The Establishment Clause and Reverse Incorporation (with some implications for Town of Greece v. Galloway)

Incorporating the Establishment Clause presents a host of difficult historical, theoretical and interpretative problems.  Of course, Fourteenth Amendment incorporation of any provision in the Bill of Rights presents difficult issues.  The Establishment Clause, however, presents a unique set of conundrums, and solving them can lead to some counter-intuitive results.  For example, the original Establishment Clause communicated nothing about the proper relationship between church and state: It simply left the matter to the control of political majorities in the states (see the work of Steven D. Smith and Akhil Amar).  If this clause can be incorporated against the states, it is only because the words of the amendment are somehow translated into declaring a normative principle of non-establishment.  This principle, in turn, should affect how we read the original clause.

More after the break.

If one takes an originalist approach to Fourteenth Amendment incorporation, the principle of non-establishment as a privilege or immunity of citizens of the United States emerged at the time of Reconstruction and was entrenched through the adoption of the Fourteenth Amendment.  Thus, to find the original meaning of the incorporated Establishment Clause, we must look to the 1860s, not the 1790s.  Instead of digging through the letters of Thomas Jefferson, we would be better served looking at antebellum religious liberty in the states, and the degree to which southern regulation of religion became a salient issue during the framing of the Fourteenth Amendment. 

One thing that quickly becomes apparent when looking at religious liberty during Reconstruction (both North and South) is the fact that people at the time were far more comfortable with government involvement with religion than they are today. The emerging public schools included biblical instruction and prayer exercises, and political rhetoric was infused with religious precepts (Lincoln’s inaugural, the many public events held at cemeteries, etc).  This was not a time of Jeffersonian separationism.  Even though waves of Catholic immigration prompted calls for “separation of church and state,” this meant ridding the public square of sectarian (meaning Catholic) influence, not ridding the public square (and government support for) religion in general.  In short, Marsh v. Chambers is almost certainly correct as a matter of proper Fourteenth Amendment interpretation, despite the majority’s erroneous focus on the actions of the first Congress.

But what then of the federal Establishment Clause?  The words originally communicated a denial of power over the subject of religion.  This, plausibly, leads to a form of strict separation at the federal level, even as it originally allowed religious establishments at the state level.  But this is not how those same words were likely understood in 1866-68.  Let’s suppose that the Fourteenth Amendment principle of non-establishment was broadly understood as allowing non-coercive (as they defined non-coercive) government support for non-sectarian religion (a plausible reading of the history, I think).  If so, then this is how the people circa 1868 understood the language of the federal Establishment Clause.  This creates a conundrum for courts seeking to apply the Establishment Clause against the actions of the federal government.  In such a case, if courts apply the Clause according to its original 1791 understanding, the result would be a two-track Establishment Clause jurisprudence; one principle informing the Clause as applied to the federal government and another principle informing the Clause as applied to the states.

The Supreme Court has rejected the two-track approach, and rightly so, I think.  The Fourteenth Amendment declares that the states are bound to enforce “the privileges or immunities of citizens of the United States.”  One of these privileges was the privilege of non-establishment declared by the federal Establishment Clause.  To the people who adopted the Fourteenth Amendment, there were not two principles of non-establishment, only one; the principle already existed in regard to the federal government and it was now to be applied against the states.  It is almost as if, in adopting the Privileges or Immunities Clause, the people readopted the original Establishment Clause and declared its principles—as they understood those principles- now operative against both state and federal governments.

If correct, then this means that Marsh v. Chambers got it exactly backwards.  We should not look to the original Founding to determine the content of Reconstruction liberty; we should look to the meaning of Reconstruction liberty to determine the content of the readopted Bill of Rights.