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This Lemon Comes as a Lemon: The Lemon Test, Legislative History, and the Pursuit of a Statute?s Secular Purpose

By Alliance Alert

I conclude by making two modest proposals to modify the Lemon test. First, the purpose prong of the Lemon test should mean what it says. Rather than trying to construe the intent of the legislature, the Courts should focus on the statute, and its text. By limiting the analysis to the text, this approach cabins a judges discretion, and minimizes the subjectivity inherent in finding the purpose of a statute amidst a sea of conflicting legislative histories. Second, I propose that the Court adopt an original public meaning analysis to ascertain how an objective observer would understand the statute, and eschew reliance on legislative history.

Full post as published by Constitutionally Correct on February 05, 2009 (boomark / email).