I don't think Thomas disbelieves that incorporation has occurred (or "happened"), and that has included the establishment clause. I think he is questioning whether it is justified. After all, in the same 1940s in which Everson came down the pike so did the Japanese internment case. I don't think anyone would accept as a justification of the latter the citation of historical fact: "broadening the federal power, including interning the Japanese, happenend again with our third Constituiton (New Deal-Warren Court." Yes, it happened. But was it justified?
I think there is another way to understand Thomas that is consistent with establishment applied to the states but without incorporating the Establishment Clause. (I just read through his opinion in Newdow very quickly; so I may be reading him wrong on this). Thomas seems to be saying that state disestablishment can be gotten through the free exercise clause, which can be interpreted to mean that state power to curtail free exercise is prima facie unjustified. This would mean that really egregious cases of establishment--e.g., assessments that tax everyone to support a particular church, indoctrinating students in public school classrooms, etc.--violate free exercise. However, the Pledge of Allegience--from which kids can opt out--violates no one's free exercise. It does, of course, put the state in a position of claiming that the nation is "under God." But one could give a separationist account of this by arguing that since the writer of the Danbury Letter (the sacred text of separationism, so to speak), Jefferson, affirmed in the Declaration that our rights, including religious liberty, are endowed to us by our Creator, apparently he saw no inconsistency in maintaining both beliefs simultaneously. In this sense, we are "under God." Frank On 6/17/04 3:48 PM, "Steven Jamar" <[EMAIL PROTECTED]> wrote: >> "bedrock." Still, is there a reason why we should not concede that he >> is -- or, at least, MAY be -- correct? >> >> Best, >> >> Rick Garnett > > The Civil War Amendments rewrote the Constitution. People are entitled > to protection against establishment period. Limiting the states is what > happened with our second Constitution. Broadening the federal power > happened then and again with our third Constitution (New Deal-Warren > Court). > > While an academic may be excused for pondering parallel universes in > writing, a Supreme Court Justice who does so in writing (as opposed to > raising a point for discussion with law clerks and other judges) is > perhaps not at the lunatic fringe, but is at at the very least near it. > > What we may toss around as ideas on our listserve or in our classes or > in person or even in serious scholarship is different from published > opinions of the court. > > Steve _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
