“As an initial matter, the Clause probably prohibits Congress from establishing a national religion.” –Justice Clarence Thomas, in his concurring opinion in Greece v. Galloway
“Probably”? As if the May 5, 2014 Town of Greece v. Galloway decision, upholding prayers said at the beginning of legislative meetings, didn’t upset strict separationists enough, Justice Clarence Thomas’s radically originalist concurring opinion was enough to bring on shouts for an exorcism. To the contrary, Thomas’s reasoning about the First Amendment establishment clause is the most rational way to preserve liberty, by recognizing the institutional principle of federalism as well as the individual right of religious free exercise. This becomes clear once we see this opinion in light of his earlier, lengthier establishment opinions.
Over at Prawfsblog, Kurt Lash has a post on Incorporation of the Establishment Clause. Kurt did pioneering work on this issue back in the day, work which is rightly esteemed. In the first part of his post, Kurt argues that people at the time of the 14th Amendment understood the meaning of the Establishment Clause differently than they did at the time of the Bill of Rights. And he argues that the 14th Amendment should get the meaning in existence at that time.
While I don’t think we really understand the original meaning of the 14th Amendment, I am sympathetic both to incorporation and to a two track approach to incorporation, with the 14th Amendment incorporated Bill having a different meaning than the original Bill. (As an example, see this paper where I argue that the 1791 Takings Clause does not extend to regulatory takings, but that the 1868 version may.)
But Kurt then takes a further step:
Recently, I was looking over McDonald v. Chicago, the case that held that the Second Amendment was incorporated against the states. While I agree with the result, I believe this case was very problematic from an originalist perspective. Four of the Justices -- Alito joined by Scalia, Roberts, and Kennedy -- relied on the doctrine of substantive due process to incorporate even though it seems clear that the due process clause did not incorporate as an original matter. It was only Justice Thomas that sought to find incorporation in the more defensible Privileges or Immunities Clause. Justice Alito sought to explain…