Incorporation of the Establishment Clause against the states: A logical, textual, and historical account

Indiana Law Journal

Volumn 88, Issue 2, 2013, Pages 669-722

  Gedicks, Frederick Mark ^a  

^a BRIGHAM YOUNG UNIVERSITY   (United States)

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EID: 84878340215     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (398)

1. Everson v. Bd. of Educ., 330 U. S. 1 (1947).
2. See J. M. O'NEILL, RELIGION AND EDUCATION UNDER THE CONSTITUTION ch. 10 (1949);
3. Edward S. Corwin, The Supreme Court as National School Board, 14 Law & CONTEMP. PROBS. 3 (1949);
4. Joseph M. Snee, Religious Disestablishment and the Fourteenth Amendment, 1954 WASH. U. L. Q. 371 (1954).
5. See, e.g., Sch. Dist. v. Schempp, 374 U. S. 203, 309-10 (1963) (Stewart, J., dissenting);
6. AKHIL REED AMAR, THE BILL OF RIGHTS 33-35 (1998);
7. GERARD V. BRADLEY, CHURCH-STATE RELATIONSHIPS IN AMERICA 9-10, 95-96 (1987);
8. DANIEL L. DREISBACH, REAL THREAT AND MERE SHADOW 89-96 (1987);
9. WILBER G. KATZ, RELIGION AND AMERICAN CONSTITUTIONS 8-11 (1964);
10. STEVEN D. SMITH, FOREORDAINED FAILURE 21-25, 49-54 (1995) [hereinafter SMITH, FOREORDAINED FAILURE];
11. Jonathan P. Brose, In Birmingham They Love the Governor: Why the Fourteenth Amendment Does Not Incorporate the Establishment Clause, 24 OHIO N. U. L. REV. 1 (1998);
12. Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 Nw. U. L. REV. 1113, 1135-42 (1988);
13. Richard F. Duncan, Justice Thomas and Partial Incorporation of the Establishment Clause: Herein of Structural Limitations, Liberty Interests, and Taking Incorporation Seriously, 20 REGENT U. L. REV. 37 (2007);
14. Mary Ann Glendon & Raul F. Yanes, Structural Free Exercise, 90 MICH. L. REV. 477, 479-82 (1991);
15. James J. Knicely, "First Principles" and the Misplacement of the "Wall of Separation": Too Late in the Day for a Cure?, 52 DRAKE L. REV. 171 (2004);
16. Philip B. Kurland, The Irrelevance of the Constitution: The Religion Clauses of the First Amendment and the Supreme Court, 24 VlLL. L. REV. 3, 9-11 (1979);
17. William K. Lietzau, Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation, 39 DEPAUL L. REV. 1191 (1990);
18. James McClellan, The Making and the Unmaking of the Establishment Clause, in A BLUEPRINT FOR JUDICIAL REFORM 295, 314-19 (Patrick B. McGuigan & Randall R. Rader eds., 1981);
19. Luke Meier, Constitutional Structure, Individual Rights, and the Pledge of Allegiance, 5 FIRST AMENDMENT L. REV. 162 (2006);
20. Vincent Phillip Muñoz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. PA. J. CONST. L. 585 (2006);
21. Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 NOTRE DAME L. REV. 311, 317-26 (1986);
22. William C. Porth & Robert P. George, Trimming the Ivy: A Bicentennial Re-Examination of the Establishment Clause, 90 W. VA. L. REV. 109, 138-39 (1987);
23. Nicholas Quinn Rosenkranz, The Objects of the Constitution, 63 STAN. L. REV. 1005, 1060 (2011);
24. Rupal M. Doshi, Note, Nonincorporation of the Establishment Clause: Satisfying the Demands of Equality, Pluralism, and Originalism, 98 GEO. L. J. 459 (2010);
25. Russell A. Hilton, Note, The Case for the Selective Disincorporation of the Establishment Clause: Is Everson a Super-Precedent?, 56 EMORY L. J. 1701 (2007);
26. Clifton B. Kruse, Jr., Note, The Historical Meaning and Judicial Construction of the Establishment of Religion Clause of the First Amendment, 2 WASHBURN L. J. 65, 110-15, 126-33 (1962);
27. Note, Rethinking the Incorporation of the Establishment Clause: A Federalist View, 105 HARV. L. REV. 1700 (1992) [hereinafter Note, Rethinking Incorporation];
28. see also Carl H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power, 84 IOWA L. REV. 1, 25-27 (1998) (arguing that "the Court had to strain in order to squeeze a structural clause into a 'liberty' mold"). A few lower courts have questioned the Clause's application to the states, though obviously such opinions do not survive appellate or en banc review.
