1 347 U.S. 483 (1954).Google Scholar

2 . 410 U.S. 113 (1973).Google Scholar

3 . Griswold v. Connecticut, 381 U.S. 479 (1965).Google Scholar

4 . Address of Edwin Meese Before the ABA (July 9, 1985), “The Great Debate: Interpreting Our Written Constitution,” Occasional Paper No. 2, Federalist Society, 1986; Brennan, W., “The Constitution of the United States: Contemporary Ratification” (Address to Georgetown University, 12 Oct. 1985). 19 U.C. Davis L Rev. 2 (1985); 27 S. Tex. L Rev. 433 (1986); see also Stevens, J. P., “Construing the Constitution” (Address to Federal Bar Association, 23 Oct. 1985). 19 U.C. Davis L Rev. 15 (1985). See also Stevens, J. P., “The Supreme Court of the United States: Reflections After a Summer Recess,” 27 S. Tex. L. Rev. 447 (1986).Google Scholar

5 . See also Laycock, D., “Constitutional Theory Matters,” 65 Tex. L Rev 767, 768–69 (1987) (referring to the debate over “Reaganite Constitutional Theory”).Google Scholar

6 . See, e.g., Ely, J., Democracy and Distrust (1980): Perry, M., “The Authority of Text, Tradition and Reason,” 58 S. Cal. L. Rev. 551, 572–87 (1985); Simon, L., “The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?” 73 Calif. L Rev. 1482 (1985).Google Scholar

7 . See, e.g., Kurtzman, Lemon V., 403 U.S. 602 (1971); Engel v. Vitale, 370 US. 421 (1962).Google Scholar

8 . While the proponents of the original intent method of interpretation and of government aid to religion overlap, they are not identical. Originalist proponents of government support for religion include: Berns, W., The First Amendment and the Fume of American Democracy (1976); Bradley, G., Church-State Relationships in America (1987); Cord, R, Separation of Church and State: Historical Fact and Current Fiction (1982); Howe, M., The Garden and the Wilderness (1965); Malbin, M., Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, D.C.: American Enterprise Inst. 1978) (“Malbin, Religion and Politics”); see also Corwin, E., “The Supreme Court As National School Board,” Law & Contemp. Prob. 14 (1949); Antieau, J., Downey, L., & Roberts, C., Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses (1964); J. O'Neill, Religion and Education Under the Constitution (1949). There are advocates of government aid for religion on nonoriginal intent grounds, as well as originalists who oppose government aid. Leading advocates of separation of church and state from an intentionalist perspective are L. Levy, The Establishment Clause; D. Laycock, “Nonpreferential Aid to Religion: A False Claim About Original Intent,” 27 Wm & Mary L. Rev. 875 (1986); Kurland, P., “The Origins of the Religion Clauses.” 27 Wm. & Mary L. Rev. 839 (1986). See also Pfeffer, L., Church, State and Freedom (1967) (replying to originalist accommodationists), and Curry, T., The First Freedoms 83 (1986) (“Curry, First Freedoms”).Google Scholar

9 . The strict intentionalist approach conflicts both with ordinary legislative interpretation method and, interestingly as a historical matter, with the approach to statutory interpretation employed during the founding period, which looked first to objective evidence of intention, and not legislative history. See Powell J., “The Original Understanding of Original Intent,” 98 Harv. L. Rev. 885 (1985).Google Scholar

10 . See Ely, Democracy and Distrust 12, 16 (1980).Google Scholar

11 . See Schauer, F., “An Essay on Constitutional Language,” 29 U.C.L.A. L. Rev. 797, 809 (1981). Easterbrook, F., “The Role of Original Intent in Statutory Construction,” 11 Harv. J. L. & Soc. Policy 59, 60 (1988).Google Scholar

12 . “History suggests answers but the constitutional text does not” (at xvi). P. Brest, “The Misconceived Quest for the Original Understanding,” 60 B.U.L Rev. 204, 209 n.28 (1980). Some commentators suggest that broad text provides the parameters for acceptable interpretation. See Dworkin, R., Law's Empire 398 (1986), and Schauer, , 29 U.C.L.A. L. Rev. at 829–30.Google Scholar

