FREE EXERCISE EXEMPTIONISM AND THE EVAPORATION OF THE INALIENABLE CHARACTER OF RELIGIOUS LIBERTY - The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence. By Kathleen A. Brady. Cambridge: Cambridge University Press, 2015. Pp. 354. $39.99 (paper). ISBN: 978-1107016507.
31Balkin, Jack M., Living Originalism (Cambridge, MA: Belknap Press of Harvard University Press, 2011).
32McConnell, Michael W., “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review103, no. 7 (1990): 1409–1517; McConnell, Michael W., “Free Exercise Revisionism and the Smith Decision,” University of Chicago Law Review57, no. 4 (1990): 1109–53.
33 See Muñoz, Vincent Phillip, “The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress,” Harvard Journal of Law and Public Policy31, no. 3 (2008): 1083–1120; Hamburger, Philip, “A Constitutional Right of Religious Exemption: An Historical Perspective,” George Washington Law Review60, no. 4 (1992): 915–48; Bradley, “Beguiled.”
34 For further discussion of this point, see Muñoz, Vincent Phillip, “Church and State in the Founding-Era State Constitutions,” American Political Thought4, no. 1 (2015): 1–38. See also Muñoz, “The Original Meaning of the Free Exercise Clause.”
35Muñoz, Vincent Phillip, “If Religious Liberty Does Not Mean Exemptions, What Might It Mean? The Founders' Constitutionalism of the Inalienable Rights of Religious Liberty,” Notre Dame Law Review91, no. 4 (2016): 1387–417.
36Kurland, Philip B. and Lerner, Ralph, The Founders' Constitution, reprint ed. (Chicago: University of Chicago Press, 2000). The full text is now available online at http://press-pubs.uchicago.edu/founders/. For the Delaware Declaration of Rights and Fundamental Rules (1776), see Amendment I (Religion), Document 26. For the Pennsylvania Constitution of 1776, see Amendment I (Religion), Document 30. For the Vermont Constitution of 1777, see Amendment I (Religion), Document 35. In the print version of the The Founders' Constitution, Amendment I is located in Volume 5.
37Muñoz, Vincent Phillip, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion,” American Political Science Review110, no. 2, (2016): 369–81, at 373.
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