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Saturday, August 17, 2013

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.

Posted by Kurt Lash on August 17, 2013 at 11:27 AM | Permalink


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With respect to incorporation via Section 1 of the 14th Amendment, to what extent has Congress pursuant to Section 5's enforcement clause legislated on incorporation provisions of the Bill of Rights? For example, to what extent might Congress legislate on the 2nd Amendment as it applies to the states via incorporation?

Posted by: Shag from Brookline | Aug 24, 2013 7:43:27 AM

Regarding this in the post:

"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."

what was the impact of Jefferson's views on religion up to the time of the 14th Amendment? Were Jeffersons's views broadly discussed, debated over those several decades such that they became part of the history in understanding the original meaning of the 14th Amendment? Jack Balkin's recent article on new originalism and the uses of history expands upon original meaning and how history is used significantly. It seems that searches for original meaning (long after the fact) rely upon finding needles in haystacks of history, not the separation of the wheat from the chaff.

Posted by: Shag from Brookline | Aug 19, 2013 6:54:02 AM

The discussion of the Blaine Amendment in the last comment is appreciated but I don't think it really refutes my comment. The OP said:

"people at the time were far more comfortable with government involvement with religion than they are today"

The Blaine Amendment was a reflection of "the time" and even if it was specifically proposed nine years after the 14A, did "the time" change that much? 'Nasty' or not, it reflected a continual concern for government involvement of some religions (particularly Catholicism). My reading of history suggests to me that the overall concern here was present in 1868 in some quarters. The Blaine Amendment is but a moment of a wider trend. I see a bit of missing the forest there.

The Alien and Sedition Act also is of some relevance. It didn't grow out of whole cloth. A law passed less than a decade after the 1A and the negative reactions to it (including from people like Madison) provides some information about the tenor the the time and understanding behind the amendment. Unless there is some reason to think something major changed in seven years.

Posted by: Joe | Aug 18, 2013 11:39:02 AM

Shag: Pre-adoption state law regarding religious establishments in the states would be extremely relevant to determining whether non-estalishment was viewed as a privilege or immunity of citizens of the United States. Although the slave-holding states imposed tight controls over the practice of religion (including what biblical verses could be preached in a religious service), the debates over the Fourteenth Amendment indicate its proponents believed the Amendment would prohibit any similar state establishment of "pro-slavery" religion, or any other kind of state establishment, in the future.

Tuan and Joe: The Blaine Amendment played a major role in the debates over the incorporation of the Bill of Rights at a time when little work had been done on the public meaning of "privileges or immunities." The basic argument was (1) no one prior to the adoption of the amendment claimed it would protect enumerated rights such as those listed in the first eight amendments (the so-called "silence" problem), and (2) if the clause had been understood as incorporating the bill of rights, no one would have proposed the Blaine Amendment.

We now have a great deal of pre-adoption evidence showing that the proposed amendment was expressly supported on the grounds that it would protected enumerated rights such as those listed in the first eight amendments. As this historical record has burgeoned, the relative "weight" of the Blaine Amendment has diminished.

As for the Blaine Amendment itself, the proposal came nine years after the major debates on the Privileges or Immunities Clause. This makes it about as relevant to understanding the original meaning of Fourteenth Amendment as the Alien and Sedition Acts are to understanding the original meaning of the First Amendment. When one looks at the actual amendment, it is clear that the proposal had nothing to do with applying the First Amendment religion clauses against the states. The origins of the proposal are found in the Nativist opposition to Roman Catholicism and the effort to deny Catholics equal funding or even the equal right to study their bible in public schools. The final version of the Blaine Amendment, for example, declared that public funding could not be used for "sectarian" (i.e., Catholic) education, and that the proposal should not be construed to prohibit the reading of the (Protestant) bible in public schools. It was titled "the School Amendment." This was a nasty piece of business in which no one had any incentive to point out possible readings of the Privileges or Immunities Clause. Republican proponents were looking for an excuse to suppress Catholicism and Democratic opponents hated any substantive reading of the Fourteenth Amendment. The effort failed. All in all, very little here of relevance in determining the original meaning of the Privileges or Immunities Clause.

Posted by: Kurt Lash | Aug 18, 2013 9:31:03 AM

At the times the 14th Amendment was enacted/ratifies, how many states had established religions? Does such history of states have a bearing on incorporation of the 1st Amendment establishment clause?

Posted by: Shag from Brookline | Aug 18, 2013 7:08:23 AM

Kurt: What should we make of the failed Blaine Amendment post 14th Amendment? I thought that it represented pretty good evidence (ignored by Hugo Black and the majority in Everson) that application of the Clause to the states, post 14th Amendment, had been specifically contemplated and rejected.

Posted by: Tuan | Aug 17, 2013 10:19:53 PM

"the fact that people at the time were far more comfortable with government involvement with religion than they are today"

To the degree minority rights were less respected, yes, on the other hand, some were concerned, including those who supported the Blaine Amendment.

The First Amendment as a whole states Congress lacks the power to do certain things. Thus, e.g., Jefferson didn't oppose state libel laws, including seditious libels, as much as the Alien and Sedition Act. States retained the power to establish churches and abridge speech. As suggested above, now, via the 14A, states ALSO cannot abridge speech or pass laws respecting the establishment of religion.

The 1A text expressly does not block legislation on "the subject of religion" ... it blocks laws "respecting the establishment of religion." All laws regarding the subject of religion does not cover that. If it did, ironically, what about protecting free exercise?

It is not assumed under Marsh that legislative prayers per se "respect the establishment of religion." History informs here, but what was understood in 1791 or 1868 should not be the end of the line there. Speech is protected more today, e.g., and rightly so. Anyway, like for the 2A, it is a good idea as noted by the discussion provided above that we should look at history in general, including surrounding the 14A. I don't know if this would change the Marsh analysis though.

It might change the 2A analysis -- McDonald and scholars such as Akhil Amar suggest the understanding of the 2A (or substantive due process) changed over the years. How legislative prayer did is more unclear, except to the extent that more religious minorities might be protected. This can be used to help defend the lower court opinion, but overall, I'm still not sure if it would have changed the Marsh analysis much.

Posted by: Joe | Aug 17, 2013 12:12:41 PM

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