Consent Conditions Legitimacy But Does Not Create Justice

Consent Conditions Legitimacy

But Does Not Create Justice

Natural Law as the Ground of Political Obligation

American Epistemology Institute

January 2026

Abstract

This paper examines the foundational distinction between consent as a condition of political legitimacy and consent as the creator of justice itself. The American founding, whose load-bearing metaphysical stance is grounded in Aristotelian-Thomist natural law and Scottish Common Sense Realism, treated consent as necessary for legitimate government while maintaining that justice derives from an objective moral order discoverable by reason. Samuel von Pufendorf's voluntarist reconceptualization of natural law (where obligation derives from divine command rather than rational participation in eternal law) created conceptual space for the later claim that consent constitutes justice. William Blackstone's contradictory treatment of parliamentary sovereignty further enabled this drift. The trajectory from Aquinas through Pufendorf to Rousseau reveals a progressive inversion: consent, which originally operated within natural law constraints, became the source of moral order itself. Contemporary jurisprudence demonstrates the consequences of this inversion, particularly in First Amendment doctrine where constitutional text retains its original form while its metaphysical substance has been negated. Recovery requires restoring the founding principle that consent conditions legitimacy under natural law rather than creating justice ex nihilo (from nothing).

Introduction

The American founding presupposed a specific relationship between consent and justice. Consent was necessary (as governments derive their just powers from the consent of the governed) but consent was never meant to be sufficient in itself. The Declaration's opening proposition, that all men are "endowed by their Creator with certain unalienable Rights," established that rights exist prior to and independent of any governmental or social compact.¹ Consent could recognize these rights; consent could not create them. Justice preceded legitimacy; natural law constrained positive law (law enacted by a duly authorized legislature). Consent could recognize these rights; consent could not create them. Justice preceded legitimacy; natural law constrained positive law (law enacted by a duly authorized legislature).

This ordering has been progressively inverted over time. Modern jurisprudence increasingly treats democratic consent, judicial interpretation, or evolving social consensus as constitutive of justice rather than merely conditioning political legitimacy; from a modifier of justice to the source of justice. The same constitutional vocabulary persists (rights, equality, liberty, due process) but the metaphysical content has been explicitly negated. Where the founders understood these terms to reference objective moral realities discoverable by reason, contemporary usage treats them as placeholders for whatever content the guided prevailing consensus assigns.

The philosophical genealogy runs from Thomas Aquinas through Samuel von Pufendorf and William Blackstone to Jean-Jacques Rousseau, each stage loosening the connection between human law and eternal law until consent itself becomes the ground of obligation. The institutional implementation followed: pragmatist philosophy, legal realism, strategic litigation, and judicial transformation converted philosophical drift into operative doctrine.

Pragmatist philosophy (1880s–1920s). The rejection of fixed essences and correspondence truth in favor of truth as utility—ideas are "true" insofar as they produce desired consequences. Oliver Wendell Holmes Jr. dismissed natural law as mere subjective belief "determined largely by early associations and temperament, coupled with the desire to have an absolute guide."² William James defined truth functionally as "what works" in practical experience.³ John Dewey extended this framework to education and social inquiry, replacing fixed moral categories with experimental adaptation.⁴

Legal realism (1900s–1930s). The translation of pragmatism into jurisprudence—a movement that, despite its name, is metaphysically anti-realist. The terminological irony cuts deep: legal realists claimed the label because they purported to describe what judges actually do rather than what formalist doctrine claims they do, positioning natural law jurisprudence as naive and out of touch with how law "really" works. Yet by reducing law to judicial behavior, they severed it from any transcendent standard—abandoning reality while claiming to have discovered it. Law is what courts actually do, not what natural law requires. Roscoe Pound's sociological jurisprudence reframed law as a tool for achieving social purposes, measuring legal validity by pragmatic effects rather than conformity to antecedent moral order.⁵ Karl Llewellyn argued that judges respond to facts and social contexts rather than applying pre-existing legal rules derived from principle.⁶ The "Brandeis brief" in Muller v. Oregon—introducing sociological data rather than natural law reasoning—exemplifies the method.⁷

Strategic litigation (1920s–1960s). The use of courts as vehicles for social transformation through carefully orchestrated case selection. Leo Pfeffer, through the American Jewish Congress's Commission on Law and Social Action (established 1945), served as lead counsel or amicus curiae (a non-party who offers information to assist the court) in nearly every Establishment Clause case from the late 1940s through the early 1980s, systematically advancing strict separationism through strategic litigation.⁸ The model involved sympathetic plaintiffs, favorable jurisdictions, and incremental precedent-building—litigation as institutional capture rather than dispute resolution.

