The beam in the originalist eye
And other less metaphorical eye violence
Originalists such as Professor Esbeck argue that the Supreme Court’s “incorporation of the Establishment Clause was a mistake if one follows the interpretive rules of original public meaning.” Esbeck insists on a “laser-like focus on the September 1789 meaning of the final words of the Establishment Clause.” Applying such a focus, he draws a distinction between provisions of the Bill of Rights that are “rights-based,” such as the Free Speech Clause, and those that are “structural” in nature, such as the Establishment Clause.
The Establishment Clause “operates like a structural distancing of two centers of authority.” Esbeck argues that the Establishment Clause structurally separates power vertically (vis-a-vis states) and horizontally (vis-a-vis the church) but that it does not invest individuals with rights in the way that, say, the Free Speech Clause does. “It would sound silly,” he concludes, “to say that people have a natural right to a nation that does not have an established religion.”
I have questioned this neat distinction that originalists like Esbeck draw between supposedly structural and rights-based clauses of the Bill of Rights. I suggest that provisions of the Bill of Rights as originally understood could be simultaneously structural and rights-based. Because the Founding generation saw the interests of states and individuals as aligned against the tyrannical tendencies of the national government, they did not cleanly differentiate between structural limiting provisions inuring to the benefit of states and rights-based provisions benefiting individuals.
Esbeck’s quintessential individual rights provisions, the Free Speech Clause, for example, was also seemingly a structural states’ rights provision at the Founding that protected the prerogative of states to define and punish subversive speech. Although the Jeffersonian Republicans railed against the Federalists’ Sedition Act of 1798 as a violation of the Free Speech Clause, they saw no contradiction in unleashing state prosecutors to indict their Federalist opponents for seditious libel under state law once the shoe was on the other foot, as I have written. The Free Speech Clause could thus function as both an individual liberty or a (structural) states’ right, depending on the circumstances.
The sorting of clauses in the Bill of Rights into structural and rights-based categories is rather, I suggest, a modern preoccupation. In drawing such a distinction to insist that the Establishment Clause cannot be applied against states under the Fourteenth Amendment, it seems to me, originalists commit exactly the error that their historically-based method is meant to correct: the unreflexive application of twenty-first century concerns to eighteenth century text.
This states’ rights/individual rights false dilemma posed by originalists is a symptom of a more fundamental methodological anachronism. Originalists demand a “laser-like focus” on 1789, when the Bill of Rights was submitted for ratification by the states. But they are not interpreting the Bill of Rights. They are interpreting the Fourteenth Amendment, ratified in 1868. Unable to make the 1789 meaning work for the 1868 provision, they throw their hands up and declare the attempt to incorporate the Establishment Clause against the states incoherent. But the problem is entirely of their own making.
The Second Amendment double standard
If originalists insist that the Establishment Clause was originally intended to protect states and therefore inherently cannot be applied against states, they should also recognize that the original Second Amendment similarly cannot be coherently applied against states. Of course, they insist no such thing. On the contrary, they contort themselves into ahistorical and indeed atextual knots trying to justify why the Second Amendment as originally understood protects an individual right to bear arms that can be sensibly applied against states.
But the Second Amendment is quite clear that its purpose is the preservation of “well regulated Militia[s].” Today, the term “militia” conjures a gaggle of beer-bellied bros in ill-fitting tactical gear convening in the Michigan woods to plan the storming of the U.S. Capitol while barely managing to avoid shooting their own asses off with their comically oversized Armalite rifles.1
But, as I have written, at the Founding, “militias” referred not to private gun clubs but rather to the state law military service owed by every able-bodied male citizen. Militias, like juries, were regimes of state government that fostered democratic involvement by enlisting the participation of private citizens in public institutions. They were not private paramilitary organizations any more than juries are 12 random citizens who spontaneously get together to solve crimes.2
State militias needed protection from federal interference because it would be, in the Founder’s vision, such citizen soldiers who would confront a standing army of federal mercenaries. These citizens, well regulated (i.e. disciplined) into competent fighting units under state law, could go toe to toe against a federal occupying military force, just as the colonial militias had trounced the British army of Hessians at Lexington and Concord (or so the legend went).3
If the federal government could disarm the citizens through the enactment of necessary and proper legislation, it could render impotent this bulwark that the Founders believed was “necessary to the security of a free State.” So the reason that the “right of the people to keep and bear Arms, shall not be infringed” by the federal government was to protect the right of states to maintain well regulated militias.
Like the Establishment Clause, then, the original purpose of the Second Amendment was to protect the prerogatives of states against federal interference. With a “laser-like focus on the September 1789 meaning,” how can such a provision be applied against those very states?
Justice Alito gave us no answer and did not even acknowledge the problem when he incorporated the Second Amendment against the states in McDonald v. City of Chicago. Nor do originalists who deny the incorporability of the Establishment Clause acknowledge that the same analysis would also deny incorporation of the Second Amendment.
The answer to the conundrum of the Second Amendment’s incorporation of course lies instead in the Reconstruction. In the aftermath of the Civil War, defrocked confederate soldiers banded together to form the Klu Klux Klan in order to terrorize and murder freed persons and Republicans.
The victims of these white supremecist vigilantes could hardly depend on local law enforcement for protection since, as Rage Against the Machine would later observe, “some of those that work forces, are the same that burn crosses.” Blacks needed to be packing their own heat if they were to defend themselves against domestic terrorism. So when the Reconstruction Congress incorporated a right to bear arms in self defense against the states, they had in mind not red coats but rather white hoods.
