ESSENTIALLY CONTESTED HISTORIES:

ON RECENT EFFORTS TO CABIN THE MEANINGS OF

SLAVERY AND DISESTABLISHMENT

ANDREW KOPPELMAN†

I. AVERSIVE CONSTITUTIONALISM ......................................................... 84

II. THE THIRTEENTH AMENDMENT ......................................................... 89
A. The Amendment Read Broadly..................................................... 89
B. The Amendment Read Narrowly .................................................. 92
C. Accounting for the Dispute .......................................................... 96
III. THE ESTABLISHMENT CLAUSE .......................................................... 98
A. The Clause Read Broadly ............................................................ 99
B. The Clause Read Narrowly ........................................................ 100
C. Accounting for the Dispute ........................................................ 102
IV. CONCLUSION ................................................................................... 107

† John Paul Stevens Professor of Law and Professor (by courtesy) of Political Science,
Department of Philosophy Affiliated Faculty, Northwestern University. Thanks to Jack
Balkin, Jonathan Gienapp, Mark Graber, James J. Heaney, Sandy Levinson, Martin
Loughlin, Steve Lubet, Michael McConnell, John McGinnis, and Stephen Siegel, and to
audiences at conferences on “Text and (What Kind of) History?”, Stanford Constitutional
Law Center, “Freedom, Equality, Religion,” Nuffield College, Oxford University, “The
Evolution of Religious Liberty,” Wayne State University Law School, and the Annual Law
and Religion Roundtable, University of Virginia School of Law, for comments on an earlier
draft. Please send comments, correction of errors, and grievances to
akoppelman@[Link].

83
84 WAYNE LAW REVIEW [Vol. 70.1:83

Some of the Constitution’s provisions decree that certain specific

historical evils must not happen again. Such provisions generate a unique
interpretive problem. The object of interpretation is not a word or a phrase
but a repudiated cluster of practices. Any construction of such provisions
must offer a description of what was wrong with the original evil so that
the interpreter can decide whether the challenged action repeats that
wrong.
The interpreter's moral judgment will inevitably shape the description.
Every historical episode is susceptible to multiple interpretations,
depending on which aspects the interpreter deems salient. One danger,
which happened in the past and is happening again, is that an interpreter
who is untroubled by some aspects of the historical evil may improperly
narrow its scope by deeming those aspects outside the prohibition.
I illustrate this by focusing on two sections of the U.S. Constitution,
the Thirteenth Amendment’s prohibition of slavery and the First
Amendment’s prohibition of establishments of religion. The Supreme
Court has subjected each to narrowing constructions, which focus on
uncontroversial aspects of the historical wrong and then assert without
further argument that they exhaust the text’s coverage.
The most recent instance of this maneuver is Justice Gorsuch’s
reformulation of Establishment Clause law, cited with approval in his
opinion for the Court in Kennedy v. Bremerton,1 which would allow
previously impermissible public endorsements of specific religious
beliefs. His interpretive strategy is the same one that the Court used to
restrict the scope of the Thirteenth Amendment in the Civil Rights Cases,2
Plessy v. Ferguson,3 and Hodges v. United States.4 A description of what
is undoubtedly included in the pertinent amendment’s coverage does not,
however, yield any information about the boundaries of coverage.

I. AVERSIVE CONSTITUTIONALISM

Kim Lane Scheppele, in an essay on comparative constitutional law,

observes that some constitutions and constitutional provisions instantiate
what she calls “aversive constitutionalism,” which builds constitutional
principles on negative models rather than positive aspirations. These
negative models can be, in their own way, constitutive of national identity.
“[C]onstitution builders often have a much stronger sense of what they do
not want to adopt than what they do, a clearer vision of who and what they

1. 142 S. Ct. 2407 (2022).

2. 109 U.S. 3 (1883).
3. 163 U.S. 537 (1896).
4. 203 U.S. 1 (1906).
2024] ESSENTIALLY CONTESTED HISTORIES 85

are not rather than of who and what they are.”5 Aversive constitutionalism
is not just a matter of alternatives rejected because there was something
better. The rejected alternatives are at the core of constitutional meaning.
“Constitution builders guess about the future and what will most
successfully guide them through it. They know about the past and the
present and what they want to avoid.”6 The rejection of the Communist
past constitutes the post-Communist regimes of Eastern Europe. The
rejection of racism constitutes the South African regime..7 “Aversive
constitutionalism identifies a deeper sense of knowing who you are by
knowing what you are not: it incorporates a nation-making sense of
rejection of a particular constitutional possibility.”8
Jed Rubenfeld emphasizes the importance of paradigmatic cases that
are objects of constitutional aversion. He observes that such cases
frequently anchor constitutional argumentation, sometimes in a way that
is only distantly related to the semantic meaning of the pertinent
constitutional provision.9 They are “the core historical commitments
memorialized by the act of constitution-writing in question.”10 For
example, the language of the Fourteenth Amendment is broad and vague.11
The Amendment had the specific, publicly understood purpose of
invalidating the Black Codes.12 Enacted by white-controlled legislatures
after the Civil War, the Codes imposed specific legal disabilities on blacks,
such as requiring them to be gainfully employed under contracts of long
duration, excluding them from occupations other than manual labor, and
disabling them from testifying against whites in court.13
The language of the Fourteenth Amendment’s text, however, standing
alone, could support a judicial opinion upholding, say, a statute requiring
all and only blacks to be employed as servants or laborers, by applying

5. Kim Lane Scheppele, Aspirational and aversive constitutionalism: The case for
studying cross-constitutional influence through negative models, 1 I-CON 296, 298 (2003).
6. Id.
7. Scheppele quotes the preamble of the South African constitution, which begins:
“We, the people of South Africa, Recognize the injustices of our past; Honour those who
suffered for justice and freedom in our land . . .” Id. at 304 (quoting S. AFR. CONST. (1996)).
8. Id. at 300. Harry Frankfurt pertinently observes: “As the set of its essential
characteristics specifies the limits of what a triangle can be, so does the set of actions that
are unthinkable for a person specify the limits of what the person can will to do. It defines
his essence as a volitional creature.” Harry Frankfurt, Rationality and the Unthinkable, in
THE IMPORTANCE OF WHAT WE CARE ABOUT 188 (1988).
9. JED RUBENFELD, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL SELF-
GOVERNMENT 184 (2001).
10. Id.
11. See U.S. CONST. amend. IV.
12. See THEODORE BRANTNER WILSON, THE BLACK CODES OF THE SOUTH (1965).
13. See generally id.
86 WAYNE LAW REVIEW [Vol. 70.1:83

rationality review. That would obviously be an interpretive travesty.14 The

unconstitutionality of the Black Codes is so much a part of the
amendment’s meaning that to say that this is a settled interpretation is a
misleading understatement. Rather, “[t]his piece of the Fourteenth
Amendment’s meaning precedes interpretation.”15 This is because “[t]he
struggle to abolish them was central to, motivating of, definitive of, the act
of constitution-writing that eventuated in the Fourteenth Amendment.”16
Any interpretation of the Amendment must be a chain of inferences from
the core commitment represented by this paradigm case.17
This is similar with respect to other provisions as well. For example,
the Fourth Amendment’s ban on unreasonable searches and seizures
repudiates the English government’s general searches and writs of
assistance before the American Revolution.18 The contract clause barred
the debtor relief legislation of the 1780s.19 The Court must honor the core
aversion in aversive constitutionalism in interpretation. A constitutional
provision must be understood to address the very problem that it was
designed to address.
That historical evil is not a rule, or even a standard, but rather the basis
of a commitment not to repeat it. A commitment, Rubenfeld observes, is
not necessarily exhausted by the specific intentions of the person who
made it. I may find on reflection that my commitment constrains me in
ways that I did not contemplate when I made it. Commitments have
objective components: “through a commitment, we engage ourselves to
something we think of as existing at least in part outside ourselves.” 20
Thus, having committed myself to become a parent, I can discover that
this demands more of my free time than I anticipated or intended. I am
committed nonetheless.21
The meaning of paradigm cases resembles, but is importantly different
from, Ronald Dworkin’s account of the meaning of abstract constitutional
provisions.22 Dworkin argues that the framers intended the abstract clauses
of the Constitution to make interpreters focus on the moral concepts to

