The Corner

Law & the Courts

‘Substantive Moral’ Originalism?

(Kevin Lamarque/Reuters)

Adrian Vermuele recently argued that while originalist jurisprudence served as a useful antidote to the aggressively left-liberal Warren and Burger Courts, its moment has passed, and conservatives should devise “new and more robust alternatives” that allow them to pursue a “substantive moral constitutionalism.” The piece contains a characteristically thorough exposition on those potential alternatives, which I will not rehash here.

Many of the measures that Vermeule gestures at in the piece were in fact available in the years following the Founding, when an unincorporated federal Constitution and a stricter adherence to enumerated powers allowed states to pursue more muscular social regimes. Anti-blasphemy laws and blue laws abounded, as did state establishments of religion; New Hampshire, Connecticut, and Massachusetts each had established churches until the middle of the 19th century.

Justice Thomas has taken up the cause of disincorporating the establishment clause of the First Amendment to the states, and is doing so on allegedly outmoded originalist grounds. As he wrote in his concurrence to the Court’s holding in the 2004 First Amendment case Elk Grove Unified School District v. Newdow, “I would take this opportunity to begin the process of rethinking the Establishment Clause. I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.”

As is the case with most constitutional questions, there is a wealth of literature available on incorporation doctrine broadly and on the incorporation of the establishment clause in particular. My personal view on the latter aligns with Justice Thomas’s as presented in Newdon — binding states by structural limits on their power that were imposed upon the federal government alone is an abuse of the incorporation doctrine.

In other cases, Thomas has sought to incorporate the Bill of Rights against the states through the privileges-or-immunities clause of the 14th Amendment, as opposed to through the due-process clause. The latter mode of incorporation has prevailed on the Court since two 19th century decisions in Slaughter-House Cases and U.S. v. Cruikshank practically gutted the privileges-or-immunities clause.

In any case, it merits mentioning the fact that whichever method of incorporation one prefers — the due process clause or the privileges-or-immunities clause — the establishment clause in particular resists any sort of incorporation, because it was never intended to apply to the states. Religious diversity was a hot-button question among colonists and their representatives, but the text of the First Amendment received little debate among the Framers precisely because they knew that the amendment would not take the issue of establishment out of state hands. Steven D. Smith summarized this in a 2006 article for the Notre Dame Law Review, citing the late historian Leonard Levy’s description of the lack of debate among the Framers over the text of the First Amendment:

So, what should we make of this apathetic performance? If we suppose that Congress was adopting a religious freedom provision — one intended to govern the nation on this important subject for generations to come — then Congress’s complacency seems inexcusable (as the tone of Levy’s observation implies); but more than that, it seems almost inexplicable. How could a measure governing a matter so momentous, and about which so many Americans cared so passionately, slip through both houses of Congress with only a few minutes of desultory discussion? Or, even if we can somehow account for this curious development, we would expect the measure to generate fierce debate when it was submitted to the various states for ratification. But it didn’t: it was approved in the states with apparently as little interest as it seems to have provoked in Congress. So it would be as if, after decades of passionate debate on abortion, someone today were to propose in Congress some substantive resolution of the whole issue, and this measure were to sail through both the House and the Senate while receiving only the most casual attention, and then to be greeted with yawns in the ratifying states. If a movie director were to try to pass off that sort of story, he would surely get “two thumbs down” for overburdening the audience’s credulity.


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