Day: November 26, 2025

This is the time of year when we traditionally recognize America’s New England founders for something they didn’t invent—Thanksgiving—and not something they did—religious exemptions. Today we will celebrate both.

Since both have generated constitutional controversies, we will explain how a little wine knowledge can shed light on the meaning of the First Amendment while pairing perfectly with your Thanksgiving dinner.

Religious Exemptions

Let’s start with America’s first official religious exemption. That is, eliminating penalties for a religiously motivated act that would apply to the same act done for any other reason. The exemption related specifically to wine, and it happened in 1636, just half a dozen years after the first Puritan ship from the pioneering Winthrop fleet made landfall in Salem, Massachusetts.

“Puritanical” is a word we sometimes use to describe prohibitionists and teetotalers, but the actual Puritans were quite partial to wine. John Winthrop’s ship, the Arbella, carried more than 10,000 gallons of wine to sustain the Puritans in their new home.

A mere 10,000 gallons didn’t last long, and later ships brought so much more that the Massachusetts Bay government put an 18 percent tax on all imported wine. Retailers paid even more and had to get a license allowing them to sell either white wine or “claret”—that is, a red wine from the Bordeaux region of France.

The goal of the import taxes was to minimize what the governing body called the “immoderate expense” of importing “provisions brought from beyond the seas.” Incidentally, the Puritan leaders kept their eyes on immoderate consumption as well. Like the fictional Hester Prynne and her famous scarlet “A,” real-life Massachusetts Bay drunks would be sentenced to wearing a “D.” (Historians usually credit Harvard’s 1865 baseball team with the invention, but it is possible that “letter sweaters” were seen at America’s oldest university over two centuries earlier.)

The 1636 import tax—or what today we might call a tariff—included the first recorded religious exemption in American history. The law said that there would be no tax on any wine bought by the deacons for “the churches’ public use.” Perhaps concerned that the deacons might tack on a few gallons for themselves, the governing body insisted that the “public use” had to be “bona fide.”

Today, nearly 400 years later, justices, scholars, and religious liberty advocates are vigorously debating the question of religious exemptions. In brief, proponents argue that the constitutional right to the free exercise of religion means that judges should grant conscience-based exemptions even if legislatures have not done so. Opponents counter that the Free Exercise Clause does not empower judges to distribute “get out of jail free cards” to religious lawbreakers.

What does the Constitution require? Over the last 60 years, the Supreme Court has flip-flopped on this issue. In the 1963 Sherbert v. Verner case, Justice Brennan’s majority opinion launched an exemption-friendly era. The case involved a member of the Seventh Day Adventists who sought unemployment compensation after being fired from a job that required Saturday work, which she refused to do on the grounds that it was the Sabbath.

Justice Brennan’s opinion said that having to “choose between following the precepts of her religion and forfeiting benefits … [or] abandoning one of the precepts of her religion in order to accept work” is putting “the same kind of burden on the free exercise of religion as would a fine [on attending] Saturday worship.”

The Sherbert case then established that such laws would need to satisfy the rigorous compelling state interest test that the Court had been developing in connection with other individual rights cases. Subsequently, in Thomas v. Review Bd. (1981), the court would summarize the test for when the Court would grant an exemption as follows: “The state may justify an inroad on religious liberty [only] by showing that it is the least restrictive means of achieving some compelling state interest.”

Then in the 1990 Employment Division v. Smith case, the Court abandoned the Sherbert approach, with Justice Scalia asserting that the Court had “never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”That made judicially granted exemptions much harder to get. Today, the justices seem primed to reconsider Smith, but haven’t yet said what would replace it.

In deciding these kinds of constitutional cases, the Supreme Court has made it clear that it will focus on the lessons of history and tradition. For religious exemptions, that history starts in 1636 Massachusetts Bay.

The record over the following 350 years or so shows that exemptions from statutory duties would remain in the domain of legislatures. For example, eighteenth-century Massachusetts lawmakers exempted some, but not all, dissenters from the religious taxes that had begun over a century before. Throughout the nineteenth century, some state laws prohibiting business activities on Sunday exempted religious groups that recognized Saturday as the Sabbath, while other states chose to exempt taverns or railroads but not those who worshiped on Saturday.

If lawmakers failed to include religious exemptions, courts were reluctant to do so. As one judge explained, if people think “the law operates harshly, as laws sometimes do, the remedy is in the hands of the legislature.” Another judge emphasized the point by paraphrasing St. Paul in Romans 13: everyone must “obey the powers that be.”

