Stephanie H. Barclay (Georgetown University Law Center) has posted Making Laws for the Human Mind: The Founding, Free Exercise, and Parental Rights after Mahmoud and Mirabelli (Cornell L. Rev., forthcoming) (13 pages) on SSRN. Here is the abstract:
This Article explores a durable principle articulated at the Founding and again in the Supreme Court’s most recent Free Exercise decisions: the state has no authority over the inner religious life of its citizens. At the Founding, James Madison declared that the hope of “making laws for the human mind” had been extinguished in Virginia. Thomas Jefferson grounded religious liberty in the inalienability of opinion itself. John Adams condemned laws that obstructed free inquiry into religious beliefs. Yet some early courts and jurisdictions fell short of upholding this constitutional ideal. The constitutional text had to wait for doctrine to catch up.
This Article argues that West Virginia State Board of Education v. Barnette, Wisconsin v. Yoder, Mahmoud v. Taylor, and Mirabelli v. Bonta form a doctrinal arc that progressively implements the Founding commitment to epistemic liberty. Critically, it brings a new theoretical framework to bear: drawing on the author’s prior work arguing that constitutional rights function as “protected reasons” in the Razian sense, this Article contends that Mahmoud and Mirabelli correctly hold that the government’s desire to change the religious thinking of children is an excluded reason—a purpose the Free Exercise Clause places categorically beyond the state’s reach, regardless of any countervailing interest the government might assert. That conclusion is both doctrinally sound and faithful to important commitments of the Founding generation.
Highly Recommended!
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