Rights respoken
Kurt Lash proposes that through amendments the American people periodically “respeak” constitutional text, clarifying or updating its meaning. Respeaking typically occurs when the people judge that the government (particularly the Supreme Court) is getting some part of the Constitution wrong.
I have previously described, for example, how the American people corrected the Supreme Court’s interpretation in Pollock v. Farmers’ Loan & Trust Co. (1895) of the meaning of “direct” taxes under Art. I, Sec. 9 of the Constitution. In Pollock, the Court struck down an income tax imposed by the Revenue Act of 1894 as an unapportioned direct tax.
Article I, section 9 provides that “[n]o Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.” Because of the requirement of being apportioned (i.e. in proportion to the census), direct taxes are nearly always impossible to impose in practice. The constitution provides no definition of what a direct tax is, but I have described how in United States v. Hylton (1796) the Supreme Court held that a tax on carriages was not a direct tax that was required to be apportioned.
In his seriatim opinion,4 Justice Paterson, who had been a delegate at the Constitutional Convention, argued that apportionment of taxes was hella dumb and explained that it was only included to prevent Congress from imposing a tax on enslaved persons (which would have been a “capitation”). He proposed that the application of direct taxes should consequently be limited to slavery and not allowed to throw non-slavery parts of the Constitution out of wack through dubious extension.
A century later, Chief Justice Fuller thought otherwise, when he held the income tax unconstitutional in Pollock. What did Justice Paterson know, anyway? He was just there when it all happened after all. According to Fuller, the income tax was an unconstitutional unapportioned direct tax.
Americans made short work of that nonsense when they ratified the Sixteenth Amendment in 1913, which provided that “[t]he Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” In Lash’s parlance, the people respoke the taxing power, affirming the broad nature of congressional authority and rejecting the Supreme Court’s misreading of an odious and irrelevant slavery provision.
Lash argues that the American people also respoke the Bill of Rights through the Fourteenth Amendment’s Privileges or Immunities Clause, overturning the Supreme Court’s decision in Dred Scott. In doing so, he reasons, “[t]he original meaning of the Bill of Rights had to be reshaped before these 1791 provisions could be applied against the States” because “[a]t the time of the Founding, the Bill of Rights represented the people’s commitment to the structural principle of federalism.” In order to recreate the Bill of Rights as a limit on state power, Americans of the Reconstruction Era “invested those older words with new meanings.”
Lash recognizes, for instance, that most likely the “original meaning of the Establishment Clause prohibited federal establishments while simultaneously protecting state religious establishments from federal interference.” But such a meaning can’t possibly be what was meant by the people of 1868 when they applied that provision against the states.
I have previously described how the slave states, unconstrained by federal law, wielded their power to violate the fundamental rights of citizens, including by mandating proslavery religious doctrines. Perhaps, having learned during the Antebellum Period that established churches at any level of government were antithetical to freedom of conscience, they “understood the words of the Establishment Clause as declaring a principle of constitutional immunity from all religious establishments that is as applicable against the state governments as it is against the federal government.”
Professor Gedicks thinks that Lash gives too much ground in admitting that the original meaning of the Establishment Clause was exclusively a states’ rights provision that can only be sensibly incorporated against states through a respoken Reconstruction interpretation. He asserts that the “crucial anti-incorporation premise—also conceded by many incorporationists,” that the Establishment Clause was “structural” and did not protect an individual liberty that could be incorporated against states is “mistaken.”
On the contrary, he argues, “constitutional structures that disable the government from acting are necessarily accompanied by correlative personal immunities from such actions.” According to Gedicks, the Establishment Clause “generated two immunities, only one of which was held by the states.” The “fallacy of [the originalist] argument is its assumption that the original meaning of the Establishment Clause is fully captured by the state immunity.”
The “actual text of the Clause expressly disabling Congress puts each of the states and the people on equal textual footing as direct beneficiaries of the disability.” Had the federal government established a church in the early years of the republic and prosecuted an individual for failing to pay taxes in support of it, that individual could surely have raised the Establishment Clause as a bar to prosecution. Esbeck’s characterization of an individual right against establishments of religion as “silly,” appears on reflection to be itself silly.
Incorporating the Establishment Clause was thus merely a matter, Gedicks argues, of extinguishing the state immunity and extending the individual immunity so that it applied against states as well as the federal government. He concludes that contrary to the insistence of originalists that it is logically impossible to incorporate the original Establishment Clause, there is “nothing illogical about expanding a personal immunity from the consequences of federally established religion to include state action that seeks to establish religion.”
Ultimately, I don’t think Gedicks and Lash really disagree. Professor Lash’s concept of “respeaking” constitutional texts entails the refinement or updating of existing provisions based on subsequent experience, not the wholesale abandonment or complete revision of the Constitution. Gedicks completes Lash’s proposal by identifying the through-line that connects the original Establishment Clause with the Fourteenth Amendment: an intuition that individual freedom of conscience is incompatible with governmentally established religious orthodoxy.
Nor were eighteenth century militias equivalent to modern state National Guard units, which consist of professional soldiers. In the eighteenth century mind, what differentiated a “militia” from an “army” was that the former was composed of civilians while the latter was made up of professionals. The eighteenth century well regulated militias simply does not exist today, rendering the original Second Amendment an anachronism just like the original Establishment Clause (since there are no more state established religions).
In reality, amateurish colonial militias routinely got their butts handed to them by the professional British army throughout the Revolutionary War, as Washington could have told them, and often did.
In the early years, each Supreme Court Justice would write his own opinion on each case, called a seriatim opinion. It was Chief Justice John Marshall who introduced the practice of issuing a single opinion of the court.