540
Scalia, J., concurring in part
tranquility; that quiet, order and security which is guaranteed by the laws; as, to keep the peace; to break the peace." 2 An American Dictionary of the English Language 31 (1828).1 This limitation upon the scope of religious exercise would have been in accord with the background political philosophy of the age (associated most prominently with John Locke), which regarded freedom as the right "to do only what was not lawfully prohibited," West, The Case Against a Right to Religion-Based Exemptions, 4 Notre Dame J. L., Ethics & Pub. Pol'y 591, 624 (1990). "Thus, the disturb-the-peace caveats apparently permitted government to deny religious freedom, not merely in the event of violence or force, but, more generally, upon the occurrence of illegal actions." Hamburger, supra, at 918-919.2 And while, under this interpretation, these early "free exercise" enactments support the Court's judgment in Smith, I see no sensible interpretation that could cause them to support what I understand to be the position of Justice O’Connor, or any of Smith's other critics. No one in that camp, to my knowledge, contends that their favored "compelling state interest" test conforms to any possible interpretation of "breach of peace and order"—i. e., that only violence or force, or any other category of action (more limited than "violation of law") which can possibly be conveyed by the phrase "peace and order," justifies state prohibition of religiously motivated conduct.
1 The word "licentious," used in several of the early enactments, likewise meant "[e]xceeding the limits of law." 2 An American Dictionary of the English Language 6 (1828).
2 The same explanation applies, of course, to George Mason's initial draft of Virginia's religious liberty clause, see post, at 555. When it said "unless, under colour of religion, any man disturb the peace . . . of society," it probably meant "unless under color of religion any man break the law." Thus, it is not the case that "both Mason's and [James] Madison's formulations envisioned that, when there was a conflict [between religious exercise and generally applicable laws], a person's interest in freely practicing his religion was to be balanced against state interests," post, at 556—at least insofar as regulation of conduct was concerned.
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