Sunday, February 17, 2019

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.

43 comments:

Our Founding Truth said...
This comment has been removed by the author.
Our Founding Truth said...

The Judiciary Act of 1789 written by Ellsworth says a state law can be overturned, obviously through natural law. That puts in question the ability of Utah to establish Mormonism. Otherwise, a state establishment does not violate the establishment clause.

Jonathan Rowe said...

OFT: That's a strange comment in more ways than one.

Our Founding Truth said...

Jon wrote :OFT: That's a strange comment in more ways than one.

Why is that?

Tom Van Dyke said...

ROWE: the right to be free from a religious establishment


UPHAM:

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.

ROWE: 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.



Your "skepticism" is not a counterargument. It is a feeling. Feelings are not facts.

The "right to be free from a religious establishment" is constitutional gobbledegook. I would have no problem living in Mormon state. Except for the no-booze part. But if it were that important to me, I'd move to one of the other 49.

For many, escaping the high crime and abusive taxation of many other states would be well worth it.

Anonymous said...

Thanks very much for reading my post and for the conversation.
-David Upham

Jonathan Rowe said...

David: My pleasure and keep up the great work.

Jonathan Rowe said...

Tom: "The "right to be free from a religious establishment" is constitutional gobbledegook."

https://prawfsblawg.blogs.com/prawfsblawg/2013/08/the-establishment-clause-and-reverse-incorporation-with-some-implications-for-town-of-greece-v-galloway.html

"If one takes an originalist approach to Fourteenth Amendment incorporation, the principle of non-establishment as a privilege or immunity of citizens of the United States emerged at the time of Reconstruction and was entrenched through the adoption of the Fourteenth Amendment."

Jonathan Rowe said...

OFT:

I'm sympathetic to the notion that we can look to essences in nature discoverable by reason and use such principles found in documents like America's DOI to supplement our understanding of constitutional law. However, I wasn't aware that the The Judiciary Act of 1789 written by Ellsworth provides a smoking gun proof for such a proposition; I guess I'll have to reread it.

And given that Mormons not only endorse the DOI but do so in a way where they actually incorporate it into their religion, in a way that your religion (properly understood) never could, I'm not sure how such proves anything against the state establishment of Mormonism.

Our Founding Truth said...

Jon wrote: "If one takes an originalist approach to Fourteenth Amendment incorporation"

All of us know the above statement is demonstrably false. Religion is left to the states.

And we all know the constitution is founded on natural law:


L]aws human must be made according to the general laws of Nature, and without contradiction to any positive law of Scripture, otherwise they are ill made. John Locke, Two Treatises on Government (London: J. Whiston, etc., 1772), Book II, p. 285, Chapter XI, §135, n., quoting Hooker's Eccl. Pol. 1. iii, sect. 9

Jonathan Rowe said...

"All of us know the above statement is demonstrably false. Religion is left to the states."

It's actually me quoting law professor Kurt Lash. Maybe he knows something you don't. Read the statement carefully again. It's the originalist approach to the FOURTEENTH Amendment. Religion was left to the states of the original 1787-91 Constitution. Not the incorporated one in 1868.

The US Constitution was based on a number of things. Natural law has nothing to do with scripture. And somehow something is proven against the against the establishment of Mormonism at the state level?

Our Founding Truth said...

It's the originalist approach to the FOURTEENTH Amendment. Religion was left to the states of the original 1787-91 Constitution. Not the incorporated one in 1868."

There is no incorprated one. The courts violated natural law (right reason) and overstepped their authority by whatever rulings they made that would distort the constitution.


"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution...What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense."
JM to Henry Lee on June 25, 1824

Jon wrote:Natural law has nothing to do with scripture."

Notice, Locke quotes Hooker and they tie natural law to scripture.

"[L]aws human must be made according to the general laws of Nature, and without contradiction to any positive law of Scripture, otherwise they are ill made. John Locke, Two Treatises on Government (London: J. Whiston, etc., 1772), Book II, p. 285, Chapter XI, §135, n., quoting Hooker's Eccl. Pol. 1. iii, sect. 9"

Jonathan Rowe said...

OFT: You are still not getting it ....

On a related note: This is Lash's entire paper on the topic. I'm not sure if we ever featured it here at AC. Perhaps it's time.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1133615

Our Founding Truth said...

A post from the law and liberty website, someone posted this from from justice Thomas:

"That said, recall Thomas’s dissent in Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004), where he argued that the 1st Amendment’s Establishment Clause was a federalism provision, defending states against overweening federal powers, and did not apply to defend individuals against state powers.

(Basically the opposite of his view of the 2d Amendment.)"

The first part is correct in that establishing Christianity does not prohibit free exercise. Sounds like Upham correctly agrees that States can prohibit free exercise. It's not a mystery. Even TJ believed that.

