21 Originalists should engage with this history: they should either explain why countervailing concerns overcome the original constitutional meaning or adopt a view of First Amendment jurisprudence that aligns with the original understanding. Although an abundance of evidence - constitutions and statutes, trial and appellate cases, scholarly and popular commentary - indicates that anti-blasphemy laws are constitutional under the First Amendment’s original meaning, originalist writers tend to ignore this issue. And Part III illustrates that constitutional commitment to nonestablishment posed no barrier to punishing blasphemy. Part II explains how the public conceived of free speech in a way that excluded blasphemy from constitutional protection. Part I shows that Americans from the Founding through Reconstruction understood free religious exercise as permitting the proscription of blasphemy. In other words, the original public meaning of the First Amendment, whether in 1791 or in 1868, 20 allowed for criminalizing blasphemy. This Note argues that none of the constitutional clauses currently thought to make anti-blasphemy laws unconstitutional - Free Exercise, Free Speech, Establishment - originally prohibited blasphemy prosecutions. 16 Present-day scholars often assume that anti-blasphemy laws are unconstitutional, 17 celebrating the absence of such laws as a core First Amendment principle, 18 though treatise writers, noting the limited authority supporting the laws’ invalidity, tend to be more circumspect. 15 Most recently, a federal district court invalidated a state blasphemy statute under the Free Speech Clause and the Establishment Clause. 13 And although two state appellate courts sustained blasphemy proscriptions after Burstyn, 14 a third struck down a state anti-blasphemy law under the First Amendment’s Religion Clauses. 11 Burstyn did not directly hold anti-blasphemy laws unconstitutional, 12 but its obiter dicta gave aid and comfort to the laws’ enemies. Supreme Court invoked the Free Speech Clause to invalidate a prior restraint on “sacrilegious” films. Only in the postwar period did the doctrine promulgated by appellate courts begin to shift. 8 Even on the eve of American entry into World War II, the Tenth Circuit upheld an anti-blasphemy ordinance against a facial First Amendment challenge. Supreme Court still assumed that the First Amendment did not “permit the publication of . . . blasphemous . . . articles.” 7 And in 1921 the Maine Supreme Judicial Court affirmed a blasphemy conviction under the state’s First Amendment analogue. 6 At the close of the nineteenth century, the U.S. 4 Looking to this precedent, nineteenth-century American appellate courts consistently upheld proscriptions on blasphemy, 5 drawing a line between punishable blasphemy and protected religious speech. Constitutional liberty entailed a right to articulate views on religion, but not a right to commit blasphemy 1 - the offense of “maliciously reviling God,” which encompassed “profane ridicule of Christ.” 2 The English common law had punished blasphemy as a crime, 3 while excluding “disputes between learned men upon particular controverted points” from the scope of criminal blasphemy. Until well into the twentieth century, American law recognized blasphemy as proscribable speech.
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