Balkinization: Phony originalism and the Establishment Clause

Comments:

the consequence is to broaden judicial discretion by presenting judges with a broad array of possible interpretations

Broaden compared to what? Broaden as compared to a non-originalist position or as compared to a proper originalist position?

# posted by

mls : 2:17 PM

The Establishment Clause is an even more obvious candidate for paradigm case interpretation, since the core historical wrong that is intended to be barred here, an establishment of religion, of the kind that existed in England – is specifically named in the text. The Clause meant, at a minimum, that the Federal government was disabled from enacting the specific measures that characterized the English establishment, such as the creation of a national church, laws penalizing those who engaged in disfavored religious practices, and taxes levied to support a particular religion...

Meese claimed that the original intention was solely to prohibit Congress from establishing a national church. The belief was that the Constitution should not allow Congress to designate a particular faith or sect as politically above the rest. But to argue, as is popular today, that the Amendment demands strict neutrality between religion and irreligion would have struck the founding generation as bizarre. The purpose was to prohibit religious tyranny, not to undermine religion generally.

I am not seeing a conflict between the paradigm case and Meese's view of the Establishment Clause.

I am a textualist precisely because of the problems inherent in cherry picking the original intent of individual founders like Madison and Jefferson to the exclusion of other contrary personal views.

In this case, the First Amendment's use of the term "establishment" dovetails very nicely with the paradigm case above and undermines the claim that the Establishment Clause requires neutrality between religion and non-religion.

Paradigm case is that the Founders wanted to prevent an English style establishment of a state religion like the Church of England.

Likewise, the use of the term "establishment" implies the establishment of a single state religion favored above all others, not a neutrality between religion and non-religion. There is no historical precedent for the "establishment" of a state deism including all religions favored above agnosticism and atheism. Consequently, like the paradigm case, the use of the term "establishment" undermines the neutrality argument.

# posted by

Bart DePalma : 2:58 PM

Andrew has well captured a point I tried to make at the last conlaw-Maryland "schmooze." Clearly lawprofs like Barnett and Solum (see my latest post) are doing serious scholarship. But are they just setting themselves up for disappointment? The identity of the next president might make a difference.

# posted by

Stephen Griffin : 3:04 PM

Your use of the term 'disingenuousness' for the judge's claims is very polite and proper. I on the other hand prefer to think of them as lying sacks of snake crap.

# posted by

Ron Hager : 4:43 PM

Considering the degree to which the Executive and Legislative branches, (Which respectively nominate and confirm judges.) currently exercise power vastly in excess of that which could be justified by any reasonable originalist reading of the Constitution, (And want to go on doing so!) it should scarcely be surprising that only faux originalists make it onto the Supreme court. The President, (ANY President!) and Senate don't want real originalists on the bench. Even if politicians of one of the parties have to lie about the matter...

With respect to the Establishment clause, it's my understanding that at the time the 1st amendment was ratified, several states had established churches. It seems to me the dual aim of the clause was to, first, prevent establishment of a church at the federal level, but second, to prevent the federal government from interfering with establishment of a church at the state level. "with respect to an establishment of religion" accomplishes both aims.

Since by the time of the 14th amendment, no state had an established church, it seems reasonable that the prohibition was thus extended to the states.

# posted by

Brett : 6:23 PM

It is tempting to comment on this and Griffin's recent posts re: Originalism. But it seems as if the various papers submitted at the recent originalism conference will be dribbling out in a variation on the Chinese Water Torture (not to be confused, as Confucius would say, with torture as themed at this Blog from time to time). My preference is to read all of the papers before commenting on what may be called (if it hasn't already) "Original(ism) Sin."

But I did watch Nino on 60 Minutes unrobed defending originalism. The presentation stated that he and Clarence Thomas are the two (2) originalists on SCOTUS. What about the other seven (7) Justices? Where do they fit on the originalism/living constitutionalism scale?

In the course of the interview Nino stressed the original meaning to the ratifiers, not the meaning to, or intent of, the authors. Does this suggest that the authors' understanding of the meaning of the Constitution may differ from that of the ratifiers, or even from that of "We the People" at the time? Where is Hans-George Gadamer when he is needed?

# posted by

Shag from Brookline : 7:07 AM

There is no historical precedent for the "establishment" of a state deism.

