10 J.L. & Religion 367
Journal of Law and Religion
Ellis M. Westa1
Copyright (c) 1994 by the Hamline University; Ellis M. West
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,1 which raised the basic issue of whether the free exercise clause of the First Amendment2 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.3
To the surprise of many,4 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).5 Writing for the Court, Justice Scalia said, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise *368 valid law prohibiting conduct that the State is free to regulate.”6 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 decision7 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.8 The Court said that the free exercise clause requires only that laws be religion-neutral and generally applicable. It added, however, that although courts were not required to, legislatures were free to grant religion-basedexemptions from valid, secular laws as a way of alleviating incidental burdens on the exercise of religion.9Because of the Smith decision, governments can now regulate and even criminalize practices that some persons or groups consider to be religious in nature, provided it does so through a law that is constitutional and that is applied to all instances of the practice, secular as well as religious.
The Smith decision was met with a great deal of strident criticism by most spokespersons for religion and churches and by some constitutional law scholars.10 The decision also had the effect of galvanizing just about all the religious organizations and religious *369 liberty groups in this country toward an effort for reversal either by the Supreme Court or by Congress.11 As of now, they have not been successful in getting the Court to overruleSmith, and, in fact, in its most important free exercise case since Smith, the Court refused to overturn its prior holding that the free exercise clause does not guarantee a right to religion-based exemptions.12
On the other hand, Congress has responded to the pressures exerted on it to do something about the Smithdecision. It passed the “Religious Freedom Restoration Act of 1993” (RFRA).13 The key part of RFRA states that government may restrict the free exercise of religion only if it can show that the restriction “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”14 In short, Congress has legislatively mandated the “strict scrutiny” test that the Supreme Court discarded in Smith. In the future, therefore, claims for religion-based exemptions will most likely be based on this Act, rather than on the free exercise clause of the First Amendment. Whether it will significantly increase the freedom of religious persons and groups to disobey valid laws remains to be seen, however.15
One of the most frequently made arguments against the Smith decision is that it is inconsistent with the true meaning of the free exercise clause. Persons who make such an argument often resort to a literal interpretation of the words of the free exercise clause. They assume that the word “exercise” refers to “action,” “practice,” or “application” and that the word “free” means “without legal restraint.”16 Using such a literal interpretation of the free exercise clause, they naturally think that the clause is violated, at least presumptively, by any law whose application imposes any burden on any conduct that any person deems to be part of her/her *370 religion–even if the law itself and its application to persons generally are unquestionably constitutional. Douglas Laycock, for example, writes, “The free exercise clause . . . is an express substantive protection for certain conduct, for religious exercise,”17 and argues that “on its face” the law involved in the Smith case “would seem to be a ‘law prohibiting the free exercise [of religion]’ . . . . ”18
Most of those who defend a right to religion-based exemptions rely on more than the wording of the First Amendment. They also argue that it was the intention of the framers of the First Amendment to create a right toreligion-based exemptions. Donald Giannella, for example, says that “the historic purpose of the free exercise clause” was to create a right to religion-based exemptions from such laws as a general ban on the consumption of alcohol.19 Similarly it has been claimed that “the first amendment was intended to protect freedom of conscience, and that conscientious objection to war was a well recognized, time honored expression of such conscience.”20
In either case, i.e., whether they are based on the text or on the original intent of the free exercise clause, the arguments for a constitutional right to religion-based exemptions are wrong–my opinion. Those who rely on the text of the First Amendment fail to realize that their understanding of the phrase “free exercise of religion” is not the understanding that was held by those early Americans who used the phrase and fought for its inclusion in the constitutions of that age. Their reliance on the wording of the First Amendment is, in fact, a classic example of how a literal reading of a constitutional or other legal text can be completely misleading because the meaning of words and phrases changes over time.21 Thus, an examination of the historical record clearly indicates that in eighteenth-century America the phrase “free exercise of religion” *371 stood for religious freedom in general and was used primarily to attack laws and policies associated with traditional establishments of religion, including those that authorized public financing of religion.22 Although this fact, by itself, does not preclude the possibility that the phrase “free exercise of religion” was originally meant also to guarantee a right to religion-basedexemptions, it does demonstrate that one cannot say on the basis of its wording alone that the free exercise clause guarantees a right to such exemptions, for a literal interpretation of that clause leads to a meaning that is far narrower than and different from the meaning originally imputed to those words.
Likewise, those who rely on the intentions of the founders to justify the argument for a right to religion-basedexemptions can find very little historical evidence to substantiate their claim.23 To the extent that there is historical evidence bearing on the issue, most scholars who have examined it have concluded that the free exercise clause was not intended to guarantee a right to religion-based exemptions.24 To my knowledge, only one study of any length–a 1990 article in the Harvard Law Review by the law professor, Michael McConnell25–comes close to arguing the contrary, and its conclusion is guarded and qualified: “[C]onstitutionally compelledexemptions were within the contemplation of the framers and ratifiers as a possible interpretation of the free exercise clause . . . . While the historical evidence may not be unequivocal (it seldom is), it does, on balance, support Sherbert’s interpretation of *372 the free exercise clause.”26 At about the same time, McConnell also wrote elsewhere that “the Court [in Smith] could have said that there are two constitutional traditions, both with impressive pedigrees, and that persons of common sense and good will have come down on both sides of the question.”27 Moreover, McConnell’s evidence and reasoning have been sharply criticized.28 In spite of its cautious and questionable conclusion, most critics of the Smith decision cite McConnell’s article for the proposition that that decision is inconsistent with the original meaning of the free exercise clause.29
In any case, because so many persons, including legal scholars, have criticized the Supreme Court’s Smithdecision on the unexamined assumption that the free exercise clause of the First Amendment was intended to guarantee a right to religion-based exemptions, in this article I present part of the evidence that demonstrates that the clause was NOT intended to do so and, therefore, that the Smith decision is not only consistent with, but required by the original meaning of the clause.30 Only part of the *373 evidence is presented here because a presentation of all the evidence needed to make the case for such an understanding of the free exercise clause would require a discussion of all the following topics: (1) the views of the leading proponents of religious liberty in early America on the issue of a right to religion-based exemptions; (2) the wording and meaning of the religious liberty provisions that were in the various colonial charters and state constitutions prior to the adoption of the First Amendment; (3) the clashes that occurred in early America between the demands of particular laws and the demands of religious conscience; and (4) the setting, wording, and events involved in the actual writing and adoption of the First Amendment.
This article addresses only the third topic: what exemptions from specific laws (if any) were sought and granted on the grounds that they were guaranteed by the religious liberty provisions in the various colonial charters and early state constitutions? More specifically, it explores whether or not early Americans believed that Quakers and others who conscientiously objected to military service had either a natural or constitutional right, derived from the principle of religious freedom, to be exempt from having to obey conscription laws. It concludes that they did not so believe.
I focus on the issue of conscientious objection to military service for two reasons. First, the historical record contains very few other examples of serious clashes between the claims of conscience and the claims of valid, secular laws, especially clashes where exemptions were claimed as natural or constitutional rights.31 Some scholars have explained this absence of conflict on the grounds that in early America there were relatively few laws that had the potential to conflict with the practice of religion32 and there was widespread *374 consensus on moral principles and, thus, on the goals and laws of government.33 Nevertheless, the small number of conflicts between conscience and law in early America is by itself a very convincing reason for thinking that the framers of the First Amendment simply did not “envision potential religious exemptions as applying to neutral laws of general applicability.”34
In any case, in eighteenth-century America, there was at least one significant, widespread conflict between religious conscience and secular law– that between conscription laws and conscientious objectors. The way in which that conflict was resolved, therefore, should indicate whether early Americans believed that they had a natural or constitutional right to at least one religion-based exemption.