14. RUBENFELD, supra note 9, at 181.

15. Id. at 183.
16. Id. at 182.
17. Id. at 178–95. Rubenfeld’s paradigm cases can include post-enactment decisions,
id. at 180, 188, but here I focus only on those that motivated changes in the text of the
Constitution.
18. See JED RUBENFELD, REVOLUTION BY JUDICIARY: THE STRUCTURE OF AMERICAN
CONSTITUTIONAL LAW 32–33 (2005).
19. Id. at 67–68.
20. Id. at 106.
21. Id.; RUBENFELD, supra note 9, at 189.
22. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 136 (rev. ed. 1978).
2024] ESSENTIALLY CONTESTED HISTORIES 87

which they refer.23 “The clauses are vague only if we take them to be
botched or incomplete or schematic attempts to lay down particular
conceptions. If we take them as appeals to moral concepts they could not
be made more precise by being more detailed.”24
One should understand any such broadly worded clause, Dworkin
thinks, to state a principle, a reason that must be given weight in deciding
what the rule is in particular cases.25 There is a sense in which a paradigm
case is a principle, thus defined. But so far as I am aware, every example
of a principle that Dworkin offers is capable of being stated in general
propositional form, with recourse directly to that proposition when
applying the principle to future cases.26 It is a characteristic of paradigm
cases that no such general proposition exhausts the law’s meaning because
no such general proposition can completely capture the historical
specificity of the paradigm.27 In such cases, a constitutional provision will
embody neither a moral concept nor a principle but rather the decision to
reject a specific historical evil. It is a specific moral judgment about a
particular case.28
The core of that moral judgment will, however, be contestable. The
contestability is deeper than that of “essentially contested concepts,”
which W.B. Gallie famously described as “concepts the proper use of
which inevitably involves endless disputes about their proper uses on the
part of their users.”29 In such cases, there is agreement about the concept
but disagreement about its application or the best realization of it. Dworkin
illustrates the point when he observes that we can share a concept of
fairness but disagree about how it should be applied in specific cases. After
I offer a general injunction to treat others fairly, I may come to see that

23. Id.
24. Id.
25. Id. at 77–78.
26. See, e.g., RONALD DWORKIN, LAW’S EMPIRE 435 n.7 (1986) (noting tension
between the principles “that people should be free to do what they wish with their own
property” and “that people should begin life on equal terms”).
27. Id.
28. Dworkin’s position, that the Constitution should be read to stand for specific moral
principles, conflates two different claims. One is that the Constitution embodies moral
judgments. The other is that those judgments take the form of principles. Dworkin’s
conflation presupposes without argument that morality concerns the application of abstract
principles to specific cases. I elaborate in Andrew Koppelman, Originalism, Abortion, and
the Thirteenth Amendment, 112 COLUM. L. REV. 1917, 1928–29 (2012). Here I repeat some
of the claims I made in that article, but prescind from several issues I addressed there:
whether moral judgments must take the form of principles; whether arguments based on
paradigm cases count as a kind of originalism; and whether an originalist reading of the
Thirteenth Amendment supports a constitutional right to abortion.
29. W.B. Gallie, Essentially Contested Concepts, 56 PROC. ARISTOTELIAN SOC’Y 167,
169 (1956).
88 WAYNE LAW REVIEW [Vol. 70.1:83

“some particular act I had thought was fair when I spoke was in fact
unfair.”30
With an historical evil, however, there may be agreement about the
facts but disagreement about what was evil about it. This will inevitably
open the door for present-day conceptions of what was wrong with the
paradigmatic case. Michael McConnell writes: “Rubenfeld is guided not
by a historical understanding of the ‘principles and propositions that
commit[ted] the nation in writing never again to permit certain evils,’ as
his theory demands, but by present-day conceptions of those principles
and those evils.”31 Aversive constitutionalism makes such a result
impossible to avoid. The core is less specific than a concept. Its meaning
is less fixed. We, interpreting the evil, have to make our own judgments
of what was evil about it. When we do that, we may be guided in part by
the framers’ judgments, but ultimately, we must decide the meaning of the
wrong.
Any account of a historical evil will necessarily make salient the
concerns of the historian and his time. Historical facts are not self-
explanatory. As E.H. Carr observed, “from the ocean of facts the historian
selects those which are significant for his purpose.”32 A historian can
describe the sequence of events in a limitless number of ways. Rubenfeld
notes: “Different judges will see the paradigm cases differently.”33
The discernment of the salient aspects of a paradigm resembles, but is
not identical to, the operation of the mischief rule in statutory
interpretation. As Samuel Bray explains, the rule demands that the
interpreter read a statute in light of “the problem that precedes the statute
and the legal deficiency that allowed it; the mischief is what the statute
responds to.”34 It is an aid to interpretation, “logically anterior to the text,
something the interpreter knew while reading the text itself.”35 It is often
“a rationale for choosing a narrower reading”36 of a law. One excludes
something from the literal meaning when the thing subtracted is no part of
the mischief that concerns the statute. “No vehicles in the park” obviously

30. DWORKIN, supra note 22, at 134.

31. Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 GEO. WASH.
L. REV. 1127, 1138 (1998).
32. EDWARD HALLETT CARR, WHAT IS HISTORY? 138 (1962).
33. RUBENFELD, supra note 18, at 17.
34. Samuel Bray, The Mischief Rule, 109 GEO. L.J. 967, 973 (2021).
35. Id. at 991.
36. Id. at 1000.
2024] ESSENTIALLY CONTESTED HISTORIES 89

does not apply to baby carriages.37 On the other hand, the rule sometimes
demands a broad reading. Bray quotes Justice Story:

But where the words are general and include various classes of
persons, I know of no authority, which would justify the court in
restricting them to one class or in giving them the narrowest
interpretation, where the mischief to be redressed by the statute is
equally applicable to all of them.38

The mischief rule will sometimes leave a text’s meaning unresolved,

for example, if “there is a dispute about the mischief.”39 For this reason,
simply looking to the mischief rule cannot resolve paradigm case issues .
That kind of dispute arises in the cases I will now take up.

II. THE THIRTEENTH AMENDMENT

The Thirteenth Amendment’s prohibition of slavery arises out of a

specific historical wrong. From the beginning, there has been
disagreement about what the wrong consisted of, and consequent
disagreement about the amendment’s scope. Justice O’Connor observed
that the “primary purpose of the Amendment was to abolish the institution
of African slavery as it had existed in the United States at the time of the
Civil War.”40 But what was that institution? What does abolishing it entail?

