The disincorporation proclamation: emancipating the establishment clause from the Fourteenth Amendment.

Author:Wishnatsky, Martin

    Although the Establishment Clause states: "Congress shall make no law respecting an establishment of religion ... the Supreme Court in 1947 read the Establishment Clause into the Due Process Clause of the Fourteenth Amendment and began enforcing it against the states.* 1 2 As a result, every city council, school board, and county and state government in the nation became liable to suit for perceived instances of prayer, (3) Bible reading, (4) Ten Commandments displays, (5) or any other whiff of religion (6) that might offend militant unbelievers such as the American Civil Liberties Union (ACLU) and the Freedom from Religion Foundation. State expenditures on education that might aid religious schools would receive particularly close scrutiny, (7) as did annual holiday displays. (8) The Court facilitated the filing of Establishment Clause complaints by loosening standing requirements to permit any taxpayer to bring suit alleging a legislative appropriation to aid religion. (9) In some cases, government officials, fearful of Establishment Clause litigation, preemptively excluded religious groups from forums open to other members of the public. (10)

    Whether Establishment Clause cases are decided under strict or loose standing requirements, or under the Lemon test, (11) endorsement test, (12) or coercion test, (13) the larger question is whether the Supreme Court legitimately possesses authority to hear Establishment Clause challenges to state law. If the answer is no, states will be free to emphasize religion as they choose, pro or con, subject to the restrictions of the Free Exercise Clause and their own

    state constitutions, without the inhibiting oversight of the federal judiciary. In the process, the lucrative fees for civil rights attorneys who prosecute these cases will also vanish. (14)


    The Bill of Rights, designed by the Founders to limit the federal government, originally did not apply to the states. "These amendments," wrote Chief Justice John Marshall, "demanded security against the apprehended encroachments of the general government--not against those of the local governments." (15) Noting that the Constitution had a specific section listing restraints on the States (16) and that the first eight amendments had no similar designation, Marshall concluded: "These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them." (17) The Civil War Amendments (18) changed this situation. The Fourteenth Amendment, in particular, subjected the states to its commands:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (19) Rep. John Bingham, author of this language, explained that he adopted the "no state shall" phrase directly from Article I, [section] 10 to meet Marshall's objection that "the existing amendments are not applicable to and do not bind the States." (20)

    In reexamining that case of Barron,... I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said: "Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention." Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said "no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;" imitating their example and imitating it to the letter, I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution.... (21) Bingham also explained that the privileges and immunities of the Fourteenth Amendment "are chiefly defined in the first eight amendments to the Constitution of the United States." (22) Senator Jacob Howard, introducing the Fourteenth Amendment in the Senate, reiterated that the first eight amendments did not operate "in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them ..." (23) To remedy this situation, "[t]he great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." (24)

    In the view of the sponsors of the Fourteenth Amendment, the purpose of the Privileges or Immunities Clause was to make the first eight amendments to the Bill of Rights applicable to the states. (25) Does that mean that the Establishment Clause of the First Amendment is now enforceable against the states?


    The Establishment Clause, as commonly referenced, (26) is actually part of the Religion Clause which is a section of the First Amendment. The First Amendment limits the legislative power, the power to make laws, by specifically forbidding three types of laws, those (1) "respecting an establishment of religion, or prohibiting the free exercise thereof'; (2) "abridging the freedom of speech, or of the press"; or (3) [abridging] "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (27) Although the First Amendment curtails the power of Congress in three general areas--religion, free speech, and assembly--the adjectival phrases modifying the lawmaking power use three different participles: respecting, prohibiting, and abridging. (28) These three words all have different meanings, and thus set different subject-matter specific limits on the legislative power. "Prohibiting" (29) is the narrowest of the three, allowing laws about free exercise of religion short of absolute prohibitions. Thus, according to the text, Congress may pass laws encouraging, promoting, or even limiting the free exercise of religion, as long as such laws do not "prohibit." (30) "Abridging" (31) is a broader concept than "prohibiting." One may abridge an activity even though not prohibiting it. Thus, Congress has broader power to legislate in the area of free exercise than in the areas of speech and assembly. As long as free exercise is not prohibited, Congress may pass laws affecting it, but for speech and assembly, anything that even abridges the right, while not prohibiting it, is disallowed. (32)

    Finally, "Congress shall make no law respecting an establishment of religion ... ," (33) The word "respecting" (34) is far broader than "abridging." Congress may not pass laws relating in any way to an establishment of religion. The entire subject matter is off limits. Unlike free exercise, or speech and assembly, where Congress may legislate short of prohibiting or abridging, (35) no legislation contemplating an establishment of religion--whether favorable, neutral, or unfavorable--is allowed. (35) Because the Constitution does not limit the power of the states in this area, the entire subject of establishments is left to the states. (37) Congress may not touch it (38)--at least before the Fourteenth Amendment.


    Many commentators recognize the similarity between the Establishment Clause and the Tenth Amendment. (39) Because both provisions function as structural restraints on the federal government--making explicit what is implicit in the concept of a government of enumerated powers--the Tenth Amendment has been called a "truism" or a "tautology." (40) Obviously, what is not delegated is retained. (41) However, in an era of expanding federal government power, this acknowledgement is very important in delineating the limits of federal authority. Likewise, the Establishment Clause does not ascribe personal rights to the individual, but instead restrains the federal government from acting. An establishment of religion, funded from general tax revenues, does not impinge upon anyone's personal rights as long as the free exercise of religion is unimpeded. (42) Yet the Constitution independently prohibits it apart from any personal detriment. (43)

    Contrary to the current enforcement practices of the Supreme Court, the Establishment Clause did not originally devolve upon the federal government a duty to sniff out religiously-flavored government actions whenever they might be detected. (44) Instead, it prohibited the national authority from doing anything with respect to religion, favorable or unfavorable. The Clause operated as a particular application of the Tenth Amendment, expressly reserving to the states plenary power over the question of religious establishments. As Michael McConnell explains: "Contrary to popular myth, the First Amendment did not disestablish anything. It prevented the newly formed federal government from establishing religion or from interfering in the religious establishments of the states." (45) Political scientist Vincent Munoz adds: "Because the original meaning only recognizes a jurisdictional boundary that protects state authority, it cannot be logically incorporated to apply against state governments." (46) As a result, the Establishment Clause "did not constitutionalize a personal right of 'non establishment.'" (47)

    Any right created by the Establishment Clause is a sovereign right of the states to be free from federal control, not a personal right of individuals. Thomas Jefferson cited the intersection of the Establishment Clause with the Tenth Amendment as the reason son why he did not, as President, declare a national day "of fasting & prayer":

    I consider the government of the U[.]S as interdicted by the Constitution from...

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