> 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?
I think it absolutely was. It was almost jurisdictional, in fact, intended to preserve the regulation of religion as the domain of the states. This applies to the entirety of the Amendment, though, not just the establishment clause. Check out Robert C. Palmer's essay entitled "Liberties as Constitutional Provisions" in Liberty and Community: Constitution and Rights in the Early American Republic (1987). Palmer is a professor of law at the University of Houston Law Center and specializes in legal history and proved beyond doubt--at least to me--that this was the case. (I have a xeroxed copy of this essay, but nothing I could send electronically.)
http://vi.uh.edu/pages/bob/bib/LIBSSC.HTM http://links.jstor.org/sici?sici=0002-9319(198910)33%3A4%3C394%3ALACCAR%3E2.0.CO%3B2-A (book review: not sure if you have access to JSTOR)
The liberties are by-products, but they were by-products which had huge ramifications when the 14th Amendment was passed, granting to the people of the states the same "privileges and immunites" as they had against the federal government.
> Again, I think such historical considerations only show the absurdity of
> "originalism" as a philosophy of Constitutional interpretation.
Without doubt. But the real problem is the 14th Amendment. It's pretty much irrelevant that the founders intended the First Amendment to be a jurisdictional statement about the relative domains of the state and federal governments when, 81 years and one civil war later, an amendment is passed that entirely upsets the balance they originally struck. So Thomas is right about the what the First Amendment meant when passed. The problem is he thinks nothing that happened after that is legally relevant. He isn't that stupid, of course. Can't be. So, really, he's just a tyrant who wants to rid us all of the 14th Amendment by judicially ignoring it.