Jonathan Rowe said...

I'm not exactly sure what you are getting at. Justice Thomas is sympathetic to the notion that the Free Exercise Clause incorporates against state and local governments as a "privilege or immunity," but that the Establishment Clause doesn't, because it doesn't relate to a privilege or immunity. Rather it's a federalism provision.

Lash disagrees.

Jefferson thought the Bill of Rights, including the entire First Amendment applied only to the federal government, because it did.

In terms of "natural right," the ideal that TJ thought all governments ought to follow, see the VA Statute on Religious Freedom which he and Madison helped get through (to the chagrin of Patrick Henry).

Tom Van Dyke said...

https://prawfsblawg.blogs.com/prawfsblawg/2013/08/the-establishment-clause-and-reverse-incorporation-with-some-implications-for-town-of-greece-v-galloway.html

"If one takes an originalist approach to Fourteenth Amendment incorporation, the principle of non-establishment as a privilege or immunity of citizens of the United States emerged at the time of Reconstruction and was entrenched through the adoption of the Fourteenth Amendment."



Vague principles that "emerged" are not judiciable. The failure of the Blaine Amendment at that same time shows that the principle was not ratified.

https://ij.org/issues/school-choice/blaine-amendments/

Tom Van Dyke said...

ibid.:

"Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their purpose was to prevent the government from funding Catholic schools. Today, opponents of educational choice employ Blaine Amendments—found in 37 state constitutions—as blunt weapons with which they attempt to block modern educational choice programs. However, IJ is pursuing a legal strategy to eliminate these obstacles to educational freedom.


This opportunity arises from the U.S. Supreme Court’s decision last summer in Trinity Lutheran Church of Columbia, Inc. v. Comer. In that case, the Court stated that excluding qualified institutions—like schools—from public benefit programs solely because of their religious affiliation is “odious to our Constitution . . . and cannot stand.” IJ believes this opinion is a death sentence to Blaine Amendments, which have been invoked by teachers’ unions and their allies for decades to try and prevent choice programs from spreading and generating widespread reform. IJ’s cases in Washington State, Maine, and Montana are designed to drive our arguments up to the U.S. Supreme Court and to vindicate the right of all parents to access meaningful educational options."

Our Founding Truth said...

"Justice Thomas is sympathetic to the notion that the Free Exercise Clause incorporates against state and local governments as a "privilege or immunity,"



I've never read anything near that from a founding father. I wonder where judge Thomas got it from. What could free exercise be a privilege of? Free exercise is unalienable unless that exercise is immoral or subverts public order.

I personally believe the framers were egregiously wrong to allow idolatry (various false religions) when ratifying the 1A. It is a stupendous blasphemy and contradiction to think Jehovah would condone committing the most grievous sin in all scripture, which actually has the creator taking part in that sin.

If any enlightenment rationalism seeped into the constitution it was that.

Our Founding Truth said...

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.""


If states still established Christianity in their constitutions after 1868, his opinion is flawed.

Jonathan Rowe said...

State establishment churches were gone by 1833

Our Founding Truth said...

I saw a state establishment according to the modern definition till 1878.

Tom Van Dyke said...

I saw a state establishment according to the modern definition till 1878.

There are religious tests for state office still technically on the books in several states.

The thing about Torcaso is that it was never litigated until 1961, and the decision was just an extension of Everson, 1947.

IOW, if you're going to use 1878, you have to show something active happening in 1878, not just an obsolete law left on the books.

djf said...

"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."

Late to the party here, but you seem to imply that establishment of a liberal, or at least non-"fundamentalist," church - such as the modern Church of England or Church of Scotland, I suppose - would be okay. But so long as the established church's standards of behavior are not enforced, that church does not control personal status issues (marriage & divorce, principally), and nobody is required to affirm its doctrines - in what way are non-affiliates of that church made second-class citizens? The government takes all kinds of official positions on controversial issues, but that does not give people who disagree with those positions grounds for complaint that they are being made second-class citizens. As far as I can see, anyway. So I still have a hard time seeing non-establishmentarianism as an individual right, privilege or immunity.

Unknown said...

Good day everyone, i would like to introduce you to JAMES DOLAN. He's an expert in increasing and repairing of credit scores and negative collections. He helped me raised my credit score from 545 to 830 and i am so grateful to him because I've been scammed twice before getting to know him and i can prove to you that he's a legit good hacker because he did came through and he helped me with the little i have. You can get in touch with him on James Dolan Credit Expert At Gmail Dot Com.

Unknown said...

I want to buy my first home but I couldn’t get approved for a loan due to my bad credit report. I came across a lot of recommendations about James Dolan, I get in touch with him. He help me increase my credit score to 800 excellent plus and erase all negative items on my credit report within 72 hours which now I finally got me the mortgage for my first home. He is reliable, discrete and trust worthy, Contact JAMES DOLAN CREDIT EXPERT AT GMAIL DOT COM or Work Number:720 358 7042.

