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L.A. Times Editorial Disagrees with Individual Rights View of Second Amendment, But Supports Its Incorporation Against the States:

An excerpt:

We were disappointed last year when the Supreme Court ruled that the right to keep and bear arms was an individual right, giving short shrift to the first part of the amendment, which refers to "a well-regulated militia." But we also believe the court has been right to use the doctrine of incorporation to bind states to the most important protections of the Bill of Rights. If those vital provisions are to be incorporated in the 14th Amendment, so should the right to keep and bear arms.

UPDATE: Whoops, an HTML error initially caused most of the post to be cut off; sorry about that.

Justin (mail):
Very concise.
6.10.2009 12:19pm
Redman:
An .. apple?
6.10.2009 12:22pm
Peter K. Boucher (mail):
They are for incorporation of the 2nd Amendment under the 14th Amendment, though, in order to enforce against state infringement of the right to keep and bear arms.
6.10.2009 12:23pm
Peter K. Boucher (mail):
6.10.2009 12:23pm
Nony Mouse:

An


Concise indeed. Perhaps, however, there should be more to this post than a single article?
6.10.2009 12:23pm
Dan28 (mail):
Silly argument by the LA Times. Does their position extend to the right to a trial by jury for civil cases, the prohibition on excessive fines under the 8th amendment, grand juries, and all the other federal constitutional rights that have not been incorporated? The editorial implicitly suggests that this would be the first Constitutional right that was not incorporated. But selective incorporation of federal Constitutional rights has been the tradition, and will continue to be the way things work, regardless of whether the second amendment gets incorporated.
6.10.2009 12:31pm
ruuffles (mail) (www):

But selective incorporation of federal Constitutional rights has been the tradition, and will continue to be the way things work, regardless of whether the second amendment gets incorporated.

Is the article correct in imply that Thomas does not support incorporation of the rights? Does he just intend to bind it to the federal gov't?
6.10.2009 12:35pm
arbitraryaardvark (mail) (www):
Gura's cert petition in the Chicago case is even stronger than the NRA's in arguing for overturning the slaughterhouse cases. It's the constitution-in-exile movement uncloaked.
http://www.scotusblog.com/wp /wp-content/uploads/2009/06/ mcdonald_cert_petition.pdf
6.10.2009 12:37pm
Mikee (mail):
Just read the NRA and Gura requests for cert. I note that the individual rights view, per Heller v. DC, is now carved in stone as far as the Supreme Court goes, at least in terms of the cases now under discussion.

The individual right in question is self defense. The Supremes are being asked a question regarding incorporation of the 2nd Amendment, that nicely frames that question as: Is self defense an inherent, inalienable right of US citizens? The keeping and bearing of arms is for the purpose of self defense, so the question is a good one for the Supremes to answer.

I would suppose that the now-unarguable individual right to wear a condom during consensual sex for self protection and protection of one's partner(s) will bear remembering when an argument is made that one should, or should not, be allowed to resist violent attack with a tool designed specifically for that purpose.

And before anyone says that a condom can't kill a room full of school kids in the hands of a madman while a gun can, think of the danger posed by cars, planes, electricity, gasoline, pesticides, oil refineries, nuclear power plants, and a million other potentially hazardous things that a madman could misuse. That argument is dead.
6.10.2009 12:42pm
green-grizzly (mail):
Will this be the first time that a majority of the states are actually asking to be bound by a provision of the federal bill or rights?
6.10.2009 12:42pm
Gabriel McCall (mail):

...those who cherish the protections of the Bill of Rights and also believe in meaningful gun control.


The null set? A-> ~B, unless you insert "some of" between "cherish" and "the".


That would be a mistake and would give aid and comfort to conservative legal thinkers...


I see what you did there, subtly conflating conservatism with treason.
6.10.2009 12:49pm
Pyrrho:
Silly argument by the LA Times. Does their position extend to the right to a trial by jury for civil cases, the prohibition on excessive fines under the 8th amendment, grand juries, and all the other federal constitutional rights that have not been incorporated? The editorial implicitly suggests that this would be the first Constitutional right that was not incorporated. But selective incorporation of federal Constitutional rights has been the tradition, and will continue to be the way things work, regardless of whether the second amendment gets incorporated.
How is it a silly argument? I think there is a decent argument, long advocated by Justice Black, that the first eight amendments should be completely incorporated. I don't see anything in this article that suggests they would be against incorporating the other rights you referenced - that just wasn't the subject of the editorial. Furthermore, they did not "implicitly suggest[] that this would be be the first Constitutional right that was not incorporated." In fact this statement implicitly suggests otherwise: "Other amendments long have been incorporated, making it possible to sue the states for violating many of the protections of the Bill of Rights." Why would they say "many of the protections" if they meant "all of the protections"? The fact that they did not write a treatise on incorporation does not render "silly" their specific arguments in a short, layperson-oriented editorial.
6.10.2009 12:49pm
mcbain (mail):
I believe they refer to those who only cherish the rights that they use.
6.10.2009 12:50pm
James Gibson (mail):
We should keep in mind the newspaper this editorial is in. It doesn't support and individuals right to bear arms, but also supports Central government override of any State laws by the 14th amendment.
6.10.2009 12:56pm
Thief (mail) (www):
The suspense! IT'S KILLING ME!
6.10.2009 12:57pm
J. Aldridge:
Wonder if they want the Tenth Amendment incorporated too?
6.10.2009 12:58pm
Thief (mail) (www):

It's tempting for supporters of gun control -- including this page -- to hope that the high court will rule that the 2nd Amendment doesn't apply to the states. That would be a mistake and would give aid and comfort to conservative legal thinkers, among them Justice Clarence Thomas, who have questioned the incorporation doctrine.


Emphasis mine. Of all the places to use that phrase...

Still, good to see some intellectual honesty among the media.
6.10.2009 12:59pm
Jim at FSU (mail):
Thanks for the link Peter Boucher.
6.10.2009 1:00pm
Melancton Smith:
arbitraryardvaak:
I agree with your assessment. I particularily liked Gura's arguments for overturning the Slaughter-House cases. He also puts the smackdown on the 7th Circuit panel for not doing their assigned homework. I believe he cites Easterbrook against himself!

Posner's, channeling through Easterbrook, repudiation of the natural law of nature with respect to self-defense should be specifically addressed by SCOTUS. I hope they spank him.
6.10.2009 1:01pm
R Gould-Saltman (mail):
I thought this was a subtle gag about "Seeing an article in the Los Angeles Times..."
6.10.2009 1:02pm
Melancton Smith:
J. Aldridge is a sad panda! Sorry, "J", but the argument has always logically centered on the "first 8 amendments" and there are plenty of historical references to them being incorporated even by Bingham. You should try reading more than just your mentor Prof. Fairman's cherry-picked quotes.
6.10.2009 1:05pm
David M. Nieporent (www):
Is the article correct in imply that Thomas does not support incorporation of the rights? Does he just intend to bind it to the federal gov't?
It's an LA Times editorial about Clarence Thomas. Of course it's not correct. Thomas has questioned incorporation via the due process clause, arguing that the P&I clause is the appropriate vehicle for incorporation. He has, further, questioned incorporation of the Establishment Clause, arguing that it doesn't make much sense textually.
6.10.2009 1:11pm
xx:
(link)Dan28 (mail): "The editorial implicitly suggests that this would be the first Constitutional right that was not incorporated."

No it doesn't.
6.10.2009 1:19pm
PeteP (mail):
Dan28 - "Silly argument by the LA Times. Does their position extend to the right to a trial by jury for civil cases, the prohibition on excessive fines under the 8th amendment, grand juries, and all the other federal constitutional rights that have not been incorporated?"

