One of the more controversial decisions handed down by the Supreme Court in recent years was its decision in the case of Employment Division, Oregon v. Smith, which raised the basic issue of whether the free exercise clause of the First Amendment guarantees a right to religion-based exemptions, i.e., whether it gives persons and groups a prima facie right to be exempt from having to obey valid laws when they have religious reasons for noncompliance. More specifically, in Smith, two Native Americans claimed that their prosecution for using an illegal drug, peyote, was precluded by the free exercise clause because they had taken the drug as part of a religious ceremony of their church.
To the surprise of many, the Supreme Court rejected both the Native Americans' claim (by a vote of six to three) and the general proposition that the free exercise clause gives persons a right to religion-based exemptions (by five to four). Writing for the Court, Justice Scalia said, “We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Moreover, in order to preclude such a holding in the future, the Court discarded the “strict scrutiny” test, adopted in its 1963 Sherbert v. Verner decision according to which any burden on any religious practice imposed by any law, even one that is religion-neutral and generally applicable, is unconstitutional unless it can be justified by a “compelling” government interest and is the least restrictive means of protecting that interest.
1. 494 US 872 (1990).
2. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. …” US Constitution, Amend I.
3. Technically, the Smith case raised only the question of whether the state of Oregon could, consistent with the free exercise clause, deny unemployment compensation to persons who had taken peyote and had then been dismissed from their jobs for having done so. The Court said, however, that because the taking of peyote was illegal in Oregon, the answer to that question turned on whether a criminal prosecution of the Native Americans was precluded by the free exercise clause because they had ingested the drug as part of a religious ceremony. If it was not, then, according to the Court, their being denied unemployment compensation was also not precluded by the clause. Employment Division, Oregon v Smith, 494 US 872, 875-76 (1990).
4. Richard John Neuhaus claims that the decision“took almost everyone by surprise, leaving some breathless, some outraged, and most puzzled.” Polygamy, Peyote, and the Public Peace, First Things 64 (10 1990).
5. Justice O'Connor was the justice who voted to deny the claim of the Native Americans but disagreed with the majority's reason for doing so. Employment Division, Oregon v Smith, 494 US 872, 891-907 (1990)(O'Connor, J., concurring).
6. Employment Division, Oregon v Smith, 494 US 872, 878-79 (1990).
7. 374 US 398 (1963).
8. Employment Division, Oregon v Smith, 494 US 872, 884-89 (1990). According to Justice Scalia, the Sherbert test was a“dead letter.” He pointed out that although the Court had paid lip service to the test in several of its opinions, it had never used the test, with one exception (in cases involving denial of unemployment compensation), to protect the exercise of religion from valid, non-discriminatory laws, even though it had had many opportunities to do so. Id at 883-84. In other words, in its Smith decision the Court was simply“calling a spade a spade.” Therefore,“it is hard to conclude that Smith has radically altered the likely outcome of free exercise cases.” Kmiec, Douglas W., The Original Understanding of the Free Exercise Clause and Religious Diversity, 59 Umkc L Rev 597 (Spring 1991).
9. Employment Division, Oregon v Smith, 494 US 872, 890 1990).
10. For a brief sampling of critical comments, see Wood, James E. Jr., The Religious Freedom Restoration Act, 33 J of Church and State 674–75 (Autumn 1991). Perhaps the leading critic from the ranks of religious spokespersons has been Richard John Neuhaus, editor of the periodical. First Things. See Polygamy, Peyote, and the Public Peace, First Things 63–68 (10 1990); In Response: Weighing the Risks, First Things 53–54 (02 1991); and A New Order of Religious Freedom, First Things 13–17 (02 1992). The most outspoken of the legal scholars who have criticized the Court has been Douglas Laycock, Professor of Law at the University of Texas Law School. See Watering Down the Free-Exercise Clause, 107 Christian Century 518–19 (05 16-23, 1990); The Remnants of Free Exercise, in Supreme Court Review 1990, ed Casper, G.et al1–68 (University of Chicago Press, 1991); The Supreme Court's Assault on Free Exercise, and the Amicus Brief That Was Never Filed, 8 J Law & Relig 99–114 (1990); and Summary and Synthesis: The Crisis in Religious Liberty, 60 Geo Wash L Rev 841–56 (03 1992).
