Today during oral arguments in Arizona Christian School Tuition Organization v. Winn, Justice Breyer made a remark about how the First Congress would have acted under the First Amendment:

JUSTICE BREYER: If you go back into history, it could have been the case that the — as long as they were fair to every religion, the first Congress could have funded prayers throughout the nation in churches for anyone to go and pray and that would not have violated the Establishment Clause, or if it had, nobody could have challenged it.

The only problem with that statement is that the First Congress met from March 4, 1789-March 3, 1791. The First Amendment was ratified on December 15, 1791. Under no set of circumstances would the First Congress have been bound by an unratified amendment.

Justice Breyer also recently made a comment on NPR that John Adams helped to write the Constitution.

“I can say what I think, I think we are following an intention by people who wrote this document [the Constitution], Madison, Adams, Washington….”

Not exactly. John Adams was in Europe during the drafting of the Constitution, and did not return to the United States until 1788.

Maybe Justice Breyer is correct when he notes that Justices of the Supreme Court lack the institutional capacity to act as historians. If that’s the case, his opinion in McDonald v. Chicago premised on his preferred version of history is suspect.