KEEPING OUR BALANCE: WHY THE FREE EXERCISE CLAUSE NEEDS TEXT, HISTORY, AND TRADITION

If the Free Exercise Clause is going to "translat[e]" its guarantees "into concrete restraints" over time, then it needs text, history, and tradition. Applying that approach would resolve the morass created by Smith's unrestrained inquiries into "neutrality" and &q...

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Bibliographic Details
Published inHarvard journal of law and public policy Vol. 46; no. 2; pp. 419 - 456
Main Author Haun, William J
Format Journal Article
LanguageEnglish
Published Cambridge Harvard Society for Law and Public Policy, Inc 22.03.2023
Harvard Society for Law and Public Policy
Subjects
Analysis
Constitutional law
Criticism, Textual
Freedom of religion
Freedom of speech
History
Influence
Interpreters
Judicial restraint
Jurisprudence
Laws, regulations and rules
Legal history
Religious organizations
Semantics
Tradition (Philosophy)
Traditions
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Summary:If the Free Exercise Clause is going to "translat[e]" its guarantees "into concrete restraints" over time, then it needs text, history, and tradition. Applying that approach would resolve the morass created by Smith's unrestrained inquiries into "neutrality" and "general applicability." Further, adopting text, history, and tradition would bring the Free Exercise Clause into line with the rest of Religion Clause jurisprudence, and the growing use of text, history, and tradition throughout constitutional law. Finally, and as important, by accounting for the people's longstanding practices toward religious accommodation, the Free Exercise Clause would be neither a "living" text nor a "dead" letter. Rather, it would be as it should: an enduring guarantee.
ISSN:0193-4872
2374-6572