I am especially interested in areas where scholarly research can influence real life decision making. Many of my writings relate to the history of church-state interactions in America, and how competing views of that history have influenced the Supreme Court’s interpretation of the Constitution, as I discuss in Church, State, and Original Intent (CUP, 2010) and related books. That work, in turn, led me to delve more deeply into how judges have interpreted legal documents throughout history, culminating in my most recent book: The Hollow Core of Constitutional Theory: Why We Need the Framers (CUP, 2020).

Which Original Meaning of the Establishment Clause is the Right One? in Breidenbach and Anderson, eds., The Cambridge Companion to the First Amendment and Religious Liberty, Cambridge University Press, 2020.

Debates over the original meaning of the establishment clause have usually revolved around the question of which broad church-state principle is represented by the clause. Strict separationists advocating a “wall of separation” highlight different historical evidence than do non-preferentialists who argue that the clause allows evenhanded government support for religion. A third group asserts that the clause was instead a federalism provision designed to reserve church-state decisions to the states. This chapter assesses these conflicting interpretations and concludes that the framers and the public understood the clause only as banning the establishment of a national church. That understanding did not necessarily represent an anti-establishment principle, however, and it assumed that church-state issues would continue to be resolved by the states. In light of the Supreme Court’s adoption of the incorporation doctrine, the combination of the federalism interpretation and the no-national-religion prohibition best encompasses the original constitutional decision.

James Wilson in Dreisbach and Hall, eds., Great Christian Jurists in American History, Cambridge University Press, 2019.

James Wilson, born in Scotland and educated during the Scottish Enlightenment, became one of the most influential jurists and statesmen of the American founding era. He signed the Declaration of Independence, served as an influential delegate to the Constitutional Convention, became one of the first justices of the U.S. Supreme Court, and was the first law professor at the University of Pennsylvania. As a framer, jurist and educator, he consistently argued for recognizing the sovereignty of the people themselves, which he believed was a central component of a God-given natural law. Many of Wilson’s views that were innovative or controversial at the time – such as the concepts of popular sovereignty, one person-one vote, and the power of the Supreme Court to strike down unconstitutional laws – have become important elements of modern American government.

Consequentialism and the Limits of Interpretation: Do the Ends Justify the Meanings?, Jurisprudence: An International Journal of Law and Political Thought, Volume 9 Issue 2, 2017.

A recent consequentialist resurgence in transnational legal scholarship urges judges in cases involving authoritative texts to make decisions based on which outcomes will be best for society. Some consequentialist scholars assert that judges should openly disclose these reasons, while others advocate replacing them with any plausible argument employing the traditional language of interpretation. This article argues that making consequentialism the primary basis for judicial decision-making runs counter to the long history of legal interpretation, is contrary to the insights of modern decision science, and raises significant separation of powers issues, even when it is fully disclosed. Covert consequentialism is even less likely to lead to good consequences, and it poses substantial threats to both the separation of powers and the rule of law.

Jettisoned by many modern scholars, legislative intent is a critical component of statutory interpretation, according to a recent book by Richard Ekins. In what has been called the most philosophically sophisticated work on the subject of legislative intention, Ekins describes the well-formed legislature as a group agent that enacts laws based on coherent and reasoned plans that represent the legislature’s intent. In interpreting the laws, the duty of courts is to infer that intent, which requires judges carefully to consider the chain of reasoning that led to a particular legislative choice about means and ends. Professor Ekins thus charts a new course in the debates over statutory interpretation between textualism’s focus on semantic meaning and a much more openended purposivism. This Article sets out Ekins’ discussion of the central case of the well-formed legislature, and his compelling argument for courts to interpret statutes by inferring the reasoned plan adopted by the legislature and made known in the text. It then analyzes the opportunities and challenges arising in applying Ekins’ analysis to litigated cases and flesh-and-blood legislative bodies by focusing on how, and where, courts should look for evidence of that intent. It concludes that a thoughtful use of legislative history, though discarded by a great deal of contemporary scholarship, including Ekins’ work, can be an essential element of the search for a statute’s meaning.

What’s the Point of Originalism?, Harvard Journal of Law and Public Policy, 2014.

New originalism says that the Supreme Court should interpret the Constitution by focusing on the original public meeting of the text, not the Framers’ intentions. This article points out that one of the primary reasons for Supreme Court opinions is to persuade the public that its constitutional decisions are legitimate interpretations. Therefore, it is important to know what arguments are most convincing to the public. Using new survey data showing not only that over 90% of the public thinks the original meaning should play a role in constitutional decisions, but also that two-thirds cite the Framers’ intentions as the single most important source of that meaning, the article argues that, when the Court sets out to interpret the Constitution, the place to start is with Framers.

The Antifederalists and Religion in Faith and the Founders of the American Republic, Mark D. Hall and Daniel L. Dreisbach, eds., Oxford University Press, 2014.

Even before the founders were dead and buried, the American public had developed an extraordinary curiosity about their faith commitments (or lack thereof) and the influence of religion on the constitutional republic they established. This fascination has waned little over the last two centuries. Studies of religion and the founding fathers typically focus on the beliefs of a handful of elite founders—Franklin, Washington, Adams, Jefferson, Madison, and Hamilton. With the exception of Adams, all these men either were or became Anglicans. As such, this scholarship ignores the rich range of religious traditions that informed the political culture of the American founding. Faith and the Founders of the American Republic addresses this shortcoming by offering essays on a variety of religious views and beliefs that shaped late-eighteenth-century public life, such as the contribution of evangelical denominations to advancing religious liberty. Thematic chapters consider minority faiths such as Islam and Judaism, as well as major traditions such as Calvinism. The volume also includes chapters on specific founders carefully selected because they shine light on specific faith communities and/or ideas. Chapters on John Dickinson and Isaac Backus/John Leland, for instance, offer insights into the role of Quakers and Baptists respectively in the founding era. The essays collected in this volume provide compelling evidence that diverse religious traditions were among the intellectual sources that informed and animated the American founding.

The Limits of New Originalism, Joel Alicea and Donald L. Drakeman, University of Pennsylvania Journal of Constitutional Law” (2012-13).

We argue that New Originalism, which has emerged as the dominant theory of originalism, has a significant methodological limitation for anyone who takes historical research seriously. That limitation arises where historical sources indicate different possible original meanings, which can occur because of New Originalism’s focus on the meaning of the text for a hypothetical, reasonable person at the time of ratification. We describe the first instance of this problem, which occurred in Hylton v. United States (1796). Hylton involved the constitutionality of an excise tax, and we use that case to provide a real example of the impossibility of a New Originalist interpretation when the historical materials provide clear evidence of equally plausible but conflicting meanings. We suggest that Justice Paterson's opinion in Hylton offers a solution to this problem: where New Originalism cannot settle the question of original meaning, judges might turn to Old Originalism's focus on the intentions of the Founders. Our article thus makes three significant contributions to constitutional scholarship: (1) it identifies a critical weakness of New Originalism; (2) it demonstrates how the Supreme Court in the founding era used Old Originalism to resolve this problem; and (3) it represents the most complete analysis of the historical meaning of the taxation provisions in Hylton, which may prove to be useful for present or future litigation over the taxing power.