A new originalism: Adoption of a grammatical interpretive approach to Establishment Clause jurisprudence after District of Columbia v. Heller.

摘要

The debate governing the proper method of Constitutional interpretation has waged amongst judges, scholars, and advocates since the very founding of the document itself. A universally-accepted approach would seem impossible to achieve. However, a solid framework for interpretation must guide any system of proper Constitutional jurisprudence. This thesis proposes such a framework, as applied to the Establishment Clause of the First Amendment, a constitutional provision that has yet eluded consistent application. It examines the infirmities of current Establishment Clause jurisprudence occasioned by the judicial creation of surrogate constitutional principles that have improperly replaced and supplanted clear text. Because of this improper supplantation, Establishment Clause jurisprudence has devolved into a series of inchoate approaches that, by virtue of their surrogate status, defy clear and consistent application. The result has become the creation, by judicial fiat, of multiple "establishment clauses" with each approach existing both independently and yet interchangeably, the amalgamation of which produces jurisprudential chaos.;This framework adheres to the text of the Establishment Clause through interpretation of the Clause within the parameters of its textual language and grammatical structure. It achieves uniformity of application yet remains flexible therein, where such application operates within the confines of rules of grammar and usage that bind textual interpretation to those rules. It analyzes the weaknesses of the current approaches in light of this framework, and sets forth a standard that demands adherence to text as governed by rules of grammar and usage, thereby eliminating surrogate Constitutional terminology.