29. See, e.g., United States v. Hardman, No. 99-4210, 2001 U. S. App. LEXIS 17702, at 46 n. 18 (10th Cir. Aug. 8, 2001) (2-1 decision)
30. vacated on rehearing en banc, 297 F.3d 1116 (10th Cir. 2001);
31. Jaffree v. Bd. of Sch. Comm'rs, 554 F. Supp. 1104, 1118-28 (S. D. Ala. 1983)
32. rev 'd sub nom. Jaffree v. Wallace, 705 F.2d 1526, 1530-33 (11th Cir. 1983)
33. aff'd, 472 U. S. 38, 48-50 (1985);
34. E. Bay Asian Local Dev. Corp. v. State, 81 Cal. Rptr. 2d 908, 912 n. 2 (Ct. App. 1999)
35. vacated on petition for cert., 13 P.3d 1122 (Cal. 2000).
36. See Utah Highway Patrol Ass'n v. Am. Atheists, Inc., 132 S. Ct. 12 (2011) (Thomas, J., dissenting from denial of certiorari);
37. McDonald v. City of Chi., 130 S. Ct. 3020, 3084 n. 20 (2010) (Thomas, J., concurring in part and concurring in the judgment);
38. Van Orden v. Perry, 545 U. S. 677, 692-93 (2005) (Thomas, J., concurring);
39. Cutter v. Wilkinson, 544 U. S. 709, 727-28 (2005) (Thomas, J., concurring);
40. Elk Grove Unified Sch. Dist. v. Newdow, 542 U. S. 1, 49-51 (2004) (Thomas, J., concurring in the judgment);
41. Zelman v. Simmons-Harris, 536 U. S. 639, 677-80 (2002) (Thomas, J., concurring).
42. See Schempp, 374 U. S. at 253-58 (Brennan, J., concurring);
43. KENT GREENAWALT, RELIGION AND THE CONSTITUTION 33-39 (2008) [hereinafter GREENAWALT, RELIGION];
44. Richard L. Aynes, Ink Blot or Not: The Meaning of Privileges and/or Immunities, 11 U. PA. J. CONST. L. 1295, 1316-19 (2009) [hereinafter Aynes, Ink Blot or Not];
45. Richard L. Aynes, McDonald v. Chicago, Self-Defense, the Right to Bear Arms, and the Future, 2 AKRON J. CONST. L. & POL'y. 181, 188-90 (2011) [hereinafter Aynes, McDonald]
46. Kent Greenawalt, Common Sense About Original and Subsequent Understandings of the Religion Clauses, 8 U. PA. J. CONST. L. 479, 508-10 (2006) [hereinafter Greenawalt, Common Sense];
47. Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 ARIZ. ST. L. J. 1085 (1995) [hereinafter Lash, Establishment Clause];
48. Douglas Laycock, A Survey of Religious Liberty in the United States, 47 OHIO ST. L. J. 409, 411-16 (1986) [hereinafter Laycock, Religious Liberty];
49. Douglas Laycock, Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding Extremes but Missing the Liberty, 118 HARV. L. REV. 155, 241-43 (2004) [hereinafter Laycock, Theology Scholarships].
50. U. S. CONST, amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.");
51. The first serious examination did not come until fifteen years after the Clause was incorporated by Everson v. Bd. of Educ., 330 U. S. 1 (1947);
52. 4 CONG. REC. 205 (1875).