The second reason for focusing on the issue of conscious objection to military service is the fact that leading defenders of a general constitutional right to religion-based exemptions cite the treatment of conscientious objectors in early America as evidence supporting the proposition that early Americans believed in such a right.35McConnell calls it “a particularly telling example.”36 Even some scholars who deny that the principle of religious liberty in early America entailed a general right to religion-based exemptions concede that exemptions from conscription laws were given to conscientious objectors on the basis of religious liberty. For example, John K. Wilson writes, “Though in practically all matters civil law could not be violated because of religious beliefs, conscientious objection to war was considered an exception.”37 Therefore, if, as this article contends, the historical evidence on the *375 conscription controversy does not support such a conclusion, then it follows that the historical case for a right to religion-based exemptions derived from the free exercise clause has a large hole in it, for there is no other controversy from early America that can provide evidence toward making such acase.
By the time of the Revolution, Americans generally were aware of the fact that Quakers and members of a few other religious sects, such as the Brethren and the Mennonites, were pacifists who refused for religious reasons to take up arms in defense of themselves or others.38 Many Americans, moreover, were sympathetic to the moral plight that conscription laws created for the pacifists. For example, in 1775, shortly before the outbreak of the Revolution, the Continental Congress, in response to an appeal from pacifists in Pennsylvania, expressed the following sentiment:
As there are some people, who, from religious principles, cannot bear arms in any case, the Congress intended no violence to their consciences, but earnestly recommend it to them, to contribute liberally in this time of universal calamity, to the relief of their distressed brethren in the several colonies, and to do all other services to their oppressed Country, which they can consistently with their religious principles.39
As a result of such sympathy, exemptions from conscription laws were often granted to religious conscientious objectors before, during, and after the Revolution.40 Five of the newly independent states–Pennsylvania, Delaware, New Hampshire, Vermont, and New York–went so far as to put provisions granting such exemptionsin their constitutions.41
*376 One cannot infer from such exemptions, however, means that early Americans generally believed that conscientious objectors to war have a natural or constitutional right to such exemptions. One cannot infer this for three reasons. First, the exemptions were granted by legislatures, not courts. After all, the majority of the states did not have constitutional provisions requiring exemptions and even if they did, it made no practical difference, for judicial review had not yet been established in the nation.42 When clashes arose between their conscience and a conscription law, therefore, pacifists did not go to courts and attempt to get exemptions from the law by arguing that a religious liberty provision in a charter or constitution required such exemptions to be given. Rather, when they sought to obtain exemptions from an existing or proposed draft law, they went to the legislative body responsible for passing the law.43
Second, when persons seeking exemptions went to legislatures, they did not necessarily argue that the legislatures were legally or morally bound by either natural law or a constitution to grant the exemptions. Often the exemptions were requested as special favors or privileges, and appeals were made to the legislators’ sympathy or self-interest, i.e., their need of votes.44 Likewise, *377 when legislatures did grant exemptions, they usually did so out of sympathy, not because they thought the claimants had a right to them. Thus, exemptionsfrom conscription laws were usually granted by legislatures as “privileges” or “indulgences,” not as “rights,” and even then there was often strong opposition to such grants.45
Third, even when specific constitutional provisions were cited as the reasons for granting exemptions46 one cannot infer that the exemptions were sought as “rights” in the modern sense of the word, for the colonial charter and state constitutional provisions guaranteeing various freedoms were not understood as rigid restraints on a government’s power or as guarantees of anything like absolute rights to its citizens. Rather, such provisions were thought of as statements of goals or ideals that a government was obligated to realize as much as it could, but only after taking into account all its competing objectives and responsibilities.47
Not surprisingly, therefore, even Michael McConnell concedes that the existence of exemptions for conscientious objectors does not prove “that religious objectors were entitled to exemptions by right.”48Nevertheless, in lawyer-like fashion, he refuses to concede the point entirely. First, he argues that many of the rights in the Constitution came to be included therein because prior to 1789 they had been recognized in state statutes or the common law and that it is very likely that the right to exemption from military duty was one of those rights. He reasons, “If legislatures conceived of exemptions as an appropriate response to conflicts between law and conscience, there is every reason to suppose that the framers and ratifiers of the federal Constitution would expect judicially enforceable constitutional protections for religious conscience to be interpreted in much the same manner.”49
*378 There is not, however, “every reason” to accept McConnell’s supposition. Although some rights granted by statute or the common law were indeed elevated into judicially enforceable Constitutional rights, most were not so elevated. Thus, the mere fact that a right to be exempt from fighting in wars was granted by some state legislatures (and even constitutions) does not mean that it was one of those rights that came to be guaranteed by the Constitution. After all, the issue at that time was precisely which of the many existing statutory or common law rights should be protected by the new federal Constitution.
McConnell’s second reason for thinking that conscientious objector exemptions, even though granted by legislatures, were viewed as “rights” is the possibility that “the exemptions were granted because legislatures believed the free exercise principle required them.”50 Although his reasoning here is sound, McConnell fails to give any evidence showing that the exemptions were in fact granted for such a reason. He simply asserts that such “seems to be the case.”51
Nevertheless, McConnell’s argument does raise a relevant question. Were the exemptions that were given to conscientious objectors by either state statutes or constitutions given on the grounds that they were required by the principle of religious liberty? If they were, that fact would clearly imply that the exemptions were considered to be rights. The evidence, however, indicates that in most cases they were not. First, many of the pacifists themselves did not claim that the unavailability of exemptions constituted a violation of religious freedom. Thus, Stephen B. Week’s extensive account of Quakers in the southern colonies/states contains no material linking Quaker demands for exemptions from conscription with the principle of religious freedom.52 Although many of the petitions submitted by pacifists to colonial or state legislatures did request exemptions on the grounds that*379 they were required by the principle of religious liberty,53 many did not do so, but essentially “begged for mercy.”54
Second, exemptions from military service were given to many other persons besides conscientious objectors. Absolute or unconditional exemptions were, for practical reasons, given to a broad range of persons, such as government officials and doctors. Moreover, in many states, because of the general hostility to compulsory military service, almost anyone who was willing and able either to pay a “fine” or to secure a substitute could receive an exemption.55 This means that the exemptions given to religious objectors were not all that special or necessarily based on the principle of religious liberty.56
A final point on this issue: the state constitutions that contained a provision exempting pacifists from conscription laws also contained a religious liberty provision, and the two provisions were in completely separate, unrelated sections.57 The clear implication of the choice both to make a separate provision for conscientious objection and to place it away from the religious liberty provision is *380 that the general principle of religious liberty was not thought to include the right of exemption for religious conscientious objectors.
