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Religion & Law

: Constitutionally Correct

Law Review by Carl H. Esbeck: ?Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation?

By Alliance Alert

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Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation (August 23, 2010). Utah Law Review, Vol. 2011, No. 2; University of Missouri School of Law Legal Studies Research Paper No. 2010-19. Available at SSRN: http://ssrn.com/abstract=1663829 "This article takes up the curious tale as to why the more obvious text and the drafting record in the House and Senate were ignored by the Court in Everson and what it can tell us about contemporary theories making the rounds. One theory of conservatives is that the Establishment Clause was not intended to prohibit support for religion so long as no religion is preferred over others. This is called 'nonpreferentialism.' A second theory is that the clause was only intended to deny the national government power to disturb how States arranged their church-state affairs. I call this 'specific federalism.' Neither theory is supported by the text or the congressional record."

Full post as published by Constitutionally Correct on August 27, 2010 (boomark / email).