Jack Balkin makes yet another point
that I thought worthy of comment. In responding to David Wagner's post
on how the early Congress viewed governmental support for religion, he says this:
My understanding of the original understanding of the Establishment Clause was that it was a rule of federalism, allowing the states to have their own established churches, but denying an established church to the federal government. * * *
After the Civil War, the Establishment Clause could not coherently be understood as federalism principle, precisely because if one believed that it was incorporated into the Fourteenth Amendment, it would apply to the states as well.
Well, that seems to be letting the tail wag the dog, so to speak. If the Establishment Clause's original meaning cannot be coherently understood when applied to the states, then perhaps it shouldn't
be applied to the states at all.
Quite a few notable scholars have argued that incorporating the Establishment Clause makes little sense, including Akhil Amar, Gerard Bradley, Steven Smith, Mary Ann Glendon, and others. (Some citations: Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1157-58 (1991); Akhil Reed Amar, The Bill of Rights 32-42 (1998); Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom 49 - 50 (1995); Gerard V. Bradley, Church-State Relationships in America 95 (1987); Chris Bartolomucci, Note, Rethinking the Incorporation of the Establishment Clause: A Federalist View, 105 Harv. L. Rev. 1700 (1992); Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 NW. U. L. REV. 1113, 1132-35 (1988); Mary Ann Glendon & Raul F. Yanes, Structural Free Exercise, 90 MICH. L. REV. 477, 481-82 (1991); William K. Lietzau, Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation, 39 DEPAUL L. REV. 1191, 1201-02 (1990); Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 NOTRE DAME L. REV. 311, 317 (1986); William C. Porth & Robert P. George, Trimming the Ivy: A Bicentennial Re-Examination of the Establishment Clause, 90 W. VA. L. REV. 109, 136-39 (1987).)
The logic seems fairly clear to me: Since the Establishment Clause was clearly written and understood to protect state establishments of religion from congressional interference, and since it makes no sense to use such a clause to prevent
state establishments of religion, and since there is no evidence that anyone ever thought of the 14th Amendment as incorporating the Establishment Clause (until 1947, when the Supreme Court announced this result by unreasoned fiat), the Establishment Clause should not be applied to the states.
I should add that this post demonstrates how originalism can (if applied honestly) constrain judges from applying their personal preferences. I would personally be very much opposed to any actual state establishment of religion. But my examination of the evidence and the constitutional text convinces me that the Constitution ought to be interpreted in a way that is the opposite of my political preferences.