Religious liberty through the lens of textualism and a Living Constitution: the First Amendment Establishment Clause interpretations of Justices William Brennan, Jr. and Antonin Scalia.
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Nies, Gregory O.
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This paper examines how the jurisprudential visions of United States Supreme Court Justices William Brennan, Jr. and Antonin Scalia guide their interpretations of the First Amendment Establishment Clause. The paper begins by examining Establishment Clause basics, the United States legal system and judicial philosophies, and Establishment Clause jurisprudential history. The elusive search for a standard Establishment Clause interpretation in modern jurisprudence is examined through an analysis of the linear historical view and the practitioner's categorical view. It is argued that the single most important factor in determining an overall jurisprudential philosophy is ones method of interpretation. Accordingly, the primary methods of constitutional interpretation, originalism, textualism and the Living Constitution method are examined. Justice Brennan's and Justice Scalia's jurisprudential visions are examined generally, and in the context of their Establishment Clause jurisprudence. The paper concludes that both justices have consistently applied their widely different but principled jurisprudential visions when interpreting the Establishment Clause.