11. Wood, (cited in note 10, at 675-76).
12. Church of the Lukumi Babalu Aye, Inc. v City of Hialeah, 113 S Ct 2217 (1993).
13. Freedom of worship bill signed into law, Richmond Times-Dispatch, 11 17, 1993, p A2.
14. Religious Freedom Restoration Act of 1993, Pub L No 103-141, sec 3, 107 Stat 1488 (1993).
15. For arguments against the Act, see Harris, Phillip H., Leaping Headfirst Into the Smith Trap, First Things 37–39 (02 1991), and Chopko, Mark E., et al, How To Restore Religious Freedom: A Debate, First Things 37–48 (04 1992).
16. See, for example, John Delaney, Police Power Absolutism and Nullifying the Free Exercise Clause: A Critique of Oregon v Smith, 25 Indiana L Rev 102-03 (1991); Pepper, Stephen, Conflicting Paradigms of Religious Freedom: Liberty Versus Equality, Byu L Rev 12–13 (1993); and Kmiec (cited in note 8, at 597).
17. Laycock, , The Supreme Court's Assault on Free Exercise …, (cited in note 10, at 112) (emphasis in original).
18. Laycock, , The Remnants of Free Exercise, (cited in note 10, at 3).
19. Religious Liberty, Nonestablishment, and Doctrinal Development: Part 1. The Religious Liberty Guarantee, 80 Harv L Rev 1388 (05 1967).
20. Freeman, Harrop A., A Remonstrance for Conscience, 106 U Pa Law Review 813 (04 1958).
21. See Conkin, Paul K., Freedom: Past Meanings and Present Prospects, in Freedom in America: A 200-Year Perspective, Graebner, N. A., ed, 205–22 (Pennsylvania State University Press, 1977). A good example of a phrase whose contemporary meaning is different from its eighteenth century one is“freedom of conscience.” See Miller, William Lee, The First Liberty: Religion and the American Republic 122–23 (Alfred Knopf, 1986).
22. See Curry, Thomas J., The First Freedoms: Church and State in America to the Passage of the First Amendment 134–48, 176–77, 190–91, 217–21 (Oxford University Press, 1986); Buckley, Thomas E., Church and State in Revolutionary Virginia, 1776–1787 22, 115 (University Press of Virginia, 1977); and Paulson, M., Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L Rev 312–26 (1986).
23. Marshall, William P., The Case Against the Constitutionally Compelled Free Exercise Exemption, 7 J Law & Relig 379–83 (1989).
24. See Malbin, Michael, Religion and Politics: The Intentions of the Authors of the First Amendment 28, 35–40 (American Enterprise Institute, 1978); Berns, Walter, The First Amendment and the Future of American Democracy 35–55 (Basic Books, 1976); Morgan, Richard, The Supreme Court and Religion 23 (Free Press, 1972); West, Ellis, The Case Against a Right to Religion-Based Exemptions, 4 Notre Dame J Law, Ethics & Pub Pol'y, 623–33 (1990); Bradley, Gerard V., Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L Rev 245–319 (Winter 1991); and Hamburger, Philip A., A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo Wash L Rev 915–48 (04 1992).
25. The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv L Rev 1410–1517 (05 1990).
26. Id at 1415 (emphasis added).
27. Free Exercise Revisionism and the Smith Decision, 57 U Chi L Rev 1119 (Summer 1990).
28. Sherry, Lee v Weisman: Paradox Redux, in Supreme Court Review 1992 123, 147, 148 n 102 (D. Hutchinson et al ed 1993); Bradley (cited in note 24); and Hamburger (cited in note 24). For a harsh, but, in my opinion, valid criticism of“law office history” of First Amendment provisions, see Handlin, Oscar, The Bill of Rights in Its Context, 62 The American Scholar 177–78 (Spring 1993).
