The Right Coast

June 22, 2004
Incorporation of the Establishment Clause?
By Mike Rappaport

Justice Thomas's concurrence in Newdow has led to a significant blogosphere discussion about incorporation of the Establishment Clause. In this post, I shall try to further the debate by drawing some basic distinctions concerning incorporation.

The original Bill of Rights only applied against the Federal Government. The only way that the Bill or any part of it can be applied against the states is through the Fourteenth Amendment.

While the Supreme Court has held that many of the provisions in the Bill apply against the states under the Due Process Clause, this is clearly mistaken for textual reasons. The only plausible basis for incorporating the Bill of Rights into the Fourteenth Amendment is through the Privileges and Immunities Clause.

Even if the Privileges and Immunities Clause is properly read as applying some of the Bill of Rights to the states, there are still many questions left open as to which rights apply and what their content is.

First, not all provisions that limit the federal government should be applied against the states. For example, one might argue that the Tenth Amendment or the Port Preference Clause of Article I, section 9 ("No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another") should not be applied to the states because they are not individual rights, but instead federalism provisions that are intended to determine the relationship between the federal government and the states.

Second, not all provisions that are incorporated would necessarily have the same meaning against the states as they do against the federal government. The principal concern in 1789 was the possible abuse of power by a distant federal government; the principal concern in 1868 was protection of the freed slaves from the defeated southern states. If a right that originally was intended to protect against the federal government had evolved a new meaning by 1868, and that meaning made more sense in terms of protecting freed slaves, then one might infer that the Framers of 14th Amendment understood it to have that new meaning. For example, one might believe that the First Amendment was originally intended to incorporate the principles made famous in the Zenger case, which protected the role of juries in free speech cases, since juries were local and democratic institutions that could resist the abuses of a distant, oligarchic federal government. By contrast, one might believe that Freedom of Speech had evolved by the end of the Civil War to be more about protecting individuals from an oppressive majority and therefore would focus more on rights that federal judges could enforce and less on juries that might be filled with whites from the former confederate states.

How do these two principles apply to the Establishment Clause? One possibility is that the Clause was originally a federalism provision, like the Tenth Amendment, and therefore not appropriately applied against the states. This appears to be Justice Thomas's preferred position in his Newdow concurrence.

Another possibility is that it was originally a federalism provision, but by 1868 it was understood to protect an individual right of people not to be subjected to an established Church. Then, it might apply against the states, but with the same content as it had against the federal government. Justice Thomas contemplates this possibility in his concurrence, saying that if the Establishment Clause does apply against the states, it should only apply against real establishments (or possibly where there is coercion).

Another possibility is that the Establishment Clause had not only changed its meaning to an individual right, but had also expanded the scope of the protection it conferred. Under this view, the 14th Amendment might protect against actions by the states that were not prohibited to the federal government. Finally, this last possibility might be extended so far that the states are prohibited from taking actions that do not involve coercion of individuals. While I have not looked at the history very much, I tend to doubt that this conception prevailed in 1868 (not to mention at subsequent points, such as say 75 years later in 1943).

Thus, in the end, I find many different applications of the Establishment Clause to the states, as well as no application at all, to be plausible possible interpretations of the original meaning. The one view that does not seem plausible is the present Court's jurisprudence -- but what else is new?

While it is hardly relevant, I should say that my own political preferences about these matters differ from my take on the original meaning. Ironically, my political preferences are closer to the Court's jurisprudence than to any of the other positions I find to be plausible interpretations of the original meaning.