They correctly make the argument that ANY provisions of the Constitution, or the BOR, if not 'incorporated' to the States, thus limiting only the Federal government, are effectively meaningless.

And yes, this includes those you cite that are NOT currently incorporated - They SHOULD be, they MUST be, or our 'Constitution' and our 'BOR' is a mere phanatasmagora, applicable only to some hypothetical virtual ghost entity called 'the Federal Government'.

What good is a 'RIGHT', if it applies only in DC and military bases ? How is that then a RIGHT of all Americans ? It is not, it can not be.

The fact that there are currently flaws in its implementation, as you cite, does not lesson the point.
6.10.2009 1:20pm
Oren:
They would be quite a bit more inconsistent to add the 2A to the list of incorporation exceptions. This seems quite reasonable -- we want it incorporated and we believe that it means X are totally separate things.

IOW, it's quite intellectually consistent to separate positions about what the 2A means with the position that, whatever it means, it binds the states.
6.10.2009 1:20pm
geokstr (mail):
Now that the LA Times and others on their team see that Obama can swing the SCOTUS far to the left with several more appointments in the next 8 years, probably including at least one of the conservatives, of course they are for the incorporation of the 2A. Then with one fell swoop, they can redefine the amendment to mean whatever they want it to for the entire country. The ol' Trojan horse move...
6.10.2009 1:22pm
PeteP (mail):
Geosktr - lame troll.

Unless of course you suggest that you would prefer it NOT be incorporated, thus allowing 'DC style' total bans to be enacted in every state, and rendering Heller and the 2nd A moot and meaningless, in effect ? You see this as 'preferable' to incorporation of affirmed fundamental rights ?

You are either jesting, or insane.
6.10.2009 1:28pm
Carl in Chicago (mail):
J. Aldridge said:
"Wonder if they want the Tenth Amendment incorporated too?"

If by "they" you mean the editors at the LA Times ... then the answer is probably "yes." ;-)
6.10.2009 1:44pm
geokstr (mail):

PeteP:
Geosktr - lame troll.

Unless of course you suggest that you would prefer it NOT be incorporated, thus allowing 'DC style' total bans to be enacted in every state, and rendering Heller and the 2nd A moot and meaningless, in effect ? You see this as 'preferable' to incorporation of affirmed fundamental rights ?

You are either jesting, or insane.

Nice ad hom, thank you.

If the possibility of a very left wing SCOTUS doesn't scare you, then you should get your head out of the sand, or you're in favor of it. Why do you think the left is so happy that they were able to take care of all those state anti-abortion laws at one time?

What is it exactly that is keeping the SCOTUS from changing their mind and declaring that the 2A only applies to formal militias, not individuals? One vote, that's all. And if you think the left feels bound by, or gives a rat's behind about precedent, when it's not in their favor, well, as they say in NY...fahgeddabodit.
6.10.2009 2:01pm
ruuffles (mail) (www):

Thomas has questioned incorporation via the due process clause, arguing that the P&I clause is the appropriate vehicle for incorporation. He has, further, questioned incorporation of the Establishment Clause, arguing that it doesn't make much sense textually.

Those two sentences don't make sense together. How can he be in favor of incorporating the entire bill of rights but not be in favor of the establishment clause?
6.10.2009 2:06pm
Oren:

How can he be in favor of incorporating the entire bill of rights but not be in favor of the establishment clause?

Trying to read his views plausibly, he favors incorporating the privileges and immunities under the BOR (e.g. the RKBA, the right to be free from unreasonable S&S).

The EC cannot be read to create a P&I, so it remains unincorporated.
6.10.2009 2:11pm
Oren:


What is it exactly that is keeping the SCOTUS from changing their mind and declaring that the 2A only applies to formal militias, not individuals? One vote, that's all. And if you think the left feels bound by, or gives a rat's behind about precedent, when it's not in their favor, well, as they say in NY...fahgeddabodit.

Let's be real -- they would "respect" precedent but eviscerate it by fine distinctions. Just like Roberts did with Casey in Carhart -- Scalia was right in his concurrence, the court should have just come out an openly reverse Casey instead of dancing around the fact.

I have no problem with the Court reversing precedent where it believe it incorrect, but a modicum of honesty (and the demise of false judicial modesty) about what they are doing would go a long way.
6.10.2009 2:13pm
Oren:
And Heller gives a lot of room for lackadaisical application, by the way, since it didn't even announce a standard of review that a future court has to use when arriving at the outcome they desire.
6.10.2009 2:15pm
Dilan Esper (mail) (www):
Those two sentences don't make sense together. How can he be in favor of incorporating the entire bill of rights but not be in favor of the establishment clause?

You want the stated reason or the cynical reason?

The stated reason-- because Thomas thinks that the reference to "Congress" in the Establishment Clause evinces an intention to permit states to establish religion (although he doesn't explain why he thinks the authors of the Fourteenth Amendment didn't understand that provision as overriding this, and also doesn't explain why this would not apply to the other provisions of the First Amendment as well as the entire thing references "Congress").

The cynical reason-- because Thomas favors, as a policy matter, the states promoting religion (or at least HIS religion), and wants to create an escape hatch in the Establishment Clause for them to do so.
6.10.2009 2:15pm
frankcross (mail):
Lots of liberals and conservatives think that the P&I clause should be the source of constitutional limits on the states. The argument has been made for some time, but it is generally viewed as being too open to judicial activism. Whatever the reason, there's no inkling it could plausibly happen. As a practical matter, being against incorporation under the 14th Amendment is being against incorporation.
6.10.2009 2:19pm
Dan M.:

Unless of course you suggest that you would prefer it NOT be incorporated, thus allowing 'DC style' total bans to be enacted in every state, and rendering Heller and the 2nd A moot and meaningless, in effect ? You see this as 'preferable' to incorporation of affirmed fundamental rights ?



Perhaps you've heard of such a thing as a state constitution. For instance, my home state has the following provision:

"A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use."

The vast majority of us are protected by such provisions. But unfortunately people in New York, California, DC, and a few other states don't have such provisions. Somehow Chicago politicians feel that they can ban whatever the hell they want even though there is a right to bear arms in the Illinois Constitution. If states would follow their own constitutions, the feds could go to hell for all I care.
6.10.2009 2:29pm
Can't find a good name:
Green-grizzly: I may be misremembering this, but I believe that in Gideon v. Wainwright, the Florida attorney general sought to get other states to submit an amicus brief to support his position that criminal defendants did not have the right to state-funded counsel. As I remember it, he only got five states to sign on to his position. The then-attorney general of Minnesota, Walter Mondale, responded by organizng an amicus brief in favor of requiring the states to provide counsel to criminal defendants, and got about 29 states to sign on to that.
6.10.2009 2:36pm
Oren:

If states would follow their own constitutions, the feds could go to hell for all I care.

I don't trust the State governments one whit. My State has an RKBA clause too and the Supreme Court just read it out of existence. If the State benches were really adequate to ensure the P&I's of US citizens, that would be great. History has shown that they are woefully inadequate to the task.
6.10.2009 2:38pm
Can't find a good name:
Sorry, it turns out that Mondale's brief only had the support of 21 other states, so he did not in fact get a majority of the states to support incorporation. See here.
6.10.2009 2:38pm
Melancton Smith:
Illinois has a meaningless RKBA in its Constitution.
6.10.2009 2:39pm
ShelbyC:
Dilan Esper:

because Thomas thinks that the reference to "Congress" in the Establishment Clause evinces an intention to permit states to establish religion (although he doesn't explain why he thinks the authors of the Fourteenth Amendment didn't understand that provision as overriding this, and also doesn't explain why this would not apply to the other provisions of the First Amendment as well as the entire thing references "Congress").