This isn't exactly true. Note: I find serious problems with Scalia's dissent in McCreary and I'm not saying their practice should define the meaning of the EC, but Scalia was right on in noting the first 4 Presidents systematically engaged in generic monotheistic supplications to God without ever mentioning Jesus' name. Scalia erred in trying to equate monotheism with the Ten Commandments. Since Jefferson and Adams played key roles in defining this practice, their views also have to be included in the LCD and both of them explicitly doubted whether the Ten Commandments were truly revealed by God.

# posted by

Jonathan Rowe : 9:34 AM

Jonathan:

The point I was attempting to make, inelegantly I fear, is that the term "establishment" must mean the government's establishment of a single state religion over all other religions ala the Church of England because that is the only form of government establishment of religion that existed at that time.

This interpretation is consistent with the originalist view that the Establishment Clause prohibits the government from supporting one religion above all others, but not to prohibit the government from addressing religion at all to maintain a neutrality between religion and non-religion.

In order for the term "establishment" to require a neutrality between religion and non-religion, the Founders would have had to fear the government establishment of general deism including all religions over non-religion. There is no historical precedent for such an arrangement and it is therefore highly improbable that this is the establishment the Constitution means to prevent.

# posted by

Bart DePalma : 9:56 AM

My preference is to read all of the papers before commenting on what may be called (if it hasn't already) "Original(ism) Sin."

There is indeed a book by this title. I recommend it.

# posted by

Mark Field : 10:33 AM

Bart,

Two points: One the EC might have broader coverage if you construe "respecting an" to mean something like "having to do with." If you read Madison's Detached Memoranda, he construes the EC this way and notes chaplains probably violate the EC according to this standard.

And two, even if your strict understanding of the EC is proper, much of what the Court currently has the EC doing -- for instance forbidding government preference of religion over non-religion -- can be done under the original meaning of the Equal Protection Clause.

However, a good question to ask is whether such a non-discrimination standard ought to apply only to tangible aid, whether it should apply at all to government speech.

# posted by

Jonathan Rowe : 11:03 AM

What the clause does not say is: ... respecting an establishment of "a" religion. Which is what one would expect if the founders where only concerned with preventing an English style establishment of a state religion like the Church of England. Since that "a" is missing, the text implies more than just the paradigm case.

# posted by

NAL : 11:13 AM

Part of the problem with this paper is that Rubenfeld's method is far from a paradigm case (ha, ha) of originalism.

From page 4 of the paper: "If original meaning is to count at all, then a constitutional provision must be understood to address the very problem that it was designed to address."

I don't think that's right. If the application of the text to the paradigm case is based on error by the framers about reference-yielding facts, that wouldn't be true. See here at 582-90.

"In Establishment Clause cases, then, a good originalist judge should ask, (1) why did the framers think establishment of religion is a bad thing, and (2) is the same bad thing brought about by the challenged action in this case?"

But lots of the framers of the Establishment Clause thought establishments were good things, or at least acceptable things--for instance, the ratifiers from states with establishments. The purpose question is why the framers thought a federal establishment was a bad thing. But there were lots of answers to that question--Madison might've thought establishments were bad per se, but the Massachusetts congregationalists might've been afraid that a federally-established church would be a church they didn't like.

This example shows why we shouldn't confuse the purpose behind the Constitution with the Constitution itself. A single constitutional provision might have lots of purposes. The key constitutional question isn't "why are establishments bad?", but (as I see it) "what sense was historically expressed by the phrase 'establishment of religion'?" Whatever perhaps-inconsistent motivations might have driven the Founders to adopt the Establishment Clause, the historically-situated text itself is what officeholders are Article-VI-bound to obey.

A few other points:

It's certainly not fair to say at 16 & n.50 that Duncan "hasn’t the foggiest notion what [the Establishment Clause] means."

It seems a bit odd to complain at 21-22 that Thomas doesn't cite Lash's 1994 Arizona State Law Journal article. Thomas is merely explaining for 2 1/2 pages, without anyone else on the Court engaging the issue, why he "would welcome the opportunity to consider more fully the difficult questions whether and how the Establishment Clause applies against the States." He cites Amar, who discusses Lash. It's not like this won't get discussed if and when the Supreme Court as a whole takes up the issue. The basic components of Thomas's view--that it's not plausible to say that a religious establishment deprives people of life, liberty, or property without the due process of law, and that it's worth considering in detail, with proper briefing, in exactly what way a religious establishment might abridge the privileges or immunities of citizens of the United States--seem difficult to assail.