29. See, for example, Laycock, , The Supreme Court's Assault on Free Exercise …, (cited in note 10, at 102) (“The [Smith] opinion is inconsistent with original intent. … McConnell shows that legislatures in the founding generation considered exemptions from facially neutral laws to be part of the free exercise of religion ….”); Delaney, (cited in note 16, at 121, n 8) (“The absence of a detailed historical grounding of the Sherbert holding and rationale has been remedied by Michael's McConnell's recent article.”); and Robert N. Anderton, Just Say No to Judicial Review: The Impact of Oregon v Smith on the Free Exercise Clause, 76 Iowa L Rev 817, n 114 (May 1991) (McConnell concludes“that both the framers' and popular notions of religious liberty at the time of the framing most likely contemplated religious exemptions from generally applicable laws with secular purposes.”)(emphasis added). Moreover, because of McConnell's national reputation as a constitutional law scholar, especially in the area of church and state, and because it was published in the Harvard Law Review, his one article on the original meaning of the free exercise clause has probably had more influence on the debate over the meaning of the free exercise clause than that of all the other works combined.
30. Even if I were able to show in this paper that my position on the original meaning of the free exercise clause is correct, that would not mean that the Supreme Court necessarily decided the Smith case correctly. Such a conclusion would follow only if constitutional cases must be decided, at least when possible, on the basis of the“original intent” of the framers. In this paper, however, I do not defend such a position. Indeed, I acknowledge that arguments other than textual and historical ones can be made in defense of persons' having a constitutional right to religion-based exemptions. Elsewhere, however, I have considered many, if not all, of these arguments and found them wanting. See West (cited in note 24, at 600-21).
31. McConnell, , The Origins and Historical Understanding …, (cited in note 25, at 1466) (“the issue of exemptions did not often arise”); Marshall, (cited in note 23, at 380) (“The framers obviously were aware that the beliefs of religious adherents could stand in opposition to the religious mandates of the state. … However, outside of these conflicts with state religious laws or test requirements, it is difficult to find examples where religious objections to the secular laws of the state were recognized.”)
32. McConnell, , The Origins and Historical Understanding …, (cited in note 25, at 1466) (“the governments of that era were far less intrusive than the governments of today.”); Marshall, (cited in note 23, at 382) (“The regulatory state did not exist.”). Such an argument, however, may reflect more of an idealized view than an accurate account of the scope and significance of government at that time. Even if the number of statutes in existence was relatively small, as compared to the number in existence today, that is hardly the whole story. Not only were the common law and local government much more important in regulating the lives of citizens than they are today, but law in general was much more likely than it is today to have the promotion of virtue as one of its aims and thus to regulate aspects of life that today are considered personal or private and beyond the scope of civil authority. See Flaherty, David, “Law and the Enforcement of Morals in Early America,” in American Law and the Constitutional Order: Historical Perspectives, Friedman, L. M. and Scheiber, H. N., eds, 69–84 (Harvard University Press, 1978); Horwitz, Morton J., The Transformation of American Law, 1780-1860 1–16 (Harvard University Press, 1977); and Conkin, (cited in note 21, at 208-09).
33. Curry, (cited in note 22, at 79, 218-19); McConnell, , The Origins and Historical Understanding …, (cited in note 25, at 1466); and Marshall, (cited in note 23, at 382-83).
34. Marshall, (cited in note 23, at 381).
35. See, for example, Tribe, Laurence H., American Constitutional Law 1266 (Foundation Press, 1988, 2nd ed); McConnell, (cited in note 25, at 1468-69); and Freeman (cited in note 20, at 813).
36. McConnell, The Origins and Historical Understanding … (cited in note 25, at 1468).
37. Religion Under the State Constitutions, 1776-1800, 32 J Church & State (Autumn 1990). Also, see Marshall, (cited in note 23, at 380-81 fn 95).
