Dispatches from the Creation Wars

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.


  1. #1 mark butterworth
    February 25, 2005

    Mmm, this is sad. Lawyers have pretty much ruined what a few great lawyers and others created. Legalism has taught many not to read plain English, but substitute any opinion they like into the Constitution.

    I suggest that people read what the documents and amendments actually say, and not what they think they ought to imply. (Because they rarely imply, but rther clearly state what rights and powers are.)

    According to our Constitution, it is entirely permissable for any State to create a State church or religion that the State demands support of. A number of States at the time of the Constitution and for many decades afterwards had State supported religion.

    There is no amendment to the Constitution that negates that or denies a State that right.

    “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;”

    What privileges or immunities does it refer to? The Bill of Rights or those enumerated in the Constitution? Can’t be the Bill of Rights since every State created a bill of rights in their own consitutions.

  2. #2 Bill Ware
    February 25, 2005

    Any amendments, including the Bill of Rights are a part of the Constitution.

  3. #3 Ed Darrell
    February 25, 2005

    Well, I suppose this discussion spills out anywhere, so long as there are those who insist somebody somewhere has a right to create a state church.

    Jonathan Rowe is correct — there is too much emphasis placed on the idea that it was a ban on federal establishments only. I would go farther than Ed Brayton, and say it’s not just the Slaughterhouse Cases that gum up the works and the precedential chain, but that Barron v. Baltimore and whatever siblings and descendants it has are also part of the problem. I wonder who first proposed that the Bill of Rights was not to apply to citizens against all governments, as Jefferson and Madison, and to the best of my research, all other founders believed. It’s a bit of an untenably topsy-turvy claim that a Bill of Rights applies against the superior government and Supreme Law of the Land, but not against inferior governments. But I digress.

    Mr. Butterworth suggests there is no part of the Constitution that takes away a state’s right to oppress citizens in matters of religion (which is what establishment does). That’s an accurate view, but it’s myopic. There does not need to be such a clause, because the Constitution establishes a government of limited powers, a government that can do only what is delegated to it. Since there is no delegation of the right to establish a church, to the states in Article IV, to the Congress in Article I, to the executive in Article II, nor to the judiciary in Article III, that right simply never existed. We don’t need an amendment to take away from the states a right or privilege or duty they did not have in the first place.

    Freedom of religion was reserved to citizens, not to any branch of any government. That freedom was not delegated by any group of citizens in the united states or United States, to any governmental body, after 1778. States did not have established churches at all in nine cases (nine being the supermajority required for ratification of the Constitution, coincidentally), nor were there anything other than vestiges of establishment in the remaining four states, especially during and after the Philadelphia convention in 1787. During the life of the Constitution, no state has had the right, by its own charter or by federal charter, to create a church. I know David Barton writes otherwise — but we should rely on the documents and real history, I think.

    Every bill of rights in every state charter denies to the state government the right to create a church.

    This is only relevant when the extremists argue we should “get back to” established religion. As a nation, as states, as people who created our own government, there is no “there” to get back to with regard to establishment.

    I like Rowe’s comments very much. There’s always a Butterworth to argue that there is precedent in history to the contrary — even though there is not.

  4. #4 Ed Brayton
    February 25, 2005

    According to our Constitution, it is entirely permissable for any State to create a State church or religion that the State demands support of. A number of States at the time of the Constitution and for many decades afterwards had State supported religion.

    As originally written, it also allowed states to violate freedom of speech, freedom of the press, or almost all other provisions of the bill of rights. The 14th amendment changed that. You would not argue that the 14th amendment didn’t incorporate ANY of the bill of rights against the states, would you? At the very least, the free exercise clause would prevent state establishments after the 14th amendment. As Madison and Jefferson noted many times, no man is free to practice his own religion if he is taxed to support another religion preferred by his government.

  5. #5 mark butterworth
    February 25, 2005

    Ed B.,

    I disagree that the 14th amendment changed that, and that’s the crux of the matter. Clearly, though, my POV has not prevailed legally. But it may do so someday, you never know.

    The states created the federal government in the hope and ratified belief that they were pretty much free to do whatever they pleased within their own states. Those powers have been pretty well usurped, even though the states had their own bill of rights.

  6. #6 Ed Brayton
    February 25, 2005

    I disagree that the 14th amendment changed that, and that’s the crux of the matter. Clearly, though, my POV has not prevailed legally. But it may do so someday, you never know.

    Okay, so tell us what the 14th amendment was supposed to do, in your view. If the privileges and immunities of US citizens referred to in the 14th amendment, the ones that states were forbidden to violate after the passage of that amendment, does not at the very least refer to the rights and liberties detailed in the bill of rights, what else could it possibly refer to? If you can’t answer that question, and provide some sort of historical documentation for what else it could possibly have referred to, you’re just blathering.

  7. #7 Ed Darrell
    February 26, 2005

    The states didn’t create the Constitution. Misunderstanding that it is a compact between citizens, and not a compact between states, is one of the keys to figuring out where Butterworth goes astray, I think.

    The Constitution was ratified by conventions of citizens, bypassing the state legislatures. The states had no dog in that fight, and have always been inferior to the Constituiton.

  8. #8 mark butterworth
    February 26, 2005

    I am wrong about the 14th Amendment. I read the text and did not read the debates of its intent.

    This has made me alter some constructions of mine and take an entirely fresh look at the Civil War and its aftermath and how that applies to future internal conflicts here.

    I have mistakenly believed that the 14th was intended to protect the freedom of former slaves as accomplished in the 13th.

    The question I now include is who actually benefitted from the Civil war since those freedmen remaining in the South certainly did not enjoy their full rights for nearly a hundred years; and two, the transfer of power from the states to the fed gov has become a disaster (by my lights) of rule by judicial fiat.

  9. #9 Ed Brayton
    February 26, 2005

    I am wrong about the 14th Amendment. I read the text and did not read the debates of its intent.

    Even if you had only read the text, the meaning is obvious. What could “privileges and immunities” possibly mean aside from the protections found in the Constitution and the bill of rights? And it specifically restrains what states may do, not the federal government. So even without reference to the legislative history, what else could it possibly have meant?

  10. #10 Ed Brayton
    February 26, 2005

    Reading your new entry on the 14th amendment, I’m baffled by your claim that “every state already had nationalized it (the Federal bill of rights) in their own constitution.” This is completely untrue. If that was the case, there would have been no need for the 14th amendment at all. There are two key parts of the 14th amendment – the declaration that all people born in the US are citizens of the US, which meant slaves were citizens by virtue of having been born here (this was obviously important since slaves were not considered citizens either under the original Constitution nor under the constitutions of many states); and the declaration that no state could deprive any citizen of the privileges and immunities guaranteed to all other citizens (which meant that, at the very least, state law had to be as protective of individual rights as the federal government – they could be more protective of such rights, but the federal standards became the baseline of measurement).

    I’m also baffled by the idea that the 14th amendment was bad because it took “power out of the hands of people in their localities and gives it to Federal courts and judges”. That is exactly what it was designed to do, take the power to oppress away from states and localities. If men are endowed with inalienable rights, why is it a good thing to allow any level of government to violate those rights? Oppression is oppression, whether it is confined to a particular geographical area or not. People in any locality should not have the power to take away the rights of individuals. Yet you seem to confuse powers with rights, as though taking away their power over others deprives them of a right that they had. But there is no right to control others, there is only the right to control oneself. All else is a question of authority, not of rights.

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