Toward a Jurismythos of Thomas Jefferson: The Supreme Court's Use and Abuse of America's Most Controversial Founder

Abstract

This chapter explores the jurismythos of Thomas Jefferson, a term I have coined to describe the ways in which Supreme Court justices have engaged in myth-making about him in the service of their jurisprudence. I begin by developing a conception of jurismythos and identify three of its key characteristics. I then examine two instances of judicial myth-making: Felix Frankfurter's use of Thomas Jefferson in his Gobitis and Barnette decisions (mandatory flag salutes in public school), and Clarence Thomas's use (or lack thereof) of Jefferson in his Mitchell and Zelman decisions (public aid and vouchers supporting religious schools). I conclude by looking at what is lost, and gained, when we invoke Jefferson in contemporary social problems.