13 U.S. Const. Amend. I, cl. 1.Google Scholar

14 . See Brest, , 60 B.U.L. Rev. at 214, 220.Google Scholar

15 . For an intentionalist historian's arguments against incorporation of state and federal constitutional standards see Berger, R., Government by Judiciary (1977); For an intentionalist lawyer's argument against incorporation see Meese, E., “The Supreme Court of the United States,” 27 S. Tex. L. Rev. 455 (1986). For historical sources supporting incorporation via the privileges and immunities clause, see Cong. Globe, 39th Cong., 1st Sess. 2765–66 (1866) (remarks of Sen. Howard). See generally M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986). See Story, J., Commentaries on the Constitution of the United States (Rotunda & Now & ed. 1986). In addition to the intentionalist argument against incorporation is the current call for “interpretive communities,” which would aka seem to argue against an automatic equation of state and national understandings. See, e.g., Tushnet, M., Red, White, and Blue at 315–16 (1988).Google Scholar

16 . See Levy at 33 (regarding the 1820 Convention to reconsider art. 3 of the 1780 Massachusetts Constitution). See also McDaniel v. Paty, 435 U.S. 618, 629 (1978) (Brennan J., concurring) (discussing the irrelevance of state practices to the federal understanding of the establishment clause).Google Scholar

17 In Massachusetts, for example, there was a dispute between the trinitarians and the unitarians as to which was the “official” religious society and accordingly authorized to receive the state disbursement of taxes.Google Scholar

18 In Connecticut, to be excused from taxes supporting the majoritarian Congregationalist establishment, the “dissenters,” consisting of Baptists, Methodists and Episcopalians, were required to obtain a certificate showing membership in and tax contributions to a recognized religious body. The certificate procedure marked one as a “dissenter” and often resulted in social stigma. See Gaustad, E., The Emergence of Religious Freedom, Religion and the State (J. Wood ed. 1985). Also undermining the equation of the multiple establishments with nonpreferential support was the existence in some state constitutions of additional “nonpreference” clauses, e.g., Massachusetts and New Hampshire; if you accept Levy's argument these would seem redundant (see p. 38). Levy also does not explain North Virginia's constitution, which proscribes establishment and defines it as unidenominational. These examples illustrate the problem with the term “nonpreferential aid”; it assumes a consensus among religions on the valuation of government benefits. If there was no consensus on this question two hundred years ago, today our greater religious diversity makes it virtually unattainable.Google Scholar

19 See, e.g., Malbin, Religion and Politics (cited in note 8). R. Cord, Separation of Church and State: Historical Fact and Current Fiction (1982).Google Scholar

20 See Curry, First Freedoms at 210–11 (cited in note 8).Google Scholar

21 See id. (discussing general assessments).Google Scholar

22 See id. at 197–98.Google Scholar

23 . See 27 Wm & Mary L. Rev. 875 (cited in note 8).Google Scholar

24 Id. at 910.Google Scholar

25 Laycock focuses on the local option system of establishment in Massachusetts, which, although democratically elected, constituted an establishment of majority rule. As concerns Levy's reliance on state practice, Laycock also observes that there are added federalism problems.Google Scholar

26 . See Tushnet, M., “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles,” 96 Harv. L. Rev. 781, 793 (1983).CrossRefGoogle Scholar

27 . See Brest, , 60 B.U.L. Rev. at 219 n.52 (cited in note 12).Google Scholar

28 . See Schauer, , 29 U.C.L.A. L Rev. 831 (cited in note 11).Google Scholar

29 . See Gadamer, H. G., The Principle of Effective History: The Hermeneutic Reader 270 (Mueller-Vollmer, K. ed. 1988).Google Scholar

