the contrary. The role of the courts bears a short discussion here, as the matter has gone unmentioned thus far and could easily be misunderstood. The framework of “Federalist 10” and “Federalist 51” establishes an alternative means of defending individual rights than a framework of enumerated rights and a judicial defense of those rights. This does not mean, however, that the Framers of the Constitution or its Federalist ratifiers believed in a weak judiciary. “Federalist 51” explains a balance between institutions that includes the courts as a significant check on the other branches of government. The judiciary is not intended to be powerless, and we can readily infer that its powers extend to interpreting law in ways that would check overreaches on the part of the legislature and the executive. Furthermore, “Federalist 78” extends the argument of “Federalist 51” to explain how the courts will provide a check on the other branches. The picture in “Federalist 78” is not of an aggressive judiciary—Hamilton calls it “the weakest of the three departments of power”—but it is certainly empowered with judicial review, with the authority to strike down legislation or executive action that violates the Constitution.411 Hamilton tells us that this power is essential to a limited constitution:  By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex  411 Hamilton, “Federalist 78,” 464.    236 post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.412  Hamilton is quick to explain that this situation, where the courts can strike down acts of the legislature or executive, is not indicative of judicial superiority. Rather, it is the Constitution which is superior to all as the original and duly enacted will of the people, and it is simply the role of the judiciary to interpret the Constitution in relation to the other institutions of government. The point here is not to confuse the issue, but rather to prevent us from reaching a wrong conclusion. The original Constitution, even without a bill of rights, included room for a strong judiciary with the full powers of judicial review. Judicial review was not practiced by the federal courts until after the adoption of a bill of rights, but it was certainly understood and anticipated from the Constitutional Convention onward. But it was also not the preferred method of the Constitutional Convention for protecting individual rights, especially individual rights connected to religion and religious liberty. On both the general matter and the particular question, the Constitutional Convention and The Federalist Papers demonstrate clear deliberation and a clear conclusion: they believed that religion could be best protected by ensuring that it remained a political question, by forcing religious factions to defend their interests in the normal scrum of politics, and by preventing any religious group from formally establishing itself as a matter of law. What is left is for us to trace the pathway from convention to ratification again, but to explain how what was proposed, accepted, and ratified was wholly different from a scheme of  412 Ibid., 465.    237 religious exemptions. Supposing that Charles Pinckney really did arrive at the Constitutional Convention with the same draft that he copied and provided much later, the convention began with a proposal to protect religion by disallowing the federal government from passing laws about it. We know or can guess from Pinckney’s other actions at the convention that religion and religious liberty were a significant concern to him. As quoted in his draft plan of a constitution, however, Pinckney does not explicitly provide for religious liberty or bar religious establishment. His version is simply and completely “The Legislature of the United States shall pass no Law on the subject of Religion.”413 As explained previously, Pinckney probably did not arrive at the convention with this exact text, and it is likely representative of ideas that Pinckney picked up before, during, and after the convention, ideas that he ultimately thought were essential to a new constitution. But from the perspective of religious exemptions, his “no Law” framework would seem to be a dead end. It offers no obvious right to religion or religious practice that a Court might try to exempt, and it even prevents Congress from creating legislative exemptions, at least insofar as those exemptions would make specific notice of religion. Pinckney’s actual contribution to the Constitutional Convention was the ban on religious tests that would become part of Article VI. The circumstances of this contribution suggest that Pinckney was concerned with religious liberty and believed this to be a useful and appropriate manner of defending it in the context of the new Constitution. Later commentary from Federalist defenders of the Constitution confirms that they agreed. The Article VI framework does not, however, leave an obvious entry point for judicially-enacted religious exemptions. Insofar as the framework is connected to the arguments and solutions of “Federalist 10” and “Federalist 51,”  413 Records, Vol. III, 599.    238 the ban on religious tests assumes that majority abuses of minority religious belief and practice will come from the legislature and can best be prevented at the legislative level. The ban on religious tests does not wait for the judicial system to correct legislative abuses, but rather establishes a check that helps the Congress and executive to police themselves. It is by no means perfect or even a perfect defense of religious liberty, but its great virtue is that it forbids one of the most obvious and egregious ways that religious factionalism could become institutionalized and in a manner that requires little to no attention from the courts. The dearth of litigation over the religious test ban is proof on this last point, that the Article VI ban is self-enforcing. It could, if necessary, be enforced by a court and in very simple terms. Should Congress or some bureaucracy create an oath, standard, or test requiring some sort of religious belief or practice as a condition of holding any public office, the courts would simply strike it down as unconstitutional, or “void” to use Hamilton’s language from “Federalist 78.” The courts should not merely exempt objectors from such a requirement: the whole rule would be clearly unconstitutional, regardless of where or to whom it was applied. The arguments about bills of rights coming out of the Constitutional Convention and finding voice in the ratification debates and “Federalist 84” are furthermore a rebuke to the idea of judicially-enacted religious exemptions. Why? Because judicial exemptions must rest on some significant constitutional foothold; a judge must have some obvious and essential constitutional principle to defend in order to make such a ruling. The original Constitution—without a bill of rights—provided no such support. And, according to the men who wrote and defended it, they did so on purpose. As Hamilton explains in “Federalist 84,” the new Constitution effectively was a bill of rights, but not in the way that such documents had been written and understood in the past. A constitution of limited and enumerated powers rather than a constitution of enumerated    239 rights would provide better security for individual rights and better limits on government power. He connects the idea of a bill of rights with Madison’s arguments about the problem of faction and the governance of a free people from “Federalist 10” and “Federalist 51,” and we are led to understand that the new framework will succeed where traditional bills of rights have failed. The obvious judicial implication is that individual rights are best protected by a system that does not depend primarily upon enumerated rights and an active judicial system. And as clarified by “Federalist 78,” the founders did conceive of an active judiciary, but they still regarded it as inferior to the paradigm of “Federalist 10” and “Federalist 51” for protecting minority factions and individual rights. And finally we come to the framework of “Federalist 10” and “Federalist 51,” which leaves no clear place for judicially-enacted religious exemptions. In the most important sense, the framework of these two central articles eclipses religious exemptions because it has no need for them. Madison and Hamilton clearly believe that the new Constitution’s structure of enumerated powers is a better protection of individual rights than a system of enumerated rights. They furthermore believe that the job of limiting these enumerated powers can only be done by the strongest of political forces, namely, the power of political faction and the institutional prerogatives of government itself. The first of these, faction, attempts to use the problem as the solution, to fight fire with fire. Madison’s theory is that this solution will work by expanding the size and variety of interests across the voting base. If you have enough factions that none can gain a majority, then no one faction can rule over the others. The second of these, the powers of government, is an institutional solution, and it operates on the principles of federalism, separation of powers, and checks and balances between the major institutions. Federalism limits jurisdiction and provides for overlapping jurisdictions, solutions that limit each institution’s    240 reach and incentivize overlapping institutions to regulate each other. Separation of powers limits and focuses the work of each governing institution, preventing any one institution from possessing all the powers of government. Checks and balances provide each of the three major institutions with a role in the work of the other institutions and therefore help to prevent runaway abuses of power.  We could, of course, assert that judicial review is a species of “check” by the courts upon the legislative and executive powers of government, and furthermore that religious exemptions are a subset of judicial review. This argument is plausible or at least demonstrates that the theory of judicially-enacted religious exemptions need not contradict Madison’s theory of the new Constitution. But the argument has two significant problems. The problem is first that it lacks historical evidence. The only religious exemptions at the time of the American Founding were legislatively enacted, and it is not obvious that these exemptions were understood as an essential matter of religious liberty.414 “Federalist 78” articulates a rationale for judicial review, but the role of the judge is narrowly interpretative. In order to decide cases, judges are forced to determine what the law is, and that requires a comparison between statutes and a comparison between statutes and the higher law of the Constitution. At no point is the judge or the judicial process permitted to make law. For a judge to decide that a law applies in certain cases (when a litigant has particular religious beliefs) but not others leans towards either executive discretion or legislative rulemaking. At the very least, “Federalist 78” does not provide a simple pathway to religious exemptions. The second problem with religious exemptions is that they miss the scale of problems and solutions that Madison and the other framers had in mind. Judicial exemptions  414 See chapter 3, especially the section on oaths and conscientious objectors.    241 are a kind of scalpel-like operation; Madison thinks that the problem of faction and individual liberty, including religious faction and religious liberty, is a problem that calls for tools on the scale of swords and shields. Judicial exemptions are simply too fine and too complicated of a tool to be useful for the everyday regulation of religious factionalism. This chapter began with the observation that the Constitutional Convention and the Constitution had very little to say about religion, and on one level, that’s true. The explicit references to religion and religious liberty during the Convention, the Constitution, and the ratification debates are few, and the majority have been catalogued in this chapter. But those same sources have a lot to say about the problem of faction and how to solve it. They furthermore make clear that the framers of the Constitution understand religion as one important species of faction, and one that needs to be protected and defended against in the same manner as other factions. The problem and solution of faction is central to the Constitution, at least as Madison understood it, and so it makes sense for us to look to “Federalist 10” and “Federalist 51” as an explication for how the original Constitution dealt with the question of religious liberty. Nothing in this chapter speaks specifically to the question of religious exemptions, but the silence on that topic speaks volumes. Federalist and Antifederalist alike did not raise questions about religious exemptions because no one had any anticipation that exemptions should be an implicit or explicit function of the new Constitution or federal government. But they nevertheless provided a framework for defending religious liberty that has no obvious need of judicially-enacted religious exemptions. The matter is of course complicated by the fact that the original Constitution was immediately amended to include a bill of rights, including the First Amendment’s language concerning religious liberty. What those provisions meant will be discussed in our subsequent and final chapters.     242 CHAPTER 6 RATIFICATION DEBATES    When delegates of the Constitutional Convention returned to their homes in the fall of 1787, they had little notion of adding a bill of rights to their new Constitution. Indeed, the previous chapter is in significant part a meditation on their mindset at that time, which neither included a bill of rights nor perceived any need for one. Their view is wholly foreign from the position of modern America, where the Bill of Rights is often regarded as the most essential and sacred part of our Constitution. Their position was short-lived, at least insofar as they soon became convinced of the utility of a bill of rights and would work quickly to establish one. Pennsylvania, the very first state to begin consideration of the new Constitution and the second to ratify it, included a vocal minority calling for constitutional amendments to defend fundamental rights as early as December 1787. Madison himself appears to have evolved from a position of staunch resistance to passive acquiescence to guarded advocacy of a bill of rights. Madison arrived as a member of the First Congress in 1789 ready to spearhead such an initiative, and it was ultimately his leadership and wordsmithing that would produce the majority of the Bill of Rights, including its religious protections.  This chapter aims to provide the context for our penultimate chapter on the First Congress by explaining how the state ratification debates spurred the creation of a Bill of Rights. A detailed historical account is useful for two reasons: one, it permits us to consider carefully the ideas and people responsible for the recommendatory amendments offered by the states, which helped to inform the First Amendment; two, it provides the appropriate context for us to consider the political and historical situation behind the Bill of Rights. While it is easy for us to assume    243 that both the authors of the Bill of Rights and the sources they drew upon (especially from the state ratification conventions) carefully deliberated about the necessity and content of a federal bill of rights, the historical details belie that narrative. The actual history is one of political maneuvering and compromises in a manner that offered little occasion for considering novel or complicated guarantees of individual liberty.  Before beginning our historical narrative, two points bear consideration. First, as will become implicitly clear in the ensuing pages, religious exemptions were never really discussed during the ratification debates. Protections for rights of conscience were discussed, including conscientious objection to militia service, but the substance of those protections was rarely covered in much detail. The modern reader is therefore forced to draw meaning from implication and political circumstances. While this author will attempt a faithful exegesis with fairness to defenders of judicially-enacted religious exemptions, the reader ought not to lose sight of the dearth of original content. This certainly presents a hurdle to our overall case, to proving that the Free Exercise Clause was not meant to usher in a regime of religious exemptions, but it cuts much harder in the other direction. Given the preponderance of evidence, it is foolhardy to assume that the state ratifying conventions intended to add a federal bill of rights that was so radical as to be without precedent in the early Republic and yet failed to mention their intentions. On the contrary, we have every reason to think that the state recommendatory amendments, including recommendations around religious protections, were modeled off the state constitutions and bills of rights already catalogued in Chapter 3.  Second, the reader may wonder at the significant attention given to Madison yet again in this chapter and the following chapter on the First Congress. Surely there must be some other important figure for us to consider in the development of federal guarantees of religious liberty?    244 As it happens, however, the development of the Bill of Rights, especially the First Amendment, owes its greatest debt to Madison. At the least we can fairly say that Madison is the lone thread extending from its inception to its final passage. He was part of the committee of the Virginia ratifying convention to propose amendments, including amendments defending “the free exercise of religion” and those “religiously scrupulous of bearing arms.”415 He was the sole member of the House responsible for offering an original set of Amendments and insisting that the body deliberate on the matter.416 He was part of the House Select Committee involved in editing and then proposing amendments for review by the whole House.417 He was also one of three House members named to the Conference Committee to deliberate between the House and Senate’s final versions of the constitutional amendments.418 If Madison is the Father of the Constitution, then he is at least equally Father of the Bill of Rights. Understanding his role, intentions, and where his intentions were frustrated is therefore essential to understanding the First Amendment and the Bill of Rights more generally.  A Narrative History of the State Ratification Debates  As explained in the previous chapter, delegates leaving the Constitutional Convention had little idea of passing a bill of rights. Those opposed to the new Constitution did not rally around this cause until after the Convention, and very little discussion at the Convention focused on a bill of rights. The idea appears to have gained currency very quickly, however, and snowballed to become a consistent demand of state ratifying conventions. Almost immediately  415 “Elliot’s Debates,” Vol. I, 327. 416 Annals of Congress, 440-468. 417 Ibid., 691, 699-700. 418 Ibid., 939.    245 after the convention, Richard Henry Lee of Virginia drafted a bill of rights that he attempted to have adjoined to the new Constitution.419 Less than three months after the Convention ended, the first two state ratifications would begin in Delaware and Pennsylvania. Delaware, the first state to ratify, approved the Constitution without calling for any amendments.420 Pennsylvania would do the same, but over the opposition of a vocal minority calling for amendments, especially amendments that would satisfy a perceived need for a bill of rights.421 When the Pennsylvania minority’s motion failed, they republished their suggested amendments as a pamphlet and distributed it widely. We can reasonably assume that news of this decision and copies of the minority demands reached the other states in the weeks and months following Pennsylvania’s formal ratification on December 12, 1787. Figure 6.1 lists each of the states that either formally requested amendments to the Constitution or that included a vocal and organized minority calling for amendments, plus the text of any such amendments concerning the topic of religion.    419 Muñoz, Religious Liberty and the American Founding, 128-29. 420 “Elliot’s Debates,” Vol. I, 319. 421 The Bill of Rights: A Documentary History, vol. II, ed. Bernard Schwartz (New York: Chelsea House Publishers, 1971), 627-28.    246 Figure 6.1—Recommendations for Religious Liberty Amendments from State Ratification Debates State Amendment/Text Concerning Religion Notes Pennsylvania422  December 12, 1787 [no formal proposal to amend the Constitution] A minority of the Pennsylvania convention proposed the following: “The rights of conscience shall be held inviolable, and neither the legislative, executive, nor judicial powers of the United States shall have authority to alter, abrogate, or infringe any part of the constitutions of the several states, which provide for the preservation of liberty in matters of religion.” Massachusetts423  February 7, 1788 [no amendment concerning religion] A minority of the Massachusetts convention proposed the following: “that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience....”424 Maryland  April 26, 1788 [no formal proposal to amend the Constitution] A minority of the Maryland convention proposed the following and furthermore distributed their proposal as a pamphlet: “10. That no person conscientiously scrupulous of bearing arms, in any case, shall be compelled personally to serve as a soldier. …12. That there be no national religion established by law; but that all persons be equally entitled to protection in their religious liberty.”425 South Carolina426  May 23, 1788 “Resolved, That the third section of the sixth article ought to be amended, by inserting the word ‘other’ between the words ‘no’ and ‘religious.’” The SC amendment recommendation bears on the “no religious test” clause, but not the religious liberty provisions of what would become the Bill of Rights. New Hampshire427  June 21, 1788 “Congress shall make no laws touching religion, or to infringe the rights of conscience.”  Virginia  June 26, 1788 “19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon From the ratification declaration: “…among other essential rights, the liberty of conscience, and of the press,  422 Pennsylvania Packet, December 18, 1787; reprinted in The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins, ed. Neil H. Cogan (New York: Oxford UP, 1997), 12. 423 “Elliot’s Debates,” Vol. I, 322-23. 424 Debates and Proceedings in the Convention of the Commonwealth of Massachusetts Held in the Year 1788 (Boston, 1856), 86-87; reprinted in The Complete Bill of Rights, 12. 425 The Bill of Rights, 735. 426 “Elliot’s Debates,” Vol. 1, 325. 427 Ibid., 326.    247 payment of an equivalent to employ another to bear arms in his stead.  20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established, by law, in preference to others.” cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.”428   New York429  July 26, 1788 “That the people have an equal, natural, and unalienable right freely and peaceably to exercise their religion, according to the dictates of conscience; and that no religious sect or society ought to be favored or established by law in preference to others.”  North Carolina  August 1, 1788 (see note at right) “Resolved, That a declaration of rights, asserting and securing from encroachments the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most ambiguous and exceptionable parts of the said Constitution of government, ought to be laid before Congress, and the convention of the states that shall or may be called for the purpose of amending the said Constitution, for their consideration, previous to the ratification of the Constitution aforesaid, on the part of the state of North Carolina.” 430  “19. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead. 20. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience; and that no particular religious sect or society ought to be favored or established by law in preference to others.”431 NC did not ratify the Constitution at this date, but rather deferred a ratification decision until such time as the Constitution conformed to the conditions listed. North Carolina would not ratify the Constitution until November 21, 1789.  The NC amendments were nearly identical to those proposed in VA.432  428 Ibid., 327. 429 Ibid., 328. 430 Ibid., 331-32. 431 From the North Carolina Convention Debates, reprinted in The Bill of Rights, 968. 432 In a letter to James Madison, William R. Davie described the amendments proposed by North Carolina in the following language: “That farrago of amendments borrowed from Virginia is by no means to be considered as the sense of this country; they were proposed amidst the violence and confusion of party heat, at a critical moment in    248 Rhode Island433  May 29, 1790 “IV. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, and not by force and violence; and therefore all men have a natural, equal, and unalienable right to the exercise of religion according to the dictates of conscience; and that no particular religious sect or society ought to be favored or established, by law, in preference to others.  … XVIII. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.” Rhode Island did not submit its ratification declaration or its proposed amendments until well after the First Congress had written and approved the original amendments, so this text could not have influenced congressional deliberation.  Also, the RI text is nearly identical to the VA text and was obviously borrowed from it.   New Jersey, Georgia, and Connecticut ratified the Constitution in quick succession after Pennsylvania, all without obvious calls for amendments.434 Massachusetts, which began convention proceedings on January 31, 1788, was the next state to make considerable noise in favor of constitutional amendments and the first state to pass a formal, majority appeal requesting amendments. Massachusetts’s example was then followed by most of the remaining states (South Carolina, New Hampshire, Virginia, New York, and, technically, Rhode Island435) who would similarly ratify the Constitution while recommending immediate changes. The Massachusetts Convention represented a sea change for Federalist defenders of the Constitution who had previously opposed all calls for amendments, especially a bill of a rights. The debate in Massachusetts broke upon the lack of a bill of rights, and the potential votes were split without a clear majority in favor of the Constitution. Federalist leadership therefore determined it prudent  our Convention, and adopted by the opposition without one moments consideration….” Quoted in The Bill of Rights, 980. 433 Elliot’s Debates, Vol. 1, 334-337. 434 “Elliot’s Debates,” Vol I: New Jersey (December 18, 1787), 320-21; Georgia (January 2, 1788), 323-24; Connecticut (January 9, 1788), 321-22. 435 Rhode Island did not ratify the Constitution until May 29, 1790, though it did recommend amendments with its ratification.    249 to suggest their own changes as a means to pacify opposition and secure enough votes for passage.436 Federalist Theophilus Parsons wrote the amendments, and John Hancock, who presided over the convention, presented them as his own. The move succeeded: the state convention ratified the Constitution and recommended the proposed changes. As indicated in Figure 6.1, Hancock’s amendments did not include any reference to religion or religious liberty. They did include some inclination towards a bill of rights—for instance, a guarantee concerning criminal procedure—but they stopped short of any fundamental guarantees concerning life, liberty, or property. Prudence might have dictated changes, but it apparently did not require a full Federalist retreat on the idea of a bill of rights. According to legal scholar Bernard Schwartz, we can reasonably conclude that the Massachusetts ratifying convention provided an important example to other states concerning the process of recommending amendments, but that the substance of those amendments would be developed elsewhere, especially on the question of religious liberty.437 The minority report from the Pennsylvania ratifying convention must have been known to at least some of the Massachusetts delegates, but its content does not appear to have informed their deliberations.  The outcome in Massachusetts was a surprise to James Madison, who still vigorously resisted constitutional amendments and a bill of rights. Thomas Jefferson was strongly in favor of a bill of rights and had even suggested that nine states should ratify the Constitution—thereby satisfying the requirement for it to be adopted—and four states should refuse until a bill of rights could be added. Jefferson’s solution would have forced the issue, and quickly. With the maneuverings of Massachusetts Federalists, however, Jefferson seems to have come around to  436 The Bill of Rights, 674-76. 437 Ibid.    250 seeing their course as the best one, to have states agree to the Constitution but insist upon immediate changes.438 James Madison explained in letters to Washington, Jefferson, and Randolph that the amendments suggested by Massachusetts were “a blemish,” but he understood them to be a gesture towards popular opinion in the state.439 His overall and recurring point in his letters seems to be that, while such recommended amendments might have been politically useful, they were not yet politically binding, and Madison was still prepared to leave the demands unanswered.  Maryland was the next state to consider constitutional amendments as part of its ratifying convention, and it followed the pattern of Pennsylvania instead of Massachusetts: it ratified the Constitution against a vocal minority calling for amendments. A strong Federalist majority prevailed in Maryland, and they refused to consider amendments prior to ratification of the Constitution. Once the Constitution was duly ratified, the convention allowed the creation of a committee to propose amendments. The committee nearly agreed to a short list of amendments, but the minority refused to concede on several items that lacked majority consensus. The overall result was a total failure of the committee’s work. When the committee presented its divided position to the general convention, the convention responded by dismantling the committee and deciding against any proposed amendments. Like the Pennsylvania minority, the Maryland minority decided to take its appeal to the public by distributing its proposed amendments as a pamphlet.440  The Maryland minority report included two provisions bearing on religion:   438 See Letter from Madison to Randolph of July 2, 1788, reprinted in The Bill of Rights, 727-28. 439 See Madison to Washington, February 15, 1788; Madison to Jefferson, February 19, 1788; and Madison to Edmund Randolph, April 10, 1788, reprinted in The Bill of Rights, 724-27. 440 The Bill of Rights, 729-738.    251 10. That no person conscientiously scrupulous of bearing arms, in any case, shall be compelled personally to serve as a soldier.  … 12. That there be no national religion established by law; but that all persons be equally entitled to protection in their religious liberty.  Neither of these provisions were agreed to by the committee majority; nor were these provisions hotly contested by the committee minority. Rather, after losing the institutional fight, the minority reassembled all of its proposals and published them together, regardless of whether the proposals were agreed to by a majority of the committee, represented the “non-negotiable” but losing consensus of the minority, or were readily discarded in committee deliberation. Despite falling into this last category, the religious liberty provisions considered in Maryland provide the beginning of a trend that would continue through the deliberations of the First Congress. Maryland’s minority was the first to recommend amendments on three distinct topics concerning religion: first, a right to conscientious objection from military service; second, a prohibition against a national or federal establishment of religion; third, a guarantee of religious liberty. All three would be recommended by several of the remaining state ratifying conventions and included in Madison’s draft to the House of Representatives.441  South Carolina was the next state to ratify the Constitution, and it followed the pattern set by Massachusetts to formally recommend amendments. This same pattern would be followed by all remaining states with the exception of North Carolina, which deferred ratification until a bill of rights could be added.442 Also like Massachusetts, the South Carolina convention stopped short of proposing a bill of rights. While Massachusetts had suggested some changes concerning  441 See Figure 6.1 and Figure 7.1. 442 “Elliot’s Debates,” Vol. I, 331-32.    252 individual rights, South Carolina made no such recommendations and chose instead to focus primarily on maintaining state power and limiting federal authority.443 Of their four recommendations for change, the one that stands out concerns the “no religious test clause” from Article VI, Section 3. The language from South Carolina is simply “that the third section of the Sixth Article ought to be amended by inserting the word ‘other’ between the words ‘no’ and ‘religious.’” The apparent effect of such a provision, to allow “no other religious test,” would be to continue the prohibition on federal tests for office while permitting states to impose their own tests for federal officeholders. The fascinating thing about this change is that it was proposed by Charles Pinckney’s own state ratifying convention, in spite of or perhaps because the clause originated with him. We know that he was present at the South Carolina ratifying convention, and furthermore that he was an active leader in the debate. Convention records, however, concern only the discussion on whether to ratify the Constitution and are silent on the changes proposed alongside it.444 So we have no record of who proposed the change or any defense of the language from Pinckney. The matter was discussed again in the First Congress, with South Carolina Representative Thomas Tudor Tucker proposing this same change on August 18 and again on August 22, 1789.445 In the first instance, Tucker presented it alongside a laundry list of other constitutional amendments. In the second, Tucker presented it independently, suggesting that this was a matter of special concern. In both instances, the matter was voted down without any recorded argument. Pinckney’s original contribution to religious liberty would therefore  443 Ibid., 325; The Bill of Rights, 756-57. 444 “Elliot’s Debates,” Vol. IV, 253-341. 445 Annals of Congress, 792 and 807.    253 remain, but against the recommendation of his own state’s ratifying convention and against the objections of his fellow South Carolinian.  New Hampshire was the next state to ratify the Constitution, and as the ninth state to ratify, the New Hampshire convention reached the threshold necessary to establish the new federal government. Without Virginia or New York, however, the long-term viability of the Constitution would have yet been uncertain. New Hampshire followed the now-established pattern of ratifying the Constitution while recommending a formal series of amendments. It followed Massachusetts in this pattern of adoption; it also based the majority of its recommendations on those already proposed by its neighboring state. One of the few exceptions was its recommendation concerning protections for religious liberty: “Congress shall make no laws touching religion, or to infringe the rights of conscience.”446 New Hampshire was thus the first state with a majority proposal for an amendment concerning religious liberty, and it set a precedent that would be followed by each of the remaining states. The New Hampshire recommendation is also notable for being very similar to the final version adopted by the First Congress, and it is the first version of the “Congress shall make no law” formulation. This formulation was not suggested by any other state, nor was it included in the amendments suggested by James Madison, but it is nearly identical to the language suggested to the First Congress by New Hampshire Representative Samuel Livermore on August 15, 1789, and subsequently adopted into all future drafts of what would become the First Amendment. Perhaps it is fair to say that the elegance of this solution—which may have originally come from Livermore or merely been transported by him from the New Hampshire ratifying convention— 446 “Elliot’s Debates,” Vol. I, 326.    