The Supreme Court's Use of History in Religion Clause Cases

George Fox University professor Mark David Hall has published a law review article entitled "Jeffersonian Walls and Madisonian Lines: The Supreme Court's Use of History in Religion Clause Cases." It is published in volume 85 of the Oregon Law Review, starting at page 563.

Hall writes that "[t]he primary purpose of this Article is to provide a systematic account of how Justices have used history to help them interpret the Religion Clause." Hall analyzed appeals to history in 115 Supreme Court cases. He observes that Justices are more likely to invoke history in Establishment Clause cases than in Free Exercise Clause cases. Justices most frequently cite the writings of Jefferson and Madison. Hall contends that liberals are slightly more likely than conservatives to invoke history.