Stuart Buck on the Pledge, Justice Thomas, and the "Lunatic Fringe"

My friend Stuart Buck has put up a characteristically helpful post responding to the "those who are willing to say that the non-establishment clause was a structural, jurisdictional provision are lunatics" claim. He quotes, for example, Professor Amar's observation that "to apply the [Establishment] clause against a state government is precisely to eliminate its right to choose whether to establish a religion -- a right explicitly confirmed by the establishment clause itself! . . . The Fourteenth Amendment might best be read as incorporating free exercise, but not establishment, principles against state governments." Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1157-58 (1991). Also quoted is Professor Carter:

"Let us be realistic. Surely the clause means what it says, and no more than that. At the moment of the founding, the majority of the states had official, state-supported, established churches, and all but two required religious tests for public office. The states were not giving these powers away. On the contrary, they wanted to protect their own established churches from interference by the new national government, and also wanted to prevent that national government from establishing a church of its own. My Yale colleague Akhil Reed Amar has argued persuasively that we should therefore read the "Establishment Clause" as a states'-rights provision, as an allocation between the national and local sovereignties of the authority to create or to endorse an official church.

If Professor Amar is right, then the Supreme Court's subsequent proclamation that the clause is "incorporated" against the states through the agency of the Fourteenth Amendment begins to lose its luster, to say nothing of its coherence. If the purpose of the "Establishment Clause" was to keep the national government from interfering in what was properly a local responsibility, the only sensible meaning of incorporation would be that it now prevents the state government from interfering with local communities as they decide whether to establish their own churches. In other words, if the clause is truly to be applied against the states, then the state of Arizona would not be able to prevent Tucson from establishing an official church, and the state of Connecticut would not be able to prevent New Haven from reviving the old established Congregational Church as its formal public faith.

I am not suggesting that this is a desirable result. I mention it only because I think it quite wrong historically, and quite unpersuasive textually, to look to the "Establishment Clause" as the source of a prohibition on creation of these things called "establishments," which leads in turn to the long line of unfathomable federal court cases telling us which government programs amount to forbidden "establishments" and which do not. Without that line of cases, however, we have no wall of separation; or none, at least, located in the first half of the first clause of the First Amendment."

Stephen L. Carter, Reflections on the Separation of Church and State, 44 Ariz. L. Rev. 293, 299-300 (2002).

Rick