I don't have any direct quotes in front of me, but isn't his reasoning that, under the P&I clause, freedom from establishment isn't a P or an I?
6.10.2009 2:47pm
Tatil:

What is it exactly that is keeping the SCOTUS from changing their mind and declaring that the 2A only applies to formal militias, not individuals?

How does "not incorporating 2A against states" prevent this from happening or make the reversal worse? Are you suggesting that a new Supreme Court will not only say that it is not an individual right, but that no state has the right to let its citizens own guns? Sorry, but how you see a conspiracy in all of this is beyond me.
6.10.2009 2:51pm
wooga:

The stated reason-- because Thomas thinks that the reference to "Congress" in the Establishment Clause evinces an intention to permit states to establish religion

Yeah, that's such a crazy reading. What kind of moron would think that well after the Establishment Clause there were still official state religions (say, Massachusetts in 1833) or that state legislatures could require loyalty oaths to Jesus (say, Deleware)? Man, that Clarence Thomas needs to read a history book.
[/sarc]
6.10.2009 2:53pm
wooga:
DelAware.
6.10.2009 2:53pm
Melancton Smith:
We certainly wouldn't want a slippery slope of State's establishing mandatory religious observation!
6.10.2009 2:57pm
LarryA (mail) (www):
But we also believe the court has been right to use the doctrine of incorporation to bind states to the most important protections of the Bill of Rights.
I'd guess he mentally added, "...like Freedom of the Press."
If those vital provisions are to be incorporated in the 14th Amendment, so should the right to keep and bear arms.
Perhaps they're finally getting it. The only way to protect rights you like is to protect rights you don't like.
The individual right in question is self defense. The Supremes are being asked a question regarding incorporation of the 2nd Amendment, that nicely frames that question as: Is self defense an inherent, inalienable right of US citizens? The keeping and bearing of arms is for the purpose of self defense, so the question is a good one for the Supremes to answer.
The next question is "Self-defense against whom?" Just common lawbreakers, or those who make laws that need breaking?
That would be a mistake and would give aid and comfort to conservative legal thinkers...
I see what you did there, subtly conflating conservatism with treason.
I thought he was saying that conservatives actually care enough about the Constitution to need justification for breaking it, whereas liberals don't. ;-)
Sorry, it turns out that Mondale's brief only had the support of 21 other states, so he did not in fact get a majority of the states to support incorporation.
Meanwhile, among amici for Heller was "Texas, for Thirty-One (31) States of the Union." Of course that wasn't directly for incorporation. Five states and PR opposed.
6.10.2009 3:00pm
frankcross (mail):
That's not really Thomas's reasoning is it? Because the word Congress refers to all of the First Amendment rights, not just the Establishment Clause. And at the time, states were free to trample free speech under the Constitution.
6.10.2009 3:05pm
Melancton Smith:

That's not really Thomas's reasoning is it? Because the word Congress refers to all of the First Amendment rights, not just the Establishment Clause. And at the time, states were free to trample free speech under the Constitution.


So was the Federal Govt (see Alien and Sedition Acts). I think we've grown up a bit since then...
6.10.2009 3:13pm
Allan Walstad (mail):
I think some of the commenters might reconsider their cynicism regarding the LA Times editorial. The knee-jerk reaction for the anti-gun propagandists at the Times would have been to oppose incorporation of 2A. They deserve some credit for recognizing, at least to some extent, that individual rights stand or fall together. Picking and choosing is like chopping here and there at the beams of a structure; one day it comes crashing down. And this little game where the Supremes go around deciding on their own say-so that some rights apply against the states and some don't: it seems an awful lot like judges writing their own Constitution rather than enforcing the one we have.

The swipe at Clarence Thomas is just left-liberal flag-waving by the Times. The business end of the editorial is the endorsement of incorporation of 2A, an unexpected and welcome example of clear thinking.
6.10.2009 3:15pm
Barry Loberfeld (mail) (www):
6.10.2009 3:24pm
Dilan Esper (mail) (www):
Shelby:

It's both, actually. His concurrence in the school vouchers case is the best place to find it. He says that the Establishment Clause was meant to protect state establishments, and also that the 14th Amendment should not be interpreted as imposing a "constraint" on liberty (of course, protecting nonbelievers and members of minority faiths isn't really a constraint on liberty, but that's Justice Thomas for you).

wooga:

Nobody doubts that the original Establishment Clause was enacted when states had established religions. But post-14th Amendment, when due process for everyone and the privileges and immunities of citizenship for citizens were extended to actions by states, there's a strong argument that states can no longer establish religion.
6.10.2009 3:28pm
David M. Nieporent (www):
Oren has the answer right here. It's not, contra Dilan, because the 1st amendment uses the word "Congress," but because the Establishment Clause doesn't represent (in his view) an individual right the way the other provisions of the 1st amendment/Bill of Rights do.

The Establishment Clause was long understood (pre-14th) to, in part, protect state churches from federal interference. It's hard to look at the 14th amendment as turning that around and saying that there can't be any state churches at all.
6.10.2009 3:31pm
Barry Loberfeld (mail) (www):
A snippet from the above:

Those who argue that the Second Amendment recognizes only a right of the state governments to form their own armies have had to struggle with what "the instrument itself" says: "the right of the people to keep and bear Arms." Their solution, remarkably, is to contend that the "people" who have a right under the Second Amendment are not the same "people" — namely, individual citizens ("natural persons," in legalese) — who have rights under the First, Fourth, and Ninth Amendments. Rather, the Second Amendment refers to a "collective" — and thus to a "collective right."

This schizophrenic construction almost by definition has no integrity. An attempt to provide some measure — by extending the "collective right" reading beyond the Second Amendment — has been made in recent times by University of Tulsa law professor Paul Finkelman:

Consider, for example, the term "people" in the First Amendment — "Congress shall make no law ... prohibiting ... the right of the people peaceably to assemble." If it is hard to construe the word "people" in the Fourth Amendment to be anything but a reference to individuals, it is equally difficult to construe the term in the First Amendment as anything but a collective right. Clearly, the idea of the people assembling contemplates a large number of people and not a single person assembling.


And all this means — what? That an "assembly," like a state army (i.e., their "Militia"), is a government-controlled unit of select persons? That "the people" can assemble only when, with whom, and for what reason as determined by the legislature? Extending this to another First Amendment clause, does it mean people-as-a-collective may form a church (a "religion"), but no one individual has a right to his own personal theological convictions?

The right of assembly is a right of the individual — each and every individual ("the people") — to assemble with those who'll consent to join him. The problem comes from the notion that a "collective" is something other than a collection of individuals, and it only gets worse when we are told that "the people" means this "collective," which is then construed to mean the state governments. For the integrity of the debate, let us acknowledge that those who believe the Second Amendment grants a right to American citizens are advocating the "civil rights" theory, while those who contend the enumerated right belongs to only the state governments are advocating what cannot be called anything but the "states' rights" theory.
6.10.2009 3:32pm
MarkField (mail):

Yeah, that's such a crazy reading. What kind of moron would think that well after the Establishment Clause there were still official state religions (say, Massachusetts in 1833) or that state legislatures could require loyalty oaths to Jesus (say, Deleware)? Man, that Clarence Thomas needs to read a history book.


