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Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court's most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. The historical evidence concerning religious liberty in eighteenth-century America is remarkably rich and consequently can reveal analytical difficulties and solutions to which we should be attentive when formulating our modern constitutional law.
Philip A. Hamburger,
A Constitutional Right of Religious Exemption: An Historical Perspective,
Geo. Wash. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2766
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