Russell A. Hilton, the Case for the Selective Disincorporation of the Establishment Clause: Is Everson a Super-precedent?

• Jurisdiction: United States,Federal
• Publication year: 2007
• Citation: Vol. 56 No. 6

THE CASE FOR THE SELECTIVE DISINCORPORATION OF THE ESTABLISHMENT CLAUSE: IS EVERSON A SUPER- PRECEDENT?

INTRODUCTION

In 1789, the drafters of the First Amendment penned the words "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."¹Throughout the subsequent century and a half, the Supreme Court applied a two-tiered standard to religious free exercise and establishment issues.²On the one hand, Congress could not establish religion or prohibit free exercise.³On the other hand, the states were free to regulate religion according to their own constitutions.⁴As a result, the Court adjudicated only thirty-one religious liberty cases during the nation's first 150 years.⁵

In the 1940s, however, the Court consolidated this two-tiered standard into a national law of religion, subjecting the states to the same First Amendment limitations as Congress.⁶In the 1920s and 1930s, the Court used the Fourteenth Amendment to create national protection of several individual liberties by selectively incorporating various provisions of the Bill of Rights into the Due Process Clause and applying them to the states.⁷Applying this technique to the First Amendment religion clauses, in 1940, the Court in Cantwell v. Connecticut incorporated the Free Exercise Clause and began applying it to state action.⁸Seven years later, the Court incorporated the Establishment Clause in Everson v. Board of Education.⁹In the six decades since the incorporation of the religion clauses, the Court has adjudicated over

130 religious liberty cases, most of which involved action by state and local governments.¹⁰

Today, the Court's Establishment Clause jurisprudence is complex, inconsistent, and unpredictable, as evidenced most recently by the 2005

Decalogue cases.¹¹In back-to-back cases decided the same day, a 5-4 Court struck down a display of the Decalogue in a Kentucky courthouse but upheld a display of the Decalogue on Texas's State Capitol grounds.¹²Each case yielded both discordant concurring and bitter dissenting opinions-ten opinions in total on this simple question of a religious display.¹³

In response to the Court's erratic Establishment Clause jurisprudence, Justice Thomas has increasingly challenged the Court's foundational decision in Everson to incorporate the Clause against the states.¹⁴Thomas suggests that the Court should consider returning to its pre-1947 two-tiered application of the First Amendment Establishment Clause:

[I]n the context of the Establishment Clause, it may well be that state action should be evaluated on different terms than similar action by the Federal Government. "States, while bound to observe strict neutrality, should be freer to experiment with involvement [in religion]-on a neutral basis-than the Federal Government. Thus, while the Federal Government may "make no law respecting an establishment of religion," the States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest.¹⁵

In effect, Thomas is calling for the Court to selectively disincorporate the Establishment Clause and thereby allow states to once again regulate the establishment of religion without the restrictions of the First Amendment Establishment Clause.¹⁶Justice Thomas thus joins a number of scholars who contend that the Everson Court ignored the original intent of the drafters of the First and Fourteenth Amendments when it incorporated the Establishment Clause.¹⁷This Comment synthesizes and evaluates the historical arguments against incorporation, agreeing with Justice Thomas that the Establishment Clause "resists incorporation."¹⁸

Insofar as the historical record supports disincorporation of the Establishment Clause, the Court must consider whether it should take such action.¹⁹Two theories of judicial decision making challenge Thomas's interpretation of the Establishment Clause: policy and precedent. Policy arguments for and against disincorporation have been addressed in the growing body of disincorporation literature.²⁰Commentators, however, have yet to consider whether Everson's status as precedent should prevent the Court from reinstating the original intent of the Constitution's authors.