53. See, e.g., Wallace v. Jaffree, 472 U. S. 38, 48-49 (1985) (explaining that Establishment Clause incorporation is a legal doctrine "firmly embedded in our constitutional jurisprudence");
54. Sch. Dist. v. Schempp, 374 U. S. 203, 215, 217 (1963) (explaining that Establishment Clause incorporation is a "decisively settled" question, and disincorporation is "entirely untenable");
55. see also LEONARD W. LEVY, THE ESTABLISHMENT CLAUSE: RELIGION AND THE FIRST AMENDMENT 149-50, 226-27 (2nd rev. ed. 1994) (arguing that although Fairman's work and Blaine decisively prove that incorporation was not intended by the Fourteenth Amendment framers, the openness of the Amendment's text to incorporation and the Court's unanimous and bipartisan First Amendment incorporation precedents affirm its legitimacy).
56. See also Bryan H. Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67, 68 OHIO ST. L. J. 1509, 1515 n. 12 (2007) [hereinafter Wildenthal, Nationalizing the Bill of Rights] (noting but not addressing the question of Establishment Clause incorporation).
57. See, e.g., Laycock, Theology Scholarships, supra note 6, at 241-43
58. (citing and discussing Douglas Laycock, "Nonpreferential" Aid to Religion: A False Claim About Original Intent, 27 WM. & MARY L. REV. 875, 885-910 (1986));
59. Laycock, Religious Liberty, supra note 6, at 411-16. While I am sympathetic to this reading of the Clause's original meaning, in this Article I take as a premise the predominant scholarly view that the Clause was purely structural and federalist in origin. See infra text accompanying notes 36-37.
60. See Bd. of Educ. v. Grumet, 512 U. S. 687 (1994) (invalidating school district whose boundaries were consciously drawn to coincide with ultra-Orthodox Jewish community);
61. Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982) (invalidating municipal ordinance granting churches and schools the power to veto bars proposed within 500 feet).
62. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 706 (2012) ("According the state the power to determine which individuals will minister to the faithful... violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.");
63. Serbian E. Orthodox Diocese v. Milivojevich, 426 U. S. 696 (1976) (invalidating state court judgment that diocese did not follow its doctrine in dismissing bishop);
64. Kreshik v. Saint Nicholas Cathedral, 363 U. S. 190 (1960) (holding state court lacked power at common law to decide theological questions in adjudicating church property dispute);
65. Kedroff v. Saint Nicholas Cathedral, 344 U. S. 94 (1952) (holding same regarding state legislature).
66. See Tex. Monthly, Inc. v. Bullock, 489 U. S. 1 (1989) (invalidating sales tax exemption available only to religious periodicals);
67. Everson v. Bd. of Educ., 330 U. S. 1, 16 (1947) (explaining that the Establishment Clause prohibits the levy of any "tax in any amount, large or small,... to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion");
68. Reynolds v. United States, 98 U. S. 145, 162 (1878) (explaining that before ratification of the Establishment Clause, "[t]he people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe").
69. See Mitchell v. Helms, 530 U. S. 793, 857-60 (2000) (O'Connor, J., concurring in the judgment) (holding that aid to religious organizations dispersed on religiously neutral criteria violates Establishment Clause if actually diverted to unambiguously religious uses).
70. See McCreary Cnty. v. ACLU, 545 U. S. 844 (2005) (invalidating county courthouse display of Ten Commandments whose purpose was to endorse a certain theological understanding of the United States and its origins);
71. Cnty. of Allegheny v. ACLU, 492 U. S. 573 (1989) (invalidating stand-alone crèche depicting birth of Jesus displayed in city-county building).
72. See Engel v. Vitale, 370 U. S. 421 (1962) (invalidating voluntary recitation of statecomposed prayer in public schools);
73. Illinois ex rel. McCollum v. Bd. of Educ., 333 U. S. 203 (1948) (invalidating voluntary religious instruction conducted by clerics on public school grounds during school day).
74. See Van Orden v. Perry, 545 U. S. 677 (2005) (plurality opinion) (upholding display of Ten Commandments on state capitol grounds because its history and context were secular);
75. Elk Grove Unified Sch. Dist. v. Newdow, 542 U. S. 1, 18 (2004) (Rehnquist, J., concurring in the judgment) (upholding recitation of "under God" in the Pledge of Allegiance because it has merely historical significance);
76. McGowan v. Maryland, 366 U. S. 420 (1961) (upholding Sunday Closing laws because their original religious purposes had been eclipsed by contemporary secular purposes and meanings). Professors Lupu and Tuttle have suggested one scenario in which the absence of an incorporated Establishment Clause would allow states to retain "truth-declaring jurisdiction" including the power "to recognize one faith as the political community's preferred religion" and offering, a preferred faith a significant set of privileges, including public funding of ministries and houses of worship, the right to place religious displays in public buildings, the right to appoint chaplains for public institutions, observation of the tradition's religious holidays, and exclusive reference to that tradition's religious beliefs in public proclamations[,] limited only by a tolerance norm prohibiting coercion or "undue pressure."
