I think I went too quickly over the issue of Incorporation of the EC yesterday.
I want to start today's class by going back over the theory of incorporation, which is that individual liberty interests from the Bill of Rights are "incorporated" against the states because these are fundamental individual liberties.
However, in many EC cases the state law being challenged as a violation of the EC is not one that deprives anyone of liberty. Indeed, it often seems as though the court is being asked not to advance individual liberty but to restrict individual liberty in order to carry out some structural rule concerning state power (such as Lemon's rule that laws must have a "secular purpose"--this doesn't ask "whose liberty is being restricted, but rather "does the state have the power to enact laws if the legislature lacks a "secular purpose').
Think about Everson, Zorach, and the cases we read for today. Ask yourself is the EC being brandished to protect liberty, or to take liberty away?
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