Establishment Clause myths: Unveiling the rhetoric of original intent

The United States Supreme Court currently uses three tests to assess the constitutionality of Establishment Clause issues that come before it. The use of three constitutional tests signifies doctrinal disagreement in opinions generated by the Court's Establishment Clause jurisprudence. Further, it illustrates inconsistency, unpredictability, and lack of agreement between justices on the Court, especially when the Court fails to use the tests in any rationally related manner. This dissertation analyzes the Court's modern definition of the Establishment Clause supposedly derived from the original intentions of the Framers, to assess the Court's jurisprudence in this fluctuating area of law. It also evaluates how the Court has utilized Everson v. Board of Education to perpetuate the myth that the Court follows original intent, when in fact the Court's failure to adhere to it has caused the current trend toward the use of three constitutional tests.;Beginning with the Supreme Court's modern Establishment Clause jurisprudence in Everson, where the Clause was first incorporated into the Fourteenth Amendment to apply to the states, the Court has treated the two religion clauses of the First Amendment separately. This incorporation is itself a myth because at the time the religion clauses were written society as a whole viewed the freedom of religion as a general freedom. When the Court evaluates the Establishment Clause independently from the Free Exercise Clause, it misses part of what defines the Clause's existence.;Second, in Everson, the Court focused on a faulty definition of the Establishment Clause based in Madisonian and Jeffersonian rhetoric. Madison and Jefferson alone cannot attest to its meaning. In addition, Everson does not properly and completely characterize their views, so basing modern cases and constitutional tests on Everson precedent is fundamentally wrong.;The goal here is to view the religion clauses with a historical perspective and to evaluate the Court's modern definition of the Establishment Clause with a view toward the true intent of the Framers. The culture during the Founding Era provides information regarding the historical definition of the Establishment Clause that can be compared to the Court's modern definition to cure defects in the Supreme Court's jurisprudence.