A Bridge Too Far: Reverse Incorporation

Over at Prawfsblog, Kurt Lash has a post on Incorporation of the Establishment Clause.  Kurt did pioneering work on this issue back in the day, work which is rightly esteemed.  In the first part of his post, Kurt argues that people at the time of the 14th Amendment understood the meaning of the Establishment Clause differently than they did at the time of the Bill of Rights.  And he argues that the 14th Amendment should get the meaning in existence at that time.

While I don’t think we really understand the original meaning of the 14th Amendment, I am sympathetic both to incorporation and to a two track approach to incorporation, with the 14th Amendment incorporated Bill having a different meaning than the original Bill.  (As an example, see this paper where I argue that the 1791 Takings Clause does not extend to regulatory takings, but that the 1868 version may.)

But Kurt then takes a further step:

The Supreme Court has rejected the two-track approach, and rightly so, I think. The Fourteenth Amendment declares that the states are bound to enforce “the privileges or immunities of citizens of the United States.”  One of these privileges was the privilege of non-establishment declared by the federal Establishment Clause.  To the people who adopted the Fourteenth Amendment, there were not two principles of non-establishment, only one; the principle already existed in regard to the federal government and it was now to be applied against the states.  It is almost as if, in adopting the Privileges or Immunities Clause, the people readopted the original Establishment Clause and declared its principles—as they understood those principles- now operative against both state and federal governments.

If correct, then this means that Marsh v. Chambers got it exactly backwards.  We should not look to the original Founding to determine the content of Reconstruction liberty; we should look to the meaning of Reconstruction liberty to determine the content of the readopted Bill of Rights.

I disagree.  If Kurt believes that there can only be a one track approach, then the much stronger argument is that the 14th Amendment incorporated the 1791 meaning of the Bill.  Under this view, 14th Amendment might be referring to “the original Bill as enacted in 1791,” which is certainly a plausible view.

Kurt writes: “It is almost as if, in adopting the Privileges or Immunities Clause, the people readopted the original Establishment Clause and declared its principles—as they understood those principles- now operative against both state and federal governments.” Exactly — it is almost as if. But the 14th Amendment simply did not do that, and there is no obvious way that it can be understood to have amended the original Bill.

I don’t know why people are so quick to resist a two track approach.  It makes sense that the same provisions adopted at different times might have different meanings.  And it might make sense to impose different restrictions on different levels of government.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. gabe says

    Mike:

    There is something that has always troubled me with respect to the incorporation issue – the Boland Amendment! If my old memory is not completely failing me, did not successive Congresses specifically decide to not “incorporate?”
    And yes, I know, the Court has decided to incorporate but still, what weight should one give to this Congressional failure (refusal?) to do so?

  2. David Upham says

    Gabe,

    I think it was the Blaine Amendment, which would have, in part, specifically incorporated the religion clauses against the states. During the congressional debates over the Amendment, ten years after the Fourteenth-Amendment debates, no one argued or suggested that the Fourteenth Amendment had already incorporated these clauses.

    Based on my research, I think the strong preponderance of evidence leads to the conclusion that the Amendment did not incorporate those clauses. That evidence includes: (1) the fact that religious freedom, including the principle of non-establishment, was never understood to be a privilege of citizenship (or a due process or equal protection right), but a fundamental human right, based on the relationship between Creator and creature–a relationship not affected by citizenship or the lack thereof; (2) that religious freedom, and especially non-establishment, unlike the freedoms of communication governed by the verb “abridge” in the First Amendment, does not satisfy the Corfieldian definition, because the citizens of some free governments (including some American states after independence) did not enjoy this right; (3) that the strongest evidence of general incorporation–Senator Howard’s comments introducing the nearly-final version of the Amendment, indicate a conspicuous, glaring omission of the religion clauses–see also Randy Barnett’s commment on Lysander Spooner’s partial enumeration; (4) the stark lack of evidence of general incorporation during the framing and ratification debates; and (5) the Blaine Amendment debates.

    • gabe says

      David:

      Thank you – both for the correction and the fine exposition!

      So I return to an earlier posting in which the poster indicated that per Madison there is a need for a “liquidation of meaning” and “recurring consent” in order for one to arrive at a proper ongoing constitutional interpretation. I asked at that time, “Who is to give this recurring consent?”
      Considering that there appears to be little or no evidence that Establishment (and others) incorporation was intended, how did we arrive at our present state?
      Of course, the Court appears to be free to do as it wishes and, indeed, has done so -
      but who has consented? By this I mean an affirmative consent – not consent by inaction on the part of the Legislature, the Executive or the States.
      It appears to me that of the two terms aforementioned, only “liquidation” is operative. Regrettably it appears to be operative in its modern sense (as in closing a failing retail store) not in its earlier sense of settling a meaning.