38. “Nonresistance was a deeply ingrained and ‘popular’ doctrine among Mennonites, Quakers, Brethren, and Schwenkfelders. There were few waverers.” Richard K. MacMaster et al, 1739-1789 525 (1979).
39. Quoted in McConnell, , The Origins and Historical Understanding …, (cited in note 25, at 1469). Although McConnell says that in these words the Continental Congress was granting exemptions, id at 1468, it was at best expressing only an opinion or hope, for the revolutionary army consisted of state militias, exemptions from which could only be granted by the state governments. Renner, Richard W., Conscientious Objection and the Federal Government, 1787-1792, 38 Military Affairs 142 (12 1974).
40. McConnell, , The Origins and Historical Understanding …, (cited in note 25, at 1468–69).
41. The provisions in the constitutions of Delaware, New Hampshire, and Vermont were worded essentially the same as the provision in the Pennsylvania Constitution of 1776: “Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent, ….” Sources of our Liberties, Perry, Richard L., ed, 330 (American Bar Foundation, 1959). For the provisions in the constitutions of Delaware, Vermont, and New Hampshire, respectively, see id, 339, 365, and 383. New York's constitution (1777) gave exemptions only to “the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms ….” The Federal and State Constitutions, Colonial Charters, and Other Organic Laws, Thorpe, Francis N., ed, 5:2637 (Government Printing Office, 1909). Although Massachusetts is sometimes included among those states whose constitution contained a provision exempting conscientious objectors, its wording clearly indicates that the Massachusetts provision was not designed just for conscientious objectors nor included because of the principle of religious liberty. The provision reads as follows: “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary ….” See Perry (cited earlier in this note at 375).
42. McConnell, , Free Exercise Revisionism …,” (cited in note 27, at 1119).
43. McConnell, , The Origins and Historical Understanding …, (cited in note 25, at 1445, 1473, 1510).
44. Regarding one group of pacifists in Pennsylvania, Richard MacMaster writes, “… Mennonites did not necessarily see the distinction between being subjects [of feudal princes] and being citizens of the more modern kind. … Instead of having the outlook of modern citizens [with certain rights], they seem rather to have been trading votes for pacifist privileges, much as in Europe they had traded money, in the form of special taxes and gifts to protective princes, for those privileges.” Land, Piety, Peoplehood 230 (Herald Press, 1985). Also, see Schlabach, Theron F., Mennonites, Revivalism, Modernity—1683-1850, 48 Church History 398–415 (12 1979).
45. Francis J. Corklin, Conscientious Objector Provisions: A View in the Light of Tor-caso v Watkins, 51 Georgetown LJ 257 (Winter 1963), and Renner, (cited in note 39, at 142).
46. For examples, see MacMaster, et al, (cited in note 38, at 238, 266).
47. Palmer, Robert C., Liberties as Constitutional Provisions, 1776-1791, in Liberty and Community 55–56, 64–86 (Oceana Pub, 1987); Kelly, Alfred H.et al, The American Constitution: Its Origins and Development 76 (W. W. Norton, 1991, 7th ed); and Reid, John P., The Concept of Liberty in the Age of the American Revolution 4 (University of Chicago Press, 1988).
48. Free Exercise Revisionism …, (cited in note 27, at 1118-19). McConnell adds that the existence of such exemptions is “fully consistent with the position in Smith ….” Id at 1119.
49. Id at 1119.
50. The Origins and Historical Understanding …, (cited in note 25, at 1473).
52. Southern Quakers and Slavery: A Study in Institutional History 145–97 (Johns Hopkins Press, 1896).
53. For example, in 1785, members of the Mennonite Church in Virginia petitioned the Virginia General Assembly for a law that would exempt them from both serving in the military and having to pay a penalty for not doing so. In the petition they said that their ancestors had come “to America to Seek Religious Liberty,” which they had enjoyed “except by the Infliction of penalties for not bearing Arms ….” MacMaster et al, (cited in note 38, at 333). For other examples, see id at 238, 266, 312, and Hamilton, Kenneth G., John Ettwein and the Moravian Church During the Revolutionary Period 255, 265–66, 283–86 (Times Pub Co, 1940).
