Incorporation and Religious Freedom
We're certain we have rights that government must respect: the freedom to say what we want and believe what we wish; to go where we please and keep the company we choose; the right to marry our love, to have children, and to raise them as we see fit. We figure we have a right to a public trial by jury when we're charged with a serious crime, and a right to consult a lawyer. The police can't just barge into our homes, and they can't torture us. Most of us are certain that all these rights are guaranteed by the Constitution, but not everyone agrees.
Before the Fourteenth Amendment was ratified, our civil rights were nowhere near as expansive as they are today. According to the Supreme Court, the original Constitution gave us only those fundamental rights that belong "to the citizens of all free governments," such as the right to marry, to have children, and to own property. It didn't give us the right to say what we want; it didn't give us a right to a trial by jury, nor a right to privacy, and it didn't give us freedom of religion. The original Constitution, says the Supreme Court, gave us none of the rights contained in the Bill of Rights.
In 1833 in the case of Barron v. Baltimore, the Supreme Court ruled that the Bill of Rights didn't apply to the states. The national government had to honor those rights, but state and local governments didn't. If the mayor of a city didn't like a particular newspaper, nothing in the Constitution said that he couldn't order the police to shut it down. If the police wanted to bust into someone's house for no good reason, nothing in the Constitution said they couldn't. Nothing in the Constitution said that states couldn't engage in cruel and unusual punishments, or that they had to give criminal defendants a fair trial.
When the Fourteenth Amendment was ratified in 1868, many thought the purpose of the privileges and immunities clause ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.") was to incorporate the Bill of Rights; i.e., apply its limits to the states. Many thought this was one of the key purposes of the amendment. After all, the person who wrote it said that's what it meant, but the Supreme Court didn't agree with him. Just a few years after the amendment was ratified, in what is known as the Slaughterhouse Cases, the Court considered the meaning of the privileges and immunities clause and decided it means this: every citizen in a state has the same privileges as the citizens of that state. It's up to the states, not the national government, to decide what those privileges are, and the Fourteenth Amendment didn't change that.
The Court's decision in the Slaughterhouse Cases wasn't unanimous. Four of the nine justices dissented and said the Fourteenth Amendment means this: it is up to the national government to make sure states don't violate the "inalienable rights which belong to all citizens." One of the dissenting justices noted that at least some of the privileges and immunities of citizens of the United States were contained in the Bill of Rights.
After the Slaughterhouse ruling, civil rights advocates argued that, even if the privileges and immunities clause didn't mean the Bill of Rights applied to the states, the due process clause did. A state, they argued, couldn't deny anyone a fair trial, because due process demands a fair trial. The Court didn't agree. It ruled, in case after case, that the Fourteenth Amendment didn't mean that the Bill of Rights applied to the states. One state might allow criminal defendants to have a trial by jury, and another might not, and that was just fine: federalism in action.
For more than 50 years after the Slaughterhouse ruling, the Court insisted that the Bill of Rights didn't apply to the states, but not everyone agreed. One justice in particular, John M. Harlan, kept insisting that the Court had it wrong. The Bill of Rights specified some of the privileges and immunities of the citizens of the United States. Among them were the Fifth Amendment's privilege of immunity from self-incrimination, the Eighth Amendment's exemption from cruel and unusual punishment, the Sixth Amendment's right to a jury trial, and all the rights implied by the First Amendment, including those implied by the establishment clause. Harlan figured that the Fourteenth Amendment meant that the Bill of Rights applied to the states, but he couldn't persuade a majority on the Court that this interpretation was correct.
In 1922 the Court ruled that the Constitution didn't require states to honor a citizen's right to free speech. Just three years later the Court reversed itself. In the case of Gitlow v. New York, the Court said that "freedom of speech and of the press are among the personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States." In 1931, in the case of Stromberg v. California, the Court said the "conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech." In 1937 the Court said it again when it ruled, in the case of De Jonge v. Oregon, that "freedom of speech and of the press are among the personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States." Finally the amendment had teeth, but they were in the due process clause, not the privileges and immunities clause. And they were not fully grown.
