Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1157-58 (1991) ("[T]o apply the [Establishment] clause against a state government is precisely to eliminate its right to choose whether to establish a religion -- a right explicitly confirmed by the establishment clause itself! . . . The Fourteenth Amendment might best be read as incorporating free exercise, but not establishment, principles against state governments.");
Akhil Reed Amar, The Bill of Rights 32-42 (1998);
Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom 49 - 50 (1995);
Steven D. Smith, Separation as a Tradition, 18 J.L. & Pol. 215, 263 (2002) ("It may be, for example, that the Supreme Court was mistaken in Everson both in asserting that the Fourteenth Amendment was intended to incorporate the Establishment Clause against the states and also in asserting that the Establishment Clause was intended to adopt a position of "no aid' separationism.");
Gerard V. Bradley, Church-State Relationships in America 95 (1987);
Chris Bartolomucci, Note, Rethinking the Incorporation of the Establishment Clause: A Federalist View, 105 Harv. L. Rev. 1700 (1992);
Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 Nw. U. L. Rev. 1113, 1142 (1988) ("The language of the fourteenth amendment, coupled with the federalistic motivation for the establishment clause, make it exceedingly difficult to argue that the framers and ratifiers of the fourteenth amendment intended to incorporate the establishment clause for application against the states.");
Charles Fried, Foreword: Revolutions?, 109 Harv. L. Rev. 13, 52-53(1995) ("There is little doubt that the Establishment Clause (quite apart from its opening words 'Congress shall make no law') was specifically intended to preserve a freedom of action to the states while denying it to the national government.").
Mary Ann Glendon & Raul F. Yanes, Structural Free Exercise, 90 MICH. L. REV. 477, 481-82 (1991) ("As a matter of judicial craftsmanship, it is striking in retrospect to observe how little intellectual curiosity the members of the Court demonstrated in the challenge presented by the task of adapting, for application to the states, language that had long served to protect the states against the federal government.");
Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 Stan. L. Rev. 233, 307 (1989) ("The language of the clause was directed against congressional creation of a national church or favoritism of one ecclesiastical sect over another. Thus, its predominant intent was to protect state religious establishments from national displacement.");
John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 295 (2001) ("If the original Establishment Clause aimed to confirm the exclusive authority of the States over religion, invoking that provision to disallow state aid to religion is paradoxical and perverse.").
William K. Lietzau, Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation, 39 DEPAUL L. REV. 1191, 1210 (1990) ("While many specific Bill of Rights incorporations have been criticized, none are so thoroughly contradicted by the historically discernible intentions of our forefathers than that of the establishment clause.");
Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment 16 (1978) ("The clause prohibited Congress from tampering with the state religious establishments.");
Michael Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 NOTRE DAME L. REV. 311, 317 (1986) ("Indeed, to the extent that the Framers drafted the establishment clause to address concerns of federalism, it makes no more sense to 'incorporate' it against the states than it does to incorporate the other provisions in the Bill of Rights which are federalism-oriented.");
William C. Porth & Robert P. George, Trimming the Ivy: A Bicentennial Re-Examination of the Establishment Clause, 90 W. VA. L. REV. 109, 136-39 (1987).
William W. van Alstyne, What is "an Establishment of Religion"?, 65 N.C.L. Rev. 909, 910 (1987) ("One plausible reading of the first amendment might thus be the following one in particular. It makes a great deal of straightforward, unobscure sense: that Congress would have no power to interfere with any state's religious establishment laws, whatever they might be.").
Stephen Carter puts it thus:
Let us be realistic. Surely the clause means what it says, and no more than that. At the moment of the founding, the majority of the states had official, state-supported, established churches, and all but two required religious tests for public office. The states were not giving these powers away. On the contrary, they wanted to protect their own established churches from interference by the new national government, and also wanted to prevent that national government from establishing a church of its own. My Yale colleague Akhil Reed Amar has argued persuasively that we should therefore read the "Establishment Clause" as a states'-rights provision, as an allocation between the national and local sovereignties of the authority to create or to endorse an official church.
If Professor Amar is right, then the Supreme Court's subsequent proclamation that the clause is "incorporated" against the states through the agency of the Fourteenth Amendment begins to lose its luster, to say nothing of its coherence. If the purpose of the "Establishment Clause" was to keep the national government from interfering in what was properly a local responsibility, the only sensible meaning of incorporation would be that it now prevents the state government from interfering with local communities as they decide whether to establish their own churches. In other words, if the clause is truly to be applied against the states, then the state of Arizona would not be able to prevent Tucson from establishing an official church, and the state of Connecticut would not be able to prevent New Haven from reviving the old established Congregational Church as its formal public faith.
I am not suggesting that this is a desirable result. I mention it only because I think it quite wrong historically, and quite unpersuasive textually, to look to the "Establishment Clause" as the source of a prohibition on creation of these things called "establishments," which leads in turn to the long line of unfathomable federal court cases telling us which government programs amount to forbidden "establishments" and which do not. Without that line of cases, however, we have no wall of separation; or none, at least, located in the first half of the first clause of the First Amendment.
Stephen L. Carter, Reflections on the Separation of Church and State, 44 Ariz. L. Rev. 293, 299-300 (2002).
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