Original Meaning Versus Founder's Intent As To The First Amendment ( Updated )

Update- A comment to this post wanted me to bring forth a point of qualification and clarity. While often this discussion is framed as to what the founders thought or meant it goes beyond that. It also goes to all those changes to the document and all the other amendments. So from the Post Civil War amendments to the amendment that guaranteed a females right to vote this same discussion would occur

Interesting set of article at two big religion law blogs that deals with the those that advocate original intent ( What the Founders meant ) which seems to be going out of style in some areas , and original meaning or what some call public meaning originalism .

See Drakeman on Original Meaning, Original Intent, and Religious Liberty ( and go to the link provided ) and original intent -- and why law is not a "message in a bottle" at Mirrors of Justice.

I have to admit I am more of a original meaning guy. Echoing Scalia's frustration as noted here , I agree that "it’s often easy to find some Framer whose policy choices are the same as yours, thus allowing too much results-driven analysis".

Part of the problem is most folks universe of the Founder's is three or four people . This bleeds over to the pundits and to politics which I don't find helpful. I am not sure why they get veto power over everyone else. I love Thomas Jefferson but I an still not sure why everything he wrote in this area his the Holy Writ over others about intent

Also who exactly are the Founders? The folks at the Convention ? Do they include people in the State Conventions that ratified it ? What about the role of the Declaration of Independence ?  What weight should the Federalist Papers be given versus other work etc etc etc .

Further as I observe matters in politics I am more wary of being able to find Legislative intent.

Still like most people I am a tad of heretic in these matters , and I sprinkle some Founder's intent in because I think at times one has too.

As was noted by Prof Drakeman notes at Things I Haven’t Figured Out — Part 3: Where’d the Framers Go?


What I find perplexing is that people believe that the hunt for objective public meaning avoids these problems. Let’s look, for example, at the system of town-based taxes for Protestant ministers that existed in New England at the time of the Constitution. The Massachusetts courts called it an “establishment,” whereas the New Hampshire courts said that the same system definitely was not an establishment.


So, when we look at the First Amendment, which is the objective public meaning of “establishment,” the MA version or the NH version? There are two perfectly good choices that happen to be inconsistent with each other. Wouldn’t it be useful to know what the actual people who adopted and ratified the establishment clause thought it meant?