A. The Amendment Read Broadly

The same Congress that approved the Thirteenth Amendment relied

upon its authority to enact the Civil Rights Act of 1866, which declared
that everyone born in the United States was a citizen and decreed that all
persons born in the United States

shall have the same right, in every State and Territory in the
United States, to make and enforce contracts, to sue, be parties,

37. WILLIAM N. ESKRIDGE, JR., INTERPRETING LAW: A PRIMER ON HOW TO READ

STATUTES AND THE CONSTITUTION 15–16 (2016). The mischief rule can also expand the
coverage of a statute, by making it apply to an activity that is not specifically named in the
text but which is part of the evil that the statute aims to remedy. A “vehicle” is a conveyance
moving on land, but if flying hovercraft that floated a foot above the ground started to be
used in a way that endangered pedestrians in parks, they would probably be construed to
be within the statute.
38. Bray, supra note 34, at 1000 (quoting United States v. Winn, 28 F. Cas. 733, 734
(C.C.D. Mass. 1838)).
39. Id. at 1013.
40. United States v. Kozminski, 487 U.S. 931, 942 (1988).
90 WAYNE LAW REVIEW [Vol. 70.1:83

and give evidence, to inherit, purchase, lease, sell, hold, and

convey real and personal property, and to full and equal benefit of
all laws and proceedings for the security of person and property,
as is enjoyed by white citizens.41

Senator Lyman Trumbull, the amendment’s principal author,

explained that the statute was necessary to invalidate the Black Codes,
which instituted “the very restrictions which were imposed . . . in
consequence of the existence of slavery,”42 even if they did “not make a
man an absolute slave.”43 It was authorized by Congress’s Section 2 power
to enforce the Amendment: “of what avail will it now be that the
Constitution of the United States has declared that slavery shall not exist,
if in the late slaveholding States laws are to be enacted and enforced
depriving persons of African descent of privileges which are essential to
freemen?”44 The Amendment’s force was broad: “With the destruction of
slavery necessarily follows the destruction of the incidents to slavery.”45
Congress has “authority to give practical effect to the great declaration that
slavery shall not exist in the United States.”46
At the time, some doubted that Congress had the authority to do this.47
They construed “slavery” more narrowly.48 But they did not prevail.
Congress passed the law and then overrode President Andrew Johnson’s
veto, which invoked constitutional objections.49
Because the Amendment does not mention any specific right, James
Gray Pope observes, “courts and Congress are left with the task of
determining what rights are necessary to negate the prohibited conditions
of slavery and involuntary servitude.”50 It demands that those rights be

41. Civil Rights Act of 1866, ch. 31, §1, 14 Stat. 27, 27. For a defense of the use of
post-enactment legislative history as evidence of original meaning, see Michael W.
McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947, 1107
(1995). That legislation enforcing the Reconstruction amendments implicitly interprets the
meaning of those amendments is argued in id. at 1110–17.
42. Cong. Globe, 39th Cong., 1st Sess. 474 (1866) (statement of Sen. Lyman
Trumbull).
43. Id. at 475.
44. Id. at 474.
45. Id. at 322 (statement of Sen. Lyman Trumbull).
46. Id. at 474. Trumbull’s argument was not idiosyncratic. Other Republicans made
similar statements. Mark A. Graber, Subtraction by Addition?: The Thirteenth and
Fourteenth Amendments, 112 COLUM. L. REV. 1501, 1518–20 (2012).
47. Id. at 1522–23.
48. Id.
49. See ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION 1863–
1877 243–51 (1988).
50. James G. Pope, What’s Different About the Thirteenth Amendment, and Why Does
It Matter?, 71 MD. L. REV. 189, 191 (2011).
2024] ESSENTIALLY CONTESTED HISTORIES 91

developed in response to the dynamics of nongovernmental systems, here

systems in which the wrong is actually occurring regardless of whether it
has the sanction of the state.51 It “commits the government to root out the
prohibited practice wherever it appears and to enact whatever measures
might be necessary to prevent it from recurring.”52
Justice Harlan argued in his dissent in the Civil Rights Cases that:

since slavery. . . was the moving or principal cause of the adoption

of that amendment, and since that institution rested wholly upon
the inferiority, as a race, of those held in bondage, their freedom
necessarily involved immunity from, and protection against, all
discrimination against them, because of their race, in respect of
such civil rights as belong to freemen of other races.53

In Plessy v. Ferguson, Harlan’s dissent argued that racial segregation

violated not only the Fourteenth but also the Thirteenth Amendment.54 The
latter provision “not only struck down the institution of slavery as
previously existing in the United States, but it prevents the imposition of
any burdens or disabilities that constitute badges of slavery or servitude.”55
He quoted the Dred Scott case’s declaration that African Americans were,
at the time of the framing, “considered as a subordinate and inferior class
of beings, who had been subjugated by the dominant race, and, whether
emancipated or not, yet remained subject to their authority, and had no
rights or privileges but such as those who held the power and the
government might choose to grant them.”56 Harlan declared that the
Reconstruction Amendments “eradicated these principles from our
institutions.”57
Congressional power under the Thirteenth Amendment is today read
quite broadly:58 it “authorizes Congress not only to outlaw all forms of
slavery and involuntary servitude but also to eradicate the last vestiges and

51. Id. at 192–94.

52. Id. at 195. All this is true even if one construes the amendment only to forbid the
compulsion of a worker to serve a master. Congress has an obligation to prevent that from
happening, and to do so by appropriate legislation.
53. Civil Rights Cases, 109 U.S. 3, 36 (1883) (Harlan, J., dissenting).
54. Plessy v. Ferguson, 163 U.S. 537, 555 (1896) (Harlan, J., dissenting).
55. Id.
56. Id. at 559–60 (quoting Dred Scott v. Sandford, 60 U.S. 393, 404–405 (1857)).
57. Id. at 560.
58. See generally Rebecca E. Zietlow, The Promise of Congressional Enforcement, in
THE PROMISES OF LIBERTY: THE HISTORY AND CONTEMPORARY RELEVANCE OF THE
THIRTEENTH AMENDMENT 182 (Alexander Tsesis ed., 2010).
92 WAYNE LAW REVIEW [Vol. 70.1:83

incidents of a society half slave and half free . . .”59 On the basis of this
interpretation, the Court in Jones v. Alfred H. Mayer Co. sustained
Congress’s authority to outlaw private racial discrimination: “Congress
has the power under the Thirteenth Amendment rationally to determine
what are the badges and incidents of slavery, and the authority to translate
that determination into effective legislation.”60 The decision to outlaw
private housing discrimination, the Court held, is a reasonable exercise of
this power. “[W]hen racial discrimination herds men into ghettos and
makes their ability to buy property turn on the color of their skin, then it
too is a relic of slavery.”61
The Court has relied on the broad “badges and incidents” language to
address such disparate evils as racial profiling and gender and sexual
orientation discrimination.62 It has held Congress’s remedial powers
extend to banning discrimination against Jews and persons of Arab
ancestry.63 On this basis, the Second Circuit upheld a law criminalizing
hate crimes based not only on race, but also on religion and national
origin.64
In short, American law has a broad reading of the Amendment deeply
embedded within it.

B. The Amendment Read Narrowly

Narrower readings have been proposed. In the 1866 Congress, even

some supporters of the Civil Rights Act questioned Senator Trumbull's

59. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 n.78 (1968) (quoting Civil Rights
Cases, 109 U.S. at 22 (1883)).
60. Jones, 392 U.S. at 440.
61. Id. at 442–43.
62. See ALEXANDER TSESIS, THE THIRTEENTH AMENDMENT AND AMERICAN FREEDOM
137–60 (2004); Jennifer Mason McAward, The Scope of Congress’s Thirteenth
Amendment Enforcement Power After City of Boerne v. Flores, 88 WASH. U. L. REV. 77,
81 n.23 (2010).
63. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617–18 (1987); Saint Francis
Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987).
64. United States v. Nelson, 277 F.3d 164 (2d Cir. 2002). That the Thirteenth
Amendment is not confined to injuries to blacks, or even to those based on race, was
suggested by the Supreme Court in Griffin v. Breckenridge, 403 U.S. 88 (1971), which
held that the Ku Klux Klan act, outlawing private conspiracies to deprive any class of
persons of their constitutional rights, was a valid exercise of Congress’ Thirteenth
Amendment powers. In order to avoid creating a general federal tort law, the Court held
that the mental element required for a violation of the statute was “some racial, or perhaps
otherwise class-based, invidiously discriminatory animus.” Id. at 102 (emphasis added). In
a footnote, the Court added that “[w]e need not decide, given the facts of this case, whether
a conspiracy motivated by invidiously discriminatory intent other than racial bias would
be actionable.” Id. at 102 n.9.
2024] ESSENTIALLY CONTESTED HISTORIES 93

interpretation, leading to the enactment of the Fourteenth Amendment in

part to dispel doubts about Congress's authority to enact it.65
The Civil Rights Cases held that the amendment did not authorize
federal antidiscrimination legislation: “The Thirteenth Amendment has
respect, not to distinctions of race, or class, or color, but to slavery.” 66
Racism as such wasn’t covered: “[i]t would be running the slavery
argument into the ground to make it apply to every act of discrimination.
. . .”67 The Court asked rhetorically:

But is there any similarity between such servitudes and a denial

by the owner of an inn, a public conveyance, or a theatre of its
accommodations and privileges to an individual, even though the
denial be founded on the race or color of that individual? Where
does any slavery or servitude, or badge of either, arise from such
an act of denial? Whether it might not be a denial of a right which,
if sanctioned by the state law, would be obnoxious to the
prohibitions of the Fourteenth Amendment is another question.
But what has it to do with the question of slavery?68

People discriminated against Black people not because they were

slaves, but because they were Black.

