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Abstract

In this Article, we attempt to document how the history of the Supreme Court’s Establishment Clause jurisprudence is a history of constructionism, much of it—though not all—originalist in flavor. We use “construction” in a technical sense and in contradistinction to “interpretation.” Construction is the act of importing meaning into the constitutional text. To document and explain how leading Supreme Court justices have engaged in originalist constructionism, we employ the interpretation-construction distinction as well as two additional analytical concepts recently discussed by leading legal scholars: Sam Bray’s recovery of “the mischief rule” and Jack Balkin’s textual typology of principles, standards, and rules. These tools help us set forth the component parts—or, perhaps we should say, the “raw materials”—of constitutional constructions, at least as they have been performed by Supreme Court Justices in the context of the Establishment Clause. Seeing that justices have constructed the Establishment Clause and appreciating how they have done so contributes to our understanding of church-state jurisprudence in particular, and to the concept of constitutional construction more generally. For Establishment Clause jurisprudence, we identify and pinpoint the specific moments of judicial creativity that animate the principles, standards, and rules that justices have read into the First Amendment’s text. Identifying this jurisprudential scaffolding sheds new light on and facilitates evaluations of competing church-state doctrines. It also allows us to speculate about the next phase of the “tradition and history” construction that the Court’s new originalist majority is currently building.

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