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10/03/2017

More from Bruce Ledewitz on Originalism and the Trinity Lutheran Case
Michael Ramsey

At Hallowed Secularism, Bruce Ledewitz: Debate on Originalism.  From the introduction:

Last week I had the pleasure of exchanges at Duquesne Law School and at Pitt Law School with Rick Duncan of Nebraska Law School--not actually debates. Professor Duncan is both knowledgeable and forthright and I only wish national disagreements could be entertained as fruitfully. Both the students and I learned a great deal about law and religion and originalism. Here are my remarks on the Lutheran Church case and originalism, which I discussed on this blog in July. My thanks to Pitt Law School and the Pitt Federalist Society, as well as the Duquesne Federalist Society for the invitations.

And further: 

In July, I engaged in an extended exchange with Georgetown Law Professor and, it is fair to say, America’s leading originalist, Randy Barnett on this subject of Trinity Lutheran Church and the end of originalism [ed.: with all respect to Professor Barnett, I might say that America's leading originalist is Clarence Thomas]. Suffice it to say, the exchange went Randy’s way. You can look it up. 

But, since, as all law students know, it is possible to lose a debate to a more skilled and more intelligent adversary even though you are actually right, I thought I would try again to explain just what a disaster Trinity Lutheran Church is for the doctrine of originalism and why originalism should have to be retooled in light of that case.

Trinity Lutheran Church held that the State of Missouri was required by the Free Exercise Clause to allow a church to participate in a playground resurfacing reimbursement grant program. The constitutional violation consisted in prohibiting the church’s participation in a government benefits program solely because of the church’s religious character.

From the point of view of originalism, what is noteworthy about Chief Justice Roberts’ majority opinion and the concurrences by Justices Thomas and Gorsuch is the unwillingness of any Justice in the majority even to attempt to justify this result by reference to the original public meaning of the Free Exercise Clause or the original public meaning of the 14th Amendment under some theory of due process incorporation. 

There is no way to interpret that original public meaning and come to the conclusion that a government’s refusal to provide public funds directly to a church could violate the Free Exercise Clause. ...

Earlier posts on the topic include: 

Bruce Ledewitz, 'Trinity' case marks end of originalism

Rob Natelson, A Response to a “Living Constitutionalist”

Randy Barnett, Does Trinity Lutheran mark the “end of originalism”?

Michael Ramsey, Is Trinity Lutheran the End of Originalism?