The Original Meaning of the Establishment Clause and the Impossibility of its Incorporation
56 Pages Posted: 20 Feb 2007
Through an investigation of the historical and political context that led to the drafting of the Establishment Clause, this article attempts to demonstrate that the original meaning of the Establishment Clause pertains to federalism.
Part I reviews the leading originalist interpretations that have been set forth by members of the Supreme Court. Part II begins my attempt to recover the original meaning of the Establishment Clause through an investigation of the historical and political context in which the Establishment Clause emerged. Part III offers a detailed analysis of the drafting of the clause in light of the historical and political contexts described in Part II. I conclude that Justice Thomas's federalism interpretation most accurately captures the Establishment Clause's original meaning. In his Newdow opinion, however, Justice Thomas failed to consider the implications of his federalism construction, which is the subject of Part IV of this article. Recovering the Founders' original concern with federalism necessarily means that the original intention that animated the adoption of the Establishment Clause cannot be applied to modern day incorporated no-establishment jurisprudence.
Keywords: Establishment Clause, Freedom of Religion, Separation of Church and State, Constitutional Law, Jurisdiction, First Amendment, Originalism, religious liberty, religious freedom, church and state, first amendment, American founding
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