Jon Rowe has an interesting post up about the question of incorporating the Establishment Clause of the first amendment. It was sparked by a discussion on the Panda’s Thumb between Sandefur and another frequent commentator here, Ed Darrell (you have to scroll down a ways in the comments to find the right ones). All attorneys, and all essentially on the same side, but arguing over what I at least think are interesting details of constitutional interpretation. I think the quote from Akhil Amar that Jon offers really nails the issue:
Perhaps the greatest elaboration came from Thomas Cooley’s influential 1868 treatise. Under prevailing state constitutions, wrote Cooley, states generally could not enact “[a]ny law respecting an establishment of religion….There is not religious liberty where any one sect is favored by the State….It is not toleration which is established in our system, but religious equality.” Even a noncoercive establishment, Cooley suggested, violated principles of religious liberty and religious equality — violated norms of equal rights and privileges. And once we see this, it turns out that the question — should we incorporate the establishment clause? — may not matter all that much, because even if we did not, principles of religious liberty and equality could be vindicated via the free-exercise clause (whose text, history, and logic make it a paradigmatic case for incorporation) and the equal protection clause (which frowns on state laws that unjustifiably single out some folks for special privileges and relegate others to second-class status). Surely Alabama could not adopt a state motto proclaiming itself “the White Supremacy State”; such a motto would offend basic principles of equal citizenship and equal protection. And so a law that proclaimed Utah a Mormon state should be suspect whether we call this a violation of establishment principles, free-exercise principles, equal-protection principles, equal-citizenship principles, or religious-liberty principles. Once we remember that we are not incorporating clauses mechanically but reconstructing rights, we reach the unsurprising conclusion that our basic touchstones should be the animating Fourteenth Amendment ideals of liberty and equality. pp. 253-4
I think Rowe and Amar are exactly right to propose that what is incorporated by the 14th amendment is not only the specific provisions and text, but the broader principle of inalienable rights as well. Each of the principles he names is overlapping, but all with the goal of protecting the basic idea that all men are equally free to follow the dictates of conscience, and equally restrained by the rights of others in that regard.
And Rowe is also right to point out that our 14th amendment jurisprudence has been entirely screwed up by the Slaughterhouse cases, resulting in essentially the nullification of the privileges and immunities clause and the resulting use of the due process clause to reach a similar effect. Here is a place where I strongly disagree with stare decisis. No matter how long the Slaughterhouse cases have stood, the reasoning was terrible and the effects on later decisions has been highly distorting to logical application of the text and intent of the 14th amendment. We could certainly make a lot more sense of it if the court fixed the initial problem rather than jury-rigging around a bad decision merely because it’s old.