Unknown said...

I had an old eviction which appeared because of factors beyond me, I needed to get a bigger home for my family but all efforts led to no avail because of my eviction. After seeing good reviews online about James Dolan I contacted him via mail James Dolan Credit Expert At Gmail Dot CoM or Work Number:720 358 7042, in no time my score was raise to 800 excellent plus and my eviction was removed. Thanks to James Dolan, I'm eligible for loans.....

Unknown said...

My score was as low as 550 and I was lost with no hope. I saw through Disqus recommendations about an ethical hacker , I saw everyone commenting and publicizing his good work and i got in touch with him. He did not just only boost my credit score to 820 Excellent Score but also removed 3 negative items which included an eviction. I was able to apply for credit card once again and I was able to pay off my mortgage loan. Contact ALBERT GONZALEZ CREDIT GURU AT GMAIL DOT COM or Work Number 786-749-5862

Unknown said...

I have been looking through online credit website on how i could get my low credit score been increased across my three credit bureaus score report until i saw many recommendation about how a credit expert keep pumping up on how he has really been helpful and useful to them by getting a lot of people out of their credit mess. I just got my first loan been approved within 7 days after my credit got repaired and just finish paying off my mortgage outstanding payment. You can get in touch with him through James Dolan Credit Expert At Gmail Dot CoM or Work Number:720 358 7042.

Unknown said...

I was on the verge of losing everything I ever owned due to debts and bad credit and I just didn’t know if I could live with it. I decided to take a last step of faith to look for how to fix it. A friend told me about ALBERTGONZALEZCREDITGURU he met in ICT/business seminar who works with one of the credit bureaus to help me fix my credit but I wanted to be sure so I did further research and it turns out that ALBERT GONZALEZ is highly recommended. I contacted and told them my situation and put my trust on them. Unbelievably, they did what I thought was impossible. They cleared my credit card debts of over $12,000 and increased my credit score to 806. I believe they are God’s instrument and I can only testify. It was a miracle and I still can’t believe it. The whole internet is buzzing recommendations about them and I can’t help but share my story. ALBERT GONZALEZ is real and legit. Contact them on ALBERTGONZALEZ CREDIT GURU AT GMAIL DOT COM 786-749-5862

Unknown said...

I never knew a hacker could improve a bad credit score until i met one on a Disqus forum when I Google how to improve my credit score, I read a lady’s comment on how capable the hacker is of solving credit issues that has to do with hacking. I mailed the hacker and he said he will increase the credit score within 72hours, He is very fast and reliable, contact him via: James Dolan Credit Expert At Gmail Dot CoM or 720 358 7042.

Unknown said...

I read several good reviews on a ethical hacker's good services. I desperately needed help in improving my credit score to be able to obtain a new place to live and pay off medical bills that was killing me from critical PTSD disability government very low income. I got in touch with him with so much hope in my heart and just as I hoped, he got the job done in less than 72 hours.... The problems I had due to my low credit score has been a burden on me all this while especially me being a father of two girls but now i'm glad its been fixed with the help of this ethical hacker. Get in touch with him on James Dolan Credit Expert At Gmail Dot CoM or 720 358 7042.

Unknown said...


I had a credit score of 356 and my husband had a score of 493 (due to student loans and high car payments/insurance) can we combine the two scores and have something average? Or was it still poor? We were looking to get an apartment and worried that we won't be approved. I will be using this opportunity to review this great genius(ethical Hacker) and thanks to my old friend who connected me with him at the best time i needed his service. Guys i can now boast of 790 credit score, paid off the student loans,boosted my credit line to $30,000, same goes for my loving husband. Kindly contact him so you will also thank me too later at... ALBERTGONZALEZ CREDIT GURU AT GMAIL DOT COM OR 786-749-5862

Unknown said...


I had a credit score of 356 and my husband had a score of 493 (due to student loans and high car payments/insurance) can we combine the two scores and have something average? Or was it still poor? We were looking to get an apartment and worried that we won't be approved. I will be using this opportunity to review this great genius(ethical Hacker) and thanks to my old friend who connected me with him at the best time i needed his service. Guys i can now boast of 790 credit score, paid off the student loans,boosted my credit line to $30,000, same goes for my loving husband. Kindly contact him so you will also thank me too later at... ALBERTGONZALEZ CREDIT GURU AT GMAIL DOT COM OR 786-749-5862

Unknown said...

James Dolan is an expert in repairing credit report! My credit score was 524 and with a lot debts on my credit report, He help me increase my score to 810 excellent plus and He help me delete the negative items on my credit report within 72 hours.He also help me pay off my debts within the few weeks and I finally got approved for a mortgage loan of $350,000 with the less interest rate. Get in touch with him on James Dolan Credit Expert At Gmail Dot CoM or 720 358 7042.