While you're right that the original understanding of the First Amendment allowed for established religions, that doesn't resolve the issue for incorporated rights. When it comes to incorporation, an originalist needs to decide the additional question whether "original" means as of 1868 or as of 1791. There are reasonable arguments either way, but remember this: if you take the position that it's 1791, you eliminate many of the best arguments for an expansive reading of the RKBA.
6.10.2009 3:35pm
Barry Loberfeld (mail) (www):
I wasn't going to add another snippet, but along the lines of some recent posts:

Nothing is more likely to (justly) infuriate a liberal than an assertion of the specious theory, which in recent years has gained support among conservatives (e.g., recently defeated Senator Rick Santorum of Pennsylvania), that the "original intent" of the First Amendment's no-establishment clause was to preserve the right of the state governments to establish their own churches. "Congress shall make no law respecting an establishment of religion" -- so that the state legislatures can. Along those lines, we may conclude that the "intent" of the free-exercise clause was to prevent federal interference in the state burning of heretics. The purpose of the Eighth Amendment? No doubt to safeguard the right of the state governments to erect their own torture chambers. And of course, the purpose of the Second Amendment is to allow those governments to form their own armies and even disarm the people if they so decide -- a point where our liberal finds himself in perverse agreement with a hated premise.

Let there be no doubt: The Bill of Rights is not a charter of the rights of state churches, state armies, and state torture chambers -- and none of its ratification proponents ever championed it as such. It is a charter of the rights of American citizens -- against the power of the federal government. The weak reed of this "states' rights" theory is the fact that the Constitution did not secure these rights for citizens against the power of the state governments, a defect that Madison recognized and tried to remedy with an amendment (which he thought the "most valuable") affirming "No state shall violate the equal rights of conscience" and other liberties. Sadly, it was never adopted, and incorporation -- the application of the Bill of Rights to the state governments -- was not achieved until the Fourteenth Amendment, whose "privileges or immunities" clause was stated by its author, Congressman John Bingham of Ohio, to effect precisely that end. (See Michael Kent Curtis' No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights.)

The question now: Who are the greater knaves of our time -- liberals who embrace incorporation except for the Second Amendment or conservatives who reject incorporation, except for the Second Amendment?
6.10.2009 3:39pm
geokstr (mail):

Tatil:

What is it exactly that is keeping the SCOTUS from changing their mind and declaring that the 2A only applies to formal militias, not individuals? (One vote, that's all.)

How does "not incorporating 2A against states" prevent this from happening or make the reversal worse? Are you suggesting that a new Supreme Court will not only say that it is not an individual right, but that no state has the right to let its citizens own guns? Sorry, but how you see a conspiracy in all of this is beyond me.

Did I ever insist that there is a "conspiracy", some kind of evil master plan being directed from on high, here? Why would you need one?

Replace Scalia sometime in the next 8 years with, say, Deval Patrick and watch all the nifty changes you can get in what the Constitution really means, on far more than gun rights. I suppose it is only a matter of the political direction you lean in as to whether you think that would be good or bad. If the 2A was incorporated, then a re-definition by the new Supremes to mean "official militia only", which has been the position of the left all along, would be binding on all 57 states, non?

And it would be a very different state of affairs for gun rights if those who valued them had to slog state by state, city by city, for them, as anti-abortion proponents have to do now, only to see their efforts shot down by the SCOTUS. Right now it's the anti-2A types that have to go through all that effort.

I'd be happy to see 2A incorporation if there was someone less to the far left in the White House for the next 8.
6.10.2009 3:46pm
Abdul Abulbul Amir (mail):

The Bill of Rights is not a charter of the rights of state churches...


But it is worth keeping in mind that at the time of the adoption of the first amendment several states did have state supported churches, and no one thought that to be in conflict.
6.10.2009 3:48pm
ShelbyC:
Dilan:

...also that the 14th Amendment should not be interpreted as imposing a "constraint" on liberty (of course, protecting nonbelievers and members of minority faiths isn't really a constraint on liberty, but that's Justice Thomas for you).


Wasn't he addressing the argument that the 14th requires states to deny folks the ability to use vouchers at religious schools? I'm not sure how that's protecting minority faiths and nonbelievers, and it isn't much of a stretch to say it's a constraint on personal liberty.
6.10.2009 3:49pm
MarkField (mail):

But it is worth keeping in mind that at the time of the adoption of the first amendment several states did have state supported churches, and no one thought that to be in conflict.


There were only 2 established churches at that time, but many states "supported" religion in some way (maybe all of them if you define "support" broadly enough).
6.10.2009 4:11pm
frankcross (mail):
The relevant question would seem to be whether there were state established churches at the time of the 14th Amendment. I believe the answer to be no, so I don't think it is implausible that it extended it to the states. I can certainly see an argument that the establishment clause is not an individual right. Though I'm not positive the P&I clause should be limited to individual rights, as opposed to rights of organizations such as churches. And if corporations have rights of individuals, churches should.
6.10.2009 4:16pm
Dilan Esper (mail) (www):
The Establishment Clause was long understood (pre-14th) to, in part, protect state churches from federal interference. It's hard to look at the 14th amendment as turning that around and saying that there can't be any state churches at all.

Actually it's so hard that consistent majorities of the US Supreme Court (made up of people who are smarter than anyone in this comments thread) for six decades have done it.

Seriously, the blind spot that conservatives have on this is that they think that the Establishment Clause doesn't protect anyone's rights. But of course it does-- it protects nonbelievers and members of minority religions from (1) governmental coercion, and (2) seeing their tax dollars go to advance a religion that they don't subscribe to.

It's perfectly plausible to conclude that this is a privilege or immunity of citizenship or a fundamental right. Conservatives just favor-- on a policy level-- state governments doing various things to encourage people to be Christians so they pretend that this can't be so.
6.10.2009 4:17pm
Dilan Esper (mail) (www):
Wasn't he addressing the argument that the 14th requires states to deny folks the ability to use vouchers at religious schools? I'm not sure how that's protecting minority faiths and nonbelievers, and it isn't much of a stretch to say it's a constraint on personal liberty.

2 problems with that:

1. The anti-voucher position concerns the power of government to decide what to subsidize-- I thought conservatives especially would know the difference between this and a right.

2. Even if the pro-voucher argument were construed as creating a "right" to the voucher, a majority of the Court holds that the Establishment Clause DOES NOT impinge on that right, so you can't really say that Thomas' position is necessary to protect any rights that aren't already protected. What he is arguing for is an expansion of state power to coerce nonbelievers to participate in religious exercises.
6.10.2009 4:21pm
Tony Tutins (mail):
Germans, for one, collect church tax at the provincial (Land) level, and pay it to the denomination to which you belong. This supposedly goes back to the tradition of the chief's religion is everybody's religion, and the chief paid for its support.
6.10.2009 4:29pm
MarkField (mail):

The relevant question would seem to be whether there were state established churches at the time of the 14th Amendment. I believe the answer to be no


The last established Church (MA) was disestablished in 1833.


I can certainly see an argument that the establishment clause is not an individual right.


That seems to depend on the extent to which it infringes on free exercise.
6.10.2009 4:39pm
Cornellian (mail):
Wonder if they want the Tenth Amendment incorporated too?

Impossible - that would set up an infinite recursion that would cause a rift in the space-time continuum.
6.10.2009 5:09pm
David M. Nieporent (www):
It's both, actually. His concurrence in the school vouchers case is the best place to find it. He says that the Establishment Clause was meant to protect state establishments, and also that the 14th Amendment should not be interpreted as imposing a "constraint" on liberty (of course, protecting nonbelievers and members of minority faiths isn't really a constraint on liberty, but that's Justice Thomas for you).
"Protecting" them from what, Dilan? Many of those "protections" -- in Thomas's view -- would still lie in the equal protection clause and/or the free exercise clause.

