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Michael Paulsen on Justice Scalia's Worst Opinion
Michael Ramsey

At Public Discourse, Michael Paulsen (St. Thomas): Justice Scalia’s Worst Opinion.  He goes with Employment Division v. Smith:

Smith produces a strangely ironic reading of the Free Exercise Clause. According to this view of the Constitution’s protection of the “free exercise” of “religion,” there is nothing constitutionally special about the free exercise of religionReligion is just one other thing that might get in the way of government’s ordinary powers, no different in kind from any other set of beliefs or preferences that might be opposed to government policy. The right to the free exercise of religion is not a substantive freedom.  It confers no constitutional immunity from government interference. The Free Exercise Clause is merely a non-discrimination rule. Government may not set out to target, or discriminate against, religious conduct because it is religious conduct. But if government’s primary aim is some general policy, the fact that government incidentally hits religious conduct presents no special constitutional problem.


Smith’s rule is not completely implausible, but it is wrong. The text of the Free Exercise Clause protects the “free exercise” of religious faith. That rather plainly makes religious freedom a substantive liberty, not a mere nondiscrimination requirement.

The text singles out religion for unique protection. Constitutionally, this means that religious exercise is not a category of conduct to be treated the same way as anything else. In addition to the text itself, there is considerable historical evidence to suggest that this was the original understanding of the Free Exercise Clause. As the distinguished religious liberty scholar Michael McConnell has demonstrated, the framers’ understanding of religious liberty prominently included the idea that such a liberty could, and often would, require exemption from the application of the ordinary laws of the secular state.

My focus is separation of powers and federalism, so my pick is Whitman v. American Trucking  -- among majority opinions, that is; for all opinions, how about the concurrence in the judgment in Gonzales v. Raich?  (I'm open to other nominations ....).

Also forthcoming from Professor Paulsen (with his son Luke Paulsen): The Constitution: An Introduction (Basic Books, May 2015).  Here is the book description from Amazon: 

From war powers to health care, freedom of speech to gun ownership, religious liberty to abortion, practically every aspect of American life is shaped by the Constitution. This vital document, along with its history of political and judicial interpretation, governs our individual lives and the life of our nation. Yet most of us know surprisingly little about the Constitution itself, and are woefully unprepared to think for ourselves about recent developments in its long and storied history.

The Constitution: An Introduction is the definitive modern primer on the US Constitution. Michael Stokes Paulsen, one of the nation’s most provocative and accomplished scholars of the Constitution, and his son Luke Paulsen, a gifted young writer and lay scholar, have combined to write a lively introduction to the supreme law of the United States, covering the Constitution’s history and meaning in clear, accessible terms.

Beginning with the Constitution’s birth in 1787, Paulsen and Paulsen offer a grand tour of its provisions, principles, and interpretation, introducing readers to the characters and controversies that have shaped the Constitution in the 200-plus years since its creation. Along the way, the authors provide correctives to the shallow myths and partial truths that pervade so much popular treatment of the Constitution, from school textbooks to media accounts of today’s controversies, and offer powerful insights into the Constitution’s true meaning.

A lucid and engaging guide, The Constitution: An Introduction provides readers with the tools to think critically and independently about constitutional issues—a skill that is ever more essential to the continued flourishing of American democracy.

(With strong blurbs from, among others, Robert George and Steven Calabresi).