54 Pages Posted: 5 Feb 2012 Last revised: 9 Jun 2015
Date Written: July 27, 2012
Incorporation of the Establishment Clause against the states through the Fourteenth Amendment is logically and textually impossible — so say most academics, a few lower-court judges, and a Supreme Court Justice. They maintain that because the Clause was originally understood as a structural limitation on the federal government that protected state power, it cannot restrain state power or fit within the Fourteenth Amendment texts that protect personal rights — indeed, that attempts to show that it does are laughable
This purported incoherence and textual inconsistency enable anti-incorporation critics to avoid serious engagement of Reconstruction history. They also undermine the Clause’s vigorous application against the states and place the Court’s anti-establishment decisions under a cloud of illegitimacy.
This Essay sets forth logical, textual, and historical justifications for Establishment Clause incorporation based on the original eighteenth-century understanding of the Clause as a purely structural limitation on federal power. The Establishment Clause did not reserve state power, but disabled congressional action. As an express disability on Congress, the Clause generated two immunities, one held by the states against congressional interference with state decisions about religious establishment or disestablishment, and one held by the people against congressional establishment of a national religion.
As part of Reconstruction’s imposition of new federal limits on state power, the Fourteenth Amendment extinguished the state immunity from federal interference, but extended the personal immunity to protect the people against state as well as federally established religions. This is logically coherent in the context of Reconstruction’s goals and also sounds in the personal liberty and citizen immunities protected by the text of the Fourteenth Amendment. When framed by a logical and textual account of Establishment Clause incorporation, Reconstruction history suggests an originalist account that the Fourteenth Amendment applied the Establishment Clause to the states.
Incorporation of the Establishment Clause, therefore, is eminently defensible. Its justifications require more careful consideration by courts and commentators than they have yet received.
Keywords: Blaine Amendment, Dis-incorporation, Establishment Clause, Fourteenth Amendment, Incorporation, Originalism, Textualism
Suggested Citation: Suggested Citation
Gedicks, Frederick Mark, Incorporation of the Establishment Clause Against the States: A Logical, Textual, and Historical Account (July 27, 2012). 88 Indiana Law Journal 669 (2013). Available at SSRN: https://ssrn.com/abstract=1997807 or http://dx.doi.org/10.2139/ssrn.1997807
By Dan Kahan