Blushing Our Way Past Historical Fact and Fiction: A Response to Professor Geoffrey R. Stone's Melville B. Nimmer Memorial Lecture and Essay

Abstract:     
Legal academics and the public are fascinated by both constitutional text and the processes by which it is interpreted. The precise role for legal academics in the interpretation of such charters is controverted. Doctrine and case law as established by the courts remain the core of academic legal discourse. Case law is, after all, the object about which doctrine is based, built, and extended. But the interpretation of constitutional text through case law comes with costs -- it seems to lack democratic legitimacy, and where unconnected to text and history, it has a tendency to fence out (even the well-educated) the public. On the other hand, when legal academics shift to text and history, their work gains populist credentials, but, at that point, the legal academic risks his privileged position. For the legal academic has no monopoly, or even highly developed expertise, with regard to textual exegesis or the best use of historical materials. In light of those attendant risks, I want to praise Professor Geoffrey R. Stone for taking on the role of exegete and historian. But that said, I find some of his specific textual and historical claims troubling. I respond to his textual and historical claims in detail below. This paper, however, has no grand normative claim of its own; it is merely an effort on my part to correct the record, and thereby to further the object pursued first by Professor Stone: "to know the truth about the Framers, about what they believed, and about what they aspired to when they created this nation."

What follows is substantive discussion of the Attestation Clause, the Oaths and Affirmations Clause, the Sundays Excepted Clause, the Religious Test Clause, and a critique of Stone's use of historical materials, particularly his claim in regard to a book burning at Harvard circa 1789.

Professor Stone's article, to which I respond, can be found at: Geoffrey R. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L. Rev. 1-26 (2008). It is posted on the UCLA Law Review website.

My Response to Stone will appear in Penn State Law Review, and, in abridged form, it has already appeared in De Novo -- the on-line supplement to Cardozo Law Review. This is the unabridged version. De Novo plans to present my paper in conjunction with one or more replies.

Accepted Paper Series