On relatively rare occasions, courts would add a religious exemption to a judge-made common law doctrine, as in New York, where Catholic priests, but not Protestant ministers, could refuse to testify about what they heard during confessions. The constitutional protection for worship covered the sacraments, and the court pointed out that confession is only a sacrament in the Catholic Church. Protestants had to get an exemption from the legislature.

In short, people asking courts for conscience-based exemptions from statutory requirements would need to wait until the Supreme Court began doing so in the middle of the twentieth century. (For more along these lines, one of us has a book on the Free Exercise Clause coming out next year.)

But they were much more successful in the legislatures. From the time the Puritans settled in Massachusetts Bay, both state and federal legislatures would regularly grant religious exemptions. Perhaps the best-known one appears in the Volstead Act. That law implemented the Eighteenth Amendment’s national commitment to Prohibition. In adopting the Volstead Act, Congress followed the Puritans’ precedent and specifically included an exemption for wine used for “sacramental purposes.”

The Volstead Act’s ban on alcoholic beverages would end up putting many American wineries out of business. But somebody had to make sacramental wine. And so, one California winemaker paradoxically became a major beneficiary of Prohibition. Wine production at Napa’s Beaulieu Vineyards grew by an impressive 400 percent during Prohibition.

Beaulieu’s founder had previously developed a good relationship with the Roman Catholic Archbishop of San Francisco. That led to Beaulieu being named the first national wine distributor to the Catholic Church in America. In that capacity, Beaulieu supplied many parishes with the officially exempted sacramental wine.

It seems that the sacraments were enthusiastically observed during Prohibition. In the first two years, overall sales of sacramental wine in the United States increased by nearly fifty percent. Beaulieu thrived, and, after Prohibition, it expanded even further. Beaulieu has become one of America’s best-known wine producers, and the White House has served its wines numerous times. Especially for fans of religious exemptions, it may be an ideal wine for Thanksgiving dinner.

Thanksgiving

Many Americans continue to be thankful that Prohibition ended long ago. That brings us to our national day for giving thanks, along with some recommendations for wines to pair with Thanksgiving dinner.

But, first, in our dedication to the Constitution, shouldn’t we ask whether Thanksgiving is unconstitutional? After all, Thomas Jefferson’s celebrated “wall of separation between church and state” letter was written to explain why he didn’t believe that the president could issue religious proclamations, as Daniel Dreisbach has pointed out.

That notion of a wall of separation has not stopped virtually every president from calling for a National Day of Thanksgiving, however. Congress eventually made Thanksgiving an official federal holiday in 1941. At the time, FDR released a proclamation saying, “At the gathering of the harvest, we solemnly express our dependence upon Almighty God.” He asked that “every American in his own way lift his voice to heaven.”

FDR cited the precedent of George Washington’s declaration of a day of prayer and thanksgiving. Looking back even further, we frequently mention our New England founders in recounting Thanksgiving’s origin story. But the history and tradition of official thanksgivings go back well before that.

Governmental calls for the people to give thanks to God (or the gods) during the harvest season date at least to the Roman empire (and before that, to Sukkot, whose origins are at least a millennium earlier). Anyone who has read Greek and Roman mythology can appreciate just how much influence the gods could have on human affairs. One important way of staying on their good side was to make sure everyone said thanks in an appropriate way.

During festivals like Vinalia, which celebrated the wine harvest, Romans were expected to offer libations of wine to Jupiter, who had made those abundant harvests possible. As Ovid wrote,

“Autumn came, dyed with the trodden grapes:
The wine, justly owed to Jupiter, was paid.”

It is hard to think of a longer history or more enduring tradition than official days set aside for thanking the heavenly kingdom during the harvest season. To honor that tradition, we might consider raising a glass of wine made from the Muscat grape, which was so prevalent in the ancient Mediterranean that it was certain to have been one of the libations to Jupiter—or, as John’s gospel recounts, could well have been the wine that miraculously didn’t run out at the wedding in Cana. We will suggest a good one.

Further north, Bordeaux vines were already producing wine in Roman Gaul. Vinalia there undoubtedly included ancient versions of the claret to which the Puritans were partial. As for the Pilgrims, who are usually credited with America’s first Thanksgiving, they most likely drank beer and cider that day even though the Mayflower itself had spent many years as a merchant ship carrying French wines to England.

Thanksgiving Wine Suggestions

With an eye towards the distinguished history of both religious exemptions and Thanksgiving, here are a few constitutionally appropriate wine pairings for your Thanksgiving table.

