Donald Drakeman’s impressive historical research in his new book, The Free Exercise Clause and the Rights of Conscience, poses a formidable challenge to the idea that the original meaning of the Free Exercise Clause mandates religious exemptions from generally applicable laws. He has uncovered important and surprising new evidence of that meaning. This book will pose a sharp test of whether the Supreme Court’s self-styled originalists, who favor such exemptions, actually care about evidence.
I’m not a historian and can’t judge Drakeman’s historical
account. But I can say something about
what courts should do about them, if he is right. They are not sufficient reason to
revolutionize our constitutional rules. Drakeman
himself shrinks from some of his own conclusions, which give religion even
narrower protection than he thinks his research entails. Justice Antonin Scalia famously wrote
that “in a crunch I may prove a faint-hearted originalist,” because “[i]n its
undiluted form” originalism “is medicine that seems too strong to swallow.” Drakeman doesn’t admit it, but he too is a
faint-hearted originalist, and the point at which he faints is idiosyncratic
and driven by his presentist political judgments. His idiosyncrasy shows the limits of
originalism: does it ever make sense for us to radically change our law because
of new historical research?
I elaborate in a new piece at Canopy Forum.