Fanning the Flames: The Freedom Project Blog


Original Sin?

By Shawn Healy
Chief Justice John Roberts, during a lecture last week at the University of Kansas, addressed the age-old question of whether the U.S. Constitution is "living" or should be considered in its original form. He refused to classify it as either, claiming that “legal documents don’t live or die.” Instead, Roberts contends, the Constitution is a contract between the federal government and the people of this country that must be applied to an ever changing society. He spoke just days after Justice Antonin Scalia restated his "originalist" bearings in a taped interview that aired on the CBS show "60 Minutes."

Scalia's controversial writings, and last week's interview for that matter, have ignited a firestorm in the legal community since "Nino" (as he is affectionately known by his colleagues) first donned a robe on the High Court in 1986. Just prior to his confirmation as Associate Justice, William Rehnquist survived a contested battle over his promotion to Chief Justice. Five years later, Clarence Thomas was confirmed by a four-vote margin, forming a triumvirate of adherents to the originalist philosophy. Chief Justice Roberts and Justice Samuel Alito joined the Court more recently, in 2005 and 2006 respectively, and although solid conservatives, both have yet to prove themselves as strict adherents to the "School of Scalia."

Justice Anthony Kennedy, the swing vote on the Court, is more of a pragmatist and is arguably without an underlying legal rationale. Justice Steven Breyer subscribes to a theory of "active liberty," in my mind another way of saying that he believes that the Constitution is alive and must be adapted through judicial opinions to address contemporary challenges. Namely, the outcome of a decision is what matters most, not how we arrive at a given conclusion. Justices John Paul Stevens, David Souter, and Ruth Bader Ginsberg align closely to this theory in practice, too.

In my reading of academic scholarship of the Supreme Court, it is a near consensus that Justices defy the originalist or legalist school of thought despite regularly endorsing it rhetorically. Through this line of reasoning, Justices, and all federal judges for that matter, are policymakers with philosophical preferences that are applied to most of their decisions. This explains the ideological divides on the contemporary Court, where nine esteemed intellects frequently come to dramatically different conclusions. While they may drape their opinions in references to previous precedents and interpretations of the Constitution and statutory law, this process is carried out in subjective fashion to justify individual policy preferences.

This hypothesis is tested in Andrew Koppelman's recent paper titled "Phony Originalism and the Establishment Clause." Here the Northwestern University Law professor explores the jurisprudence of the three originalists on the Court for most of the last two decades: Rehnquist (since deceased), Scalia and Thomas. While refusing to dismiss originalism outright, Koppelman uses the writings of this trio to question their true commitment to the philosophy in the context of religious liberty, specifically the Establishment Clause of the First Amendment.

An originalist understanding of the Founding Fathers' intentions specific to the Establishment Clause, he argues, would ask the following two questions: (1) why did the framers think establishment of religion is a bad thing, and (2) is the same bad thing brought about by the challenged action in this case?" To access the Founders' intentions, Koppelman refers to Madison's Memorial and Remonstrance Against Religious Assessments. Here he gleans the justification of the Establishment Clause as two-fold: to prevent alienation amongst the citizenry and to avoid corruption of religion itself. He writes, "The Court has understood its task to be to devise practical rules that would prevent the evils of alienation and corruption."

Returning to Rehnquist, Scalia and Thomas, the Koppelman claims they consistently violate these originalist principles, instead resting their conclusions on "dreadful historical scholarship," and writing opinions that "conveniently coincide with the agenda of the Republican Party." He begins with critique with Attorney General Ed Meese, an interesting target of the impetus for originalism given that Rehnquist sat on the Court and arrived at conclusions consistent with this school of thought nearly a decade before the dawn of the Reagan Revolution. The author uses Meese as a foil for the alleged perversion of originalism, arguing that complete separation of church and state is contrary to the Founders' intentions, and moreover, denial of state support actually undermines religion.

Rehnquist echoes this argument in his 1985 dissent to the Wallace v. Jaffree decision, writing: "...Nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion, nor does that Clause prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory secular means," offering a "generalized endorsement of prayer" in this case.

Scalia, the author contends, further abandons originalist tendencies by urging the discontinuance of the precedent that a law have a secular purpose in order to survive an Establishment Clause challenge in Edwards v. Aguillard, a case considering the constitutionality of teaching creation science in public schools. His rationale was that it is an unworkable standard. He later used history as the rationale to uphold the constitutionality of prayer at a high school graduation ceremony (Lee. v. Weisman), history that was flawed in the mind of Koppelman.

The author's strongest criticism of Scalia lies in his argument that the Court may play a role as the decider of "...which articles of faith are sufficiently widely shared to be eligible for state endorsement," an offshoot of the 2005 Ten Commandments in the courtroom case, McCreary County v. Kentucky. Koppelman contends, "Scalia's solution departs from Rehnquist's earlier nonpreferentialism, because it unapologetically discriminates among religions."

The author's diatribe against Scalia ends with the denunciation: "The idea that religion might be degraded by state sponsorship is entirely lost on (him)."

Justice Thomas draws additional barbs, specifically for his argument that the Establishment Clause should not be applied to states at all given the fact that it is not an individual right and therefore unworthy of incorporation under the Fourteenth Amendment. Thomas wrote in Newdow v. Elk Grove: "I would welcome the opportunity to consider more fully the difficult questions whether and how the Establishment Clause applies to the States." The author allows that this could be associated with an originalist approach, but the argument was never endorsed by any of the Constitution's framers. Moreover, Thomas goes so far as to suggest that Establishment Clause violations occur only in instances of coercion, another conclusion divorced from the Framers.

Koppelman concludes that originalism as it exists on the contemporary Court is "phony," used as a disguise to "...advance substantive positions that the judges find congenial." While never dismissing originalism outright, he fails to offer any substantive support for its doctrines. Moreover, he never offers an alternative to its strictures. The article, while provocative, begs the question of whether all judges use legal philosophies to drive their own personal political agendas, and if so, why this is detrimental to society. The reader is left with the conclusion that Koppelman has an ideological ax of his own to grind and shrouds his conclusions in academic prose.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at

Dave Anderson
Vice President of Civic Programs
McCormick Foundation

Tim McNulty
Senior Journalist
McCormick Freedom Project

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