North Carolina Legislators Arguing That the Establishment Clause Should Be Seen as Not Incorporated Against the States by the Fourteenth Amendment
7th April 2013
Recall that the Bill of Rights originally didn’t apply to the states, and indeed several states (not including North Carolina) had official establishments of religion at the time the Bill of Rights was enacted, with the last being disestablished in the 1830s. It’s the Fourteenth Amendment that has been read as applying the Bill of Rights to the states, through its statement that “nor shall any State deprive any person of life, liberty, or property, without due process of law,” though many scholars and some judges have argued that the incorporation should have taken place through another clause of the Amendment, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
And a few scholars and judges have indeed argued that this language should not be read as incorporating the Establishment Clause; the most prominent examples have been Justice Thomas and Prof. Akhil Amar. The chief argument for this view is that the Establishment Clause was originally understood as a federalism guarantee, with the ban on federal laws “respecting an establishment of religion” meaning that the federal government could neither establish a national religion nor disestablish (or otherwise modify) state establishments of religion. Another possible argument is that the Establishment Clause differs from most Bill of Rights guarantees in that much action that is seen as violating the Establishment Clause — such as government endorsement of religious messages and symbols — doesn’t deprive anyone of liberty, or abridge any citizen’s privileges or immunities. (Action that does directly implicate people’s liberty, such as coercion of religious practice, might be prohibited by other provisions, such as the Free Exercise Clause and Free Speech Clause, which have been relatively uncontroversially incorporated against the states; likewise, action that denies people tangible benefits based on their denomination or their irreligiosity might be seen as prohibited by the Free Exercise Clause or the Equal Protection Clause.) The North Carolina legislators seem to be siding with this position.