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Establishment Clause Incorporation: A Logical, Textual, And Historical Defense, Frederick Mark Gedicks Feb 2012

Establishment Clause Incorporation: A Logical, Textual, And Historical Defense, Frederick Mark Gedicks

Frederick Mark Gedicks

Incorporation of the Establishment Clause against the states is logically and textually impossible—so say most academics, many lower-court judges, and a Supreme Court justice. They maintain that because the Clause was originally understood as a mere structural protection of state power, it cannot coherently restrain state power or protect a personal due process liberty. Anti-incorporationists also seem to think that the purported incoherence and textual inconsistency of Establishment Clause incorporation excuse serious engagement of Reconstruction history, since they mostly ignore it except for the Blaine Amendment defeated as the Reconstruction era ended. If anti-incorporation critics are right, the entire body …


Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks Mar 2009

Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks

Frederick Mark Gedicks

Although formal religious tests for federal office are constitutionally prohibited, they have long been fact of political life in presidential elections. John Kennedy remains the only nonProtestant ever elected President. The “Judeo-Christian tradition” notwithstanding, no major party has ever nominated a Jew for president—let alone a Buddhist, Hindu, Mormon, Muslim, or unbeliever. Against this electoral history, it was perhaps predictable that mainstream Christian commentators would feel free to legitimate religious attacks on Mitt Romney during the Republican presidential primaries on the ground that Mormonism is a “false” religion. Ironically, however, the Mormon church periodically intervenes in initiative and ratification campaigns …


Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks Mar 2009

Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks

Frederick Mark Gedicks

Although formal religious tests for federal office are constitutionally prohibited, they have long been a fact of political life in presidential elections. John Kennedy remains the only nonProtestant ever elected President, and the major political parties have only nominated three others for president, all Democrats. The "Judeo-Christian tradition" notwithstanding, no major party has ever nominated a Jew for president-let alone a Buddhist, Hindu, Mormon, Muslim, or unbeliever. Against this electoral history, it was perhaps predictable that mainstream Christian commentators would feel free to legitimate religious attacks on Mitt Romney during the Republican presidential primaries on the ground that Mormonism is …


An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks Feb 2008

An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks

Frederick Mark Gedicks

A longstanding scholarly consensus holds that the Due Process Clause of the Fifth Amendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, and the emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps. One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of “substantive” due process originated …