Phony Originalism and the Establishment Clause
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
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
Date posted: April 25, 2008 ; Last revised: May 11, 2011
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