254 was sufficiently evident as not to require much background or explanation. As we shall see, the First Congress spent virtually no time deliberating on the words even as it adopted the language. But as concerns its origins in the New Hampshire ratifying convention, we must content ourselves without any record of its suggestion or deliberation. The records of the New Hampshire convention have all but been lost to us, and the remaining fragment includes nothing about the suggested amendments.447  The Virginia Ratifying Convention  The decision in New Hampshire was not yet determined when the Virginia ratifying convention began on June 2, 1788. New Hampshire’s ratification came on June 21, and its decision was not yet known to the Virginia convention when it ratified the Constitution on June 25. While New Hampshire was therefore the actual ninth state to ratify, the Virginia convention labored under the assumption that its decision would be the ninth—and thereby the last stop on the way to a new federal union.448 The Virginia ratifying convention deserves the most attention among all the states for several reasons. First, it was the best-recorded of all the state conventions, so it permits the closest view of the action.449 If anything can be learned about our question from the records of state ratifying conventions, then it can be learned from the debate in Virginia. Second, the Virginia convention offered the most significant original set of recommendatory amendments of any state, including a full bill of rights. While New York and North Carolina would offer similar amendments, they were essentially derivative of those first  447 The Bill of Rights, 758-61; “Elliot’s Debates,” Vol. II, 203-04. 448 See, for example, Henry Lee’s comments about New Hampshire in “Elliot’s Debates,” Vol. III, 183. 449 The Bill of Rights, 762.    255 produced in Virginia. Third, the Virginia convention made the most significant impression on what would become the federal Bill of Rights. The Virginia convention not only brought Madison around to serious consideration and eventual support of constitutional amendments, it also provided a template that informed his recommendations to the First Congress. We must therefore slow down for a close examination of the ratification arguments in Virginia.  The tone and focus of the Virginia convention were established from its opening debate on June 4 (the first two days of the convention were spent primarily on procedural matters), when Patrick Henry took the floor to express his disagreement with the Constitution. His initial target was the radical change effected by the Constitution from a confederated government to a national or consolidated one. As Henry noted, the difference was captured neatly in the Constitution’s Preamble, that the new Constitution was a government of “We the People,” not “We the States.”450 From Henry’s perspective, the Constitutional Convention had far exceeded its charge. Henry decided against a full assault on the legitimacy of the Constitution—eight states had already ratified it after all, and several of its key drafters were well-regarded delegates of the Virginia convention. From June 5 forward, however, he would complain that the new Constitution failed to defend essential individual rights, and that the object of the state convention should be to recommend and secure those rights as formal amendments to the Constitution prior to ratification.451 From that moment forward, the central concern of the convention was whether Virginia should offer “previous amendments”—i.e., require amendments before ratification—or should instead consider “subsequent amendments”—i.e., ratify the Constitution, then suggest Amendments in accordance with Article V and following the  450 “Elliot’s Debates,” Vol. III, 22 and 44. 451 Ibid., 43ff.    256 pattern of the Massachusetts convention. Bernard Schwartz explains, “Thus, the debate went on, with Henry coming back to the Bill of Rights issue virtually every day—one of his speeches on the matter lasting seven hours.”452 The arguments from Henry and the rebuttals from the likes of James Madison, John Marshall, and Edmund Randolph are impressive, but perhaps more for their length, elegance, and historical circumspection than for any illumination they provide to present considerations. Theirs was an argument drawn firmly along partisan lines, and it tended to the theoretical and historical rather than to specific provisions of the Constitution. Antifederalists accused the new Constitution of tyranny, of lacking the necessary protections for individual rights, and of usurping the sovereign power of the states. Federalists argued, as explained previously in chapter 5, that the new constitutional framework was one of limited powers and, through the mechanisms elaborated in “Federalist 10” and “Federalist 51,” was far better than any parchment barriers that Antifederalists could devise. Concerning religion and religious liberty, Patrick Henry’s most significant argument against the Constitution was that its mechanisms were too complicated. What was needed was not a complex apparatus to pit ambition against ambition and faction against faction, but rather a simple and legally-enforceable declaration of religious liberty: That sacred and lovely thing, religion, ought not to rest on the ingenuity of logical deduction. Holy religion, sir, will be prostituted to the lowest purposes of human policy. What has been more productive of mischief among mankind than religious disputes? Then here, sir, is a foundation for such disputes, when it requires learning and logical deduction to perceive that religious liberty is secure. 453   452 The Bill of Rights, 764. 453 “Elliot’s Debates,” Vol. III, 318.    257 It is therefore fair to say that Henry almost certainly had judicial defenses of religion in mind, but the mechanism of judicial review or religious exemption was never mentioned by either side. For his part, Madison insisted that the federal government had been given no power over religion and thus no legal defense was necessary: “There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation.”454  To the modern reader, the almost 700 pages of Virginia ratifying debates can feel tedious and redundant. For those on the ground, however, the debate was likely a tug of war involving those few critical and undecided votes in the middle.455 A strong Federalist majority in Maryland was able to wrap up debate in favor of ratification after just a few days. Federalists in Virginia could not quite count on a majority of votes, so deliberation lasted for weeks. Madison explained to Alexander Hamilton in a letter on June 22, just three days prior to the Virginia vote for ratification, that Federalists were calculating a majority of only three to six votes out of almost 170 delegates. To reach a majority the Federalists were proposing a compromise, as explained by Madison in the same letter, “to preface the ratification with some plain and general truths that can not affect the validity of the act; & to subjoin a recommendation which may hold up amendments as objects to be pursued in the constitutional mode.”456 In other words, the Virginia Federalists were planning to follow the pattern of the Massachusetts and South Carolina Federalists. Whether or not the Federalists had prepared recommendatory amendments as of June 22 is not clear from the record, but we know from correspondence that George Mason, Patrick  454 Ibid., 330. 455 George Mason biographer Jeff Broadwater notes that historians are divided on whether the debate in Virginia actually changed any of the delegate votes. See Jeff Broadwater, George Mason: Forgotten Founder (Chapel Hill: UNC Press, 2006), at 236 n97. 456 Madison to Hamilton, June 22, 1788, reprinted in The Bill of Rights, 848.    258 Henry, and their Antifederalist allies had prepared a near-final draft at least as early as June 9.457 On June 24 Patrick Henry offered his slate of amendments on behalf of the Antifederalist faction: twenty formal changes to the text of the Constitution and twenty more amendments to be appended as a declaration of rights. Henry’s amendments were quickly adopted as the central part of the convention’s compromise.  Despite the thorough record keeping of the Virginia convention, we cannot say with complete confidence that we have an accurate account of Henry’s amendments as he originally offered them. The formal record explains that Henry offered a resolution including a declaration of rights and amendments to the Constitution, all of which was read aloud by the clerk. Rather than print the original resolution, however, the record simply explains that the resolution and amendments “were nearly the same as those ultimately proposed by the Convention; which see at the conclusion.”458 The potential problem arises from the fact that the final version, which we will come to shortly, was “nearly the same” but perhaps not identical to the one offered by Henry, and in the meantime it would be subject to discussion and committee review. But we nevertheless have good reason to believe that the amendments and declaration of rights offered by Patrick Henry on June 24 were essentially identical to the recommendations adopted subsequent to ratification by the convention on June 27. Presumably the record would have noted any significant disparities, and the responses to Henry’s resolution from Edmund Randolph and James Madison are consistent with the final number and arrangement of Henry’s amendments.459 We also have an earlier draft, which was sent in a letter to John Lamb on June 9, and this version  457 George Mason to John Lamb, Richmond, June 9, 1788, and Patrick Henry to John Lamb, Richmond, June 9, 1788, both reprinted in The Documentary History of the Ratification of the Constitution, Vol. IX, eds. John P. Kaminski and Gaspare J. Saladino (Madison, WI: State Historical Society of Wisconsin, 1993), 816-23. 458 “Elliot’s Debates,” Vol. III, 593. 459 Ibid., 600, 618.    259 is nearly identical to the final version.460 We moreover have good reason to think that the politics of the situation meant that Antifederalists had already weighed in, that Henry’s amendments represented the finished work of the opposition, and that Federalists were compelled to leave Henry’s proposal untouched.  With only a little inference from circumstances, we can reconstruct the background, motivations, and actions of the final days of the ratifying convention, which resulted in Virginia’s recommendatory amendments to the Constitution. Likely Henry’s amendments were expected by both parties, and we know that they had been formed by an internal committee of Antifederalists insisting on “previous amendments.” They were not the work of any one delegate, and we learn from George Mason’s correspondence that Antifederalists had been quietly meeting together to create a list of previous amendments for some time prior.461 The occasion of Henry offering the amendments came when Federalist George Wythe proposed a formal motion to ratify the Constitution with some words prefixed indicating both the limitations of the Constitution and the convention’s desire for subsequent amendments. Henry therefore rose to offer a counter motion, one that included his amendment and insisted that they be adopted previous to ratification. Once Henry’s amendments were offered, Madison and Randolph both contested them on numerous points, but their opposition was waning. Both men dismissed the proposed declaration of rights as unnecessary in a government of limited powers. Randolph read aloud and objected to nine of the recommended alterations to the Constitution before hanging the matter as fundamentally one of previous versus subsequent amendments. Supposing ratification of the Constitution could be secured first, however, Randolph explained that “The union of  460 George Mason to John Lamb, June 9, 1788 (supra). 461 Ibid.    260 Sentiments with us in the adopting States will render subsequent amendments easy.”462 In other words, he was open to the amendments so long as Virginia would first ratify the Constitution. Madison, who had consistently opposed all amendments in prior discussion, conceded that “As far as his amendments are not objectionable or unsafe, so far they may be subsequently recommended—not because they are necessary, but because they can produce no possible danger, and may gratify some gentlemen’s wishes.”463 Madison still vehemently objected to the addition of a bill of rights as a dangerous addition to a government of limited powers, an addition that would suggest instead a government of limited rights.464 But Madison closed the day’s debate by reaffirming his commitment to subsequent amendments, with Henry’s proposals as the clear object of that affirmation.  Overnight the Federalists must have conferred and adjusted their strategy to be even more open to Henry’s amendments. George Nicholas addressed the convention first-thing on the morning of June 25 to propose an end to the debate. Regarding amendments, he strongly exhorted delegates only to consider amendments after ratification. In an effort to quell Antifederalist fears that Federalists would depart as soon as the Constitution was ratified (and therefore not stick around to approve subsequent amendments), Nicholas insisted on his party’s support: “I wish for subsequent amendments as a friend to the Constitution; I trust its other friends wish so too; and I believe no gentleman has any intention of departing.” Regarding the substance of amendments, Nicholas made clear that his party was ready to consent to Henry’s proposals: “The amendments contained in this paper are those we wish; but we shall agree to any  462 “Elliot’s Debates,” Vol. III, 603. 463 Ibid., 622. 464 Ibid., 626.    261 others which will not destroy the spirit of the Constitution or that will better secure liberty.”465 The deal was thus made clear for the record, that Federalists were willing to accept Henry’s proposals without change, provided that Antifederalists—or at least a small margin of those willing to compromise—would consent first to ratify the Constitution. A short while later, Madison took the floor to confirm Nicholas’s statements that Federalists would remain to consider subsequent amendments and furthermore that they would agree to the amendments currently under consideration.466 The matter was then brought to a vote after a little more debate. In accordance with Federalist wishes, the motion for previous amendments failed, 80 to 88. The motion to ratify succeeded, 89 to 79, without gaining the approval of Henry or the hardline Antifederalists. Immediately a motion was brought and approved to form a committee of twenty delegates to consider subsequent amendments.  Madison and Henry were both named to the amendment committee, alongside such other notables as Randolph, Mason, and Nicholas, and Antifederalist leaders including Henry and Mason. Given the apparent work of the committee, however, its composition was largely important insofar as it conferred a sense of seniority and seriousness. For whatever reason, many of the Federalists’ most significant objections were not addressed.467 We know that Madison strongly objected to many of the amendments—he described them to both George Washington and Alexander Hamilton as “highly objectionable”—but his objections appear to have gone without comment.468 On Friday, June 27, the convention met for its final day to consider and  465 Ibid., 627. 466 Ibid., 629. 467 See especially the Editors’ Note at page 1512ff in The Documentary History of the Ratification of the Constitution, Vol. X (supra), which explains that the committee must have made changes to the earlier draft. The editors do not comment on why a committee composed of 11 Federalists and 9 Antifederalists did not change amendments that were obviously objectionable to a majority of Federalists. 468 Madison to Washington, and Madison to Hamilton, both dated June 27, 1788, reprinted in The Bill of Rights, 849.    262 approve the recommendations of the committee. The record of June 27 only includes one objection in the general convention to a single proposed amendment, which concerned the federal taxing authority. No debate is recorded, and we do not even know who raised the objection; the motion was quickly overruled 88 to 65. Included in those voting for the motion (and against one of Henry’s amendments) were several members of the amendment committee, including Madison, Randolph, Nicholas, and Marshall, a point that likely confirms our conclusion that the committee did not review the substance of the proposed amendments. That Federalists lost the motion 85 to 65 suggests first that several critical delegates departed the convention between Wednesday and Friday, and furthermore that the majority of delegates had no appetite for revisions to Henry’s amendments. The convention then immediately decided to approve the recommended amendments as presented, with no roll call of those in favor and those against. The work of the convention was then finished. In his letters to Washington and Hamilton written later that same day, Madison indicated that Henry’s opposition to the Constitution was not yet satisfied, and Madison was concerned about how that opposition might manifest, especially in an expected public statement from the Virginia Antifederalists. In his letter to Jefferson of July 24, 1788, we further learn that Henry and Mason were unsuccessful in rallying their allies around such a statement, and that Madison remained worried about opposition from that quarter.469 Presumably this fear helped to so quickly shepherd Henry’s amendments through the convention and would remain a motivating force behind Madison’s efforts to present and pass constitutional amendments in the First Congress.  469 The Bill of Rights, 849; Madison to Jefferson, July 24, 1788, reprinted in The Bill of Rights, 850.    263  The story of the Virginia ratifying convention is one of political expediency. Of foremost necessity for Federalists, including Madison, was to ratify the new constitution in order that they might establish a new government and prove out the vision of the Constitutional Convention and The Federalist Papers. To get that result, they were willing to make significant compromises about what amendments would be considered as soon as the new government was seated. What is most interesting, however is the extent to which those compromises—or perhaps the compromise of Henry’s proposed amendments—worked on Madison in the months following. His penultimate speech at the Virginia convention had been to express the “danger” of a bill of rights.470 By January 2, 1789, however, he had completely come around on the idea, at least as a matter of political expedience. In a letter to George Eve of that date, Madison explained that when the Constitution was not yet ratified, “it was necessary to unite the states in some one plan” and he accordingly “opposed all previous alterations as calculated to throw the states into dangerous contentions.” But on the other side of state ratification, “circumstances are now changed.” Madison explained,  Under this change of circumstances, it is my sincere opinion that the Constitution ought to be revised, and that the first Congress meeting under it ought to prepare and recommend to the states for ratification, the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants, &c.471  And as Madison become a partisan of amendments to the Constitution—particularly amendments concerning individual rights—he turned to the previously abhorred Virginia amendments for inspiration.  470 “Elliot’s Debates,” Vol. III, 626. 471 Madison to Eve, January 2, 1789, reprinted in The Bill of Rights, 997.    264  The changes to the text of the Constitution proposed by Patrick Henry little concern us here. Henry was primarily interested in limiting or qualifying federal power against the state governments, and most of these recommendations were ignored by the First Congress. Henry’s attempt at a declaration of rights, on the other hand, is an important predecessor to Madison’s own draft recommendations to the First Congress. Citing Judge Dumbauld, Bernard Schwartz says, “[E]very specific guarantee in the Virginia-proposed Bill of Rights later found a place in the federal Bill of Rights, except for Article 19, allowing conscientious objectors to hire substitutes (and even that was included in the amendments which Madison proposed to Congress.”472   The connection between Madison’s proposals and Henry’s is certainly true in the matter of religion and religious establishment, and this area bears further examination. The two sections of Henry’s recommendations that concern religion are sections 19 and 20 of his proposed declaration of rights, included in Figure 6.1 and reprinted here: 19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead. 20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established, by law, in preference to others.  The first of these, section 19, deals with conscientious objectors. Its obvious precedent was the similar provision from the Maryland minority report. It is notable for at least three reasons. First, conscientious objection was regarded as an important enough right to mention as a fundamental  472 The Bill of Rights, 765.    265 defense of individual liberty. Second, it was not regarded as necessarily implicit to a broader right to free exercise of religion. This point is especially notable since Section 20 appeals to the authority of nature, claiming that free exercise of religion is a natural right, while Section 19 makes no such claim. And third, as explained in chapter 3, conscientious objection was only to be granted upon “equivalent” payment—which is to say that the right was conditional, and these conditions could be easily unacceptable to those who would claim it. Madison nevertheless included this provision in his draft proposal to the First Congress.  Section 20 of Virginia’s recommendatory declaration of rights was also substantially adopted by Madison. Also like the Maryland minority report, this section included a formal protection of the free exercise of religion and a prohibition against an establishment of religion. The former provision is almost a direct quote from the 1776 Virginia Declaration of Rights, which reads as follows: That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience….473  Henry’s version differs from the older document—which was principally written by his fellow Antifederalist leader George Mason—in only a few words, indicated in the quote above in italics. His version reads instead “all men have an equal, natural, and unalienable right to the free exercise of religion.” How this language differs in meaning from “equally entitled” is hard to say. Henry’s version certainly emphasizes the extent to which religious liberty is a matter of natural right (as opposed to civil right, bestowed merely as a matter of law), but that distinction  473 George Mason, “Virginia Declaration of Rights and Constitution” (supra). Italics added for emphasis.    266 would seem to be clear in the original as well. It is also possible that the change was intended as a slight by Henry—or perhaps Mason—against Madison. For while the Virginia Declaration of Rights, including the section on religious liberty, was mostly written by Mason, Madison did suggest some edits that were approved by the convention, including what would become the line “all men are entitled to the free exercise of religion,” and in Mason’s original had read “all men should enjoy the fullest toleration in the exercise of religion.”474 Perhaps, more than a decade later, Mason seized the opportunity to make it his own once again and not allow Madison to be the more vigorous defender of religious liberty. At the very least, it does seem that Antifederalists took the opportunity to intentionally obscure Madison’s influence on the Virginia Declaration of Rights.  The larger break from or perhaps addition to the 1776 document is in Henry’s prohibition on religious establishment: “no particular religious sect or society ought to be favored or established, by law, in preference to others.” 475 Compared to the final text of the First Amendment, Henry’s recommendation is distinctly different. The First Amendment would eventually prevent Congress from passage of any law “respecting an establishment of religion,” a provision that prevents both federal intrusion in state establishments as well as support for a federal religious establishment. Henry’s proposal, on the other hand, does not prevent either, so long as support for religion is non-preferential between sects. As mentioned in chapter 4, Henry was a proponent of the Virginia religious establishment against Madison in the 1785 Virginia  474 Malbin, Religion and Politics, 20-22. 475 The establishment provision as recommended by the Virginia ratifying convention and reprinted in Figure 6.1 differs from the earliest version (of June 9). That version read “no particular Religious Sect or Society of Christians ought to be favored or established by Law in preference to others” (emphasis added to indicate what was changed). Muñoz, following the evidence offered by Kaminski and Saladino, argues that the removed language “of Christians” was a change made by the convention. See Muñoz, Religious Liberty and the American Founding, 141, and The Documentary History of the Ratification of the Constitution, Vol. IX at 819-21 and Vol. X at 1512ff.    267 legislative session, including legislation that would have provided support to multiple Christian sects. Perhaps Henry’s longstanding support for a loose state establishment helped to frame his proposed amendment, which might have allowed federal support on a similar model.476 Henry’s amendment would eventually help to guide Madison to add a provision about religious establishment in his draft to Congress, but the actual terms of Henry’s amendment are opposite of what Madison had in mind. Per Madison’s consistent refrain, the Constitution gave the federal government no power over religion—non-preferential or otherwise. Henry’s proposal, on the other hand, seems to suggest that the federal government does have power over religion, and it must therefore be channeled in such a way as not to prefer one sect over another.  The Final State Ratifying Debates  The Virginia ratifying convention was not the last, and something should briefly be said about the remaining conventions in New York, North Carolina, and Rhode Island. In New York the ratification process was similar in focus, tenor, and time to the Virginia convention. The state was similarly divided with Antifederalists pressing for “previous amendments” and Federalists willing to grant substantial leeway for subsequent amendments so long as ratification could be secured first. In the end the Federalists triumphed, but by even tighter margins than in Virginia.477 The wording of their declarations concerning religious liberty was obviously borrowed from Virginia (see Figure 6.1), though the preface from the Virginia Declaration of Rights (“That religion, or the duty which we owe to our Creator…”) was left off. They even  476 Muñoz describes Henry’s amendment in terms of “nonpreferential” treatment. See Muñoz, Religious Liberty and the American Founding, 140-43. 477 The Bill of Rights, 852-57.    268 adopted the Virginia formulation of free exercise as an “equal, natural, and unalienable right.” Where they significantly differed from Virginia was on the matter of conscientious objection. Given that they borrowed so obviously from their fellow state, it is hard to regard New York’s exclusion of such a provision as anything other than intentional. As we shall see in the debates of the First Congress in the next chapter, the new nation was not united behind this principle, at least not as a matter of natural rights.  North Carolina’s convention was also largely a repetition of the fight in Virginia, only with a ruling majority of Antifederalists. They ultimately decided the North Carolina ratifying convention in the manner that Henry had desired for Virginia, choosing “previous amendments” as a prior condition on ratifying the Constitution and therefore against joining the union. Their recommended “previous amendments” are essentially a facsimile of those proposed by Virginia, including all twenty amendments assembled as a declaration of rights and the additional twenty as direct edits to the text of the Constitution. The state would not ratify the Constitution until a new convention was called in late 1789, thus removing the possibility of the state’s participation in the First Congress’s deliberation about the Bill of Rights.478 Rhode Island was similarly unable to participate in the debates of the First Congress, following the pattern it set by also refusing to send delegates to the Constitutional Convention. When Rhode Island finally bothered to consider ratification of the Constitution in 1790, it rather obnoxiously included recommendatory amendments based upon Virginia’s amendments—in spite of the fact that the Bill of Rights had already been formally proposed for state ratification. The story here may be an interesting reflection upon the state of politics in Rhode Island, but it is outside the scope of this  478 Muñoz claims that, because North Carolina did not ratify the Constitution, its suggested amendments were not submitted to Congress. Muñoz, Religious Liberty and the American Founding, 135.    269 inquiry.479 The fact that Rhode Island followed North Carolina and, substantially, New York in copying the recommendatory amendments of Virginia is proof of just how authoritatively they were regarded.   Conclusions on the State Ratifying Debates  As a conclusion to our review of the state ratification debates, it is appropriate to observe that the primary influence on the religious clauses of the First Amendment came from Virginia, at least as they were originally presented by Madison (New Hampshire also deserves notice, as its language would be substantially adopted by the First Congress). This is true in the simple sense that Madison participated in the Virginia ratification, and that event in turn lit a fire under him to initiate the amendments that would become the Bill of Rights. In the case of religious liberty, his proposals cover several of the same points as those approved by the Virginia ratifying convention, though in different language. But the federal Bill of Rights also owes to Virginia in a larger sense. The movement of the states towards ratification simultaneous to a growing insistence upon amendments was like an incoming tide over the course of 1787 and 1788. Each convention proceeds on the momentum of the previous convention while building towards the next, at least until we come to the Virginia ratifying convention. Virginia is the culmination of the argument, and it quite literally resounds in the arguments and recommendations of the state conventions that follow.  479 The comments about Rhode Island during the Virginia ratification debate are revealing. According to Federalist Henry Lee, “That small state has so rebelled against justice, and so knocked down the bulwarks of probity, rectitude, and truth, that nothing rational or just can be expected from her” (“Eliot’s Debates,” Vol. III, 183). Antifederalist Benjamin Harrison commented, “Rhode Island is not worthy the attention of this house. She is of no weight or importance to influence any general subject of consequence” (Ibid, 628).    270  Yet for all the importance of the Virginia ratifying convention, the whole affair—and the whole last chapter—has surprisingly little to say about the overall focus of our inquiry. Not only were religious exemptions never discussed in the record of state ratification debates, but neither was religious liberty discussed in much detail. Antifederalists found the “no religious test” clause to be insufficient to the cause of religious liberty, but they probably would have objected to anything short of a formal bill of rights, plus any number of other amendments. And the substance of all recommendatory amendments, including a federal bill of rights, were essentially an afterthought to whether or not amendments should be required prior to ratification of the Constitution. This is not to say that the substance of recommendatory amendments did not matter, but rather that the people who proposed the amendments represented almost exclusively the interests of Antifederalists. They were more interested in building a coalition against the Constitution by writing and promoting a laundry list of its supposed deficiencies than in considering the finer details of a federal bill of rights.  The substance of Antifederalist recommendations for a bill of rights, especially in the matter of religious liberty, were derivative of prior documents. In the proposed religious amendments, we can see first the Virginia 1776 Declaration of Rights as the model for a free exercise guarantee, and second the recommendatory amendments from Maryland as the model for prohibiting federal religious preferences and guaranteeing a qualified right to conscientious objection. Using established language makes a lot of sense if your interest is in building a coalition, but it suggests that the Antifederalists were not interested in novel guarantees of liberty or in novel readings of rights that were generally accepted and popularly regarded. The model for a federal bill of rights was therefore to establish the same kinds of guarantees that were already in effect at the state level. The important thing about the ratification debates is that they were the    271 force behind the writing and passage of the federal Bill of Rights. They are politically important, but not especially useful for explaining the substance of their own recommendations, let alone the amendments finally passed by the First Congress. We are better off considering some of their source material—like the state constitutions considered in chapter 3.  The recommendatory amendments are also almost exclusively the work of Antifederalists. The debate in Virginia shows that the Federalists most responsible for the new Constitution and, soon, the Bill of Rights, were not really involved in writing amendments at this stage. The state ratification arguments put Federalists in a position where they needed to compromise; the compromise was not, however, one that involved careful deliberation about the substance of recommendatory amendments. Rather, Federalists compromised by adopting unrevised amendments from their Antifederalist antagonists on the grounds that those would be re-deliberated later. Federalists were exclusively interested in ratification. So the recommendatory amendments of Virginia and elsewhere do not reflect either the common interest nor the deliberative efforts of the whole country, but rather the party platform of a well-organized minority. The following chapter, which tracks the progress of amendments through the First Congress, will show how Antifederalist proposals fared against a Federalist-controlled Congress to ultimately become the Bill of Rights.  We would be remiss to conclude this chapter without saying anything specific concerning judicially-enacted religious exemptions, though they have not been much of a feature in this chapter. As far as the record demonstrates, religious exemptions were not discussed as part of the ratification debates. This need not surprise us, nor is it clear evidence against such provisions. The record does not, after all, afford much conversation about the content of a federal bill of rights, much less the meaning and implications of any single provision. But the purpose of this    272 dissertation is to collect and evaluate all of the evidence, to leave no stone unturned, and the ratification debates certainly merit our attention on that score. Also, the ratification debates, especially the debate in Virginia, are important for understanding how James Madison shifted from being a staunch opponent to a Bill of Rights to being its primary author. This is useful background as we enter our final chapter on the First Congress.  The one place where the ratification debates do mention religious exemptions is in the  recommendatory amendments for conscientious objection from Maryland, Virginia, North Carolina, and Rhode Island. These provisions, which are not discussed in the extant records, were likely derivative of similar state guarantees, including those discussed in chapter 3. Like their source material, they demonstrate several key features about how such exemptions were treated at the time across multiple states. Namely, that such exemptions were given in separate legal provisions and guarantees from those concerning religious liberty—that a right to conscientious exemption was not obviously regarded as derivative of a guarantee of religious liberty. Furthermore, a right to conscientious objection was always treated as a provisional right, one subject to finding a replacement or paying an equivalent as a means of satisfying the civic obligation of militia service. In short, these guarantees are a poor foundation for building a rhetorical argument around a general right to religious exemption.      