Stephen Breyer's Usable Past

Eagle-eyed legal scholar Josh Blackman catches Supreme Court Justice Stephen Breyer making another mistake about constitutional history. Here's Breyer from yesterday's oral arguments in Arizona Christian School Tuition Organization v. Winn:

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.

Yet as Blackman explains:

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.

Read the whole thing here. I explain why Breyer is no "Scalia of the left" here.