The No Funding Principle

[Lederman Marty]

Prof. McConnell writes:  "[A]s to [Marc Stern's] statement that:

> There is after all
> substantial,if perhaps not conclusive evidence that many of the founders
> understood separation in just this way [meaning the no-aid position]

I think he is misstaken. There is no such evidence. There is, of
course, evidence that many of the founders understood separation as
preventing governemnt aid to religion qua religion, but no evidence
of any founder opposing aid to the educational or charitable
activities of groups merely becuse they were religious."

*No* such evidence?  But see Souter's dissent in Rosenberger, 515 US at 868-73, esp. note 1.  Perhaps there's a case to be made that Thomas has the better of the argument -- and again, I think it would be very helpful if list participants can shed light on the Thomas/Souter debate -- but surely it is insufficient simply to declare "no such evidence."

Marty Lederman
(in my personal capacity)