But if it's just protection from knowing that money from the general treasury may go towards a religious institution -- Flast type cases -- his argument is that the 14th amendment can't be read to incorporate the Establishment Clause, because that's not a P&I.
6.10.2009 5:27pm
frankcross (mail):
David, is this is right, wouldn't Thomas' position on P&I mean that states could take property without compensation from a corporation.

As I suggested, if "citizens" is meant to be limited to individuals, it would read out all the constitutonal rights of corporations as against states. Is this right?
6.10.2009 5:31pm
David M. Nieporent (www):
David, is this is right, wouldn't Thomas' position on P&I mean that states could take property without compensation from a corporation.

As I suggested, if "citizens" is meant to be limited to individuals, it would read out all the constitutonal rights of corporations as against states. Is this right?
I think you're misinterpreting what I'm saying, but in this case I don't think it matters, because wouldn't taking property from a corporation deprive, at least indirectly, the shareholders of that corporation of property? I mean, surely we wouldn't say that the state of New York can't seize my grandmother's shares of her co-op without compensation, but can seize the building itself without compensating her.
6.10.2009 5:54pm
Nik B.:


...those who cherish the protections of the Bill of Rights and also believe in meaningful gun control.

The null set? A-> ~B, unless you insert "some of" between "cherish" and "the".


Eh, I don't know that it's the null set. Depends on what one defines as "meaningful gun control" and it doesn't help that the term is loaded.

I consider laws that prohibit felons and those with mental illnesses from acquiring and carrying weapons reasonable, which is also the view of the Supremes.

I consider a mandatory background check before one can buy, say, a GMG fairly reasonable, with the caveat that the check should be timely and not prohibitively expensive.

I consider regulations that require one to take an approved course before a CCW permit is issued to be reasonable provided the course length and cost are themselves reasonable.

You can argue that none of those positions represent "meaningful gun control" but that only provdes my original point that the term is ill-defined at best.
6.10.2009 6:00pm
mariner:
David, is this is right, wouldn't Thomas' position on P&I mean that states could take property without compensation from a corporation.

As I suggested, if "citizens" is meant to be limited to individuals, it would read out all the constitutonal rights of corporations as against states. Is this right?


I think you're misinterpreting what I'm saying, but in this case I don't think it matters, because wouldn't taking property from a corporation deprive, at least indirectly, the shareholders of that corporation of property?

Wouldn't a better answer be that "corporations are people too", and citizens of their states of incorporation?
6.10.2009 6:04pm
Lior:
@frankcross:
[many] think that the P&I clause should be the source of constitutional limits on the states. The argument ... there's no inkling it could plausibly happen. As a practical matter, being against incorporation under the 14th Amendment is being against incorporation.


I was with you on the first two claims, but lost you on the last one. Both theories of incorporation depend on the 14the amendment: The Priviliges or Immunitites Clause is in Section 1 that amendment, just like the Due Process Clause.
6.10.2009 6:05pm
Dilan Esper (mail) (www):
But if it's just protection from knowing that money from the general treasury may go towards a religious institution -- Flast type cases -- his argument is that the 14th amendment can't be read to incorporate the Establishment Clause, because that's not a P&I.

David, you are missing how extreme Thomas' position is. He isn't just talking about Flast; he's talking about full blown establishment. Under his scenario, the State of Utah could simply charter the Mormon Church, give them all sorts of state money, require public schools to conduct Mormon temple rites, require recitation of a Mormon prayer before all state events, require that public school students learn only the Mormon narrative of history in schools, restrict government grants to only Mormon institutions, etc.

In other words, pure sectarian establishment by the states would be constitutional. Not even Scalia takes this position.

Now, if your belief is that pure sectarian establishment doesn't violate anyone's privileges or immunities, or doesn't deprive anyone of liberty, you are way, way out there.
6.10.2009 6:26pm
frankcross (mail):
David, a taking from a corporation would take from shareholders a financial interest. Not directly but indirectly But by that same reasoning, a compromise of the rights of a church would seem to compromise the rights of its parishioners. The corporation's interests are indirectly those of individuals, but the same is true of any organization. And once you accept this, it would seem like the establishment clause would be functionally an individual right so long as organizations were affected.


Lior, you're right, I misspoke
6.10.2009 6:36pm
Desiderius:
Seems to me a disturbing outbreak of integrity at the Times. If they keep up such behavior, they might eventually gain some new subscriptions, if they can remember how to process such strange things.
6.10.2009 6:38pm
rosetta's stones:
Maybe somebody hacked into their server?
6.10.2009 7:54pm
ShelbyC:

Wouldn't a better answer be that "corporations are people too", and citizens of their states of incorporation?


But wouldn't the counterarguement be, "no they're not"?

Corporations don't have rights, because they're legal fictions created to represent the interests of individuals. But those individuals do have rights, and violating the "rights" of a corporation is just shorthand for violating the rights of the underlying individuals.
6.10.2009 8:10pm
ShelbyC:

David, you are missing how extreme Thomas' position is. He isn't just talking about Flast; he's talking about full blown establishment. Under his scenario, the State of Utah could simply charter the Mormon Church, give them all sorts of state money, require public schools to conduct Mormon temple rites, require recitation of a Mormon prayer before all state events, require that public school students learn only the Mormon narrative of history in schools, restrict government grants to only Mormon institutions, etc.


I didn't get that from the concurrence in the school voucher case. Doesn't the scenario you describe restrict personal liberty, where paying school vouchers equally to secular and non-secular schools doesn't?
6.10.2009 8:24pm
Dilan Esper (mail) (www):
I didn't get that from the concurrence in the school voucher case.

Shelby, when someone says that they don't believe the Establishment Clause applies to the states AT ALL because states were historically permitted to establish churches, THAT'S WHAT THEY MEAN. They don't just mean that whatever decisions you may think go too far in separating church and state don't apply to states-- they mean that states can establish sectarian churches and entangle themselves with them in any manner they please.

This is why even Justice Scalia-- no fan of modern Establishment Clause jurisprudence-- thinks this is crazy and doesn't join Thomas.
6.10.2009 8:40pm
David M. Nieporent (www):
David, a taking from a corporation would take from shareholders a financial interest. Not directly but indirectly But by that same reasoning, a compromise of the rights of a church would seem to compromise the rights of its parishioners. The corporation's interests are indirectly those of individuals, but the same is true of any organization. And once you accept this, it would seem like the establishment clause would be functionally an individual right so long as organizations were affected.
As a general principle, I agree with this, but I don't see how an non-incorporated establishment clause would compromise the rights of a church.

Again, free exercise and equal protection would apply, even though the establishment clause wouldn't. Thus, many of Dilan's parade of horrors are inaccurate.
6.10.2009 11:34pm
Lior:
Returning to the original meaning of the Establishment Clause (Congress may not establish a national religion, but the state of NJ can limit its "equal protection of the laws" to Protestants, and some states can have a state religion) would not be as horrible as Dilan fears, but could have unexpected effects.

Certainly a State could prescribe daily prayer in the schools (as long as no-one is obliged to participate), but daily prayer to the US flag is already acceptable under today's Establishment Clause. To me, a providing financial support to the State Church is not formally different from providing support to the State University. Finally, why is restricting government support only to schools that teach the correct religious curriculum formally worse that a similar restriction depending on the science curriculum? I have strong opinions on which of the two I'd want my government to do, but I'm not so sure the US Constitution shares my opinions in this regard.