It seems wrong to say at 23 that "judges are not constrained by the fact that a conclusion reached by some scholar at some time has since been refuted." Judges of course can do what they want, but they certainly have a motive to attempt to respond to criticism of the material on which they rely, at least if others on the Court or the briefs point them out. The cure for reliance on historical material that has been refuted is publicizing the refutations, not attempting to inhibit the production of historical material in the first place, isn't it?

For fans of original-sin puns, of course, see here (Theory of Original Sinn).

# posted by

Chris : 2:00 PM

Prof. Koppelman:

But to argue, as is popular today, that the Amendment demands strict neutrality between religion and irreligion would have struck the founding generation as bizarre....

Well, there was Madison's Remonstrance, which was arguing for Jefferson's VA religious freedom bill, and against that of Patrick Henry, that would have supported all (Christian) religious equally:

"3. Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever

4. Because the Bill violates the equality which ought to be the basis of every law, and which is more indispensable, in proportion as the validity or expediency of any law is more liable to be impeached. If "all men are by nature equally free and independent," all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an "equal title to the free exercise of Religion according to the dictates of Conscience." Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their Religions unnecessary and unwarrantable? can their piety alone be entrusted with the care of public worship? Ought their Religions to be endowed above all others with extraordinary privileges by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations to believe that they either covet pre-eminences over their fellow citizens or that they will be seduced by them from the common opposition to the measure.

It may well be true that many of the founders would have favoured a preference for religion over irreligion, and even of Christianity over other religions (see above). They weren't arguing the winning side.

The purpose was to prohibit religious tyranny, not to undermine religion generally.

Gummint can't legally "undermine" religion. But it can't favour it either.

Many more resources and cites here (thanks to Jim Alison, Tom Peters, and Susan Batte).

Cheers,

# posted by

Arne Langsetmo : 2:29 PM

Better (top-level) "Separation of Church and State" link here (including search facility).

Cheers,

# posted by

Arne Langsetmo : 2:31 PM

Arne--that was Meese, not Koppelman. Koppelman said "Meese claimed that the original intention was solely," and the quote from Meese began "to prohibit Congress..."

# posted by

Chris : 2:38 PM

Chris (and Prof. Koppelman):

My apologies; I stand corrected.

Cheers,

# posted by

Arne Langsetmo : 4:50 PM

I find the originalists and the textualists both a bit dreary and tendentious. I don't believe our country need be saddled, in perpetuity, with its 18th century constitution which becomes increasingly removed from the changes going on in the world. We need to do some amending and the sooner the better.

Thomas Jefferson writes to Samuel Kercheval in 1816:

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book—reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. It is this preposterous idea which has lately deluged Europe in blood. Their monarchs, instead of wisely yielding to the gradual change of circumstances, of favoring progressive accommodation to progressive improvement, have clung to old abuses, entrenched themselves behind steady habits, and obliged their subjects to seek through blood and violence rash and ruinous innovations, which, had they been referred to the peaceful deliberations and collected wisdom of the nation, would have been put into acceptable and salutary forms. Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and well—meaning councils. And lastly, let us provide in our constitution for its revision at stated periods."

Now he wasn't referring to the national constitution here-just the concept of constitutions in general, but the idea is clear. He, at least, with that clarity so peculiar to the 18th century, did not believe polities should be helplessly bound to the oak barrels of inflexible constitutions and then rolled down the hill of history.

# posted by

Michael Sweney : 1:43 PM

Michael said,
>>>>> I find the originalists and the textualists both a bit dreary and tendentious. I don't believe our country need be saddled, in perpetuity, with its 18th century constitution which becomes increasingly removed from the changes going on in the world. <<<<<<

IMO the Civil War completely discredited the Founders. If the Founders were so wise and all-foreseeing, then why didn't they write the Constitution in a way that would have prevented the Civil War?