For these reasons, I conclude that the evidence is lacking to support the proposition that late eighteenth-century Americans believed that the principle of religious liberty gave conscientious objectors to war a right to be exemptfrom conscription laws. Although the historical record may support McConnell’s claim that “[m]ost of the colonies and states . . . exempted religious objectors from military conscription . . . expressly in order to avoid infringements of their religious conscience,”58 this does not mean that the exemptions were thought to be rights or were required by the principle of religious liberty.59 Rather, what the record summarized thus far indicates, at a minimum, is that most persons probably had no opinion on the issue because exemptions from draft laws were not discussed very much in terms of religious liberty. This is the conclusion reached by the foremost scholar on church-state relations in early America, Thomas J. Curry, who writes that the issue of conscientious objection to war “never became the subject of widespread dissent or discussion on Church-State matters” and, thus, did not “contribute to the clarification of what Americans meant by religious freedom.”60
As important as it is, Curry’s point can be called a “minimal” one because it says only that the historical record does not demonstrate that early Americans believed that conscientious objectors had a right to be exempt from conscription laws. It leaves open the possibility that they did so believe. As such, it is not enough to refute McConnell’s main thesis that the right to religion-based exemptions is at least a possible way of interpreting the free exercise clause. Indeed, John Howard Yoder contends that the lack of debate over the inclusion of conscientious objection as a religious liberty right can better be explained on the grounds “that they [framers] were taking them [[[exemptions] for granted, and were intending to build a floor under them with the free exercise clause, than to claim that the omission was intended to be read as a denial.”61
*381 I believe however, that it is possible to go beyond the weak conclusion that there is insufficient evidence to establish that early Americans believed that the principle of religious liberty guarantees conscientious objectors aright to be exempt from obeying conscription laws. In my view, the historical record warrants the stronger conclusion that early Americans clearly and explicitly rejected such a position, for the record shows that in some places, especially Pennsylvania, and at times, especially during and after the Revolution, the religious liberty justification for exemptions as constitutional rights was explicitly and repeatedly made by the pacifists, but rejected by legislators and citizens in general.
The conclusion that there is insufficient evidence either way about exemptions for conscientious objectors overlooks the fact that the exemptions granted to conscientious objectors were seldom, if ever, considered by them to be adequate or satisfactory because they were limited or conditional in nature. To avoid military service, the objectors had to secure a substitute or pay a fine or special tax. It is quite clear, moreover, that the lawmakers who imposed the fines or taxes considered them to be the equivalent to military service, and their amount was set accordingly.62 As a result, the exemptions were rejected by most Mennonites, Brethren, and Quakers, some of whom suffered imprisonment and loss of property for failure to serve, pay a fine/tax, or secure a substitute.63Moreover, the lawmakers in the various states were quite aware that pacifists objected to paying a fine or tax in lieu of military service.64
*382 These facts make it very difficult, if not impossible, to maintain that the existence in early America ofexemptions for conscientious objectors reflected a concern for religious liberty on the part of legislators. If theexemptions were granted for that reason, then it can only be concluded that the legislators had a very niggardly conception of religious freedom. Certainly the pacifists who sought the exemptions on the grounds of religious liberty did not believe that the exemptions that were actually granted satisfied the demands of religious liberty.65To the contrary, in their minds the laws granting conditional exemptions, especially those provisions that were contained in the first state constitutions, constituted a defeat, not a victory for religious liberty.66 The historical record, in short, indicates not just uncertainty about but in some places actual rejection of the idea that persons have, because of their religious convictions, a right to be exempt from conscription laws.
To support this maximal conclusion in some detail, I will offer an account of two cases where lawmakers explicitly considered but rejected the proposition that religious liberty requires the government to give exemptions from conscription laws to conscientious objectors. The first case occurred in Pennsylvania, where there was a large number of pacifists, most of whom contended for draft exemptions on the basis of religious liberty and a specific provision in the colonial charter. Although they never had to make such an argument until 1757, because before then there was no possibility of conscription laws being passed, thereafter when such laws were passed and the pacifists needed to and did argue for exemptions from the draft, they failed to obtain them because the people of Pennsylvania rejected their understanding of religious freedom. The second case involves the events at the First Congress, which in 1789 drafted a proposed Bill of Rights to be added to the new national Constitution, but which refused to include in that document a provision giving conscientious objectors even a limited or conditional rightto be exempt from having to serve in the military.
Pennsylvania was founded by William Penn because, among other reasons, he wanted a place where fellow Quakers could live and not be punished, as they had been in England, for dissenting to the established Church of England, refusing to serve in the military, and refusing to swear oaths in court or oaths of allegiance to the crown.67 Ironically, Penn failed to include in his 1682 Frame of Government of Pennsylvania an explicit guarantee of a right to religion-based exemptions from military service or oath taking. He may have assumed that the Frame’s guarantee of religious freedom implied a military exemption right.68 We know that he often linked liberty of conscience with the right to be exempt from militia duty and the right to use affirmations rather than oaths.69 Another explanation for the absence of provisions explicitly protecting conscientious objectors to war is that Penn assumed that because Quakers would control the government in Pennsylvania, the colony “would have no militia, no fortifications, and no war” and thus would pose no threat to conscientious objectors.70That explanation is made even more plausible by the fact that when the colonial charter was revised in 1701, the religious liberty provision was expanded to include a prohibition against compelling any persons “to do or suffer any other Act or thing, contrary to their religious Persuasion.”71 Perhaps by 1701 Penn and his fellow Quakers began to realize that Quakers would not always be in the majority in Pennsylvania and able to control its legislature72 and that the charter needed to be more explicit in its protection of their pacifism and refusal to swear oaths. In any case, the new religious liberty provision was worded so broadly that, taken literally, it guaranteed not only a right to be exempt from military service and oath-taking but a right to religion-based exemptions in general.
*384 Whether that was what was intended is a matter of debate. According to one scholar, the provision reflected “a sectarian vision,” which sought to guarantee a religious liberty “that made it possible for the nonresistant sects to live according to conscience and not just to worship according to conscience.”73 On the other hand, Penn himself had a very positive view of government and emphasized strongly the importance of obedience to its laws. Although he was an ardent proponent of liberty of conscience, he clearly did not believe that it was an absolute freedom.
Very conservative in his conception of what was socially acceptable religious activity, Penn was willing to deny religious liberty “to religious societies that were possibly inconsistent with the safety of the civil government or whose presence was detrimental to governmental authority.”74 He tended to separate conscience, which he defined as “the Apprehension and Persuasion a Man has of Duty to God,” from behavior.75 A typical passage that illustrates his position is the following: “We are pleading only for such a Liberty of Conscience, as preserves the Nation in Peace, Trade, and Commerce; and would not exempt any Man, or Party of Men, from not keeping those excellent Laws, that tend to Sober, Just and Industrious Living.”76 Moreover, his conception of what morality requires or forbids that could be enforced by law was remarkably broad (and very likely to offend a modern reader).77 It is not surprising, therefore, that even McConnell concedes that passages in Penn’s writings “can be interpreted as rejecting free exercise exemptions.”78
Complicating matters even more, the legal status of the new religious liberty provision was soon cast in doubt by the action of *385 the Board of Trade back in London. In exercising its right to review all of the colony’s laws, it refused to approve the law, partially on the grounds that it did not place any limits on the “conscientious practices” that it allowed. As a result, the colonial Council in 1724 declared the religious liberty part of the original 1682 Frame of Government still in effect.79 Until a new constitution was adopted in 1776, however, many Pennsylvanians, especially the Quakers, continued to look upon the religious liberty section of the 1701 Charter of Privileges as valid and as the legal basis of their claims to be exempt from military service. Others, however, whether they accepted the validity of the 1701 provision or not, challenged the Quaker interpretation of the provision and the principle of religious liberty.80
In order to understand the debate that occurred in Pennsylvania over the meaning of religious freedom, one must first understand the basic dilemma that William Penn and the Quakers faced from the very beginning of the colony’s existence because they were in control of the its assembly: how they could protect the lives and liberties of all the citizens without compromising their commitment to the practice of pacifism.81 In the face of this dilemma, the Quaker-controlled Assembly repeatedly decided against passing military or defense measures in the hopes that the Indians could be pacified by fair and humane treatment, that British forces would protect the colony from foreign invaders, and ultimately that God would preserve the colony.82 Although on a few occasions it raised money for British military expeditions,83 before 1777 Pennsylvania successfully managed to avoid having a militia law that required compulsory military duty.84 As a result, the matter of exemptions from military service for conscientious objectors never became a pressing issue; the Quakers protected consciences by refusing to pass militia laws.
