The Legal Theory Bookworm recommends The Free Exercise Clause and the Rights of Conscience by Donald L. Drakeman. Here is a description:
Challenging decades of scholarship and Supreme Court jurisprudence, newly discovered historical documents reveal that the First Amendment’s Free Exercise Clause was meant to protect only the freedom to worship, not broader rights of conscience.
The First Amendment proclaims that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This language has been taken to provide sweeping constitutional protection for the freedom of belief and the freedom to act on one’s beliefs, underpinning conscience-based claims by people seeking to avoid military service, mandatory schooling for their children, or being required to work on the Sabbath. Recently, religious traditionalists have appealed to the Free Exercise Clause to seek exemptions from laws connected with abortion, contraception, and same-sex marriage.
In The Free Exercise Clause and the Rights of Conscience, Donald Drakeman demonstrates that such readings of the First Amendment are dramatically overbroad. Numerous newly available sources clearly show that when the Bill of Rights was ratified, Americans understood “free exercise of religion” as a well-established term of art referring solely to the ability to hold public worship services. That meaning remained unchanged well into the twentieth century. Time and again, when believers asked the courts for conscience-based exemptions from statutes, judges turned them down, telling them to address the legislature instead. It was only in the mid-twentieth century that the Supreme Court radically reimagined the Free Exercise Clause, granting religious exemptions from statutory duties for the first time in American history.
As a result, today’s Free Exercise Clause bears little resemblance to that of the framers and the American tradition of religious liberty. Given the current Supreme Court’s heavy emphasis on original meaning and tradition when interpreting the Constitution, Drakeman’s discovery could have significant implications for the future of conscience-based exemptions and the First Amendment itself.
And from the reviews:
“This book is courageous and compelling. Recognizing that does not make its implications any less difficult, even for those of us who do not subscribe to a strict originalist approach to constitutional interpretation.”—Whittney Barth, Canopy Forum
“Donald Drakeman proposes a shockingly original thesis about the original meaning of the First Amendment: that ‘free exercise of religion’ referred solely to the ability to hold public worship services. If Drakeman is right, almost everyone else is wrong, including a majority of the current US Supreme Court. The Free Exercise Clause and the Rights of Conscience is meticulously researched, clearly written, and powerfully argued. This book must be read—and its arguments must be addressed—by all church-state scholars, lawyers, and judges who seek to understand and accurately interpret the First Amendment.”—Vincent Phillip Muñoz, author of Religious Liberty and the American Founding
“This highly original book poses a seismic challenge to constitutional originalists who champion sweeping free exercise rights today. Adducing an array of freshly discovered sources, leading constitutional historian Donald Drakeman argues that the original state and federal free exercise clauses protected freedom of religious worship alone, rather than granting religious litigants judicial exemptions from general laws. The modern Supreme Court’s expansive exemption regime might be a boon for religious freedom, but it cannot be defended on the originalist constitutional logic that the majority of justices profess. The court must either abandon its originalism or shrink its free exercise law, leaving most religious freedom protections to legislatures and state courts as the First Amendment’s drafters had intended. Drakeman’s fact-driven, quietly argued text is free from ideological axe-grinding or grandstanding, but both the Right and the Left will take it as a thundering cri de coeur.”—John Witte Jr., coauthor of Religion and the American Constitutional Experiment
“No scholar in recent years has been more diligent than Donald Drakeman in reexamining historical records and challenging long-settled interpretations of the First Amendment’s religion provisions. Drawing on a trove of new documentary evidence, his latest book once again sparks fresh insights and compels a reconsideration of historical understandings of the constitutional phrase ‘the free exercise of religion.’ This is indispensable reading for students of the original meaning of the First Amendment.”—Daniel L. Dreisbach, author of Thomas Jefferson and the Wall of Separation Between Church and State
“Donald Drakeman’s work poses a formidable challenge to the idea that the original meaning of the Free Exercise Clause mandates religious exemptions from generally applicable laws. His impressive historical research has uncovered important and surprising new evidence regarding that meaning. This book will offer a sharp test of whether the Supreme Court’s self-styled originalists, who favor such religious exemptions, actually care about evidence.”—Andrew Koppelman, author of Defending American Religious Neutrality
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