Obviously the way you would explain what is wrong with Thomas's opinion on this list is different from how you would capsulize it in a sentence or two (selected by the reporter) for an "explanation" to the public. But I do think that Thomas's opinion is both extreme and wrong.
He did not say merely that the clause does not apply against the states. He also said that the clause creates no individual rights. The only apparent application of this second pronouncement is that it creates no individual rights against the federal government either. So every Establishment Clause case the Court has ever decided would be obliterated at a stroke. He seems to assume that the free exercise clause would prevent coerced attendance at religious services -- unless, we have to assume, the service is rather short and is incorporated into some other official event that people attend for secular reasons.
I do not doubt that one meaning of the Clause in 1791 was that the federal government could not interfere with establishments in the states. But I am equally sure that one meaning of the Clause in 1791 was that the federal government could take no steps toward a federal establishment of religion -- not in the states, and not in the federal district either. Either a federal establishment or a federal interference with a state establishment would be a law respecting an establishment.
The debate in the First Congress did not focus on the federalism implications. It focused on the meaning of establishment, and on how far the federal government should be restricted. The argument for prohibiting only preferential aid to favored denominations was rejected; the most broadly worded draft proposed was adopted. This of course goes to the debate over nonpreferentialism; but even before that, it goes to whether this Clause was only about federalism, or also about the proper relationship between religion and government. The debate was plainly about the latter; I think the federalism-only interpretation is demonstrably wrong.
I'm not sure the federalism principle that can be derived from the verb "respecting" and the existence of state establishments is much different from the federalism principle that is implicit in the constitutional structure about other individual rights good only against the federal government. Certainly the federal government in 1791 had no general power to protect individual liberties against state restrictions on free speech (blasphemy, defamation, perhaps others) or free exercise (voting confined to Christians, or to Protestants; the Lousiana law on Catholic funerals that got to the Supreme Court in 1845 and produced a repeat of Barron v. Baltimore); or any other individual right. Any attempt to incorporate implicit and explicit rules that the federal government could not interfere with state restrictions on liberty would indeed lead to nonsense.
What is incorporated is the protection for individual liberty in each constitutional right. The states cannot do to citizens what the feds could not do to citizens. The restrictions on government sponsorship of religion play an essential role in protecting the religious liberty of individuals; I am entirely comfortable concluding that those restrictions are a privilege or immunity of citizens of the United States, just like the restrictions on government interference with free speech or free exercise. I understand the argument that the Establishment Clause doesn't speak to what government can do to individuals in the same way as the other provisions of the Bill of Rights, but I think that badly underestimates the role of the Establishment Clause in protecting individual liberty.
At 02:25 PM 6/17/2004 -0500, you wrote:
Dear all,
I apologize in advance, if I missed the list's discussion of Justice Thomas's views regarding the incorporation of the Establishment Clause. For what it's worth, I've been surprised by the vigor with which several prominent scholars have disapproved these views. Jack Balkin remarked, for example (www.balkin.blogspot.com), "[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" (http://webapp.utexas.edu/blogs/archives/bleiter/001452.html). 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" (http://www.latimes.com/la-na-thomas17jun17,1,3892729.story).
It strikes me, though, that Thomas's observations, in Part II-A of his opinion, are not particularly astonishing, and certainly do nothing to put him on "the lunatic fringe." Does he say anything, in that Part of the opinion, that Steve Smith, Philip Hamburger, Gerry Bradley, Akhil Amar, and many others have not also said, namely, that the point of the Establishment Clause was to protect the States' then-existing "establishments" and perhaps also, more generally, to leave questions of church-state relations to the States? 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).
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 Michael Perry likes to put it, the incorporation of the Establishment Clause has become "bedrock." Still, is there a reason why we should not concede that he is -- or, at least, MAY be -- correct?
Best,
Rick Garnett
Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (voice) 512-471-6988 (fax) [EMAIL PROTECTED]
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