77. Ira C. Lupu & Robert W. Tuttle, Federalism and Faith, 56 EMORY L. J. 19, 99 (2006) [hereinafter Lupu & Tuttle, Federalism & Faith].
78. See, e.g., Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah, 508 U. S. 520, 534 (1993) (invalidating state action that singled out a minority religion for special burdens);
79. see also United States v. Carolene Products Co., 304 U. S. 144, 153 n. 4 (1938) (suggesting increased judicial scrutiny under the Equal Protection Clause for government actions that burden particular religions).
80. Cf. Lupu & Tuttle, Federalism & Faith, supra note 28, at 103-04 ("It would make no sense to liberate the states from the periphery of the Establishment Clause and then set up doctrines that would require them to justify every move into that periphery.").
81. see also Jeffrey Toobin, Partners, THE NEW YORKER, Aug. 29, 2011, at 40 (arguing that Justice Thomas is a doctrinally influential Justice who has pushed the Roberts Court to the right);
82. cf. Richard C. Schragger, The Relative Irrelevance of the Establishment Clause, 89 TEX. L. REV. 582, 632 (2011) (arguing the same to support suggestion that judicial enforcement of the Establishment Clause be abandoned).
83. See, e.g., Newdow, 542 U. S. at 51 (Thomas, J., concurring in the judgment) (arguing that the Establishment Clause should only prohibit state action that coerces religious belief or action);
84. Zelman v. Simmons-Harris, 536 U. S. 639, 679 (Thomas, J., concurring) (same);
85. see also Frederick Mark Gedicks, Undoing Neutrality? From Church-State Separation to Judeo-Christian Tolerance, 46 WILLAMETTE L. REV. 691, 700-06 (2010) (demonstrating how current doctrinal trends could combine to displace equality with tolerance as the dominant Establishment Clause value).
86. CURTIS, THE BILL OF RIGHTS, supra note 20, at 3.
87. See Gitlow v. New York, 268 U. S. 652, 666 (1925). The applicability of the freedom of speech to the states had been assumed long before formal incorporation of the Speech Clause.
88. See, e.g., Michael Kent Curtis, Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States, 78 N. C. L. REV. 1071, 1144 (2000) [hereinafter Curtis, Historical Linguistics] (noting Judge Cooley's nineteenthcentury belief that freedom of speech applied to the states through the Fourteenth Amendment Due Process Clause).
89. Prudential Ins. Co. of Am. v. Cheek, 259 U. S. 530, 543 (1922).
90. 310 U. S. 296, 303 (1940).
91. see also Lupu & Tuttle, Federalism & Faith, supra note 28, at 36 ("Because the Free Exercise Clause sounds in liberty in ways that strongly resemble the Speech and Press Clauses of the First Amendment, the textual logic of incorporating the Free Exercise Clause seems strong.").
92. 330 U. S. 1, 14-15 (1947). The meaning and scope of the First Amendment, preventing establishment of religion or prohibiting the free exercise thereof, in the light of its history and the evils it was designed forever to suppress, have been several times elaborated by the decisions of this Court prior to the application of the First Amendment to the states by the Fourteenth. The broad meaning given the Amendment by these earlier cases has been accepted by this Court in its decisions concerning an individual's religious freedom rendered since the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. There is every reason to give the same application and broad interpretation to the "establishment of religion" clause. Id. (footnotes omitted); accord id. at 26-27 (Jackson, J., dissenting); id. at 29 (Rutledge, J., dissenting).
93. Everson looked even stranger when barely four months later, the Court issued a set of bitterly divided opinions in Adamson v. California, 332 U. S. 46(1947), rejecting "total incorporation" of the Bill of Rights.