There were thousands of free colored people in this country before

the abolition of slavery, enjoying all the essential rights of life,
liberty and property the same as white citizens. Yet no one at that
time thought that it was any invasion of his personal status as a
freeman because he was not admitted to all the privileges enjoyed
by white citizens, or because he was subjected to discrimination
in the enjoyment of accommodations in inns, public conveyances
and places of amusement. Mere discriminations on account of race
or color were not regarded as badges of slavery.69

65. HERMAN BELZ, EMANCIPATION AND EQUAL RIGHTS 121–22 (1978).

66. Civil Rights Cases, 109 U.S. 3, 24 (1883).
67. Id. On the other hand, in private notes, the opinion’s author, Justice Bradley,
understood slavery in more capacious terms: “To deprive white people of the right of
choosing their own company would be to introduce another kind of slavery.” 7.2 CHARLES
FAIRMAN, THE HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION
AND REUNION, 1864–1888 564 (1987).
68. 109 U.S. at 21.
69. Id. at 25; see also David R. Upham, The Understanding of Neither Slavery Nor
Involuntary Servitude Shall Exist before the Thirteenth Amendment, 15 GEO. J.L. & PUB.
94 WAYNE LAW REVIEW [Vol. 70.1:83

In Plessy, the Court similarly held that state-mandated racial

segregation did not violate the amendment:

A statute which implies merely a legal distinction between the

white and colored races—a distinction which is founded in the
color of the two races and which must always exist so long as
white men are distinguished from the other race by color—has no
tendency to destroy the legal equality of the two races or
reestablish a state of involuntary servitude.70

On the contrary, the Amendment prohibited only “the control of the

labor and services of one man for the benefit of another, and the absence
of a legal right to the disposal of his own person, property and services.”71
The Civil War Amendments “in the nature of things . . . could not have
been intended to abolish distinctions based upon color or to enforce social,
as distinguished from political, equality.”72 Compulsory racial
segregation, the Court concluded, was “reasonable, and . . . enacted in
good faith for the promotion for the public good.”73 Racism is part of the
natural order: “Legislation is powerless to eradicate racial instincts or to
abolish distinctions based upon physical differences . . . If one race be
inferior to the other socially, the Constitution of the United States cannot
put them upon the same plane.”74

POL’Y 137, 170 (2017) (documenting unchallenged, pervasive racial discrimination before
the Civil War in jurisdictions that prohibited slavery). A similar argument has been offered
to defeat the claim that a prohibition on abortion violates the Thirteenth Amendment:
although it is true that compulsory childbearing was an especially cruel element of slavery
for a large part of the slave population, abortion was not permissible for anyone. Kurt Lash,
Roe and the Original Meaning of the Thirteenth Amendment, 20 GEO. J. L. & PUB. POL’Y
131 (2023); James J. Heaney, There’s No 13th Amendment Right to Abortion: A(n overdue)
reply to Andrew Koppelman, DE CIVITATE (Jan. 10, 2023), [Link]
[Link]/p/theres-no-13th-amendment-right-to [[Link]
Enslaved women were subjected to this burden, in other words, not because they were
slaves, but because they were women. (Query whether a legislative attempt to restore the
common law status of married women would violate the amendment. Under that regime, a
husband held a legal privilege to rape and beat his wife, confiscate her earnings, and deny
her any access to her children. A wife was incompetent to own property or enter into
contracts without her husband’s consent. She could never escape this status so long as he
refrained from adultery.).
70. Plessy v. Ferguson, 163 U.S. 537, 543 (1896).
71. Id. at 542.
72. Id. at 544.
73. Id. at 550.
74. Id. at 551–52.
2024] ESSENTIALLY CONTESTED HISTORIES 95

Hodges v. United States75 held that Congress had no power to pass the
Civil Rights Act of 1866. (Jones v. Mayer overruled it.) Several white men
had used violence and threats to force African American workers to leave
their jobs at a sawmill.76 The Court held that the federal statute, which
criminalized interference with workers’ right to make contracts without
regard to race, was unconstitutional: “no mere personal assault or trespass
or appropriation operates to reduce the individual to a condition of
slavery.”77 This was because slavery meant only “a condition of enforced
compulsory service of one to another.”78 These victims indeed lost their
freedom to perform their contracts. “But every wrong done to an
individual by another, acting singly or in concert with others, operates pro
tanto to abridge some of the freedom to which the individual is entitled.”79
Some modern scholars agree. Most prominently, Kurt Lash claims that
the terms “slavery” and involuntary servitude” in the Amendment are legal
terms of art, which “referred to a specific and legally codified ‘private
economical relation’ between a ‘master’ and a ‘servant.’”80

75. 203 U.S. 1 (1906).

76. Id. at 20.
77. Id. at 18.
78. Id. at 16.
79. Id. at 17.
80. Kurt Lash, Roe and the Original Meaning of the Thirteenth Amendment, 20 GEO.
J. L. & PUB. POL’Y 131 (2023). The same argument is embraced by Heaney, supra note 69.
Query whether this narrow reading of the amendment can support the result in Bailey v.
Alabama, 219 U.S. 219 (1911). That decision invalidated a criminal statute that in effect
demanded specific performance of labor contracts. Bailey, 219 U.S. at 245. After the Civil
War, the Southern states used such devices to reproduce many of the substantive abuses of
antebellum slavery without the legal institution that specifically codified it. See generally
DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK
AMERICANS FROM THE CIVIL WAR TO WORLD WAR II (2008). If only the legal category was
prohibited, then it is not clear that even the Court’s inadequate efforts were legitimate. Id.
Other scholars have offered less narrow readings that might still considerably constrict
present law. David Upham understands the prohibition as
encompassing chiefly the “legal existence” of slavery and involuntary servitude,
and perhaps also the nonlegal, actual existence of these evils, so their stipulated
non-existence imposed on government not only a duty to refrain from
recognizing slavery but also a duty to act to eradicate actual slavery by providing
effective remedies.
David R. Upham, The Understanding of Neither Slavery Nor Involuntary Servitude Shall
Exist before the Thirteenth Amendment, 15 GEO. J.L. & PUB. POL’Y 137, 141 (2017).
Jennifer Mason McAward argues that the outer limit of the prohibition is “public or
widespread private action, based on race or the previous condition of servitude, that mimics
the law of slavery and that has significant potential to lead to the de facto reenslavement or
legal subjugation of the targeted group.” Jennifer M. McAward, Defining the Badges and
Incidents of Slavery, 14 U. PA. J. CONST. L. 561, 569 (2012).
96 WAYNE LAW REVIEW [Vol. 70.1:83

The implicit claim is that an injury must be unique to slavery, perhaps

even judicially recognized as such, to be part of the slavery that the
Thirteenth Amendment outlaws.
The narrow reading has plenty of historical support. Many Americans
at the time thought that slavery was wrong but that African Americans
were inherently inferior to whites and that their emancipation did not entail
any right to equal treatment.81 For example, President Andrew Johnson
pressed Southern states to ratify the Thirteenth Amendment and then spent
the rest of his career fighting against racial equality.82

C. Accounting for the Dispute

A contemporaneous defense of Jones v. Mayer’s expansive reading of

the Thirteenth Amendment notes the indispensable role of judgment in
discerning the Amendment’s scope:

Although “slavery” as an abstract form does not encompass mere

discrimination in the sale of housing, the attention of the
congressmen in 1864 and 1865 was not directed simply at an
abstract model of slavery, but at a particular instance of that evil
which existed in the South. Having flourished for over a century,
southern slavery had built up strong interests among those who
depended upon it and ingrained habits and attitudes in men of both
races. It involved a complex of social and economic as well as
legal relationships. . . .

