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04/21/2017

Kurt Lash on Originalism and the Future of Religious Freedom
Michael Ramsey

At Liberty Law Blog, Kurt Lash: Originalism and the Future of Religious Freedom.  From the introduction:

For historians seeking the original meaning of the Fourteenth Amendment, few issues are trickier than the question of national religious liberty. At the time of the Founding, the entire subject of governmental regulation of religion was left to the states. There was no single “principle of religious freedom” beyond widespread agreement that the federal government had no delegated authority over the issue. This left Virginia free to embrace the principles of Jeffersonian separationism and Massachusetts free to embrace the Adams-esque principle of semi-coercive, government-supported religious belief.

Adoption of the Fourteenth Amendment ended this freewheeling religious regulatory federalism and demanded that no state enact or enforce any law abridging the privileges or immunities of national citizenship. Presumably, one of these principles of national freedom involved religious freedom. I say presumably only because historians remain divided over whether the Fourteenth Amendment declared that the principles of free exercise and non-establishment now bound the states (“incorporated” those principles, as the Supreme Court would say). There is good reason to believe that people in 1868, when the Fourteenth Amendment was ratified, did view the first eight amendments to the Constitution as representing national privileges or immunities. Certainly the drafter of the Fourteenth Amendment, Representative John Bingham (R-Ohio), thought that was the case.

But even if this is correct, we are left with a conundrum: Which principles represented the understanding of religious freedom and governmental power in the realm of religion in 1868?

All true, and an issue that Justice Scalia, for example, simply failed to address.  See, for example, his dissenting opinion in McCreary County v. ACLU, in which he assumed that the principles of non-establishment from 1787-88 applied to a case brought against a local government under the Fourteenth Amendment.