Judicial transformation (1940s–1970s). The harvest of prior planting—constructivist premises becoming operative doctrine through two distinct mechanisms:

Living constitution doctrine reinterprets the written text, treating constitutional meaning as evolving with contemporary consensus rather than fixed in natural law. Everson v. Board of Education incorporated the Establishment Clause against the states while inverting its meaning;⁹  Engel v. Vitale prohibited school prayer;¹⁰[ Lemon v. Kurtzman codified restrictions the text never imposed.¹¹ The written form persists; the metaphysical substance inverts.

Unwritten constitution doctrine operates outside the text entirely—a parallel body of judge-made law unmoored from any constitutional provision. Pierson v. Ray illustrates this mechanism: the Supreme Court granted judges absolute immunity from civil liability by invoking pre-revolutionary English common law doctrine established in Floyd & Barker, which held that judges "ought not to be drawn into question for any supposed corruption" because such questioning would undermine judicial authority.¹² Judicial review itself (Marbury v. Madison),¹³ qualified immunity, and stare decisis (the doctrine requiring courts to follow precedent) as binding precedent all constitute unwritten constitutional law—doctrines nowhere specified in the constitutional text yet treated as fundamental to constitutional order. The determination of this unwritten law's content rests with the judiciary itself, creating a self-referential system in which judges define the scope of judicial power.

Both mechanisms serve constructivism: if consent creates constitutional meaning, whoever controls interpretation becomes politically sovereign.

Understanding this trajectory is essential for constitutional restoration, which requires not merely invoking founding vocabulary but recovering founding metaphysics.

I. The Thomistic Foundation: Consent Within Natural Law

A. Natural Law as Participation in Eternal Law

Thomas Aquinas established the framework within which the American founders understood the relationship between human law, natural law, and eternal law. Natural law, for Aquinas, is "the rational creature's participation in the eternal law."¹⁴ Humans do not invent moral principles; they discover them through reason's participation in the divine order. This participation is not mystical but rational; the natural law is accessible to all persons through the exercise of practical reason reflecting on human nature and its proper ends.

Human law, in this framework, derives its binding force from its conformity to natural law. Aquinas distinguishes two modes of derivation: conclusion and determination. Some human laws follow necessarily from natural law principles (the prohibition of murder derives from the precept to preserve innocent life). Others represent prudential specifications that could reasonably take different forms (whether to drive on the left or right side of the road). Both bind in conscience, but only insofar as they do not contradict higher law.

When human law contradicts natural law, it loses its character as law properly speaking. Aquinas states: "Laws may be unjust... The like are acts of violence rather than laws; because, as Augustine says, 'a law that is not just, seems to be no law at all.' Wherefore such laws do not bind in conscience."¹⁵ Procedural correctness cannot create justice. An unjust law, however properly enacted through whatever consent mechanisms, lacks binding moral force. Consent conditions whether authority is exercised legitimately (through proper procedures, by proper persons, with proper jurisdiction); it cannot make unjust commands just. This is the principle that later constructivism would deny.

B. The Founders' Reception

James Madison articulated this framework explicitly in his Memorial and Remonstrance Against Religious Assessments. Arguing against a bill to establish tax support for Christian teachers, Madison grounded his opposition not in majoritarian preference but in natural law priority: "The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.... We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance."¹⁶

Madison's argument presupposes that religious liberty is not created by social compact but recognized by it. Civil society does not diminish this right because civil society did not create it. The right exists prior to and independent of governmental acknowledgment. Consent can organize government; consent cannot manufacture natural rights.

