History and Tradition in the Trump Justices’ Church-State Jurisprudence

This article analyzes conservative Supreme Court justices’ recent use of history and tradition in First Amendment religious liberty cases. It argues that these justices have failed to articulate a persuasive rationale as to why exactly the Establishment Clause must be interpreted by reference to historical practices and understandings and that they have failed to adequately show that history supports their “no-coercion†construction of what constitutes a prohibited establishment. Concerning the Free Exercise Clause, the court’s conservatives have dismissed history by disregarding historical practices that do not conform to their approach to the text. The court’s use, misuse, and nonuse of history cannot help but give the impression that policy preferences—more than history or the actual original understanding of the First Amendment—have determined recent church-state decisions.