| This study offers a clarifying explanation of U.S. Establishment Clause jurisprudence from the First Amendment's ratification through the Supreme Court's decision in Pleasant Grove City, Utah v. Summum, 555 U.S.___, 129 S.Ct. 1125 (2009). From inception through present day, the Establishment Clause developed erratically and without a dominating structure, at least when viewed through the common historical and legal lenses. This study, however, takes the unconventional view that the totality of Establishment Clause history is understandable, and actually has an ordered structure, when viewed through the lens of Catherine Malabou's dialectical "plasticity.".;This study breaks down Establishment Clause legal history into five periods. The periods are ratification of First Amendment, post-ratification to 1947, the Supreme Court decision in Everson v. Board of Ed. of Ewing , 330 U.S. 1 (1947), post-Everson to 2009, and finally the 2009 Supreme Court case of Pleasant Grove City. The leading Establishment Clause interpretative theories for each period are also set out to demonstrate the lack of consistency throughout Establishment Clause history and jurisprudence.;The study then turns to Hegel and the dialectic to interpret Establishment Clause law and history in order to demonstrate an actual underlying structure and process therein. The modern day concept of "dialectical plasticity" as advanced by Catherine Malabou is used. Such plasticity contains three essential capabilities: It has the ability to receive form, give (differentiate and trans-differentiate) form and explode form. These three properties within dialectical plasticity are applied to the above time periods to reveal the underlying structure and process within Establishment Clause law. In the end, the various and common Establishment Clause interpretive periods are shown to be inconsistent and irreconcilable with each other. The resolution to the internal Establishment Clause conflict and opposition is found in Malabou's understanding of dialectical plasticity's explosive nature.;The dialectical plasticity's explosive ability to resolve conflict and opposition is evidenced in the Pleasant Grove City case. In Pleasant Grove City, the Supreme Court ruptured the barriers of traditional (and conflicting) Establishment Clause reasoning by using the recently minted governmental free speech doctrine to resolve Pleasant Grove City's church and state dilemma created when it accepted and displayed a Ten Commandments monument in the city park.;In the end, the inconsistencies and traditionally erratic Establishment Clause jurisprudence is explained through Malabou's dialectical plasticity. Dialectical plasticity has the ability to resolve opposition and conflict by the process of receiving form, giving form, and, as act of ultimate resolution, exploding form. |
