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11/08/2019

New Book: "The Free Exercise of Religion in America" by Ellis West
Michael Ramsey

Recently published, by Ellis M. West (Richmond, Political Science): The Free Exercise of Religion in America: Its Original Constitutional Meaning (Palgrave Macmillan, 2019).  Here is the book description from Amazon:

This book explains the original meaning of the two religion clauses of the First Amendment: “Congress shall make no law [1] respecting an establishment of religion or [2] prohibiting the free exercise thereof.” As the book shows, both clauses were intended to protect the free exercise of religion or religious freedom.  West shows the position taken by early Americans on four issues: (1) the general meaning of the “free exercise of religion,” including whether it is different from the meaning of “no establishment of religion”; (2) whether the free exercise of religion may be intentionally and directly limited, and if so, under what circumstances; (3) whether laws regulating temporal matters that also have a religious sanction violate the free exercise of religion; and (4) whether the free exercise of religion gives persons a right to be exempt from obeying valid civil laws that unintentionally and indirectly make it difficult or impossible to practice their religion in some way. A definitive work on the subject and a major contribution to the field of constitutional law and history, this volume is key to a better understanding of the ongoing constitutional adjudication based on the religion clauses of the First Amendment.

Via this brief and generally positive book review posted on SSRN by Richard Garnett (Notre Dame), at Review of Politics 82 (2019), 1-3.  Professor Garnett concludes in part:

West’s study is, notwithstanding its above-mentioned long gestation, timely, in part because there are reasons to believe that more than a few, and perhaps a majority, of the current Supreme Court are open to reconsidering the 1990 ruling in Employment Division v. Smith, which announced a rule that is consistent with West’s conclusions: Generally speaking, although legislative exemptions from general laws for religious objectors are constitutionally permissible and, in many cases, morally warranted, the Free Exercise Clause does not require, or even authorize, judges to create them. Of course, the Smith ruling was criticized and controversial from the outset, and Congress and state legislatures alike responded to it with statutory exemption-creation regimes such as the 1993 Religious Freedom Restoration Act. Some of Smith’s leading scholarly critics insist, contra Prof. West, that the case’s rule is inconsistent with the First Amendment’s original meaning. Others emphasize the facts that, regardless of public understanding or expectations in 1791 (or, perhaps, in 1868, when the Fourteenth Amendment was ratified), the dramatic increases in both religious diversity and government regulations require a constitutional role that provides greater protection for vulnerable minorities from political majorities. And, still others warn that, for a variety of reasons – the weakening of and loss of confidence in religious institutions, the much-remarked “rise of the nones” and general secularization, the increasing salience of “culture war”-related conflicts between the religious commitments of some and others’ understandings of equality’s demands, etc. – it can no longer be taken for granted that American officials, administrators, regulators, and citizens assign foundational importance to religious freedom and its demands.