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Full-Text Articles in Law
Uses And Abuses Of Textualism And Originalism In Establishment Clause Interpretation, Carl H. Esbeck
Uses And Abuses Of Textualism And Originalism In Establishment Clause Interpretation, Carl H. Esbeck
Faculty Publications
This article takes up the curious tale as to why the text and drafting record in the House and Senate were ignored by the Court in Everson, as well as what the text and debate can tell us about contemporary theories making the rounds. One theory of conservatives is that the Establishment Clause was not intended to prohibit support for religion so long as no religion is preferred.
Phony Originalism And The Establishment Clause, Andrew M. Koppelman
Phony Originalism And The Establishment Clause, Andrew M. Koppelman
Faculty Working Papers
The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.