James Wilson, signer of the Declaration and Constitution, made the point with equal clarity in his Lectures on Law: "Human law must rest its authority, ultimately, upon the authority of that law, which is divine."¹⁷ Mark David Hall confirms that Wilson "followed Richard Hooker, who in turn borrowed from St. Thomas Aquinas, in adhering to a traditional Christian conception of natural law."¹⁸ Wilson's metaphysics was sound, even as his constitutional architecture (the "We the People" formulation that bypassed mediating state authority) created vulnerabilities the Anti-Federalists predicted and history has confirmed.¹⁹

II. The Voluntarist Departure: Pufendorf and Blackstone

A. Pufendorf's Reconceptualization

Samuel von Pufendorf (1632–1694) represents a critical inflection point. While nominally within the natural law tradition, Pufendorf reconceptualized its foundations in ways that opened space for later constructivism. His innovation was treating natural law as divine command rather than rational participation in eternal law.

For Aquinas, natural law's binding force derives from its intrinsic rationality; it expresses what reason perceives as genuinely good for beings of our nature. For Pufendorf, natural law binds because God commands it. The difference seems subtle but proves decisive. If natural law is intrinsically rational, then human reason can in principle perceive its content directly by reflecting on human nature and its proper ends. If natural law is divine command, then its content depends on an act of will; and if God's will, why not eventually a sovereign's will, a people's will, or a general will?

Pufendorf's concept of "moral entities" (entia moralia; abstract legal constructs treated as real) further loosened the connection between moral categories and natural reality. These entities (including rights, duties, and political authority) exist as "modes" imposed on natural things rather than discovered within them. This framework treats moral categories as conventional rather than natural, creating a shadow in which lies the view that political forms are constructed rather than discovered.

Pufendorf remained within theistic natural law; he was not a constructivist. But his voluntarism that grounds obligation in will rather than reason created a vulnerability that constructivism now exploits. Once obligation derives from command rather than rational participation, the question becomes: whose command? Pufendorf answered: God's. Later thinkers would give different answers.

B. Blackstone's Contradiction

William Blackstone's Commentaries on the Laws of England transmitted English legal tradition to the American founders. Blackstone nominally acknowledged natural law: "This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this."²⁰

Yet Blackstone simultaneously articulated parliamentary sovereignty in terms that contradicted this principle: "The power and jurisdiction of parliament, says Sir Edward Coke, is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds... It can, in short, do every thing that is not naturally impossible."²¹

The contradiction is structural. If natural law is "superior in obligation" and "no human laws are of any validity if contrary to this," then parliamentary sovereignty cannot be "transcendent and absolute." Blackstone acknowledged natural law rhetorically while granting Parliament operational omnipotence. This produced doctrine grounded in a contradiction that later jurists would resolve by jettisoning the natural law element while retaining the sovereignty element.

The American founders explicitly rejected Blackstone's parliamentary absolutism while initially retaining his natural law framework. The Declaration's appeal to "the Laws of Nature and of Nature's God" as grounds for dissolving political bonds presupposed exactly what Blackstone's sovereignty doctrine denied: that positive law is constrained by higher law, and that violations of higher law justify resistance. The founders took Blackstone's natural law language seriously while rejecting his positive law conclusions. This is an unstable combination that later interpreters would resolve in the opposite direction.

III. The Constructivist Inversion: Rousseau and Beyond

A. The General Will Creates Justice

Jean-Jacques Rousseau (1712–1778) completed the inversion that Pufendorf began. Where Pufendorf grounded obligation in divine will while retaining natural law content, Rousseau grounded obligation in human will (the "general will" of the political community) and explicitly denied pre-political natural justice.

Rousseau stated the position explicitly: the social contract produces "a moral and collective body" whose "life" is "the union of its members."²² The transition from nature to civil society "substitutes justice for instinct" and endows human actions "with the morality they previously lacked."²³ The general will does not recognize pre-existing moral order; it constitutes moral order. Justice is not discovered through rational participation in eternal law; justice is enacted through collective decision. G.W.F. Hegel built upon this concept, transforming Rousseau's general will into the rational state as the "actuality of the ethical Idea,"²⁴ and Giovanni Gentile completed it, radicalizing Hegel's ethical state into "actual idealism" where individuals achieve genuine freedom only through identification with the state.

The trajectory: Aquinas holds that natural law is rational participation in eternal law, knowable by human reason, binding on human legislation. Pufendorf holds that natural law is divine command, still knowable and binding, but grounded in will rather than reason. Rousseau holds that there is no natural law prior to the social contract; the general will creates moral order. Each step a severance that loosens the connection between human legislation and transcendent moral reality until that connection disappears entirely and is now forgotten.

