How far back?
dlaycock at MAIL.LAW.UTEXAS.EDU
Mon Dec 15 11:02:03 PST 1997
Does it matter whether recognizable Christmas celebrations go back
100 years or 200? After we get the facts straight, we can argue about legal
The standard originalist argument wants facts from 1787. If the
religion clauses are being applied against the states (as in Lynch), maybe
the key facts should come from 1868. Maybe any long and uncontroversial
tradition is enough. Reasonable people can disagree about these things.
At the very least, there is a great difference in rhetorical force
between the following two opinions:
1. One that recites an unbroken tradition of the vast majority of
Americans celebrating Christmas in substantially its modern form since
before the Constitution (yes, I know, this treats the non-Christian minority
as irrelevant, but that certainly did not bother the majority in Lynch).
2. One that concedes that at the time of the founding, and for a
century and a half before and nearly a century after, the celebration of
Christmas was a subject of serious religious disagreement even among
Christian denominations, but that the disagreement was mostly peaceful
because Christmas was a minor holiday in any event.
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dlaycock at mail.law.utexas.edu
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