Professor John T. Valauri*
It has also been suggested that the "liberty" guaranteed
by the Fourteenth Amendment logically cannot absorb the Establishment
Clause because that clause is not one of the provisions of the Bill
of Rights which in terms protects a "freedom" of the individual.(1)
1997 marks the fiftieth anniversary of Everson v. Board of Education,(2)
the case that began the modern era of Establishment Clause doctrine
by incorporating that provision in the Due Process Clause of the
Fourteenth Amendment to apply against the states. Yet no one is
throwing a jubilee. For half century on, that doctrine is no more
clear and coherent than it was then.
Does Establishment Clause doctrine rest upon a mistake? Is the
suggestion that Justice Brennan noted, but rejected, true after
all? That is what I will argue. The court has made a categorical
mistake, and fifty years of pounding a conceptual square peg into
a constitutional round hole has still not succeeded simply because
it cannot succeed.
If you're skeptical of the very idea of the nonincorporation of
the Establishment Clause, then try this thought experiment. Consider
three basic questions one might ask of any right proffered for incorporation.
What is the right? Whose right is it? And how is the right incorporated?
When you pose these questions of most rights found in the Bill of
Rights, the answers (at least on a basic level) are uninterestingly
obvious. Take, for example, the Free Speech Clause. The answers
to the three questions, in order, are that it protects the right
to speak freely, a right possessed by persons. And, conceptually,
there are no problems with incorporating it in the Due Process Clause
to apply to the states by analogizing it to the like right which
persons hold against the federal government.
But if you try this same inquiry with the Establishment Clause,
major difficulties and confusions ensue. It cannot be easily stated
as a right (as opposed to a prohibition), especially as an individual
(as opposed to a states') right. And when you try to incorporate
it, you generate the contradiction of the states being benefited
and burdened by the same right. Let's take a deeper look to see
why this is so.
There exists a telling initial difficulty at the outset. If you
search the literature, you will have to look hard even to find any
statement of the right guaranteed by the Establishment Clause and
incorporated in the Due Process Clause of the Fourteenth Amendment,
let alone a clear and convincing statement of that right. Perhaps
the best comes, once again, from Justice Brennan's concurrence in
[A]mong those rights was freedom from such state governmental involvement
in the affairs of religion as the Establishment Clause had originally
foreclosed on the part of Congress.(3) The funny thing about Justice
Brennan's statement here is that the individual doesn't even appear
in this suggested definition. Instead, what we have is a religious
immunity linked to a governmental prohibition or disability. This
is because there is nothing personal about this right. Justice Brennan's
definition states a preference, but it is not a personal preference.
Rather, it is what Ronald Dworkin calls an external preference (a
preference as to what one wants for others)(4). But no external
preference can be a right. It is a necessary, although not a sufficient,
condition of righthood that a preference be a personal preference.
Black's, for example defines a right as, "[T]aken in a concrete
sense, a power, privilege, faculty, or demand, inherent in one person
and incident upon another.(5)"
This point is confirmed by the anomalous nature of Establishment
Clause standing requirements codified in Flast v. Cohen,(6) which
waive the usual requirement of a personal stake in the litigation.
Why is this normally essential factor abandoned in the Establishment
Clause context? Because it cannot be met in an Establishment Clause
claim that is not also in some sense a Free Exercise or Free Speech
claim. Why not? Because the Establishment Clause right, whatever
else it may be, just isn't an individual or personal right.
It won't help to counter that the personal right involved here
is a right to religious liberty, because we already have another
clause that protects our religious liberty-the Free Exercise Clause.
And that clause does support an individual right to the free exercise
of religion. Now, the Establishment Clause right must be either
the same as or different from the right to the free exercise of
religion. If it is the same, then it adds nothing to that right
and fifty years of apparent conflict between the two clauses are
an illusion. On the other hand, if it is a different right, it isn't
a right to religious liberty and we are back to the problem I raised
with Justice Brennan's definition above.
Well, if the Establishment Clause doesn't protect an individual
right after all, then whose right does it protect? The answer is
that it protects a right of the states, whose religious establishments
lingered, in some cases, for decades after the adoption of the Bill
of Rights and ended only because of state choice, not federal constitutional
mandate. This claim is supported by the text of the clause, which
says, "Congress shall make no law respecting an establishment
of religion." The most natural reading of this clause, logically
and historically, is that it protects state religious establishments
(for who else maintained religious establishments in 1791?) against
Now, if the states are rightholders under the Establishment Clause,
they can hardly owe a duty under it, too. For while the notion of
rights implies a correlative notion of duties, they must be held
by different parties. Neither an individual nor a state can have
a right against or owe a duty to itself. But that is precisely what
would ensue if the Establishment Clause is incorporated (as it was
by Everson) in the Due Process Clause.
This same contradiction occurs even if I am wrong in arguing that
the exclusive role of the Establishment Clause is to protect states'
rights. Suppose, for example, that the Establishment Clause has
a dual purpose in protecting both individuals and states from federal
legislation concerning religious establishments (which is another
plausible reading of the clause and argument from history). It still
defies incorporation because of the contradiction as to the states
that would result.
Incorporation of the Establishment Clause is different from incorporation
of the other clauses because it alone involves a right that is,
at least in part, a state right. Incorporation of the other clauses
works because of the analogous relation both the state and federal
governments bear to the individual. Incorporation merely gives constitutional
force to that analogy. But there is no analogous relation waiting
to be actualized in the Establishment Clause context because the
individual stands in a different relation to the state and federal
governments under the clause.
Let me close with a disclaimer and an IOU. The reaction to the
thesis set out here is likely to range, in many quarters, between
perplexity and horror. Perplexity because it sounds so, well, illiberal.
Horror because it seems to open the door to religious oppression,
everything from tithing to Torquemada. To allay the fears first,
although my thesis performs only the negative task of opening a
clearing in the thicket of constitutional doctrine, there should
be little worry that that space would remain uncovered by constitutional
rights. On the contrary, it would doubtless soon be filled in with
new precedent, doctrine, and theory as numerous other constitutional
clauses (the Due Process Clause, the Free Exercise Clause, and even
the Guarantee Clause, for example) provided bases for new growth.
Removal of the perplexity will take something far more substantial
and sustained than this article to set it right. It will take a
change in prevailing perspective on the part of many contemporary
legal thinkers. Much current law and legal theory unthinkingly adopts
a political/philosophical worldview that takes itself to be neutral
when it is not, democratic when it is not, and in accord with our
founding traditions when it is not. My Establishment Clause argument
here is only the warmup, then, to the main event, which will be
the questioning of the yet unquestioned basic assumptions of the
ruling mindset of legal liberalism.
*John T. Valauri is a professor at Chase College of Law , Northern
- School District of Abington
v. Schempp, 374 U.S. 203, 256 (1963) (Brennan, J., concurring).
- 330 U.S. 1 (1947).
- Schempp, id. at 255.
- See RONALD DWORKIN,
Taking Rights Seriously 234 (Enlarged ed. 1978).
- BLACKS LAW DICTIONARY
1324 (6th ed. 1990) (emphasis in original).
- 392 U.S. 83 (1961).