For a Puritan-like experience, try a modern equivalent of Bordeaux “Clairet,” the forerunner of today’s claret. When the Puritans decreed a religious exemption for the churches’ claret, it wasn’t for Bordeaux’s famously deep, rich reds. Early seventeenth-century Bordeaux was made with minimal grape skin contact, resulting in a clear pink wine resembling today’s rosé. Over time, the French term clairet, meaning “clear,” morphed into claret, which would continue to stand for Bordeaux reds, even when they became the dark tannic wines typical of modern Bordeaux.

Smith Haut Lafitte: Les Hauts de Smith Rosé (limited production), $24

The Chateau’s first vineyard deeds originate in the fourteenth century, so it possible that the Puritans enjoyed wines from this ancient estate. Chateau Smith Haut Lafitte is situated in the famous region of Pessac-Léognan, in the southern portion of Bordeaux. The area is covered in gravel, leading to the larger region’s name, Graves.

A reasonably close approximation of the Puritans’ claret, this wonderful rosé will blend well with everything on your Thanksgiving menu. If you can find it, it’s only about $24. If you can’t, consider:

French Blue: Bordeaux Rosé, $20

A marriage of American winemaking talent and French terroir results in this deliciously fruity rosé. Lots of red fruit flavors and good acidity will complement your meal. It is a blend of two traditional Bordeaux grapes, Cabernet Franc and Merlot.

Or you could have a more “puritanical” Thanksgiving with a Prohibition favorite:

Beaulieu Vineyard: BV Napa Valley Cabernet Sauvignon, $40

During the 1920’s, Beaulieu rebranded itself as “The House of Altar Wines.” With government permits obtained prior to Prohibition, Beaulieu shipped their products in barrels marked “FLOUR” to protect them from Prohibition zealots.

Sourced from some of Napa’s most famous vineyard regions, BV Cabernet Sauvignon isn’t just for communion anymore. It’s a ripe wine with soft tannins that will round out your Thanksgiving feast. It would also be especially good with hard cheese.

When it comes to dessert, the Romans recommend:

Domaine de Durban: Muscat de Beaumes de Venise, $30

The Muscat Blanc a Petits Grains grape has been vinified since ancient times in the Mediterranean. The venerable Domain de Durban, in the Southern Rhone, features Roman ruins and boasts an impressive winemaking pedigree. Pliny the Elder (CE 23–79), Roman scholar and naturalist, praised the wines from this site. This Muscat was undoubtedly offered as a libation to the Roman gods.

Enjoy its light and pleasantly sweet flavor with pumpkin or apple pie.

Happy Thanksgiving!

John McGinnis’s lead forum essay is characteristically intelligent, scrupulous, and concise. He reads the judicial tea leaves, discerning the Roberts Court’s priorities when it comes to undoing some of the institutional distortions that previous Courts have countenanced, and offering a path to reinstate a more robust nondelegation doctrine as the central element of constitutional renewal.

I write here not to quibble with McGinnis’s main argument, with which I am in general agreement, but to raise a question about an issue he mentions only in passing—though I think it is more relevant to the nondelegation issue than that reference suggests. And while his general approach is legal in nature, mine is more institutional and political.

McGinnis brings up the Court’s expansive commerce clause jurisprudence only by way of an analogy to the possibility that the Court, in reasserting “the Constitution’s design for executive and judicial powers,” could be “inviting … chaos.” He notes that widespread reliance on the expansion of federal power has long been seen as a reason not to overrule past precedents that have expanded the scope of the commerce clause, even if one believes they ballooned federal power well beyond what is authorized by the Constitution’s text. The horizontal, separation-of-powers problems under consideration, he believes, do not run into this issue, or can be addressed in a way that avoids it.

McGinnis does not say anything more one way or the other on the commerce clause or the expansion of federal power more generally, so I do not impute to him any particular viewpoint. I will only suggest that there is a close and domino-like connection between these three problems: 1) the erosion of strict limits on federal power, 2) the delegation of power from the legislature to the executive, and 3) the empowerment within the executive of unaccountable bureaucratic agencies. McGinnis rightly notes that the Roberts Court seems most interested in and has had the most success with #3; that it has at least some interest in #2, though just how far it is willing to go remains in question; and that it seems mostly uninterested in #1 beyond symbolic gestures. I would caution, however, that those latter two problems are dominoes that fell for good reasons once the first problem became entrenched and generally accepted.

Therefore, any attempt to revive the Constitution’s separation of powers framework without doing something about its federalism framework may only cause new problems.

