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Common Sense About Original And Subsequent Understanding Of The Religion Clauses, Kent Greenawalt

Faculty Scholarship

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 …