Academic

Koppelman on Originalism & the Establishment Clause

By Lawrence Solum

Andrew Koppelman (Northwestern University School of Law) has posted Phony Originalism and the Establishment Clause on SSRN. Here is the abstract:

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.

And from the very end of paper:

In his classic work of anticommunist propaganda, Masters of Deceit, then-FBI Director J. Edgar Hoover lists the various types of supporters upon whom the Communist Party relied for its nefarious ends. ?The fellow traveler, while not a member, actively supports (travels with) the Party?s program for a period of time.? Fellow travelers are valuable to the party precisely because they are not affiliated with it. ?They are more valuable outside: as financial contributors, vocal mouthpieces, or contacts between Party officials and non-communists. They constitute, in fact, fronts for, and defenders of, the Communist Party.? The party also depends on the ?dupe,? the person who ?unknowingly is under Communist thought control and does the work of the Party.?

Hoover did not want to be too hard on the dupes. Most of them, he wrote, were ?loyal, but deceived, citizens.? Most originalist scholars do not mean simply to be shills for the agenda of the Republican Party. They should, however, understand the function they are performing. They are being used.

The conclusion to this paper is most unusual.

Full post as published by Legal Theory Blog on May 05, 2008 (boomark / email).