Establishment Clause, originalism, interpretation, history, First Amendment
The Supreme Court's Establishment Clause jurisprudence is all over the place. The current justices have widely divergent views on the Establishment Clause's meaning, and the Lemon test has been widely panned by several justices. Originalist judges, however, have had a fairly consistent approach to interpreting the Establishment Clause. This largely stems from their reliance on history. This Note argues that their use of history in analyzing the Establishment Clause is flawed. Originalist Establishment Clause jurisprudence has been and is criticized for being unprincipled. And those criticisms are correct. Originalists encounter such criticism because the justices struggle to reconcile historical practice with the strict command of the Establishment Clause. In other contexts, particularly in interpreting the Free Speech Clause, the Confrontation Clause, and the Eighth Amendment, history is used more consistently in conducting originalist analysis. Given the intent and public meaning of the Bill of Rights, historical evidence should have the same place in Establishment Clause interpretation as it does in Free Speech Clause interpretation.
Neil Joseph, Let History Repeat Itself: Solving Originalism's History Problem in Interpreting the Establishment Clause, 15 Duke Journal of Constitutional Law & Public Policy Sidebar 1-28 (2019)