You might be afraid that if we return to the original view of the Establishment Clause, states might only allow members of the State Religion to be public officials. However, Torcaso v. Watkins says that this would violate the Free Exercize Clause, as incorporated against the states.
6.11.2009 12:52am
arbitraryaardvark (mail) (www):
@markfield: lot of antidisestablishmentarianists in this thread. Is your position proantidistestablismentarianist, or antiantidisestablishmentarianist?

Incorporating the 10th would actually make sense, if it came with a test for sorting out which rights are held by the people rather than the state. See Barnett on the 9th A,
a book which, in its time, served as a manifesto for the constitution-in-exile tendency.
6.11.2009 4:39am
Brett Bellmore:

This is why even Justice Scalia-- no fan of modern Establishment Clause jurisprudence-- thinks this is crazy and doesn't join Thomas.


Well, Scalia isn't an originalist. Which is to say, he'll use originalist reasoning occasionally, but if it arrives at a position he doesn't like, he's perfectly comfortable with saying "This is crazy!", and tossing the original meaning in the circular file. Did that in Heller, because he didn't want to uphold a right to own military arms.

The thing is, it's a constitution that's over 200 years old, written for an agrarian society, by people who held some beliefs which are fairly uncommon today. Any honest reading of it is going to occasionally sound crazy to modern ears, because it IS crazy by modern standards on some points.

That's why we've got Article V. So we can change the parts we think are crazy, instead of just lying about what they mean.
6.11.2009 7:00am
MarkField (mail):

@markfield: lot of antidisestablishmentarianists in this thread. Is your position proantidistestablismentarianist, or antiantidisestablishmentarianist?


The latter. 32 letters; not bad.
6.11.2009 10:32am
djung:

The thing is, it's a constitution that's over 200 years old, written for an agrarian society, by people who held some beliefs which are fairly uncommon today. Any honest reading of it is going to occasionally sound crazy to modern ears, because it IS crazy by modern standards on some points.



And that's a decent test. If it sounds crazy by today's standards, then it's time to change the standards back.

When you posit that there's no specific authority in the Constitution for many departments of the executive branch, an "honest reading" would indicate that the Departments of Agriculture or Health, Education and Welfare don't have any right to exist. And people would say that's crazy. My thought is that we'd have been better off sticking to what government was allowed to do in the Constitution. We've added a flowerpot to the diesel engine because it was convenient to do so, and now it seems perfectly normal that we did; it would seem crazy not to have the flowerpot. But an honest reading of the Constitution would say that we didn't have the authority to add the damned flowerpot and we shouldn't have done it. But to say that would be crazy, because look! There's the flowerpot, right there!

The more we got away from what was said and added things that weren't, the worse our government became. And the more we stuck with what was said, the better our government became.

On the flip side, some of the things that are specifically stated in the writings of the Founding Fathers were considered crazy even then, if you took them literally at the time. The Founding Fathers didn't really mean that "all men are created equal." Not if it meant that it included their slaves. But they did write it, as an ideal. That's a good ideal, something they weren't doing but should have. And it sounds even better today, more in keeping with our traditions, than they meant it at the time.

Again: the more we got away from what was said and added things that weren't, the worse our government became. And the more we stuck with what was said, the better our government became.

Me, I think we should have stuck with the things that they said, just as they said them, without the blinders of yesterday or today. Certainly what they said was clear enough. Only people with agendas wish to "interpret" the Constitution.

Me, I can read. And what they said makes perfect sense and doesn't require translation or interpretation. And what they didn't say isn't there and no amount of translation or interpretation can put it there.
6.11.2009 10:45am
ShelbyC:
Dilan:


when someone says that they don't believe the Establishment Clause applies to the states AT ALL because states were historically permitted to establish churches, THAT'S WHAT THEY MEAN. They don't just mean that whatever decisions you may think go too far in separating church and state don't apply to states— they mean that states can establish sectarian churches and entangle themselves with them in any manner they please.


But that just isn't what he says:


Consequently, in 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." Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 699 (1970) (Harlan, J., concurring). 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. By considering the particular religious liberty right alleged to be invaded by a State, federal courts can strike a proper balance between the demands of the Fourteenth Amendment on the one hand and the federalism prerogatives of States on the other.3

Whatever the textual and historical merits of incorporating the Establishment Clause, I can accept that the Fourteenth Amendment protects religious liberty rights.4 But I cannot accept its use to oppose neutral programs of school choice through the incorporation of the Establishment Clause. There would be a tragic irony in converting the Fourteenth Amendment's guarantee of individual liberty into a prohibition on the exercise of educational choice.


6.11.2009 1:02pm
Dilan Esper (mail) (www):
Shelby, Thomas is trying to have it both ways here. He is saying the Establishment Clause doesn't apply to the states. That means the states can establish religion. But then he says that the states can't impinge on religious liberty.

What he is ignoring is THE PROTECTIONS OF THE ESTABLISHMENT CLAUSE ARE ALL ABOUT PROTECTING RELIGIOUS LIBERTY. It goes part and parcel with free exercise.

You can certainly say that the framers of the Constitution intended that states could enact whatever regulations they wanted to compel religious observance. That happens to be completely true. Or you can say that the 14th Amendment abolished that. But what you can't say is what Thomas is saying-- the 14th Amendment permits states to establish religion but doesn't permit states to impinge religious liberty-- because establishing religion necessarily impinges religious liberty.

Also, one other observation-- do you think Thomas is really willing to strike down anything as a violation of the Establishment Clause if it was done by the federal government rather than the state? I doubt it. His position is phony, and the logical implication of his position if actually enacted would be that the states get to establish religion and screw over people of different faiths. It has to be that.
6.11.2009 2:23pm
PubliusFL:
Dilan Esper: Shelby, Thomas is trying to have it both ways here. He is saying the Establishment Clause doesn't apply to the states. That means the states can establish religion. But then he says that the states can't impinge on religious liberty.

Maybe because there's a Free Exercise Clause which protects religious liberty, and it isn't the same thing as the Establishment Clause? I'm not getting what's so hard to understand about the concept of the former restricting the states even if the latter doesn't.
6.11.2009 2:33pm
Dilan Esper (mail) (www):
Maybe because there's a Free Exercise Clause which protects religious liberty, and it isn't the same thing as the Establishment Clause? I'm not getting what's so hard to understand about the concept of the former restricting the states even if the latter doesn't.

Pluribus, it's like saying the assault statute applies to the states but the battery statute doesn't. The two clauses were enacted together and worked together to protect religious liberty. If you say that neither one was intended to apply to the states, then you leave states free to establish religion. If you say that both apply to the states, then states cannot impinge on religious liberty. But you can't say that one applies to the states and the other one doesn't, because they were intended to work together and in concert, and, indeed, the enforcement of the establishment clause is necessary to protect the free exercise of religion.

