DAVID UPHAM on Everson/The Religion Clause

Professor David Upham makes the case for overturning Everson at the Law & Liberty site here. In this piece he is more clear on how he feels about the Establishment Clause applying against the states than the Free Exercise Clause. Yes, before the 14th Amendment the entire Bill of Rights including the Free Speech and Free Exercise Clauses applied to the federal government only.

But he writes:

To my knowledge, the sole exception to the Permoli legal consensus, from 1875 to 1925, can be found in dicta made only by Justice John Harlan and only in his last decade on the Supreme Court (1900-1911).  So, for instance, in Maxwell v. Dow, Harlan objected to the majority’s anti-incorporation conclusion with an argument ad absurdum, that the logical result would be that Utah could establish the Mormon Church.[2]

So I noted in the comments:

There is one point of view that says religion is left to the states and the 14th Amendment didn’t incorporate any of the bill of rights. If this is true states would be permitted to infringe on the free exercise rights. What conservative jurists presently support this position? State Blaine Amendments, even though they discriminate against religion would be perfectly constitutional. 

There is another point of view that says individual rights are what was intended to be incorporated. Free exercise clearly relates to an individual right. Establishment would only incorporate to the extent you can demonstrate it relates to such. Clarence Thomas has endorsed this point of view. But he doesn’t see what beyond the FEC incorporates. Akhil Amar suggests there are some “equality” rights that the FEC (which is more of a “liberty” right) doesn’t capture.

To which Upham replied:

... Nonestablishment is not a privilege or immunity of citizenship under the 14th Amendment. No one said it was, and for good reason–it did not fit the definition of the terms, as understood by that generation. Conversely, many mentioned other rights in the bill of rights–and for good reason–they did fit the general definition. 

State Blaine amendments, as I understand them, are not inconsistent with the original understanding. They are, I think, unjust and imprudent, but not unconstitutional–in part because their very existence, passed often by the same folks who adopted the 14th Amendment, is strong evidence that they were not inconsistent with the 14th Amendment. Did anyone–in any of the states–protest such measures as contrary to the 14th Amendment? 

To which I then replied:

Kurt Lash has suggested that the last state establishment ended in 1833 — well before the 14th Amendment — one could argue the right to be free from a religious establishment is included in the P or I Clause. 

And again, Prof. Amar has suggested, rightly in my opinion, it’s liberty and equality interests that drive the First Amendment and the entire BOR generally. 

If Utah did have the Mormon Church as a state establishment or Maryland the Roman Catholic Church, is that consistent with a state treating its citizens as equals without regard to religious creed[?] 

These kinds of questions as opposed to original expectation of the constitution’s applied text are what drives the new originalism.

And finally Upham:

Lash rightly and easily points out that nonestablishment can be an individual right and not exclusively a federalism provision. But it cannot satisfy the full test of being fundamental to the United States–whether that test is Corfield’s or the similar tests announced in various formal interpretations of the proposed Amendment–that it be foundational to the American Republic since 1776. 

Those tests, and that failure, I think adequately explain why no one seemed capable of saying that the Fourteenth Amendment incorporated the Religion Clauses, even when the silence was deafening. that is to say–the original meaning explains fairly clearly the originally expected NON-application. 

As for equality before the law: the establishment of republicanism, as presupposed by our entire Constitution, does not make monarchists second-class citizens of our Republic. So too the establishment of Mormonism or Roman Catholicism–which would be highly unlikely, imprudent and even un-American, in my opinion, would not, absent a suppression of liberty or an imposition of special taxes or burdens–reduce non-Mormons or non-Catholics to second-class citizenship in Utah and New Mexico, respectively. 

I gave him the last word in the comments over there, but  let me take a final word here. One of the difficulties in constitutional interpretation is that the text of the Constitution doesn't specify a formula or a "test" for interpreting it.

I'm certainly skeptical of Upham's application of his aforementioned "tests." What does "foundational to the American Republic since 1776" mean? That we freeze everything in 1776? What about 1789 or 91 or 1868? Is Upham arguing that what the 14th Amendment incorporates has to relate back to 1776?

This isn't what Akhil Amar argues. Rather he argues it's an 1868 understanding or lens of the Bill of Rights that were ratified in 1791 (not 1776). But 1868, not the late 18th Century is the more centrally determinative time. And if that's the case, given the state establishments were gone by 1868 one could argue, after Lash, that it's foundational to the American Republic since 1868 that American citizens have a right not to live under a state established church.

I'm also skeptical that the state level establishment of Mormonism, Roman Catholicism or a fundamentalist sect of the Baptist religion can be done without making other members into second class citizens on account of their religion.