Michael Showalter (independent) has posted Establishment Clause Legislative History Is Not the Law: The Misguided Search for Original Subjective Intent (Federalist Society Review, forthcoming ) (26 pages) on SSRN. Here is the abstract:
The Supreme Court’s Establishment Clause jurisprudence is premised on an interpretive method that all justices now reject. Over the second half of the twentieth century, the Court developed a sprawling Establishment Clause jurisprudence based on its understanding—drawn from legislative history—of what the Establishment Clause’s framers subjectively intended. The Court now has returned to the Founding-era view that the correct inquiry when interpreting legal text concerns not what the drafters subjectively intended but what the text means. Yet despite having decided dozens of establishment cases, not once has the Court attempted to discern the Establishment Clause’s linguistic meaning. Not even the most ardent intentionalist would defend this kind of legislative-history-first and text-never approach. Yet this problem has gone almost entirely unnoticed by commentators. For the most part they have followed the Supreme Court’s lead by debating legislative history and the framers’ policy preferences rather than examining the text’s linguistic meaning.
But the Court’s renewed methodological commitment to original meaning has serious implications for the Establishment Clause. Imagine that an existing but very old constitution provides: “Congress shall make no law respecting a velociraptor.” That provision would have no application in today’s world—velociraptors are extinct. According to scholarly consensus, the core meaning of establishment of religion is an official state church, which is also long extinct. If that is right, then the Establishment Clause (as originally understood) has no more modern-day application than a constitutional provision concerning velociraptors. It does not matter that some existing laws might share one or two things in common with historic establishments—a cheetah is not a velociraptor just because it runs fast and eats meat.
This Article argues that the judicial and academic focus on subjective intent reflects an outmoded interpretive approach, surveys evidence of the Establishment Clause’s linguistic meaning, and concludes that if the scholarly consensus is correct then the Clause prohibits laws respecting something that does not currently exist. I take no position on how any specific case should be resolved after accounting for stare decisis, but in all Establishment Clause cases, original linguistic meaning should exert a gravitational pull on judicial decisionmaking.
This seems like an important point, though it's not my area. I'd like to hear what establishment clause scholars think. But as a general matter the methodological claim seems correct.
Posted at 6:30 AM