Frederick Mark Gedicks (BYU – J. Reuben Clark Law School) has posted Establishment Clause Incorporation: A Logical, Textual, and Historical Defense. The abstract follows.

Incorporation of the Establishment Clause against the states is logically and textually impossible — so say most academics, many lower-court judges, and a Supreme Court justice. They maintain that because the Clause was originally understood as a mere structural protection of state power, it cannot coherently restrain state power or protect a personal due process liberty as required for incorporation. Anti-incorporationists also seem to think that the purported incoherence and textual inconsistency of Establishment Clause incorporation excuse serious engagement of Reconstruction history, since they ignore it except for the irrelevant Blaine Amendment defeated as the Reconstruction era ended.

If anti-incorporation critics are right, the entire body of Establishment Clause doctrine is doomed: Nearly every Supreme Court decision interpreting the Clause has involved a challenge to state action. Establishment Clause doctrine thus cries out for an account of its incorporation against the states that is both logically coherent and consistent with the liberty-protecting text of the 14th Amendment.

Even defenders of Establishment Clause incorporation concede the anti-incorporationist critique. They argue instead that by the time the Fourteenth Amendment was ratified, the meaning of the Clause had evolved from a structural reservation of state power to a personal right susceptible of incorporation. The ambiguous historical evidence for this textual evolution, however, combined with its abandonment of the original 18th century meaning of the Clause, have blocked acceptance of “evolved meaning” as the justification for Establishment Clause incorporation.

This Essay sets forth a logical and textual account of Establishment Clause incorporation based on the original 18th century understanding of the Clause. The Establishment Clause did not reserve state power, but disabled congressional action. As a disability on Congress, the Clause necessarily generated two correlative immunities, one held by the states against congressional interference with state decisions about establishment or disestablishment of religion, and one held by the people against congressional establishment of a national religion. The Fourteenth Amendment extinguished the state immunity, but extended the popular immunity to protect the people against state as well as federally established religions. This is logically coherent — specially given Reconstruction’s preoccupation with reordering federal-state relations — and also sounds in the personal liberty protected by the 14th Amendment Due Process Clause. When framed by a logical and textual account of Establishment Clause incorporation, the Reconstruction history ignored by anti-incorporationists shows considerable support for incorporation.

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