30 Gadamer notes the very idea of the hermeneutical “situation” means “we are in the midst of it” and, therefore, are unable to have any “objective knowledge of it.” Id.Google Scholar

31 See id. at 270.Google Scholar

32 . See Kloppenberg, , “Objectivity and Historicism: A Century of American Historical Writing,” 94 Am Hist. Rev. 1011, 1012 (1989).Google Scholar

33 Another example from outside of the church-state dispute is Raoul Berger; see Government by Judiciary (1977).Google Scholar

34 . In other church-state debates, e.g., over creationism in the public schools; see Bolton, “The Historian as Expert Witness: Creationism in Arkansas,” 4 Pub. Hist. 59–68 (1982).CrossRefGoogle Scholar

35 . See McCrarn, P. & Hebert, J. G., “Keeping the Courts Honest: The Role of Historians as Expert Witnesses in Southern Voting Rights Cases,” 16 S.U.L. Rev. 101 (1989). See, e.g., Bolden, Mobile v., 446 U.S. 55 (1980).Google Scholar

36 . See Haskell, T. & Levinson, L., “Academic Freedom and Expert Witnessing: Historians and the Sears Case,” 66 Tex. L Rev. 1629 (1988); “Women's History Goes on Trial,” 2 Signs 757 (1986).Google Scholar

37 . See Kammen, M., Selvages and Biases: The Fabric of History in American Culture 51 (1987).Google Scholar

38 Compare legal fact-finding standards, e.g., preponderance of the evidence, and beyond a reasonable doubt, with historical fact-finding standards. See Barzun, Jacques & Braff, H. F., The Modem Researcher (1985); Collingwood, R. G., The Idea of History (1976).Google Scholar

39 . See, e.g., “Are Expert Witnesses Whores? Reflections on Objectivity in Scholarship and Expert Witnessing,” 6 Public Hist 5, 7 (1984).CrossRefGoogle Scholar

40 . See, e.g., Haskell & Levinson, 66 Tex. L Rev. 1629.Google Scholar

41 . See Teitel, R., “The Supreme Court's 1984–85 Church-State Decisions: Judicial Paths of Least Resistance,” 21 Harv. C.R.-C.L L Rev. 651, 667–69 (1986); see, e.g., Jaffree, Wallace v., 472 U.S. 38, 52–55 (1984).Google Scholar

42 . 330 U.S. 1, 8 (1946). Interestingly in Everson the dissent also would claim the authority of history. See id at 33 (Rutledge, J. dissenting) (“No provision of the Constitution is more closely tied … to its generating history”). But see Id. at 28 (Jackson, J., dissenting) (“I cannot read the history of the struggle to separate political from ecclesiastical affairs without a conviction that the Court today is unconsciously giving the clock's hands a backward turn”).Google Scholar

43 Id. at 8.Google Scholar

44 Id. at 9–13.Google Scholar

45 . 370 U.S. 421, 424–29, 436 (1962). Efforts to portray public school prayer as a tradition overriding the longstanding opposition to government-sponsored prayer have been rejected by several Justices as historically wrong in light of the public schools' relatively recent development. See Jaffree, Wallace v., 472 U.S. 38, 80 (105 S. Ct. at 2503) (O'Connor J., concurring) & 105 S. Ct. at 2494 n.4 (1985) (Powell, J., concurring); Abington v. Schempp, 374 US. at 234–35, 239 (1963); Engel v. Vitale, 370 U.S. 421, 425–35 (1962). As in Everson, the dissent in Engel would also rely on history. “What New York does with this prayer is to break with that tradition.”Engel at 444 (Stewart, J., dissenting). Tradition was the Court's exclusive form of analysis supporting the legislative chaplaincy in Marsh v. Chambers, 436 U.S. 783 (1983).Google Scholar

46 . 436 U.S. 783 (1983). The practice had in fact been interrupted by Jefferson, President. See Fleet, J., “Madison's Detached Memoranda,” 3 Wm. & Mary Q. 534, 562 (3d ser. 1946).Google Scholar

