Ollie’s take on the Bill of Rights, including the Establishment Clause ("Antidisestablishmentarianism," 5/17/14), is that the States are not bound by it. That’s historically correct. The Court, however, has used part of the 14th Amendment—the part that says “No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”—as a basis for claiming that the 14th Amendment “incorporates” most of the Bill of Rights, making those rights applicable to the States. There seems little historical or textual basis for such a claim. As Ollie says, incorporation is a 20th century judicial invention.
Justice Thomas’s concurrence in Galloway made this point about the Establishment Clause, but no other Justice saw fit to join him. (Justice Scalia joined in part of Thomas’s concurrence, but not the part on the Establishment Clause.) Thomas has often plowed this lonely furrow, insisting that the courts should interpret the Constitution just as they interpret any other statute: It means what the people who wrote it intended it to mean, which is usually clear enough from the words, supplemented by a dash of history. Any other approach makes judges into unelected lawgivers. Thomas’s approach is usually called “originalism,” but few originalists are as consistent as Thomas. It’s a view with which I sympathize. And yet …
The problem with originalism is that it assumes we want to live under the Constitution as written. Most of us don’t. The Constitution was written 225 years ago for a different time and polity. The Framers (most of them) owed their first allegiance to their States, and they were careful to limit the federal government’s ability to interfere with State practices (such as a State religious establishment and, more critically, slavery). The Constitution answered to the needs of its time, but the amendment process the Framers settled on has made it difficult to modify the Constitution as needs change.
The result has been that under the Constitution, properly construed, the federal government cannot do many things that majorities of its citizens very much want it to do--buying Louisiana, ending slavery, establishing the Federal Reserve System, or fighting the Great Depression, to name a few. Since the Constitution can’t (practically) be amended, the Court has been willing to distort the meaning of the Constitution to get to the desired result. But no one is allowed to say what’s going on, so many Supreme Court opinions on the Constitution are merely a series of sophisms; the Justices hold their noses and solemnly declare black to be white. Of course, I suspect most Justices manage to convince themselves of the deeper wisdom of their gibberish; for the rest, it’s a gig with many perks. And, of course, most opinions involve non-Constitutional issues, where the Justices can be more forthright.
Where the obfuscations get to a result acceptable to the mass of Americans, perhaps no harm is done, except to our logical sensibilities. But when the Court gets out ahead of the citizenry (abolishing the death penalty, legalizing abortion), the result can be some ugly politics, made uglier by the denial of the possibility of normal democratic procedures. (Surprisingly, this is the view of Justice Ginsburg, who is on record that the Court should have waited for popular opinion to sanction abortion before making it a Constitutional right.)
I’ve developed this view of the Constitution in greater detail in a paper, “Thinking about the Constitution,” which I hope to publish some day in a reputable journal.