Justice Thomas in Newdow

Justice Thomas's opinion in Newdow (the Pledge case) is, in my view, the most interesting -- and, probably, the most candid -- of the bunch. In that opinion, he observed (among other things) that the Religion Clause's no-establishment provision seems to have been designed to (a) prevent the establishment of a national church; (b) prevent the federal government from interfering with the then-existing establishments in the States; and, more generally, (c) to leave questions of church-state relations to the States. He then went on to consider whether, even assuming that the no-establishment norm applies against the States, the state action at issue in Newdow constitutes an "establishment" of religion, as that term was originally (and is best) understood.

I've been surprised, frankly, by the vigor with which several prominent scholars have disapproved these views. Jack Balkin remarked, for example, "[n]ow we know what it would be like to have Judge Roy Moore on the Supreme Court." Brian Leiter concludes that Justice Thomas has "solidif[ied[ his status on the lunatic fringe." And Doug Laycock states that Thomas's "is a pretty astonishing view. . . . He acts as though the Civil War didn't happen, or it didn't matter." (Full disclosure: I'm quoted in the same article, offering a different reaction).

Larry Solum has also weighed in, commenting on Marci Hamilton's take.

It strikes me, though, that Thomas's observations are not particularly astonishing, and certainly do nothing to put him on "the lunatic fringe." With respect to the "Establishment Clause as a federalism provision" point, I do not think he says anything that Steve Smith, Philip Hamburger, Gerry Bradley, Akhil Amar, and many others have not also said. And, with all due respect to Professor Laycock, I'm not sure it is fair to conclude that, because Justice Thomas agrees with those who believe that the Establishment Clause is particularly, and perhaps uniquely, unsuited for incorporation via the 14th Amendment (but see, e.g., Kurt Lash), he is therefore unmindful of the (obvious) sweeping changes that the post-Civil War Amendments worked in the constitutional law of individual rights. (Recall, for example, his passionate concurrence in Zelman, the school-voucher case!).

Now, I'm inclined to think that, merits aside, the matter is water under the bridge, and that Justice Thomas's views on this question -- like his views on the scope of the Commerce Clause -- are not likely to become governing constitutional law. As our colleague Michael Perry likes to put it, the incorporation of the Establishment Clause has become "bedrock." Still, is there a reason why eminent constitutional law scholars should not concede that, with respect to the "incorporation" of the Establishment Clause, he is -- or, at least, MAY be -- correct?

Rick

UPDATE: Professor Brian Leiter has responded to this post, and to others on the same topic, here.