Today’s classic revisited is Akhil Reed Amar’s The Bill of Rights: Creation and Reconstruction (1998). Obviously the book contains more than simply a discussion of the religion clauses, but I’ll focus on one of the book’s virtues in respect of that specific subject: Amar’s explanation of the Establishment Clause’s incorporation through the Reconstruction Amendments. There is a near-universal consensus that the Establishment Clause as originally adopted did not apply to the states: states were free to retain their establishments (or, indeed, to create new ones). The very purpose of the Establishment Clause was, according to Amar, to leave this issue to the states. That underlying assumption, if accepted, fits extremely awkwardly with the issue of incorporation. Moreover, unlike many of the other provisions of the Bill of Rights, which announce restrictions on the exercise of federal power (“prohibiting” free exercise; “abridging” the freedom of speech; “violating” the security of persons against unreasonable searches and seizures, and so on), the Establishment Clause uses the more passive phrase “respecting” an establishment. That language is far less clear about the sense in which establishments were thought to be problematic per se. How then, to argue that incorporation as to the Establishment Clause was appropriate?
Amar does not just assume the viability of incorporation, as did the Everson Court (with, somewhat suprisingly, not a single dissenting Justice). Instead, he crafts an argument based in part on the approach of the national government to the federal territories, many of which were eventually to become states. As an initial matter, the Establishment Clause was to apply to the territories (though Article IV grants Congress plenary power over the territories). And what Congress could not do, the territorial agent could not do. But, as Amar says, “to say that, for example, the Iowa territorial legislature ‘shall make no law respecting an establishment of religion’ was rhetorically to say something rather different than that Congress should make no such law.” (249) With time, as some of the territories became states, what had begun as a federalism provision took on more substantive content as a general anti-establishment principle applicable to all of government. — MOD