      I suppose that I should have, by now, grown accustomed to “Black Robe policymaking.” Still, it is unsettling.

      Again, thank you for your response!

      • David Upham says

        Gabe,

        Thanks for your reply! I think the question may be one of acquiescence–and perhaps to what extent such widespread acquiescence has amended the Constitution. I think the answer is no. Yes, judicial despotism is troubling.

  3. John Ashman says

    I think this is simply a case of overthinking arguing with overthunk.

    This is what happens when you allow courts to insert meanings into the spaces between words.

    Congress can’t establish a religion because it is seen as a move against the natural right to freedom of religion. So neither can the States. As long as a government doesn’t actually infringe on people’s practice of religion, or attempt to establish a dominate religion, all the fluffy argument about it really doesn’t matter much, it’s just mental exercise and, well, overthinking it.

    • gabe says

      John:

      In theory I agree with you. However, at the time of Ratification there were a number of States that, in fact, had “established” religions. Over time, this was eliminated – but they did have them.

      Interesting, wouldn’t you say?

      gabe

      • John Ashman says

        Yes, and I can see how the 14th can be very easily construed to deny establishment to the States for multiple reasons. However, the issue as I see it today, is that the ACLU has used this as a club to destroy any kind of expression of religion by government. For instance, this utterly ridiculous lawsuit – http://www.freerepublic.com/focus/f-news/1491689/posts – I’m not sure if it failed or succeeded, but the city’s name is “The Crosses”, but knowing the Southwest, the Spanish or Mexicans associated the town with some crosses, because there were some there, or they put some there, perhaps because of fellow soldiers who had died there, and so the town became “Las Cruces” and they dared depict 3 crosses on the town symbol. The rational is that a cross on a symbol, automatically establishes a dominant religion, when in fact, sometimes a cross is just a cross. Ironically, they didn’t sue to get the name of the city changed. As an atheist, I say that establishment doesn’t mean freedom from religion or religious symbols, it means tolerance of all religions, not an assault on the naturally dominant one.

  4. says

    Mike, gabe, David, and John,
    I am referring you gentlemen to the debates on the Bill of Rights, House of Representatives, Amendments
    to the Constitution, June 8, July 21, August 13, 18-19, 1789, Annals
    1:424-50, 661-65, 707-17, 757-59, 766.
    Incorporation was a line in the sand for the delegates. And the delegates voted against incorporation of the BOR. This was purely Legislative — and courts of the early to mid-nineties usurped Article VI, The Supremacy Clause.
    I expect I will be addressing one or the other later.

  5. says

    Mike, I would like to comment on your Post: A Bridge Too Far: Reverse Incorporation
    I find your post (excuse the expression) unusual, considering your (not complete) originalist feature.
    You say, ‘I think. The Fourteenth Amendment declares that the states are bound to enforce “the privileges or immunities of citizens of the United States.” One of these privileges was the privilege of non-establishment declared by the federal Establishment Clause.
    First of all, Section 5 of the Fourteenth Amendment sets the tone of the Amendment as controlled by the Congress (unless they make a mistake regarding a State’s statute); certainly not the federal courts w/regard to your above remarks.
    Secondly, the privilege you declare — is a prohibition – enumerated against the federal government – not the States or the people. It is not a privilege. (Do you want me to site the case – you should know it?)
    (It’s time for this (hmm) younger feller to hit the sack.) But I want you to understand, I believe, by the Posts I have read – you are really “on the fence” with a great number of issues regarding “incorporation”. As you would suggest to me and others – this is only what my comments are about; certainly not on a personal level.
    Respectfully, John E. J

    • Mike Rappaport says

      I don’t really follow your post, John. I may be mistaken, but it seems as if you are interpreting Kurt’s words as if I wrote them. Am I mistaken?

      In any event, I have hard time understanding what you are saying. It would be helpful if you wrote a little more clearly. Thanks.

  6. says

    Mike, my apology for not getting back to you in a timely manner. If there is a misunderstanding we can easily resolve it w/a few questions and answers.
    It is possible I was reading two voices incorrectly. I have not read Kurt’s post that you responded to. (But I certainly will.) If my remarks had confused you — my apology there also.
    “Incorporation” of the Establishment Clause is (not regarded by me as the only complete subject matter) first by Kurt, and your response to his post. Incorporation of any part of the religious clauses of the BOR, into the Fourteenth, suggested by ‘anyone’ w/me, opens up a considerable rebuttal on my part. .
    My first question is very straight forward, “What is the individual’s personal “meaning” of the post (or response) of the religious clause’s –”Congress shall make no law respecting religion, or prohibit the free exercise thereof ” — in no more than one sentence?
    Would you respond to this question?

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