Randy Barnett is Wrong this time!

Wow I’m shocked. I thought I agreed with every word he ever wrote. He writes that, while the Free Exercise Clause of the First Amendment does secure a natural liberty right, he doesn’t think that the Establishment Clause, as originally understood, did so:

In contrast, the Establishment Clause of the First Amendment describes neither a natural liberty right or "immunity," nor a positive individual right or "privilege" of citizens. It is simply a limitation on the power of Congress simpliciter. Therefore, the plain and original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment has no relevance to the state establishment of religion. State endorsements of religions are not unconstitutional (although I reserve judgment on the propriety of using a general tax to subsidize religion without any opt-out).

I am open to being convinced that I am wrong about this. Indeed, given my commitment to the separation of church and state, I would WELCOME being convinced that I am wrong….This is not, after all, a liberty issue. A religious establishment tells no one what they must do or must not do (unlike "blue laws," for instance, that do). To obtain the legally enforceable separation of church and state at the state level that I strongly desire would require a constitutional amendment.

Wrong Mr. Barnett, the Establishment Clause, every bit as much as the Free Exercise Clause, describes a “natural right” or immunity—that of “conscience.” Separation of Church & State is mandated in order to respect the natural rights of conscience for all of the citizenry. Liberty of conscience was arguably the most important—the most inalienable if you will—right that our framers were concerned with. And both the Free Exercise Clause AND the Establishment Clause were necessarily included in the Constitution to secure this right.

Under our original constitutional scheme, only the federal government was restrained from violating natural rights (or at least, the federal government didn’t have the jurisdiction to enforce natural rights against the states, rather it was hoped that the states, on their own accord, would respect natural rights).

Madison, in fact, desired that the federal government enforce certain natural rights against state governments—particularly he favored that states be forbidden from violating the “equal rights of conscience.” Here is the language that Madison originally proposed for the First Amendment:

The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext infringed. No state shall violate the equal rights of conscience or the freedom of the press, or the trial by jury in criminal cases.

But this language was voted down because other framers considered it to be an overreach of federal power.

However, we need to know what it meant that, “no state shall violate the equal rights of conscience....” Jefferson and Madison, first and foremost, believed that a state having an officially established church violated the natural rights of the citizenry. Madison specifically stated that the rights of conscience could not be secured unless there was a “perfect separation between ecclesiastical and civil matters.” And of course, Jefferson had his famous, “wall of separation...,” phrase.

But if we want to see in detail an example of a state that, voluntarily on its own accord, respected the natural rights of conscience, and what that meant, we must turn to Virginia—specifically to the Virginia Statute on Religious Freedom, penned by Jefferson and pushed through by Madison.

On the question of government aid to religion, that statute states “that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor….”

Regarding government endorsement of a particular religious point of view, the statute states, “that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own….”

Finally the statute says, “Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.”

Now, Randy Barnett has claimed that these norms of “disestablishment” are NOT natural liberty rights. (And yes, I realize that this statute can be confusing because it mixes the norms of "disestablishment" with those of "free exercise." But this just proves my point that these two clauses are inseparable and both together secure the natural rights of conscience). The statute contradicts his claim: “[W]e are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act shall be an infringement of natural right.”

Finally, let me quote Walter Berns—if there ever were an “anti-libertarian/social conservative,” Berns is one—on this issue. Berns disagrees with the Everson decision—the decision that first recognized the Establishment Clause as binding on the states—but he does so for very different reasons than Barnett:

Previously, everyone having anything to do with the subject understood that the prohibitions of the First Amendment did not apply to the states, and that to change this would require a constitutional amendment. This was Madison’s view. During the debates in the First Congress on the amendments that became the Bill of Rights, he proposed an additional amendment—he thought it the "most valuable amendment" in the list—forbidding the states to "violate the equal rights of conscience." After being adopted in the House of Representations (where Madison served), the proposal went down to defeat in the Senate…But what Madison could not do in 1789…a divided Supreme Court…effectively did in the 1940s.

Making Patriots, pp. 73—74.

Berns rejects Everson's application of the Establishment Clause to the states because he rejects the doctrine of incorporation and he specifically rejects the notion that the Federal government generally has the power to enforce natural rights against the states, (unless of course, there is very specific textual positive law authority for doing so—for instance, Berns would argue that the 13th, 14th, & 15th Amendments do give the Federal government the power to make sure states respect the equal natural rights of blacks—but in that specific circumstance only). But Berns is stating that if the federal government did have the power to enforce the “equal rights of conscience” against the states, then Everson would have been correctly decided.