54. For examples of such petitions, see MacMaster et al, (cited in note 38, at 157-59, 266-67, 332-34, 424-25). There is a possibility, however, that in some cases the failure of the pacifists to make such a claim could have been due to their not wanting to antagonize the patriots, some of whom had threatened to take the lives, houses, and property of the pacifists. For examples of such acts, see id at 220.
55. Lofgren, Charles A., Compulsory Military Service Under the Constitution: The Original Understanding, 33 Wm & Mary Quar 3rd ser 77–78 (1976); Friedman, Leon, Conscription and the Constitution: The Original Understanding, 67 Mich L Rev 1505 (06 1969); and Alexander, Arthur J., Exemption from Military Service in the Old Dominion during the War of the Revolution, 53 The Virginia Magazine of History and Biography 155–71 (07 1945). For an example of a provision granting exemptions to anyone, see the provision from the Massachusetts constitution quoted above, in note 41.
56. McConnell is simply wrong when he writes, “Lest the exemptions be extended too broadly, they [colonies and states] confined the exemptions to denominations or categories known or proven to be ‘conscientiously’ opposed.” The Origins and Original Understanding …, (cited in note 25, at 1472).
57. For example, in the Constitution of New Hampshire, 1784, the provisions on liberty of conscience are contained in sections IV and V, whereas the provision granting exemptions from military service to conscientious objectors appears much later in section XIII. See Sources of our Liberties, (cited in note 41, at 382-83).
58. McConnell, , Free Exercise Revisionism …, (cited in note 27, at 1118).
59. Hamburger, (cited in note 24, at 929).
60. Church and State in Seventeenth and Eighteenth Century America, 7 J Law & Relig 261, n 1 (1989).
61. Response of an Amateur Historian and a Religious Citizen, 7 J Law & Relig 424, n 15 (1989).
62. Brock, Peter, Pacifism in the United States: From the Colonial Era to the First World War 199–200 (Princeton University Press, 1968); Russell, R. R., Development of Conscientious Objector Recognition in the United States, 20 Geo Wash L Rev 414 (03 1952); MacMaster, et al, Conscience in Crisis, (cited in note 38, at 62–63); and MacMaster, , Land, Piety, Peoplehood, (cited in note 44, at 256–57), Krohn, Stephen M., Jailed for Peace: The History of American Draft Law Violators, 1658-1985 10 (1986), incorrectly says, “Four revolutionary state governments proclaimed conscientious objection an absolute right in their new constitutions.”
63. MacMaster, et al, Conscience in Crisis, (cited in note 38, at 354–91, 523–25, 532). Not surprisingly, therefore, during the First Congress when a proposed amendment to the Constitution—one that would have granted exemptions from military service to pacifists—was being discussed, Roger Sherman said, “It is well known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or passing an equivalent. Many of them would rather die than do either one or the other ….” The Bill of Rights: A Documentary History, Schwartz, Bernard, ed, 2:1108 (Chelsea House Pub's, 1971).
64. MacMaster, et al, Conscience in Crisis, (cited in note 38, at 532).
65. See Marietta, Jack D., The Reformation of American Quakerism, 1748-1783 222–48 (University of Pennsylvania Press, 1984); Frost, J. William, A Perfect Freedom: Religious Liberty in Pennsylvania 66–69 (Cambridge University Press, 1990); and MacMaster, et al, Conscience in Crisis (cited in note 38, at 222–24, 532–35).
66. MacMaster, , et al, Conscience in Crisis, (cited in note 38, at 222–24).
67. Schwartz, Sally, William Perm and Toleration: Foundations of Colonial Pennsylvania, 50 Pennsylvania History, 291–95 (1983); and Frost, (cited in note 65, at 10-18).