There were times, however, when the colony faced serious external threats and when many citizens urged the assembly to establish a militia to protect their lives and property. Because the *386 assembly refused to do so until 1755, it was often criticized, among other things, for violating the liberty of conscience of those who felt that defense measures were needed.85 To these critics, the refusal of the Quakers, because of their religious scruples, to govern Pennsylvania according to widely accepted principles and like most states and colonies were governed was an example of one group’s imposition of its religion onto the rest of the citizenry and a violation of Penn’s guarantee of religious freedom.86
It might be argued that the Quakers could have avoided this criticism as well as any violation of their consciences simply by passing a compulsory militia law with an unconditional exemption for themselves and other conscientious objectors. They never did so. Aside from the fact that voting for such a measure would have been unconscionable to them, they believed that selective compulsory service would have been unfair to non-pacifists and a violation of their religious liberty. As early as 1739, when the governor urged the assembly to enact a militia law, the Quaker-dominated assembly admitted that it was faced with a dilemma. On the one hand, passing such a law without granting exemptions to pacifists would violate the constitutional guarantee of liberty of conscience, but, on the other hand, passing a militia law and exempting only pacifists “would be an Inconsistency with themselves, and partial with respect to others.”87 The assembly may have also thought it had no authority to grant such exemptions.88 In any case, the assembly passed no militia law at all–at least not until 1755.
The militia law passed in that year, however, was most unusual; it authorized a militia and set up rules for its organization, but enrollment in the militia was not required of anyone. The law basically legalized a voluntary militia89 and was designed to avoid the dilemma of having no militia or having one that drafted only non-pacifists.*387 This is clear from the language of the law itself. First, it said that any law that compelled Quakers to bear arms would violate the Charter of Privileges, but that exempting only Quakers from military service “would be inconsistent and Partial.” Then, it noted that “great Numbers of People of other Religious Denominations are come among us who are under no such Restraint, some of whom . . . Conscientiously think it their Duty to fight in defence of their Country . . . , and such have an Equal Right to Liberty of Conscience with others.” Therefore, the statute concluded, “We do not think it reasonable that any should thro’ a want of legal powers be in the least restrain’d from doing what they Judge it their Duty to do for their own Security and the publick Good . . . . ”90
Although it was declared invalid by the authorities in London, the law of 1755 illustrates that at that time the principle of religious liberty, as it was understood by the Quakers, was difficult for them to apply in a meaningful way because of its apparent inconsistency. In an essay explaining and defending the Militia Act of 1755, Benjamin Franklin, who was by then one of the leading spokesmen for the Quaker Party (although not a Quaker himself), made the difficulty quite clear. In defense of the law’s failure either to compel the Quakers to muster or to pay a fine if they did not, he argued that they were exempted from both by the religious liberty provision in the 1701 Charter, which he quoted. Then he explained why the Quakers, “being a Majority in the Assembly,” had not “made the Law compulsory on others.” “But it seems they thought it more equitable and generous to leave to all as much Liberty as they enjoy themselves, and not lay even a seeming Hardship on others, which they themselves declined to bear.” Moreover, in defense of the pacifists, he added, “When Taxes are raised . . . for the King’s Service, the Quakers and Menonists pay their Part of them . . . . And out of these Taxes those Men are paid who go into actual Service.”91 Franklin’s comments clearly suggest that the Quakers and their pacifist allies, when they were citing and relying on religious liberty as the reason for their decision to have a voluntary militia, were uncomfortable with the notion that religious liberty *388 gave them the right to be excused from having to do what others were required to do.
Between 1755 and the beginning of the American Revolution, the Quakers lost control of the Pennsylvania assembly–for at least three reasons. First, there were demographic changes. By 1760, all the pacifist groups together composed not more than twenty-five percent of the colony’s population. Second, “[t]he events of the turbulent years from 1740 to 1770 created new ethnic and religious alliances which made the pacifists into a decided minority with few allies.”92 Most of these events were political and military threats of one kind or another that caused more and more of Pennsylvania’s citizens, especially those living in the frontier part of the state, to reject the Quaker’s traditional policy of government pacifism.93 Then, when war with England began to appear inevitable, Quaker pacifism was thought to be not only irrelevant but even threatening to the patriot cause.94
Finally, as these developments occurred, the Quakers and other pacifist groups experienced an internal “revival” of commitment to the principles of nonresistance and nonviolence. Members of the sects who advocated and practiced compromise of these principles for the sake of worldly comfort and gain were chastised and, in somecases, forced out of their churches. As a result, most Quaker politicians felt that they could no longer serve in the assembly or hold other offices in the government, because it was on the verge of adopting and carrying out a policy of war.95
Once they lost their political power and then were faced with the prospects of having to fight in a war, the Quakers and other pacifists became more insistent and unified in claiming that the principle of liberty of conscience, especially as embodied in the 1701 Charter of Privileges, gave them the right to be exempt from both serving in the military and paying a fine or tax instead.96 They urgently made the argument in 1757, when for the first time the *389 Assembly passed a compulsory militia law, partially because Quakers no longer constituted a majority of the body. Although the militia law offered conscientious objectors the alternative of noncombatant service, it also imposed a fine of twenty shillings on those who refused to serve either in the military or in a noncombatant way. This caused the Philadelphia Meeting for Suffering to protest the law as a violation of the religious liberty guaranteed Quakers by the colony’s Charter. Members of the opposing party, of course, argued that unconditionalexemptions for conscientious objectors were unfair.97 Ironically, but fortunately for the Quakers, the law was vetoed by the governor because he thought the law went too far in granting protection to pacifists.98
The issue of exemptions became much more pressing when it appeared that the colonies would fight a war to obtain independence from England. On the one hand, because of their commitment to nonresistance and passive obedience, the pacifists attempted to take a neutral position on the impeding conflict. On the other hand, by 1775, voluntary associations of patriots (Associators) had begun organizing and enrolling persons in local militias. When members of the pacifist sects refused to enroll, clamor began for imposing a fine or tax on them that would be the equivalent for turning out with the militia. Its purpose was to compel the pacifists to take their place beside their neighbors in defence of their liberties and to no longer be “on the sidelines” in the struggle.99
The issue came to a head late in 1775, when it appeared that a compulsory militia law would become a reality. Petitions from both the Associators (asking for a law requiring all persons to support the patriot cause either in person or in money) and the Non-Associators (asking that exemptions from both service and contributions be granted to conscientious objectors) were submitted to the Pennsylvania Assembly.100 The Philadelphia Meeting for Suffering appealed to the Assembly for unconditional exemptions from military duty on the grounds that the “liberty of conscience” guaranteed in the colony’s Charter “was not limited to the Acts of *390 Public Worship only.”101 The group also contended that the Assembly’s failure to protect their consciences was inconsistent with the main reason that William Penn had established the colony in the first place.102 Similar petitions were submitted to local authorities. One of them, from a group of conscientious objectors in Berks County protesting the County Committee’s decision to impose a fine on all those who refused to bear arms, is noteworthy because it referred to the right not to bear arms as “a divine and Sacred Right” and concluded that “to wrest the Enjoyment of the Same from any Body must be Sacrilege [and e]xcite divine Vengeance, and must be void in Effect.”103