When states had official churches in the early days of the Republic, they were NOT respecting the free exercise of religion. And they were not required to, because the First Amendment did not apply to them. If you want to say that states can still establish religion, you have to decline to apply BOTH clauses to the states. There's no way to split the two.
6.11.2009 2:58pm
PubliusFL:
You have a more absolutist view of what free exercise means, obviously, but Thomas's position is hardly incoherent or incontradictory. It is far from obvious that ALL state actions that could be construed as establishment are also violations of free exercise. Similarly, it is not obvious that all violations of free exercise also constitute establishment. Otherwise, there would be no need to have both clauses in the Bill of Rights, one or the other would suffice as the meaning of both would be completely coextensive. Thomas agrees, though, that the Free Exercise Clause applies to the states and that many things that would constitute establishment of religion also violate free exercise.
6.11.2009 3:15pm
PubliusFL:
Oops: incontradictory > contradictory
6.11.2009 3:16pm
Dilan Esper (mail) (www):
You have a more absolutist view of what free exercise means, obviously, but Thomas's position is hardly incoherent or incontradictory. It is far from obvious that ALL state actions that could be construed as establishment are also violations of free exercise.

In my worldview, maybe not. But in Thomas' worldview, certainly. Remember, he construes the establishment clause very narrowly, to only apply to the most brazen official establishments of sectarian faith. So he is basically saying "states can establish religion except that they really can't because I might come in and invalidate those actions under the free exercise clause". In reality, he is saying "here's an originalist argument I am attracted to because I can't stand the Court's jurisprudence striking down state attempts to encourage Christianity, but I have to get around the problem that it would actually, if enacted, allow states to do things that even I don't think they should do".

It's incoherent, he doesn't mean it, and anyone who seriously argues that states should be able to establish religion is crazy.
6.11.2009 3:26pm
ShelbyC:
Dilan:

It's incoherent, he doesn't mean it, and anyone who seriously argues that states should be able to establish religion is crazy.


Today maybe, but in 1789 it wasn't that uncommon, as I recall. And he doesn't argue that they should be able to, but that the correct interpretation of the 1st and the 14th is that they are able to. We can certainly change that if necessary.

From the tenor of your last few posts I'm getting the idea that you just don't like the man and therefore are prone to believe that he's acting in bad faith. Do you have anything to offer to disabuse me of that notion?
6.11.2009 3:53pm
PubliusFL:
Dilan Esper: In reality, he is saying "here's an originalist argument I am attracted to because I can't stand the Court's jurisprudence striking down state attempts to encourage Christianity, but I have to get around the problem that it would actually, if enacted, allow states to do things that even I don't think they should do".

Can you point to any decision where he voted to uphold a state law against an Establishment Clause challenge, and no justice who accepts incorporation of the Establishment Clause voted to uphold the law? I know he HAS voted to invalidate a state law on Free Exercise Clause grounds.
6.11.2009 3:55pm
Lior:
The thing is, it's a constitution that's over 200 years old, written for an agrarian society, by people who held some beliefs which are fairly uncommon today. Any honest reading of it is going to occasionally sound crazy to modern ears, because it IS crazy by modern standards on some points.


Of course. But if you don't like what you read, the Constitution provides a mechanism for fixing that. It's important to note that this mechanism is set out in Article V, not Article III.
6.11.2009 4:11pm
Dilan Esper (mail) (www):
From the tenor of your last few posts I'm getting the idea that you just don't like the man and therefore are prone to believe that he's acting in bad faith

I actually think Justice Thomas is quite smart and give him a lot of credit where credit is due. He was the crucial 5th vote in a big entrapment case, his position on preemption of state tort claims is principled and correct, and his dissents in Kelo and Raich are brilliant.

I don't AGREE with Thomas all that much-- he's a conservative and I am a liberal-- but I actually think he's underrated and in some senses is a much better justice than the other conservatives on the Court.

But yes, I do think he's being silly on the Establishment Clause. There's no such animal as "incorporate free exercise and not establishment". The establishment clause prohibits the government from establishing religion. Official churches. Government sponsored religious rites. Direct government funding of a sectarian church. Etc. If you decide that you are not going to incorporate that on the states, then you CAN'T incorporate free exercise because there's so much overlap between what the establishment clause prohibits and what free exercise requires. The two provisions were intended to work in concert and NEITHER ONE WAS INTENDED TO APPLY TO THE STATES. Then the 14th Amendment came and either imposed them in tandem against the states or didn't.

So since Thomas is taking a position that doesn't make sense, it's worth thinking about WHY he is doing this. And the best explanation is that he really DOESN'T want states to be able to establish religion; he just wants them to be able to do things that the MODERN understanding of the Establishment Clause would not permit.
6.11.2009 4:14pm
MarkField (mail):
Maybe it would help to try to reconstruct what Madison was getting at in the dual religion clauses. This is, obviously, a HUGE issue and I can't do more than summarize it here.

The first thing we need to do is understand what the moderate view of religious establishments was in the 18th C. Such establishments were nearly universal; only a few of the US colonies had rejected them. Madison was on the far "left" of this issue, and he wanted -- deliberately -- to eliminate them.

A fair source for a moderate, centrist view on this is Vattel (as he is for a great many things). I'll use him as an example, though obviously there are lots of sources possible. Vattel was, however, the most widely cited authority on natural law/law of nations by Americans at that time and Madison was certainly familiar with his writings.

I'll do this in bullet points since it's tedious to quote at length. Vattel says the following:

1. Everyone is "essentially and necessarily free to make use of his own choice in matters of religion. His belief is not to be commanded.... there can ... be no worship proper for any man, which he does not believe suitable to that end." In the 18th C, this would have been called liberty of conscience. It is NOT the same as "free exercise of religion", as we'll see below.

2. Notwithstanding #1, "a citizen has only a right to be free from compulsion, but can by no means claim that of openly doing what he pleases without regard to the consequences... The establishment of religion by law, and its public exercise, are matters of state, and necessarily under the jurisdiction of the political authority."

3. If a state has no religion now established, it may establish one. However, if it does so it must follow one of 3 options: (a) let those of the other religion(s) leave the nation along with all their property; (b) establish multiple religions in the state; or (c) separate the two religions physically within the state.

4. If a state already has an established religion, nobody has the right to attempt changes on his own, or to preach new doctrine to the people, but can only apply to the legislature for relief.

Vattel's discussion elides some practical problems, such as oaths (used to prevent anyone other than a Church member from holding office) and the extent to which those who aren't members of the Church can proseletyze or hold public worship (something barred in VA until Madison got Jefferson's Statute for Religious Freedom passed).

What I see Madison as doing with the dual clauses is attacking the problem from both ends. By eliminating establishments outright, he got rid of problems like the use of tax dollars to fund another religion or limitations on public preaching. By guaranteeing free exercise, he made sure that no established religion could infringe on a particular individual's right to exercise religion rather than merely believe in private.

In short, established religions were understood in the 18th C as naturally interfering with the "free exercise" of religion -- that was their purpose. "Free exercise" was a new concept; Madison himself was among the first to use it, if not the first (in the VA Declaration of Rights). It was intended to replace "liberty of conscience" or "toleration", concepts compatible with established religion. But in order to "make assurance double sure" when it came to protecting the right, the 1st A contains both the positive grant of freedom and the negative on the power of the state.
6.11.2009 4:18pm
Dilan Esper (mail) (www):
Mark's got it right.

As I said, it makes perfect sense (but would be completely crazy) to just say the 14th Amendment didn't change anything, states can go ahead and establish churches and impinge on free exercise rights.

It also makes perfect sense (and is not crazy) to do what the Supreme Court has done and incorporate both rights.

But it makes no sense at all to artificially split these two rights which were conceived and intended to be taken together and say that one doesn't apply but the other one actually bars all the things that we always thought the first one barred.
6.11.2009 4:25pm
ShelbyC:

As I said, it makes perfect sense (but would be completely crazy) to just say the 14th Amendment didn't change anything, states can go ahead and establish churches and impinge on free exercise rights.

It also makes perfect sense (and is not crazy) to do what the Supreme Court has done and incorporate both rights.

