“The Reasons Why Originalism Provides a Weak Foundation for Interpreting Constitutional Provisions Relating to Religion”

The Reasons Why Originalism Provides a Weak Foundation for Interpreting Constitutional Provisions Relating to Religion
Alan Brownstein, 2009 Cardozo L. Rev. de novo 196

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.