Although the Quakers and other pacifists made a good legal case on behalf of their having a constitutional right tobe exempt from military service, other Pennsylvanians, especially the Associators, did not accept the Quakers’ interpretation of the 1701 Charter of Privileges. Different groups made different arguments. In 1775, in a “representation” to the Assembly that asked for a tax or fine on non-Associators that would be equivalent to the burden borne by them, a group of Associators from Philadelphia addressed head on the claims of the Quakers that the Charter of 1701 gave them a right to be unconditionally exempt from militia duty. First, the group appealed to “the most certain and evident Principles of Equity and Justice” and argued that any “Religion which teaches to deny the Demand of Justice and Equity, cannot be of God; nor will the Conscience which is influenced thereby meet with his Approbation.”104 This appeal to justice, ironically, had been used earlier by the pacifists themselves, when they had controlled the government, to justify their policy of having no militia (instead of having one and exempting conscientious objectors from having to serve in it).105
Second, although the Associators admitted that “Liberty of Conscience is so sacred a Thing that it ought ever to be preserved inviolate,” they contended that “the great Law of Self-preservation is equally binding with the Letter of written Charters . . . . ” Therefore, *391 they concluded that “when, under Pretence of this Liberty the very Existence of Civil Government is struck at, . . . either the Liberty claimed must be given up or the Government dissolved; and this we apprehend to be the Case when any of the Members of a Community, from a Claim of Religious Liberty, refuse to support the Society to which they belong . . . . ”106
Finally, the Associators said that the Charter provision on which the Quakers relied was “never intended to grant an Exemption from paying their just Proportion towards the Support of . . . [government], whether Civil or Military . . . . ” They insisted that the religious liberty provision did not “extend to such Exemptions on any Pretence whatever” but, in fact, required those who claimed the liberty “to ‘profess themselves obliged to live quietly under the civil Government,’ which cannot possibly be when they refuse to support the Measures often necessary to its very Existence.” To support this conclusion, they pointed out that exemptions from paying taxes to support a war were inconsistent with the colony’s royal charter, which gave the proprietors the power “to levy, muster and train all Sorts of Men, of what Condition soever . . . and to make War [etc.] . . . . ” To drive the point home, the petition closed with the argument that no claim of exemptions from having to support military measures had ever been granted Quakers “in any part of the British Empire” and that, in fact, the Quakers had always paid taxes “levied for the Purpose of defraying the Expences of Military Expeditions, both here and in Europe” and had never complained about doing so. “Thus,” the petition ended, “their own Practice becomes a strong Proof against them . . . . ”107
Although this petition did not explicitly deny that the charter provision created a general right to religion-basedexemptions and, thus, might be explained on the grounds that its authors thought that the Quakers’ claim was too extreme (or, in today’s parlance, should be denied because of a “compelling” governmental interest), the same cannot be said about another petition submitted to *392 the Assembly (by the officers of the Military Association of the City and Liberties of Philadelphia). It said:
We cannot alter the Opinion we have ever held with Regard to those parts of the Charter quoted by the Addressors, that they relate only to an Exemption from any Acts of Uniformity in Worship, and from paying towards the Support of other religious Establishments, than those to which the Inhabitants of this Province respectively belong. We know of no Distinctions of Sects, when we meet our Fellow Citizens on Matters of Public Concern, and ask those conscientiously scrupulous against bearing Arms, to contribute toward the Experience of our Opposition, not because of theirreligious Persuasion, but because the general Defence of the Province demands it.108
In essence, the petition “narrowly construed the grant of religious freedom in the Charter and threw the sectarian contention that religion was more than a Sunday worship out of court.”109 To support their contention the Associators stated that the Charter provision had never been understood, even by Quakers, to guarantee anexemption from paying taxes in support of wars.110
Regardless of its historical merit, it was this second and narrow interpretation of religious liberty that eventually won out in the political arena–in at least three significant ways. First, the Constitution adopted in 1776 by the newly independent state of Pennsylvania constituted a clear defeat for the pacifists. Not only did it make the 1701 Charter irrelevant, but more importantly, its rewritten provision on religious liberty contained no clause implying aright to religion-based exemptions. Specifically omitted was the clause from the 1701 Charter that prohibited the compelling of persons “to do or suffer any other Act or Thing, contrary to their religious Persuasion,” and the new clause guaranteeing the free exercise of religion was explicitly limited to worship.111
*393 In addition, although the Constitution contained a clause exempting conscientious objectors from having to bear arms, it was not part of the religious liberty provision, and, more importantly, the exemption that it guaranteed was conditioned on persons’ paying an “equivalent” to serving in the military.112 In short, the new Constitution did not provide the pacifists with the protection to which they thought they were entitled by the principle of religious liberty.113
Second, both in 1775, when the 1701 Charter was still in effect, and afterward the Pennsylvania Assembly passed and repassed conscription laws that exempted “nonassociators,” but only if they paid a special tax.114“The Assembly clearly intended to make the peace churches pay the cost of the war and the tax on Non-Associators was an avowed equivalent to military service.”115 Moreover, the laws were harshly, although not uniformly, enforced with the result being that many pacifists suffered greatly for refusing to serve in the military or pay the special tax. The punishments they received included large fines, loss of property, imprisonment, exile, forcible conscription, and loss of certain civil rights, such as the right to vote.116 Although some pacifists asserted that the conscription law violated the religious liberty provision in the new 1776 constitution,117 it is noteworthy that one of the most eloquently worded petitions to the Pennsylvania Assembly appealed not to that provision but to “the generous and liberal foundation of the charter and laws agreed upon in England between our first worthy proprietary William Penn and our ancestors, whereby they apprehended religious and civil liberty would be secured inviolate to themselves and their posterity” and to “the true spirit of government . . . [and] the real interest and good of the community . . . . ”118 All their protests, however, were to no avail. The general meaning of what happened has been concisely stated by J. William Frost: *394 “The Revolution marked the end of the Quaker or sectarian definition of religious liberty.”119
Moreover, what happened in Pennsylvania regarding the meaning of religious liberty was not unique. According to a recent study, “Americans were in general agreement that government could lawfully require citizens to perform some manner of military service, sometimes with allowance for alternative service or, more commonly, monetary payments. The doctrine of the Pennsylvania Bill of Rights of 1776 that made the right to claim the protection of society in the enjoyment of life, liberty, and property dependent on personal military service, or an equivalent, had not only gained wide acceptance during the war years, but found a place in nearly every state constitution adopted in wartime.”120
Even so, after the Revolutionary War ended, the issue of whether religious conscientious objectors, like Quakers, had a right to be exempt from serving in the military did not die. In Pennsylvania, the issue continued to be debated until 1790, when the state adopted a new constitution. At the convention that drafted the document, an attempt was made to repeal the requirement stated in the 1776 constitution that conscientious objectors had to pay a special tax in lieu of military service, but the proposed revision was defeated by a large margin. By doing so, “the convention continued to repudiate the Quaker-sectarian definition of religious liberty.”121 Moreover, the Quakers themselves understood what was happening as “confining the rights of conscience to what they call worship.”122 Finally, because many of those involved in the drafting of the 1790 constitution were also involved in the drafting and/or ratification of the Bill of Rights, what happened at the state constitutional convention provides a valuable, albeit indirect indication of how Pennsylvanians understood the free exercise clause of the First Amendment.123
Exemptions from military service for conscientious objectors became a national issue first when ratification of our present Constitution was debated and then later when the First Congress debated what provisions to include in a bill of rights. Here again, however, the evidence indicates that most persons at that time did not think that the principle of religious liberty or the free exercise of religion guarantees a right to religion-based exemptions in general or to exemptions from military service.
The exemption issue surfaced when Antifederalists opposed to the proposed constitution argued that the document was defective because it did not contain a bill of rights, including a provision giving religious conscientious objectors a right to be exempt from having to bear arms.124 In order to get around this objection and get the Constitution ratified, its proponents promised to add a bill of rights. In turn, various states drew up lists of provisions to be included in a bill of rights.