68. The religious liberty provision stated that persons “shall, in no ways, be 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.” Sources of Our Liberties, (cited in note 41, at 220).
69. Papers of William Penn, Dunn, Richard S. and Dunn, Mary M., eds 4:321, 354–55, 392–93 (University of Pennsylvania Press, 1987).
70. Frost, (cited in note 65, at 17-18).
71. Sources of Our Liberties, (cited in note 41, at 256).
72. From approximately 1692 on, “the colony of Pennsylvania was no longer a Quaker enclave, but contained a wide variety of religious persuasions who claimed the rights of liberty of conscience.” Frost, (cited in note 65, at 20).
73. MacMaster, et al, 27 Conscience in Crisis, (cited in note 38, at 27) (emphasis in original).
74. Endy, Melvin B. Jr., William Penn and Early Quakerism 325–26 (Princeton University Press, 1973).
75. Quoted in Schwartz, Sally, “A Mixed Multitude”: The Struggle for Toleration in Colonial Pennsylvania 17 (New York University Press, 1987).
76. Quoted in McConnell, , The Origins and Historical Understanding …, (cited in note 25, at 1447–48). Penn also said, “I always premise this Conscience to keep within the Bounds of Morality, and that it be neither Frantick nor Mischievous, but a Good Subject, a Good Child, a Good Servant, in all the Affairs of Life.” Quoted in Schwartz, , A Mixed Multitude, (cited in note 75, at 17) (emphasis in original). Also, see A Collection of the Works of William Penn, comp Portsmouth, Henry 2:687, 719-22, 810 (AMS Press, 1974 rep of 1726 edition).
77. See his “Frame of Government of Pennsylvania” (1682), in Sources of Our Liberties, (cited in note 41, at 218–20).
78. Free Exercise Revisionism …, (cited in note 27, at 1117).
79. Frost, (cited in note 65, at 21-22, and 170, n 48).
80. For the general outlines of the debate, see id, at 29-43.
81. MacMaster, et al, Conscience in Crisis, (cited in note 38, at 28–31).
82. Frost, (cited in note 65, at 34-35).
83. Id, 36, 38.
84. MacMaster, et al, Conscience in Crisis, 61–83, 165–74, 213–25. The Assembly actually passed a compulsory militia law in 1757, but it was vetoed by the governor. See below, notes 96-98, and accompanying text.
85. For all the arguments of the anti-pacifists, see Frost, (cited in note 65, at 36-38).
86. Wellenreuther, Hermann, The Political Dilemma of the Quakers in Pennsylvania, 1681-1748, 94 Pennsylvania Magazine of History and Biography 140–47 (04 1970), and Frost, (cited in note 65, at 30, 36).
87. Quoted in Schwartz, , A Mixed Multitude, (cited in note 75, at 166, and 164–66).
88. It is somewhat surprising to read that in or shortly before 1742, the Mennonites, because they realized that “there is no guarantee that if a hostile attack should strike this province, we would not … be compelled against our conscience to take up arms and meet the foe with weapons,” petitioned the Pennsylvania Assembly for a law exempting them from compulsory military service, but were met with the reply “that such matter is entirely beyond its authority.” Quoted in MacMaster, , Land, Piety, Peoplehood, (cited in note 44, at 231).
89. Frost, (cited in note 65, at 38-39), and MacMaster, et al, Conscience in Crisis, (cited in note 38, at 76).
90. Quoted in MacMaster, et al, Conscience in Crisis, (cited in note 38, at 115–16). Also, see Schwartz, , A Mixed Multitude, (cited in note 75, at 213).
91. A Dialogue between X, Y, and Z (1755), The Papers of Benjamin Franklin, Labaree, Leonard W., ed, 6:301–03 (Yale University Press, 1963).
