It seems to me that Justice Thomas's position -- or for that
matter, the Chief's similar position in Wallace v. Jaffree in the
mid-1980s -- is eminently credible.
The case for the Establishment Clause not being incorporated is
at least as strong, it seems to me, as the case for the Grand Jury
Presement Clause not being incorporated or the Seventh Amendment not
being incorporated. It's true that there is indeed accumulated caselaw
to the contrary, and it surely counts as constitutional law. But
calling for the reversal even of longstanding precedents also counts as
a legitimate constitutional argument -- in fact, that's how the process
of incorporation itself has often proceeded as to other Amendments.
Finally, I think Doug has a good point that the Establishment
Clause may well be seen as an important protection of individual
liberty. But that strikes me as far from an open-and-shut obvious
point. So on balance, Justice Thomas's position -- and the position of
scholars who have made similar arguments -- seems to me to be eminently
credible, and hardly deserving of the harsh condemnation that Rick
Garnett has quoted, even if one ultimately disagrees with Thomas
(whether on originalist grounds or because one thinks that something
else, such as precedent, should count more than original meaning).
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of marc stern
> Sent: Thursday, June 17, 2004 2:28 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Justice Thomas in Newdow
>
>
> Isn't it the case that whether Thomas is correct or not
> depends in part on whether only the text of the constitution
> (or the text and original intent) is a relevant datum or
> whether accumulated cases law also counts as constitutional
> law. On the text only vision of constitutional law, Thomas
> has at least something to say, even if I think, with Doug,
> that he is wrong; on the latter view, his opinion in the
> pledge case is simply an anomaly. Marc Stern
>
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Douglas Laycock
> Sent: Thursday, June 17, 2004 4:21 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Justice Thomas in Newdow
>
> The LA Times story is available on Westlaw for those
> who would
> like to read it without giving their phone number and income
> to the LA
> Times. Expletives deleted.
>
> Obviously the way you would explain what is wrong
> with Thomas's
> opinion on this list is different from how you would
> capsulize it in a
> sentence or two (selected by the reporter) for an
> "explanation" to the
> public. But I do think that Thomas's opinion is both extreme
> and wrong.
>
> He did not say merely that the clause does not apply
> against the
> states. He also said that the clause creates no individual
> rights. The
> only apparent application of this second pronouncement is
> that it creates
> no individual rights against the federal government either. So every
> Establishment Clause case the Court has ever decided would be
> obliterated
> at a stroke. He seems to assume that the free exercise clause would
> prevent coerced attendance at religious services -- unless,
> we have to
> assume, the service is rather short and is incorporated into
> some other
> official event that people attend for secular reasons.
>
> I do not doubt that one meaning of the Clause in
> 1791 was that the
> federal government could not interfere with establishments in the
> states. But I am equally sure that one meaning of the Clause
> in 1791 was
> that the federal government could take no steps toward a federal
> establishment of religion -- not in the states, and not in
> the federal
> district either. Either a federal establishment or a federal
> interference
> with a state establishment would be a law respecting an establishment.
>
> The debate in the First Congress did not focus on
> the federalism
> implications. It focused on the meaning of establishment,
> and on how far
> the federal government should be restricted. The argument
> for prohibiting
> only preferential aid to favored denominations was rejected; the most
> broadly worded draft proposed was adopted. This of course
> goes to the
> debate over nonpreferentialism; but even before that, it goes
> to whether
> this Clause was only about federalism, or also about the proper
> relationship between religion and government. The debate was
> plainly about
> the latter; I think the federalism-only interpretation is
> demonstrably wrong.
>
> I'm not sure the federalism principle that can be
> derived from the
> verb "respecting" and the existence of state establishments is much
> different from the federalism principle that is implicit in the
> constitutional structure about other individual rights good
> only against
> the federal government. Certainly the federal government in
> 1791 had no
> general power to protect individual liberties against state
> restrictions on
> free speech (blasphemy, defamation, perhaps others) or free exercise
> (voting confined to Christians, or to Protestants; the
> Lousiana law on
> Catholic funerals that got to the Supreme Court in 1845 and
> produced a
> repeat of Barron v. Baltimore); or any other individual
> right. Any attempt
> to incorporate implicit and explicit rules that the federal
> government
> could not interfere with state restrictions on liberty would
> indeed lead to
> nonsense.
>
> What is incorporated is the protection for
> individual liberty in
> each constitutional right. The states cannot do to citizens
> what the feds
> could not do to citizens. The restrictions on government
> sponsorship of
> religion play an essential role in protecting the religious
> liberty of
> individuals; I am entirely comfortable concluding that those
> restrictions
> are a privilege or immunity of citizens of the United States,
> just like the
> restrictions on government interference with free speech or free
> exercise. I understand the argument that the Establishment
> Clause doesn't
> speak to what government can do to individuals in the same
> way as the other
> provisions of the Bill of Rights, but I think that badly
> underestimates the
> role of the Establishment Clause in protecting individual liberty.
>
>
>
>
> At 02:25 PM 6/17/2004 -0500, you wrote:
> >Dear all,
> >
> >I apologize in advance, if I missed the list's discussion of Justice
> >Thomas's views regarding the incorporation of the Establishment
> >Clause. For what it's worth, I've been surprised by the
> vigor with which
> >several prominent scholars have disapproved these views.
> Jack Balkin
> >remarked, for example (www.balkin.blogspot.com), "[n]ow we
> know what it
> >would be like to have Judge Roy Moore on the Supreme Court."
> Brian Leiter
> >concludes that Justice Thomas has "solidif[ied[ his status
> on the lunatic
> >fringe"
> >(http://webapp.utexas.edu/blogs/archives/bleiter/001452.html)
> . And Doug
> >Laycock states that Thomas's "is a pretty astonishing view.
> . . . He acts
> >as though the Civil War didn't happen, or it didn't matter"
> >(http://www.latimes.com/la-na-thomas17jun17,1,3892729.story).
> >
> >It strikes me, though, that Thomas's observations, in Part
> II-A of his
> >opinion, are not particularly astonishing, and certainly do
> nothing to put
> >him on "the lunatic fringe." Does he say anything, in that
> Part of the
> >opinion, that Steve Smith, Philip Hamburger, Gerry Bradley,
> Akhil Amar,
> >and many others have not also said, namely, that the point of the
> >Establishment Clause was to protect the States' then-existing
> >"establishments" and perhaps also, more generally, to leave
> questions of
> >church-state relations to the States? And, with all due respect to
> >Professor Laycock, I'm not sure it is fair to conclude that, because
> >Justice Thomas agrees with those who believe that the
> Establishment Clause
> >is particularly, and perhaps uniquely, unsuited for
> incorporation via the
> >14th Amendment (but see, e.g., Kurt Lash), he is therefore
> unmindful of
> >the (obvious) sweeping changes that the post-Civil War
> Amendments worked
> >in the constitutional law of individual rights. (Recall,
> for example, his
> >passionate concurrence in Zelman).
> >
> >Now, I'm inclined to think that, merits aside, the matter is water
> >under
> >the bridge, and that Justice Thomas's views on this question
> -- like his
> >views on the scope of the Commerce Clause -- are not likely
> to become
> >governing constitutional law. As Michael Perry likes to put it, the
> >incorporation of the Establishment Clause has become
> "bedrock." Still, is
> >there a reason why we should not concede that he is -- or,
> at least, MAY
> >be -- correct?
> >
> >Best,
> >
> >Rick Garnett
> >
> >
> >
> >
>
>
>
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX 78705
> 512-232-1341 (voice)
> 512-471-6988 (fax)
> [EMAIL PROTECTED]
>
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>
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