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.