IMO the worst example of originalism was Judge John E. "Jackass" Jones III's (a Dover defendant called him a "jackass" on PBS TV and I like the name) statement in a Dickinson College commencement speech that his Dover decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. He said,

. . . .this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

# posted by

Larry Fafarman : 2:19 PM

Professor Koppelman,

I read and re-read your paper with interest and think it was a good contribution to our understanding of the uses and misuses of the "originalist" label.

One question: what is the connection between Justice Scalia's well known antipathy toward consulting the legislative history in statutory interpretation and his "originalism" in constitutional interpretation. Is there a philosophical disconnect?

# posted by

Michael Sweney : 3:13 PM

Michael said,
>>>>> One question: what is the connection between Justice Scalia's well known antipathy toward consulting the legislative history in statutory interpretation and his "originalism" in constitutional interpretation. Is there a philosophical disconnect? <<<<<<

One of the reasons for Justice Scalia's antipathy toward consulting legislative histories (e.g., Congressional reports, the Congressional Record) is that a lot of people don't read legislative histories, but in contrast everyone reads the Constitution, so there is no per se philosophical disconnect there. The big problem arises when people -- e.g., Judge "Jackass" Jones (see my preceding comment) -- come up with crackpot originalist interpretations of the Constitution.

# posted by

Larry Fafarman : 3:55 PM

Larry,

Actually I think Scalia's turn away from legislative history to a kind of textual "contract" reading of the plain language text was motivated by some deeper concerns that seem somewhat contrived.

My point is that his project, if applied to Constitutional interpretation leads to a cul-de-sac that he fervently wishes to avoid. And avoid it he does at the cost of jettisoning the rationale of his statutory approach. He has a chasm running right through the center of his jurisprudence and he knows it.

What is interesting to speculate is whether Scalia will dump his textualist approach to statutory interpretation as statutes become progressively more conservative (the Bankruptcy Protection Act comes to mind), the general effect of his approach is to severely restrict the scope of legislation and to reduce causes of action. When the liberal cause was in the ascendency (what Scalia refers to as "the bad old days") legislative history generally was used at the Court to expand standing, scope and considerations of harm. When Scalia came to the Court, he more or less made it his crusade to banish LH from deliberations. And he has surprisingly succeeded.

# posted by

Michael Sweney : 5:24 PM

Michael,

I think that what you are saying is that Scalia is inconsistent because he is against consulting the legislative histories (e.g., Congressional reports) of statutes but is in favor of consulting the constitutional history (e.g., the Federalist papers) of the Constitution. I certainly agree that that is inconsistent.

Legislative history is often ignored even when it is very important. For example, now there is a big stink -- with lawsuits and Congressional action -- over the US Environmental Protection Agency's denial of California's request for a waiver of federal preemption of greenhouse gas (mostly CO-2) auto emissions standards. When federal preemption of auto emissions standards began (about 1967), Congress recognized that because of the high mobility of motor vehicles (air pollution is also mobile), very stringent auto emissions standards were required on all new motor vehicles sold anywhere in the USA and there was great resistance to allowing California to be granted waivers for its own standards (BTW, now other states are allowed to adopt the California emissions standards package). Legislative history shows that Congress decided to allow the California waivers in order to use the state as a "testing area" for new emissions control technologies and so that California would be the first to benefit from those new technologies. But the fact that those original reasons for allowing the California waivers do not apply to the greenhouse-gas waiver request is generally ignored.

Scalia may think that legislative histories are unimportant, but a lot of people rely on legislative histories when deciding to support legislative bills.

# posted by

Larry Fafarman : 9:53 PM

Michael,

I would like to make some more comments about your response.

>>>>> When the liberal cause was in the ascendency (what Scalia refers to as "the bad old days") legislative history generally was used at the Court to expand standing, scope and considerations of harm. When Scalia came to the Court, he more or less made it his crusade to banish LH from deliberations. <<<<<<

Sometimes the purposes of laws are made more prominent by stating those purposes in the laws themselves (often in a preamble), thus avoiding the problem of legislative history being ignored. Also, one of the bad things about legislative reports is that they often just express the opinions of legislative committees, just a few legislators, or just one legislative chamber, as opposed to expressing the opinion of the legislature as a whole.

Among constitutional provisions, the 2nd Amendment is unusual in having a purpose stated in the provision itself:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

That statement about a "well regulated Militia" has caused tremendous confusion and controversy about the 2nd Amendment.

