The New and Confusing Establishment Clause

This essay argues that the many claims percolating among academics and lawmakers that the Supreme Court in recent years has established a clear “history and tradition” test for the Establishment Clause are premature. Rather, what the Court has done is far more confusing; it has unsettled the waters without clearly indicating what form of historical methodology lower courts and lawmakers should use. And using the recent Ten Commandments laws as test cases, the essay concludes by showing that originalism—whatever form the Court eventually adopts—need not necessarily result in a gutting of the Establishment Clause.