Three states, Virginia, North Carolina, and Rhode Island, proposed a provision to protect conscientious objectors.125 Then, when the First Congress met, James Madison, who had promised to work for the addition of a bill of rights and was a member of the House of Representatives committee charged with writing it, included a conscientious objector provision in a list of rights that he drafted for the House to consider. The provision stated that “no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”126
*396 Like its antecedents in the various state constitutions, Madison’s proposition was hardly radical, for it allowed the government to condition an exemption on the paying of a fine or the hiring of a substitute– neither of which was acceptable to most pacifists.127 After the provision was reviewed by a special committee, however, it returned in a more radical form, i.e., without any conditions attached to the exemption. It was this radical proposal that was extensively debated by the House of Representatives in 1789. Eventually, however, it was rejected in favor of one like Madison had originally proposed, but even this mild provision never became part of the Bill of Rights because it was removed by the Senate from the list of proposed amendments to the Constitution.128
What does this record of events at the First Congress tell us about what late eighteenth-century Americans believed regarding their having a natural or constitutional right to be exempt from having to bear arms? First, and obviously, it tells us that a significant number of them did not believe that they had any such a right; after all, the proposed conscientious objector amendment was rejected by the Congress.129 Moreover, although those who voted against the proposed amendment had different reasons for doing so, many of them who did so must have agreed with the reasons given by Representative Egbert Benson:
[I] . . . would always leave it to the benevolence of the Legislature, for, modify it as you please, it will be impossible to express it in such a manner as to clear it from ambiguity. No man can claim this indulgence of right. It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the *397 discretion of the Government. If this stands part of the Constitution, it will be a question before the Judiciary on every regulation you make with respect to the organization of this militia, whether it comports with his declaration or not. It is extremely injudicious to intermix matters of doubt with fundamentals. I have no reason to believe but that the Legislature will always possess humanity enough to indulge this class of citizens in a matter they are so desirous of; but they ought to be left to their discretion.130
Second, the record tells us that even most of those members of the First Congress who believed that persons have a natural or constitutional right to exemptions from military service did not believe that the right is unconditional or complete in nature, for a provision granting an unconditional exemption was rejected by the House of Representatives. This, in turn, means that even if it were conceded that the exemptions for conscientious objectors that existed in early America stand as a model for or justification of a broader right toreligion-based exemptions in general, it must also be admitted that the kind of right to religion-basedexemptions that they exemplify or justify is a very weak or limited right. Indeed, one could argue, as most pacifists at that time did, that it is no right at all because persons have to compensate heavily for the exemptionsthey receive.
Third, and perhaps most significantly, the attempt to include a separate conscientious objector provision in the bill of rights clearly implies that even those who favored such a provision did not believe that a right to be exemptfrom bearing arms is required by the principle of religious freedom. Otherwise, why would they have felt it necessary to have a separate conscientious objector provision when it was clear that the Bill of Rights was going to include a provision guaranteeing the free exercise of religion? Madison, for example, submitted a conscientious objector amendment even though the amendment he proposed at the same time to protect religious freedom was worded perhaps as broadly as it possibly could have been: “[N]or shall the full and equal rights of conscience be in any manner, nor on any pretext infringed.”131 The most likely explanation for his doing so is that Madison did not *398 intend for his religious liberty proposal, as broad as it was, to give conscientious objectors a right to beexempt from bearing arms.132
Although Michael McConnell recognizes the import of this last argument, he again characteristically refuses to concede the point; instead he gives three possible reasons why a separate provision for conscientious objectors would have been required even if it had been thought that they were also protected by the free exercise clause. None of the three, however, is persuasive.
First, McConnell says that the free exercise clause would not have protected pacifists from state militia laws because when it was adopted it applied only to the federal government.133 This argument will not work for two reasons. One, it assumes that the proposed separate provision exempting persons with religious scruples from bearing arms would have applied to the states, whereas, in fact, Madison’s proposal was intended to limit only the national government.134 Two, if McConnell is correct in arguing that the religious liberty provisions in the state constitutions guaranteed a right to religion-based exemptions, including exemptions from draft laws, then there was no reason to have a national constitutional provision that applied to the states. On the other hand, if such a provision was necessary to protect pacifists from state militia laws, that means the state religious liberty provisions were not meant to guarantee exemptions from conscription laws to conscientious objectors.
Second, McConnell argues that although the free exercise clause was intended to guarantee a general right toreligion-based exemptions, its framers could not be sure that the courts would uphold that it protected the specific right of conscientious objectors to be exempt from conscription laws; after all, that determination would “depend, in part, on the judiciary’s assessment of the government interest in conscription.” To be on the safe side, therefore, those who favored protecting the pacifists thought a separate provision just for them was needed.135This, of course, makes *399 sense, but it undercuts McConnell’s main argument that early Americans believed that exemptions for pacifists are dictated by the principle of religious liberty, because doubt about what the courts would do implies doubt about whether early Americans believed that pacifists should be protected by the free exercise clause.
Third, McConnell contends that because some states had proposed that both an exemption provision and a religious liberty provision be added to the Constitution, even those Congressmen who thought that conscientious objectors were protected by the free exercise clause would have thought it necessary to keep a separate provision specifically for them, for if it were not kept, “this would create an inference that there is an intention in the general government to compel all its citizens to bear arms”–an inference that would undercut the protection that the free exercise clause ostensibly was intended to afford the pacifists.136 Again, although this was a possibility, the main effect of this argument is simply to raise a question about why the states submitted two separate provisions to the First Congress–one dealing with religious liberty and the other dealing with exemptions for conscientious objections–and why even before that they had separate provisions in their own constitutions? It seems only reasonable to assume that they did so because they did not believe that (or at least had serious doubts about whether) the principle of religious liberty entails a right to be exempt from serving in the military.
In short, events before and during the First Congress’ discussion of the issue lead inexorably to the conclusion that the framers of the Bill of Rights did not think that the principle of religious liberty entailed a right on the part of conscientious objectors to be exempt from serving in the military– although they did believe that legislatures could grant such exemptions as expressions of compassion. What happened has been well summarized as follows:
The lawmakers were reluctant to appear in the role of religious persecutors . . . . But they were firmly of the opinion that military service was an obligation of every citizen. If some citizens could not fulfil their military obligation because they saw participation in war as inconsistent with the teachings of Jesus, their protest could be dismissed as no more than “a religious persuasion.” The argument for freedom of conscience that the nonresistant sects had presented again and again for more than 50 years was inadmissible. No man had a natural right to live by his *400 conscience. The best he could hope for would be that government would be disposed to tolerate his peculiar opinions. It was a far cry from the liberty of conscience the peaceable sects had enjoyed under William Penn’s Charter.137
Given the facts and arguments presented above, it is no wonder that the Supreme Court has consistently stated, albeit in dicta, that the First Amendment does not give religious conscientious objectors a right to be exempt from bearing arms.138 The historical evidence to support a contrary holding simply does not exist. As Chester Antieau has written, “It cannot be affirmed from the materials now extant that the majority of the Founding Fathers of the Revolutionary generation accepted as of natural right the claim of conscientious objectors to be free from military service.”139 This, however, is the minimal conclusion that can be drawn from the evidence presented in this paper.
