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Challenging decades of scholarship and Supreme Court jurisprudence, newly discovered historical documents reveal that the First Amendment’s Free Exercise Clause was meant to protect only the freedom to worship, not broader rights of conscience.
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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 To try to find an answer, I searched through a vast array of historical documents that had only recently become accessible thanks to the digitization of libraries and archives.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
Don to Give the Alpheus T. Mason Lecture on Constitutional Law and Political Thought: The Quest for Freedom at Princeton University, Thursday, November 12, 2026
Challenging widely accepted accounts of First Amendment history, 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. That meaning persisted until the middle of the 20th century when Justice William Brennan, the father of the living Constitution, dramatically expanded Free Exercise rights. Originalism icon Justice Antonin Scalia narrowed them three decades ago. Now, most of the justices have said they want to re-expand Free Exercise rights, but they have also been committed to originalism. The lecture will delve into the digital discovery of the documents, explain why the standard accounts have been wrong, and offer thoughts about potential future directions for religious freedom under the Constitution.
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 a book on constitutional theory.
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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 From Breakthrough to Blockbuster: The Business of Biotechnology (Oxford, 2022).
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 Why We Need the Humanities and several articles about the importance of the humanities.
Finally, a family interest in wine has led to two areas of research. One is 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. The other is a series of articles with wine expert and historian Dr. Lisa Drakeman about how the Founders’ interest in wine sheds important light on the Constitution.
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 church-state books has also 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.
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A Free Exercise Surprise, Canopy Forum on the Interactions of Law & Religion (2026)
An Establishment Clause Miracle Story, Law and Religion Forum (2020)
What is the Original Meaning of the Establishment Clause?, Starting Points Journal (2020)
Business Needs the Humanities to Succeed, Law and Liberty (co-author with Kendall Hack) (2020)
The Usefulness of Useless Knowledge, a review, Public Discourse (2016)
The Highly Useful Crisis in the Humanities, The Chronicle of Higher Education (2013)
The Carbon Footprint of Wine Tourism, Science and Wine (co-author with Ya-Yen Sun) (2020)
Books
Recent Articles, Chapters, and Podcasts
"A Free Exercise Surprise," Donald Drakeman, Canopy Forum on the Interactions of Law & Religion, July 15, 2026.
"A Toast to Religious Exemptions," Donald L. Drakeman and Lisa N. Drakeman, Law & Liberty, November 26, 2025.
"The Wine Key to the Constitution," Donald L. Drakeman and Lisa N. Drakeman, Law & Liberty, September 1, 2025.
“Common Pitfalls in drug target Mendelian randomization and how to avoid them,” Dipender Gill, Marie-Joe Dib, Héléne T. Cronjé, Ville Karhunen, Benjamin Woolf, Eloi Gagnon, Iyas Daghlas, Michael Nyberg, Donald Drakeman & Stephen Burgess, British Medical Journal, October 15, 2024
“Jefferson, Wine and the Wall of Separation,” St. John’s Law and Religion Forum Legal Spirits Podcast, Donald Drakeman and Lisa Drakeman, September 30, 2025.
“Forbion: Building Companies that Transform Patients’ Lives,” Nektarios Oraiopoulos and Donald Drakeman, The Case Centre, 2024.
“As a City Upon a Hill,” St. John’s Law and Religion Forum Legal Spirits Podcast, Donald Drakeman, November 19, 2024.
“Framers, Founders and Originalism,” Donald L. Drakeman, Law and Liberty September 13, 2024.
“Where is the Wall of Separation Between Direct and Indirect Taxes?” Law and Liberty, Donald L. Drakeman, August 12, 2024.
"Why Do We Think the Framers Wanted to Separate Church and State?” Donald Drakeman, in Shannon Holzer, ed. The Palgrave Handbook of Religion and State, Volume II: Global Perspectives, Palgrave Macmillan, 2023.
“How Business Schools Can Prepare Students for 21st Century Success by Renewing Their Liberal Arts Roots” in Justin Dyer and Constantine Vassiliou, eds., Liberal Education and Citizenship in a Free Society, Donald L. Drakeman and Kendall Hack, M.B.A., University of Missouri Press, 2023.
“Establishing an Agreement to Disagree about Church and State,” Donald L. Drakeman, Federalist Society Review, December 21, 2023.
“Constitutional Miracles,” Donald Drakeman, Law and Liberty, December 21, 2023.
“Humanizing Business with the Humanities,” Donald Drakeman and Kendall Hack, Times Higher Education, September 23, 2023.
“On Constitutional BS,” Donald Drakeman, Law & Liberty, September 13, 2023.
“What were the Framers’ Views on Natural Law in Constitutional Interpretation?” Donald Drakeman, Starting Points Journal, October 19, 2021.
"Liberal Education and Citizenship in a Self-Governing Republic," Constantine Vassilliou and Donald Drakeman, Starting Points Journal, October 1, 2021.
"Some Second Thoughts About the Humanities" Donald Drakeman, Zygon Journal of Religion & Science, Volume 56.2, June 2021.
“The Double Edged Sword of Wine Tourism: the Economic and Environmental Impacts of Wine Tourism in Australia,” Ya-Yen Sun and Donald Drakeman, Journal of Sustainable Tourism, Volume 29, May 14, 2021.
“The Risk of De-Risking Innovation: Optimal R&D Strategies in Ambiguous Environments,” Donald Drakeman and Nektarios Oraiopoulos, California Management Review, May 18, 2020.
“Measuring the carbon footprint of wine tourism and cellar door sales,” Ya-Yen Sun and Donald Drakeman, Journal of Cleaner Production, Volume 266, September 1, 2020.
“Which Original Meaning of the Establishment Clause is the Right One?” in Breidenbach and Anderson, eds., The Cambridge Companion to the First Amendment and Religious Liberty, Cambridge University Press, 2020.
“Is Corpus Linguistics Better than Flipping a Coin?” Donald Drakeman, Georgetown Law Journal Online, Volume 109, Summer 2020.
“James Wilson,” in Dreisbach and Hall, eds., Great Christian Jurists in American History, Cambridge University Press, 2019.
"Business Needs the Humanities to Succeed," Donald L. Drakeman and Kendall Hack, Law and Liberty, May 25, 2020.