273 CHAPTER 7 THE FIRST CONGRESS   The narrative arc of our last few chapters culminates in the work of the First Congress to write the First Amendment. As preface to that history, we should start with several contextual remarks. First, the records of the First Congress have been thoroughly combed for meaning by other scholars, including those interested in answering our same question about judicially-enacted religious exemptions. The following account will rely in part upon their observations and conclusions, and this author readily admits that the historical work has already been substantially completed, though without agreement among scholars.480 The purpose of recounting it here is primarily to provide a thorough account of our subject; a complete history of the origins and meaning of the First Amendment should, after all, include the legislative history of its drafting. This author hopes also to provide clarity to the topic for future students by presenting a clear and useful timeline (see Figure 7.1), by including the details of all recorded deliberation on the topic by the First Congress, and by comparing various interpretations alongside his own. The topic will also afford an opportunity to re-engage with Professor Michael McConnell, who remains the most formidable intellectual challenger to our thesis.  The second important prefatory remark is a warning that the records of the First Congress are spare and under-determinative of the meaning of the First Amendment. Professor McConnell observes, “The recorded debates in the House over these proposals cast little light on the  480 See Muñoz, Religious Liberty and the American Founding, 125-213; Malbin, Religion and Politics; and McConnell, “Origins,” 1480-1503.    274 meaning of the free exercise clause.”481 That conclusion is a bit too hasty—we can say a little about the meaning of the free exercise clause from reviewing the records of the First Congress, including concerning our fundamental question on religious exemptions. But the records of House deliberations are much thinner than we would prefer, and altogether lacking at several important points. The records of the Senate are even more spare. For while The Annals of Congress give at least some account of the deliberation in the House, The Journal of the Senate contains only a limited account of the formal motions and no details about the corresponding discussion or speeches in the upper house. We know that the Senate proposed several changes to what would become the First Amendment, but we have no indication of who proposed these changes or why they were proposed. Professor Muñoz similarly notes, “The drafting records in the First Congress do not yield a clear original meaning of what constitutes the ‘free exercise’ of religion.”482 An account of the First Congress is still fruitful to our overall inquiry, but it does not offer a simple answer to the question of religious exemptions.  The obvious limitation to our analysis of the First Congress is the record itself. The Annals of Congress only provide an account of the floor debates in the House; we therefore miss out on committee deliberation in the House, all discussion in the Senate, and the work of the conference committee that determined the final language of what would become the First Amendment. But the lack of clear direction from even the more detailed record of House debate points to an important inference: the First Congress was not overly concerned with the language of the First Amendment (or the language of other amendments, though they fall outside of our  481 McConnell, “Origins,” 1481. 482 Muñoz, Religious Liberty and the American Founding, 184. Malbin, after an analysis of the First Congress’s debates in order to find the meaning of the Establishment Clause, concludes, “The meaning of the free exercise clause is still unclear.” Malbin ultimately looks elsewhere, believing the congressional record on the Free Exercise Clause too incomplete to merit further consideration. See Malbin, Religion and Politics, 19ff.    275 current scope). It is therefore quite likely that the Congress never attempted to provide an exact definition to most of the proposed language around amendments. The reasons for their inattention begin with Federalists’ overall disinterest in a bill of rights, which has already been mentioned in Chapter 5 and rehashed in Chapter 6 in our consideration of the Virginia ratifying convention. Professor Muñoz summarizes the situation, saying that “the Bill of Rights was drafted by partisans who thought amendments were unnecessary.”483 Madison may have come around on the utility of a bill of rights as a political matter, but we should remember that he still thought that a formal declaration of rights would be dangerous in the final moments of the Virginia convention.484 His comments to the First Congress indicate a forceful desire to write and pass a declaration of rights, but as an important issue to his constituents, not as a matter of principle.485  The First Congress was also pressed for time. Madison believed it essential that the First Congress pass constitutional amendments in its first session. He was obviously worried that Henry and other Antifederalists might respond rashly if Congress did not act quickly on the recommendations of state ratifying conventions. One of his most significant concerns was that Antifederalists would call an Article V convention and revise the work of the Constitution before the new Constitution could be tested and proved. Dispatch was therefore more essential than lengthy deliberation. The First Congress was equally squeezed from the other side; it had  483 Muñoz, Religious Liberty and the American Founding, 188. 484 “Elliot’s Debates,” Vol. III, 626. 485 Madison’s rhetoric on this point during the debates of the First Congress can be somewhat confusing and even comic. After reading his proposed amendments on June 8, 1789, Madison identified his amendments as a kind of bill of rights, and that “a great number of the most respectable friends to the Government, and champions for republican liberty, have thought such a provision, not only unnecessary, but even improper; nay, I believe some have gone so far as to think it even dangerous.” But it was Madison himself (less than a year earlier) who had made that claim. See Annals of Congress, 453-459 (qt. at 453); see also Muñoz, Religious Liberty and the American Founding, 144.    276 immense and time-consuming obligations to construct legislation that would establish the new government. The Constitution had provided a framework for government, but it had not established the offices, procedures, and institutions necessary to carry out that work. Most members of the First Congress were much more concerned with establishing a basic tax and revenue framework and creating the judiciary, both of which were necessary as soon as the Articles were dissolved and likely much overdue by the summer of 1789. Roger Sherman addressed the House on June 8, 1789, after many of his colleagues had already complained of pausing other business to consider Madison’s proposed constitutional amendments. Summarizing the sentiment of the House, Sherman said, I am willing that this matter should be brought before the House at a proper time. I suppose a number of gentlemen think it their duty to bring it forward; so that there is no apprehension it will be passed over in silence. Other gentlemen may be disposed to let the subject rest until the more important objects of Government are attended to; and I should conclude, from the nature of the case, that the people expect the latter from us in preference to altering the constitution….486  The sense of urgency that modern readers bring to the Bill of Rights was simply not shared by the First Congress, whose urgency was instead focused on creating the institutions of the new government.  The reluctance of the First Congress to consider amendments, both as a matter of principle and as a practical consideration, was compounded by two further and related points. First, the Federalists who ultimately won the ratifying convention arguments and represented a majority in the First Congress had not been part of the recommendatory amendments insisted upon by their Antifederalist opposition. The original terms and parameters of the argument were  486 Annals of Congress, 444.    277 therefore established by those who only represented a minority in the Congress and rarely, if ever, led the formal deliberation over constitutional amendments.487 Second, the Antifederalist minority also lacked the incentive to deliberate overmuch about the language and meaning of proposed amendments. Antifederalists in the ratifying conventions were more interested in demonstrating that the Constitution lacked sufficient individual protections—and should therefore be amended previous to ratification—than in discussing exactly how those individual protections should be written. Theirs was a project of coalition building towards another constitutional convention more than lawmaking (or constitution-writing), and ambiguity around general provisions was therefore a valuable feature of a proposed federal bill of rights.488  The majority of conclusions will follow our narrative history and analysis in the coming pages, but one inference merits our attention here: The Bill of Rights, including the First Amendment’s religious protections, were not meant to initiate a significant change in practice or theory at the level of the federal or state governments. Where there is no smoke, there is not likely to be any fire; the First Congress did not intend to establish a revolutionary change to religious establishment or to protections for religious liberty without debate. The overall lack of argument likely means that the Congress understood its work to be pro forma, reflecting the consensus of the country on the topic, operating within already established frameworks, and simply providing explicit guarantees of accepted principles. We can reliably infer that the First Congress did not intend to establish a new set of meanings or practices around free exercise of religion, religious establishments, or a host of related topics, nor did they mean to expand or contract the powers of the federal government as they were enumerated in the Constitution.  487 Muñoz, Religious Liberty and the American Founding, 127. 488 Ibid., 188.    278 Madison explained his intent, which was basically fulfilled, on the day that he first proposed the amendments to Congress:  I have proposed nothing that does not appear to me as proper in itself, or eligible as patronized by a respectable number of our fellow-citizens; and if we can make the constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect.489  What Madison believed he was doing was therefore consistent, more or less, with the Federalist position on bills of rights. As we shall see, the final amendments reported out of the Congress were a reduced and edited version of Madison’s original draft, and the intent of the amendments did not change significantly as they proceeded through congressional deliberation. Madison and the Congress’s narrow intent need not diminish the respect paid to the Bill of Rights or its utility in our own time. As a historical matter, however, the Bill of Rights is probably not interpretable as a wholly novel set of guarantees, though of course it represented important explicit guarantees about how certain rights and procedures (e.g., rights of the criminally accused) would be handled in a novel federal context. Without clear evidence to the contrary, we should not expect to find rights guaranteed therein that were not already widely accepted and in use throughout the states. Concerning our question about judicially-enacted religious exemptions, we should also not expect the original intent of the First Amendment to differ significantly from state guarantees or contemporary practice—again, without clear contrary evidence. In other words, the state religious liberty guarantees discussed in Chapter 3 will remain an important guide to the meaning of the Free Exercise Clause. We will also consider how one species of religious exemption was  489 Annals of Congress, 459.    279 covered in the debates of the First Congress, which ultimately decided against entrenching them into the Constitution.  Madison’s Original Draft  Enough has been said of introductory remarks and preliminary observations—let us now turn to the details of the First Congress. Madison first announced his intention to propose constitutional amendments on May 4, 1789.490 His announcement was preliminary, and he promised to bring amendments three weeks later, on May 25. While we can only speculate about his timing, it was likely tied to an imminent announcement from the state of Virginia. The following day, May 5, Virginia representative Theodorick Bland presented the Virginia legislature’s formal motion (of November 14, 1788) for an Article V convention to amend the Constitution. The Virginia legislature was insistent that constitutional amendments be made with haste and without the superintendence of Congress:  The anxiety with which our countrymen press for the accomplishment of this important end, will ill admit of delay. The slow forms of Congressional discussion and recommendation, if, indeed, they should ever agree to any change, would, we fear be less certain of success. Happily for their wishes, the Constitution hath presented an alternative, by admitting the submission to a convention of the States. To this, therefore, we resort as the source from whence they are to derive relief from their present apprehensions.491  Bland, who was obviously aware that his fellow Virginian intended for the matter of amendments to be considered by Congress directly, moved to refer the motion to the Committee of the Whole for further deliberation, at least as a guide to the House’s own consideration of  490 Ibid., 257. 491 Ibid., 259.    280 amendments. Madison successfully quashed the motion by insisting that the Article V states’ convention process was not proper fodder for congressional deliberation. If two-thirds of the states request a convention, then the federal government must comply—but Congress has no authority to deliberate in the meantime. Elbridge Gerry, a staunch Antifederalist and fierce proponent of a Bill of Rights, defended Madison on the grounds that he had introduced the topic of amendments on the previous day and that the matter was therefore already introduced to the business of the House.492 Like his fellow Antifederalist Theodorick Bland, however, Gerry was obviously eager to consider the matter further and soon.  For reasons that were not recorded, Madison did not present his draft amendments on May 25.493 When he rose to offer them on June 8, however, he indicated that the present day had been “assigned for taking into consideration the subject of amendments to the Constitution.”494 Madison moved that the House resolve into a Committee of the Whole to consider the Amendments, but was immediately met with resistance by four Federalist representatives concerned that the House docket was already full with more pressing business. Madison responded with concern for how postponing the business of amendments might appear to constituents. He entreated his colleagues “that our constituents may see we pay a proper attention to a subject they have much at heart;” he also warned, “if we continue to postpone…it may occasion suspicions, which…may tend to inflame or prejudice the public mind against our  492 Ibid., 261. 493 Madison mentions the delay in a letter to Jefferson of May 27, 1789: “the subject of amendments…is postponed in order that more urgent business may not be delayed.” Madison to Thomas Jefferson, May 27, 1789, reprinted in The Papers of James Madison, Vol. 12, ed. Hobson and Rutland (Charlottesville: University Press of Virginia, 1979), 186. 494 Annals of Congress, 441.    281 decisions.”495 But after further discussion, Madison withdrew his motion and moved instead that the House create a select committee to review amendments and make a formal recommendation to the body. He simultaneously insisted on the reasons that the House should take up consideration of amendments. In perhaps his friendliest defense of a declaration of rights, Madison admitted, “[I]f all power is subject to abuse, …then it is possible the abuse of the powers of the General Government may be guarded against in a more secure manner than is now done….” Furthermore, Madison explained that his proposed amendments were not radical but were rather “such as would be likely to meet with the concurrence of two-thirds of both Houses, and the approbation of three-fourths of the State Legislatures.”496  Madison then read aloud his proposed amendments. The relevant amendments for our consideration are listed in Figure 7.1, but excerpted with additional context here: Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: [1] The civil rights of none shall be abridged on account of religious belief or worship, [2] nor shall any national religion be established, [3] nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. … The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: [4] but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. … Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:  495 Ibid., 444. In a letter to Richard Peters, Madison claimed, “If amendts. had not been proposed from the federal side of the House, the proposition would have come within three days, from the adverse side.” Madison to Richard Peters, August 19, 1789, reprinted in The Papers of Madison, Vol. 12, 347. 496 Ibid., 449-450. Madison repeated this point regularly in his personal correspondence. See, for example, his letter to Samuel Johnston of June 21, 1789, reprinted in The Bill of Rights, 1048-49.    282 [5] No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.  The suggested amendments concerning religion have been bolded for emphasis and annotated above to include numbers in brackets. For the remainder of our history and analysis, these numbers will be used for organization and clarity, labeled Provisions #1-5.  We will return to the events of June 8, 1789, and following, but we should first consider the original draft amendments as offered by James Madison. In no case did Madison simply repeat the recommendatory language offered by the states, though at least three of his amendments proceed easily from the amendments offered by state ratifying conventions (see Figure 6.1). The exceptions to this rule are Provision #5, which has no precedent in any state recommendation, and Provision #1, which was not recommended by the state conventions but does match the guarantees offered in many state constitutions and bills of rights. Provision #1, “The civil rights of none shall be abridged on account of religious belief or worship,” looks very similar to what Chapter 3 identifies as a “Religious Equal Protection Clause” (see especially Figure 3.1). As Chapter 3 demonstrates, eight states and the Vermont Republic had similar active protections in 1789. For example, a similar provision in the 1776 Maryland Declaration of Rights guaranteed that “no person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice” (Figure 3.1). The same sort of provision in the Pennsylvania Constitution of 1776 explicitly granted civil rights regardless of one’s belief or worship. The sense of all of these provisions, including Madison’s Provision #1, is that belief and worship are entirely separate from civil rights. The only real difficulty with Provision #1 is that would seem to be redundant to or perhaps a subset of the “rights of conscience” protected by Provision #3, and it is unclear how to distinguish the former provision.    283 It may be enough to say that, in his effort to ensure protections for conscience, Madison was willing to propose redundancy, especially when state constitutions had often done likewise. Professor Muñoz offers two points for further consideration. First, Provision #1 may have been intended as a second guarantee to federal officeholders behind the “no religious test” clause of Article VI.497 In other words, Provision #1 was intended to protect the civil rights of federal officeholders. Second, Madison may have regarded Provision #1 as redundant to Provision #3, but included both in order to ensure a broader scope of religious liberty among those who did not perceive them to be redundant. We know that Madison feared that a bill of rights would leave unprotected any rights that were not specifically enumerated; in consequence, he might have been willing to over-enumerate them.498  Madison’s Provision #2 (“nor shall any national religion be established”) would evolve to become the Establishment Clause. A version of this provision was recommended by several of the state ratifying conventions, beginning with the Maryland minority, employed by the Virginia convention (though the Virginia proposal is not a strict prohibition on establishment), and finally repeated in the recommendations of New York and North Carolina (and Rhode Island in 1790). Madison’s version is closest to that proposed by the Maryland minority: “That there be no national religion established by law…” (Figure 6.1). Madison’s only real change, apart from re-arranging the sentence, was to drop the final preposition “by law.” Presumably this is a difference without a distinction, though it might open the possibility of also banning establishments that were not created by law—i.e., a de facto establishment or one created by the  497 Muñoz, Religious Liberty and the American Founding, 146. 498 Ibid., 190.    284 Executive without the formal approval of Congress.499 Madison’s version was certainly not more limited than that proposed by the Maryland minority. What we can readily conclude about Madison’s draft of Provision #2, however, is that the word “national” indicates its primary intent as a reinforcement of federalism. State establishments of religion would still be permitted under the framework of Provision #2, and only a federal or national-level establishment was forbidden. Because the Constitution never gave the federal government authority over religion, it is easy to see how Provision #2 unites Madison in common cause with those seeking guaranteed limits on federal authority, and furthermore how his version differed from the version proposed by Virginia and its imitators, which might have allowed a non-preferential federal establishment.  For the sake of continuity, it makes sense to think of Provision #3 (“nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed”) as the first draft of what will become the Free Exercise Clause. Admittedly, however, this association is a bit like the old joke about Abe Lincoln’s axe (the head has been replaced once and the handle twice, but it is still the original and authentic article). The provision will be changed quite a few times as we proceed through the events of the First Congress. The basic sense of Provision #3 in the original form is that government cannot, in any way or for any reason, infringe the “full and equal rights of conscience.”500 We will have occasion to revisit the verb “infringe.” In the meantime, what did Madison mean by “rights of conscience”? None of the state constitutions or declarations of rights effective in 1789 used the formulation “rights of conscience,” but that would change with its inclusion in the Delaware Declaration of Rights in 1792, after which it  499 The primary focus of Madison’s amendments, however, was on limitations to the legislature: “In our Government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be levelled against the legislative, for it is the most powerful….” Annals of Congress, 454. 500 For an alternative reading of Madison’s draft, see McConnell, “Origins,” 1481-82.    285 seems to spread into the newly formed western states (see Figure 3.1). Many of the pre-1789 state constitutions refer to “conscience” in the context of belief and worship, as with the 1784 New Hampshire Bill of Rights: “Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience.” It is therefore reasonable to infer that “rights of conscience” means both a right to believe and to worship as one sees fit—and possibly more. Professor McConnell is skeptical on this point, however, and makes an interesting case that conscience meant only belief and did not also include a right to religious practice or worship.501 Supposing that McConnell is correct, it is interesting that Madison included it in his original draft, especially when “free exercise of religion” was already the language suggested by several of the state conventions and is, by McConnell’s reasoning, a broader guarantee. Since there is no consensus or obvious answer here, we can only speculate. It is interesting that the phrase “rights of conscience” was used by the minority party in both Pennsylvania and Massachusetts and then by the New Hampshire ratifying convention. After Madison used the phrase in his draft to the First Congress, it became a popular expression in state bills of rights. So we know where Madison got the expression—though we do not know why he chose it—and we know that the phrase would soon become a popular expression for legal guarantees of religious liberty. Perhaps Madison simply chafed against using “free exercise of religion” in his original draft because Henry, Mason, or whoever proposed the Virginia recommendatory amendments had specifically changed Madison’s line from the 1776 Virginia Declaration of Rights. Given later developments, which we will consider in detail, it is likely that the First Congress regarded “the full and equal rights of conscience” as effectively synonymous with “the free exercise of  501 McConnell, “Origins,” 1488-1500.    286 religion.” But as we will see, assuming that these phrases are synonymous does not remove all possibility of confusion.  Provision #4, a right to conscientious objection from military service (“but no person religiously scrupulous of bearing arms shall be compelled to render military service in person”), was consistent with the existing state constitutions of Delaware, New Hampshire, New York, and Pennsylvania (see Figure 3.1). It was also recommended as a constitutional amendment by the minority party in Maryland and the conventions in Virginia and North Carolina. New York, despite essentially copying the recommendations of Virginia, opted to leave out a conscription exemption. Madison’s draft follows the pattern of Maryland, which requires that the conscientiously scrupulous not “be compelled personally” to military service. Madison’s diction is clearer to the modern ear, with the substitution of “in person” instead of “personally.” This language is in slight contrast to that proposed in Virginia and North Carolina, which looks closer to the “equivalent payment” language used in several of the state constitutions (see Figures 3.1 and 6.1), but it shares their sense of conditionally modifying or limiting the right. Madison’s language may have intended to mean essentially the same: that exemptions for conscientious objectors might be offered conditionally, and at substantial cost. The difference is that Madison’s version left more leeway for the treatment of conscientious objectors, so long as they were not “compelled to render military service in person”—perhaps to serve in some other manner, for example—and Madison’s version puts far less emphasis on the limitation to the right. Madison’s version, as opposed to the version suggested by Virginia or North Carolina, may offer considerable leeway to a poor person who could not afford an “equivalent payment” but could nonetheless not be forced into conscription. Provision #4 will require significant additional attention as it was discussed by the House and ultimately dropped by the Senate. But it is    287 worthwhile here to reiterate several points raised on the topic of conscientious objection in Chapter 3. The right to conscientious exemption proves that the American Founding was cognizant of religious liberty claims that were best accommodated by means of exemption. In every case, however, they appear to deal with it as a separate matter and in separate provisions from general guarantees of religious liberty, meaning that guarantees of religious liberty do not necessarily imply a right to an exemption. Even in Madison’s draft the provision is not connected to any of the other four itemized provisions discussed here. Madison also qualifies the right, limiting it to an “in person” guarantee that would allow a future legislature to condition its availability. None of the other four religious provisions are similarly qualified or limited. In short, the presence of Provision #4 confirms that the Founding generation had considered religious exemptions of at least one kind, but it does not easily follow that Provision #4 can serve as justification for other kinds of religious exemption, especially because it is ultimately dropped from the Bill of Rights.  Provision #5, finally, is the most surprising of the amendments offered by Madison—and not simply among the amendments of a religious character—because it lacks any precedent in state constitutions or ratifying conventions. Besides being unasked for, Provision #5 (“No State shall violate the equal rights of conscience”) represents a bold limitation to the powers of state governments. The protection of religion offered here is notable for being a repetition of the “equal rights of conscience” protection from Provision #3. Supposing that language did mean a guarantee of both religious belief and practice, Madison was suggesting a right to religious liberty that extended as far—and in the case of Connecticut, Maryland, and South Carolina, even    288 farther—than most state guarantees.502 And of course he must have understood that the federal judiciary would use this provision to define a nationwide standard to be employed as a minimum throughout the whole republic. Without quite saying it, Madison took the basic criticism of the Antifederalists, which said that the Constitution insufficiently protected individual rights, and turned it around on them. Provision #5 is Madison in heated agreement: offering something that no one asked for and telling the likes of Patrick Henry that we should insist on individual protections, especially against capricious state governments! Explaining this section to the House on June 8, Madison said, I know, in some of the State constitutions, the power of the Government is controlled by such a declaration; but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the State Governments are as liable to attack these invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.503  The provision would not survive the Senate, but we can certainly admire Madison’s boldness in suggesting it. We should also notice that, like Provision #4, Provision #5 helps to demonstrate the limits of Provisions #1-3. Where Provision #4 shows that those provisions did not automatically extend to conscientious objectors, Provision #5 makes abundantly clear that Provisions #1-3 were only meant to apply to the federal government.  502 Per Figure 3.1, in 1789 Connecticut had no bill of rights until 1818, Maryland only guaranteed religious rights to Christians, and South Carolina limited religious rights to monotheists. As though anticipating objections, Madison included a comment about state bills of rights in one of his speeches of June 8, 1789: “Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bill of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty” (Annals of Congress, 456). 503 Annals of Congress, 458.    289  After reading his proposed amendments, Madison continued with a long and rhetorically powerful speech, responding to yet unspoken objections and explaining the sense of his proposal. Madison did not speak to any of the religious provisions, except for the block quote concerning Provision #5 in the immediately preceding paragraph, and his speech does not provide further clarity on their meanings. Several members took the floor immediately afterwards to dispute his motion that the House appoint a select committee to review the amendments. Some protested on the grounds that amendments, and especially a bill of rights, were unnecessary; some objected because of other essential business before the House. Perhaps the most interesting objection came from Elbridge Gerry, who was and would remain a staunch proponent of amendments. Gerry wanted such an important matter to be discussed by the whole body, not a mere committee. But even he agreed that the current business of the House was more pressing than Madison’s proposal. Gerry explained, “the salvation of America depends upon the establishment of this Government,” and furthermore, “Proposing amendments at this time, is suspending the operations of Government, and may be productive of its ruin.”504 Gerry suggested delaying the matter until the beginning of July. The House ultimately decided in favor of considering the Amendments as a Committee of the Whole, though it did not establish a specific time when it would return to the subject. The matter would rest for more than a month.  Madison returned the issue of amendments to the House as the first matter of discussion on July 21, and he requested that the House move forward with its decision of June 8 to consider the amendments as a Committee of the Whole. Fisher Ames, a Federalist from Massachusetts, immediately followed Madison and recommended that the House rescind its order of June 8 in  504 Ibid., 463, 467.    290 favor of giving the amendments to a committee. He was joined in his recommendation by several Federalists, all of whom saw a committee as the easiest way to keep the project moving without delaying the other essential work of the House. While there is no record of their intentions, the reader can sense Federalists rallying around the Committee as the best way to boost Madison’s amendments without opening the matter too wide and therefore allowing Gerry and others to propose a much wider and more ambitious set of proposals that might derail the cause altogether—or worse, derail the whole project of government. Against objections from Gerry and other Antifederalists, they successfully resolved the House in favor of giving the amendments to a Select Committee, with one member representing each of the eleven states then part of the union (Rhode Island and North Carolina had not yet joined the union). Madison was, of course, chosen to represent Virginia. Some of the loudest Antifederalists advocating for amendments, including Elbridge Gerry of Massachusetts and Thomas Tudor Tucker of South Carolina, were not included on the committee.505   Select Committee Amendments  The Select Committee met and completed its work quickly. We have no record of its deliberation, nor is much said about it in extant correspondence, so we must content ourselves with reviewing its report. The report was delivered back to the House by Committee Chairman John Vining (Delaware) on July 28, only a week after the creation of the committee. The report tends to confirm our account that Federalists used the committee to build momentum behind Madison’s original draft while keeping the Antifederalists from consideration of a larger set of  505 From a brief survey, it appears that Aedanus Burke of South Carolina was likely the only reputed Antifederalist to be named to the committee.    291 potential amendments.506 The amendments as recommended by the committee were not different in kind from Madison’s original, and they represented some change in language without any significant additions or subtractions.507 For the purpose of reviewing changes to Provisions #1-5, it will be helpful for the reader to see Figure 7.1, printed immediately below. Figure 7.1 provides a comprehensive timeline of recorded changes to the religious amendments as they moved through the First Congress. The “Edits” column shows what text was added from the immediately prior version in italics and what was removed with strikethrough text. The “Text” column includes the current version as-of the end of each relevant day, plus annotations for the religious provision number, per the numbering already used above.  