John Yoo and James Phillips have offered a thoughtful response to challenges posed by Ramesh Ponnuru and me regarding the free-exercise clause’s original meaning. Yoo and Phillips argue that when a generally applicable law incidentally burdens a religious belief or practice, the First Amendment requires that an exemption be considered for the affected religious group. Ponnuru and I disagree (as did Justice Antonin Scalia, in his 1990 opinion in Smith). We have argued that the text’s original meaning allows for legislative exemptions but does not authorize judicial consideration of them as a matter of constitutional right.
Rather than counter Yoo and Phillips’s response point-by-point, let me make a few general remarks about how we agree and why we disagree. I write only for myself, not Ramesh.
We agree that an originalist approach to the free-exercise clause should take its bearing from the Founders’ natural-rights theory. I don’t know that all originalists would concur, but it seems to me a wise choice given the text’s ambiguity.
The First Amendment states that “Congress shall make no law . . . prohibiting the free exercise [of religion].” What the Framers meant by “free exercise” is not obvious, but what is beyond doubt is that when they discussed and debated religious liberty, they used the language of natural rights. The pre-1787 state declarations of rights reveal this most clearly, but evidence for it pervades Founding-era writings, including the Virginia Statute for Religious Liberty, Madison’s “Memorial and Remonstrance,” and George Washington’s letters to the Hebrew Congregation at Newport, R.I., and the Society of Quakers.
We are all engaged in an act of constitutional construction, an attempt to provide meaning to text that is ambiguous, indeterminate, or underdetermined. For an originalist, it makes sense to adopt a natural-rights construction of the free-exercise clause because the Founders understood religious free exercise as a natural right.
We agree about that. We disagree about the Founders’ understanding of the natural right to religious freedom.
Yoo and Phillips state correctly that the Founders understood the exercise of natural rights to have natural limits, namely harm to others. They suggest, accordingly, that the free-exercise clause be constructed to mean that religious believers have a right to engage in any religious belief and practice that does not harm others. If a law prohibits a non-harmful belief or action, religious believers should receive an exemption from that law.
The basic problem with their approach is that the Founders believed that any and every non-harmful belief or action — whether religiously motivated or not — should be legal. A free society should not make any non-harmful action illegal. The Founders were partisans of freedom generally, not just religious freedom. In their approach to religious free exercise, Yoo and Phillips want to make the presumption of liberty an exception applicable to religious believers alone. In this area, they misconceive the Founders’ constitutionalism and the Founders’ understanding of religious liberty in particular. To follow the Founders, we do not just need to carve out space for religious freedom; we need to roll back the modern administrative state and its unlimited character, as Yoo and Phillips themselves suggest in a different essay.
Yoo and Phillips are correct that religious liberty held an exalted place within the Founders’ thinking and had a particular constitutional status. As I attempted to explain in my initial essay, the Founders held religious liberty to be an inalienable natural right, meaning that individuals did not give government (whether national or state) authority over religious exercises as such. Translated into a constitutional doctrine, this would mean that state and federal actors cannot target, prohibit, regulate, or restrict religious exercises qua religious beliefs or practices. A legislature can make murder illegal, but it can’t specify that “Aztec religious rituals of human sacrifice” are illegal. Government can regulate water purity, but it can’t regulate what constitutes “holy water.” Government can prohibit fighting words, but it can’t make blasphemy laws. These limits hold true even if the legislative power passes religious exemptions for legislation within its legitimate jurisdiction.
Yoo and Phillips call my construction of the free-exercise clause “anemic” and “cramped.” It may be, but my aim was not to offer a “robust” or “full” protection for religious individuals, but rather to explain the text’s original meaning as constructed consistently with the Founders’ understanding of the natural right of religious liberty. As I have written elsewhere, it may be that the Founders’ natural-rights constitutionalism provides insufficient protection given the modern regulatory state and the unlimited scope of governmental action today. And it’s quite possible that “living originalism,” to use Jack Balkin’s term, better secures religious freedom today. But that has no bearing on the original public meaning of the text or the Founders’ understanding of natural rights. If the Founders’ understanding appears “cramped” today, it’s because our political practice has strayed so far from their constitutional design. We can’t reasonably expect that the original meaning of a single constitutional provision will provide the protection that our entire constitutional system was originally designed to secure.
A few points about Thomas Jefferson and James Madison.
Yoo and Phillips suggest I rely heavily on Jefferson’s “outlier position,” and they note that Jefferson wasn’t actually involved in the drafting or ratification of the Bill of Rights. They are right about the latter point, but I quoted Jefferson merely to document a basic point with which Yoo and Phillips surely agree: that the Founders taught that government exists to protect natural rights. I didn’t advance a Jeffersonian approach to religious freedom.
Yoo and Phillips conclude by invoking Madison, “the free-exercise clause’s author,” for their side. Whether or not Madison’s church-state views should be used as authoritative for the First Amendment’s original meaning, his position supports my views, not theirs. Everyone agrees that the Madison’s “Memorial and Remonstrance” is his most authoritative religious-freedom statement. In it, he makes an explicit argument against the exact kind of exemptions Yoo and Phillips advocate.
Madison drafted the “Memorial” to remonstrate against Patrick Henry’s bill funding Christian education in Virginia. Henry had proposed a property tax in which tax dollars would be directed towards the taxpayers’ own “minister,” “teacher of the Gospel,” or church building. To accommodate Quakers and Mennonites, who lacked official clergymen, Henry included a provision that allowed their tax dollars to be deposited in a general fund to be used by their denominations as they saw fit. Madison singled out the provision for denunciation. “All men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights,” Madison writes in article 4. He continues:
Above all are they to be considered as retaining an “equal title to the free exercise of Religion according to the dictates of Conscience.” . . . As the Bill [proposed by Henry] violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their Religions unnecessary and unwarrantable? Can their piety alone be entrusted with the care of public worship? Ought their Religions to be endowed above all others with extraordinary privileges by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations to believe that they either covet pre-eminences over their fellow citizens or that they will be seduced by them from the common opposition to the measure.
Henry’s relatively benign and mild accommodation exemplifies the type of approach Yoo and Phillips say is required by the free-exercise clause. Yet Madison railed against it because he thought singling out religious groups for special exemption from the law violated the principle of religious free exercise. Madison not only does not support Yoo and Phillips’s position; he takes a principled stand against it.
In the conclusion of my book God and the Founders, I argue that Madison went one step too far. I believe reasonable legislative exemptions for religion are constitutionally permissible. But if we are to follow the original meaning of the Constitution, we must recognize that they are not mandated by the free-exercise clause, even if we wish they were.