Protecting Religious Freedom in the New Millennium: Should the Religion Clauses of the Constitution be Amended?

Loyola of Los Angeles Law Review 32:1 (November 1998).

The religion clause, or clauses, of the First Amendment have been the source of profound interpretative controversy over the past fifty years or so. Curiously, though, this controversy has taken place within the context of a rather striking consensus, namely, the view that interpretation in this area should be guided by the intentions of the Framers and Ratifiers.

Of course, many people believe that “original intent,” or “original understanding,” should guide constitutional interpretation in all, or virtually all, areas. Justice Antonin Scalia is a champion of this view. Whatever the shortcomings of “originalism,” he argues, it remains the best-if only in the sense of being the least bad-theory of constitutional interpretation. Perhaps it goes without saying, however, that many other jurists and scholars reject-even scoff atoriginalism as a comprehensive theory of constitutional interpretation. The late Justice William J. Brennan, for example, famously derided originalist constitutional interpretation as “arrogance cloaked as humility.”

What I find remarkable, however, is that even people such as Brennan, who reject originalist readings of, for example, the First Amendment’s free speech provision, or the Eighth Amendment’s ban on cruel and unusual punishments, or the Fourteenth Amendment’s guarantees of due process and equal protection, tend nevertheless to embrace originalism when it comes to the religion clauses. They insist that their particular interpretation of the words “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” is correct precisely because it is the interpretation most faithful to the historically recovered intentions of our nation’s founders. They generally do not claim that courts have the authority to revise the religion clauses by way of “creative” interpretation to bring them “up-to-date” or into line with “our” values.

Loyola Marymount University [pdf]