To make a brief digression, I will call on James Madison to set the table conceptually. One of the most unjustly neglected of the Federalist essays is, I believe, number 56, which considers whether the overall size of the House of Representatives is adequate to make it properly representative of the people’s interests. One of his premises is relevant to the present discussion:

It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority.

He then goes on to note the relatively few and defined “circumstances and interests” that federal authority addressed—namely, interstate commerce, taxation, and the militia. A relatively small handful of representatives will be perfectly capable of possessing a sympathy of interests and the “local knowledge” necessary to make policies in those areas.

Similarly, in number 14, Madison reminds his readers that the federal government’s

jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity.

He then goes on to note that “were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection” (emphasis added)—namely, their objection that the new Congress would be unable to adequately account for the interests of its people.

Fast-forward 230 years or so, and the landscape of policymaking is radically different, but Madison’s basic premise is still relevant. There is a certain amount of specialized knowledge that is necessary to make any given policy. When we are talking about an extremely large and diverse country, it may still be possible to make policy in a republican fashion by representatives, but only if the policies are broad and limited in scope. If that same government were to be a general-purpose regulator of all aspects of common life, genuine republican self-government would no longer be possible.

One of the most common arguments in favor of delegation is that Congress does not possess the requisite knowledge and expertise to make good policy. Accordingly, it hands that duty off to those who do. To be sure, the kind of “knowledge” and “expertise” that we talk about today isn’t exactly what Madison had in mind, but his basic point still holds. Advocates of delegation are right that members of Congress don’t really have the requisite knowledge to make detailed policy choices on every conceivable social question. Where they go wrong is thinking that the solution is to send that power to “experts” in the appropriate bureau with scientific knowledge as their guide, rather than sending that power back to localities and states with local and circumstantial knowledge as their guide.

Moreover, as federal authority has expanded, so has the public expectation that the federal government will solve a variety of social ills that it never had the capacity to address properly. This almost certainly contributes in some way to the declining trust in federal institutions, of which Congress has long been the prime example.

If the Court is successful in pushing real policy choices back to Congress, as McGinnis hopes, we are likely to relearn the lesson that, given the current scope of federal regulatory power, the institution is incapable of making such choices—at least of making them well. If our reforms stop at the horizontal plane of nondelegation, it may simply result in a greater crisis of congressional legitimacy as it inevitably fails in its expected role. That may prompt an even stronger push for rule by executive, a practice that seems to have growing bipartisan support. Perhaps the Court would stand fast in resistance to the backlash, striking down “phone-and-pen” governance. But it may cave; or its justices may be replaced; or it may be ignored. That last possibility is a prospect that might not be too far off, given just how executive-centered our political system is becoming.

To avoid that fate, the Court would need to take the next step of the constitutional restoration project: the vertical balance. That would be a much more difficult prospect. Americans now look to Washington, DC, not only for policy but for their identity as citizens; the most powerful interests in the country all have a vested interest in having a single hub of authority to which they can send their lawyers and lobbyists; our economic system is built around there being one set of rules pronounced from DC; and both major political parties have built messages and coalitions around national visions that given them every reason to resist an erosion of federal power.

If all this is correct, it would raise two important questions. First, could McGinnis and Rappaport’s “prospective overruling” work for the commerce clause, too? Could it make decentralization palatable enough to prevent massive resistance? Second, does the current iteration of the Roberts Court have any more inclination to pursue this path than the 2012 version, when Roberts himself went out of his way in NFIB v. Sebelius to ensure that some rationale would be found to uphold federal regulation, even when the commerce clause fails?

In theory, I don’t see why prospective overruling could not be applied to questions about the scope of federal power. Just as McGinnis describes its delegation questions, it could allow past pieces of legislation that have generated sufficient reliance interests to stand as a matter of precedent, while still making clear that they are unconstitutional on the merits, and thus rob them of precedential import. Nevertheless, prospective overruling would likely create an extremely awkward and rigidified regulatory environment in which outdated federal rules would still apply, without any ability to update them. And it would raise the question as to whether such grandfathered-in rules would perpetually preempt state and local attempts to update them.

Which is to say that prospective overruling of commerce clause precedents would likely be an extremely difficult prospect—maybe not even any easier than the “chaos” that outright overruling would invite. John Roberts has already shown his disinclination to pursue the difficult path. Will the other originalist justices be willing to take on such a radical agenda?

Any attempt to resolve the structural distortions of our constitution, however, without addressing the expansive commerce clause, may be like attempting to flatten a water balloon—squeeze in one spot, and you will only cause a flare-up somewhere else. The only way to succeed is to choose a painful route: poke a hole and let the water out.