Barnett v. Ledewitz on Religion & the Original Constitution

This is the original offending article by Bruce Ledewitz. This is Randy Barnett's response. And this is Ledwitz's rejoinder.

From the first link:

But, from the point of view of originalism, the decision [Trinity Lutheran] was ridiculous. If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches. And, even if a decision by Missouri to pay the church might somehow be thought not to violate the Establishment Clause, it could not possibly be argued that the original Free Exercise Clause required a payment from Missouri. You could have asked any member of the founding generation whether the Free Exercise Clause ever required the payment of public money to a church and the answer would have been a unanimous no.

My observation: So called "liberalism" has "liberty" and "equality" as ideological book ends. The First Amendment to the US Constitution is a "liberal" text. It's clear the Free Exercise Clause validates a "liberty" right. The Establishment Clause often (but not always) validates an "equality" right. I agree with Ledwitz that this doesn't seem to be a free exercise of religion/liberty issue.

However, Ledwitz's understanding of the Establishment Clause is questionable. Further, Trinity Lutheran did involve an equality or equal treatment issue. Whichever text ends up doing the work, arguably the outcome was correct on originalist grounds. Don't forget the 14th Amendment is part of the Constitution. So we might not necessarily be dealing with late-18th Century originalism,  but mid-19th Century, which incorporates back late-18th Century originalism through a mid-19th Century liberal lens (basically Akhil Amar's  thesis; though I don't think he's alone here). 

This is from Barnett's response:

I am not an expert on the Religion Clauses, so I am not as confident about their original meaning as Professor Ledewitz. But every originalist–indeed every living constitutionist–understands that neither the Free Exercise Clause nor the Establishment Clause originally applied to the states at all. Instead, it applied to Congress. What exactly an “establishment of religion” was in 1791 is a matter of good faith academic dispute. But some thoughtful originalists have maintained that, whatever constituted an “establishment of religion,” the First Amendment’s wording “make no law with respect to” forbade Congress both from establishing a national religion (at minimum) and also from disestablishing a state religion. On this account, the Establishment Clause operated–perhaps exclusively–as a federalism provision, expressly acknowledging that Congress had “no power” in this area, with all powers pertaining to religion reserved to the states. 

[...] 

In addition, some originalists maintain that, because the original meaning of the Establishment Clause was a federalism provision barring Congress from disestablishing state religions, it did not enunciate an individual right that could be considered a Privileges or Immunity of citizens of U.S. citizens. Others, like Kurt Lash, disagree on the ground that, by 1868, the meaning of the Establishment Clause had evolved so its public meaning at the time of the 14th Amendment did include an individual privilege or immunity. But if Lash and others are wrong about this, then the original meaning of the 14th Amendment protected only free exercise rights from state infringement; it did not bar states from making laws that could constitute an establishment of religion.  ...

 And from Ledwitz's rejoinder:

4. All of Randy’s discussion of the Fourteenth Amendment and related matters is beside the point. The Court did not mention those matters. I wrote that there are no originalists on the Court. A majority of the Justices wrote that the Free Exercise Clause required the payment of public money to a church. That is unjustifiable by any stretch of originalism. They wrote that way because they were assuming incorporation of the Free Exercise Clause against the States as it would be interpreted against the federal government. So they dealt with Free Exercise only and did so in an unsupportable way from an originalist  perspective. Randy writes that they could have written a different opinion. But then they might be originalists. But they did not, so they are not. 

I should also add here that the bigotry of the Blaine Amendments adopted in State Constitutions after 1875, which Randy mentions, should be irrelevant to an originalist, though Justice Thomas has also mentioned them in a similar context. In originalism, original public meaning does not change. For the living constitution, on the other hand, the experience of the Blaine Amendments is part of political learning that demonstrates that our original understanding of Free Exercise was too narrow. Randy's reference to the Blaine Amendments just shows that it is impossible to be an originalist. We learn over time what the Constitution means. It cannot be, should not be and isn't fixed. (That was also true of Justice Scalia's majority opinion in Heller, in which Justice Scalia learned from 19th century state judicial decisions that the second amendment should not be interpreted to protect concealed carry--why are 19th century opinions relevant to the original public meaning of the second amendment?)  

The discussion doesn't end there. We will do a subsequent post to address some further issues.