The American founding drew primarily on the Thomistic-Scottish synthesis, not Rousseauean constructivism. But Rousseau's framework (the idea that consent creates justice rather than recognizing it) would progressively capture American institutions through philosophical, legal, and cultural channels. The vocabulary of rights, liberty, and equality would persist; the metaphysical grounding would invert.

B. The Institutional Mechanism: Aufheben

The Hegelian term aufheben (dialectical preservation of form through negation of substance) describes how this transformation operates. Constitutional text remains unchanged while the metaphysical premises determining its meaning shift from realism to constructivism. Citizens believe constitutional continuity exists because familiar words persist, unaware that the state now enforces answers to metaphysical questions that contradict founding premises.

The mechanism is particularly effective because it exploits the distinction between text and interpretation. The same words ("equal protection," "due process," "establishment of religion") can mean radically different things depending on the operative metaphysics. Under realist premises, these terms reference objective moral realities that constrain governmental action. Under constructivist premises, these terms become placeholders for whatever content judicial or democratic consensus assigns. The vocabulary of Madison and Wilson persists whereas the metaphysics of Rousseau prevails.

IV. Contemporary Application: First Amendment Transformation

A. From Substrate to Sect

The transformation of First Amendment religion clause jurisprudence illustrates how "consent creates justice" reasoning operates institutionally. The perversion operated on three levels: definitional, structural, and doctrinal.

At the founding, "religion" within the First Amendment's scope meant Christianity. The relevant categories were sects and denominations: Presbyterian, Baptist, Congregationalist, Episcopalian, Catholic, Quaker. The Establishment Clause prevented federal preference for one Christian tradition over another while protecting state autonomy. Massachusetts maintained Congregationalism as its established church until 1833; this was understood as consistent with the First Amendment because the Amendment constrained Congress alone.²⁵

Christianity was the substrate of the law, the background condition assumed by all parties. The question was not whether Christianity would inform public life but which denominational expression would receive federal favor. The answer: none shall be preferred by the federal government. States retained full authority over religious matters.

The doctrine designed to prevent intra-Christian sectarian conflict was reinterpreted to neutralize Christianity itself, treating the entire tradition as one "religion" among many requiring exclusion from political life. The substrate became a sect; the assumed background became a contested option; the cultural foundation became one competitor subject to special exclusion.

B. The Judicial Architecture

Justice Hugo Black's majority opinion in Everson v. Board of Education effected this transformation. Black took a phrase from Thomas Jefferson's private letter to the Danbury Baptists ("a wall of separation between Church and State") and declared it the official meaning of the Constitution: "In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.' That wall must be kept high and impregnable."²⁶

Before Everson, the First Amendment limited only the federal government. Black used the Fourteenth Amendment's incorporation doctrine to apply it to every town, school board, and mayor's office in America, effectively nationalizing a secular standard that the framers intended to be local and denominational. The historical record shows Black's opinion relied on scholarship later demonstrated to be historically deficient.²⁷

Black's personal background illuminates the transformation. He joined the Ku Klux Klan in Birmingham in 1923, gave over one hundred anti-Catholic speeches at Klan meetings across Alabama during his 1926 Senate campaign, and later served on the board of Americans United for Separation of Church and State. His biographer Howard Ball notes that Black "sympathized with the group's economic, nativist, and anti-Catholic beliefs."²⁸ Roger K. Newman's biography confirms that Black "disliked the Catholic Church as an institution."²⁹ The transformation of the Establishment Clause was driven in part by anti-Catholic animus, weaponizing a doctrine written to prevent sectarian conflict against the majority religious tradition.

Chief Justice Warren Burger's "Lemon Test" in Lemon v. Kurtzman codified asymmetric treatment. Government action must have a "secular purpose," must not have the primary effect of "advancing religion," and must not "excessively entangle" government with religion.³⁰ Under this framework, a mayor acknowledging a "cultural day" for the religion of a minority group demonstrates "inclusive" secular purpose; a mayor displaying a cross demonstrates unconstitutional "advancement of religion." The same governmental acknowledgment receives different treatment based on whether Christianity is involved.

