I have appreciated John Yoo and James Phillips’s thoughtful essays on how the Supreme Court might adopt a course of constitutional restoration. I have also followed with great interest their exchange with Ramesh Ponnuru on Justice Scalia’s religious-liberty opinion in Oregon v. Smith (1990).
Yoo and Phillips call for the Supreme Court to return to the original meaning of the First Amendment’s religion clauses, which they understand to include exemptions from all laws and regulations that burden the beliefs and practices of religious individuals and institutions. Ponnuru is not so sure, suggesting that, at minimum, originalists should be skeptical of an interpretation that was first handed down by Justice William Brennan in 1963. In his follow-up essay, Ponnuru offers additional evidence for Scalia’s position, which holds that the free-exercise clause protects against laws that directly target religious beliefs and practices, but not against laws that indirectly burden religious individuals and institutions.
Given that I’ve published an essay titled “Justice Scalia Was Right About Religious Free Exercise,” I’m clearly on Ponnuru’s side. But to their credit, Phillips and Yoo take the Founders’ natural-rights teaching seriously. Thinking through their interpretation of the free-exercise clause can help us better understand the Founders’ natural-rights constitutionalism and reveal why our departure from it has placed religious liberty under so much pressure today.
First, a bit of context. For more than 25 years, originalists have been debating Scalia’s Smith opinion and whether the free-exercise clause mandates exemptions. Stanford law professor Michael McConnell, who served as a law clerk for Justice Brennan, has written what many consider to be the definitive originalist case for exemptions. A number of originalists have challenged McConnell’s reading, perhaps most notably Philip Hamburger, arguing that exemptions are permitted but not required by the First Amendment. I myself have argued that a non-exemption position reflects the text’s original meaning and understanding, Madison’s church-state thought, and the Founders’ natural-rights political philosophy.
Here is where Yoo and Phillips’s position gets interesting. In their response to Ponnuru, they say he “misunderstands our position.” Sherbert-style exemptionism (in which the religious litigant receives an exemption unless the state is pursuing a compelling state interest using narrowly tailored means) is only their “fallback position.” “An approach rooted in history,” Yoo and Phillips write in their first essay, “would flip the burden in the courts by requiring the state to show that a religious practice harms others or public safety, rather than today’s regime, which requires religious minorities to prove they deserve an exception because laws that appear neutral are actually targeting religious practices.”
It’s not altogether clear to me how the Yoo-Phillips position differs in practice from the Court’s exemptionist jurisprudence from 1963 to 1990, as that approach, too, placed the burden of proof on the state. They would, however, give it an originalist foundation — something Brennan thought was unnecessary — and, perhaps most interestingly, Yoo and Phillips derive exemptions from the Founders’ natural-rights political philosophy. They seem to suggest that their supercharged natural-rights interpretation would create a standard more rigorous than even Sherbert’s strict scrutiny and deliver exemptions in nearly every case in which a religious individual and institution is burdened in belief or practice from a law. Whatever the practical differences from Sherbert, their approach would certainly offer more protection than current Supreme Court precedents.
But does the Founders’ understanding of the natural right of religious freedom translate into constitutional exemptions from generally applicable law? (Yoo and Phillips’s — and McConnell’s — whole argument depends on this.) Somewhat to my regret, it does not. The Founders’ natural-rights philosophy simply does not support constitutionally mandated religious exemptions, though legislative exemptions are permissible. Here is the case in brief (for a somewhat longer explanation see here, and for the too-long law-review version, see here).
Yoo and Phillips correctly state that, at the time of the Founding, the free exercise of religion was understood to be an inalienable natural right, and the exercise of such natural rights was understood to be limited by the law of nature. As Jefferson wrote, “No man has a natural right to commit aggression on the equal rights of others.” The Founders understood all natural rights to have natural limits.
However, I don’t think Yoo and Phillips’s argument fully takes into account what the Founders meant by the “inalienability” of religious freedom. The concept of inalienability makes sense only within the Founders’ social-compact political philosophy. The Founders distinguished inalienable from alienable natural rights. Direct jurisdiction over inalienable natural rights (or “unalienable,” to use the Founders’ language) is not granted by individuals to the political community when they form or join the social compact. Just as the Founders thought the people could not alienate their inalienable right to revolution — the very idea that government could secure our right to revolution is nonsensical — the Founders also held that because of the primacy of our duties to God, we do not and cannot grant direct authority to the government over our inalienable right to worship God according to our conscience. Government, accordingly, lacks jurisdiction over religious worship as such (practices as well as beliefs).
This means that state officials lack authority to directly prohibit, mandate, or otherwise regulate religious exercises, as Justice Scalia held in Smith. Government lacks the authority, for example, to issue “preaching licenses,” pass blasphemy laws, or appoint church officials. Such limitations might seem narrow or even trivial today, but viewed in the context of the history of states’ authority, they represent a monumental limitation on state power.
The Founders’ understanding of the right of religious free exercise was deep but narrow: deep in the sense that the state could never have a compelling interest to exercise direct jurisdiction over religious practices (e.g. mandating or prohibiting them on account of their religious character), but narrow in the sense that only a relatively limited scope of our natural liberty was withheld from the state’s jurisdiction. If the state is furthering a legitimate civic interest, indirect burdens on religious beliefs and practices do not violate the rights of religious liberty.
The definitive example of the Founders’ understanding is how they dealt with Quaker pacifism. Quakers sometimes were exempted from military service (usually on terms the Quakers themselves found insufficient), but such exemptions were not granted as a result of state or federal constitutional religious free-exercise provisions. Exemptions were issued either under the authority of separate and distinct state constitutional provisions that specifically recognized a right of conscientious exemption from military service or through ordinary legislation. At no point did the Founders grant Quakers religious exemptions under the First Amendment’s free-exercise clause.
But what should we make of Yoo and Phillips’s underlying idea that in a regime dedicated to natural rights, religious practices that do not harm others should be permitted? Would not a judicially administered system of extensive exemptions help to protect the natural right of religious liberty? The answer to both questions is undoubtedly yes. While not constitutionally required by the text’s original meaning, given the expansive reach of the modern administrative state, exemptions are often necessary to effectively protect natural rights. This insight is what led Justice Brennan to adopt exemptionism in the first place.
Nonetheless, the very fact that a robust system of legal exemption is now needed to protect our natural rights of religious liberty from our own laws ought to give us pause. The rule of law is not perfect, and the application of a just law can sometimes lead to unjust results. But if exemptions are constantly and continually necessary to protect such a fundamental right, something has gone drastically wrong with our system of law.
The Founders understood the very purpose of government to be the securing of natural rights. Let us return to the Jefferson passage we quoted above. Here is a longer excerpt:
Our legislators are not sufficiently apprised of the rightful limits of their powers: that their true office is to declare and enforce only our natural rights and duties, & to take none of them from us. No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him: every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him: and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third. When the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded that on entering into society we give up any natural right.
(Thomas Jefferson to Francis W. Gilmer, June 7, 1816.) Religious liberty is primarily threatened today not because of Justice Scalia’s Smith opinion, but because our federal and state governments far exceed “the rightful limits of their powers.” No system of exemptions, no matter how robust, will protect religious believers from the overbearing power of the state if the state’s powers are not understood to have principled limits.
For those concerned about religious liberty, this is the most important original understanding our Founders offer us today. Protecting religious liberty requires not just limiting particular applications of power, but limiting the ends that state powers may legitimately pursue. Until we relearn that the rightful purpose of government is “to declare and enforce only our natural rights and duties,” religious liberty and every other one of our natural rights will remain perpetually in danger.