Drakeman’s Faint-hearted Originalism

Donald Drakeman’s impressive historical research in his new book, The Free Exercise Clause and the Rights of Conscience, poses a formidable challenge to the idea that the original meaning of the Free Exercise Clause mandates religious exemptions from generally applicable laws. He has uncovered important and surprising new evidence of that meaning. This book will pose a sharp test of whether the Supreme Court’s self-styled originalists, who favor such exemptions, actually care about evidence. I’m not a historian and can’t judge Drakeman’s historical account. But I can say something about what courts should do about them, if he is right. They are not sufficient reason to revolutionize our constitutional rules. Drakeman himself shrinks from some of his own conclusions, which give religion even narrower protection than he thinks his research entails. Justice Antonin Scalia famously wrote that “in a crunch I may prove a faint-hearted originalist,” because “[i]n its undiluted form”…

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