Over at the Law and Religion Forum, we are hosting an online symposium on a very interesting article by Professor Vincent Phillip Muñoz, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion.” Muñoz’s basic claim is a historical one about the nature of the Founders’ constitutional commitment to religious freedom: They supported a narrow, but powerful, right of religious free exercise that protected fairly absolutely what were thought to be certain core features of religiosity—such as worship—but that did not protect the panoply of religious “interests” that might be dear to any given constituency.
The first day of teaching undergraduate constitutional law, I (not a lawyer) would take a well-regarded law school casebook, and I would ask a student to find the Dred Scott case in it. It was only referred to. Law schools have practical purposes, so why teach a case that is (mistakenly) regarded as completely irrelevant to contemporary law? Yet, unless one knows what the Reconstruction Amendments were presumably repudiating, how can one know what they stand for?