Although the Supreme Court always has the authority to overrule its prior decisions, scholars have recently suggested that some deeply entrenched precedents are beyond reversal.²¹Scholars dispute the meaning and legitimacy of these "super-precedents," however. Some contend that super-precedent is a legitimate theory of constitutional interpretation that should influence the Court's decision making.²²Others employ the term "super-precedent" merely to designate precedents that the Court is unlikely to overrule.²³Still others refute the theory of super-precedent altogether, arguing that the Constitution alone is authoritative, not the Court's prior interpretations of that text.²⁴

Insofar as Everson has controlled the Court's Establishment Clause jurisprudence for nearly six decades, originalist arguments for disincorporation must address whether Everson is a super-precedent.²⁵This Comment, therefore, evaluates both the originalist arguments for disincorporation of the

Establishment Clause and the precedent arguments for upholding incorporation. It concludes the following: The Court should selectively disincorporate the Establishment Clause, but it is likely to defer to Everson's status as precedent and refuse to revisit the original meaning of the First and Fourteenth Amendments. Part I of this Comment evaluates the originalist criticisms of the Court's incorporation of the Establishment Clause in Everson. Next, Part II examines the notion of super-precedent and explores factors the Court considers when choosing to overrule or adhere to precedent. Finally, Part III examines whether Everson, in which the Court decided to incorporate the Establishment Clause, is a super-precedent.

I. ORIGINALIST ARGUMENTS AGAINST INCORPORATION: A HISTORICAL TASK

Justice Thomas's criticism of Everson's decision to incorporate the Establishment Clause is one of originalism, the theory that the Court should interpret the Constitution according to the intent of those who drafted and adopted it.²⁶Originalist arguments for disincorporation of the Establishment

Clause rest upon two premises. The first premise is that the drafters of the Bill of Rights intended to reserve to the states the power to establish religion.²⁷

The second premise is that the drafters of the Fourteenth Amendment did not intend to eliminate state power over establishment.²⁸In sum, originalists contend that if the First Congress intended the Establishment Clause to reserve power over establishment to the states, and if no subsequent Congress ever intended to retract such power, then the Court, by applying the Establishment Clause against the states, overreached its authority and improperly amended the Constitution through Everson and subsequent decisions.²⁹

A. Two Originalist Theories of Disincorporation

Advocates of disincorporation subscribe to one of two originalist theories to explain why the Fourteenth Amendment did not abolish state power over establishment. The first theory, which this Comment designates the "intent theory," simply maintains that the drafters of the Fourteenth Amendment did not intend to apply the First Amendment Establishment Clause against the states.³⁰Although this theory has been advanced primarily by scholars, at least one federal court has subscribed to the argument. In 1983, an Alabama district court in Jaffree v. Board of School Commissioners-the case that eventually gave rise to the famous Supreme Court case of Wallace v. Jaffree on moments of silence-abandoned the Everson precedent and held that the Fourteenth

Amendment did not prohibit state establishment.³¹The Eleventh Circuit Court of Appeals emphatically reversed the opinion,³²and the Supreme Court did not address the merits of what it considered the "remarkable conclusion" of the Alabama district court.³³

A second theory of disincorporation, which this Comment designates the

"structural theory," maintains that the drafters of the Fourteenth Amendment at most only intended to prohibit the states from infringing the individual rights listed in the Bill of Rights.³⁴Advocates of this theory observe with Justice Thomas that the Establishment Clause is "best understood as a federalism provision-it protects state establishments from federal interference but does not protect any individual right."³⁵Thus, the Establishment Clause was originally only a structural limitation on the federal government, not a substantive guarantee of an individual right.³⁶Insofar as the only Bill of Rights provisions that are candidates for incorporation under the Fourteenth Amendment are those that guarantee individual rights, the Establishment Clause was never an appropriate candidate for incorporation.³⁷For this reason, the Establishment Clause "resists incorporation."³⁸The structural "square peg" cannot fit into the liberty "round hole" that is the gateway to incorporation.³⁹

To summarize, originalism poses two challenges to the Court's incorporation of the Establishment Clause in Everson. The merits of these criticisms depend upon the original intent of the drafters of the First and Fourteenth Amendments. Because discerning original intent is a historical task, the following sections review the events surrounding the passage of the

First Amendment in 1789 and the Fourteenth Amendment in 1866, evaluating the two arguments against incorporation.

B. 1789: The Original Intent of the Drafters of the Bill of Rights

Advocates of disincorporation appeal to the history of the First Amendment for two reasons. First, it demonstrates that the drafters of the First Amendment intended to reserve power over religion to the states.⁴⁰Second, it demonstrates that the Establishment Clause was originally...