A New Originalism: Adoption of a Grammatical Interpretive Approach to Establishment Clause Jurisprudence after District of Columbia v. Helle
This thesis proposes an approach to Establishment Clause jurisprudence (and one applicable to constitutional interpretation as a whole) that maintains fidelity to the Constitution by confining the application and interpretation of explicit text to the strictures of well-established norms of grammar and usage. It will begin by analyzing the disparities created through the addition or substitution of super-textual language to the clause through the use of surrogate concepts, and will demonstrate that any such method of constitutional adjudication becomes unworkable and incoherent once such tests utilize surrogate concepts and terminology. Through grammatical exegesis will emerge the theory that the Religion “phrases” do not afford competing protections, and adhering most closely to the structure and meaning of the Religion Clause as a whole, more specifically, with respect to the grammatical interplay of its two adjectival subparts, the present participle phrases “respecting an establishment of religion” and “prohibiting the free exercise thereof,” a new normative meaning, a modality, emerges, where the Establishment “phrase” becomes construed in its truest context, as an adjectival phrase modifying “law.” This “linguistic modality” thus respects and maintains the integrity of the document as drafted, and ensures that the words and context employed by the Founders--to which indelible significance adhered at the moment of inscription--remain governed by normative rules of grammar and usage (e.g., “Standard Written English”); only in this way does the language of 1787/1791 become bound by the same semantic and linguistic norms as bind the language today. In other words, this approach places a type of “linguistic seal” upon the Constitution that allows judicial interpretation to achieve consistent application within the parameters of modern society. Since judges today are bound by the same rules of grammar and usage comprising standard written English that bound the framers at the Constitutional Convention, this linguistic approach seals the original structure of the text within the parameters of modern application.
Christopher A. Boyko,
A New Originalism: Adoption of a Grammatical Interpretive Approach to Establishment Clause Jurisprudence after District of Columbia v. Helle,
57 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol57/iss4/4