The preceding account of what happened in Pennsylvania supports a much stronger conclusion, for the citizens of that state confronted directly and explicitly the question of whether religious liberty gives persons a right to beexempt from having to obey conscription laws. They decided that it does not. The same judgment was reached by the framers of the Bill of Rights. The inescapable conclusion is that at least these two groups–the majority of Pennsylvanians and the majority of the members of the First Congress–rejected the idea that religious liberty or the free exercise of religion gives conscientious objectors a right to be excused from serving in the military. It is not surprising, therefore, that even Donald Giannella, who believes that the free exercise clause was intended to create a general right to religion-based exemptions, admits that denial of special treatment to conscientious objectors probably accords “with the views of the founding fathers.”140
What happened in Pennsylvania, however, leads to an even more far-reaching conclusion, for in debating whether religious liberty gives pacifists a right to be exempt from conscription, Pennsylvanians *401 were forced to debate the general meaning of religious liberty. After all, their colonial charter had a provision designed to protect religious liberty, and in 1776 they adopted a new constitution with a new religious liberty provision.141 In considering the issue of exemptions for conscientious objectors, therefore, Pennsylvanians could not help but discuss the meaning of those provisions and of religious freedom in general, and they interpreted them narrowly as guaranteeing only a right to be free from laws interfering in religious belief and worship. In short, Pennsylvanians rejected the idea that religious liberty entails a general right to religion-based exemptions. Given the fact that “Pennsylvania was, by all accounts, among the two or three most liberal colonies (and later, states) on the subject of religious liberty,”142 the significance of this conclusion can hardly be overstated.
In conclusion, this paper has shown that to the extent that criticism of the Supreme Court’s decision in Oregon v. Smith is based on the assumption that the free exercise clause was originally intended to guarantee a right toreligion-based exemptions and to the extent that that assumption is based on the fact that in early Americaexemptions from conscription laws were given to conscientious objectors, such criticism is misplaced. The mere existence of the exemptions themselves proves nothing, one way or another. More specifically, it cannot be assumed that the exemptions were thought to be rights or that they were given because of the principle of religious liberty. To the contrary, the historical record clearly shows that when the issue was debated by early Americans, they decided that religious liberty does not give conscientious objectors the right to be exempt from serving in the military. If the Smith interpretation of the free exercise clause is going to be seriously challenged, therefore, it will have to be on some grounds other than the treatment of pacifists’ exemption claims in early America.


Professor of Political Science, University of Richmond, Richmond, Virginia
494 US 872 (1990).
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . . ” US Constitution, Amend I.
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).
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 (October 1990).
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).
Employment Division, Oregon v Smith, 494 US 872, 878-79 (1990).
374 US 398 (1963).
Employment Division, Oregon v Smith, 494 US 872, 884-89 (1990). According to Justice Scalia, theSherbert 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.” Douglas W. Kmiec, The Original Understanding of the Free Exercise Clause and Religious Diversity, 59 UMKC L Rev 597 (Spring 1991).
Employment Division, Oregon v Smith, 494 US 872, 890 1990).
For a brief sampling of critical comments, see James E. Wood, 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 (October 1990); In Response: Weighing the Risks, First Things 53-54 (February 1991); and A New Order of Religious Freedom, First Things 13-17 (February 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 (May 16-23, 1990); The Remnants of Free Exercise, in Supreme Court Review 1990, ed G. Casper et al 1-68 (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 (March 1992).
Wood, (cited in note 10, at 675-76).
Church of the Lukumi Babalu Aye, Inc. v City of Hialeah, 113 S Ct 2217 (1993).
Freedom of worship bill signed into law, Richmond Times-Dispatch, November 17, 1993, p A2.
Religious Freedom Restoration Act of 1993, Pub L No 103-141, sec 3, 107 Stat 1488 (1993).
For arguments against the Act, see Phillip H. Harris, Leaping Headfirst Into the Smith Trap, First Things 37-39 (February 1991), and Mark E. Chopko, et al, How To Restore Religious Freedom: A Debate, First Things 37-48 (April 1992).
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); Stephen Pepper, Conflicting Paradigms of Religious Freedom: Liberty Versus Equality, BYU L Rev 12-13 (1993); and Kmiec (cited in note 8, at 597).
Laycock, The Supreme Court’s Assault on Free Exercise . . . , (cited in note 10, at 112) (emphasis in original).
Laycock, The Remnants of Free Exercise, (cited in note 10, at 3).
Religious Liberty, Nonestablishment, and Doctrinal Development: Part 1. The Religious Liberty Guarantee, 80 Harv L Rev 1388 (May 1967).
Harrop A. Freeman, A Remonstrance for Conscience, 106 U Pa Law Review 813 (April 1958).
See Paul K. Conkin, Freedom: Past Meanings and Present Prospects, in Freedom in America: A 200-Year Perspective, N. A. Graebner, 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 William Lee Miller, The First Liberty: Religion and the American Republic 122-23 (Alfred Knopf, 1986).
See Thomas J. Curry, 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); Thomas E. Buckley, Church and State in Revolutionary Virginia, 1776-1787 22, 115 (University Press of Virginia, 1977); and M. Paulson, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L Rev 312-26 (1986).
William P. Marshall, The Case Against the Constitutionally Compelled Free Exercise Exemption, 7 J Law & Relig 379-83 (1989).
See Michael Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment 28, 35-40 (American Enterprise Institute, 1978); Walter Berns, The First Amendment and the Future of American Democracy 35-55 (Basic Books, 1976); Richard Morgan, The Supreme Court and Religion 23 (Free Press, 1972); Ellis West, The Case Against a Right to Religion-BasedExemptions, 4 Notre Dame J Law, Ethics & Pub Pol’y, 623-33 (1990); Gerard V. Bradley,Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L Rev 245-319 (Winter 1991); and Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo Wash L Rev 915-48 (April 1992).
The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv L Rev 1410-1517 (May 1990).
Id at 1415 (emphasis added).
Free Exercise Revisionism and the Smith Decision, 57 U Chi L Rev 1119 (Summer 1990).
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 Oscar Handlin, The Bill of Rights in Its Context, 62 The American Scholar 177-78 (Spring 1993).
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 framingmost 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.
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 theSmith 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-basedexemptions. 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).
McConnell, The Origins and Historical Understanding . . . , (cited in note 25, at 1466) (“the issue ofexemptions 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.”)
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 David Flaherty, “Law and the Enforcement of Morals in Early America,” inAmerican Law and the Constitutional Order: Historical Perspectives, L. M. Friedman and H. N. Scheiber, eds, 69-84 (Harvard University Press, 1978); Morton J. Horwitz, The Transformation of American Law, 1780-1860 1-16 (Harvard University Press, 1977); and Conkin, (cited in note 21, at 208-09).
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).
Marshall, (cited in note 23, at 381).
See, for example, Laurence H. Tribe, 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).
McConnell, The Origins and Historical Understanding . . . (cited in note 25, at 1468).
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).
“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).
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. Richard W. Renner, Conscientious Objection and the Federal Government, 1787-1792, 38 Military Affairs 142 (December 1974).
McConnell, The Origins and Historical Understanding . . . , (cited in note 25, at 1468-69).
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, Richard L. Perry, 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, Francis N. Thorpe, 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).
McConnell, Free Exercise Revisionism . . . ,” (cited in note 27, at 1119).
McConnell, The Origins and Historical Understanding . . . , (cited in note 25, at 1445, 1473, 1510).
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 Theron F. Schlabach, Mennonites, Revivalism, Modernity–1683-1850, 48 Church History 398-415 (Dec 1979).
Francis J. Corklin, Conscientious Objector Provisions: A View in the Light of Torcaso v Watkins, 51 Georgetown LJ 257 (Winter 1963), and Renner, (cited in note 39, at 142).
For examples, see MacMaster, et al, (cited in note 38, at 238, 266).
Robert C. Palmer, Liberties as Constitutional Provisions, 1776-1791, in Liberty and Community 55-56, 64-86 (Oceana Pub, 1987); Alfred H. Kelly et al, The American Constitution: Its Origins and Development 76 (W. W. Norton, 1991, 7th ed); and John P. Reid, The Concept of Liberty in the Age of the American Revolution 4 (University of Chicago Press, 1988).
