Incorporation of the Establishment Clause

Incorporation of the Establishment Clause

The First Amendment provides:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Suppose in 1791, Congress passed a law prohibiting the states from "endorsing" religion or religious holidays. Would that law of Congress violate the Establishment Clause as a law "respecting an establishment of religion?"

Most legal historians agree that the Establishment Clause was originally understood as a structural clause designed to promote federalism by allowing matters of religion (establishment or non-establishment) to be decided by the people at the state or local level rather than at the national level. What does that mean? What is "federalism?"

Now it is 2020, and  public officials of a town in the Sandhills of Nebraska decide to put up a Nativity Display in the hallway of City Hall  to recognize the Christmas season and the fact that many local residents are celebrating this holiday. Does the Establishment Clause forbid this?

How is it even possible to construe a clause designed to protect the autonomy of states in matters of religion from national interference (from national laws "respecting an establishment of religion") as a clause that requires federal judges to strike down passive local displays recognizing the Christmas holiday or the Ten Commandments?

Indeed. in 1875 Congressman James G. Blaine, an anti-Catholic bigot, proposed the following amendment to the Constitution:

 "No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations."

This amendment failed to pass in the U.S. Senate and thus was never even proposed to the states for ratification. In other words, it failed to become part of the US Constitution!

Here is the language of the Fourteenth Amendment that the Court has used to "incorporate" selected provisions of the Bill of Rights:

"nor shall any state deprive any person of life, liberty, or property, without due process of law...."

The Court has held that the "liberty" clause of the 14th Amendment incorporates or absorbs selected fundamental individual liberties from the original Bill of Rights and protects them against deprivations under state law. In other words, the "liberty" clause is the portal through which individual liberties originally protected against federal laws become protected against state deprivations.