. . . [The Thirteenth Amendment] appears to have been designed

as a full response to the evil perceived. As modern perceptions of
that evil grow, the response may take on increasingly broader
scope.83

The problem of aversive constitutionalism is that, while constitution

builders may indeed have “a clearer vision of who and what they are not
rather than of who and what they are,”84 that vision will still be contestable
at its boundaries, and that contestability will change over time. Slavery is

81. See generally RAOUL BERGER, GOVERNMENT BY JUDICIARY (1977).

82. See ERIC MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION (1960).
83. Note, The “New” Thirteenth Amendment: A Preliminary Analysis, 82 HARV. L.
REV. 1294, 1301–02 (1969). The soundness of Jones depends on this kind of argument,
since (as the dissent emphasized) it is doubtful that the framers of the Thirteenth
Amendment, with their broad attachment to freedom of contract, would have interpreted
slavery this way.
84. Scheppele, supra note 5, at 298.
2024] ESSENTIALLY CONTESTED HISTORIES 97

wrong, but at different times we will have different accounts of what is

wrong with it. McConnell is right that present-day conceptions of the evil
of slavery will inevitably color our interpretation of the Thirteenth
Amendment.85 Otherwise, we might have to doubt Jones’s assumption that
racist discrimination is part of what the amendment prohibits since racism
was so pervasive at the time of the framing.86
The narrow reading has other surprising entailments. Congress relied
on the commerce clause rather than the Reconstruction amendments when
it enacted the Civil Rights Act of 1964 because the Civil Rights Cases had
cast doubt on its power under the Thirteenth and Fourteenth Amendments
to remedy discrimination by private actors.87 This was obviously
incongruous. Prof. Gerald Gunther objected that “the construction of an
artificial commercial façade” was “demeaning.”88 But its authority under
the more appropriate source, the Thirteenth Amendment, was clarified too
late: Jones was not decided until 1968. If, however, the narrow reading is
correct, the commerce power will turn out to be the only possible source
of Congressional power to enact this law. Justice Thomas and many
originalist scholars have contended that the commerce power has been
read too broadly.89 He would return to the old pre-New Deal categories,
proposing that “commerce” be understood to include only “selling,
buying, and bartering, as well as transporting for these purposes.”90 The
broad commerce power as now understood—which happens to have been
relied on in 1964—is “but an innovation of the 20th century.”91 If this is
correct, and those scholars also read the Thirteenth Amendment narrowly,
it will follow that the 1964 Act is unconstitutional, authorized neither by
the Amendment nor by the commerce power.92
The Civil Rights Cases, Plessy, and Hodges neglected to explain why
the line ought to be drawn where the Court drew it. Why should the
amendment deem only some of the burdens and humiliations attendant

85. McConnell, supra note 31.

86. The pervasiveness of the racism is documented in RAOUL BERGER, GOVERNMENT
BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977).
87. SANFORD LEVINSON ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING 637–
40 (8th ed. 2022).
88. Id. at 638.
89. See United States v. Morrison, 529 U.S. 598, 627 (2000) (Thomas, J., concurring)
(criticizing the commerce clause as “Congress appropriating state police powers.”).
90. United States v. Lopez, 514 U.S. 549, 585 (1995) (Thomas, J., concurring).
91. Id. at 596. To similar effect, see, e.g., Randy E. Barnett, Jack Balkin’s Interaction
Theory of “Commerce,” 2012 U. ILL. L. REV. 623 (2012).
92. This is only one of many areas in which originalism promises to randomly blow up
familiar areas of American law. See Andrew Koppelman, Why do (Some) Originalists Hate
America?, 63 ARIZ. L. REV. 1033 (2021).
98 WAYNE LAW REVIEW [Vol. 70.1:83

upon slavery—burdens recognized as such at the time of the framing—to

be prohibited when the amendment purported to abolish it?
The Court’s response was a bald description of the historical wrong in
narrow terms that omitted the contested area. It is as though I were to ask
you whether Ann Arbor is in Michigan, and you were to respond by telling
me that it is not because Detroit is in Michigan.
What actually did the work, evidently, was the background
assumption that racism was natural and that the legislature was not
unreasonable in legislating on that basis.93 The Court presumed that,
because racial equality was obviously false, interpretive charity demanded
that one not attribute such silly ideas to the Constitution.94
Here’s the unavoidable indeterminacy that arises out of paradigms:
they do not interpret themselves. Interpretive charity is inevitable, but it
tends to import the interpreter’s values into the text. Given ambiguity, why
interpret a provision in a manifestly unreasonable way? These decisions
are uncontroversially wrong today, not because they are logically unsound
inferences from the text but because people now generally agree the values
they rely on are repugnant.95

III. THE ESTABLISHMENT CLAUSE

The Establishment Clause is a similarly apt candidate for paradigm

case interpretation. The core historical wrong it is intended to bar—an
establishment of religion of the kind that existed in England—is
specifically named in the text.96 Justice William Brennan, concurring in
the decision to ban school prayers, wrote in 1963 that the Court should ask
whether challenged practices “threaten those consequences which the

93. Plessy v. Ferguson, 163 U.S. 537, 550–51 (1896).

94. Id.
95. Interpretive charity continues to cabin the reach of the amendment. Balkin and
Levinson observe that, for many observers, the Thirteenth Amendment’s “project of ending
domination in social life, and securing self-rule and self-sufficiency . . . puts too many
features of society into question, ranging from the way markets and government actually
work to the way that family life is structured.” Jack M. Balkin & Sanford Levinson, The
Dangerous Thirteenth Amendment, 112 COLUM. L. REV. 1459, 1470 (2012). A reading of
the amendment that is more faithful to its commitments enables a defense of abortion such
as I have developed in previous writings, but it also opens the door to the opposite claim,
that the amendment protects the fetus and so categorically prohibits abortion. See George
S. Swan, The Thirteenth Amendment Dimensions of Roe v. Wade, 4 J. JUV. L. 1 (1980).
96. Rubenfeld briefly discusses the interpretation of the Establishment Clause in
RUBENFELD, supra note 18, at 29–30. Some have argued that the clause merely protects
state establishments from federal interference and so cannot be a constraint on the states,
but because Justice Gorsuch, whose work I am examining here, does not take up that
argument, I ignore it here as irrelevant to this article’s claims. Thanks to Rick Garnett for
pressing me on this point.
2024] ESSENTIALLY CONTESTED HISTORIES 99

Framers deeply feared; whether, in short, they tend to promote that type of
interdependence between religion and state which the First Amendment
was designed to prevent.”97 The question is what are “those substantive
evils the fear of which called forth the Establishment Clause of the First
Amendment.”98 Answering that requires an historical inquiry much like
that raised by the Thirteenth Amendment. When the authors of the First
Amendment condemned establishment, Thomas Curry notes, “they had in
their minds an image of tyranny, not a definition of a system.”99

A. The Clause Read Broadly

There is––or was, until recently––of course a well-developed body of

Establishment Clause law. The aspect of it that is salient here is the
requirement that the government take no position on live religious
questions. Disestablishment of religion meant that the government was
incompetent to adjudicate theological controversies. As recently as 2013,
I was able to offer the following description of that law:

First Amendment doctrine treats religion as a good thing. It insists,

however. . . that religion’s goodness be understood at a high
enough level of abstraction that the state takes no position on any
live religious dispute. It holds that we best honor religion’s value
by prohibiting the state from trying to answer religious questions.
Over time, American religious neutrality has become more vague
as America has become more religiously diverse, so that today
(with the exception of a few grandfathered practices) the state may
not even affirm the existence of God. This is not the kind of
neutrality toward all conceptions of the good that many liberal
political theorists have advocated, but it is the best response to the
enormous variety of religious views in modern America. It is
faithful to the belief held by the leading framers of the First
Amendment that state support can corrupt religion.100

The grandfathered practices, “In God We Trust” on the currency and

the like,

97. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 236 (1963) (Brennan, J.,
concurring).
98. Id. at 241.
99. THOMAS J. CURRY, THE FIRST FREEDOMS: CHURCH AND STATE IN AMERICA TO THE
PASSAGE OF THE FIRST AMENDMENT 211 (1986). The Court has similarly observed that the
purpose of the Framers of the First Amendment “was to state an objective, not to write a
statute.” Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970).
100. ANDREW KOPPELMAN, DEFENDING AMERICAN RELIGIOUS NEUTRALITY 2 (2013).
100 WAYNE LAW REVIEW [Vol. 70.1:83

represented a common-ground strategy—an effort, in its own

time, to understand “religion” in an ecumenical and nonsectarian
way. At the time that these elements of civil religion were put in
place . . . the existence of God appeared to be the one aspect of
religion that was common to the various religious factions then
dominant in American life. The continuation of this old settlement
is not an effort by an incumbent administration to manipulate
religion or a triumphalist effort to exclude outsiders.101

Several Supreme Court decisions vindicated that analysis, indicating

that old religious monuments were permissible, but new ones would be
invalid.102

B. The Clause Read Narrowly

But the Supreme Court recently announced that it was abandoning the
principal judicial test for the clause that was laid down in Lemon v.
Kurtzman.103 Kennedy v. Bremerton104 declared that “the Establishment
Clause must be interpreted by ‘reference to historical practices and
understandings.’”105 It demanded an “analysis focused on original
meaning and history.”106 The law must “accord with history and faithfully
reflect the understanding of the Founding Fathers.”107 None of this gives
any lower court any guidance as to how to decide anything, but the result
in that case, vindicating a public school football coach who insisted on
praying on the 50-yard line after games and putting his players in a
position where they would feel pressured to join him, indicates that much
state action that would previously have been invalid will now be upheld.108
Justice Gorsuch, writing for the Court, cited with approval Professor
Michael McConnell’s scholarship that identifies multiple important

101. Id. at 74.

102. Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2082 (2019) (declaring “a
presumption of constitutionality for longstanding monuments, symbols, and
practices”); McCreary Cnty. v. ACLU, 545 U.S. 844 (2005); Van Orden v. Perry, 545 U.S.
677 (2005).
103. 403 U.S. 602 (1971).
104. 142 [Link]. 2407 (2022).
105. Id. at 2428 (quoting Town of Greece v. Galloway, 572 U.S. 565, 576 (2014)).
106. Id.
107. Id. The same majority, in other contexts, is however willing to misrepresent original
meaning in order to reach results it finds congenial. Andrew Koppelman, Justice Alito,
Originalism, and the Aztecs, 54 LOY. U. CHI. L.J. 455 (2023).
108. On the pressure, see Andrew Koppelman, The Emerging First Amendment Right to
Mistreat Students, 73 CASE W. RSRV. L. REV. 1209 (2023).
2024] ESSENTIALLY CONTESTED HISTORIES 101

“historical hallmarks of an established religion.”109 He also cited his own

concurring opinion from the same term, which noted “some helpful
hallmarks that localities and lower courts can rely on.”110 There, he wrote:

Beyond a formal declaration that a religious denomination was in

fact the established church, it seems that founding-era religious
establishments often bore certain other telling traits. First, the
government exerted control over the doctrine and personnel of the
established church. Second, the government mandated attendance
in the established church and punished people for failing to
participate. Third, the government punished dissenting churches
and individuals for their religious exercise. Fourth, the
government restricted political participation by dissenters. Fifth,
the government provided financial support for the established
church, often in a way that preferred the established denomination
over other churches. And sixth, the government used the
established church to carry out certain civil functions, often by
giving the established church a monopoly over a specific
function.111

Note that, unlike those who read the Thirteenth Amendment narrowly,
Gorsuch is not claiming that “establishment” was a term of art with an
understood, lawyerly meaning at the time of the framing. Instead, both he
and McConnell are contemplating the history retrospectively and singling
out what they take to be the salient aspects.
Gorsuch noted several establishment clause precedents and argued
that “[t]he thread running through these cases derives directly from the
historical hallmarks of an establishment of religion—government control
over religion offends the Constitution, but treating a church on par with
secular entities and other churches does not.”112
But then he claimed that when the state singles out and endorses
certain religious doctrines by displaying its symbols on public property the
clause is not violated:

As a close look at these hallmarks and our history reveals, “[n]o

one at the time of the founding is recorded as arguing that the use

109. Kennedy v. Bremerton, 142 S. Ct. 2407, 2429 n.5 (2022) (citing Michael W.
McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of
Religion, 44 WM. & MARY L. REV. 2105, 2144–46 (2003)).
110. Id. (citing Shurtleff v. City of Bos., 142 S. Ct. 1583, 1605–06 (2022) (Gorsuch, J.,
concurring)).
111. Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concurring) (citations omitted).
112. Id.
102 WAYNE LAW REVIEW [Vol. 70.1:83

of religious symbols in public contexts was a form of religious

establishment.” For most of its existence, this country had an
“unbroken history of official acknowledgment by all three
branches of government of the role of religion in American
life.” In fact and as we have seen, it appears that, until Lemon, this
Court had never held the display of a religious symbol to
constitute an establishment of religion. The simple truth is that no
historically sensitive understanding of the Establishment Clause
can be reconciled with a rule requiring governments to “roa[m]
the land, tearing down monuments with religious symbolism and
scrubbing away any reference to the divine.” Our Constitution was
not designed to erase religion from American life; it was designed
to ensure “respect and tolerance.”113

His claim appears to be that because the public display of religious

symbols is not among the “hallmarks” that McConnell enumerates, it
cannot violate the establishment clause. The distinction between old and
new displays is unmentioned.114 Any public endorsement of any specific
religion is permissible. Anyone objecting to such an endorsement needs to
learn respect and tolerance.

C. Accounting for the Dispute

Gorsuch’s narrowing strategy is the same one that the Court deployed
in the Civil Rights Cases and Plessy: point to the most obvious violations
of the constitutional provisions and then declare that the challenged law is
not among those violations and so is permissible.115

113. Id. (citations omitted).

114. It might, perhaps, be thought to be implicit in the reference to “tearing down
monuments,” which can only be done if the monuments already exist. But a few sentences
earlier there is a blanket endorsement of “the use of religious symbols in public contexts.”
Id. And of course a court might order the tearing down of a monument that was erected last
week.
115. The Civil Rights Cases offered its own similarly narrow list of the hallmarks of
slavery:
The long existence of African slavery in this country gave us very distinct notions
of what it was and what were its necessary incidents. Compulsory service of the
slave for the benefit of the master, restraint of his movements except by the
master’s will, disability to hold property, to make contracts, to have a standing
in court, to be a witness against a white person, and such like burdens and
incapacities were the inseparable incidents of the institution. Severer
punishments for crimes were imposed on the slave than on free persons guilty of
the same offences.
Civil Rights Cases, 109 U.S. 3, 22 (1883).
2024] ESSENTIALLY CONTESTED HISTORIES 103

