Alan E. Brownstein (University of California, Davis – School of Law) has posted The Reasons Why Originalism Provides a Weak Foundation for Interpreting Constitutional Provisions Relating to Religion (Cardozo L. Rev. De Novo 196) on SSRN. Here is the abstract:
Contemporary debates about the meaning of the Free Exercise Clause and the Establishment Clause of the First Amendment often are grounded on conflicting contentions about the original understanding of these constitutional provisions. There are various explanations for this emphasis on history in interpreting these specific constitutional clauses. To begin with, the Supreme Court’s jurisprudence in this area has focused on history in interpreting the religion clauses. It is also the case that many scholars and jurists are committed to some form of originalism as the controlling methodology for interpreting constitutional text. Finally, questions relating to the relationship between church and state were clearly of interest to the founders and at various times had been the focus of their political speech and actions.
The purpose of this brief essay is to challenge this convention. I suggest that whatever may be the justifications for, and utility of, employing originalism as a methodology for interpreting other constitutional provisions, it is a particularly poor approach to adopt for determining the meaning of the religion clauses of the First Amendment. I do not suggest that an historical analysis is irrelevant to understanding what the religion clauses mean. It certainly sets a foundation for further discussion. I argue simply that there are important reasons why originalism is particularly ill suited for resolving a great many constitutional disputes relating to church-state relationships in our society today.