In Everson v. Board of Education (1947), Justice Wiley Rutledge observed that '[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history.' Scholars and activists argue about the relevance or irrelevance of the Supreme Court’s use of history in general, and the extent to which Justices are good historians. These debates have been particularly furious with respect to the Court’s use of history in religion clause cases. Although broad claims are often made about the Court’s use of history in these cases, they are either unsupported generalities or extrapolations from a careful reading of only a handful of the Court’s many Free Exercise and Establishment Clause cases.
In my essay I offer a systematic analysis of every religion clause case decided by the Supreme Court. I begin by providing original data drawn from these cases that clearly and succinctly address how Justices have used history in their opinions. I show the extent to which Justices have appealed to history and, when they do so, to whom or what they appeal. I then look at the distribution of religion clause cases over time and consider whether there are patterns with respect to the Court’s use of history. I proceed to study individual Justices, particularly the extent to which they tend to write opinions in religion clause cases and how often they use history. In this discussion I define what it means to be 'liberal' or 'conservative' in these cases and place Justices on an ideological continuum based upon every vote cast between 1940 and 2005. I follow this with an examination of the extent to which jurisprudential liberals and conservatives differ in their use of history. In the essay’s penultimate section I offer a narrative account of the Court’s use of history in religion clause cases with an emphasis on opinions where Justices consciously reflect on the relevance or irrelevance of history. I conclude by arguing that if Justices are going to make historical arguments that they should make good ones, and I suggest ways in which their historical arguments in religion clause opinions could be significantly improved.
This revised version was published in High Court Quarterly Review, 2009, volume 5, pp. 109-153 http://www.sandstoneacademicpress.com.au/index.php?page=high-court-quarterly-review This article was originally published in Oregon Law Review, 2006, volume 85, pp. 563-614 http://law.uoregon.edu/org/olrold/archives/85/852hall.pdf