The Siamese Twin Thesis of the Religion Clauses

The Law and Liberty site has another piece on the Establishment Clause and the doctrine of incorporation. This article is by James R. Rogers and treads much old ground. A taste:

... The Court’s decision to incorporate the Establishment Clause was subject to scholarly criticism early on. The debate over the appropriateness of incorporating the Establishment clause revived in the early 2000s as a result of a series of concurring opinions by Justice Thomas.

The criticism of incorporating the Establishment Clause of the U.S. national Constitution and applying it to restrict state governments via the liberty guarantee of the Fourteenth Amendment arose because incorporation is based on a fundamental misreading of the Establishment Clause, and a misunderstanding of the nature of religious establishments. Justice Clarence Thomas initially questioned the application of the Establishment Clause to the states in the 2002 case of Zelman v. Simmons-Harris. He wrote that the Clause “originally protected States, and by extension, their citizens, from the imposition of an established religion by the Federal government.” He added: “Whether and how this Clause should constrain state action under the Fourteenth Amendment is a more difficult question.”

Thomas pushed further in 2004 in a concurring opinion in Elk Grove Unified School District v. Newdow, “I would take this opportunity to begin the process of rethinking the Establishment Clause . . . the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.” He reasserted his position a year later in Van Orden v. Perry, observing that “the Establishment Clause is best understood as a federalism provision—it protects state establishments from federal interference but does not protect any individual right.”

The Establishment Clause serves two purposes: it both prohibits Congress from Establishing a religion but it also prohibits Congress from meddling with state religious establishments.

Thomas followed and cited some notable scholars (not all of them conservative, for instance Akhil Amar) in the academy for the proposition that, as a federalism provision, the Establishment Clause resists incorporation. I think the argument is strong, but not quite airtight, for reasons I explain below.

In the comments, Dr. Ellis West chimed in:

The historical evidence simply does not support Prof. Rogers and Justice Thomas’ states’ rights interpretation of the establishment clause. See Ellis M. West, THE RELIGION CLAUSES OF THE FIRST AMENDMENT: GUARANTEES OF STATES’ RIGHTS? (2011), and reviewers unanimously accepted the book’s findings. Rogers’ interpretation is also based on the erroneous assumption, unfortunately perpetrated and maintained by the Supreme Court, that the establishment and free exercise clauses have different meanings. For the evidence that they were simply two different ways of saying the same thing, see Ellis M. West, THE FREE EXERCISE OF RELIGION IN AMERICA: ITS ORIGINAL CONSTITUTIONAL MEANING (2019).

While I look forward to reading Dr. West's book, I am not convinced, yet at least, the two different clauses are "simply two different ways of saying the same thing." But I do believe there is something special about the two clauses that resists separating them.

And this is exactly what happens when the Free Exercise Clause gets incorporated to apply to state and local governments, but the Establishment Clause, because it's a federalism provision, does not. Interestingly, it was Professor Philip Hamburger who gave me this epiphany. Now, Hamburger does not think the Establishment Clause ought to incorporate; but rejects the doctrine of incorporation altogether.

So Hamburger's position is consistent. If the two clauses ought to rise and fall together because they can't be separated, his view is they fall together because nothing incorporates.

You might call this insight the "Siamese twin" thesis of the First Amendment's religion clause. When Hamburger explained it, he didn't use the Siamese twin analogy (I think you can attribute that to me), but rather invoked Wittgenstein. It was from a discussion Hamburger was having with fellow scholars of the religion clauses and he noted there were some Supreme Court cases where certain forces were advocating the term "religion" have one meaning for Free Exercise purposes, but another meaning for Establishment Clause purposes.

Hamburger noted from a linguistic perspective (I think that's when he appealed to Wittgenstein) such is a logical impossibility because even though they are two separate clauses, they use the term "religion" only once! The term "religion" is used in the Establishment Clause, but "thereof" in the Free Exercise Clause that relates back to the term in the Establishment Clause. That's why we  call them "clauses"; they are part of the same sentence.

It's like two Siamese twins who share the same heart.

