Beyond the Conventional Establishment Clause Narrative

The article reviews of jurisprudence offers a systematic look at every Establishment Clause case to have reached the docket of the United States Supreme Court since 1947. That year is of particular significance, for it marks the incorporation of the Establishment Clause, which the Court articulated in its influential establishment case, Everson v. Board of Education. Through the intervening years there have been a total of forty-six other cases-forty-seven in total-in which establishment issues constituted the core legal quandary. The article poses two questions as it reviews the Court's opinion in each suit: (1) In contemplating the meaning of the Establishment Clause, does the Court invoke an interpretational authority; and (2) if yes, does the Court brandish as its interpretational authority the founders, to the exclusion of any reference to the intentions of the reconstructionists who breathed new meaning into the Establishment Clause?

Thus, Part III outlines three fundamental principles that one may discern from the life and writings of Frederick Douglass. Part IV reviews four Supreme Court cases and suggests how the Court could have invoked Douglass to help resolve the establishment disputes on its docket. The final Part concludes with a few additional thoughts.