Since I'm in the mood for discussing esoteric principles of constitutional law, I'm going to venture into the realm of the Establishment Clause. Presumably, this diary will be less well-received than
yesterday's attempt at elucidating how the Privileges and Immunities Clause guarantees, among other things, the right of privacy.
Even more fundamentally, the P&I Clause, I think, provides the basis of a certain kind of "living Constitution," thus validating much of what our "activist judges" have done over the past 70 years. Indeed, because an originalist reading of the P&I Clause authorizes a "living Constitution" approach when it comes to the preservation of certain fundamental rights of citizens, Scalia and Thomas are hoist by their own petard when it comes to railing against privacy and substantive due process. The Establishment Clause, however, is not part of this living Constitution; in fact, the very interpretation of the P&I Clause that includes the right of privacy must reject the Establishment Clause.
To understand this apparently oxymoronic conclusion, we have to start from the beginning, which is (of course) the text of the Clause itself. It emphatically does not state that Congress may not establish a religion. Instead, it says "Congress shall make no law
respecting an establishment of religion." Was that seemingly awkward phrasing an accident? I think not. The Establishement Clause, in 1787 at least, was designed to serve two functions: preventing Congress from establishing a national religion
and preventing Congress from interfering with existing state-established religions. Hence the very deliberate choice of the word "respecting," which covers both points. Indeed, state-established religions continued to exist well after the ratification of the Constitution, into the 1800s, with Massachusetts and Connecticut (ironically enough), as the last two states to dis-establish their religions.
At this point, the objection could be raised that my history lesson isn't really that interesting, since the Bill of Rights originally only applied to Congress, and not to the states. It wasn't until a century later, with the passage of the 14th Amendment, that the Bill of Rights was applied against the states. All true, and this is where it gets interesting.
The Privileges and Immunities Clause was designed to do the work of "incorporating" the relevant constitutional provisions against the states. And, as I mentioned yesterday, the P&I Clause was designed to incorporate more than just the Bill of Rights; also included were the fundamental rights of citizens -- rights recognized in the common law, the Magna Carta, in Virginia's 1606 Declaration of Rights, in Blackstone's Commentaries, and so on. Including, of course, the right to privacy. The flip side of this coin, however, is that while the P&I Clause incorporated more than just the Bill of Rights, it also incorporated less than the full Bill of Rights. That is, not everything contained in the Bill of Rights was applied to the states with the passage of the 14th Amendment.
For an obvious example, we have the Tenth Amendment, which reserved rights not granted to the federal government "to the states respectively, or to the people." It's logically impossible to apply the 10th Amendment against the states, because the 10th Amendment is simply a disclaimer of federalism, recognizing that the states retain their character as sovereign governments of general jurisdiction.
This example might seem trite at first, but is actually quite important to the question of the Establishment Clause. The P&I Clause was designed to incorporate the private rights of citizens against the states (in contrast to rights held by the states themselves or by the public at large). Professor Akhil Amar ("The Bill of Rights and the Fourteenth Amendment" article available for download in pdf form here -- scroll down to 1992) explains the point by focusing on remarks made by John Bingham, the architect of the 14th Amendment:
Consider, for example, the remarks of John Bingham in 1859: "privileges and immunities of citizens in the several states [do not include] rights and immunities of the several States. When Bingham later framed his proposed amendment, he used words that spoke of rights of citizens in contradistinction to rights of the several states; of private rights (for that is what the word "privileges" quite literally means) like habeas in contradistinction to public rules of government structure like bicameralism.
A broader sense of the private/public distinction can be seen by looking to debates in the 39th Congress and to judicial opinions penned after the 14th Amendment was ratified. For instance, when Bingham and Howard spoke of incorporation via the P&I Clause, they spoke only of the first eight Amendments (viewing the 9th and 10th as federalism provisions), and did not speak as though they believed the first eight were incorporated as a whole. Howard, for example, spoke of incorporation of "the privileges and immunities defined in" and "the personal rights guaranteed and secured by" the first eight Amendments.
The Establishment Clause does not guarantee such a personal, private right. In the first place, it was designed to protect state religions and can be viewed as a kind of federalism provision. More to the point, to the extent that the Establishment Clause touches on a personal right, that right is already covered by the Constitution in the Free Exercise Clause. That clause, undoubtedly, was incorporated against the states by the Fourteenth Amendment.
Probably the best historical example of this is Justice Bradley's dissent in The Slaughter-House Cases. There, Bradley catalogues the privileges and immunities secured by the original Constitution:
such as the right of habeas corpus, the right of trial by jury, of free exercise of religious worship, the right of free speech and a free press, the right peaceably to assemble for the discussion of public measures, the right to be secure against unreasonable searches and seizures, and above all, and including almost all the rest, the right of not being deprived of life, liberty, or property without due process of law. These and still others are specified in the original Constitution, or in the early amendments of it, as among the privileges and immunities of citizens of the United States, or, what is still stronger for the force of the argument, the rights of all persons, whether citizens or not.
Bradley does not confine his list to the Bill of Rights, but neither does he list every protection contained in the Bill of Rights. Pointedly absent, given that he mentions other portions of the First Amendment, is the Establishment Clause. A similar deliberate omission is made by Justice Harlan's dissent in Maxwell v. Dow. There, in discussing the privileges and immunities of citizens, he paraphrases every section of the First Amendment except for the Establishment Clause. He then follows with this telling hypothetical:
Suppose the state of Utah should amend its Constitution and make the Mormon religion the established religion of the state, to be supported by taxation on all the people of Utah. Could its right to do so, as far as the Constitution of the United States is concerned, be gainsaid under the principles of the opinion just delivered? If such an amendment were alleged to be invalid under the national Constitution, could not the opinion herein be cited as showing that the right to the free exercise of religion was not a privilege of a 'citizen of the United States' within the meaning of the Fourteenth Amendment?
Although the hypothetical involves the establishment of religion, the right at stake is free exercise, not freedom from establishment. Also key to the hypo is the fact that a tax is levied to support the establishment, thereby burdening free exercise. Harlan seems to think that establishment alone isn't enough -- it has to be establishment that burdens free exercise.
In short, the P&I Clause is what incorporates certain constitutional protections of rights against the states. The rights so guaranteed are personal, private rights that are fundamental to the nature of citizenship. The Establishment Clause does not guarantee such a right, and therefore does not apply against the states. Does this mean anything at all? After all, a good lawyer should be able to take any Establishment Clause violation and spin it into a Free Exercise Clause violation. Maybe. But, IMO, it would be a service to constitutional jurisprudence if the Establishment Clause were properly interpreted, ridding us of cases arguing that some state action is or is not an "establishment" of religion when considered at a high enough level of abstraction. The only relevant question should be whether free exercise is burdened by the state action in question.