But it makes no sense at all to artificially split these two rights which were conceived and intended to be taken together and say that one doesn't apply but the other one actually bars all the things that we always thought the first one barred.



I'm not sure why it doesn't make sense in a context where the issues were, in fact, split. The plaintifs were arguing that the establishment required the governemnt to investigate whether or not religious exercise was occuring at the schools receiving the vouchers and deny them the benifit if it was. AFAIK, the Ohio taxpayers were not alleging a Free Exercise violation, right? If they could have proved a FE violation, Thomas would support a remedy, correct?

So under Thomas's logic, the test should not be, "Is the state establishing a religion" the test would be, "Is anybody's liberty being violated"

So if you belive that the govt can't "establish" religion without violating liberty, Thomas's position shouldn't be a problem, correct?
6.11.2009 4:52pm
Dilan Esper (mail) (www):
So if you belive that the govt can't "establish" religion without violating liberty, Thomas's position shouldn't be a problem, correct?

It might or might not be a "problem" in the sense of yielding bad results, but it doesn't make sense as an interpretation of the Constitution, because he was saying that the Fourteenth Amendment split up two rights that were intended to be taken together and to work together and incorporated one and not the other.
6.11.2009 5:05pm
MarkField (mail):

So if you belive that the govt can't "establish" religion without violating liberty, Thomas's position shouldn't be a problem, correct?


It might very well be theoretically possible today to separate free exercise and establishment. By incorporating the free exercise clause and applying the equal protection clause rigorously, it's doable. But that clearly wasn't the original understanding, and it would take a lifetime of judicial decisions to sort the whole mess out. I can't see the benefit, even if I agreed with Thomas (and I don't; Dilan is right that the two clauses are intertwined).
6.11.2009 6:21pm
David M. Nieporent (www):
In short, established religions were understood in the 18th C as naturally interfering with the "free exercise" of religion -- that was their purpose. "Free exercise" was a new concept; Madison himself was among the first to use it, if not the first (in the VA Declaration of Rights). It was intended to replace "liberty of conscience" or "toleration", concepts compatible with established religion. But in order to "make assurance double sure" when it came to protecting the right, the 1st A contains both the positive grant of freedom and the negative on the power of the state.
But what your analysis doesn't address is that what you're describing with the phrase "established religions" bears little relation to what the Supreme Court bars under the establishment clause now. Somehow I don't think the Lemon test was what they had in mind, and we know that, e.g., prayers to open Congress were not deemed to run afoul of the clause. Which forces the Court today to twist and turn and come up with phrases like "ceremonial deism" to not outlaw those.
6.11.2009 9:35pm
Desiderius:
Markfield,

"The first thing we need to do is understand what the moderate view of religious establishments was in the 18th C. Such establishments were nearly universal; only a few of the US colonies had rejected them. Madison was on the far "left" of this issue, and he wanted -- deliberately -- to eliminate them."

And an utterly masterful job he did. It gives me hope that a another such genius may someday be able to achieve something similar regarding our established public school system, allowing it to avoid the fate of the European Established Churches to which it seems to be inexorably headed.
6.11.2009 9:35pm
Dilan Esper (mail) (www):
But what your analysis doesn't address is that what you're describing with the phrase "established religions" bears little relation to what the Supreme Court bars under the establishment clause now. Somehow I don't think the Lemon test was what they had in mind, and we know that, e.g., prayers to open Congress were not deemed to run afoul of the clause. Which forces the Court today to twist and turn and come up with phrases like "ceremonial deism" to not outlaw those.

David:

I will fully concede that the Lemon test was rather far from the original understanding of the Establishment Clause. I would, however, also note that the clause's original understanding isn't as narrow as conservatives claim either-- yes, there were various forms of government assistance to religion that the framers tolerated, but a number of the authors of the Constitution were also quite clear that the First Amendment was supposed to separate church and state.

In any event, saying that the Lemon test may not be the right approach to Establishment Clause questions is very different than de-incorporating it and simply allowing states to establish religion even in the strongest sense of the term.
6.11.2009 10:02pm
MarkField (mail):

But what your analysis doesn't address is that what you're describing with the phrase "established religions" bears little relation to what the Supreme Court bars under the establishment clause now. Somehow I don't think the Lemon test was what they had in mind, and we know that, e.g., prayers to open Congress were not deemed to run afoul of the clause.


That's an argument separate and distinct from the one we're having now, which is limited to whether the EC should apply to the states at all.
6.11.2009 10:26pm
PubliusFL:
Dilan: In any event, saying that the Lemon test may not be the right approach to Establishment Clause questions is very different than de-incorporating it and simply allowing states to establish religion even in the strongest sense of the term.

Who's proposing that? Thomas makes it clear that established religion "in the strongest sense of the term" is coercive, and would therefore violate the Free Exercise Clause, which IS incorporated against the states.

You seem to be maintaining that Thomas's position is that the non-incorporation of the Establishment Clause positively allows the states to do whatever would otherwise be prohibited by the Establishment Clause, regardless of any other constitutional provisions. Not so - the constitutional protections that are incorporated limit the state's actions.

Suppose the Establishment Clause had never existed at all, but the First Amendment were otherwise as it is today. Does that mean the federal government could establish an official national church and only permit public worship and proselytizing by that church (see Mark Field's description of Vattel above)? Of course not! The Free Exercise Clause would prohibit it. Same with the states today under Thomas's view.
6.12.2009 9:48am
MarkField (mail):

Suppose the Establishment Clause had never existed at all, but the First Amendment were otherwise as it is today. Does that mean the federal government could establish an official national church and only permit public worship and proselytizing by that church (see Mark Field's description of Vattel above)? Of course not!


I don't think this is all that clear on the question of proselytizing. In addition, there are other potential disqualifications which were common in the 18th C and yet not seen as inconsistent with "free exercise", notably the inability to hold public office unless someone was a member of an established church. There is also the issue of tax support for the establishment.

I'm not saying we'd necessarily be following the same rules today. But if we were to be bound by the rules of 1791, most of us today would find them pretty restrictive.
6.12.2009 10:36am
LarryA (mail) (www):
Seriously, the blind spot that conservatives have on this is that they think that the Establishment Clause doesn't protect anyone's rights. But of course it does-- it protects nonbelievers and members of minority religions from (1) governmental coercion, and (2) seeing their tax dollars go to advance a religion that they don't subscribe to.
Part of that is because most "Christian government" types don't understand the difference between "a large majority of people in the U.S. are Christian" and "The U.S. has a Christian majority." The two are not equivalent, and the second is false. Given the denominational splits in Christianity, all of us are "members of minority religions."
6.12.2009 11:33am
Dilan Esper (mail) (www):
You seem to be maintaining that Thomas's position is that the non-incorporation of the Establishment Clause positively allows the states to do whatever would otherwise be prohibited by the Establishment Clause, regardless of any other constitutional provisions. Not so - the constitutional protections that are incorporated limit the state's actions.

What I am maintaining is that Thomas is taking a phony position. The original understanding that he points to was TO ALLOW STATES TO ESTABLISH RELIGION. He doesn't want that. So he creates an alternate reality where he can not incorporate the Establishment Clause but still disallow states from establishing religion. That isn't principled originalism or principled anything else-- it's just Thomas inventing a position that fits his policy goals.
6.12.2009 12:07pm
Desiderius:
LarryA,

"Given the denominational splits in Christianity, all of us are "members of minority religions.""

Which is what allowed Madison to work his magic back in 1791.
6.12.2009 8:55pm

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