Figure 7.1—Timeline of Religious Amendments in the First Congress Date Action Edits Text May 4, 1789  House Madison makes an announcement to the US House of Representatives of his intention to introduce the topic of constitutional amendments on May 25, helping to counter applications from VA and NY for an Article 5 Convention.508   May 25  House Though unrecorded, the House apparently agrees to delay Madison’s introduction of constitutional amendments.509   Jun. 8  House Madison presents his constitutional amendments, including the original text of a constitutional amendment concerning religious liberty, to the House of Representatives. Debate ensues and concludes with a motion to go into Committee of the Whole  “[1]The civil rights of none shall be abridged on account of religious belief or worship, [2] nor shall any national religion be established, [3]nor shall the full and equal rights of  506 Committee Chairman John Vining defended the work of the committee on August 15, explaining that the Committee did not consider the full list of recommendatory amendments from the states because, “The committee conceived some of them superfluous or dangerous, and found many of them so contradictory that it was impossible to make any thing of them….” Annals of Congress, 770. 507 The Bill of Rights, 1050. 508 The Bill of Rights, 1006; Annals of Congress, 257. 509 The Bill of Rights, 1006.    292 for further consideration of the amendments.510 conscience be in any manner, or on any pretext, infringed.  …[4] no person religiously scrupulous of bearing arms shall be compelled to render military service in person.  …[5] No state shall violate the equal rights of conscience….”511 Jul. 21  House Madison asks the House to consider his proposed amendments, consistent with the motion passed on June 8. The House instead votes to create a Select Committee with a member from each state to consider amendments. Committee includes Vining, Madison, Baldwin, Sherman, Burke, Gilman, Clymer, Benson, Goodhue, Boudinot, and Gale.512 [no change]  Jul. 28  House The Select Committee makes report to the House with its amendment recommendations.513 “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national  no religion shall be established by law, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.  …no person religiously scrupulous of bearing arms shall be compelled to bear arms render military service in person.  No state shall violate infringe the equal rights of conscience….” “[2]No religion shall be established by law, [3] nor shall the equal rights of conscience be infringed.  …[4] no person religiously scrupulous shall be compelled to bear arms.  [5] No state shall infringe the equal rights of conscience….”514 Aug. 3  House Madison stirs the House towards consideration of the Select Committee report. House votes to [no change]   510 Annals of Congress, 440-468; The Bill of Rights, ed. Schwartz, was especially helpful in assembling the timeline of events for the First Congress—see especially 983ff. 511 Annals of Congress, 451-52. 512 Ibid., 691. 513 Ibid., 699. 514 Ibid., 757, 778, 783.    293 consider amendments on August 12.515 Aug. 13  House House begins consideration of amendments proposed by the Select Committee as a Committee of the Whole.516 [no change]  Aug. 15  House The House considers the first proposed constitutional amendments concerning religion. (Provisions #2 and 3).517 “Congress shall make No laws touching religion or infringing shall be established by law, nor shall the equal rights of conscience be infringed.  …no person religiously scrupulous shall be compelled to bear arms.  No state shall infringe the equal rights of conscience….” “[2] Congress shall make no laws touching religion [3] or infringing the equal rights of conscience.518  …[4] no person religiously scrupulous shall be compelled to bear arms.  [5] No state shall infringe the equal rights of conscience….” Aug. 17  House The House considers the latter constitutional amendments concerning religion (Provisions #4 and 5)—that is, the conscientious objector provision and the provision concerning religious liberty protections against state governments.519 “Congress shall make no laws touching religion or infringing the equal rights of conscience.  …no person religiously scrupulous shall be compelled to bear arms.  No state shall infringe the equal rights of conscience…shall not be infringed by any State.” “[2] Congress shall make no laws touching religion [3] or infringing the equal rights of conscience.  …[4] no person religiously scrupulous shall be compelled to bear arms.  [5] The equal rights of conscience…shall not be infringed by any State.” Aug. 19  House The House agrees, upon motion by Roger Sherman, to add the new amendments as a supplement to the Constitution rather than integrate them as edits to the original text.520 [no change]  Aug. 20  House The House begins consideration of the amendments as referred by the Committee of the Whole, including Provisions #2 and 3.521 “Congress shall make no laws touching establishing religion, or to prevent the free exercise thereof, or “[2] Congress shall make no law establishing religion, [3] or to prevent the free exercise thereof, or  515 Ibid., 700. 516 Ibid., 730. 517 Ibid., 757-59. 518 Ibid., 759. 519 Ibid., 778-784. The text of the state provision changes here by recommendation of Livermore of New Hampshire. This same text reverts to the prior version in future iterations, but without any explanation. It may simply have been a transcription error. 520 Ibid., 795. 521 Ibid., 795-96.    294 infringing to infringe the equal rights of conscience.  …no person religiously scrupulous shall be compelled to bear arms in person.  The equal rights of conscience…shall not be infringed by any State.” to infringe the rights of conscience.  …[4] no persons religiously scrupulous shall be compelled to bear arms in person.  [5] The equal rights of conscience…shall not be infringed by any State.” 522 Aug. 21-24  House While The Annals of Congress include no clear changes made to any of the religious provisions on August 21, the Journal of the House and Senate both reflect amended language.523 “Congress shall make no law establishing religion, or to prevent prohibiting the free exercise thereof, or to infringe nor shall the rights of conscience be infringed.  …no persons one religiously scrupulous of bearing arms shall be compelled to bear arms render military service in person.  No State shall infringe…The equal rights of conscience…shall not be infringed by any State.” “[2] Congress shall make no law establishing religion, [3] or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.  …[4] no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.  [5] No State shall infringe…the rights of conscience.” Aug. 22  House The constitutional amendments are referred to a three-man committee (Benson, Sherman, and Sedgwick) for formal arrangement as a supplement to the Constitution.524 [no change]  Aug. 24  House The three-man committee reports back the amendments; they are agreed to by the House and delivered to the Senate.525 [no change]  Aug. 25  Senate The amendments referred by the House are read in the Senate; the Senate schedules deliberation to begin on August 31.526 [no change]  Sep. 2  Senate The Senate begins deliberation on the constitutional amendments referred by the House.527 [no change]   522 Journal of the House of Representatives of the United States, Volume 1, Session 1 (Washington, DC: Gales & Seaton, 1820), 85; Journal of the First Session of the Senate of the United States of America, 1789-1793, Volume 1, Session 1 (Washington, DC: Gales & Seaton, 1820), 63. 523 Journal of the House, 85; Journal of the Senate, 63. 524 Annals of Congress, 808. 525 Ibid., 808-09. 526 Journal of the Senate, 63-64. 527 Ibid., 69.    295 Sep. 3  Senate The Senate considers the first constitutional amendment concerning religion.528 “Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.  …no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.  No State shall infringe…the rights of conscience.” “[2] Congress shall make no law establishing religion, [3] or prohibiting the free exercise thereof.  …[4] no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.  [5] No State shall infringe…the rights of conscience.” Sep. 4  Senate The Senate revises the amendment concerning freedom of speech and the press (which is still separate from an amendment concerning religion) to include the language “Congress shall make no law.” Furthermore, the Senate drops the conscientious objector provision without comment.529 “Congress shall make no law establishing religion, or prohibiting the free exercise thereof.  …no persons religiously scrupulous shall be compelled to bear arms in person.  No State shall infringe…the rights of conscience.” “[2] Congress shall make no law establishing religion, [3] or prohibiting the free exercise thereof.  [5] No State shall infringe…the rights of conscience.” Sep. 7  Senate The Senate votes down the proposed constitutional amendment concerning religious protections against state governments.530 “Congress shall make no law establishing religion, or prohibiting the free exercise thereof.  No State shall infringe…the rights of conscience.” “Congress shall make no law establishing religion, or prohibiting the free exercise thereof. Sep. 9  Senate The Senate changes the remaining amendment concerning religion and appends it to the amendment concerning free speech and a free press.  The Senate approves the plan of constitutional amendments, as deliberated, and returns the matter to the House.531 “Congress shall make no law establishing articles of faith or a mode of worship religion, or prohibiting the free exercise of religion thereof, or abridging the freedom of speech….” “[2] Congress shall make no law establishing articles of faith or a mode of worship, [3] or prohibiting the free exercise of religion, or abridging the freedom of speech….” Sep. 10  House The House receives the amendments as approved by the Senate. No action is taken at this time.532 [no change]   528 Ibid., 70. 529 Ibid., 70-71. 530 Ibid., 72. 531 Ibid., 77-78. 532 Annals of Congress, 923.    296 Sep. 19  House The House begins deliberation on the Senate’s version of amendments; votes to delay further consideration until the next business day.533 [no change]  Sep. 21  House The House approves a conference committee with the Senate to deliberate on disagreements concerning the amendments. Madison, Sherman, and Vining are appointed to said committee.534 [no change]  Sep. 21  Senate The Senate receives the House’s request, concurs, and appoints Ellsworth, Carroll, and Paterson as its conferees.535 [no change]  Sep. 24  House The conference committee reports back to the House, recommending acceptance of the great majority of the Senate’s changes, but also recommending several further changes, including a change to the amendment concerning religion. The House concurs with the committee and approves the amendments for distribution to and approval by the states.536 “Congress shall make no law respecting an establishment of religion establishing articles of faith or a mode of worship, or prohibiting the free exercise thereof of religion, or abridging the freedom of speech….” “[2] Congress shall make no law respecting an establishment of religion, [3] or prohibiting the free exercise thereof, or abridging the freedom of speech….”537 Sep. 25, 1789  Senate The Senate votes to approve the amendments as received from the conference committee on September 24, including the change to the religious provision. [no change]  December 15, 1791   The Bill of Rights officially becomes part of the Constitution with the ratification by the tenth state, Virginia. [no change]     533 Ibid., 938. 534 Ibid., 939. 535 Journal of the Senate, 84. 536 Annals of Congress, 948. 537 The Annals of Congress records the language of the amendment as “Congress shall make no law respecting an establishment of religion, or prohibiting a free exercise thereof” (emphasis added). The Journal of the House and The Journal of the Senate, on the other hand, record the amendment as it has been known subsequently with the determinate article (the) in place of the indeterminate (a) before “free exercise.” See Journal of the House, 121; Journal of the Senate, 86-87.    297  Figure 7.1 helps to clarify what would take significant time and attention to explain otherwise, and it will be a regular reference throughout our narrative. Regarding the changes made by the Select Committee (July 28, 1789), we can see the following changes: Provision #1 was removed entirely; Provision #2 was shortened and the word “national” was removed; Provisions #3 and #4 were shortened; Provision #5 saw “violate” replaced with “infringe.” Based upon the changes made throughout the five provisions, we can fairly infer that brevity was an important objective of the committee and furthermore that Provision #1 was dropped for this reason. This inference may confirm our previous observation that Provision #1 was redundant to the “rights of conscience” in Provision #3.538 We lack the evidence to say anything with much confidence here, but we at least have a plausible case for arguing that, among other things, Provision #3 (which will become the Free Exercise Clause) means that one’s civil rights should not be contingent upon one’s religious belief or practice. Provision #1 was also not a provision recommended by any of the state conventions, so the committee may have decided that it lacked political utility—no one asked for it, after all—and therefore it was not worthwhile.  The removal of “national” from Provision #2 was likely intended to pacify Antifederalists, who objected strongly to the idea that the new government was a “national” one, though it introduced ambiguity in a manner that would lead to confusion and argument in the House on August 15. The shortening of Provisions #3 and #4 appear to be mostly aesthetic, though they do raise some questions. In Provision #3, an argument could be made that “full and equal rights of conscience” is rhetorically stronger than merely “equal rights of conscience,” but it is hard to imagine a court enforcing them any differently. The shorter version of Provision #3  538 Malbin agrees that Provision #1 was likely redundant to Provision #3. See Malbin, Religion and Politics, 5.    298 also makes it consistent with the language of Provision #5. Removing “in person” from Provision #4 potentially removes the conditions from the right, allowing those claiming conscientious objection to do so without regard to time, place, or manner restrictions. Perhaps the committee simply wanted to give the Congress more leeway to assign conditions, especially because later debate does not indicate a consensus that such rights should be granted unconditionally—but the text itself certainly admits of an unconditional reading. The change to Provision #5 (“infringe” instead of “violate”) is probably similarly immaterial, but it at least opens the possibility of a stronger reading than in the original version.539 We may find it difficult to define exactly when someone’s “rights of conscience” have been violated, but it is easy to see that the same right, once violated, has already been infringed—and likely the threshold for “infringement” was met first. The fact that Provision #5 was not weakened and may even have been strengthened by the Select Committee suggests that Madison’s bold venture paid off, at least initially. The Committee did not object to Provision #5, regardless of the fact that it had not been requested by Antifederalist opposition to the Constitution.  John Vining, the Select Committee chairman, may have erred when he submitted the report on June 28 without insisting on any further action. When nothing was done about the committee report, Madison successfully motioned on August 3 for the matter to be the order of business for August 12. Other business still occupied the House on August 12, however, so debate waited until the following day. On August 13 Richard Bland Lee (Virginia) began the open business of the day with a motion for the House to resolve into a Committee of the Whole to consider the Select Committee amendments. He was met with a now familiar chorus of  539 McConnell reviews a similar debate on the meaning of words used in the First Amendment and regards the differences as largely a matter of style. See McConnell, “Origins,” 1486-88.    299 opposition, with Federalists claiming that establishing the new government was too urgent to admit of delay and others, especially Antifederalists, wanting to delay to a time when the House could consider a much broader range of amendments.540 Displaying his usual leadership in the matter, Madison explained: Some gentlemen seem to think that additional propositions will be brought forward; whether they will or not, I cannot pretend to say; but if they are, I presume they will be no impediment to our deciding upon those contained in this report. But gentlemen who introduce these propositions will see, that if they are to produce more copious debate than has hitherto taken place, they will consume a great part of the remainder of the session. I wish the subject well considered, but I do not wish to see any unnecessary waste of time; and gentlemen will please to remember that this subject has yet to go before the Senate.541  Madison’s encouragement seemed to work—and would continue to guide the House away from significant consideration of amendments not contained in the committee report. After two more brief comments from other members, the majority voted in favor of Lee’s motion and began consideration of the amendments as a Committee of the Whole. The intention of the House was to consider amendments one at a time, but this progress was stalled before it could start. The chair read the first few lines of the committee report, then Roger Sherman (Massachusetts) immediately questioned the form of the report as a series of amendments to specific articles in the existing Constitution. Sherman instead proposed that the amendments be appended to the Constitution. The debate on this topic would last for the balance of the day with the House finally deciding against Sherman’s motion, keeping the amendments as proposed by Madison—though the House would soon change its mind.   540 Annals of Congress, 730-734. 541 Ibid., 733.    300 House Deliberation as a Committee of the Whole  The next day, August 14, the House reconvened as a Committee of the Whole and immediately resumed consideration of the amendments. After a full day of deliberation, the House successfully made its way through three of the nine proposed changes—to wit, those dealing with a change to the Preamble, the proportion of House Representatives to citizens, and to a prohibition against Congress making immediate changes to its own salary schedule. The next amendment, or “fourth proposition” as it was then labeled, dealt with Madison’s proposed federal guarantee of individual rights, beginning with our Provision #2 and #3 (Provision #1 having been dropped by the Select Committee). Both provisions were treated together as the first order of business on August 15, and Provision #2, concerning religious establishment, was more clearly covered in the conversation.  The basic concern shared among several members of the House was that, as currently constructed, Provision #2 (“No religion shall be established by law…”) might be interpreted in an irreligious or anti-religious fashion, especially concerning state establishments of religion. Peter Sylvester (New York) “feared it might be thought to have a tendency to abolish religion altogether.”542 Benjamin Huntington (Connecticut) worried that it might be used against New England’s religious establishments: “If an action was brought before a Federal Court…for a support of ministers, or building of places of worship might be construed into a religious  542 Ibid., 757. Muñoz notes that Sylvester may have “feared that ‘established by law’ could be interpreted to prohibit religions from legally incorporating or maintaining any standing in law; the amendment, so understood, would have eliminated religious societies’ legal rights.” See Muñoz, Religious Liberty and the American Founding, 149. Malbin, on the other hand, thinks that Sylvester may have been concerned that Provision #2 would prevent any federal legislation giving aid or support to religion, including bills like the Northwest Ordinance. See Malbin, Religion and Politics, 7 and 14.    301 establishment.”543 The debate indicated that everyone present understood Provision #2 as it has been discussed thus far, as a federalism provision meant to ban a federal or national establishment without any intended effect on state governments, though there was not agreement that the existing provision accomplished that goal, and there was furthermore concern that it might have other negative consequences. The record is vague about the effect (if any) that Provision #2 was understood to have on federal support for religion. As mentioned, several speakers were concerned that it might have a chilling effect upon religion—and this was regarded as a bad thing—but the concern centered on how the provision would be interpreted, not on any fundamental disagreement between members of the House. In response, Madison proposed that “national” be added back into the language of the provision, a reversal of one of the changes made by the Select Committee. Elbridge Gerry successfully beat back this suggestion, however, on the ground that theirs was not a national government—a point of considerable contention during the ratifying debates. Meanwhile Samuel Livermore proposed that they simply use language nearly identical to the recommendatory amendment from his own state of New Hampshire: “Congress shall make no laws touching religion, or infringing the rights of conscience.”544 Without any recorded discussion, Livermore’s proposal carried and the House moved to the next provisions of the committee report, which do not directly concern us here.  When Livermore introduced his motion, he explained that “he did not wish them to dwell long on the subject.” Unfortunately for our inquiry, Livermore’s wish was granted; the House did not discuss it at all. We are therefore ill-equipped to say what Livermore’s text—which was the  543 Annals of Congress, 758. For more on Huntington’s remarks, see Muñoz, Religious Liberty and the American Founding, 152-53. 544 Ibid., 759.    302 most substantial edit to Provision #2 made by the First Congress—meant to those who initially adopted it. We can at least say that it meant about the same as the prior version of Provision #2 and was therefore meant to prevent a national or federal religious establishment while leaving state establishments alone. (The actual definition of a religious establishment was not discussed on August 15 or anywhere in the record of the First Congress.) By clarifying its applicability to Congress, the new version helps to clarify that point.545 But the new text also creates new confusions. The same House had deliberated about the Northwest Ordinance only a month earlier, and that bill indicated congressional encouragement for “schools and the means of education” because “religion, morality, and knowledge” are “necessary to good government and the happiness of mankind.”546 The Northwest Ordinance appears to touch on the subject of religion by mentioning it, but certainly it could not have been the intention of the House to void a law it had so recently approved.547 The tone of debate on August 15 was not to prevent any and all federal support for religion, so it does not seem appropriate to interpret Livermore’s text in that way. But the text itself certainly suggests that any specific mention of religion in federal statute—whether in support or opposition to religion—would be forbidden, so we can be grateful that the text would be amended further.  545 See Muñoz, Religious Liberty and the American Founding, at 157 for further discussion on this point, including disagreement from Justice Souter in Lee v. Weisman (1992). 546 For evidence of congressional deliberation on the Northwest Ordinance, see Annals of Congress for July 20 and 21, 1789, at page 685. For the text of The Northwest Ordinance, see “Northwest Ordinance (1787),” part of the “Milestone Documents” series from the National Archives, <https://www.archives.gov/milestone-documents/northwest-ordinance>. Muñoz makes a similar point with reference to conscientious objection, since laws exempting the “religiously scrupulous” from military service were similarly laws “touching” religion, see Muñoz, Religious Liberty and the American Founding, 158-59. 547 McConnell takes a contrary view on the meaning of Livermore’s amendment. By his telling, “The wording of this proposal tends to support the exemptions view, since the second clause would have little, if any, application unless secular, generally applicable laws (laws not ‘touching religion’) could violate the rights of conscience.” What he does not explain, however, is how a law specifically exempting religious believers is not a law “touching religion” and therefore forbidden. See McConnell, “Origins,” 1481.    303  Provision #3 would escape the deliberations of August 15 without much change, but also without much discussion. Two comments, however, are worth noticing. First is the remark of Daniel Carroll (Maryland), who was well-known to be Roman Catholic: As the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand; and as many sects have concurred in opinion that they are not well secured under the present constitution, he said that he was much in favor of adopting the words. He thought it would tend more towards conciliating the minds of the people to the Government than almost any other amendment he had heard proposed. He would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community.548  Of particular interest are Carroll’s last two comments. He was not interested in “phraseology,” an inclination implying that the overall language developed in protection of religious liberty was not especially important. For a person of a minority faith—a faith still discriminated against in some states—to be unconcerned with the language must mean that the House was already in basic agreement about what protections were afforded by the guarantee, regardless of how it was worded. Furthermore, we can assume that “rights of conscience” were likely understood to extend to both belief and practice. Why? Because Carroll believed that this language was adequate “to satisfy the wishes of the honest part of the community,” a community that must have included his Roman Catholic constituents.  The second comment deserving our attention is from Madison. Given the scarce commentary on the meaning of his Provisions #1-5, Madison’s remarks merit reading in full: Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State  548 Annals of Congress, 757-58.    304 Conventions, who seemed to entertain an opinion that under the clause of the constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.549  Like Carroll, Madison does not seem overly concerned about the language employed, believing the language approved by the Select Committee to be “as well expressed as the nature of the language would admit.” So Madison also substantiates the idea that the First Congress shared a consensus about basic protections for religious liberty.550 Per Madison, the consensus concerning Provisions #2 and #3 included at least the following: “that Congress should not (1) establish a religion,” or (2) “enforce the legal observation of it by law,” or (3) “compel men to worship God in any manner contrary to their conscience.” What is obvious here and from the way that Congress dealt simultaneously with Provisions #2 and #3 is that the two clauses were understood as mutually reinforcing. The prohibition against a federal establishment was regarded as a protection of both religious believers and state establishments that promoted particular religious beliefs. Madison’s threefold definition only directly concerns Provision #3 in its final point, which includes a defense of worship. In his mind, anyway, the “rights of conscience” from Provision #3 again include worship, and we can infer from this that “rights of conscience” also applied to the lesser protection of belief. This version of belief plus worship goes beyond McConnell’s understanding of “conscience” protections, but it falls well short of protecting  549 Ibid., 758. Malbin reads Madison’s remarks as a misquotation of the actual text, because Madison uses the indefinite article “a” before religion. Malbin’s point is that “a religion shall not be established by law” makes a different point than “no religion shall be established by law;” the former tends only to prohibit a single establishment whereas the latter might discourage all federal support for religion. See Malbin, Religion and Politics, 8. 550 Muñoz makes the same point in Religious Liberty and the American Founding, 23-40 and 187.    305 activity beyond worship. The final language that would be adopted by Congress, which defends “the free exercise of religion,” may extend beyond mere belief and worship, but the debate of August 15 was not obviously concerned with establishing protections beyond those two limited points. To reframe the matter bluntly and in reference to our overall question: congressional consensus on religious liberties, as evidenced in the debate on August 15, 1789, does not indicate or imply any opening for religious exemptions. The consensus view was certainly interested in protecting the religious liberty of minority groups like Roman Catholics, but the contemplated guarantees cover a narrower range of religious activity and federal protections of those activities than modern defenders of religious exemptions would prefer.  Debate for the rest of August 15 was slow and covered little ground, demonstrating the careful balance that needed to be struck between those who abhorred amendments and those who desired a much longer list. By the end of the day, Federalist Fisher Ames even proposed a motion—perhaps as a threat—to discharge further consideration of amendments. Debate on Monday, August 17 opened with consideration of what would eventually become the Second Amendment, and what then contained our Provision #4: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.” Interestingly for modern audiences, the argument of August 17 focused almost entirely on Provision #4, not considerations about a militia or a right to bear arms. We tend to assume that argument will focus on the important items in pending legislation, but the actual cause of debate is not importance but disagreement. Wherever the House had consensus, little or no debate was required; wherever the House lacked consensus, debate was required, regardless of whether the disagreement was especially important. The focus on Provision #4 demonstrates that it was not    306 an area of much consensus, though the House would decide to leave Provision #4 untouched from the version prepared by the Select Committee (see Figure 7.1). To understand the nature of the disagreement, we should compare the objections. Elbridge Gerry worried that a right to conscientious objection might be used by a corrupt government as a means of preventing some from the right to bear arms. The objection is odd and does not appear to have been shared, but it does point to the difficulty in defining those who should qualify for conscientious objection, and that concern was shared by others. Where Gerry thought that the definition of a conscientious objector should be limited to those “belonging to a religious sect scrupulous of bearing arms,” Roger Sherman worried that such definition would tend “to exclude the whole of any sect” when some members of that sect might yet be amenable to military service.551 Another area of disagreement concerned the conditions for claiming status as a conscientious objector. As noted previously, the Select Committee had dropped Madison’s “in person” condition in favor of an open-ended declaration. William Smith (South Carolina) and James Jackson (Georgia) thought the recommendatory language from Virginia and North Carolina should be added instead, with a requirement for “paying an equivalent.” Select Committee Chairman John Vining defended the work of his committee, maintaining against one suggestion that “he saw no use in [Provision #4] if it was amended so as to compel a man to find a substitute, which, with respect to the Government, was the same as if the person himself turned out to fight.”552 Vining never commented on whether he would support a condition for an equivalent payment, but he seems to think that strong conditions will erase the practical purpose of Provision #4.  551 Annals of Congress, 779. 552 Ibid., 779.    307  Beyond arguments about how to administer a right of conscientious objection, Egbert Benson (New York) argued that Provision #4 was fundamentally unjust: No man can claim this indulgence of right. It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the discretion of the Government. If this stands part of the constitution, it will be a question before the Judiciary on every regulation you make with respect to the organization of the militia, whether it comports with this declaration or not. It is extremely injudicious to intermix matters of doubt with fundamentals. I have no reason to believe but the Legislature will always possess humanity enough to indulge this class of citizens in a matter they are so desirous of; but they ought to be left to their discretion.553  Benson’s argument did not carry the day, but it is apt for our consideration of religious exemptions. Benson’s main point is that qualified allowances like conscientious objection might be prudentially necessary, but they are not natural rights and should not be protected in the same way. If you try to defend them as fundamental rights, you put the judiciary in the position of making the kinds of prudential decisions best left to the political scrum of the legislature. But demoting conscientious exemption from the level of fundamental right does not mean that the concerns of religious objectors will be ignored. On the contrary, Benson thinks that an allowance will always be made because “the Legislature will always possess humanity enough to indulge this class of citizens.” Like Madison in “Federalist 10” and “Federalist 51,” Benson sees a well-arranged legislature as a better defense of liberty than a bill of rights, at least for rights that do not necessarily qualify as natural rights. Benson’s dissent was ultimately overruled without anyone disputing his position, and we do not know how his argument was viewed by other members of the House—though his proposal was immediately followed by a vote in which the  553 Ibid., 780.    308 House decided, by a slim majority of 24 to 22, to keep Provision #4. What Benson demonstrates, however, is that at least one member of the Congress saw how a scheme of exemptions might be litigated.554 That the concern was not raised regarding other religious provisions suggests that Provision #4 was the only one understood to include judicially-enacted religious exemptions.  After all of this disagreement, the House agreed to keep Provision #4 without change, so they must have reached a consensus. How ought we to understand that consensus? Quite plainly, a majority of the House must have decided that some kind of exemption for conscientious objectors was a reasonable civil right that should be guaranteed in the Constitution. But their consensus does not obviously extend beyond that limited framework. We cannot say for certain whether this allowance was extended as a matter of natural right or merely as a matter of prudence. We also cannot say whether and how they expected the civil right to be conditioned by future Congresses. The chorus of contributing voices suggests that many wanted the right to be conditional in practice, but the actual language (which was left unchanged from the committee version) was left unconditional. We cannot say for certain if those wishing to condition the right were outvoted, or if the Congress simply could not agree on how to condition it. As we will see, the House would pick up the argument again, suggesting that August 17 did not fully resolve the matter.  Before we move past the August 17 debate on Provision #4, two other points should receive our attention. First, Roger Sherman’s remarks help to illustrate the problem with conscientious objection and any allowances made for it, a point first noted in chapter 3:  554 McConnell’s account of Benson is similar to the account given here, but he concludes that Benson might not disagree with the modern doctrine of religious exemptions. See McConnell, “Origins,” 1503.    