McConnell’s hallmarks can be mapped directly onto all the modern

controversies with even modest efforts to adapt to changed social
conditions.116 Douglas Laycock observes: “The only universal element of
every establishment was government endorsement of one or more
religions.”117 But if anything is clear from Gorsuch’s formulation, it is that
he thinks endorsement as such raises no constitutional issues.
McConnell writes, with respect to the first of his hallmarks, that the
“principal means of government control over the church were laws
governing doctrine and the power to appoint prelates and clergy.”118 These
means originally involved coercion: only worship that conformed with
official articles of faith was permitted. Gorsuch writes in Kennedy that
religious coercion “was among the foremost hallmarks of religious
establishments the framers sought to prohibit.”119 Perhaps he thinks the
noncoercive character of public displays is what distinguishes them from
forbidden establishment. But McConnell also counts within this category
the South Carolina Constitution of 1778, which allowed only churches that
conformed to certain articles of faith to be “incorporated and esteemed as
a church of the established religion of this State,”120 but also

provided that “[nlo person shall, by law, be obliged to pay towards

the maintenance and support of a religious worship that he does
not freely join in, or has not voluntarily engaged to support.” In
South Carolina, therefore, there was an established church with
state-specified articles of faith, but no financial support. This was
a unique and unprecedented arrangement.121

Despite the noncoercive character of this establishment, McConnell

still counts it as an exercise of “the power to control articles of faith.”122 If
that is correct, then some official displays assert the same power.123 One

116. See Douglas Laycock, Regulatory Exemptions of Religious Behavior and the
Original Understanding of the Establishment Clause, 81 NOTRE DAME L. REV. 1793,
1798–01 (2006).
117. Douglas Laycock, ”Noncoercive” Support for Religion: Another False Claim
About the Establishment Clause, 26 VAL. U. L. REV. 37, 42 (1991).
118. McConnell, supra note 109, at 2132.
119. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2429 (2022).
120. McConnell, supra note 109, at 2135 (quoting S.C. CONST. of 1778 art. XXXVIII).
121. Id. at 2157.
122. Id. at 2135.
123. McConnell elsewhere argues that the Establishment Clause should be understood
to prohibit “government action that has the purpose and effect of coercing or altering
religious belief or action.” Michael W. McConnell, Coercion: The Lost Element of
Establishment, 27 WM. & MARY L. REV. 933, 940 (1986). He understands coercion
104 WAYNE LAW REVIEW [Vol. 70.1:83

of the principal concerns of the framers was the idea that religion can be
distorted and corrupted by state involvement, an idea shared by John
Milton, John Locke, Elisha Williams, Isaac Backus, John Leland, Thomas
Jefferson, and the principal author of the First Amendment, James
Madison.124
People have taken the Kennedy decision to license much previously
impermissible state embrace of specific religious doctrines. For example,
Texas state Senators cited it as authorizing their bill, passed in April 2023,
requiring the posting of the Ten Commandments in every public school
classroom,125 a practice that the Supreme Court held impermissible in
1980.126 The bill died because, although it passed a House committee, it
was not brought to a vote before the end-of-session deadline.127 It was
reintroduced in June 2023.128
Justice Stevens noted in 2005 that “[t]here are many distinctive
versions of the Decalogue, ascribed to by different religions and even
different denominations within a particular faith; to a pious and learned

broadly, declaring that he agrees with the Court’s statement that “When the power,
prestige, and financial support of government is placed behind a particular religious belief,
the indirect coercive pressure upon religious minorities to conform to the prevailing
officially approved religion is plain.” Id. at 935 (quoting Engel v. Vitale, 370 U.S. 421, 431
(1962)). He suggests that religious displays should be permissible if they could reasonably
be construed to reflect pluralism rather than religious triumphalism.
Judicial scrutiny should be reserved for cases in which a particular religious
position is given such public prominence that the overall message becomes one
of conformity rather than pluralism. Certainly they should not allow official acts
that declare one religion, or group of religions, superior to the rest, or give official
sponsorship to symbols or ceremonies that are inherently exclusionary. Particular
care should be taken where impressionable children are involved.
Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 193–
94 (1992) (citations omitted). Gorsuch offers no indication that he would draw the line there.
124. Andrew Koppelman, Corruption of Religion and the Establishment Clause, 50
WM. & MARY L. REV. 1831, 1841–42 (2009).
125. The link does not support this assertion, authority is needed to support the Texas
state senators citing the Kennedy decision.
126. Stone v. Graham, 449 U.S. 39 (1980).
127. Robert Downen, Bill requiring Ten Commandments in Texas classrooms fails in
House after missing crucial deadline, TEX. TRIB. (May 25, 2023), [Link]
com/news/local/bill-requiring-ten-commandments-in-texas-classrooms-fails-in-house-
after-missing-crucial-deadline/article_c7370a90-[Link]
[[Link]
128. See King, Bill Analysis, S.B. 9, SENATE RSCH. CTR. (June 6, 2003),
[Link] [[Link]
-DD6A].
2024] ESSENTIALLY CONTESTED HISTORIES 105

observer, these differences may be of enormous religious significance.”129

The Texas bill tries to avoid denominational favoritism by requiring the
version drafted in the 1950s by a judge who thought its display could
reduce juvenile delinquency and who consulted a priest, a minister, and a
rabbi. This version was then placed on monuments erected all over the
United States by the Fraternal Order of Eagles.130 That language is,
however, rejected by some adherents of each of these denominations, and
of course, growing numbers of Americans are neither Christians nor Jews.
The state of Texas is now deeply involved in this theological controversy.
Prayer, which evidently the Court specifically licensed in Kennedy,
presents even more intractable issues. In Marsh v. Chambers (1983), the
Court upheld legislative prayers, using the same tradition-based reasoning
that Gorsuch offers.131 By sanctioning official deism, Gorsuch suggests the
Court will extend the logic of that decision beyond legislative prayer.
Doubtless, the Marsh Court thought that, by upholding legislative
prayers, it was avoiding divisive controversy. Yet, this relaxation of the
neutrality requirement is different from other forms of ceremonial deism,
such as “In God We Trust” on the currency,132 in a crucial respect: as
Christopher Lund observes, it requires “a continual set of discretionary
religious choices.”133 The prayer issue now divides municipalities all
across the country in a zero-sum battle in which the state is required to
decide disputed points of theology.134 The state faces a dilemma: either it
must censor prayers in order to ensure that they are inoffensive, or it must
allow outright proselytizing.135 In the years following Marsh, some
jurisdictions have rejected proposed prayers precisely on the basis of their
nonmajoritarian religious content: one clerk systematically eliminated
Muslims, Jehovah’s Witnesses, Jews, and Mormons from the list of

129. Van Orden v. Perry, 545 U.S. 677, 717–18 (2005) (Stevens, J., dissenting) (citing
Steven Lubet, The Ten Commandments in Alabama, 15 CONST. COMMENT. 471, 474–476
(Fall 1998)); As this article was going to press, Louisiana appeared to be about to enact a
similar law, with similar problems. See Steven Lubet, Louisiana wants the Ten
Commandments in schools but which version?, THE HILL (May 27, 2024)
[Link]
in-schools-but-which-version/.
130. Jess Bravin, Monoliths Erected to Promote Epic Film May Be in Violation of the
Constitution, WALL ST. J. (Apr. 18, 2001), [Link]
SB987543322785247205. The monuments were distributed with the encouragement of
Hollywood director Cecil B. DeMille, who was promoting his film, The Ten
Commandments. Id.
131. Marsh v. Chambers, 463 U.S. 783 (1983).
132. Christopher C. Lund, Legislative Prayer and the Secret Costs of Religious
Endorsements, 94 MINN. L. REV. 972, 1050 n.51 (2010).
133. Id. at 978.
134. Id. at 974.
135. Id. at 976–77.
106 WAYNE LAW REVIEW [Vol. 70.1:83

invited participants, while another rejected Wicca as “neo-pagan.”136

Elections have sometimes been fought over whether official prayers
should be overtly Christian.137 There has sometimes been violence.138
Members of the clergy have tailored their prayers to make them more
likely to be acceptable to authorities.139
When the Court reaffirmed Marsh in Town of Greece v. Galloway,140
it restated that there were limits to what was permissible, though those
limits were specified even more vaguely than in Marsh. Lund writes:

