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
4 thoughts on “Classic Revisited: Amar’s The Bill of Rights”
Marc, Before posting any more comments like this, you need to read my recently published THE RELIGION CLAUSES OF THE FIRST AMENDMENT: GUARANTEES OF STATES’ RIGHTS?, which you brought to the attention of your readers several weeks ago. Ellis West
Professor West, thanks for the comment. Though I have not read your book, I understand you to argue that the religion clauses, including the Establishment Clause, were not jurisdictional in nature. As I said in my comment, there is a near-consensus about the meaning and application of the Establishment Clause as originally adopted. If that position is indeed adopted by the Court, it certainly does not mean that, as the description of your book by the publisher says, it would “profoundly affect the way the Court decides church-state cases involving state laws. It would allow the states to legislate on religion-even to violate religious freedom, discriminate on the basis of religion, or to establish a particular religion.” That overlooks the issue of incorporation via the 14th Amendment. There are conflicting views on that question, which I’m sure is one that your book addresses.
At all events, I hope it’s ok to continue to post work that I have found thoughtful and persuasive on these issues before I get a chance to read your book.
Marc, Although this is not the place to have a discussion of the original meaning of the establishment clause, I do not understand your response to my previous comment, especially when you say there is “near-consensus about the meaning and application of the Establishment Clause as originally adopted.” Yes, everyone agrees that the religion clauses, including the EC, were not intended to apply to state and local governments, but many, if not most, scholars do not agree with Amar’s argument that the EC was not intended to protect the religious liberty of individuals and groups, but to protect the right of states to have religious establishments. If Amar is correct, then the EC should not have been incorporated into the due process clause of the 14th Amendment.and states should be free to establish a religion. Is this not correct?
Professor West, yes, when I said that there was a near-consensus about the meaning of the Establishment Clause, I meant that there is a consensus that the Clause, as originally adopted, was meant to apply only to the federal government, not to the individual states. That, I think, is what Donald Drakeman has called the “plain vanilla federalism” understanding of the Clause’s original meaning. As I said, I haven’t had a chance to read your book (yet, though I hope to), but I take it from your comment that you, also, agree with this reading.
There is also (again, to use Drakeman’s locution) a “turbo-charged federalism” interpretation of the Clause, which is Amar’s and, I believe, Steve Smith’s (but not Drakeman’s, Lash’s, and that of many others), which is that the Clause was meant to protect states’ rights to maintain (or begin, if they so chose) their establishments. I agree with you that there is not a near-consensus about this reading of the Clause. In my opinion (though I would be curious about your view), there is division of opinion about this issue. I take it that your view is that the turbo-charged view of the EC is incorrect, and that you believe that it had substantive content.
But the last point is that it is possible to read the EC as a turbo-charged federalism provision and *still* come out in the position that the 14th Amendment should be read to prevent states from establishing religion because of the passage of the 14th Amendment. This is Amar’s view in his 1998 book (see page 256), and the reasons that he gives include the discussion about the federal territories that I raised. But he has other reasons as well. I agree with you that some people who sign on to the turbo-charged federalism reading of the EC do not agree with Amar that states cannot establish a religion. I was only pointing out that it is not necessary to come out this way on the issue of state establishments if one also takes the turbo-charged federalism view — indeed, that’s Amar’s view, I think. At least this is my understanding.