In Kennedy v. Bremerton School District (2022), the Supreme Court formally abandoned Lemon, stating that it had "long ago abandoned Lemon and its endorsement test offshoot" and directing courts to interpret the Establishment Clause by reference to "historical practices and understandings."³¹ Ostensibly, one would think this represents partial doctrinal restoration—a formal return to originalist methodology after decades of separationist jurisprudence. In actuality, it leaves the effects of Lemon in place while nominally reversing the decision: the removal of a restriction does not return a function to its unmolested status.

For fifty years, Lemon shaped school board policies, municipal legal advice, administrative guidance, hiring practices, and cultural assumptions about the proper relationship between religion and public life. Administrators trained under Lemon-era doctrine remain in positions of authority. Institutional cultures formed by separationist premises persist independent of Supreme Court pronouncements. The chilling effect—religious expression preemptively self-censored to avoid litigation risk—does not automatically thaw when the Court announces a doctrinal shift.

Legal doctrine operates through human beings embedded in institutional contexts. Changing formal doctrine changes what courts will decide; it does not change what school principals believe permissible, what municipal attorneys advise, or what citizens assume about their rights. A generation formed within separationist premises does not recover founding-era understandings simply because the Supreme Court cites "historical practices." The practices themselves must be recovered—and the metaphysical premises that made those practices intelligible must be taught.

C. Consent Creates Constitutional Meaning

The transformation illustrates precisely the thesis of this paper. The founders' framework grounded religious liberty in natural law prior to consent. Madison's Memorial and Remonstrance explicitly derived religious freedom from human nature, not from governmental grant. The perverted framework treats constitutional meaning as determined by judicial and democratic consensus—consent creates justice applied to constitutional interpretation itself.

Under the original understanding, the Establishment Clause meant: Congress may not prefer one Christian denomination over another; states retain authority over religious matters; Christianity remains the cultural substrate. Under the transformed understanding, the same text means: all levels of government must exclude Christian expression from public life while treating non-Christian traditions as "diversity" requiring accommodation.

The aufheben mechanism is visible: the words of the First Amendment persist unchanged; the metaphysical content has been negated. Citizens believe constitutional continuity exists because the text reads as it always has. They do not perceive that the operative metaphysics (and therefore the enforced meaning) has been intentionally inverted.

V. The Consequences of Inversion

A. Developmental Arrest

When a civilization loses access to natural law reasoning, its capacity for moral development arrests. The arrested civilization cannot evaluate its own interests without first consulting external moral authorities who have positioned themselves as (arbitrary) arbiters of guilt and innocence. This arrest manifests as inability to assert interests, defend boundaries, or maintain group cohesion; not from lack of capacity, but from metaphysical capture, which is necessarily invisible to most people.

B. The Surveillance State as Constructivism's Expression

The constructivist framework produces characteristic institutional forms. If justice is created by consent rather than discovered through reason, then the management of consent becomes the primary governmental function. Institutions shift from protecting pre-political rights (the realist function) to shaping the consciousness that produces the "correct" consent (the constructivist function).

This moral shaping was an explicit purpose of the nationalized education system from its inception. Horace Mann, the architect of American public education, declared that "moral education is a primal necessity of social existence" and designed common schools to bring "all the rising generation... within the circle of its reformatory and elevating influences."³² John Dewey extended this framework, understanding education not as transmission of fixed truths but as formation of consciousness for democratic participation.

Education under constructivist premises becomes formation rather than transmission. Students are not introduced to an objective moral order they will participate in; they are conditioned to produce the preferences that generate desired policy outcomes. The students formed within this system cannot recognize natural law because their education has trained them to believe moral truth is constructed through consensus rather than discovered through reason. The Declaration's self-evidence claims become unintelligible within this framework.

Surveillance under constructivist premises shifts from preventing concrete harms (the realist function) to monitoring consciousness for deviation from constructivist ethical norms. Infrastructure built to address genuine threats becomes redirected against those whose thinking resists the prevailing construction of justice. The same apparatus serves different purposes depending on operative metaphysics.

VI. Conclusion: Recovery Through Metaphysical Restoration

The founding principle must be recovered: consent conditions legitimacy but does not create justice. Natural law (the rational creature's participation in the eternal law) provides the standard by which positive law is measured. Consent can organize government; consent cannot manufacture moral truth. Democratic procedures can select representatives; democratic majorities cannot make injustice just.