94. See Lupu & Tuttle, Federalism & Faith, supra note 28, at 40-41.
95. Illinois ex rel. McCollum v. Bd. of Educ., 333 U. S. 203, 211-12 (1948) (rejecting without explanation counsel's request that the Court reconsider Everson's incorporation of the Establishment Clause).
96. (citing Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?-The Original Understanding, 2 STAN. L. REV. 5 (1949));
97. See Adamson v. California, 332 U. S. 46, 68-92 & app. 92-123 (1947) (Black, J., dissenting).
98. The episode is recounted in NOAH FELDMAN, SCORPIONS: THE BATTLES AND TRIUMPHS OF FDR'S GREAT SUPREME COURT JUSTICES 307-16 (2010).
99. 4 CONG. REC. 205 (1875).
100. E.g., Garcia v. San Antonio Metro. Transit Auth., 469 U. S. 528 (1985)
101. (overruling Nat'l League of Cities v. Usury, 426 U. S. 833 (1976)) (holding that state immunity from federal regulation confirmed by Tenth Amendment is not judicially enforceable);
102. see Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N. Y. U. L. REV. 346, 406 (2002) (describing the rise of " neofederalism" during the Reagan administration and its consistency with an original understanding of the Establishment Clause as structural and federalist).
103. E.g., Aguilar v. Felton, 473 U. S. 402 (1985) (invalidating government monitoring to ensure that government aid is not diverted to religious uses)
104. overruled by Agostini v. Felton, 521 U. S. 203 (1997);
105. Sch. Dist. v. Ball, 473 U. S. 373 (1985) (invalidating government aid that might conceivably be diverted to religious uses);
106. Wallace v. Jaffree, 472 U. S. 38 (1985) (invalidating state statute providing for "moment of silence" at beginning of public school day on basis of legislative motivation to encourage silent, voluntary, individual prayer by students, and rejecting lower court determination that the Establishment Clause did not bind the states).
107. E.g., Edwin Meese III, The Supreme Court of the United States: Bulwark of a Limited Constitution, 27 S. TEX. L. REV. 455 (1986) (advocating an "intentionalist" interpretive jurisprudence which precluded Establishment Clause incorporation).
108. Note, Rethinking Incorporation, supra note 4, at 1708-14 (same on grounds of incoherence, textual inconsistency, and Blaine);
109. see also Jaffree v. Bd. of Sch. Comm'rs, 554 F. Supp. 1104, 1118-28 (S. D. Ala. 1983) (rejecting Establishment Clause incorporation on grounds of Blaine and general anti-incorporation arguments of Fairman and Berger)
110. aff'd in part, rev'd in part sub nom. Jaffree v. Wallace, 705 F. 2d 1526, 1530-33 (11th Cir. 1983)
111. affd, 472 U. S. 38, 48-50 (1985).
112. Elk Grove Unified Sch. Dist. v. Newdow, 542 U. S. 1, 50 (2004) (Thomas, J., concurring in the judgment).
113. Besides Justice Thomas's opinion in Newdow, see Utah Highway Patrol Ass'n v. Am. Atheists, Inc., 132 S. Ct. 12 (2011) (Thomas, J., dissenting from denial of certiorari);
114. McDonald v. City of Chi., 130 S. Ct. 3020, 3084 n. 20 (2010) (Thomas, J., concurring in part and concurring in the judgment);
115. Van Orden v. Perry, 545 U. S. 677, 692-94 (2005) (Thomas, J., concurring);
116. Cutter v. Wilkinson, 544 U. S. 709, 726-28 (2004) (Thomas, J., concurring);
117. Zelman v. Simmons-Harris, 536 U. S. 639, 678-80 (2001) (Thomas, J., concurring).
118. E.g., McDonald, 130 S. Ct. at 3058-84 (Thomas, J., concurring in part and concurring in the judgment) (arguing that the Second Amendment right to keep and bear arms was understood in 1868 as a privilege or immunity of national citizenship applied to the states by the Fourteenth Amendment);
119. United States v. Lopez, 514 U. S. 549, 584-93 (1995) (Thomas, J., concurring) (arguing that the Commerce Clause was not originally understood to have granted Congress the power to regulate activities that might reasonably be thought to "substantially affect" interstate commerce).
