The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress
38 Pages Posted: 26 Jun 2008
Date Written: 2008
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 exemptions from generally applicable laws that incidentally burden religious exercise, absent a "compelling" state interest in the law's enforcement. The other interpretation of the Free Exercise Clause denies that exemptions make up any part of the First Amendment. In an effort to help resolve the scholarly and the Supreme Court debate over the most accurate interpretation of history, this Article gathers and examines all the relevant evidence available from the First Congress regarding the Free Exercise Clause's original meaning. Part I of this Article reviews the originalist arguments articulated by Justices O'Connor and Scalia in their competing 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 rejected religious exemptions from militia service and that it 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.
Keywords: Free Exercise Clause, First Amendment, Religious Exemptions, Freedom of Religion, Separation of Church and State, Constitutional Law, Originalism, religious liberty, religious freedom, church and state, American founding, James Madison
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