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Now Available from Harvard University Press

Challenging decades of scholarship and Supreme Court jurisprudence, newly discovered historical documents reveal that the First Amendment’s Free Exercise Clause was meant to protect only the freedom to worship, not broader rights of conscience.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.

“A journalist asked where James Madison found the “free exercise of religion” language for the Virginia Declaration of Rights. To try to find an answer, I searched through a vast array of historical documents that had only recently become accessible thanks to the digitization of libraries and archives. I found far more appearances of “free exercise of religion” than I had expected – and a surprising answer to the question of what that phrase meant in the Founding Era. The result of that research project is The Free Exercise Clause and the Rights of Conscience.”

~ Donald Drakeman

A Note from the Author

I am especially interested in scholarly research that can influence real life decision making.

Many of my writings relate to the history of church-state interactions in America, and how competing views of that history have influenced the Supreme Court’s interpretation of the Constitution. That work, in turn, led me to delve more deeply into how judges have interpreted legal documents throughout history, culminating in my most recent book on constitutional theory.

In parallel, much of my career was spent in the biotech industry trying to convert academic research discoveries into new medicines. That has led to an enduring interest in the question of how to maximize the success of the dauntingly difficult process of creating new treatments for life-threatening diseases. I have spent many years evaluating that question from both a practical and an academic perspective, leading ultimately to several FDA approvals and numerous publications — including a book recently published by Oxford University Press.
Viewing academia through a real world lens, and vice versa, has enabled me to see just how often the humanities have played an important, but not entirely visible, role in business, government, law and even science. I set out to shine additional light on some of those connections in a book and several articles about why we need the humanities.
Finally, a family interest in wine has led to a stream of research into what Dr. Ya-Yen Sun of the University of Queensland, Australia, and I have called “The Double-Edged Sword of Wine Tourism,” namely, the balances and trade-offs between the economic returns and environmental impacts of wine tourism that should be considered by the industry and policy makers.
A reasonable question for anyone interested in turning academic research into real world outcomes is, How is that going? The inevitable answer is that it is hard to measure, and always a work in progress. That being said, here are a few early returns:
The Supreme Court of United States has cited my church-state works several times, although a “But, cf.” reference in one case did not necessarily signal full agreement. Perhaps that is balanced, to some extent, by “persuasively argued” in another. One of my other church-state books has been cited by the Supreme Court of the Philippines.
Two of the new medicines developed by the biotech company I founded were recognized in the Nobel Prize for Physiology or Medicine in 2018 for revolutionizing cancer therapy.
The New Jersey Technology Business Tax Certificate Transfer Program, which I devised with two colleagues, has been credited with creating or saving many thousands of medical research jobs in its 20 year history.