History, Transparency, and the Establishment Clause: A Proposal for Reform
48 Pages Posted: 22 Jul 2010
Date Written: 2008
From the U.S. Supreme Court’s 1947 incorporation of the Establishment Clause in Everson v. Board of Education up to the present, the Supreme Court has used historical premises to create, defend, and redefine Establishment Clause doctrine. If one follows the development of that doctrine, however, one finds a disturbing lack of consensus. Originalists on the Court would use the history to bind decision-makers today; living Constitutionalist justices, on the other hand, derive only abstract lessons from history. Most of the scholarly critics have lined up behind one or the other position, either pressing for a doctrine based on an original understanding or advocating a retreat from a historically based Establishment Clause. There is an unmined middle ground, however, in which Justices of the U.S. Supreme Court could bypass arguments about the modern relevance of Establishment Clause history and instead focus on making their own choices transparent. In this article I propose a procedural solution which requires authoring Justices to explain the use of history in their Establishment Clause opinions. The procedural solution offers transparency - and hence clarity and legitimacy - to the Court’s Establishment Clause doctrine.
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