309 Mr. Sherman conceived it difficult to modify the clause and make it better. It is well known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent. Many of them would rather die than do either one or the other; but he did not see an absolute necessity for a clause of this kind.555  Sherman’s adult life and political career spanned the distance of two major wars—the French and Indian War and the American Revolution—and he is famous for being the lone signer of the Articles of Association adopted by the Continental Congress, the Declaration of Independence, the Articles of Confederation, and the Constitution. He had witnessed the challenges of raising an army and balancing its needs against the conscientious objections of those who would neither serve nor otherwise support the cause of victory. From his experienced position, the problem does not have a simple and principled solution. He seems to agree that the existing language is best because it leaves the matter open-ended. Furthermore, he takes consolation in the fact that “We do not live under an arbitrary Government…and the States, respectively, will have the government of the militia, unless when called into actual service.” His overall point ties well with Benson’s conclusion that conscientious objection is a matter that requires “the discretion of the Government.” Exemptions will have to be offered because an organized faction will not be coerced otherwise, but the details of that exemption must be carefully navigated based upon the circumstances.   The second and final point about the debate of August 17 on Provision #4 is to notice its connection to arguments about our other religious provisions. At no point did anyone argue that Provision #4 was connected to Provisions #2, 3, or 5, or that it was implied by those guarantees, or that the idea of exemption ought to apply elsewhere. In short, the argument around Provision  555 Ibid., 779.    310 #4 was limited exclusively to conscientious exemption from military service, and that topic was regarded as wholly unique. Provision #4 and the argument of August 17 make clear that the House was aware of religious exemptions, considered religious exemptions, and chose (against vocal opposition) to allow exemptions only for conscientious objectors to military service.  The record of August 17 indicates that Provision #4 was the most significant focus of House debate. After the House voted to keep it as reported from the Select Committee, they moved quite quickly through five more sections—approving three as reported and agreeing to small changes to two sections—before coming to our Provision #5. The speed of deliberation evidences a growing weariness on the part of the House majority, which increasingly insisted that debate move quickly and procedurally towards a conclusion. (It is also possible that the recorder stopped keeping as close a record and included all formal motions without the surrounding debate.) Provision #5 therefore garnered little attention in the record. Thomas Tudor Tucker (South Carolina) made the obvious objection that Provision #5 was the sole limitation on the states. Tucker argued, “It will be much better…to leave the State Governments to themselves, and not to interfere with them more than we already do….”556 Madison’s response was consistent with his prior boldness on the subject of Provision #5. The record reports: Mr. Madison conceived this to be the most valuable amendment in the whole list. If there was any reason to restrain the Government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the State Governments. He thought that if they provided against the one, it was as necessary to provide against the other, and was satisfied that it would be equally grateful to the people.557   556 Ibid., 783. 557 Ibid., 784.    311 Madison’s insistence on Provision #5 against the state governments is continually surprising. When we compare his enthusiasm for this provision against his prior antagonism towards a bill of rights, we can see that it is really the only consequential constitutional change among the various provisions defending individual rights. In the case of the federal protections of individual rights, Madison believed that the federal government already lacked the authority to do otherwise; the formal “right” merely insured what the constitutional structure served to protect. But the Constitution had little to do about the protection of individual rights from state powers, so Provision #5 could have had real consequences. Samuel Livermore followed Madison’s remarks in almost identical fashion to his input on Provisions #2 and 3 by suggesting a change of language. As in the prior case, no further discussion was recorded, but Livermore’s changes were adopted. The change is printed in Figure 7.1, but it was merely a rearrangement of the sentence with no apparent change in meaning. Oddly, Livermore’s change was captured in The Annals of Congress, but is not otherwise reflected in the record. Either Provision #5 was changed back to its original or a transcription error was made as the House reported out its final versions.558  The debates of August 18 do not concern any of our five provisions and therefore need not be reviewed in detail. The interesting occurrences of the day bear on the overall tension between those who desired additional amendments and those who wished to limit discussion to the Select Committee report. Before the House could resolve itself into a Committee of the Whole to finish deliberation on that report (which it had been reviewing for the past several days), Elbridge Gerry moved that the House consider the whole list of amendments referred by the states. After discussion of Gerry’s motion—during which Select Committee Chairman John  558 See Figure 7.1 at August 17 and August 20.    312 Vining chastened Gerry for acting out of order—the House voted against it, 34 to 16.559 The House then resolved into the Committee of the Whole to finish deliberation on the final amendments proposed by the Select Committee. As soon as they finished, Tucker motioned the House for consideration of a new set of amendments, obviously a laundry list adapted from state recommendations.560 The House majority again voted it down, though without record of votes in favor or opposed. Gerry and Tucker would both try again to propose consideration of new amendments (always without success), but never as such a large list. The House majority was ready to bring its deliberation on amendments to a conclusion.  Final Deliberation in the House  On August 19 the House took up deliberation on the amendments as revised by the Committee of the Whole. For our purposes, there are three importance changes between the House formerly sitting as a Committee of the Whole versus now sitting as itself. First, the House would now have to agree to each separate amendment with a two-thirds majority, consistent with the requirement in Article V for constitutional amendments proposed by the Congress. Second, the House would now move quickly through all the proposed amendments one more time, therefore giving us another opportunity to observe changes and debate on Provisions #2-5. Third, the House record drops off from August 19 forward, and little of the record attends to the details of debate. The focus of debate on August 19 is a prime example of this phenomenon. According to The Annals of Congress, Sherman reintroduced his motion of August 13 to append the proposed amendments to the Constitution rather than make a series of line edits to the document.  559 Annals of Congress, 786-88. 560 Ibid., 790-92.    313 The record explains, “Hereupon ensued a debate similar to what took place in the Committee of the Whole, but, on the question, Mr. Sherman’s motion was carried by two-thirds of the House….”561 So an important change was made to the presentation of Amendments, but we have no record of the arguments or who made them.562  Thursday, August 20 was the final day of debate concerning Provisions #2-5, though debate on the amendments reported by the Committee of the Whole would continue into Friday and debate on miscellaneous amendment proposals would continue through Saturday. August 20 includes no debate or changes to Provision #5; it was simply read and passed by a two-thirds majority. But the record includes important changes and debate concerning Provisions #2 and 3, then Provision #4. Both require our careful review.  The change to Provisions #2 and 3 was significant in terms of language, but it happened without any recorded debate. The entire record is as follows: On motion of Mr. Ames, the fourth amendment [Provisions #2 and 3 combined] was altered so as to read “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.” This being adopted, The first proposition was agreed to.563  As in prior debates, Provisions #2 and 3 were treated together (we have treated them as separate provisions because modern audiences think of them as being separately the Establishment Clause and the Free Exercise Clause). The changes to Provision #2, per Figure 7.1, were the elimination of the plural “laws” in favor of “law,” and the substitution of “establishing” instead of  561 Ibid., 795. The record includes note of the page number (734) for the earlier discussion of the topic. 562 Schartz notes at 1121, “This change was of the greatest consequence, for it may be doubted that the Bill of Rights itself could have attained its position as the vital center of our constitutional law, if its provisions were diluted throughout the Constitution. Paradoxically, it is to Sherman (himself a consistent opponent of a Bill of Rights) that we owe the fact that we have a separate Bill of Rights.”  563 Annals of Congress, 796.    314 “touching,” bringing back language from earlier drafts. The first change appears to be merely a matter of style. The second change helps to clarify a confusion present since the adoption of Livermore’s version several days earlier, while introducing a new area of confusion. As pointed out in our analysis of Livermore’s text, the language of “laws touching religion” could have implicated all kinds of legislation (like the Northwest Ordinance) that merely mentioned religion, though that possibility was not obviously considered or intended. It is possible that the debate of August 17 concerning conscientious objection even spurred the change, because exemptions for the “religiously scrupulous” would appear to be “laws touching religion.”564 Ames’s text—forbidding “law establishing religion,” but not “laws touching religion”—suggests an allowance for laws that concern religion, provided that they do not contribute to a religious establishment. His text might also clarify that the intent of the provision was to prevent a federal religious establishment.565 The trouble with Ames’s text, however, is that it is ambiguous on the question of state establishments where the earlier text from Livermore was not. Ames’s version does not give any power over state establishments, but it does not specifically protect state establishments from federal intervention, either, whereas the Livermore prohibition on laws “touching” religion would prevent such intrusions. Ames’s proposal and the lack of recorded debate on the topic also leave us without a clear definition of what “establishing”—or its noun form, “establishment”—meant to those who adopted it, a problem that persists throughout the recorded deliberation of the First Congress.  564 Muñoz, Religious Liberty and the American Founding, 158-59. Muñoz cites Ames’s biographer Marc Arkin, explaining that “Ames was an ‘ultra-Federalist’ whose primary goal was to ensure that amendments did not weaken the national government. Ames may have seen the change from ‘no laws touching’ to ‘no law establishing’ as necessary to retain the federal government’s extant power over religion.” 565 See Muñoz Religious Liberty and the American Founding, 160-62, for a summary discussion of historians on the topic, several of whom do not think that Ames’s change was intended to change the overall meaning from Livermore’s text.    315  Regarding Provision #3, Ames added the clause “to prevent the free exercise thereof” and shortened the existing clause by removing “equal” from “rights of conscience.” The change feels significant because it introduces the language of “free exercise” to what we now consider the Free Exercise Clause. We should remember, however, that several states had already recommended that language, and it had been in use in Virginia since the 1776 Declaration of Rights (where it was added, of course, at the suggestion of James Madison). We can only speculate about why Ames thought it worthwhile to include this language, especially because he kept “rights of conscience” alongside it. If our analysis of the arguments up to this point is accurate, then “rights of conscience” likely already included a protection of both belief and worship. As argued in Chapter 3, “free exercise of religion” includes at least belief and worship, but possibly more. Ames’s proposal therefore offered broader protections than any prior versions of Provision #3, a point which seems odd in light of Madison’s involvement, or it was basically redundant. This author cannot determine a significant difference between “rights of conscience” and “free exercise of religion” in contemporary usage that does not indicate that the former phrase contains everything meant by the latter one. With the adoption of “free exercise,” the “rights of conscience” became superfluous. Perhaps Ames was following the example of Madison’s original draft (especially concerning Provision #1) and preferring redundancy to insufficient protections for religious liberty.  Debate on Provision #4 began immediately after the adoption of Ames’s motion, when Thomas Scott of Pennsylvania objected to its inclusion. Scott’s participation is notable for two reasons. First, he has not been mentioned before now in our history and analysis of constitutional amendments, and he did not otherwise play an active part in their deliberation. Second, as an experienced Pennsylvania legislator, Scott had certainly encountered conscientious objectors,    316 probably even as a frustration to colonial war efforts. Scott took the ambiguity of Provision #4 as evidence of prohibition, not license, on the part of future congresses. As it currently read (“no person religiously scrupulous shall be compelled to bear arms”), Scott believed that “such persons can neither be called upon for their services, nor can an equivalent be demanded.”566 Without conditions for claiming a conscientious objection, militias would be wholly unreliable, and Congress would be forced instead to maintain a standing army of volunteers. Scott was furthermore concerned about who could apply for such an exemption, and he feared that Provision #4 would allow those of no religion to claim exemptions meant for earnest believers: “There are many sects I know, who are religiously scrupulous in this respect; I do not mean to deprive them of any indulgence the law affords; my design is to guard against those who are of no religion.”567 Elias Boudinot (New Jersey), who had chaired the Committee of the Whole in the days prior, countered that the existing provision or something similar was necessary. Boudinot regarded it as both a necessary defense of the religiously scrupulous and also a defense of militias, which could hardly rely on such for “an effectual defence.” Rallying his fellow representatives to the defense of conscientious objectors, Boudinot said, “I hope that in establishing this Government, we may show the world that proper care is taken that the Government may not interfere with the religious sentiments of any person.”568 Boudinot’s statement is perhaps the boldest assertion in favor of a broad view of religious liberty—one that includes a right to exemption, at least for conscientious objectors—in all of the debates  566 Annals of Congress, 796. 567 Ibid.  568 Ibid.    317 surrounding the Constitution. It does not, however, appear to have been the majority opinion of the House and may have only been a spirited defense of Provision #4. The ensuing debate was not carefully recorded, but the record tells us “it was agreed to insert the words ‘in person’ to the end of the clause; after which, it was adopted….” The most obvious implication of the addition is that the House chose a compromise position between Scott and Boudinot. Scott’s concerns were heard and effectively resolved with the addition of “in person”—making clear that conditions could be placed on the right of the religiously scrupulous. But they did not eliminate the clause out of respect for Boudinot. Professor Muñoz concludes that the “in person” language “suggests that the House viewed exemptions from military service more as a privilege than a right.”569 The new version was also effectively a return to Madison’s original draft, since the “in person” language had been dropped from his draft by the Select Committee. The “in person” language, however, does not tell us how the Congress expected the right to be conditioned. Presumably a future Congress could have permitted conscription exemptions with an equivalent payment, with a substitute, or with some other requirement (e.g., a requirement for non-military service)—or with no conditions at all. The point was not to settle how the right could be conditioned, only that it could be conditioned. Before leaving the subject of Provision #4, we should notice that the final debate over it did not connect exemptions from military service with either a broader right to religious exemptions or to broader guarantees of religious liberty. Boudinot’s statement certainly tends in that direction, but it was ultimately met by a decision to clarify the conditions around a single  569 Muñoz, Religious Liberty and the American Founding, 204. Muñoz takes a harder position with regard to Boudinot, concluding that the House rejected his argument by adding the “in person” condition to the right.    318 species of exemption, not to open exemptions to wider applicability. The larger narrative here is directly contrary to the account given by Professor McConnell, who explains, The significance of Boudinot’s position for present purposes is that he, with a majority of the House, considered exemption from a generally applicable legal duty to be “necessary” to protect religious freedom. Whether or not the particular application of this principle to bearing arms would be accepted by the Senate (it was not) or the courts (it was not), it strongly suggests that the general idea of free exercise exemptions was part of the legal culture.570  The circumstances described above, which are developed from the records of the House, go far to discredit McConnell’s position. To go one step further, we can consider McConnell’s statements one at time. First, Boudinot did think that Provision #4 or “something similar to it” was “necessary.” Because Boudinot was willing to approve of “something similar,” he may have been sufficiently satisfied with the changed version that included the conditional “in person.” Second, the record demonstrates that the majority of the House determined that Provision #4 should only pass as a conditional one, not a categorical one. Earlier debates had focused on the same question, but left the matter unresolved. But after Thomas Scott reasonably explained that the provision would be read as an unconditional right to conscientious objection, a majority of the House agreed to change it. And finally, Provision #4 and the series of conversations around it prove that exemptions were a part of contemporary legal culture, but only in reference to militia service. This point is especially clear because, as already noted, Provision #4 was never connected rhetorically to any of the other provisions concerning individual religious rights and protections. As the record above indicates, Provision #4 was discussed immediately after  570 McConnell, “Origins,” 1501.    319 Provisions #2 and 3 on August 20. If there had been an understood connection between them, we can reasonably expect that someone would have mentioned it.  The House finished review of the Amendments as prepared by the Committee of the Whole on Friday, August 21. The Annals of Congress do not provide a written set of amendments as finally approved by the House, but The Journal of the House includes such a set.571 There are several inconsistencies in the final set as compared to the deliberation proceedings in The Annals of Congress, including changes to Provisions #2-5. It is possible that these changes were made intentionally, perhaps by the committee that reported the final versions to the House on Monday, August 24; it is also possible that they were due to transcription errors.572 See Figure 7.1 for a complete account of these. The most significant change would appear to be the substitution of “prohibit” instead of “prevent,” making Provision #2 now read that “Congress shall make no law…prohibiting the free exercise [of religion].”573 On Saturday, August 22, the House finished deliberation on additional amendments beyond those included in the report of the Committee of the Whole; unsurprisingly, all such amendments were voted down. All approved amendments were to be arranged by a committee of Benson (New York), Sherman (CT), and Sedgwick (MA) along with an introductory resolution. While Madison was absent from this step of the legislative process, the work of the committee was merely formal: they simply prepared and reported what the House had already decided. (It is possible, of course, that the discrepancies in the record were due to stylistic changes made by the three-person committee.)  571 Journal of the House, 85-86. 572 Muñoz, Religious Liberty and the American Founding, 193. 573 McConnell compares prohibiting, infringing, and abridging and ultimately determines that all of them meant essentially the same as used by the First Congress. We could probably add “preventing” or “violating” to this list as well. See McConnell, “Origins,” 1485-88.    320  Deliberation in the Senate On Monday morning, August 24, their report was presented and ordered to be delivered to the Senate. The Senate read the House amendments on August 25 and scheduled its deliberation to begin the following week; The Journal of the Senate indicates that debate over the House amendments began on Wednesday, September 2. Unlike The Annals of Congress that include much of the debate from the House, the records of the Senate are quite spare. We are therefore limited to only review of what motions were offered and which passed in the negative or affirmative. Except where vote tallies were requested, we do not even know which defeated motions might have represented a strong minority position or carried motions might have represented a weak majority position. Debate on Provisions #2 and 3 took place on September 3. The proposed changes and vote results on those changes are indicated below in a common format, with removed language indicated by strikethrough and added language indicated in italics. The first proposal was as follows: [2] Congress shall make no law establishing religion, [3] or prohibiting the free exercise thereof one religious sect or society in preference to others, nor shall the rights of conscience be infringed.574  This proposal was first defeated; upon reconsideration, it carried. This version would have defined “establishing religion” more narrowly as “establishing one religious sect or society in preference to others.” In other words, an establishment might be permissible (whatever an  574 Journal of the Senate, 70. The method of presentation used here is very similar to that used by Muñoz, Religious Liberty and the American Founding, 165.    321 establishment might mean), but only a non-preferential establishment. This change would also have eliminated the “free exercise” language in favor of “rights of conscience.” The Senate then considered simply dropping the whole amendment, but that motion was defeated. Next, the Senate considered reordering the amendment with other small changes as follows: [3] Congress shall not make no any law infringing the rights of conscience, [2] or establishing one any religious sect or society in preference to others, nor shall the rights of conscience be infringed.  This, too, passed in the negative. At this point the Senate started to reconsider the changes it had already approved. In its next version, the Senate proposed replacing “sect” with “denomination” and replacing the free exercise language: [2] Congress shall make no law establishing one religious sect or society any particular denomination of religion in preference to others another, [3] or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.  When this motion failed, the Senate tried going back to the original language of the House: [2] Congress shall make no law establishing religion, [3] or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.  But this, too, failed. The Senate then proposed simply removing the last clause: [2] Congress shall make no law establishing religion, [3] or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.  This version carried and would be the Senate’s final version for September 3.575  Reading back over the Senate’s changes and proposed changes of September 3, it is hard to avoid the conclusion that the Senate lacked any real consensus about what Provisions #2 and 3  575 Journal of the Senate, 70.    322 ought to do, and therefore how they ought to be changed. The fact that several narrower versions of establishment were considered—and one briefly adopted—suggests that the Senate was more open than the House to supporting religion, so long as that support was not exclusive to one sect or denomination. 576 This conclusion is also consistent with what we know about the amendment that Henry (now a Senator) had proposed in Virginia, which might have allowed a non-preferential federal establishment.577 But the Senate ultimately left behind any changes to Provision #2. And why, concerning Provision #3, was the Senate unwilling to pass the amendment with both the “free exercise” and “rights of conscience” provisions when it was apparently willing first to accept a change that eliminated the former and eventually to accept a change that eliminated the latter? The record is wholly inadequate to answer these questions. What we can say, however, is that the Senate does not have any evident disagreement with the House about the overall substance of Provisions #2 and 3. Against some disagreement, they basically wanted to prevent a restrictive federal establishment and guarantee a significant scope for religious belief and practice.  The following day, September 4, the Senate began its work on amendments by considering the amendment regarding free speech and a free press. Their actions are noteworthy because the Senate chose to amend the provision to add the language “Congress shall make no law.” This change made it very simple to combine the free speech provision with our Provisions #2 and 3, a move that the Senate would complete on September 9. The Senate then considered a major addition to the amendment concerning the militia, the right to bear arms, and our Provision  576 Malbin says that the Senate’s change “made the establishment clause completely unambiguous on the permissibility of non-discriminatory aid.” See Malbin, Religion and Politics, 12. 577 Muñoz, Religious Liberty and the American Founding, 165-66.    323 #4 concerning conscientious objection. The Senate decided not to make the addition, which, according to the record, was supported by Patrick Henry. Without any recorded votes or deliberation, the Senate then agreed to a changed version of the amendment that quietly removed Provision #4. The new version carried. The rest of the amendment survived intact and would become the Second Amendment, but the conscientious objector (or religiously scrupulous) provision had been removed. We can only speculate about why the provision might have been removed, but the circumstances offer a clue. The addition to the Amendment, which was supported by Patrick Henry and a few others, proposed limiting federal power by requiring a two-thirds majority in Congress to assemble a standing army during peacetime and restricting the length of enlistments to the duration of war. These limitations were voted down, 9 to 6. Perhaps this same majority regarded Provision #4 as an unnecessary limitation on federal power. In any case, the provision was gone and would not be reintroduced. The First Congress’s only consideration of a constitutional religious exemption thus met its end.  Provision #5 would also be unceremoniously removed by the Senate.578 The Senate resumed consideration of the House’s amendments on Monday, September 7, after first dispatching a variety of other business, most of which concerned settling minor disagreements between the House and Senate on nearly completed legislation. When the Senate came to the amendment containing Provision #5 (“The equal rights of conscience…shall not be infringed by any State.”), a motion was made to adopt. “It passed in the negative.” No changes were offered by formal motion, and the record contains no obvious clues to indicate why. It seems likely, however, that this provision was not especially important to either Federalists—who had not  578 Journal of the Senate, 72.    324 asked for any amendments—or Antifederalists—who had not asked for any prohibitions on the states. Without Madison there to defend it, the provision did not survive. Professor Muñoz offers another reasonable explanation for cutting Provision #5: “given that senators at the time were elected by state legislatures, they may have thought it improper to adopt an amendment that restricted the states.”579  The Senate finished considering the amendments referred by the House on September 8, then had the same experience as the lower body of hearing—and voting down—numerous additions, presumably from Antifederalists left unsatisfied and desiring more radical changes. On September 9, the body met again in consideration of constitutional amendments. For reasons that are not clear, the Senate began its deliberations on September 9 by reconsidering most of the amendments that it had already reviewed, beginning with what was then the third amendment and contained Provisions #2 and 3. At this point the body approved two changes. The first change was to adjoin “articles” (proposed amendments) three and four, thereby adding freedom of speech, freedom of the press, the right of assembly, and the right to petition to the guarantees concerning religious establishment and religious liberty. The second change was to again tinker with the language around a religious establishment, following the Senate’s pattern from the week prior. This time, the Senate replaced “religion” with “articles of faith or a mode of worship.” The Senate’s final version would thus read “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech….” While it is hard to speculate what the Senate had in mind, the change to establishment language seems like further evidence that the Senate desired to soften prohibitions  579 Muñoz, Religious Liberty and the American Founding, 195.    325 against religious establishment. The new language would not prevent Congress from all kinds of supports to religion, so long as that support did not include formal prescriptions of doctrine or practice.  The Senate approved the proposed constitutional amendments on September 9 and ordered them returned to the House for concurrence in the Senate’s changes. The message was received the following day in the House, but no action was taken.580 The House took up the matter again on Saturday, September 19, but apparently the matter was too complicated for a quick resolution. The record tells us “The House then took into consideration the amendments to the Constitution, as amended by the Senate; and, after some time spent thereon, the business was postponed till tomorrow.”581 On Monday, September 21, the House resumed its review of the amendments as edited by the Senate, this time voting on the amendments one at a time. This process produced an undesirable result, with the House agreeing to ten of the Senate amendments, but disagreeing with sixteen. Among the disagreements were the Senate’s versions of Provisions #2 and 3.582 The House therefore sought a conference with the Senate and appointed Madison, Sherman, and Vining to the Conference Committee. No rationale is given for why these men were chosen, but all three men had previously served on the Select Committee and been significantly involved in the amendment process. The House message was received by the Senate the same day, and the Senate promptly acted. First, they agreed to the House’s version of Provisions #2 and 3 (the “third amendment”) but insisted on all other changes. Second, they agreed to a conference and appointed Oliver Ellsworth (Connecticut),  580 Annals of Congress, 923. 581 Annals of Congress, 938. 582 Journal of the House, 115-116.    326 Charles Carroll (Maryland), and William Paterson (New Jersey) to the Conference Committee. We again have no clues as to why these men were appointed—and we have no idea which senators contributed most significantly to the amendment arguments—but it is of note that the committee included Charles Carroll, cousin to Daniel Carroll and a fellow Roman Catholic.  Conference Committee Deliberation  We have no record of the Conference Committee’s deliberations. We know that they met quickly and reported back to their respective bodies only three days later, on September 24. We also know that, among the sixteen disagreements on language, the committee only decided to make changes on three—and one of these was on the third amendment, concerning Provision #2 and 3. The other two changes concerned the question of proportional representation in the House and the protections offered to the criminally accused. The House conceded on all other amendments. Given the volume of proposed amendments and the number of disagreements, we should be surprised that only three changes were required. We should be even more surprised that the religious provisions were among those changed, especially because the Senate had already consented to the House version. Despite the Senate’s willingness to agree to the House version, the committee decided to change it anyway. The new version of Provisions #2 and 3, which was the final text of the Establishment and Free Exercise Clauses, was presented in both the House and Senate without debate or vote, so there is little context to inform us about how the changes were received or what they meant. The House did vote on one of the other changes (and    327 accepted the change), so presumably the new language was not met with significant opposition.583 With so little context to inform our understanding of the Conference Committee changes, we once again find ourselves in the position of mere speculation based upon the text. Below are the changes made by the Conference Committee: “[2]Congress shall make no law respecting an establishment of religion establishing articles of faith or a mode of worship, [3] or prohibiting the free exercise thereof of religion, or abridging the freedom of speech….”  Regarding Provision #2, the committee chose to replace the language “establishing articles of faith or a mode of worship” with the now familiar “respecting an establishment of religion.” The final language differs from every prior version presented by the House or the Senate, and therefore appears to be a continuation of the Senate’s difficulty to determine the appropriate language concerning religious establishments. It is closest to the final language used in the House (“Congress shall make no law establishing religion”), yet it introduces a clear change with the language of “respecting an establishment.” Against the language of the House, “respecting an establishment” means that the federal government can neither establish a religion at the federal level nor can it interfere with state establishments; it clarifies a jurisdictional separation between the work of Congress and religious establishments at any level of government.584 The House version had been ambiguous about state establishments, hence the argument about adding clarifying language about a “national” establishment of religion. The final version provides the  583 Annals of Congress, 948. Malbin incorrectly states that Gerry and Livermore voted against the Conference Committee version of the religious amendment. The record clearly shows, however, that the only vote taken was on “Article 8,” which would become the Sixth Amendment. See Malbin, Religion and Politics, 15. 584 Muñoz provides more details here, including considering contemporary dictionary definitions of “respecting;” see Muñoz, Religious Liberty and the American Founding, 167-69.    328 same clarification regarding the language of the Senate (“Congress shall make no law establishing articles of faith or a mode of worship”), whose language was equally ambiguous concerning state establishments. Compared to the language of the Senate, the final version is also more restrictive upon the federal government.585 The Senate seems to have wanted more permissive language around establishment that would prevent a national church but not prevent federal aids to religion—or perhaps the Senate merely wanted to avoid restrictions that might interfere with state establishments. In any case, the Senate’s lower restriction against laws “establishing articles of faith or a mode of worship” was abandoned in favor of the more general prohibition against “an establishment of religion.” It is not clear from the final language that Congress is forbidden from supporting religion in any form, especially because we are still left with no clear definition of what Congress meant by “an establishment of religion.” 