Corey Robin's Marxist ideology has led him to create a false narrative about Justice Thomas’s jurisprudence.
For historians seeking the original meaning of the Fourteenth Amendment, few issues are trickier than the question of national religious liberty. At the time of the Founding, the entire subject of governmental regulation of religion was left to the states. There was no single “principle of religious freedom” beyond widespread agreement that the federal government had no delegated authority over the issue. This left Virginia free to embrace the principles of Jeffersonian separationism and Massachusetts free to embrace the Adams-esque principle of semi-coercive, government-supported religious belief.
Adoption of the Fourteenth Amendment ended this freewheeling religious regulatory federalism and demanded that no state enact or enforce any law abridging the privileges or immunities of national citizenship. Presumably, one of these principles of national freedom involved religious freedom. I say presumably only because historians remain divided over whether the Fourteenth Amendment declared that the principles of free exercise and non-establishment now bound the states (“incorporated” those principles, as the Supreme Court would say). There is good reason to believe that people in 1868, when the Fourteenth Amendment was ratified, did view the first eight amendments to the Constitution as representing national privileges or immunities. Certainly the drafter of the Fourteenth Amendment, Representative John Bingham (R-Ohio), thought that was the case.
But even if this is correct, we are left with a conundrum: Which principles represented the understanding of religious freedom and governmental power in the realm of religion in 1868? Had Americans become church-state separationists a la Jefferson’s 1801“Letter to the Danbury Baptists”? The Supreme Court claimed so in its mid-20th century opinion officially “incorporating” the Establishment Clause against the states. But that opinion contains not a shred of evidence that this was the preferred principle of the people in 1868. The Court simply chose Jefferson because, well because Jefferson. After all, somebody’s views had to represent incorporated national religious freedom.
The problem, of course, is that Adams’ principle of governmental support for and promotion of religious belief would have done just as well. So would have any other of the multiple principles in play in the states at the time of the Founding. Critics of the Court’s establishment jurisprudence have good reason to reject the entire structure as ahistorical claptrap—at least as that structure has been explained (to the extent it has) by the Supreme Court.
It is simply a fact that the people of 1791 (when the Bill of Rights was adopted) did not enact a national principle of church-state relations. It’s possible they did so in 1868, but you wouldn’t know this from any of the Supreme Court’s opinions. Instead, the Court, having embraced the anti-religious Jefferson as its guide to a very religious American landscape, has generated an ever-proliferating set of “tests”: the “reasonable observer test,” the “psychological coercion test,” the tri-horned “Lemon test,” the “Good for this Situation Only because the First Congress did it Nonsectarian-and-Mainly-Noncoercive-Legislative Prayer test.”
It’s not that any of the tests are clearly wrong or obviously in conflict with a reasonable judicial construction of the rights of national citizenship. Maybe they are; maybe not. The point is, we haven’t the slightest idea because the Court has never bothered to ground its Establishment Clause jurisprudence on an exploration of the people’s decision in 1868.
The principles of free exercise are in no better shape. The Supreme Court insists that nothing in the Free Exercise Clause requires heightened judicial scrutiny for laws that equally burden religious and non-religious activity. If the anti-alcohol consumption law equally shuts down the happy hour at Joe’s Bar and religious communion at the Roman Catholic Church, so be it.
To the degree that the Court made any attempt to ground this “We all sink or swim together” approach on historical evidence, it did so by citing the Reconstruction-era ban on polygamy—a ban that equally prevented Mormons and atheists from marrying more than one person. This, at least, represents something of a glance at how Congress viewed religious freedom in the years following the adoption of the Fourteenth Amendment. Unfortunately, one searches in vain for evidence that anti-polygamy laws were consistent with the original meaning of the Fourteenth Amendment.
It makes as much sense to use the Alien and Sedition Acts of 1789 as a guide to understanding the original meaning of freedom of speech. Maybe we should, but doing so seems to call for a vigorous investigation of how the words of the First Amendment were understood at the time of their adoption. Congress, after all, errs from time to time. It is altogether possible that, instead of embracing common law principles of seditious speech, the words of the First Amendment declared an altogether novel approach to expressive freedom in a system based on popular sovereignty.
The point is that to assume that constitutional meaning perfectly tracks majoritarian political decisionmaking is a dubious, and perilous, business. In fact, if political decisionmaking is the proper measure of Fourteenth Amendment religious liberty, then the Supreme Court should reject the current effort, at issue in the case of Trinity Lutheran Church v. Comer, to force the state of Missouri to equally fund playground equipment at religious and non-religious institutions.
Antebellum America was pockmarked with political efforts to target religious groups for special burdens and discriminatory treatment. The treatment of the Church of Jesus Christ of Latter-day Saints is just one example. Roman Catholics were subjected to a variety of local ordinances that affected everything from office-holding to educational funding. The so-called “Blaine Amendments” represented local efforts to deny Catholic parochial schools equal access to the state educational funding that was increasingly flowing to Protestant public schools (where children were forced to read and recite passages from Protestant Bibles). The state-level “Blaine Amendments” and the more famous and eponymous federal effort were driven by outright anti-Catholic bigotry.
As the Supreme Court hears arguments in Trinity Lutheran Church v. Comer, supporters of the church believe this fact should preclude the justices from allowing Missouri to deny it equal funding. But the side that one takes here depends on one’s theory of constitutional interpretation. Even if critics of the still-existent “Blaine provisions” in state constitutions condemn these provisions as historical acts of anti-Catholicism, this does not make them in violation of Fourteenth Amendment religious liberty. Instead, they may represent Fourteenth Amendment religious liberty.
This seems especially likely if one views the Privileges or Immunities Clause as properly informed by common law developments at the state level. If national “privileges or immunities” ebb and flow depending on political movements in the states, then 19th century anti-Catholic animus has a good claim to be represented at the table of incorporated religious freedom (and defining the limits thereof).
If, however, we are seeking the meaning of constitutional words at the time of their adoption, it is altogether possible that the Fourteenth Amendment enshrines a principle meant to be protected from, not conformable to, the political process. It is possible, for example, that the antebellum experience with state regulation of religious exercise in the South triggered the embrace of a principle that would equally bind political majorities in the North, whether or not anyone considered that specific possibility.
As James Madison and John Marshall both recognized, the addition of constitutional principles occurs only during great and extraordinary moments of deep and widespread deliberation. The output of these moments may well—indeed, likely will—transcend the output of ordinary politics.
But confirming this likelihood means investigating a constitutional moment: the moment when the country deliberated on and adopted the Fourteenth Amendment. In particular, it requires analyzing how slave-state regulation of religion informed post-bellum views of religious freedom. To date, that constitutional question has gone generally unexplored. Justice Clarence Thomas, to his credit, has called on his colleagues to take a new look at the original meaning of the Fourteenth Amendment. Perhaps he has just gained a fellow traveler in the form of Justice Neil Gorsuch. Two down, three to go.
Here’s hoping this generation will not pass away before the coming of an originalist jurisprudence of religious freedom.