Volume 23, 2018
Gary D. Glenn
The Downside of Constitutional "Protection" for Religious Liberty (or, How can Constitutional Protection for Religious Liberty Actually Undermine It?)
This essay explores the forgotten First Congress debate about Madison’s proposed religion amendments. While anti-Federalists had demanded amendments to protect religion and religious liberty, they “feared” that the language proposed by Madison might instead be used “by the people in power . . . to abolish religion altogether”; or at least to be “extremely hurtful to the cause of religion.” There was particular concern about what meaning federal courts might “construe into” this language, particularly the language against “establishment” of religion. The debate aimed at minimizing this problem while still permitting the federal government to assist and promote religion in certain ways (e.g., by exempting those “religiously scrupulous of bearing arms” from having to do so). This “construe into” problem became important in our constitutional law after 1947. Its existence in the first Congress debate suggests this modern development may not be simply a product of progressive jurisprudence.