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60 Geo. Wash. L. Rev. 915 (1991-1992)
Constitutional Right of Religious Exemption: An Historical Perspective

handle is hein.journals/gwlr60 and id is 923 raw text is: A Constitutional Right of Religious
Exemption: An Historical Perspective
Philip A. Hamburger*
Did late eighteenth-century Americans understand the Free Exer-
cise Clause of the United States Constitution to provide individuals
a right of exemption from civil laws to which they had religious ob-
jections? 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 jurispru-
dence.' 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.
The possibility that the Free Exercise Clause was understood in
the late eighteenth century to provide a constitutional right of reli-
gious exemption from civil laws has been examined by relatively few
* B.A. 1979 Princeton University; J.D., 1982 Yale Law School; Professor, Univer-
sity of Connecticut School of Law; Visiting Professor, 1991-92, National Law Center,
The George Washington University. The author gratefully acknowledges the generous
financial support of the Lynde and Harry Bradley Foundation and the helpful sugges-
tions of Richard S. Kay, James Lindgren, Ira C. Lupu, and William P. Marshall.
1. Exemptions were denied in the following cases: Employment Division v. Smith,
494 U.S. 872 (1990); Braunfeld v. Brown, 366 U.S. 599 (1961); Prince v. Massachusetts,
321 U.S. 158 (1944); Hamilton v. Regents of the University of California, 293 U.S. 245
(1934); and Reynolds v. United States, 98 U.S. 145 (1879). Exemptions were created in
Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).
April 1992 Vol. 60 No. 4


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