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Phony Originalism and the Establishment Clause


Andrew Koppelman


Northwestern University School of Law

April 25, 2008

Northwestern University Law Review, Vol. 103, No. 2, p. 727, 2009
Northwestern Public Law Research Paper No. 09-15
Northwestern Law & Econ Research Paper No. 08-15

Abstract:     
The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.

Number of Pages in PDF File: 25

Keywords: Religion, Establishment

JEL Classification: K10, K19

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Date posted: April 25, 2008 ; Last revised: May 11, 2011

Suggested Citation

Koppelman, Andrew, Phony Originalism and the Establishment Clause (April 25, 2008). Northwestern University Law Review, Vol. 103, No. 2, p. 727, 2009; Northwestern Public Law Research Paper No. 09-15; Northwestern Law & Econ Research Paper No. 08-15. Available at SSRN: http://ssrn.com/abstract=1125482 or http://dx.doi.org/10.2139/ssrn.1125482

Contact Information

Andrew M. Koppelman (Contact Author)
Northwestern University School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
312-503-8431 (Phone)
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