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.
Id at 1119.
The Origins and Historical Understanding . . . , (cited in note 25, at 1473).
Southern Quakers and Slavery: A Study in Institutional History 145-97 (Johns Hopkins Press, 1896).
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 Kenneth G. Hamilton, John Ettwein and the Moravian Church During the Revolutionary Period 255, 265-66, 283-86 (Times Pub Co, 1940).
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.
Charles A. Lofgren, Compulsory Military Service Under the Constitution: The Original Understanding, 33 Wm & Mary Quar 3rd ser 77-78 (1976); Leon Friedman, Conscription and the Constitution: The Original Understanding, 67 Mich L Rev 1505 (June 1969); and Arthur J. Alexander, Exemption from Military Service in the Old Dominion during the War of the Revolution,53 The Virginia Magazine of History and Biography 155-71 (July 1945). For an example of a provision granting exemptions to anyone, see the provision from the Massachusetts constitution quoted above, in note 41.
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).
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).
McConnell, Free Exercise Revisionism . . . , (cited in note 27, at 1118).
Hamburger, (cited in note 24, at 929).
Church and State in Seventeenth and Eighteenth Century America, 7 J Law & Relig 261, n 1 (1989).
Response of an Amateur Historian and a Religious Citizen, 7 J Law & Relig 424, n 15 (1989).
Peter Brock, Pacifism in the United States: From the Colonial Era to the First World War 199-200 (Princeton University Press, 1968); R. R. Russell, Development of Conscientious Objector Recognition in the United States, 20 Geo Wash L Rev 414 (March 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), Stephen M. Krohn, 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.”
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, Bernard Schwartz, ed, 2:1108 (Chelsea House Pub’s, 1971).
MacMaster et al, Conscience in Crisis, (cited in note 38, at 532).
See Jack D. Marietta, The Reformation of American Quakerism, 1748-1783 222-48 (University of Pennsylvania Press, 1984); J. William Frost, A Perfect Freedom: Religious Liberty in Pennsylvania66-69 (Cambridge University Press, 1990); and MacMaster et al, Conscience in Crisis (cited in note 38, at 222-24, 532-35).
MacMaster, et al, Conscience in Crisis, (cited in note 38, at 222-24).
Sally Schwartz, William Penn and Toleration: Foundations of Colonial Pennsylvania, 50 Pennsylvania History, 291-95 (1983); and Frost, (cited in note 65, at 10-18).
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).
Papers of William Penn, Richard S. Dunn and Mary M. Dunn, eds 4:321, 354-55, 392-93 (University of Pennsylvania Press, 1987).
Frost, (cited in note 65, at 17-18).
Sources of Our Liberties, (cited in note 41, at 256).
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).
MacMaster et al, 27 Conscience in Crisis, (cited in note 38, at 27) (emphasis in original).
Melvin B. Endy, Jr., William Penn and Early Quakerism 325-26 (Princeton University Press, 1973).
Quoted in Sally Schwartz, ”A Mixed Multitude“: The Struggle for Toleration in Colonial Pennsylvania17 (New York University Press, 1987).
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 Henry Portsmouth 2:687, 719-22. 810 (AMS Press, 1974 rep of 1726 edition).
See his “Frame of Government of Pennsylvania” (1682), in Sources of Our Liberties, (cited in note 41, at 218-20).
Free Exercise Revisionism . . . , (cited in note 27, at 1117).
Frost, (cited in note 65, at 21-22, and 170, n 48).
For the general outlines of the debate, see id, at 29-43.
MacMaster et al, Conscience in Crisis, (cited in note 38, at 28-31).
Frost, (cited in note 65, at 34-35).
Id, 36, 38.
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.
For all the arguments of the anti-pacifists, see Frost, (cited in note 65, at 36-38).
Hermann Wellenreuther, The Political Dilemma of the Quakers in Pennsylvania, 1681-1748, 94 Pennsylvania Magazine of History and Biography 140-47 (April 1970), and Frost, (cited in note 65, at 30, 36).
Quoted in Schwartz, A Mixed Multitude, (cited in note 75, at 166, and 164-66).
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).
Frost, (cited in note 65, at 38-39), and MacMaster et al, Conscience in Crisis, (cited in note 38, at 76).
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).
A Dialogue between X, Y, and Z (1755), The Papers of Benjamin Franklin, Leonard W. Labaree, ed, 6:301-03 (Yale University Press, 1963).
MacMaster, Land, Piety, Peoplehood, (cited in note 44, at 247).
Frost, (cited in note 65, at 38-43).
Id at 60-73.
Id at 39, 66, and MacMaster et al, Conscience in Crisis, (cited in note 38, at 213-19, 523-30).
Frost, (cited in note 65, at 34-35).
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.
Id at 39, and MacMaster et al, Conscience in Crisis, (cited in note 38, at 78, 117-20).
Richard K. MacMaster, Neither Whig Nor Tory: The Peace Churches in the American Revolution, 9 Fides et Historia 8 (1977).
Id at 15-17.
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 R. MacMaster, Neither Whig Nor Tory (cited in note 99, at 16).
Marietta, (cited in note 65, at 226).
Quoted in MacMaster et al, Conscience in Crisis, (cited in note 38, at 257. See 256-58 for account of what transpired).
Quoted in id at 263.
See above, notes 87-91 and accompanying text.
Quoted in MacMaster et al, Conscience in Crisis, (cited in note 38, at 263-264).
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 anyRight . . . 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.
Quoted in MacMaster, “Neither Whig Nor Tory,” (cited in note 99, at 17).
Marietta, (cited in note 65, at 226).
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 anycase 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).
Id at 330. See MacMaster, et al, Conscience in Crisis, (cited in note 38, at 224).
Frost, (cited in note 65 at 65).
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).
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.
Id at 293, 523, 529, and Hamilton, (cited in note 53, at 225-317).
Frost, (cited in note 65, at 68).
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).
Frost, (cited in note 65, at 72) (emphasis added).
MacMaster et al, Conscience in Crisis, (cited in note 38, at 531).
Frost, (cited in note 65, at 75).
Warner Mifflin, “Letter to Henry Drinker” (June 27, 1792), in Life and Ancestry of Warner Mifflin,comp Hilda Justice 105 (Ferris & Leach, 1905).
Frost, (cited in note 65, at 74).
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 John B. McMaster and Frederick D. Stone, eds, Pennsylvania and the Federal Constitution, 1787-1788 (480-81) (Da Capo Press, 1970 rep of 1888 ed).
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 . . . , Jonathan Elliot, ed, 3:659. 4:244, and 1:335 (Burt Franklin, 1965 rep of 1888 ed, 5 vols).
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 119-21). 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).
See above, notes 12-64 and accompanying text.
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); Arlin M. Adams and Charles J. Emmerich, 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).
M. Malbin, (cited in note 24, at 39-40, fn 4).
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 rightto be free of military service. Rights of Our Fathers 53-54 (Coiner Pub’s Ltd, 1968).
Annals of Congress 434 (1789).
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, Lillian Schlissel, ed, 49-54 (E. P. Dutton, 1968).
The Origins and Historical Understanding . . . , (cited in note 25, at 1501).
Lofgren (cited in note 55, at 83).
The Origins and Historical Understanding . . . , (cited in note 25, at 1501).
MacMaster et al, Conscience in Crisis (cited in note 38, at 534-35).
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).
Antieau, (cited in note 130, at 53).
Giannella, (cited in note 19, at 1411-12).
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).
Bradley, (cited in note 24, at 277).
10 JLREL 367
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