586  Provision #2, the Establishment Clause, is only indirectly related to our main purpose in understanding the Free Exercise Clause and whether the latter clause was intended to encompass or require religious exemptions. But it is worth pausing briefly to reflect on why the Conference Committee thought it so important to make changes to Provision #2 that matched neither the House nor the Senate’s original versions. As we have already mentioned, the Senate had already expressed willingness to adopt the House version. That means that members of the Conference Committee were unhappy with both versions, especially because their changes to Provision #3  585 Malbin notes, with regard to this change, “Madison’s understanding of the kinds of governmental activities that should be prohibited was much broader than the understanding implied by the Senate amendment.” Malbin, Religion and Politics, 13. 586 Malbin writes that, “the phrase ‘an establishment’ seems to ensure the legality of nondiscriminatory religious aid. …[B]y choosing ‘an establishment’ over ‘the establishment,’ they were showing that they wanted to prohibit only those official activities that tended to promote the interests of one or another particular sect.” This author is unsure that the use of the indefinite article makes such a substantive difference in the interpretation. Malbin, Religion and Politics, 14.    329 were essentially negligible. It is tempting to speculate that Charles Carroll, a Roman Catholic, regarded the Senate’s language as too permissive, that Congress might have promoted the Protestant faith in various ways that fell short of “establishing articles of faith or a mode of worship.” But we lack a clear enough definition of establishment to pursue that line of reasoning. The only recorded disagreement on the Establishment Clause language came from Madison, who first used the word “national” to clarify that the prohibition was not intended to affect state establishments. He also recommended (then withdrew) this language in deliberation as the House Committee of the Whole. Without further evidence, therefore, we might guess that Madison was unsatisfied with the ambiguity of Provision #2 concerning state establishments.587  Regarding Provision #3, the Conference Committee effectively adopted the Senate version, which had removed the probably redundant protection for “rights of conscience.” The committee version is important for several reasons. We know that members of the committee were sufficiently unhappy with the religious provisions that they made these the focus of their deliberation, yet they chose to leave Provision #3 alone. That must mean that the committee regarded the language of “free exercise” as sufficient protection for religious liberty, a conclusion that leads to two others. First, Madison must have conceded that this language was sufficiently similar to his draft language of “full and equal rights of conscience,” especially because he could have easily insisted on the House’s final version. Second, because the committee could easily have insisted on the House’s final language, which included protection for “rights of conscience,” they must have regarded the “rights of conscience” language as  587 Bernard Schwartz is strongly convinced that Madison was the important author of the final version of both the religious clauses. “Without a doubt, this final version of the first guarantee of the First Amendment was written by Madison; it repeats his earlier House version which the Senate had diluted. As Irving Brant puts it, ‘Of all the version of the religious guarantee, this most directly covered the thing he was aiming at—absolute separation of church and state and total exclusion of government aid to religion.’” The Bill of Rights, 1159.    330 unnecessary and therefore redundant.588 While “free exercise of religion” may be difficult to define, it must mean at least what Madison had in mind as a necessary protection of individual religious liberty. Finally, we can reasonably speculate that Charles Carroll, who likely shared the same concerns expressed by his cousin Daniel, was satisfied that the Free Exercise Clause provided sufficient federal protections for the belief and practice of the Roman Catholic faith.589  Once the Conference Committee report was received by both houses of Congress, the proposed amendments were sent to the president to send copies to the states for ratification.590 One of the peculiarities of history is that the amendments, which were so insisted upon by Antifederalists, were ratified without much ceremony. To be more accurate, the amendments were ratified without much record: none of the states kept close records of their deliberation around adopting the amendments. Bernard Schwartz explains, [We] know practically nothing about what went on in the state legislatures during the ratification process. At the time, there was nothing in the states comparable even to The Annals of Congress, which reported, however sketchily, proceedings and debates in the federal legislature. Even the contemporary newspapers are virtually silent on the  588 Given the preponderance of evidence, this author believes it must have been regarded as redundant, especially since Madison had used the language of “rights of conscience” in his original draft. Professor McConnell reads the situation differently, however, and concludes that the committee specifically wanted to protect religion but not private conscience. In other words, the right was intended communally, to protect members of an organized faith tradition, rather than to protect individual claims of conscience, which might be unrelated to an organized faith or tradition. The trouble is that McConnell’s understanding lacks much rooting in the historical record of the First Congress and seems prejudiced on a particular position on questions of modern jurisprudence. See McConnell, “Origins,” 1495. 589 McConnell regards the difference between “rights of conscience” and “free exercise of religion” to be hugely important and provides some interesting reasons—mostly based upon subsequent interpretation—for thinking so. The problem is that Madison is the great hero of McConnell’s story, and McConnell regards Madison as advocate for an expansive understanding of religious liberty that included religious exemptions. Yet the record is very clear that Madison initially chose the language of “rights of conscience” over the alternative, and McConnell does not explain how these can both be true. Based upon the record of the First Congress, this author believes that the two expressions were essentially used synonymously. See McConnell, “Origins,” 1488-91. 590 Journal of the Senate, 88.    331 ratification debates in the states.591  So the state amendment debates are effectively a dead-end and can tell us nothing about what the First Congress might have meant, nor what the states might have interpreted them to mean. Our historical narrative is therefore finished, and we have covered all of the available records providing context and deliberation around the writing and passage of the Free Exercise Clause.  Conclusions on the Drafting of the First Amendment  With the narrative history now behind us, we must look back over the record and draw some conclusions about what it all means for the clauses that we now think of as the Establishment and Free Exercise Clauses. Leaving the other provisions mostly aside—except insofar as they illuminate the meaning of these clauses—we can now dispense with the language of Provision #2 and #3 in favor of the common terminology of Establishment and Free Exercise. Before we consider each clause separately, let us consider what can be said about both clauses, which still bear the marks and ideas of Madison. First, both the Establishment Clause and the Free Exercise Clause are consistent with Madison’s original draft. The language is changed, and we can parse some differences based upon those changes, but both represent important continuity with Madison’s original. Second, his fingerprints are on the final versions because of the work of the Conference Committee, when he apparently worked with (or even led) the Committee to make changes that differed from every prior draft.   591 The Bill of Rights, 1171. Numerous scholars have reached the same conclusion. See Muñoz, Religious Liberty and the American Founding, 179-181. Muñoz also catalogs similar conclusions from Carl Esbeck and Donald Drakeman. Also see McConnell, “Origins,” 1485.    332 It is also worth noting that, while the language of the Establishment and Free Exercise Clauses are readily severable, they were always treated together by the First Congress. None of the other provisions concerning religion were treated together, even when the conversation about one—Provision #4 being the most obvious example—immediately followed another. But the two clauses that eventually became the religious clauses of the First Amendment were treated together from Madison’s first draft to final passage. The obvious conclusion is that the two clauses were intended to be mutually reinforcing, and that they were not understood to be in tension with one another (as modern jurisprudence often seems to assume).  The Establishment Clause does not have much bearing on our concern with religious exemptions, but the preceding analysis of the First Congress merits a few conclusory comments. The most important conclusion is that the meaning of the Establishment Clause is underdetermined for the simple reason that the record of the First Congress never defines a religious establishment. As Professor Muñoz concludes, “Neither the Anti-Federalists, in their call for amendments, nor the members of the First Congress defined with precision what constituted ‘an establishment’ of religion.”592 Muñoz further makes a compelling case that few in the First Congress had an interest in defining the Establishment Clause in greater detail. Madison and his Federalist allies already thought that the clause was unnecessary because the Constitution had given the federal government no power over religion, and especially not the authority to create a nationwide religious establishment. Those with state religious establishments (in New England) were satisfied that the Establishment Clause barred any federal intervention with their state arrangements. The remaining constituency includes those that desired the kind of narrow  592 Muñoz, Religious Liberty and the American Founding, 176.    333 provision evidenced by some of the state proposals and by the versions considered in the Senate. The Virginia recommendatory amendment forbade sectarian preferences but left open the possibility of other kinds of support for religion. The final draft from the Senate was narrower still and prohibited “establishing articles of faith or a mode of worship,” but was silent on other kinds of laws concerning religion. The final language of “respecting an establishment of religion” arguably encompasses the intent of those versions as well. Is a law that creates clear sectarian preferences “an establishment”? The record of the Senate—which approved then replaced language forbidding religious preferences—suggests that such an interpretation is reasonable. Is a law “establishing articles of faith or a mode of worship” a law “respecting an establishment of religion”? Again, the record of the Senate provides good evidence to favor that interpretation, though we can only speculate about the substance of the Conference Committee’s objections to the Senate’s final language. Moreover, the final version of the Establishment Clause is more consistent with the draft versions proposed in the House, which take a broader view of prohibitions, including the prohibition on “laws touching religion.” The most likely area of disagreement is therefore whether the final prohibition on laws “respecting an establishment of religion” forbids anything more than the Senate formulations. Clearly it does when applied to state establishments, which are placed strictly out of bounds—and that point is important and clear in the record of House deliberation. Beyond that, however, the Establishment Clause is ambiguous. We can therefore definitely say that the Establishment Clause prohibited a federal establishment—whatever that might mean—and any intrusion in state establishments. It did not obviously prevent Congress from legislation like the Northwest Ordinance or conscientious objections that might favor religion, and it did not invite federal involvement in religion by proscribing a narrow range of religious or sectarian activity.    334  In most respects, the record of the First Congress is even less determinative of the meaning of the Free Exercise Clause. The most important exception concerns our central question on religious exemptions, to which we will return below. But the record, even in the House, is remarkably silent on the Free Exercise Clause and all its earlier drafts. Is Madison’s original Provision #1, protecting civil rights from abridgment on the basis of religious belief or worship, contained within these guarantees of religious liberty? Are “rights of conscience” synonymous with the “free exercise of religion”? In both cases, the evidence suggests an affirmative conclusion, but the evidence is obtained wholly by implication and assumption. The language of Provision #1 seems reasonably to be contained within the original Provision #3 (the nascent Free Exercise Clause), which protected rights of conscience. The removal of Provision #1 by the House Select Committee is therefore likely one of several edits intended to economize the wording of Madison’s original proposal. “Rights of conscience” appear in every draft version of Provision #3 considered by the House. When the Senate finally changed it, they considered cutting the Free Exercise Clause instead; their combined considerations again suggest a desire to economize wording. As part of the Conference Committee, Madison had the opportunity to change the clause back to the House version and into closer alignment with his original draft, but decided to leave it alone. The most likely conclusion is therefore that it effectively meant the same, and none of the record contradicts this conclusion.  “Rights of conscience” and “free exercise of religion,” however, might suggest different meanings or emphases based upon their wording alone. “Rights of conscience” sounds like an individual right, one that would adhere to each person as an extension of his conscience and not be limited to religious belief alone. In other words, a person could claim that his rights of conscience had been violated without pointing to a previously defined religious belief or    335 practice. “Free exercise of religion,” on the other hand, might be suggestive of a communal right, one only available to a religious community with defined beliefs and practices. In the latter case, a person could only claim a violation of his rights in cases where he acted as a representative of a distinct religious community with defined beliefs and practices. The record does not substantiate either of these views, however, and defendants of either would need to cite evidence from other historical sources. On Provision #4, one member of the House expressed concern that the “religiously scrupulous” exemption to militia service might benefit those of no faith. His comments are not conclusive, but they do suggest that Congress was not eager to protect secular claims to conscience. We should therefore be prepared to temper our expectations for how far “rights of conscience” can extend beyond religious claims. And to the other side, we should temper any understanding of “free exercise” as being a simply communal right. The language of the recommendatory amendments, Madison’s initial draft to the Congress, and the versions of religious protections (Provisions #2-5) considered and passed by the House are all suggestive of individual protections. Again looking to the arguments over Provision #4, which are not conclusive for the Free Exercise Clause, we have documented concern from Roger Sherman that treating religious believers as a group might become a blanket exemption to include even those Quakers or similar willing to offer militia service.593 Sherman at least seems to think that even a conscientious objector exemption should be offered as an individual allowance.  Determining that “rights of conscience” and “free exercise of religion” are synonymous does not much help us, however. The trouble is that “free exercise of religion” and “rights of conscience” were never carefully defined, at least not in the record of the First Congress or the  593 Annals of Congress, 779.    336 state ratification conventions. But we can make a few conclusions via inference. First, the Free Exercise Clause includes at least a basic protection of belief and worship. Madison says as much when he describes his original provisions to mean that “Congress should not…compel men to worship God in any manner contrary to their conscience.” We can also infer as much from Madison’s inclusion of belief and worship in Provision #1 and the support for the draft amendment by the Roman Catholic Daniel Carroll and the final version by his Roman Catholic cousin, Charles Carroll.594 Finally, we have the example of state constitutions. The language of Provision #1, of “rights of conscience,” and of “free exercise of religion” are all used regularly in state constitutions and bills of rights, many of which specifically unenumerated belief and worship as the protected realm of activity. Comparing the draft and final language of the Free Exercise Clause against the state guarantees in Chapter 3, we can see that the language considered by the First Congress is consistent with the broadest and strongest state guarantees. The First Congress included no caveats or “Licentiousness provisos” and their final language of “free exercise” is consistent with the language adopted in Virginia, the state likely affording the strongest protections for religious liberty. Our second significant inference is that Congress was not trying to do something novel in writing and adopting the Free Exercise Clause. This point is supported first by the use of language from state constitutions. Protections of conscience, belief, worship, and free exercise are all consistent with the religious protections offered by state constitutions and bills of rights. These were drawn upon by Antifederalists in the state ratification debates—hence the lack of discussion during the Virginia ratification convention about what amendments to include and  594 Ibid., 757-58; we know that Charles Carroll was one of three senators named to the Conference Committee.    337 why. The point is further supported by the lack of argument in the First Congress. Not only do they not specifically address what any of the proposed language really means, on several occasions the language is discounted as secondary to the overall point. The debate of August 15 furnishes several examples of congressional indifference to the language actually adopted. Concerning the draft provisions that would become the Establishment and Free Exercise Clauses, Madison tells us that the language is “as well expressed as the nature of the language would admit.595 Daniel Carroll is similarly disinterested in worrying about the finer points of language, saying, “He would not contend with gentlemen about the phraseology….”596 Livermore, in the context of offering amended language, even says “he did not wish them to dwell long on the subject.”597 None of these comments—or the silent acquiescence that they received from the House—are consistent with the idea that Congress conceived of the bill of rights or even the Free Exercise clause as a novel guarantee. Rather, they apparently already agreed, and their states had adopted protective language around a general right to religious liberty. Whatever differences they had about the substance of such a right was treated as irrelevant to the language in question. We can therefore reliably conclude that the Free Exercise Clause was not meant to guarantee additional protections above and beyond what was already established practice in many of the states. To put the matter bluntly concerning religious exemptions, we can readily conclude that, unless several of the states were already recognizing a right to religious exemptions, the First Congress certainly did not intend to create such a right.  595 Ibid., 758. 596 Ibid., 757-58. 597 Ibid., 759.    338 Our third inference concerns the question of religious exemptions directly, which the First Congress did not intend as an automatic extension of the Free Exercise Clause. As described above, the matter was never specifically addressed, but it was considered in the context of Provision #4, the stillborn amendment to guarantee an exemption from militia service for those “religiously scrupulous.” Madison’s inclusion of Provision #4 tends to confirm the conclusion that his other amendments were not intended to include a right to conscientious objection from military service. Were such a right implicit in “rights of conscience” or “free exercise of religion,” then it would not have been necessary to enumerate it. But Provision #1 seems to have been redundant, so we must entertain the possibility that Madison simply wanted to make sure that the right was protected. We could even conclude that the Senate then dropped Provision #4 as a matter of economy—just like its decision to drop the “rights of conscience” language. The trouble with this conclusion is that Provision #4 is one of the most discussed sections among all of the constitutional amendments considered by the First Congress, and it is always treated separately from other guarantees of religious liberty. The record of debate never connects it back to other provisions. What the record does show is that a right to conscientious objection was regarded cautiously. It was even accused of being “no natural right.” When Thomas Scott observed that it would open the door for judicial intervention in the militia, the House clarified that the right would be conditioned (“in person”), presumably by future Congresses.598 The sense in the House is not that members generally object to offering an allowance for conscientious objectors, but rather that such allowances ought only to be offered narrowly, not in such fashion as to invite broad litigation. Through the lens of the House debate,  598 Ibid., 780.    339 we can therefore reasonably speculate that the Senate dropped Provision #4 without debate because they thought it better to leave the matter alone. Better to let future legislatures worry about when and how to offer exemptions than to guarantee them and force the matter into the Courts.  Our fourth inference is that the Free Exercise Clause was not intended to apply against the states. This point is not much in dispute among those who have reviewed the historical record, but it bears mentioning. The point is first obvious from the language of the First Amendment itself: that “Congress shall make no law.” But the language of restricting Congress was originally implicit in Madison’s presentation of the amendment as an edit to Article I, Section 9, which concerned only prohibitions on the federal government. Moreover, the implication was clear from Madison’s inclusion of Provision #5, which did apply to the states. While we might erroneously conclude that Madison included Provision #5 as additional but redundant security for religious rights, Madison contradicts this position. The record tells us that he “conceived this to be the most valuable amendment in the whole list,” and furthermore that it was the only amendment that would apply to the states.599 How to interpret this limitation in light of the modern incorporation “doctrine” is not remotely clear, but the record is explicit that the Free Exercise clause was not intended to limit the actions of state and local governments—though most, of course, had already established similar protections in state constitutions and bills of rights.  Our final inference is not a simple point but rather an attempt to get beyond the limitations of our other inferences and bring together the last few chapters into a cohesive whole.  599 Ibid., 784.    340 In short, what was the intent of the Free Exercise Clause and why did the First Congress bother to include it? Put too simply, the Free Exercise Clause was included because religious liberty was universally regarded as an important and natural right. Most of the states had such guarantees, and most of the state recommendatory amendments included protections for religious liberty. No one in the founding era is more widely known and regarded for his defense of religious liberty than James Madison. Professor McConnell rightly records Madison as being especially committed to the defense of “rights of conscience” when drafting constitutional amendments, and his commitment is demonstrated by the volume of religious provisions in the original draft.600 We can therefore readily infer that a defense of religious liberty was an important value among members of the First Congress. We can even go one step further to infer that most understood that enumerated rights would represent justiciable questions. “Federalist 78” must have removed any remaining doubt that the new Constitution had created a powerful judiciary possessed of the authority and responsibility of judicial review. But the more important arguments from The Federalist Papers and the Constitutional Convention explain why Madison and his Federalist allies regarded judicial defenses as poor protections for liberty. Furthermore, they explain how the new Constitution was constructed in order to provide a better guarantee of liberty, including religious liberty, by the principles of “Federalist 10” and “Federalist 51,” explained in Chapter 5. In this broader framework, we can see that the Free Exercise Clause, like the rest of the Bill of Rights, was not intended to reshape the Constitution or its commitment to a government of enumerated powers. It was merely intended to make explicit what was already evident.  600 McConnell, “Origins,” 1480, quoting James Madison to the Rev. George Eve, January 2, 1789, Madison Papers, Vol. 11, 404.    341  Forcing the framework of the new Constitution, including its enumerated powers, federalism, and institutional checks into a narrow framework of justiciable individual rights forces us to consider the question of religious liberty too narrowly. From the perspective of a justiciable right, the Free Exercise Clause looks like a small guarantee. The federal government cannot prohibit religious belief or worship, nor can it insist on any particular belief or worship. It also cannot restrict civil rights on account of religious belief or worship. Within those terms, the right to free exercise is absolute; the federal government has no power to prohibit belief or worship, or to restrict civil rights on the basis of them. Beyond those terms, the language of “free exercise” is ambiguous and therefore probably beyond the scope of judicial interpretation, at least insofar as that interpretation rests on the Originalist sources reviewed here. “Free Exercise” is certainly suggestive of all kinds of religious activity, but not in definite terms. And as a constitutional value, it ought to have far more bearing than the narrow purview of the court. Furthermore, the narrow range of enforcement available to the Court ought not to be regarded as the limit for other branches of government. Quite to the contrary, the enumeration of religious liberty under the First Amendment makes clear that religion especially ought to be afforded protections from government, to go well beyond what is merely a requirement of constitutional interpretation. By looking to the courts as the primary defender of individual rights, we miss the broader protections afforded by the Constitution and treat our government as one of enumerated rights instead of enumerated powers—exactly the opposite of what its Framers intended.      342 CHAPTER 8 CONCLUSION  I recall first reading the Employment Division of Oregon v. Smith case more than a decade ago in Professor Michael Uhlmann’s graduate-level course on the American judiciary. In a sea of inane and historically-blind arguments about the meaning of the Establishment and Free Exercise Clauses from justices of the Supreme Court, Scalia’s opinion was a ray of light and clarity, as were several of his other opinions on the subject.601 Imagine my surprise when I learned that Scalia’s opinion in Smith was not only controversial, but was loathed among many who otherwise revered Scalia as a wise interpreter of the law—some of whom I count as friends and venerable legal scholars. To name but one example, a former colleague of mine at the Claremont Institute, John Eastman has declared his opposition to that ruling on multiple occasions and even published amicus briefs asking for the precedent to be overturned.602 As our introductory chapter explains, Eastman is not alone; there are many who count themselves as defenders of religious liberty, defenders of individual rights, and defenders of an Originalist-interpretation of the Constitution who would like to see the Smith case overturned. In the ensuing decade since I first read the case, the political landscape has changed dramatically, including the composition of the Supreme Court. Four of the nine justices have been replaced and no justice contemporaneous to the Smith opinion now sits on the Court. The  601 See, for example, Lamb’s Chapel v. Center Moriches (1993), which contains the memorable line from Scalia, “Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.” 508 US 384 (quote at 398). 602 See, for example, the Claremont Institute’s Center for Constitutional Jurisprudence Amicus Curiae brief in Burwell v. Hobby Lobby Stores, Inc (2014), accessed on October 31, 2023, <https://www.claremont.org/strategic-litigation/religious-liberty-and-freedom-of-conscience/burwell-v-hobby-lobby-stores-inc-2014/>.    343 majority of justices regard themselves as constitutional Originalists.603 Three sitting justices—Alito, Gorsuch, and Thomas—have all indicated a willingness and desire to overturn the Smith opinion.604 And in cases like Burwell v. Hobby Lobby (2014) and Fulton v. Philadelphia (2021), mainstream religious practice (or what would have been considered mainstream only ten or fifteen years ago) has increasingly found itself on the defensive and desiring the protections of religious exemptions and standards of legal strict scrutiny. At the same moment that traditional religious practice has wrapped itself in the mantle of Sherbert-type protections like RFRA, RFRA-type statutes have come to be seen as discriminatory, especially against those of a homosexual or transgender orientation. This is all quite a shift from the world of Smith, where the religious practice in question was on the cultural and religious fringe, and where many of the advocates for RFRA regarded themselves as defenders of those at the margins. In the past thirty years, religious exemptions have risen from a defense of unusual religious practice to become the primary means of defending traditional Christian practice. To a certain and very large group of people, now is the critical moment to reverse Smith and let the Supreme Court come to the rescue of sincere religious practice everywhere. I am sympathetic to their concern, but remain persuaded that they are wrong, especially after reviewing the historical evidence of the American founding. In order to respond to this particular moment, we should separate our policy preferences from constitutional interpretation. From the perspective of constitutional interpretation, you are  603 See, for example, Henry Gass, “Originalism moves from theory to high court. What that means for US.” Christian Science Monitor, December 21, 2021, <https://www.csmonitor.com/USA/Justice/2021/1221/ Originalism-moves-from-theory-to-high-court.-What-that-means-for-US >. Gass says, “Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett all have strong originalist backgrounds. Justices Samuel Alito and Brett Kavanaugh also seem originalist-inclined.” 604 See Justice Alito’s concurrence in Fulton v. Philadelphia, which was joined by Justices Thomas and Gorsuch.    344 free to believe that the Free Exercise Clause of the Constitution includes a right to religious exemption. You are also free to believe, as Constitutional Originalists claim, that the original intent of those who wrote and ratified the Constitution and its amendments (or the “original meaning” of the text) should be binding upon modern interpretation. But you cannot hold both beliefs consistently. You are free to adhere to a jurisprudence of Originalism and believe in a First Amendment right to religious exemption as a prudential matter, but the former commitment—to the original intent or understanding of the constitution—intellectually undercuts the latter. The research and analysis of this dissertation confirms my previously held view that Scalia was correct in the Smith case, at least with regard to the standard of religious exemptions derived from the Sherbert case. My approach, however, has been to complete much of the work that Scalia skipped over, to consider much of the historical evidence concerning the intent of those who wrote and ratified the First Amendment. The conclusion itself, were it not for being so controversial, would be downright boring. Guarantees of religious liberty at the time of the American Founding did not include a general and justiciable right to religious exemption. Religious exemptions were an established contemporary practice for conscientious objectors from military service, but these exemptions were not offered as an extension of religious liberty guarantees like the Free Exercise Clause, which were typically limited to protections of belief and worship. When exemptions were offered, they were offered by legislatures, not courts, and in a manner that does not suggest a justiciable right as a necessary interpretation of the Free Exercise Clause. We have asked and answered the same question with regard to the philosophy and colonial governance of the seventeenth and eighteenth centuries, with regard to state constitutions and bills of rights, with regard to the writings of Jefferson and Madison, with    345 regard to the Constitutional Convention and The Federalist Papers, with regard to the state ratifying conventions, and finally, with regard to the debates of the First Congress concerning the First Amendment. We have covered each of these topics—some in great detail—to demonstrate that the arguments have not been chosen simply to confirm our conclusion.  There are yet more areas that we might investigate. Future research should include some of the post-ratification actions of the American Founders with regard to religious liberty and religious exemptions from law. We should also consider relevant case law from the time immediately before the American Founding until the time that religious exemptions came into common currency with the Sherbert opinion in 1963.605 If judicially-enacted religious exemptions did not come from the philosophy and practice of the American Founding, future scholarship should identify where they did come from. If the Free Exercise Clause of the First Amendment does not include judicially-enacted religious exemptions, then what does it include? And how ought we to think about the American Founding and the subject of religious liberty? It might be easy to conclude from some of the information presented in the foregoing chapters that the American Founders had a parsimonious view of religious liberty. As we have tried to clarify throughout this dissertation, however, they did have a capacious view of the subject. In opposition to the Sherbert religious exemption view, however, their view had three distinguishing characteristics. First, as far as legal protections were concerned, it tended to be quite narrow. The state constitutions and declarations of rights considered in Chapter 3 typically extended protections only to belief and worship, with further  605 I have contented myself thus far with Professor Bradley’s analysis of case law. Bradley concludes that court decisions from the late eighteenth century through the antebellum era consistently denied the possibility of religious exemption, and furthermore that the theory of religious exemption is a thoroughly modern one, derived from modern philosophies that elevate the individual—and the judge as defender of individual autonomy—over any prior conception of religious liberty or the common good. Bradley, “Beguiled,” 273-303; 307ff.    346 guarantees that civil rights were wholly independent from one’s religious beliefs. Second, they understood religious and political authority as incongruous, as serving in very separate spheres in which political authority could not legitimately speak to matters of religious belief or practice. This separateness was articulated and understood in different ways, but Madison’s notion of “non-cognizance” is an important version of it, not least because it provides a simple framework for understanding the consequences of political authority having no legitimacy in matters of religious belief. In this second characteristic, the right to religious liberty was deep—it offered the civil order no authority over religious matters, regardless of a compelling interest. Third and finally, the Constitutional convention and the Federalists who did the most work to frame out the terms of our government and develop its initial laws and institutions did not view a bill of rights as an especially important tool for defending individual rights. When forced by popular opinion to do so, they conceded. But their first and strongest answer to the defense of individual rights was to develop a constitutional system that used the mechanisms of federalism, separated powers, institutional prerogatives, and a multiplicity of factions to balance vice against vice, ambition against ambition, faction against faction, all in the cause of individual liberty, including religious liberty. If we miss the arguments of “Federalist 10” and “Federalist 51,” then we miss the most important arguments of the American Founding for thinking about and defending religious liberty.  