92. MacMaster, , Land, Piety, Peoplehood, (cited in note 44, at 247).
93. Frost, (cited in note 65, at 38-43).
94. Id at 60-73.
95. Id at 39, 66, and MacMaster et al, Conscience in Crisis, (cited in note 38, at 213-19, 523-30).
96. Frost, (cited in note 65, at 34-35).
97. In a sermon on “Love of Country,” the Presbyterian minister, Francis Alison, said, “All … should have free use of their religion, but so as not on that score to burden or oppress others.” Quoted in id at 51.
98. Id at 39, and MacMaster et al, Conscience in Crisis, (cited in note 38, at 78, 117-20).
99. MacMaster, Richard K., Neither Whig Nor Tory: The Peace Churches in the American Revolution, 9 Fides et Historia 8 (1977).
100. Id at 15-17.
101. Marietta (cited in note 65, at 226) and Brock, (cited in note 62, at 199, fn 32). For the wording of another petition that appealed to the “liberty of conscience” guaranteed in Penn's Charter, see MacMaster, R., Neither Whig Nor Tory (cited in note 99, at 16).
102. Marietta, (cited in note 65, at 226).
103. Quoted in MacMaster, et al, Conscience in Crisis, (cited in note 38, at 257. See 256-58 for account of what transpired).
104. Quoted in id at 263.
105. See above, notes 87-91 and accompanying text.
106. Quoted in MacMaster, et al.Conscience in Crisis, (cited in note 38, at 263–264).
107. Id at 264-65. The group also argued that the exemption provision in the Charter was null and void because “William Penn had no Right … to grant Privileges further than was granted to him by the Royal Charter, and … the Royal Prerogative of the King of Great-Britain does not comprehend any Right … to grant any Exemption from supporting the Constitution and Government to any Man or Set of Men, on any Pretence whatever … and therefore [such a power] could never be granted by the King to the Worthy Proprietor who granted the Charter of Privileges.” Id at 264.
108. Quoted in MacMaster, , “Neither Whig Nor Tory,” (cited in note 99, at 17).
110. Marietta, (cited in note 65, at 226).
111. The entire provision reads 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 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 controul, the right of conscience in the free exercise of religious worship.” Constitution of Pennsylvania (1776), in Sources of Our Liberties, (cited in note 41, at 329).
112. Id at 330. See MacMaster, , et al, Conscience in Crisis, (cited in note 38, at 224).
113. Frost, (cited in note 65 at 65).
114. Marietta, (cited in note 65, at 227); MacMaster, et al, Conscience in Crisis, (cited in note 38, at 222–23, 282–84); and Frost, (cited in note 65, at 62-63, 67).
115. MacMaster, et al, Conscience in Crisis, 223. The same kind of law for the same sort of reason was also passed by the states of Maryland, Virginia, and North Carolina. Id at 224-25, 331-32.
116. Id at 293, 523, 529, and Hamilton, (cited in note 53, at 225-317).
117. Frost, (cited in note 65, at 68).
118. A 1778 petition from the Quaker Meeting for Sufferings for Pennsylvania and New Jersey, quoted in MacMaster, et al, Conscience in Crisis, (cited in note 38, at 438).
119. Frost, (cited in note 65, at 72) (emphasis added).
120. MacMaster, et al, Conscience in Crisis, (cited in note 38, at 531).
121. Frost, (cited in note 65, at 75).
122. Mifflin, Warner, “Letter to Henry Drinker” (06 27, 1792), in Life and Ancestry of Warner Mifflin, comp Justice, Hilda105 (Ferris & Leach, 1905).
123. Frost, (cited in note 65, at 74).
124. For example, the minority report issued by the Antifederalists at the Pennsylvania ratifying convention included this passage: “Secondly, the rights of conscience may be violated as there is no exemption of those persons who are conscientiously scrupulous of bearing arms. … the framers of our State Constitution made the most express and decided declaration and stipulations in favor of the rights of conscience; but now, when no necessity exists, those dearest rights of men are left insecure.” Quoted in McMaster, John B. and Stone, Frederick D., eds, Pennsylvania and the Federal Constitution, 1787-1788 (480–81) (Da Capo Press, 1970 rep of 1888 ed).
