Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation

The record of the debate by the First Federal Congress, along with the final text of the clause, demonstrate that neither the House nor the Senate had in mind either nonpreferentialism or specific federalism, nor did the First Congress limit the Establishment Clause to instances where liberty of conscience alone is violated. Careful attention to the text and original understanding cannot answer all contemporary questions with respect to the correct application of the Establishment Clause, but the discipline does eliminate all three of these false paths. While the text and original understanding may not reveal clearly the meaning of “establishment,” they do much to discredit misguided theories concerning what the religion clauses supposedly mean. Avoiding these wrong turns will go far to remedy the uneven character of the much maligned Establishment Clause jurisprudence in our federal courts.