Reconsidering McConnell’s and Alito’s Arguments The introduction to this dissertation focused on Professor Michael McConnell as the most important defender of an Originalist position on judicially-enacted religious exemptions. He is joined in that position by Justice Alito, who has now made many of the same arguments but from    347 the height of the Supreme Court in his concurrence in Fulton v. Philadelphia. It is therefore fitting to conclude by reconsidering McConnell’s arguments, especially his article criticizing the Smith decision, and by reviewing Alito’s historical arguments in Fulton.606 We will then conclude with some broader comments about policy and the distance between the vision of the American Founding and Professor McConnell on the role of judges, which is the larger background behind the narrower consideration of this dissertation. The first argument levelled against Smith is shared by McConnell and Alito. They both believe that Scalia is too flippant in his treatment of the Free Exercise Clause and therefore misses the plain meaning of the text. Scalia writes in Smith,  “[Respondents] assert that…“prohibiting the free exercise [of religion]” includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning.607  In short, Black and Smith believed that the Free Exercise Clause relieved them of a responsibility to follow the state law regarding illegal substances, that they were exempted on account of their religious belief. Scalia does not think that this is the plain or obvious reading of the text because the text was not obviously intended to prohibit laws that incidentally restrict religious belief and practice. Scalia is content to leave the matter there and instead consider other sources for clarification. He does not first proceed to rule out the possibility that a plain reading of the text might include a guarantee of religious exemption. McConnell regards this as an offense:  This is a strange and unconvincing way to deal with the text of the Constitution, or of any law. A court should not disregard the text merely because it contains some degree of ambiguity. Rather, a court should determine the reading of the text that is most probable  606 McConnell, “Free Exercise Revisionism.” 607 Employment Division, 878.    348 and should give that reading presumptive weight unless there is good evidence based on extratextual sources that it is wrong.608   McConnell is instead convinced that the plain reading of the text is “that it prevents the government from making a religious practice illegal,” a reading that easily allows him to read very broad protections into the text, including a right to religious exemption from law.609 McConnell’s point is that the Free Exercise guarantee is broadly stated, so it should be presumptively treated as applying as broadly as possible, only limiting it where absolutely necessary. McConnell writes, Any limitation on the absolute character of the freedom guaranteed by the First Amendment must be implied from necessity, since it is not implied by the text. And while I do not deny that there must be implied limitations, it is more faithful to the text to confine any implied limitations to those that are indisputably necessary. It is odd, given this text, to allow the limitations to swallow up so strongly worded a rule.610  But McConnell’s argument does not prove anything. He freely admits that such a right is bounded by “implied limitations,” and it is the nature of those limitations that are the subject of his inquiry and ours. His argument that “it is more faithful to the text to confine any implied limitations to those that are indisputably necessary” simply begs the question that only our historical sources can answer.  Justice Alito makes a similar point about the plain reading of the text: [T]he ordinary meaning of “prohibiting the free exercise of religion” was (and still is) forbidding or hindering unrestrained religious practices or worship. That straightforward understanding is a far cry from the interpretation adopted in Smith. It certainly does not suggest a distinction between laws that are generally applicable and laws that are targeted.   608 McConnell, “Free Exercise Revisionism,” 1115. 609 Ibid. 610 Ibid., 1116.    349 As interpreted in Smith, the Clause is essentially an anti-discrimination provision: It means that the Federal Government and the States cannot restrict conduct that constitutes a religious practice for some people unless it imposes the same restriction on everyone else who engages in the same conduct. Smith made no real attempt to square that equal-treatment interpretation with the ordinary meaning of the Free Exercise Clause’s language, and it is hard to see how that could be done.611  Alito begins his historical analysis of the Free Exercise Clause by considering its terms as defined by contemporary dictionaries. This inquiry leads him to the conclusion that the right was intended to protect all religious exercise, even religious exercise that was otherwise in violation of law. But this right is too permissive and would necessarily allow religious actors to violate everyone else’s rights with abandon. Something like a compelling interest test and judicially-enacted religious exemptions must, therefore, be the right way of determining when religious activity should be allowed in violation of law and when it should not. Alito is so convinced of this interpretation that he tells us “it is hard to see how” Scalia’s view could be squared “with the ordinary meaning of the Free Exercise Clause’s language.” Now that we have provided substantial background on Free Exercise Clause, it is worth considering both scholars’ argument about the plain meaning of the text. Is it really impossible to square the Smith view against the text? In Chapter 2 we reviewed attitudes towards religion and religious liberty in the colonial and founding eras; that analysis provided no real evidence for overly broad understandings of religious liberty, to include exemptions from law, even in states like Pennsylvania that were heralded for religious toleration. Chapter 3 situates the Free Exercise Clause against many similar religious liberty guarantees in state constitutions and declarations of rights. While “Free Exercise of Religion” may be elegant in its comparative brevity, it does not  611 Fulton, 25 (slip op.).     350 obviously extend beyond the intent of contemporary guarantees that were quite limited and typically only identified belief and worship for protection. Regarding exemptions like conscientious objection from military service, the early states were willing to make allowance, but only in a conditional manner; moreover these allowances were separate from state guarantees of religious liberty. Chapter 4 provides a theoretical framework behind all that—or, at least, the theoretical framework of Thomas Jefferson and James Madison. Both Jefferson and Madison were likely more liberal than their peers regarding religious liberty, and they take a more limited view than McConnell and Alito. Jefferson’s view, which extended broad rights to belief but not necessarily to action, is more restrictive than Scalia’s view in Smith. Madison’s view of religious non-cognizance would prevent any religious exemptions, even those enacted by a legislature, and would certainly permit generally applicable laws to affect religion so long as those laws were wholly secular and not directed to the specific beliefs or practices of a religious faith. Chapters 6 and 7 demonstrate that the First Congress had no revolutionary aspirations for the Free Exercise Clause, and we should therefore expect, absent other evidence, that they simply meant to capture the popular sense of the matter. So, from the historical record, it is not at all obvious that we should privilege McConnell and Alito’s broad reading of the Free Exercise Clause, especially when the activity under consideration in Smith had violated criminal statute. In the block quote on the immediately prior pages, Alito criticizes the Smith opinion for interpreting the Free Exercise Clause as merely an “anti-discrimination” or “equal treatment” provision. In the immediately following text (not quoted), he asks why, if this interpretation is correct, Congress did not simply write the Free Exercise Clause as an equal treatment provision. Other protections in the Constitution included such language, and many of the state religious    351 liberty provisions (see Figure 3.1) explicitly included something like a religious equal protection clause. Alito writes, Language mandating equal treatment of one sort or another also appeared in the religious liberty provisions of colonial charters and state constitutions. But Congress eschewed those models. The contrast between these readily available anti-discrimination models and the language that appears in the First Amendment speaks volumes.612  While our prior chapters have never suggested that the Free Exercise Clause was intended narrowly as a mere equal protection clause, we have inferred that equal protection was one of the guarantees likely wrapped into it. As Chapter 3 explains, the state guarantees of religious liberty included a variety of specific protections which basically can be summarized as explicit protections for belief and worship and a guarantee that belief and worship have no bearing on civil rights—the latter of these essentially serving as a mandate for equal treatment. The language of “free exercise,” which was adopted by Virginia and Georgia, likely encompassed the more specific guarantees enumerated by contemporary states, but it is not obvious that such guarantees extended further. As Chapter 7 explains, an equal protection clause was also considered by the First Congress as they were deliberating about the substance of what would become the Bill of Rights. As the text explains and Figure 7.1 shows, this provision (Provision #1) was dropped from Madison’s original draft in Select Committee deliberations. While we do not know for certain why it was dropped, a likely reason is that it was regarded as redundant to the provision protecting “the equal rights of conscience,” the provision that would eventually be modified into the Free Exercise Clause. Alito claims that Congress eschewed the model of the states. Our analysis suggests rather that Congress followed the example of the states, but  612 Ibid., 28.    352 ultimately settled on the most economical and capacious language that was broadly consistent with that example. Aside from their concern about the plain meaning of the text, both McConnell and Alito also criticize Scalia for skipping over the historical background of the First Amendment. Had he taken a closer look, McConnell assures us that Scalia would have seen evidence for the religious-exemption view, especially in the text of state constitutions and in the ideas of James Madison. Regarding the former, McConnell says, For example, one can look to the various state constitutional provisions regarding free exercise of religion, eight of which expressly and one of which impliedly contained language that appears to be an early equivalent of the “compelling interest” test. Article 61 of the Georgia Constitution of 1777 is typical: “All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State.” It is difficult to reconcile these provisions with the narrow reading of free exercise. If the free exercise guarantees could not be read to exempt believers from “otherwise valid” laws, what could have been the purpose of the “peace and safety” proviso? These provisions were the likely model for the federal free exercise guarantee, and their evident acknowledgment of free exercise exemptions is the strongest evidence that the framers expected the First Amendment to enjoy a similarly broad interpretation.613  Readers will recall that Chapter 3 considered this question in detail, including similar arguments from Justice Alito. Alito explains, The model favored by Congress and the state legislatures—providing broad protection for the free exercise of religion except where public “peace” or “safety” would be endangered—is antithetical to Smith. If, as Smith held, the free-exercise right does not require any religious exemptions from generally applicable laws, it is not easy to imagine situations in which a public-peace-or-safety carveout would be necessary.614   613 McConnell, “Origins,” 1117-18. 614 Fulton, 36 (slip op.).    353 Given that many of the state constitutions conditioned their religious guarantees on “peace and safety” provisions (or “Licentiousness provisos” as described in Figure 3.1), how are we to understand them? While recognizing that these provisos represent a limitation, McConnell and Alito insist that they represent a wide outer limit. Their sense of the provisions is that the right could therefore be privileged over law, just so long as religious practice did not violate peace and safety, or whatever language and ideas were contained in the licentiousness proviso. As a hypothetical example, they might say that a Founding-era state could ban the sale and consumption of alcohol, but that Roman Catholics would be legally exempted to use it for religious services so long as their use did not jeopardize the public peace and order. While the general argument in this dissertation is sympathetic to their religious concern—and certainly this author would regard a prohibition on the consumption of sacramental wine as very bad policy—their interpretation of these provisos misses much.  Per Chapter 3, the licentiousness provisos are just one limitation on religious liberty guarantees that tend to be quite narrow. Taken altogether, the effect of the religious liberty guarantees is not to suggest a permissive right that might oppose otherwise-valid laws, but rather to suggest that the right to religious liberty protected a narrow range of activity that did not include legal exemptions. While the state laws do not all use the same language or guarantees, the common protections are for belief and worship, plus a guarantee that civil rights cannot be affected by one’s belief or worship. In this context, the licentiousness provisos may represent at least three possibilities that they do not consider. First, the provisos may invite state action against fringe belief and worship that is not otherwise illegal. In other words, citizens are free to believe and worship as they will, but if they jeopardize the public peace—for example, with a raucous revival gathering or beliefs that threaten the legitimacy of the state—then the state    354 reserves the right to intervene. Against the narrow-but-deep view of religious liberty explained in this dissertation, this view would be a narrow-and-shallow view, but it is at least a viable interpretation of these provisos. Second, even if the provisos do not invite state action against religious belief and worship, they may simply be a restatement of civil prerogatives as established by law. How does the state legislature define peace and order? By passing law. So a requirement that religious belief and worship not threaten the public peace and order could easily be understood to mean that belief and worship are permissible up to the boundaries of law and no further. As discussed in Chapter 3, Professor Hamburger understands the provisos exactly this way, as a reiteration of the state’s valid interest in maintaining adherence to the law.615 Third and finally, Professor Muñoz reminds us that state guarantees of individual rights, whether in state constitutions or in declarations of rights, were not yet universally understood as justiciable rights to be maintained against all expressions of government and enforced by an active court system.616 Among other purposes, they were intended to teach and to establish the common purposes of government as something like a modern mission statement or the prefatory section of a modern contract. Viewed through this lens, the licentiousness provisos are a reminder that the natural right to religious belief and worship is limited by civil considerations: Your right to swing your fists ends at the tip of your neighbor’s nose; alternatively, in our context, your right to religious liberty does not include the right to foment revolution or go naked in the streets. None of these readings invites a justiciable right to religious exemption from law, and all are a better fit for the context of state religious liberty provisions than that proposed by McConnell and Alito.  615 Hamburger, “A Constitutional Right,” 918. 616 Muñoz, Religious Liberty and the American Founding, 64.    355  The next arguments from Justice Alito’s Fulton opinion focus on religious exemptions at the time of the Founding. Alito stresses that religious exemptions were a common feature of law in the colonies and early states: “When there were important clashes between generally applicable laws and the religious practices of particular groups, colonial and state legislatures were willing to grant exemptions—even when the generally applicable laws served critical state interests.”617 The picture he paints is of an environment especially deferential to the religious beliefs and practices of minority faiths, especially Quakers. He is particularly taken with the propensity for colonial and early state legislatures to provide conscription exemptions to those who were religiously scrupulous, and he specifically cites such an exemption made by the Continental Congress: The Continental Congress also granted exemptions to religious objectors because conscription would do “violence to their consciences.” …This decision is especially revealing because during that time the Continental Army was periodically in desperate need of soldiers, the very survival of the new Nation often seemed in danger, and the Members of Congress faced bleak personal prospects if the war was lost. Yet despite these stakes, exemptions were granted.618  Alito acknowledges that these early exemptions were all made by legislatures, not by courts, but he believes that they are reflective of a general approach to religious liberty that would have carried over to judicial interpretation: “[L]egislatures provided those accommodations before the concept of judicial review took hold, and their actions are therefore strong evidence of the founding era’s understanding of the free-exercise right.”619  617 Fulton, 40. 618 Ibid., 41-42; quoting “Resolution of July 18, 1775,” Journals of the Continental Congress, 1774–1789, Vol. II, ed. W. Ford (Washington: Government Printing Office, 1905), 189, from McConnell, “Origins,” 1469. 619 Ibid., 43.    356  The prior chapters have not shied away from the topic of exemptions, and our longer history tells a slightly different story than Justice Alito. Certainly the exemptions offered by the colonies and the early states were indicative of concern with the religious beliefs and practices of minority faiths. But oath exemptions cost little and required little adjustment to accommodate those whose religious beliefs prevented it. Several of the early state constitutions simply add the language of “oath or affirmation” as a solution to the problem (see Figure 3.1). Conscientious exemptions were much more costly to the public welfare, especially in the midst of the Revolution. As we have discussed, however, legislatures required religious dissenters to help bear these costs, usually in the form of “equivalent payments” that could be quite high and were certainly unacceptable to the Quakers to whom they were offered. Rather than an extension of religious liberty guarantees, laws permitting conscientious objection were a compromise position reflecting the difficult political circumstances of state legislatures that needed to raise armies and religious minorities who refused to support them and could scarcely have been forced into useful military service. Alito misses these political circumstances, especially in his account of the Continental Congress, which assumes that the Continental Congress had the authority to raise an army and therefore the authority to exempt colonists from conscription. The reality of the situation is that the Continental Congress was wholly dependent upon colonial legislatures to enforce its recommendations in law. The same resolution cited by Alito explains the limits of its own authority:  Where in any colony a militia is already formed under regulations approved of by the convention of such colony, or by such assemblies as are annually elective, we refer to the discretion of such convention or assembly, either to adopt the foregoing regulations in the whole or in part, or to continue their former, as they, on consideration of all    357 circumstances, shall think best.620  In short, the Continental Congress was at the mercy of colonial governments to act—or not act—on its recommendations. And the same sentences which explained that the Congress intended “no violence to their consciences” requested the support of those refusing to bear arms in whatever manner they might offer it. The resolution can still be read as an act of magnanimity or concern for minority religious belief, but it is important to understand that it may also have been an attempt on the part of the Continental Congress to recognize the “equivalent payment” requirement already in use by some of the colonies and to appeal for support from Quakers and others who were disinclined from supporting the cause of revolution.  The decisive argument, however, is not about how exemptions were offered by colonial or state legislatures but whether those exemptions were offered as an interpretation of contemporary guarantees of religious liberty—and therefore whether such exemptions should be extended by courts as a function of judicial review. On this point Alito follows McConnell to assume that legislative exemptions set an example that would necessarily have been followed by the Courts. Neither McConnell, Alito, nor the information presented in this dissertation provides conclusive proof one way or the other on this score. Alito and McConnell’s argument is basically the quote from Alito above, that legislative exemptions are “strong evidence of the founding era’s understanding of the free-exercise right,” and there is no obvious historical source to support this claim. The evidence presented in the prior chapters tends in the opposite direction: exemptions for conscientious objectors, while offered for religious reasons, do not seem to have been connected to religious liberty guarantees, either as they appear in state constitution and bills  620 “Resolution of July 18, 1775,” 190.    358 of rights, or even as they were thought of by legislatures. If legislators believed that a right to conscientious objection was a necessary consequence of a state’s guarantee to religious liberty, it seems odd that they were so insistent upon an equivalent payment, especially when it was known that Quakers also regarded such payments as a violation of their religious convictions.  The best evidence available to us concerning the connection (or lack thereof) between conscription exemptions and religious liberty guarantees is in the deliberations of the First Congress over the bill of rights. As we discussed in Chapter 7, that deliberation demonstrates a revealing separateness between the provision that would become the Free Exercise Clause (Provision #3) and Madison’s provision for conscientious objectors (Provision #4). Not only were those items considered as separate provisions, but even the recorded arguments about them never make reference between them—not even when the debate over the latter provision occurred immediately after the former. At no point in the First Congress’s recorded deliberations did anyone suggest that the conscientious objector provision was unnecessary because of the Free Exercise Clause (or its earlier versions) or even that it was an important extension of the Congress’s commitment to religious liberty. But Alito disputes all of these conclusions on the paucity of the record. Instead, Alito argues that other implications are just as possible:  Those who favored Madison’s language [in Provision #4] might have thought it necessary, not because the free-exercise right never required religious exemptions but because they feared that exemption from military service would be held to fall into the free-exercise right’s carveout for conduct that threatens public safety. And of course, it could be argued that the willingness of the House to constitutionalize this exemption despite its potential effect on national security shows the depth of the Members’ commitment to the concept of religious exemptions.621   621 Fulton, 51.    359 But all these suppositions prove is that Alito is unfamiliar with the available record. First, had someone believed that Provision #4 was connected to the free exercise right, it stands to reason that he might have said so, especially because the record includes more discussion of Provision #4 than nearly any other topic in what would become the Bill of Rights. Second, speaking of the “free-exercise right’s carveout for conduct that threatens public safety” is almost incoherent. We are, of course, aware of the “carveouts” or licentiousness provisos from religious liberty guarantees in the states, and we are furthermore aware of their importance to Alito’s and McConnell’s overall argument. But there is no such proviso that is part of the Free Exercise Clause, nor was there ever any such proviso in any of the draft versions considered by the First Congress. Alito is simply assuming continuity where he needs to demonstrate it. Third, the House record on Provision #4 was hotly debated before the House finally resolved to make the right conditional. It was obviously important to them—again, the purpose of this dissertation is not to say that the Founders took a cold view of religious belief and practice—but they were quite concerned with how the right would be applied. The final historical argument that we should reconsider is McConnell’s treatment of James Madison. McConnell assures us that the Father of the Constitution and author of the Bill of Rights was also a big proponent of religious exemptions: It is also worth mentioning that James Madison, principal author and floor leader of the First Amendment, advocated free exercise exemptions, at least in some contexts, and proposed language for the Virginia free exercise clause that was even more protective than the “peace and safety” provisos of most states. To the extent that the opinions of individual framers are significant, his espousal of exemptions should carry more weight than Jefferson’s opposition.622   622 McConnell, “Free Exercise Revisionism,” 1119.    360 McConnell’s account here is brief, directing readers to his earlier essay in order to follow the thread. Looking back at his earlier essay, we are reminded that Madison did advocate for exemptions—“at least in some contexts,” to use McConnell’s language. But in referring to “some contexts,” McConnell only means one context: conscientious objection from military service. The two occasions where Madison advocated for conscription exemptions were first in his support of such a provision in the Bill of Rights (Provision #4 discussed in Chapter 7) and second in his support for the same when the militia bill was considered by the House in 1790.623 Even if we assume that Madison was a fierce partisan of militia exemptions for the religiously scrupulous, we have good reason—discussed at length in Chapter 7 and reiterated just a paragraph previously—to infer that the House debate over Provision #4 actually disproves that the First Congress believed exemptions to be a reasonable interpretation of the Free Exercise Clause. And what of Madison’s involvement in the 1776 Virginia Declaration of Rights? And the arguments of his “Memorial and Remonstrance Against Religious Assessments”? As discussed in Chapter 3, his involvement in the Virginia Declaration of Rights proves that Madison took a more capacious view of religious liberty than some of his contemporaries, but it falls short of proving that Madison or his fellow Virginians contemplated a right to judicially-enacted religious exemption. And as we discussed in Chapter 4, Madison’s “Memorial” ultimately argues against religious exemptions.  The real reason that McConnell wants to point to Madison is that he was easily one of the most liberal of the Founders on the subject of religion, and McConnell believes that Madison’s philosophical framework provides an opening for religious exemption. McConnell is probably  623 The Papers of James Madison Digital Edition, Congressional Series, Vol. 10, ed. J.C.A. Stagg (Charlottesville: University of Virginia Press, Rotunda, 2010) 328.    361 correct that Madison was among the most liberal of his contemporaries on the subject of religion, but this point does not bode particularly well for McConnell’s case. Legislation is not, after all, most fairly interpreted with reference to its most liberal supporters. In the case of interpretative ambiguity, it stands to reason that we should look to find the median or mode position as the most likely “intent” of the legislation. Admittedly this is a difficult if not impossible interpretative framework—and Scalia and other Originalists have therefore been justly suspicious of attempts to define “legislative intent.”624 But even without weighing into that particular debate, we can reliably say that the original intent of legislation will rarely if ever prove to be more liberal than the interpretation of its most liberal supporter. In other words, we should not expect the original intent of the Free Exercise Clause to be a more liberal guarantee of religious liberty than the views of James Madison.  McConnell wants to believe that Madison’s theoretical framework for religious liberty is identical to his (Madison’s) legal framework. If Madison says that religious obligation is prior to political obligation, then McConnell automatically believes that, as a matter of legal practice, Madison would have privileged religious obligations with few (if any) exceptions. To give a fair hearing to McConnell, we will quote him at length:  Consistent with this more affirmative stance toward religion, Madison advocated a jurisdictional division between religion and government based on the demands of religion rather than solely on the interests of society. In his Memorial and Remonstrance, he wrote:  The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate…. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him.   624 Scalia, A Matter of Interpretation, 16-18.    362 Moreover, Madison claimed that this duty to the Creator is “precedent both in order of time and degree of obligation, to the claims of Civil Society,” and “therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society.” This striking passage illuminates the radical foundations of Madison’s writings on religious liberty. While it does not prove that Madison supported free exercise exemptions, it suggests an approach toward religious liberty consonant with them. If the scope of religious liberty is defined by religious duty (man must render to God “such homage…as he believes to be acceptable to him”), and if the claims of civil society are subordinate to the claims of religious freedom, it would seem to follow that the dictates of religious faith must take precedence over the laws of the state, even if they are secular and generally applicable. This is the central point on which Madison differs from Locke, Jefferson, and other Enlightenment advocates of religious freedom.625  McConnell is here citing Madison’s “Memorial and Remonstrance,” and he is correct to notice Madison’s jurisdictional difference between religion and civil society. What he misunderstands, however, is that the theoretical framework in the quoted section is not the whole story from Madison, especially not when applying that framework to legal circumstances. Even within the context of the “Memorial,” Madison clearly opposed a framework of legal exemptions.626 Just a few sentences beyond those quoted by McConnell above provide a fuller picture of what Madison had in mind, quite to the contrary of McConnell’s account: We maintain therefore that in matters of Religion, no mans [sic] right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.627  McConnell misses two important points that appear in the quoted section. First, Madison’s overall view of the relation between religion and civil order was one of non-cognizance. Non-cognizance is explained at length in Chapter 4, and the conclusions of that chapter borrow  625 McConnell, “Origins,” 1453. 626 See Madison, “Memorial and Remonstrance,” Argument 4 (Figure 4.2). 627 Madison, “Memorial and Remonstrance.” Argument 1 (Figure 4.2).    363 significantly from the scholarship of Professor Muñoz, who reaches the same conclusion.628 A framework of non-cognizance would chafe against a framework of religious exemptions, since the latter requires that the civil order take special notice of religious belief and practice. Second, McConnell misses Madison’s point about majority rule. Obviously Madison desires to prevent majority “trespass on the rights of the minority,” but he approaches it from a majoritarian perspective, recognizing that the viable course is persuasion, not parchment barriers. His later “Federalist 10” and “Federalist 51” are his more comprehensive answer to the problem of majority rule, and his solution is not to oppose it with guarantees of liberty. Rather, he tries to moderate majority rule by the institutional framework and checks of the Constitution: limited powers, federalism, a large and varied republic, and institutions that allow ambition to check ambition. Madison is simply not a partisan of religious exemptions, and if Madison is not a partisan of religious exemptions, then McConnell’s Originalist case falls apart.   McConnell’s complaint with Scalia’s opinion in Smith is not limited to an Originalist argument, however. The rest of his essay, “Free Exercise Revisionism and the Smith Decision,” is divided into two parts: one concerning Scalia’s treatment of precedent, the other concerning his perceived differences with Scalia on the theory and role of the Court. Both fall outside the scope of our historical inquiry, but each deserves some comment here. The former, on Scalia’s use of precedent, is where McConnell’s arguments excel, and where he is also strongly joined by Alito. Scalia’s attempts to distinguish earlier opinions of the Court are not especially successful. As mentioned in the introduction, Scalia’s “hybrid rights” theory threatens to render the Free Exercise Clause meaningless. In the case of Wisconsin v. Yoder (1972), for example, the issue of  628 Muñoz, God and the Founders, 11-48.    