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Mis-Under-Standing Freedom From Religion: Two Cents On Madison's Three Pence, Kyle Duncan

Kyle Duncan

Forty years ago in Flast v. Cohen, the Supreme Court created, for Establishment Clause cases only, a dramatic exception to a bedrock principle of standing doctrine, based on one catchy phrase from a famous historical document—James Madison’s 1785 Memorial and Remonstrance Against Religious Assessments. The Court has been notoriously bad at Establishment Clause history, but Flast seemed to push the envelope. Yet neither the Court nor commentators seemed to question Flast’s historical credentials over the last four decades. Recently, the Supreme Court took up the standing question again in Hein v. Freedom From Religion Foundation, Inc. Unhappily, the justices’ various …