Hall: "A Nuanced Report Card on Religious Liberty"

From Mark David Hall, writing at the Law and Liberty site. Dr. Hall reviews Steven Waldman's new book on religious liberty, which I hope to say more about later. But in the meantime, from Hall:

Steven Waldman has produced an excellent overview of the development of religious liberty in the United States. It is well-written, as one would expect of a journalist (the Beliefnet.com founder is a veteran of Newsweek, among other publications), but also well-researched and reasonably nuanced. Experts on particular eras or subjects will find details about which they can justly complain, but on the whole, Sacred Liberty: America’s Long, Bloody, and Ongoing Struggle for Religious Freedom deserves high marks. 

Just one of the book’s 18 chapters is devoted to the early colonies. Waldman overstates the extent to which Puritans enforced repressive laws with “sadistic enthusiasm.” Yet he is certainly correct that no colony—not even Rhode Island or Pennsylvania—embraced a modern, liberal conception of religious freedom. 

America’s Founders rejected Old World approaches to church-state relations. They shared a commitment to protecting religious liberty, and many Founders were coming to question the efficacy of religious establishments. These views contributed to the adoption of a constitution that banned religious tests for federal offices, and to the crafting of a First Amendment that says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Sandefur on Thompson's New Book

At National Review, Timothy Sandefur reviews C. Bradley Thompson new book which seems destined to be a classic. A taste:

Thompson’s presentation is valuable because it helps correct modern mischaracterizations of the revolutionaries’ natural-law theories and shows just how rigorous and thorough their thinking was. His exploration of such questions as the relationship between natural rights and natural law, and between Lockean thought and the republican theories that the Founders drew from the ancient Romans, does justice to the ingenuity and depth of Revolutionary-era thinking.  

In fact, America’s Revolutionary Mind stands as a refutation of two noxious trends in recent American historiography. The first, which Thompson mentions only briefly in a few endnotes, is the effort to downplay the impact of Locke’s ideas on the Founding Fathers. Scholars of the “classical republican” persuasion have argued that, important as Locke may have been, American revolutionaries were more influenced by Greek, Roman, and Puritan writers who placed less emphasis on the rights of the individual than on the stability of society, the importance of tradition, and the need to sacrifice for the common good. Thompson, by contrast, argues that “America’s revolutionary mind is virtually synonymous with John Locke’s mind” and backs that argument up with an arsenal of examples.  

While the Founders certainly consulted the writings of such classical thinkers as Aristotle and Cicero, Thompson argues that they modified the ancients’ republicanism in light of their Lockean commitment to liberty: “For traditional republicans going back to ancient Greece and Rome, the sacrifice of individual interests for the common good was the ultimate standard of moral and political value,” he writes. But thanks to the influence of now-forgotten intellectuals such as Massachusetts minister Jonathan Mayhew, who wove Lockean theory together with Christian doctrine, the Founders adopted “a new and improved understanding of republicanism” that focused on what the Declaration calls “happiness and safety,” the twin pillars of the bourgeois commercial republic.

A lesson on how not to write an article

So on social media, I am friends with David Boaz, an author and executive who works for the Cato Institute. He posted a link to an article about Thomas Jefferson and the Declaration of Independence that was critical of himself.

The author is one Robert Curry and the article appeared at The Federalist. Long story short, Boaz supposedly engaged in a mistake that is all too common among academics who study the American founding: he said Jefferson et al. took from Locke's 2nd Treatise and put such into the Declaration. And simply credits Locke for those ideas.

But when we read the article, we observe no "there there." Curry invokes a distinction between what Jefferson wrote in the Declaration and what Locke wrote in the 2nd Treatise but fails to tell us why the distinction is meaningful.

Curry notes that it has something to do with Jefferson's use of the term "unalienable" that was lacking in Locke's original which stressed "property." And how property was missing from the Declaration.  Rather it was replaced with "pursuit of happiness." But again, no clear explication of why the differences makes a difference.

But here is the strange thing; The Federalist article makes Curry look like an ignorant pedant. But he's actually not. When I googled him, I saw that fairly notable, informed people were supporting Curry's work and that he was affiliated with organizations, notably Claremont, with informed folks who do good work.

Indeed, Claremont published a longer article of Curry's which actually gets into better details on his thesis. Curry may still be wrong and I do think he uses too many words to make his point; but indeed there is a "there there" to his thesis.

You are just going to have to read the Claremont article to find out. And perhaps we can blame the editors at The Federalist for their weaker article.