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12/02/2019

James Rogers on Incorporating the Establishment Clause
Michael Ramsey

At Law & Liberty, James R. Rogers (Texas A & M, Political Science): Incorporating the Establishment Clause, Wrongly.  From the introduction: 

In a supreme irony, the First Amendment’s Establishment Clause, incorporated against state governments by the Supreme Court via the Fourteenth Amendment in 1947, is precisely the type of national usurpation of state government policies that the Clause was adopted to prohibit.

The First Amendment’s religion clauses form the well-known start to the Bill of Rights, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Amendment includes two different religion clauses, an Establishment Clause and a Free Exercise Clause. To understand how these clauses apply to state governments, we need first to understand the First Amendment itself, and then we need to understand the liberty guarantee of the Fourteenth Amendment, which is the means by which some parts of the U.S. Constitution’s Bill of Rights have come to apply to state governments.

While some overlap exists between the two clauses, each serves broadly different functions. When the U.S. Supreme Court first applied the Establishment Clause to the states in 1947—in Everson v. Board of Education—it did so without discussion of the nature of the Establishment Clause itself. The Court merely appealed to dictum from a Free Exercise case from 1943 which struck down a Pennsylvania tax on the sale of religious merchandise. The Court’s decision to incorporate the Establishment Clause was subject to scholarly criticism early on. The debate over the appropriateness of incorporating the Establishment clause revived in the early 2000s as a result of a series of concurring opinions by Justice Thomas.

The criticism of incorporating the Establishment Clause of the U.S. national Constitution and applying it to restrict state governments via the liberty guarantee of the Fourteenth Amendment arose because incorporation is based on a fundamental misreading of the Establishment Clause, and a misunderstanding of the nature of religious establishments. . . . 

(Thanks to Mark Pulliam for the pointer.)