# posted by

Larry Fafarman : 11:30 PM

NAL said (11:13 AM) --
>>>>>> What the clause does not say is: ... respecting an establishment of "a" religion. Which is what one would expect if the founders where (sic) only concerned with preventing an English style establishment of a state religion like the Church of England. <<<<<<

Well, maybe that particular nuance of interpretation did not occur to the Framers. Also, the Constitution is a fairly big document and you are assuming that the Framers nitpicked the meaning of every word in it.

Chris said (2:00 PM) --
>>>>>> Thomas is merely explaining for 2 1/2 pages, without anyone else on the Court engaging the issue, why he "would welcome the opportunity to consider more fully the difficult questions whether and how the Establishment Clause applies against the States." <<<<<<<

Even though the First Amendment only says "Congress shall make no law" and does not say "the states shall make no law," it is generally assumed that the other clauses of the First Amendment apply to the states (and also to local governments and even private entities). So why not the Establishment Clause too?

IMO the exact wording of the Constitution should be taken with a grain of salt.

# posted by

Larry Fafarman : 5:30 PM

"[W]hy not the Establishment Clause too?"

To the extent that the Establishment Clause doesn't protect a privilege or immunity of citizens--that is, to the extent that hostility to a federal establishment was based on federalism or subsidiarity concerns, and not a privilege not to have any established church at all--it doesn't make sense to say that the 14A incorporates the right, in lieu of textually-implausible SDP incorporation. The other rights of the 1A were derived from liberties generally protected in state constitutions. But several states had established churches in 1789, yet still supported a rule barring a federal establishment.

# posted by

Chris : 5:47 PM

"I don't believe our country need be saddled, in perpetuity, with its 18th century constitution which becomes increasingly removed from the changes going on in the world."

Personally, I find living constitutionalists a bit "dreary and tendentious", in their perpetual pretense that if we don't resort to increasingly sophistical 'interpretation', the meaning of the Constitution will remain exactly what it was back in the 1700's. As if there were no Article V!

When in reality it's the living constitutionalists who want the text to remain perpetually unchanged, while the courts' 'interpretation' of that text takes a drunkard's walk away from the plain meaning of the words. As if there were no potential problems from any Joe who's minimally literate being able to pick up a pocket edition of the Constitution, read it, and tell that the judiciary is lying through their teeth.

Here's a thought experiment: Take the "living" changes to the Constitution over the last 70 years or so. Write them up as a series of formal amendments. And then seriously ask yourself: Would they have a chance in Hell of being ratified?

Some of them, sure. But most? No way. And that tells you what you need to know about the legitimacy of living constitutionalism: It's not a mere convenience, it's a way of circumventing the states' power to refuse to ratify.

# posted by

Brett : 6:31 AM

Chris,

I am a strong believer in Occam's Razor -- the idea that the simplest adequate explanation is the best (Einstein's statement of the law is that things should be as simple as possible but no simpler). To me, the fact that the other First Amendment clauses are applied to the states is sufficient reason to apply the Establishment Clause to the states. The longer interpretations of the Constitution become, the more arbitrary and subjective they tend to become.

>>>>> To the extent that the Establishment Clause doesn't protect a privilege or immunity of citizens <<<<<

Citizens are always suing under this clause. In fact, in Flast v. Cohen, 392 U.S. 83, the Supreme Court granted the unique privilege of allowing general taxpayer suits under this clause (but -- per Hein v. Freedom from Religion Foundation [1] [2] -- this privilege now applies only when the taxpayer funds are allocated by Congress and not by the Administration).

>>>>>> --that is, to the extent that hostility to a federal establishment was based on federalism or subsidiarity concerns, and not a privilege not to have any established church at all--it doesn't make sense to say that the 14A incorporates the right, in lieu of textually-implausible SDP incorporation. <<<<<

So you are saying that the First Amendment did not apply to the states and local governments prior to the adoption of the 14th Amendment? I am not an expert on constitutional history, but I find that a little hard to believe.

Also, I am not a lawyer. If you expect me to understand what you are talking about, please don't use esoteric acronyms like "SDP." To me, that means "Social Democratic Party."

