The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress

Article excerpt

Despite the vast quantity of research devoted to understanding religion and the American Founding, the original meaning of the First Amendment's Free Exercise Clause remains a matter of significant dispute. In academic literature and in Supreme Court opinions, two leading interpretations have emerged. One side understands the Free Exercise Clause to grant religious individuals and institutions exemptions from generally applicable laws that incidentally burden religious exercise, absent a compelling state interest in the law's enforcement. Initially adopted by the Supreme Court in 1963 in Sherbert v. Verner, (1) the exemption interpretation received its leading originalist defense in 1990 by distinguished law professor (and now federal appellate judge) Michael McConnell. (2) Justice Sandra Day O'Connor later adopted Judge McConnell's arguments in her dissenting opinion in the 1997 case, City of Boerne v. Flores. (3)

The other interpretation of the Free Exercise Clause denies that the First Amendment encompasses such exemptions. The non-exemption interpretation, first articulated by the Court in 1878 in Reynolds v. United States, (4) was revived for most free exercise issues in the 1990 case, Employment Division v. Smith. (5) Justice Antonin Scalia, Smith's author, has vigorously championed this position, with the concurrence of numerous academic commentators. (6) In Smith, Justice Scalia defended his interpretation without referring to the Founders, (7) but in Boerne he mounted a direct critique of exemptions on historical grounds. (8) Advocates of both the exemption and the non-exemption interpretations of the Free Exercise Clause thus appeal to the Founders and purport to embrace the original understanding of the Free Exercise Clause. It would seem that both sides cannot be correct.

In an effort to help resolve the debate among both scholars and Justices over the most accurate interpretation of history, this Article gathers and examines the relevant evidence available from the First Congress regarding the Clause's original meaning. (9) This Article contends that the drafting of the Free Exercise Clause sheds almost no light on the text's original meaning. In drafting what would become the Second Amendment, however, the First Congress directly considered and rejected a constitutional right to religious-based exemption from militia service. When it considered conscientious exemption, moreover, no member of Congress suggested that such an exemption might be part of the right to religious free exercise. The records of the First Congress therefore provide strong evidence against the exemption interpretation of the Free Exercise Clause. Although some scholars have taken note of the possible relevance of the drafting of the Second Amendment to free exercise jurisprudence, its significance has been underappreciated. (10) Recent scholarship on the topic has overlooked the Second Amendment debate altogether. (11) Likewise, in Boerne, neither Justice O'Connor nor Justice Scalia considered the records related to the drafting of the Second Amendment in their description of historical evidence.

Part I of this Article reviews the different originalist arguments articulated by Justices O'Connor and Scalia in their opposing opinions in Boerne. Part II begins the Article's review of the records of the First Congress. Through a detailed examination of the drafting of what would become the Free Exercise Clause, Part II shows why almost no conclusions can be drawn about the Clause's original meaning from those records. Part III examines the insufficiently explored drafting of what would become the Second Amendment, documenting Congress's consideration and rejection of a right of conscientious exemption from militia service. That Congress both rejected religious exemptions from militia service and appears to have considered such an exemption entirely without reference to what would become the First Amendment strongly suggests that the members of the First Congress did not understand the Free Exercise Clause to grant religious individuals exemptions from generally applicable laws. …

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