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Full-Text Articles in Law
Let History Repeat Itself: Solving Originalism's History Problem In Interpreting The Establishment Clause, Neil Joseph
Let History Repeat Itself: Solving Originalism's History Problem In Interpreting The Establishment Clause, Neil Joseph
Duke Journal of Constitutional Law & Public Policy Sidebar
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 …
Legislator-Led Legislative Prayer And The Search For Religious Neutrality, Aishwarya Masrani
Legislator-Led Legislative Prayer And The Search For Religious Neutrality, Aishwarya Masrani
Duke Journal of Constitutional Law & Public Policy Sidebar
Leading a group in prayer in a public setting blurs the line between public and private. Such blurring implicates a constitutional tension between the Establishment Clause and the Free Exercise Clause. This tension is magnified when the constitutionality of prayer is questioned in the context of democratic participation. Current Supreme Court precedent holds legislative prayer to be constitutional, but the relevant cases, Marsh v. Chambers and Town of Greece, NY v. Galloway, do not address the specific constitutionality of legislator-led prayer. There is currently a circuit split on the subject: in Bormuth v. County of Jackson, the United …