# posted by

Larry Fafarman : 8:15 AM

Brett said,
>>>>>> Personally, I find living constitutionalists a bit "dreary and tendentious", <<<<<

I could not imagine a living constitutionalist coming up with a constitutional interpretation anywhere near as bad as Judge "Jackass" Jones' originalist interpretation that I described above in my comment of 2:19 PM.

>>>>>Take the "living" changes to the Constitution over the last 70 years or so. Write them up as a series of formal amendments. And then seriously ask yourself: Would they have a chance in Hell of being ratified? <<<<<

Well, constitutional amendments not only need to be ratified by the states, but also need to be proposed either by Congress or by a constitutional convention called by the states.

# posted by

Larry Fafarman : 8:55 AM

"So you are saying that the First Amendment did not apply to the states and local governments prior to the adoption of the 14th Amendment? I am not an expert on constitutional history, but I find that a little hard to believe."

That's right. Barron v. Baltimore in 1833 decided the general question for the Bill of Rights. There were some "Barron contrarians," as Amar calls them, but they were pretty clearly wrong, I think. See Amar's book for lots more.

"If you expect me to understand what you are talking about, please don't use esoteric acronyms like 'SDP.'"

Sorry about that. Substantive due process. "No state shall deprive any person of life, liberty, or process without due process of law." On its face, that's about the procedures to be followed before depriving anyone of life, liberty, or property, not the substantive liberties that states must respect. It's not very plausible that that forbids state establishments.

# posted by

Chris : 9:10 AM

Chris said,
>>>>>"So you are saying that the First Amendment did not apply to the states and local governments prior to the adoption of the 14th Amendment? I am not an expert on constitutional history, but I find that a little hard to believe."

That's right. Barron v. Baltimore in 1833 decided the general question for the Bill of Rights. <<<<<<

Well, that really sounds self-defeating, prohibiting the federal government from violating particular rights and then allowing states, local governments, and even private entities to violate them. Judges just sit there philosophizing in their ivory towers while being completely divorced from reality.

>>>>>There were some "Barron contrarians," as Amar calls them, but they were pretty clearly wrong, I think. <<<<<

Well, I don't think they were wrong.

>>>>>please don't use esoteric acronyms like 'SDP.'"

Sorry about that. Substantive due process. "No state shall deprive any person of life, liberty, or process without due process of law." On its face, that's about the procedures to be followed before depriving anyone of life, liberty, or property, not the substantive liberties that states must respect. It's not very plausible that that forbids state establishments. <<<<<<

Again, I disagree. The US Constitution is supposed to be the supreme law of the land, even where a specific provision applies specifically only to Congress.

If the states had so much power, then how could anyone think that secession was unconstitutional and that it even justified war?

Anyway, in regard to application of the Establishment Clause to the states, I greatly prefer my simple reasoning to your convoluted, abstruse, and arbitrary reasoning.

# posted by

Larry Fafarman : 4:27 PM

"Among constitutional provisions, the 2nd Amendment is unusual in having a purpose stated in the provision itself:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

"That statement about a "well regulated Militia" has caused tremendous confusion and controversy about the 2nd Amendment.

"# posted by Larry Fafarman"

And it is a "confusion" readily resolved by reading the legislative history -- the first Congress' debates of that which became the Bill of Rights, and the Second Amendment.

The only posited individual right debated concerning the Second was conscientious objection -- exemption for reasons of conscience from compulsory military service.

Thereafter one needn't consult legislative history to conclude that the Second doesn't protect anything within its scope from regulation: see Militia Act of 1792.

# posted by

JNagarya : 10:17 PM

NAL said --
>>>>>> What the clause does not say is: ... respecting an establishment of "a" religion. Which is what one would expect if the founders where (sic) only concerned with preventing an English style establishment of a state religion like the Church of England. <<<<<<|

"Well, maybe that particular nuance of interpretation did not occur to the Framers. Also, the Constitution is a fairly big document and you are assuming that the Framers nitpicked the meaning of every word in it."

It wouldn't be an error to assume that they did "nitpick" every word in the Constitution. It is abundantly evident that that was done with the Bill of Rights, particularly between distinguishing and disentangling "standing army" and "militia".
. . . .

"Even though the First Amendment only says "Congress shall make no law" and does not say "the states shall make no law," it is generally assumed that the other clauses of the First Amendment apply to the states (and also to local governments and even private entities). So why not the Establishment Clause too?"

