Phony Originalism and the Establishment Clause

25 Pages Posted: 25 Apr 2008 Last revised: 11 May 2011

Date Written: April 25, 2008


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.

Keywords: Religion, Establishment

JEL Classification: K10, K19

Suggested Citation

Koppelman, Andrew M., 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: or

Andrew M. Koppelman (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8431 (Phone)

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics