50 Pages Posted: 29 Jun 2009 Last revised: 14 Sep 2017
Date Written: 2005
In elaborating the meaning of the Establishment Clause, judges and scholars have commonly turned to the founders as their interpretative compass. But this should not necessarily be so - at least not exclusively. In giving meaning to the Establishment Clause, judges and scholars should also turn to the framers and ratifiers of the Fourteenth Amendment. The Fourteenth Amendment transformed the original meaning of the civil protections preserved in the Bill of Rights. In light of the transformative effect of the Fourteenth Amendment, those responsible for its conception and confirmation must be consulted - of course in concert with Jefferson, Madison, and other founding leaders - in order to fully and properly gauge the meaning of the modern Establishment Clause.
Keywords: Establishment Clause, Fourteenth Amendment, Bill of Rights, Founding Fathers, James Madison, Thomas Jefferson, Frederick Douglass, Akhil Amar, Kurt Lash, Reconstruction, Religion
Suggested Citation: Suggested Citation
Albert, Richard, Beyond the Conventional Establishment Clause Narrative (2005). 28 Seattle University Law Review 329 (2005). Available at SSRN: https://ssrn.com/abstract=1424029