This recovery requires more than invoking founding vocabulary. The terms persist; the metaphysics has inverted. Saying "rights" while meaning "whatever consensus assigns" is not constitutional restoration but constitutional concealment. The words of Madison and Wilson and Aquinas can be spoken by persons who reject everything Madison and Wilson and Aquinas believed about the structure of reality.

Recovery requires restoring the metaphysical premises that make founding vocabulary meaningful: that moral truth is discovered rather than constructed; that human nature is fixed reality rather than malleable material; that legitimate authority must conform to natural law knowable through reason. Without these premises, constitutional text becomes verbal formulae available for capture through aufheben—the preservation of form through negation of substance.

The American founding presupposed realist metaphysics. American constitutionalism cannot survive constructivist metaphysics. The choice is not between realism and some neutral procedural framework; the choice is between realism and antirealism, between discovered justice and manufactured and hyphenated "justice," between the founders' vision and its inversion wearing the founders' vocabulary. Consent conditions legitimacy. Natural law creates justice. The restoration of American constitutional order requires recovering this principle in thought, in law, and in institutional practice.

1  The Declaration of Independence para. 2 (U.S. 1776).

2  Oliver Wendell Holmes, Jr., Natural Law, 32 Harv. L. Rev. 40, 40 (1918).

3  William James, Pragmatism: A New Name for Some Old Ways of Thinking 58 (1907).

4  John Dewey, Democracy and Education 89–90 (1916).

5  Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, 24 Harv. L. Rev. 591 (1911).

6  Karl N. Llewellyn, A Realistic Jurisprudence—The Next Step, 30 Colum. L. Rev. 431 (1930).

7  Muller v. Oregon, 208 U.S. 412 (1908).

8  Gregg Ivers, To Build a Wall: American Jews and the Separation of Church and State 3 (1995).

9  Everson v. Bd. of Educ., 330 U.S. 1 (1947).

10  Engel v. Vitale, 370 U.S. 421 (1962).

11  Lemon v. Kurtzman, 403 U.S. 602 (1971).

12  Pierson v. Ray, 386 U.S. 547, 553–54 (1967) (citing Floyd & Barker, 12 Co. Rep. 23, 77 Eng. Rep. 1305 (Star Chamber 1607)).

13  Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

14  Thomas Aquinas, Summa Theologiae I-II, q.91, a.2 (Fathers of the English Dominican Province trans., Benziger Bros. 1920).

15  Summa Theologiae I-II, q.96, a.4.

16  James Madison, Memorial and Remonstrance Against Religious Assessments para. 1 (1785).

17  James Wilson, Lectures on Law, in 1 Collected Works of James Wilson 523 (Kermit L. Hall & Mark David Hall eds., Liberty Fund 2007) (1790–1791).

18  Mark David Hall, Justice, Law, and the Creation of the American Republic: The Forgotten Legacy of James Wilson 4, First Principles Series, No. 21 (Heritage Found. 2008).

19  For extended analysis of the structural vulnerabilities introduced by the 'We the People' formulation—including the Anti-Federalist critique that it enabled federal consolidation and the 'consent creates justice' slip—see American Epistemology Institute, Natural Law vs. Positive Law: The Role of Determinatio in American Legal Authority (2025).

20  1 William Blackstone, Commentaries on the Laws of England *42 (1765).

21  1 Blackstone, supra note 20, at *160.

22  Jean-Jacques Rousseau, The Social Contract bk. I, ch. 6 (1762).

23  Id. bk. I, ch. 8.

24  G.W.F. Hegel, Elements of the Philosophy of Right § 257 (Allen W. Wood ed., H.B. Nisbet trans., Cambridge Univ. Press 1991) (1820).

25  U.S. Const. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.").

26  Everson, 330 U.S. at 16.

27  Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction 15 (1982).

28  Howard Ball, Hugo L. Black: Cold Steel Warrior 96 (1996).

29  Roger K. Newman, Hugo Black: A Biography 104 (1994).

30  Lemon, 403 U.S. at 612–13.

31  Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 534 (2022).

32  Horace Mann, Report for 1848, in Annual Reports on Education (Lee & Shepard 1848).