[lbo-talk] John Roberts doesn't like Bong Hits 4 Jesus

[Jerry Monaco]

On 6/27/07, J. Tyler <unspeakable.one at gmail.com> wrote:
>
>   Scalia will not even
> join his more eccentric opinions, including the one under discussion.  He
> has actually written (repeatedly, I think) that he believes the
> establishment clause does not apply to the states: "I accept that the Free
> Exercise Clause, which clearly protects an individual right, applies
> against
> the States through the Fourteenth Amendment. See Zelman, 536 U.S., at 679,
> and n. 4 (Thomas, J., concurring). But the Establishment Clause is another
> matter. The text and history of the Establishment Clause strongly suggest
> that it is a federalism provision intended to prevent Congress from
> interfering with state establishments. Thus, unlike the Free Exercise
> Clause, which does protect an individual right, it makes little sense to
> incorporate the Establishment Clause."
>
> http://www.law.cornell.edu/supct/html/02-1624.ZC2.html
>
> So he certainly would rule, at least, that if New York passed a law
> mandating that every person attend a Baptist church on Sunday, the U.S.
> Constitution has nothing to say about it.  I seem to remember another
> opinion in which he based that conclusion on the language of the
> Amendment,
> which places restrictions only on "Congress."

By the way I think that Thomas is historically correct on the larger point
that the Establishment Clause was not originally intended to apply to the
states.  Mass. had banned Roman Catholicism, and as far as I know none of
the writers of the constitution, nor any of the people debating the
constitution, thought that Mass. would have to renege on its laws banning
Catholicism, when the new constitution was established.  In other words the
state of Mass. could decide which religions were practiced in the state, and
the Federal government could not interfere with Mass.  The more particular
interpretation that the Establishment Clause was a "federalist" provision
might be correct but I don't know.  Does anyone have any historical
information on this?

Again, I think such historical considerations only show the absurdity of
"originalism" as a philosophy of Constitutional interpretation.

Jerry