In Gitlow the Court began to selectively incorporate the Bill of Rights through the due process clause, but it was slow going. In case after case the Court looked at the rights contained in the Bill of Rights and decided whether they were "liberties" protected by the clause. In most cases, said the Court, they weren't. In 1934 the Court said states could ignore the free exercise and establishment clauses. In 1937 the Court rejected the argument that if something was "a violation of the original bill of rights (amendments 1 to 8) if done by the federal government," the Fourteenth Amendment made the same thing unlawful "if done by a state." The Court rejected argument after argument that states had to respect a citizen's Fifth and Sixth amendment rights.
It was another matter when it came to First Amendment rights. In the 1940 case of Cantwell v. Connecticut, a unanimous Court ruled that the "First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws." In the 1947 case of Everson v. Board of Education, the Court ruled that the "First Amendment, as made applicable to the states by the Fourteenth, commands that a state 'shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.'" The establishment clause, said the Court, was meant to create "a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion."
In the 50 years following the Cantwell ruling, the Court ruled that—since it applied to the states—the establishment clause prohibited such things as:
Offering religious instruction in public schools (McCollum v. Board of Education, 1948).
Having public school students recite an official prayer each day (Engel v. Vitale, 1962).
Having public school students study the Bible each day (Abington v. Schempp, 1963).
Having public school students recite the Lord's Prayer each day (Abington v. Schempp, 1963).
Posting the Ten Commandments in public school classrooms (Stone v. Graham, 1980).
Conducting state-sponsored religious exercises at public schools (Lee v. Weisman, 1992).
When Cantwell and Everson were decided, the entire Court agreed that the Fourteenth Amendment incorporated both the free exercise clause and the establishment clause. But in 1963, in the case of Abington v. Schempp, one justice asked whether the establishment clause should have been incorporated to the same extent as the free exercise clause. In Abington, Justice Stewart said one of the key purposes of the establishment clause was to prevent the national government from interfering with state establishments of religion, so it was ironic that "a constitutional provision evidently designed to leave the States free to go their own way" had become "a restriction on their autonomy."
It became a great topic for scholarly debate: did it make sense to incorporate the establishment clause, or not? Constitutional scholars couldn't agree. Some argued yes, and others argued no, and they had good reasons to support their arguments. While constitutional scholars debated, the Court continued along the path it chose in Cantwell and Everson. But there was dissent. One Supreme Court justice kept arguing against incorporation—John M. Harlan, Jr., grandson of that John M. Harlan who kept arguing in favor of incorporation 70 years earlier.
In case after case Harlan attacked the incorporation doctrine. He objected to it in the 1961 case of Pointer v. Texas, when the Supreme Court ruled that anyone accused of a crime had the right "to be confronted with the witnesses against him." He objected to it in the 1964 case of Malloy v. Hogan, when the Court determined that the "Fourteenth Amendment prohibits state infringement of the privilege against self-incrimination just as the Fifth Amendment prevents the Federal Government from denying the privilege." He objected to it in the 1965 case of Griswold v. Connecticut, a case about a state law prohibiting doctors from so much as discussing birth control with their patients. In that case, he said it was "unacceptable" for the Supreme Court to impose the "requirements of the Bill of Rights" on the states.
Akhil Reed Amar, professor of law at Yale, says the establishment clause was meant to prevent Congress from interfering with state religious establishments. In his book The Bill of Rights: Creation and Reconstruction, Amar notes that when the Bill of Rights was ratified, several states had established religions. Since those states agreed to the establishment clause, yet maintained their state religions, it's obvious that they didn't think the establishment clause applied to them. And if they didn't think so then, why should we now?