Marsh . . . had said that legislative prayers could not “proselytize

or advance any one, or to disparage any other, faith or belief.”
Notice the differences between that and [Town of Greece]: “[T]he
course and practice over time [must show] that the invocations
denigrate nonbelievers or religious minorities, threaten
damnation, or preach conversion.” Notice the subtle changes there
— the addition of the phrases “course and practice” and “over
time,” the use of words like “denigration” rather than
“disparagement,” “damnation” in place of “advancement,”
“preaching conversion” instead of “proselytizing.”141

Even these limits are hard to associate with Gorsuch’s hallmarks,142

and after Kennedy, it is uncertain whether they are still good law.143
As with the Thirteenth Amendment, interpretive charity does a lot of
work here. Gorsuch, and the Court majority for which he speaks “appear
to be in the grip of a narrative in which militant secularists in government
are [constantly] trying to persecute religious conservatives, who have
only the Court to protect them.”144 This narrative has produced a
remarkable hypertrophy of successful claims of discrimination 145 and

136. Id. at 1025–28.

137. Id. at 1045–46.
138. Id. at 974–75.
139. Id. at 1044.
140. 572 U.S. 565, 578–81 (2014).
141. Christopher Lund, Symposium: Town of Greece v. Galloway going
forward, SCOTUSblog (May 6, 2014, 5:05 PM), [Link]
symposium-town-of-greece-v-galloway-going-forward/[[Link]
142. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 537 (2022). Id. at 537, n.5 (citing
McConnell, supra note 109, at 2144–46). Shurtleff v. City of Bos., Massachusetts, 596
U.S. 243, 286 (2022) (Gorsuch, J., concurring).
143. Kennedy v. Bremerton would allow for public endorsements of specific religious
beliefs. Id. at 546–47 (Sotomayor, J., dissenting).
144. Andrew Koppelman, The Increasingly Dangerous Variants of the “Most-Favored-
Nation” Theory of Religious Liberty, 108 IOWA L. REV. 2237, 2286 (2023).
145. Id. at 2287–89.
2024] ESSENTIALLY CONTESTED HISTORIES 107

neglected procedural niceties that normally distinguish judges from

autocrats.146 If you perceive the world that way, you are likely predisposed
to construe an ambiguous constitutional provision in a way that does not
produce what you take to be substantial injustice. One would feel more
confidence in Gorsuch’s judgment here if he gave any evidence that he
appreciated the concern about the corruption of religion that the framers
regarded as one of the core evils of establishment.

IV. CONCLUSION

The fundamental problem with both narrow readings, those of the

Thirteenth Amendment and of the Establishment Clause, is that they cite
what is undoubtedly included in the pertinent amendment’s coverage as
though it yielded information about the boundaries of coverage. Justice
Gorsuch appears to be under the impression that McConnell’s hallmarks
can help him resolve the boundary question, which McConnell does not
purport to do. Lawrence Solum observes: “Justice Scalia sometimes made
arguments that moved directly from original expected applications to the
legal content of constitutional doctrine without consideration of the actual
meaning of the constitutional text.”147 Gorsuch has now duplicated this
error. It is what I have called I Have No Idea Originalism: the interpreter
declares, “I have no idea what this provision means. But whatever it
means, it can’t prohibit this, because the framers approved of it.”148
The move is more excusable in the context of constitutional provisions
that refer to paradigm cases because the meaning of those texts is never
reducible to a set of propositions. History hangs over any effort to interpret
them. Interpretive charity will influence the way judges interpret that
history. But Gorsuch did not even offer a judicial construction that clearly
delineates what the provisions prohibit. In that respect, the comparison is
to the advantage of the Plessy Court, which at least stated a rule.
The interpretive question of how to interpret a constitutional provision
based on the condemnation of a paradigm case will, in practice, arise when
someone complains that the prohibition encompasses some challenged
practice. This complaint must logically include some argument about the

146. Andrew Koppelman, Religious Liberty as a Judicial Autoimmune Disorder: The

Supreme Court Repudiates Its Own Authority in Kennedy v. Bremerton, 74 HASTINGS L.J.
1751, 1753–54 (2023).
147. Lawrence Solum, Original Expected Applications Redux, BALKINIZATION BLOG
(Jan. 27, 2023) [Link]
[Link] [[Link]
148. Andrew Koppelman, Phony Originalism and the Establishment Clause, 103 NW.
U. L. REV. 727, 737 (2009).
108 WAYNE LAW REVIEW [Vol. 70.1:83

scope of the wrong, which aims to persuade its audience that the practice
in question is within the scope of the wrong.
The appropriate way to rebut such an argument is to address it directly
by offering an alternative description of the wrong, which entails that the
practice in question is not in fact part of that wrong. Thus, for example,
Robert Nozick’s argument that redistributive taxation is a form of slavery
can be shown to depend on indefensible assertions about the moral
significance of pretax income.149 The interpretation of the Thirteenth
Amendment offered by the Plessy Court depends on the Court’s dubious
claim that certain kinds of race-based mistreatment were not integral to the
wrong of antebellum slavery. The contestation will be resolved by which
argument (in the opinion of the adjudicator) better captures the moral
question of why the wrong in question is wrong.
What will not suffice as a response to an alleged violation is to point
to other, uncontroversial violations and summarily declare that they
exhaust the scope of the provision.150
There is no way to settle the scope of the commitment embodied in
the paradigmatic case that the pertinent provision rejects. The original
beliefs of the framers can’t settle it. Rubenfeld is right: commitments can
have surprising entailments. “[E]very commitment, personal or political,
raises the possibility that we may be obliged to give up practices that
seemed perfectly reasonable to us, perfectly natural, at the time we
embarked on the commitment.”151
Property is familiarly regarded as a bundle of rights. Each historical
episode that is the basis of aversive constitutionalism is a bundle of
wrongs. With property, you can pull a stick out of the bundle and there
will still be property, albeit of a somewhat different description. When,
however, a legal interpreter decides that an element of a bundle of wrongs
is not so wrong after all and is not affected by the constitutional

149. See ANDREW KOPPELMAN, BURNING DOWN THE HOUSE: HOW LIBERTARIAN
PHILOSOPHY WAS CORRUPTED BY DELUSION AND GREED 91–92 (2022).
150. The quasi-Dworkinian view I’m offering, which makes moral reasoning a part of
Constitutional law, familiarly gives rise to the countermajoritarian difficulty. The difficulty
is real but irrelevant to the task of discerning the meaning of the Constitution’s prohibitions.
The difficulty isn’t about meaning at all; it concerns the institutional limitations of the
judiciary. It is possible that those limitations are a reason for the judiciary to underenforce
the Constitution: to the extent that the Constitution incorporates contestable moral
judgments, one might legitimately be troubled by the delegation of such judgments to
unelected judges. Lawrence G. Sager, Fair Measure: The Legal Status of Underenforced
Constitutional Norms, 91 HARV. L. REV. 1212, 1212–17 (1978). However, the democracy-
based objection to judicial review implies a substantive view about what is appropriately
the object of democratic decision making, and this view would itself need to be defended
in the face of the pertinent constitutional provisions. See id. at 1234.
151. RUBENFELD, supra note 9, at 194.
2024] ESSENTIALLY CONTESTED HISTORIES 109

commitment that it not be repeated, one must wonder whether, as Justice

Harlan put it, “the substance and spirit . . . have been sacrificed by a subtle
and ingenious verbal criticism.”152
In each of the cases that we examined here, the interpreter reduced the
prohibition’s scope without any reasoning at all. When that happens, one
is entitled to suspect that the provision is an obstacle to the kind of world
that the interpreter wants to live in. When that happens, one is entitled to
suspect that the provision is an obstacle to the kind of world that the
interpreter wants to live in, and that the interpreter seeks to preserve the
very evil that the constitutional provision aims to abolish.

152. Civil Rights Cases, 109 U.S. 3, 26 (1883) (Harlan, J., dissenting).