Supremacy clause is sufficent there. (As for the "non-incorporation" of the Second Amendment: that isn't necessary, because it already applies to the states: it's first purpose was to ensure that the states could keep their militia, over against the anti-Federalist paranoias vis-a-vis the Federal gov't. It's the ignorance of the legislative history which leads to all the arguments that it should be incorporated -- and would probably be by now if not for the "liberal" "anti-gunners".)

"IMO the exact wording of the Constitution should be taken with a grain of salt.

"# posted by Larry Fafarman"

That grain of salt is often supplied by the legislative history. And I don't mean the extra-legislative non-legal history titled The Federalist.

# posted by

JNagarya : 10:27 PM

JNagarya said (10:17 PM) --
>>>>>And it is a "confusion" readily resolved by reading the legislative history -- the first Congress' debates of that which became the Bill of Rights, and the Second Amendment. <<<<<

No, the confusion has not been resolved -- there is still disagreement over what those words about a "well regulated Militia" mean.

>>>>> The only posited individual right debated concerning the Second was conscientious objection -- exemption for reasons of conscience from compulsory military service. <<<<<

What does conscientious objection have to do with the right to keep and bear arms?

>>>>> Thereafter one needn't consult legislative history to conclude that the Second doesn't protect anything within its scope from regulation: see Militia Act of 1792. <<<<<

How can something not protect anything within its scope of regulation? Oh, wait -- that is the way that the Second Amendment is often interpreted.

JNagarya said (10:27 PM) --
>>>> It wouldn't be an error to assume that they did "nitpick" every word in the Constitution. <<<<<

Even if they did nitpick every word in the Constitution, it is inevitable that there are some possible misinterpretations that they would have overlooked. Consider, for example, the recess appointment clause:

"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

Because the clause refers to "next Session" instead of "this Session," it is obvious that "Session" can only mean the period between recesses rather than the two-year period of Congress, yet incredibly it is usually assumed that "Session" means the two-year period of Congress! Also, the Constitution's failure to deal with secession was one of the biggest causes of the Civil War. And the charge that the Republicans' and Northern Democrat Stephen Douglas's policies on slavery in the territories were violating the Dred Scott decision, a piece of phony originalism, gave Southern states a pretext for secession. Before the Dred Scott decision, it was generally accepted that Congress had jurisdiction over slavery in the territories. The Civil War's occurrence should have driven a golden spike through the heart of originalism.

>>>>> Supremacy clause is sufficent there. <<<<<<

No, Chris showed that in Barron v. Baltimore in 1833, the Supreme Court ruled that the Bill of Rights did not apply to states and local governments, even though the amendment in question, the Fifth Amendment -- unlike the First Amendment -- was not written as specifically applying only to Congress.

>>>>> As for the "non-incorporation" of the Second Amendment: that isn't necessary, because it already applies to the states: <<<<<<

It is apparent that even with the 14th Amendment, there is debate over whether the Establishment Clause should be applied to the states. As to the argument that the Establishment Clause should not be incorporated into the 14th Amendment because this clause is supposedly just a restraint on government and supposedly not a matter of individual rights, may I point out that this clause is the only basis that the Supreme Court has allowed for general taxpayer suits -- see Flast v. Cohen and Hein v. Freedom from Religion Foundation (Hein ruled that taxpayer suits are allowed for Congressional allocation of funds but not for executive branch allocation of funds) [1] [2]

>>>>>"IMO the exact wording of the Constitution should be taken with a grain of salt.

That grain of salt is often supplied by the legislative history. <<<<<<

Part of that legislative history was that when some states ratified the Constitution, they reserved the right to secede -- but that part of the legislative history did not prevent the Civil War.

Judge John E. "Jackass" Jones III thought that his interpretation of the Establishment Clause -- that the Founders based the clause upon a belief that organized religions are not "true" religions -- was very straightforward, too. He said,

. . . .this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Ironically, when he gave the speech he was standing behind Dickinson College's seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which contains a picture of an open bible and the college motto "religion and learning, the bulwark of liberty" in Latin.