364 Free Exercise is treated as central while parental rights are secondary. To suggest that the Free Exercise Clause was only controlling because it paired with parental rights is to intentionally misconstrue what the Court thought it was doing. Either Scalia needs to find a better way to distinguish (or overrule) precedent, or his argument is with a larger swathe of Court history and jurisprudence than he is willing to admit. McConnell’s analysis of precedent suggests that the false turn corrected by the Smith opinion might have been much earlier and run much deeper than Sherbert v. Verner (1963). McConnell does not put it in these terms, of course, because McConnell thinks that Smith is a false turn from the view of the American Founding. Having proved that it was not the view of the Founding, we are left to sort out when and where the incorrect view crept in—again, a consideration that should be answered by further research, but is outside the scope of this dissertation.  We lack the time and scope here to sort out the problem of precedent. Those seeking to return to an Originalist interpretation of the Free Exercise Clause will likely find it necessary to overturn much of the Free Exercise jurisprudence of the last half century or more, rather than distinguish it as Scalia attempted to do in Smith. But the project of rethinking twentieth-century jurisprudence on Free Exercise would bring us directly into conflict with McConnell on the question of the theory and role of the Court. This question provides the material for over half of McConnell’s direct response to the Smith opinion and is the real “why” behind both his opposition to Smith and his historical account of the Free Exercise Clause. In short, the real disagreement is between McConnell and Scalia’s competing visions about the role of the judiciary—though it is not obvious where Alito might fall in this debate, at least not from his concurrence in Fulton. The details of the Smith case, including the possibility of a right to religious exemption, are incidental to this larger debate between Scalia and McConnell’s vision    365 of the Court. We cannot hope to resolve that larger debate in our remaining pages, but introducing it provides a broader context in which to consider political and legal protections for religious liberty.  How to Protect Religious Liberty?  McConnell argues that Scalia’s Smith opinion does not rest on “text or history or precedent” at all, but rather “on the majority’s view, revealed in a few key sentences in the opinion, of the proper relation between law and religious conscience.”629 Those key sentences from Scalia are as follows: It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.630  McConnell quotes the same passage from Scalia and immediately responds: The rhetoric of this sentence is certainly impolitic, leaving the Court open to the charge of abandoning its traditional role as protector of minority rights against majoritarian oppression. The “dis-advantaging” of minority religions is not “unavoidable” if the courts are doing their job. Avoiding certain “consequences” of democratic government is ordinarily thought to be the very purpose of a Bill of Rights. But the argument reflected in this sentence nonetheless contains ideas that cannot be dismissed so lightly.631  McConnell then spends the remainder of his Smith critique—the balance of his whole argument—considering five ideas implied by Scalia with which McConnell disagrees. McConnell’s view of these five ideas or arguments can be abbreviated into the following two: 1.  629 McConnell, “Free Exercise Revisionism,” 1129. 630 Employment Division, 890; qtd. in ibid. 631 McConnell, “Free Exercise Revisionism,” 1129.    366 Neutrality is the normative rule of the Constitution and especially the Establishment and Free Exercise Clauses; 2. Judges are the primary arbiters of the neutrality standard and can thereby solve the problem of majority tyranny over minority rights.  Regarding McConnell’s first point—neutrality as a normative standard—he cites the history and precedent of the Establishment and Free Exercise Clauses. Relying first on Larson v. Valente (1982), where the Court found that the “clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another,” McConnell finds a similar rule in various extraconstitutional sources.632 John Leland, for example, suggested an amendment to the Massachusetts Constitution that would have forbidden the legislature to prefer one sect to another. And something like non-preferential treatment was evident in several of the recommendatory amendments offered by the state ratifying conventions.633 While ignoring the fact that the language of preference was not included in the final text and was specifically discarded by the First Congress—McConnell tells us, “This idea carried forward to the federal Constitution.”634  McConnell jumps quickly from a non-preferential understanding of the First Amendment to a very active understanding of neutrality. He first tells us that “The Free Exercise Clause, prior to Smith, was an equalizer,” allowing the courts “to extend to minority religions the same degree of solicitude that more mainstream religions are able to attain through the political process.” 635 But the process of equalizing is not a blind or crude one, but rather a very sophisticated  632 Larson v. Valente, 456 US 244 (1982); qtd in ibid 1130. 633 Per Figure 6.1, the Virginia recommendatory amendment included the words, “no particular religious sect or society ought to be favored or established, by law, in preference to others.” 634 McConnell, “Free Exercise Revisionism,” 1131. The Senate did briefly consider and approve non-preferential language (“Congress shall make no law establishing one religious sect or society in preference to others, nor shall the rights of conscience be infringed.”), but discarded the language on the same day; The Journal of the Senate, 70. 635 McConnell, “Free Exercise Revisionism,” 1132.    367 opportunity to ensure an equal playing field for all. McConnell provides the example of Stansbury v. Marks, a 1793 Pennsylvania case wherein a Jew, intent upon observing the Sabbath, was fined for his unwillingness to testify on a Saturday. The case, which upheld the fine, cuts against McConnell’s position as a historical matter. But as an example, McConnell explains how the case should have been decided:  The best, least costly, and most neutral solution is to exempt Saturday sabbath observers from the obligation of testifying on Saturday. Thus, an exemption is not “affirmative fostering” of religion; it is more like Sherbert’s neutrality in the face of differences.636  We will turn to enforcement shortly. For the moment, the important thing is to recognize the steps in McConnell’s argument for neutrality. First, it emanates from a supposed principle of sectarian non-preferentialism in the First Amendment. Second, it constitutionally requires that religions be exempted from law on an ad hoc basis according to the “needs” of each. “Neutrality” is not simply blindness (or non-cognizance) towards the differences between religion, because a colorblind approach could easily put some faiths at a significant disadvantage; neutrality requires tailoring to the needs of each faith and circumstance.  While McConnell’s “neutrality” may strike us as a rather radical version of neutrality, he points out that we already use a similar framework for answering questions about physical and mental handicaps: The theory of handicap discrimination recognizes that individuals with a handicap are different in a way that cannot be changed but can only be accommodated. Failure to install a low-cost ramp for access to a building, for example, is a core violation of the norms of handicap discrimination theory—even though a rampless building was presumably not constructed for the purpose of exclusion. …A person who cannot work on Saturday is not merely disproportionately disadvantaged by a requirement that he accept “suitable” work (where “suitable” is defined in secular terms); he is excluded  636 Ibid., 1134.    368 precisely on account of his “difference,” as surely as the wheelchair-bound person is from a rampless building.637   This metaphor is useful to McConnell because it proves that other areas of the law have already used similar logic and made similar accommodations. It is useful to us because it illustrates McConnell’s disguised radicalism, which is much more interested in modern legal theories than in the original intent of the First Amendment. His claim is not simply that these kinds of accommodations ought to be made for religious believers as a prudential matter, or even as a statutory one, but that they are required as a matter of First Amendment interpretation.  McConnell is prepared to extend his neutrality standard even so far as to exempt the kind of criminal violations at issue in Employment Division of Oregon v. Smith. In our introduction we mentioned that much of the hostility to the Smith ruling, at least from legal and religious conservatives, came only from the Court’s decision not to sustain the strict scrutiny standard of Sherbert v. Verner. Many, if not most, were comfortable with applying the Sherbert test and finding that the state’s compelling interest standard had been met, that the state had a strong enough interest in policing illegal drugs to withhold employment benefits from plaintiffs Smith and Black. But McConnell disagrees; he is ready to apply his neutrality standard even in cases of criminal conduct: Evidence in the Smith case showed that ingestion of peyote by members of the Native American Church is not dangerous and does not lead to drug problems or substance abuse…. If this evidence is valid, then the decision to ban the sacramental use of peyote but not the sacramental use of wine is not based on any objective differences between the effects of the two substances. Rather, it is based on the fact that most ordinary Americans are familiar with the use of wine and consider Christian and Jewish sacramental use harmless and perhaps even a good thing; but the same ordinary Americans consider peyote a  637 Ibid., 1140.    369 bizarre and threatening substance and have no respect or solicitude for the Native American Church. In short, the difference is attributable to prejudice.638  The result suggested by McConnell is consistent with the position of the dissenting opinion in Smith, authored by Justice Blackmun and joined by Justices Marshall and Brennan. They essentially applied the compelling interest test narrowly—to consider only peyote used in the context of the Native American Church—and therefore found that the state lacked sufficient interest to prohibit the religious practice in question.639 This was in contrast to the position of the concurring opinion, authored by Justice O’Connor, that defined the state’s interest to include broad control of illegal substances, and therefore found sufficient interest to uphold the law and the denial of employment benefits.640 But we should recognize how much work is being done by the selective application of the strict scrutiny or “neutrality” standard. The further the Court gets from laws of general applicability and the more narrowly it tailors laws to meet individual circumstances, the more likely it is to find in favor of religious claimants. McConnell’s position is therefore on the far end of those who favor a strict scrutiny standard. His version of “neutrality” would have judges making constant and narrow changes to law in order to sustain a balance between generally applicable law and the demands of individual conscience (or, at least, conscience as organized under a formal faith tradition).  McConnell’s second theoretical point concerns the enforcement mechanism for his neutrality standard, and it should be obvious that he looks to the courts to fulfill this role. The problem with the elected branches is that they “will inevitably be selectively sensitive toward  638 Ibid., 1135. 639 Employment Division, 909-910: “It is not the State’s broad interest in fighting the critical ‘war on drugs’ that must be weighed against respondents’ claim, but the State’s narrow interest in refusing to make an exception for the religious, ceremonial use of peyote.” 640 Employment Division, 904-907.    370 religious injuries.” Legislators and executives will look to the interests of the people and will allow infringement on the rights of religious minorities, either as a function of negligence or even intentional majority tyranny. But the judiciary offers another way: The courts offer a forum in which the particular infringements of small religions can be brought to the attention of the authorities and (assuming the judges perform their duties impartially) be given the same sort of hearing that more prominent religions already receive from the political process.641  The purpose of the Courts, at least in McConnell’s telling, is primarily to defend minority rights, because these are not likely to receive a fair hearing by the more political branches of government. This role is doubly true in the area of religious free exercise, where judges are given a license to legislate through McConnell’s expansive “neutrality” standard.  As McConnell’s vision comes into focus, it is increasingly clear that he envisions the Constitution and the institution of the judiciary in a much different light than that understood by the Constitutional Convention or the First Congress. Their priorities, especially regarding a definition of individual rights, would have looked much different had they shared his vision. But lest we be accused of flippancy, we should credit McConnell with serious concern for religious freedom. Departure from his vision towards the much more limited protection offered under the Smith ruling could have real consequences for religious believers. Referring to potential or pending litigation, McConnell warns: Consider the fact that employment discrimination laws could force the Roman Catholic Church to hire female priests, if there are no free exercise exemptions from generally applicable laws. Or that historic preservation laws could prevent churches from making theologically significant alterations to their structures. Or that prisons will not have to serve kosher or hallel food to Jewish or Moslem prisoners. Or that Jewish high school athletes may be forbidden to wear yarmulkes and thus excluded from inter-scholastic  641 McConnell, “Free Exercise Revisionism,” 1136.    371 sports. Or that churches with a religious objection to unrepentant homosexuality will be required to retain an openly gay individual as church organist, parochial school teacher, or even a pastor. Or that public school students will be forced to attend sex education classes contrary to their faith. Or that religious sermons on issues of political significance could lead to revocation of tax exemptions. Or that Catholic doctors in public hospitals could be fired if they refuse to perform abortions. Or that Orthodox Jews could be required to cease and desist from sexual segregation of their places of worship.642  McConnell’s list, though long, is quite serious. Most of the concerns he raises have been litigated in some form since he wrote this article in 1990. Were it not for the Religious Freedom Restoration Act and similar state-level RFRA statutes, even more of these cases would have been decided against the religious litigant, striking blows against even traditional Christian religious practice, to say nothing of minority faiths. Any response to McConnell needs to take these threats seriously, not least of all because the American Founding also understood religious liberty as an important value.  The obvious problem with McConnell’s account is that he underestimates the potential of the elected branches to share his concern for religious liberty. McConnell tells us that, without judicial intervention, “believers are helpless to deal with infringements on religious freedom.”643 But that simply is not true. The Religious Freedom Restoration Act is but one obvious and modern example of Congress’s bipartisan commitment to protect religious liberty. McConnell could not have known that RFRA would be legislatively successful or judicially powerful in 1990, but he could have looked to the example of prior legislatures to do things like grant conscientious exemptions. As New York Representative Egbert Benson told the First Congress regarding those religiously scrupulous of bearing arms, “I have no reason to believe but the  642 Ibid., 1142-43. 643 Ibid., 1143.    372 Legislature will always possess humanity enough to indulge this class of citizens in a matter they are so desirous of….” And, to finish Benson’s point, “…but they [the legislators] ought to be left to their discretion” to balance the competing needs of civil society and the claims of conscience.644 Among other reasons to have a Bill of Rights, a Bill of Rights is a signpost and reminder to all political institutions about the values of the community, and there is good reason to believe that legislatures and executive departments will be keener to notice and observe areas where fundamental, explicitly-named rights are involved—especially when the judicial branch is not expected to provide the primary assistance.  A second problem with McConnell’s vision is that his “neutrality” is not really neutral. McConnell offers a particular vision of order and justice, then names it as “neutrality” while hoping that we will not notice. His vision does have certain “neutral” features, but the underlying problem is a philosophical and political one: As Madison describes in “Federalist 10,” there is no escaping the problem of faction. There is no neutral or totally agreeable view of what is good for society; there are only competing visions (or factions) locked in a permanent political scrum. McConnell is assuming that the court system can rise above all considerations of faction to have a clear view of the common good and therefore act as a neutral arbiter between factions. Rather than leave religion alone, as an entirely separate sphere from political authority (as we see in Locke and Madison), then allow factions to sort out the messy details of their common civic life through the institutional intermediaries created by the Constitution (as we see in The Federalist Papers), McConnell wants judges to constantly tinker at the point where religious and political interests meet in order to optimize each person’s experience of personal and religious liberty. His  644 Annals of Congress, 780.    373 ultimate aim to bring greater religious freedom, but his vision of a neutral position is merely a variety of liberalism that privileges individual belief and action over the common will as expressed in law. The purpose of civil society in this view is to ensure that each is free to determine his own answers to metaphysical questions, entirely unencumbered so long as he does no physical harm to anyone else. McConnell’s is a perfectly valid view—a popular one, even—but it assumes fixed answers to unsettled political questions.  McConnell explains, “Both the evangelical advocates of religious freedom and the Enlightenment liberals agreed that the ‘legitimate powers of government extend only to punish men for working ill to their neighbors.’”645 In McConnell’s hands, this “no harm” principle is a simple tool dealing only with physical harm. Applied to a religious community, it is primarily about whether the religious community does physical harm to those outside itself. Considering a case brought by religious plaintiffs concerning minimum wage and maximum hours legislation, McConnell concludes, “But if members of the Alamo religious movement are inspired to work for the glory of God for long hours at no pay, their neighbors are not injured and the government has no legitimate power to intervene.”646 In other words, the state does not have an invested interest in protecting the members of a religious community from themselves or from the demands of their own religious community. Amish farmers desiring exemption from social security ought similarly to be exempted, regardless of the state’s interest in universal participation in the social security system or in ensuring that all citizens have some baseline retirement funds. Most controversially, McConnell applies his standard to the Bob Jones University case and finds in favor of the university:   645 McConnell, “Free Exercise Revisionism,” 1145, quoting Leland, The Writings, 118. 646 Ibid., 1145; concerning Alamo Foundation v. Secretary of Labor, 471 US 290 (1985).    374 [F]or a religious school to prohibit interracial dating among its students is morally repugnant to most of us, but its direct effects are purely internal to the religious group; only those who choose to become part of the religious community defined by Bob Jones are governed by its rules.647   McConnell’s view of “neutrality” requires that civil society be silent on matters of morality, at least insofar as morality conflicts with religious conviction, except in cases of a physically-definable harm. My purpose here is not to discredit McConnell’s view from a philosophical perspective. My point is simply to recognize that McConnell’s view is not “neutral,” but is rather a particular species of political, and a very modern one at that. His neutrality standard would almost certainly require a reversal of the Reynolds v. United States (1878) decision on the grounds that polygamy poses no physical threat to those outside the Mormon church. Yet we know that the Republican Party—formed in the 1850s and ascendant under Abraham Lincoln in the election of 1860—was founded to contest slavery and polygamy, “the twin relics of barbarism.”648 The Republican Party of the nineteenth century certainly did not share McConnell’s vision of religious neutrality. Political views should be expected of political actors, and those views can even assume political power through the democratic process of elections. But just as McConnell himself cannot represent a truly “neutral” position, no judge can either, at least not when he departs from the intent of the law. We rely on judges to be neutral arbiters of the law and to judge between laws, including between those of statutory and constitutional origin. But to allow judges the ability to tailor laws according to a standard with such loose ties to the constitutional text and intent—even one that is ostensibly “neutral”—is to invite judges to become legislators. This vision is wholly  647 Ibid., 1146; concerning Bob Jones University v. United States, 461 US 574 (1983). 648 “Republican Party Platform of 1856,” from Teaching American History, <https://teachingamericanhistory.org/document/republican-party-platform-of-1856/>.    375 inconsistent with the view of the American founding and with the project of representative government more broadly. McConnell’s mistaken view of neutrality is connected to his equally mistaken view that an active judiciary can solve the theological-political problem. At its most fundamental level, the theological-political problem is basically an insoluble one of aligning competing civic and religious obligations. Obligations to the civic order are immediate and essential to the welfare of our common life together, but they are inherently lower and less urgent than obligations to the divine. If divine obligations meet their fulfilment in eternal bliss or damnation—and most adherents to Jewish, Christian, and Muslim faiths believe that they do—then civic obligations will lose out. Modern societies have therefore sought to define their political purposes in ways that avoid conflict with religious purposes or mandates, but with only limited success. Even if civil society leaves a very wide path for religious liberty, it will still encounter points of friction at the margins. In his “Letter Concerning Toleration,” John Locke regards these points of friction as inevitable; they are endemic to the nature of civil society and the demands of private conscience. Where these conflict, “God alone” can judge—meaning that the political sovereign will win out unless the people successfully revolt.649 McConnell articulates the idea well when he says, “To Locke, the right to claim exemptions was tantamount to the right to rebellion….” But McConnell thinks that, by applying his understanding of judging and a “neutral” interpretation of the Free Exercise Clause, the problem can be resolved: To Locke, the right to claim exemptions was tantamount to the right to rebellion, since there was no written constitution expressing the sovereign will in a form superior to legislation, and no institution of judicial review to mediate claims of exemption. To the modern Supreme Court, the claim to exemptions is a routine matter of invoking the  649 John Locke, “A Letter Concerning Toleration,” 16.    376 supreme law of the land. There is nothing lawless or anarchic about it.650  Much of McConnell’s argument here is implicit, so we should make it explicit: First, the “sovereign will” is communicated by law, both through the constitution and through statute. Second, the constitution guarantees complete freedom of religious practice. Third, statutory law is prone to all kinds of incidental infringements on religious practice. Fourth, judges can resolve all problems created in statutory law by appealing to the constitutional standard. As a result of this formulation, our beginning assumption about the “sovereign will” can remain satisfied while ensuring that it never comes into irresolvable conflict with religious belief or practice. The argument makes sense as a whole, but only if we accept the truth of each of its particulars. The crux of the matter arises in Arguments 2 and 4. Argument 2 assumes that the Free Exercise Clause really did intend to guarantee an unlimited right to religious belief, worship, and practice. As the historical record demonstrates, this is not a reasonable assumption. The Free Exercise Clause was meant to protect religious belief and worship, certainly, but it is not obvious that it meant to protect religious exercise from incidental regulation. And even McConnell limits the Free Exercise Clause according to a compelling interest test. Argument 4 assumes that, in the course of resolving religious complaints against statutory law, judges will not interfere with other constitutional mandates. What about religiously inspired takings of life, liberty, and property? Obviously those cannot be permitted, so we are back where we began: civil obligations and religious obligations are in conflict once more. All McConnell’s solution has done is to mitigate the conflicts that do not interfere with other constitutional principles. And at what cost? The further judges go to stretch the law around the demands of a particular religion, the more they  650 McConnell, “Free Exercise Revisionism,” 1150.    377 strain the constitutional standard that represents the sovereign will. In other words, judges risk the fundamental law upon which society depends (the constitution) in order to make allowance for those acting in violation of the sovereign will as made manifest in statute. We have certainly not solved the theological-political problem, and we may have created additional problems as well. Finally, McConnell’s vision of the judiciary and “neutrality” towards religion is inconsistent with the view of the American founders. Nowhere is this clearer than in his use and understanding of James Madison. McConnell is certainly correct that James Madison was the most important contributor to religious liberty at the time of the American Founding. As described in Chapter 3, Madison was a key contributor to the free exercise guarantee in the 1776 Virginia Bill of Rights. In Chapter 4, we discussed his important contributions—politically, philosophically, and rhetorically—to the ongoing fight for religious liberty and against religious establishment in Virginia. In Chapter 5, we considered his involvement in the Constitutional Convention as one of two speakers concerned about religion and religious liberty, then how he explained the protections the Constitution offered against the tyranny of majority faction in The Federalist Papers. In Chapter 6 we saw how the ratification convention in Virginia paved the way for the First Congress to establish a bill of rights—even against Madison’s initial objections. And, at last, we considered Madison’s essential involvement in drafting a bill of rights, cajoling Congress into deliberation about it, and providing the final edits to the First Amendment. No other figure comes close to Madison for his involvement in the key deliberations of the Constitutional Convention, the First Congress, and related debates concerning the subject of religious liberty. In each instance Madison was working as part of a larger committee or legislature, so we cannot simply say that James Madison’s view represents the comprehensive    378 and shared view of the American Founding. We can say, however, that no view was more important than his, and his view goes a long way to understanding the Founding vision of religious liberty, especially in The Federalist Papers. The problem with McConnell’s account is not that he privileges Madison, but that he cherry-picks a few lines from Madison before assuming the rest. A more comprehensive view of Madison clarifies that he did have a plan for protecting religious liberty, but his plan looks nothing like McConnell’s. Madison’s vision conflicts with McConnell’s vision in two very important respects. In the first case, we can contrast Madison’s idea of “non-cognizance” with McConnell’s idea of “neutrality.” As we discussed above, “neutrality” requires significant attention to the particulars of each faith to ensure that each is put on a level playing field. It intends to raise the floor for those it regards as too short—or perhaps, to open all the doors and windows to accommodate faiths that otherwise do not fit within the confines of civil society. To do that, however, requires considerable cognizance of how each faith is unique. Madison’s principle of non-cognizance takes the opposite view, supposing that the best way for government to think about religion is for the government not to think about religion at all. In Madison’s scheme there are no exemptions, just separate spheres and separate authorities to govern religion on the one hand and civil society on the other. Within the realm of religious belief and worship, religion reigns supreme; within the realm of the political order, civil authorities determine the limits on action. Madison’s view fits well with the “narrow but deep” view advocated throughout this dissertation, whereby courts have no authority to consult a compelling interest test in matters of religious belief and worship but no need to consult one in matters concerning secular and generally-applicable law.  In the second case, we can contrast Madison’s institutional vision with McConnell’s. Madison recognizes that the separate religious and political spheres will reach points of friction    379 that need to be resolved, but he does not turn to the Courts and the Bill of Rights as the primary mode for solving them. Rather, his primary institutional mechanism is explained in “Federalist 10” and “Federalist 51,” which balance the factional interests of an expansive and populous republic against each other through the mechanisms of the Constitution. It is not a Bill of Rights that will hold factions in check, but rather other factions through the political process, mediated by a system of federalism, limited powers, separate institutions, and checks and balances between institutions. And Madison does not shy away from characterizing religious interests as factional interests, meaning that he regards questions of religious liberty as, at least in part, political questions. The best way to enforce a scheme of religious liberty is for religious believers to be partisans of religious liberty, to build political coalitions around it, to ensure that government is limited and that its limited powers are not used to restrict religious practice. This is the same solution offered by Justice Scalia and criticized by McConnell. Given its provenance, however, McConnell should give it a more favorable hearing.  Parting Words In the thirty years since Smith and since McConnell’s critique of Smith, religious exemptions have come to dominate the landscape of religious liberty. Alliance Defending Freedom, The Beckett Fund, First Freedoms, and other public interest law firms have built a cottage industry in defending religious litigants, most often by suing for religious exemptions. This author is sympathetic to their concern for religious litigants, especially against ever-growing government regulation and strong factions attempting to force religious believers to act against their closely held beliefs. While I do not wish to stop their work, I do think that the American Founding offers a corrective example to their overall strategy.     380 Since Smith (or shortly thereafter) much religious litigation has depended upon the statutory authority of the Religious Freedom Restoration Act (RFRA). According to their briefs, organizations like those named above want to do away with Smith and therefore do away with their need to depend upon RFRA. They want the Sherbert exemption view to be the accepted understanding of the Free Exercise Clause, and therefore a defense that can be brought in all religious cases (even involving state and local law, where RFRA does not apply) with the weight of the Constitution behind it. As we have demonstrated, however, that argument about the Free Exercise Clause is not consistent with the clause’s original intent, which provides no support for judicially-enacted religious exemptions. From a Constitutional perspective—or, more narrowly, an Originalist Constitutional perspective—I believe that these lawsuits and the public-interest law firms bringing suit will have to continue to depend upon RFRA. At least on the question of judicially-enacted religious exemptions, the Smith case was rightly decided and should remain the ruling case law. But recurring to the view of the Founding does not leave religious litigants undefended. The view of the Founding, and especially the view of James Madison, was that these arguments should be settled in the political arena, rather than in courtrooms. This is not to say that he saw no place for a bill of rights defended by judicial review, but that he saw the judicial mode as secondary and focused on more explicit violations of religious liberty, which concerned more direct prohibitions on belief and worship. I believe that modern religious litigants and would-be litigants should follow Madison’s counsel. Rather than pursuing narrow exemptions for carefully-defined religious organizations, believers of many faiths should make common cause in Congress, in state legislatures, and even in K-Street lobbying efforts to advance legislation and a vision of society that leaves them freer to practice their faith convictions across all areas of life.    381 I think a Madisonian vision of religious liberty offers several reasons for hope. First, the structure of the Constitution, including both the Free Exercise Clause and the “No Religious Test” Clause has done a pretty good job preventing the federal government from explicit violations of religious liberty. All the incidental infringements on religious liberty are serious, and we should argue about those. But no one of consequence thinks that federal legislation can single out and prohibit religious belief or practice. That was not something that could be taken for granted at the time of the American Founding, and it remains an important and commonly regarded constitutional value. This point often is missed among those advocating for religious exemptions. They seem to think that a Free Exercise that was primarily intended to prevent the federal government from explicit prohibitions of religious belief and worship is unsubstantial, because of course everyone agrees government should not tell people what to believe or how to worship. But modern agreement on this point is proof of the American Founding’s success, that their vision of separation between religious and political authorities is now assumed to be the norm everywhere. Second, the vision of “Federalist 10” and “Federalist 51” may be a better overall strategy for promoting religious liberty of all kinds. Those advocating for religious exemptions have become so focused on obtaining them that few seem to ask if this strategy promotes an environment of religious liberty. I am not so certain that it does. While I do not have facts and figures ready to cite, I suspect that the number of judicially-enacted religious exemptions has risen tenfold since the Smith case in 1986. And while Smith concerned fringe religious practice, religious litigants now routinely seek exemptions for beliefs and practices that are just this side of the mainstream. This situation does not suggest that a regime of religious exemptions is a regime that tends towards more religious liberty. Quite to the contrary, it seems as though civil    382 society’s power increasingly constricts individual liberty, and exemptions are merely a tug or pull to one side of a closing net. 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