The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress
Vincent Phillip Muñoz, 31 Harv. J.L. & Pub. Pol’y 1083 (2008)
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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.
