Robert George, "Protecting Religious Liberty in the Next Millennium: Should we Amend the Religion Clauses of the Constitution?"
I. Issue: The religion clauses need to be reexamined, perhaps even redefined.
Even those who reject originalism, tend to embrace it when it comes to the religion clauses. Yet for a school of jurisprudence that is so often looked to, it is not being followed.
George agrees that the proper approach to interpreting the religion clauses is "originalist", "however, a good argument can be made... that once the meaning of the clauses is recovered, it is evident that our constitutional law of religion is in need of reconsideration and, in atleast some respects, revision".
II. True context of the Free Exercise Clause.
"Properly interpreted, the "Free Exercise Clause" simply does not vest broad discretion or policy-making authority in the hands of judges by authorizing them to decide whether neutral, general laws are supported by a "compelling interest," or advance an interest by the "least restrictive means".
The Free Exercise Clause, in its original form, does not require that the States prove the satisfaction of strict scrutiny. The court came under attack in cases like Smith from both the left and right, but this stance was true to the clause's original meaning because it left the question of exemption to be defined by moral majorities.
George also makes it clear that he feels decisions on exemption for Free Exercise should be made by elected officials, not distant judges whose own opinion become constitutional fiat. He says, "Rather, the task is one for a free and self-governing people, deliberating and deciding the matter in their sovereign capacity, as the ultimate human sources of constitutional principles".
III. Analysis of the Establishment Clause
The requirement of government to respect all types of religion is a sacred rule. But the establishment clause sates only "congress shall make no law respecting an establishment of religion". The historical context of the phrase, in that its intent was to bar the federal government from creating a national church and to protect existing state churches, no longer exist. This being so, the establishment clause is effectively irrelevant. Instead of preventing establishments, it actually protected them.
The debate today is foreign from the purpose of the clause as its inception; the school of "strict separation and non-preferentialism are directions that originate from judicial interpretations and are not constitutional interpretations at all.
IV. Need for Amending the Clauses
Of course George agrees that established churches are contrary to the American experience. But because this very fact, namely that there is universal agreement that an established church would be unacceptable, the Establishment Clause offers little in the way of guidance. This is something we already know, the rule is assumed, so why don't we establish some rules so the judges don't just act of their own will.
"At minimum, the Constitution should be amended to ratify what has become the status quo: judges should be more or less explicitly granted authority to settle questions regarding the relationship of religion and public life according to their best light".
V. Significance: George stands inline with perfectionists like Bork, the sphere required by liberty and the sphere required by equality are defined by judgment and prudence of political morality. Political morality reflects the will of the people and context, not arbitrary judges.