Justice Clarence Thomas agrees. In the 2004 case of Elk Grove v. Newdow, he said that the establishment clause wasn't meant to protect the rights of individuals; it was meant to protect states' rights. Incorporation makes no sense, claims Thomas, since it prohibits "precisely what the Establishment Clause was intended to protect—state establishments of religion."
Justice Antonin Scalia thinks along the same lines. According to him, if something was constitutional when the Constitution was ratified, it must be constitutional now. It's as simple as that. If the Founders didn't have a problem with state establishments of religion, why should we?
Chief Justice Rehnquist is of like mind. In the 1985 case of Wallace v. Jaffree, he said that the Supreme Court erred when it incorporated the establishment clause, and he agreed with a lower court's ruling: "The establishment clause of the first amendment to the United States Constitution does not prohibit the state [Alabama] from establishing a religion."
Still, in ruling after ruling, in each and every one of them since 1940 that considered the matter, the Court said state and local government had to respect the establishment clause. But that could soon change. All that's needed is a few more justices who agree with Professor Amar, and those justices might be on the Court in a few years.
Sandra Day O'Connor has just announced her retirement; and it's widely expected that Chief Justice Rehnquist will announce his retirement this summer. The 80-year-old Rehnquist, who's been on the court more than 30 years, is battling cancer. Ruth Bader Ginsburg is in her 70s, and had battles with cancer. John Paul Stevens is 84. Court observers say that it's possible that all four might retire in the next few years. If they do, George W. Bush gets to pick their replacements, and he's likely to nominate people who agree that the establishment clause doesn't apply to the states.
During the 2000 presidential campaign, then Governor Bush said that the two justices he admired most were Justices Thomas and Scalia. During the 2004 campaign he said if he had the opportunity to nominate someone to the Supreme Court, "I would pick somebody who would strictly interpret the Constitution." In other words, he would nominate people who think like Rehnquist, Scalia, and Thomas. If he gets to nominate enough of them, the Court could decide that the establishment clause doesn't apply to the states. If that happens, then every case which the Court's decision was based on an incorporated establishment clause becomes suspect. The court could decide that if a state wants, it can require daily prayers and Bible study in public schools; it can require the Ten Commandments to be posted in every public school classroom; it could require public officials to take a religious oath. Who knows? It might even be able to make adultery and homosexuality capital offenses.
Does this seem too improbable? It doesn't seem that way to the folks at Christian Exodus, an organization whose goal is to take over South Carolina and, if necessary, start a twenty-first century civil war. The idea is to get conservative Christians to move to the state in waves. In the first wave, to be completed by September 2006, the group hopes to take control of two counties. After that, subsequent waves will take control of other counties. If all goes according to plan, the organization will be able to make "constitutional reforms returning proper autonomy to the State by 2016 regardless of illegal edicts from Washington, D.C." One of those reforms is to rewrite the state's constitution to recognize "the Ten Commandments as the foundation of law."
Before the Civil War, South Carolina's constitution declared "that all persons and religious societies who acknowledge that there is one God, and a future state of rewards and punishments, and that God is publicly to be worshipped, shall be freely tolerated. The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this state. That all denominations of Christian Protestants in this State, demeaning themselves peaceably and faithfully, shall enjoy equal religious and civil privileges."
The group takes seriously the Tenth Amendment to the Constitution, which it sees as allowing the states, and not the Supreme Court, to decide whether abortion is legal, whether homosexuals can be executed, and whether public school students can be required to recite the Lord's Prayer. It dismisses the Fourteenth Amendment as a fraud that was forced upon Southern states after the first Civil War. According to the organization's position statement, South Carolina has a right "to nullify this Amendment and all laws and court rulings arising from it." And if the federal government should interfere with that right, then the state will have no choice but to secede.
Maybe President Bush can make sure it doesn't come to that. If he can appoint enough Supreme Court justices who share the views of Justices Rehnquist, Scalia, and Thomas, then Christian Exodus might achieve its goal: a return to the good old days.
Mister Thorne (real name) is a mathematics editor living in San Francisco. He frequently writes about church-state issues.