The Repeal of the Religion Clauses
Steven D. Smith March/April 1998
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As argued above, the religion clauses amounted to a decision by the national government not to address substantive questions concerning the proper relationship between religion and government. There would be no national law, theory, or principle-and, consequently, no constitutional law, theory, or principle-prescribing the proper relationship between religion and government. The decision to "incorporate" the religion clauses represented, in effect, the reversal of that decision. By undertaking to review and regulate church-state relations at both the national and state levels, the federal judiciary necessarily committed itself to developing a substantive constitutional law for the subject. It would therefore be more accurate to say that this decision far from "incorporating" the religion clauses, effectively repudiated-and hence repealed-those clauses.
To put the matter in slightly different terms: The framers managed to avoid addressing the first-order or substantive question of religious freedom by answering the second-order, jurisdictional question in a particular way. The 1940s Supreme Court rejected the framers' answer to the jurisdictional question; consequently, the Court was required to-and did-undertake to answer the substantive question. On both counts, therefore, the Court took a position just opposite that reflected in the original religion clauses.
This conclusion underscores the futility of trying to derive or develop an account of religious freedom for contemporary use from the original religion clauses. The earlier discussion suggested that those clauses did not address substantive questions of religious freedom. It now appears, in addition, that the original decision embodied in the religion clauses was effectively repealed by their so-called incorporation into the Fourteenth Amendment.
As a matter of logic, at least, this effective repeal has far-reaching but thus far unappreciated consequences. For example, even scholars who have criticized the incorporation of the Establishment Clause have typically assumed that the clause continues to restrict the national government, as it was originally intended to do. But even that assumption seems unwarranted. If the religion clauses were an allocation of jurisdiction over religion to the states, and if that allocation has now been undone, then there is no justification-no originalist justification grounded in the First Amendment's religion clauses, at least-for holding even the national government to restrictions grounded in a jurisdictional arrangement that has long since been repudiated.
More generally, that effort to develop an authoritative constitutional law of religious freedom based on the religion clauses of the First Amendment is in a sense similar to an effort to discuss the states' current constitutional authority to permit or regulate liquor on the basis of the Eighteenth Amendment, while ignoring the inconvenient fact that this amendment has been repealed. If there is to be constitutional law on either subject, it will have to be derived from some other source.
From Smith, Steven D. (1995) Foreordained Failure. New York: Oxford University Press, Inc. pp. 49, 50.