Unknown said...

Things fell off and I needed a car loan, but all attempts went to no avail because of my bad credit. After so much research online I came across JAMES DOLAN, I saw good recommendations and I sent him a mail though I was skeptical. To my great surprise my score was raised to 835 from 591 in no time, my collections was wiped and I got approved for a new car loan. The least I could do is to let the others know about him cause I know how frustrating the credit system can be. Send him a mail via James Dolan Credit Expert At Gmail Dot CoM or 720 358 7042 if you having credit problems.

Unknown said...

Do you know that an excellent credit score of 830 is better than $100,000 cash in hand? Don’t fall into the wrong hands Contact JAMES DOLAN for your credit score upgrade and He will remove all evictions from your card among other negative issues. He did a surprising job on my credit score and since then my life have been different. That’s why I have to tell everyone with a bad score to act now and fast. Contact him on his mail; James Dolan Credit Expert At Gmail Dot CoM or Phone number; 720 358 7042.

Unknown said...

Do you have problem with increasing your credit score and removing your poor credit reports, I’ve got a good news for you guys, my credit score was just increased from 470 to 820 and and all my awful credit reports has been cleared,he also hacked into my 3 credit bureaus, let me introduce you guys to JAMES DOLAN, you can contact him through; James Dolan Credit Expert At Gmail Dot CoM or Phone number; 720 358 7042.

Unknown said...

I almost concluded that all hackers and credit repairs are scam until I met this mind changer. I’m Cody Hayes; I had so much fixing to do on my profile including liens and IRS after been scammed once by one self-acclaimed hacker. James Dolan gave me a boost, removed all negatives and gave me a high 830 as my new fico score. Now I am a proud owner of a house here in Idaho, with a very low interest rate. What more can I say hit him up via James Dolan Credit Expert At Gmail Dot CoM or 720 358 7042 for any kind of hack/repair. He remain the best credit Expert in the US.

Unknown said...

Are you searching for a HACKER for HIRE?
The solution to all hacking jobs is right here.
Are you looking for 100% services in terms of CREDIT SCORE increase,
GRADES CHANGE, EMAIL, Facebook, GMAIL HACK,
ACCESS TO YOUR PARTNER'S INFO or wiping CRIMINAL RECORDS. Go ahead & contact
James Dolan Credit Expert At Gmail Dot CoM or 720 358 7042 for all jobs and efficient delivery of services is guaranteed.

Unknown said...

If you need to hack into any database, delete record, improve credit score, spy on whatsapp, text, phone, emails, as long as it's hack contact James Dolan via James Dolan Credit Expert At Gmail Dot CoM or 720 358 7042 he is great, you won't be disappointed, it's very cheap and fast, he saved my relationship.

Unknown said...

Do you know JAMES DOLAN in specialized in all these listed below;
1-Facebook hack
2-gmail hack
3-Whatsapp hack
4-website hack
5-tracking calls
6-online hacking lectures
7-phone clone
8-online records changes
9-retrieval of hacked social media account
10 ATM Marchine hack/password from any Email Address.
11 Get any password from any Facebook, Twitter or Instagram account.
12 Cell phone hacking (whats-app, Viber, line, We-chat, etc)
13 Grades changes (institutes and universities)
14 Websites hacking, pen-testing.
15 IP addresses and people tracking.
16 Hacking courses and classes.
17 blank ATM CARD.
18.Credit Repair

Contact him via James Dolan Credit Expert At Gmail Dot CoM or 720 358 7042.
He is very trustworthy.

Unknown said...

Many people have tried to be in touch with hackers but in most cases, they end up disappointed either with their service or with the charges. You can hire a professional and ethical hacker JAMES DOLAN to keep yourself safe online or to keep a watch on your family members just for legal reasons. This hacker “JAMES DOLAN” will provide you complete security from cyber-crimes and mischievous people who are trying to steal your personal data.He can also help you upgrade your credit score to a golden score of 830 and removed the eviction from your credit among other negative listings.You can reach him on his number: 720 358 7042 or James Dolan Credit Expert At Gmail Dot CoM.

Unknown said...

Hello everyone I'm 35 years old and I had 14 negative accounts in collections. 12 from the emergency room/ medical and one from sprint and a cable company. And 5 hard Inquirys. Never had credit cards or loans or anything like that before. I got introduced to JAMES DOLAN by a friend . So I contacted him for credit fix. He disputed all the collections and hard inquiries and got them all removed with the 609 dispute letters within 3 weeks. And now I have nothing negative on my credit file. You can be happy too . Send a descriptive Email to him on JAMES DOLAN CREDIT EXPERT AT GMAIL DOT COM or on his Work number; 720 358 7042 trust me his fee is very affordable. Kind Regards !