47 . 397 U.S. 664, 678 (1970).Google Scholar

48 Id. at 678: “It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it. Yet an unbroken practice of according the exemption to churches openly and by affirmative state action, not covertly or by state inaction, is not something to be lightly cast aside. ‘If a thing has been practiced for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it’”.Google Scholar

49 . 366 U.S. 420, 431 (1961). See Id. at 433–34, 440.Google Scholar

50 Id. at 445.Google Scholar

51 Id. at 444; see Id. at 507 (Frankfurter, J., concurring) (“The spirit of any people expresses in goodly measure the heritage which links it to its past”).Google Scholar

52 . 435 U.S. 618 (1978).Google Scholar

53 . E.g., Verner, Sherbert V., 374 U.S. 398 (1968).Google Scholar

54 . See Donnelly, Lynch V., 465 US. 667, 674 (1984). But cf. Id. at 715–18 (Brennan, J., dissenting) (This case raises interesting questions about what constitutes a “tradition” in a relatively young country: Does a 40-year-old practice of displaying a Christmas nativity scene constitute a tradition?).Google Scholar

55 . See Holmes, O. W., “The Path of the Law,” 10 Harv. L. Rev. 457, 472 (1897) (“Everywhere the basis of principle is tradition”); compare Youngstown v. Sawyer, 343 US. 579 (1952) (Frankfurter J., op.) (history of executive practices as gloss on the textual terms).Google Scholar

56 . See Gordon, R., “Historicism in Legal Scholarship,” 90 Yale L.J. 1017 (1981). For promoters among legal historians of a traditions approach to history in our jurisprudence see Nelson, W. & Reid, J. P., The Literature of American Legal History 197 (1985).CrossRefGoogle Scholar

57 . See, e.g., The Federalist Papers No. 10 (Madison).Google Scholar

58 . The Supreme Court's use of historical evidence of longstanding traditions in its church-state jurisprudence comports with at least one historian's view of what the founders comprehended by the term constitution: constitutive or shared understandings, which were entrenched independent of a document. See Sherry, S., “The Founders' Unwritten Constitution,” 54 U. Chi L. Rev. 1127, 1130 (1987).CrossRefGoogle Scholar

59 See Howe, M., The Garden and the Wilderness 3–31 (1965). Compare K. Popper, The Poverty of Historicism (1957).Google Scholar

60 . Clauson, Zorach V., 343 U.S. 306, 313 (1952) (Douglas, J.).Google Scholar

61 . Chambers, Marsh V., 463 U.S. 783 (1983).Google Scholar

62 . Donnelly, Lynch V., 465 U.S. 668 (1984).Google Scholar

63 . Maryland, McGowan V., 366 US. 420 (1961).Google Scholar

64 . Compare Lynch v. Donnelly, 465 US. 668, with Allegheny v. ACLU, 109 S. Ct. 3086 (1989).Google Scholar

65 . Compare McGowan v. Maryland, 366 U.S. 420 (1961) (sustaining Sunday blue laws) with Thornton v. Caldor, 472 U.S. 703 (1985) (striking Sabbath Observer Law). Compare Wisconsin v. Yoder, 406 U.S. 205, 225–227, 229 (1972) (Amish employment of children on the farm “is an ancient tradition”), with recent evangelical cases, see, e.g., Mozart v. Hawkins, 827 F.2d 1058 (6th Cir. 1987>).).>Google Scholar

66 . In assuming the role of consolidator of our traditions, the Supreme Court has elected to forgo the prophetic role urged on it by several commentators. See, e.g., Perry, M., The Constitution, the Court and Human Rights 98–99, 101–14 (1982). See also Cover, R., “Bringing the Messiah Through the Law: A Case Study,” Nomos XXX: Religion, Morality and the Law 202 (Pennock, J. & Chapman, J. ed. 1988). As a metaphor for law, Cover writes of a “bridge” which “connects the present” with the future “world we can imagine”; compare this vision with the law in the religion area oriented backward toward bridging the present to the past.Google Scholar