125. All three proposals were identically worded as follows: “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.” The Debates in the Several State Conventions on the Adoption of the Federal Constitution …, Elliot, Jonathan, ed, 3:659. 4:244, and 1:335 (Burt Franklin, 1965 rep of 1888 ed, 5 vols).
126. 1 Annals of Cong 434 (1789) [1789-1824]. Although the wording of Madison's proposal is somewhat different from that of the proposal submitted by the states, the difference is of no significance with respect to the issue at hand. Madison twice promised to submit a bill of rights—first, in order to get the Virginia ratifying convention to vote for the proposed constitution and, second, in order to get himself elected as a member of the first Congress. See Papers of James Madison, 11:297, and Miller, (cited in note 21, at 11921). As to why he included a CO provision in his proposed bill of rights, he may have done so because he personally favored such a provision or simply because it was among the provisions included in the list submitted by his own state of Virginia. There is, however, nothing in the record to support McConnell's claim that Madison's action was the result of his belief that freedom of religion required exemptions from generally applicable laws “in some circumstances.” McConnell, , The Origins and Historical Understanding … (cited in note 25, at 1454). On this point, see Hamburger, (cited in note 24, at 927).
127. See above, notes 12-64 and accompanying text.
128. See House of Representatives Debates, July-August, 1789, in The Bill of Rights, (cited in note 63, at 2:1107–09, 1126–27); Renner, (cited in note 39, at 142-43); Adams, Arlin M. and Emmerich, Charles J., A Nation Dedicated to Religious Liberty 63–64 (University of Pennsylvania Press, 1990); and Berns, (cited in note 24, at 54-55). McConnell erroneously says that the more radical version was approved by the House. The Origins and Historical Understanding …, (cited in note 25, at 1500).
129. M. Malbin, (cited in note 24, at 39-40, fn 4).
130. The Bill of Rights, (cited in note 63, at 2:110). Chester J. Antieau says that Benson's views were “more representative of his age” than were the views of those who thought that persons had a right to be free of military service. Rights of Our Fathers 53–54 (Coiner Pub's Ltd, 1968).
131. 1 Annals of Congress 434 (1789).
132. Nevertheless, as early as 1795, at least one Quaker was arguing that the free exercise clause of the First Amendment guarantees to religious conscientious objectors a right not to bear arms. “A Letter from One of the Society of Friends relative to the Conscientious Scrupulousness of its Members to Bear Arms, 1795,” In Conscience in America: A Documentary History of Conscientious Objections in America, 1757-1967, Schlissel, Lillian, ed, 49–54 (E. P. Dutton, 1968).
133. The Origins and Historical Understanding …, (cited in note 25, at 1501).
134. Lofgren (cited in note 55, at 83).
135. The Origins and Historical Understanding …, (cited in note 25, at 1501).
137. MacMaster, et al, Conscience in Crisis (cited in note 38, at 534–35).
138. See Jacobson v Massachusetts, 197 US 11, 29 (1905). Arver v United States, 245 US 366 (1918); United States v Macintosh, 283 US 605, 623-25 (1931); Hamilton v Regents of the University of California, 293 US 245 (1934); In re Summers, 325 US 561 (1945); Dickinson v United States, 325 US 561 (1945); and Johnson v Robison, 415 US 361, 375, n 14 (1974).
139. Antieau, (cited in note 130, at 53).
140. Giannella, (cited in note 19, at 1411-12).
141. The former had a provision that prohibited the government from compelling persons “to do or suffer any other Act or thing, contrary to their religious Persuasion,” and the latter had a clause protecting “the right of conscience in the free exercise of religious worship.” Sources of Our Liberties, (cited in note 41; at 256, 329).
142. Bradley, (cited in note 24, at 277).
* Professor of Political Science, University of Richmond, Richmond, Virginia
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