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Articles 271 - 272 of 272
Full-Text Articles in Legal History
The Endorsement Test's Early Years, 1983-1985: Notes From The O'Connor Files, Jay D. Wexler
The Endorsement Test's Early Years, 1983-1985: Notes From The O'Connor Files, Jay D. Wexler
Faculty Scholarship
One of Justice Sandra Day O’Connor’s signature contributions to U.S. constitutional law was the endorsement test, a subtle but critically important reformulation of the Court’s then prevailing approach to applying the Establishment Clause that focused on the message sent by government action supporting religion and the potentially harmful effects of that message on religious minorities and the political community. Now that the current Court has discarded the endorsement test, leaving the government freer than ever to support religion in a variety of ways, we should expect to see the harms that Justice O’Connor cared about become increasingly widespread and prevalent. …
Originalisms' Indifferences?: Friendly Amendments To Sherif Girgis's "Originalism's Difference?", Jed Handelsman Shugerman
Originalisms' Indifferences?: Friendly Amendments To Sherif Girgis's "Originalism's Difference?", Jed Handelsman Shugerman
Faculty Scholarship
Sherif Girgis’s Lecture Originalism’s Differences? reflects on what had differentiated originalism from other methods and why those differences are eroding. The differences are (or were): (1) avoiding “ostentatious moral reasoning”; (2) relatedly, constraining judges by requiring originalist historical evidence (i.e., tying judges’ hands); and (3) engaging historical research with more “intensity.” Girgis rightly criticizes the Court for engaging in the same kind of flexibility and creativity that originalists had long rejected.
In this commentary, I highlight our areas of agreement and offer friendly amendments. My title takes Girgis’s title two or three steps further: I use an “s-apostrophe” because I …