88 Indiana Law Journal 669 (2013)
Incorporation of the Establishment Clause against the states through the Fourteenth Amendment is logically and textually impossible—so say most academics, a few lower-court judges, and a Supreme Court Justice. They maintain that because the Clause was originally understood as a structural limitation that protected state power against the federal government, it cannot restrain state power or fit within the Fourteenth Amendment texts that protect personal rights— indeed, that attempts to show that it does are laughable.
This purported incoherence and textual inconsistency enable anti-incorporation critics to avoid serious engagement of the anti-establishment dimensions of Reconstruction history. They also undermine the Clause’s vigorous application against the states and place the Court’s anti-establishment decisions under a cloud of illegitimacy.
This Article sets forth logical, textual, and historical justifications for Establishment Clause incorporation based on the original eighteenth-century understanding of the Clause as a purely structural limitation on federal power. By its terms, the Establishment Clause did not reserve state power but disabled congressional action. As an express disability on Congress, the Clause generated two immunities, one held by the states against congressional interference with state decisions about religious establishment or disestablishment, and one held by the people against congressional establishment of a national religion.
As part of Reconstruction’s imposition of new federal limits on state power, the Fourteenth Amendment extinguished the state immunity from federal interference but extended the personal immunity to protect the people against state as well as federally established religions. This is logically coherent in the context of Reconstruction’s goals and also sounds in the personal liberty and citizen immunities protected by the text of the Fourteenth Amendment. When framed by a logical and textual account of Establishment Clause incorporation, Reconstruction history suggests an originalist account of the Fourteenth Amendment’s application of the Establishment Clause to the states.
Gedicks, Frederick Mark
"Incorporation of the Establishment Clause Against the States: A Logical, Textual, and Historical Account,"
Indiana Law Journal: Vol. 88
, Article 8.
Available at: http://www.repository.law.indiana.edu/ilj/vol88/iss2/8