This Essay is mainly about the Establishment Clause, but it covers analogous questions about free exercise as well. I try to untangle the threads of various controversies, concentrating primarily on what seems fairly resolvable on examination, while also noting uncertainties that do not yield to easy analysis. I ask how constitutional language should have been and should be interpreted, adopting a strategy that gives weight to ordinary meaning and to the general sense of why that language was adopted. I do not eschew reference to legislative history; however for our purposes in this Essay, legislative history turns out to be less than crucial. I have not undertaken research of the original sources, but I believe existing research suffices for the issues we shall examine.
The central premise of the Essay is that certain questions about the scope of the religion clauses are more simply answered than some distinguished scholars have suggested. Two corollaries are that the Supreme Court has not committed a gross blunder in developing the scope of those clauses, and that the widely held view of the clauses as having a dual character is sound. More particularly, the Establishment Clause was, at its origins, both jurisdictional and substantive. It, like the Free Exercise Clause, had content that was properly incorporated against the states, and it has rightly been interpreted to create individual rights.
Law | Religion Law
Common Sense about Original and Subsequent Understanding of the Religion Clauses,
U. Pa. J. Const. L.
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