Federalist Politics and the Elusive Original Meaning of the Free Exercise Clause

Originalism requires interpreting the Constitution by reference to a provision’s original public meaning. But there is very little evidence of original public meaning for some constitutional provisions, most notably the Free Exercise Clause. Originalists have splintered into several different methodological approaches toward the Clause. Justices Scalia and O’Connor staked out opposing originalist views on the Clause thirty years ago in Employment Division v. Smith and City of Boerne v. Flores.

In the Roberts Court, some of the conservative justices have attempted to apply a simple textualist interpretation of the Clause, but those efforts have not attracted most of the other conservatives. Instead, the conservative majority built an expansive interpretation of the Clause by selectively endorsing and ignoring precedent, an inherently subjective approach with little originalist legitimacy. Originalists seemingly abandoned originalism in the free exercise context because the simple tools of originalism—mostly, just dictionaries—cannot provide a clear original public meaning of the Clause. A better approach would be based on the political context of the enactment of the Bill of Rights, which reflects what the public wanted and how legislators wanted to give it to them.

The messy details of enactment point to basic concerns about governments explicitly outlawing specific religions, not concerns about equal funding for religion and non-religion. To better understand how the public understood the Clause and other conceptual constitutional provisions, originalists must look at the political context of enactment rather than just the words that emerged from it.