# posted by

Larry Fafarman : 11:01 AM

Larry Farfarman --

"Judge John E. "Jackass" Jones III thought that his interpretation of the Establishment Clause -- that the Founders based the clause upon a belief that organized religions are not "true" religions -- was very straightforward, too. He said,

". . . .this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

"Ironically, when he gave the speech he was standing behind Dickinson College's seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which contains a picture of an open bible and the college motto "religion and learning, the bulwark of liberty" in Latin.

"# posted by Larry Fafarman"

The problem is in the oversimplification -- that the Founders/Framers were confronted by a single reality on "religion".

It was more complex than that. The effort by MA-Bay to ratify its first constitution, as example, was unsuccessful because it didn't include that which was something of a fashion of the day: a bill of rights. Among the criticisms of it was that of a Baptist minister: that it didn't include protection of FREEDOM OF CONSCIENCE. (One finds that right expressly stipulated, and spelled out aat length in, as example, VT's first constitution.)

At the same time, the first GA constitution prohibits active clergy from holding public office; and while ensuring the right to "preach the Gospel," it also establishes in the same clause the authority to prosecute "seditious" speech.

And both constitutions prohibit the use of "my" taxes to support "your" "religion" -- which had long been a complaint in the colonies.

In other words: there was a range of views on "religion" in relation to gov't. Sam Adams, the great "revolutionary," didn't set out to have a revolution; his goal had been to "restore Puritan virtue" -- which translated into establishing a state "religion" -- his.

By contrast, the Baptists were a powerful defender of freedom of conscience. And religious persecution didn't stay in Europe when the various groups of for "freedom of [my] religion [but not for yours] came to this continent. It was fresh in most of the Founders/Framer's knowledge of both history and current reality that such persecution was unacceptable -- check out MA-Bay's banishment and execution of those who had a "wrong" "religion". Check out Sam Adam's manipulations and exploitations of bigotry against Catholics/"Papists"/"Jesuits" for political ends.

Separation of church and state began as an argument, and began being established in law, long before the "Declaration," the "Articles," the Constitution, and the Bill of Rights.

# posted by

JNagarya : 12:50 PM

Andrew Koppelman said (original post) --
>>>>>> Most originalist scholars do not mean simply to be shills for the agenda of the Republican Party. They should, however, understand the function they are performing. They are being used. <<<<<

Originalism tends to destroy objectivity in the study of history. As a result of originalism, the Founders have been stereotyped as everything from a bunch of blasphemous bible-burning godless atheists to a bunch of bible-pounding holy-rolling proselytizing fundies.

I am glad to see a growing backlash against originalism. Many of the Founders were certainly wise and their views should certainly be considered, but their views should not be controlling.

# posted by

Larry Fafarman : 3:11 PM

"Originalism tends to destroy objectivity in the study of history."

Quite true: As humans, objectivity in the face of interest in the conclusion comes hard. But living constitutionalism doesn't just tend to destroy objectivity in interpretation of text, it explicitly rejects it as desirable.

Who's going to be worse, the person who may fall prey to subjectivity, or the person who embraces it?

# posted by

Brett : 7:33 AM

Brett said,
>>>>>> Who's going to be worse, the person who may fall prey to subjectivity, or the person who embraces it? <<<<<<

At least the latter is more honest.

# posted by

Larry Fafarman : 12:10 AM

Brett --

"Originalism tends to destroy objectivity in the study of history."

"Quite true: As humans, objectivity in the face of interest in the conclusion comes hard. But living constitutionalism doesn't just tend to destroy objectivity in interpretation of text, it explicitly rejects it as desirable.

"Who's going to be worse, the person who may fall prey to subjectivity, or the person who embraces it?"

It needn't be either/or. It is quite possible to strike a balance between objective and "subjective". There is no mention anywhere in the Constitution of the Internet, yet we can reasonably apply the First Amendment as concerns gov't interactions with it.

(In fact, it should be asserted and re-established that the taxpayer funded the research which eventuated in the Internet, therefore We the people -- not private ISPs -- own the Internet, and thus have a priority right of access to our property without having to pay private corporations for the "privilege" of access. But that's a different issue)

I have no problem with either "original intent" and or "living Constitutionalism". I am suspicious of the invention of the similar-sounding-to-original-intent "Originalism"; what's the motive for avoiding "original intent" while purporting to give that primacy?

# posted by

JNagarya : 2:36 AM

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# posted by

Unknown : 4:33 PM