120. See, e.g., MORRIS R. COHEN, LAW AND THE SOCIAL ORDER 167, 170 (1933) ("[T]he effort to assume the form of a deductive system underlies all constructive legal scholarship.... [T]he rôle of deduction is not an accidental incident in law and natural science but is rather an essential part of their life.");
121. 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 407, at 391 n. 1 (1833) ("It is obvious, that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text....");
122. Steven L. Winter, Transcendental Nonsense, Metaphoric Reasoning, and the Cognitive Stakes for Law, 137 U. PA. L. REV. 1105, 1107 (1989) ("The traditional view of law is largely dependent upon objectivist assumptions about reasoning and categorization. ").
123. See, e.g., JACQUES DERRIDA, Signature Event Context, in LIMITED INC (1972) (Samuel Weber & Jeffrey Mehlman trans., 1977);
124. Paul Ricoeur, What Is a Text?, in TWENTIETH-CENTURY LITERARY THEORY 331 (Vassilis Lambropouios & David Neal Miller eds., 1987).
125. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 1-12, at 32, 38 (3d ed. 2000) ("To treat text as paramount... seems all but inevitable if the Constitution is to be seriously regarded as law-[A]nything flatly contrary to it cannot stand....").
126. See, e.g., HAYDEN WHITE, TROPICS OF DISCOURSE: ESSAYS IN CULTURAL CRITICISM 101-34 (1978) (arguing that historical facts are constituted by interpretation, and history itself by the narratives in which such facts are embedded);
127. GORDON S. WOOD, THE PURPOSE OF THE PAST passim (2008) (discussing the plurality and constructed nature of historical meaning);
128. Steven K. Green, "Bad History": The Lure of History in Establishment Clause Adjudication, 81 NOTRE DAME L. REV. 1717, 1730 (2006) [hereinafter Green, "Bad History"] ("Despite their commitment to objectivity, historians also understand... that history is not objective. Any exploration into history is selective, and all (good) accounts of history are interpretive.").
129. cf. HANS-GEORG GADAMER, TRUTH AND METHOD 294 (Joel Weinsheimer & Donald G. Marshall trans., 2d rev. ed. 2004) ("[W]e understand traditionary texts on the basis of expectations of meaning drawn from our own prior relation to the subject matter.");
130. PAUL RICOEUR, HISTORY AND TRUTH 29 (Charles A. Kelbley trans., 1992) ("The historian goes to the men of the past with his own human experience. The historian's subjectivity takes on a striking prominence at the moment when, over and above all critical chronology, history makes the values of past men surge forth.").
131. See, e.g., JAMES B. WHITE, THE LEGAL IMAGINATION 802 (1973) ("From the beginning you know where the lawyer wants to come out, and every word points that way.");
132. Robert M. Cover, The Supreme Court, 1982 Term-Foreword: Nomos and Narrative, 97 HARV. L. REV. 4, 40-44 (1983) (describing the " jurispathic" character of legal narrative, which abides only one account of controlling law and liquidates all interpretive competitors);
133. Green, "Bad History", supra note 83, at 1729-30.
134. Cf. Peter H. Ditto, David A. Pizarro & David Tannenbaum, Motivated Moral Reasoning, in 50 PSYCHOLOGY OF LEARNING AND MOTIVATION 307, 310 (2009) ("[P]eople (like attorneys) often have a preference for reaching one conclusion over another, and these directional motivations serve to tip judgment processes in favor of whatever conclusion is preferred." (citation omitted));
135. Dan M. Kahan, The Supreme Court 2010 Term-Foreword: Neutral Principles, Motivated Cognition, and Some Problems from Constitutional Law, 125 HARV. L. REV. 1, 19 (2011) (discussing the "unconscious tendency of individuals to process information in a manner that suits some end or goal extrinsic to the formation of accurate beliefs").
136. RODNEY K. SMITH, PUBLIC PRAYER AND THE CONSTITUTION 165 (1987) [hereinafter R. SMITH];
137. THE FEDERALIST No. 84, at 578, 579 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) ("Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.... [W]hy declare that things shall not be done which there is no power to do?").
138. See Steven K. Green, The Blaine Amendment Reconsidered, 36 AM. J. LEG. HIST. 38, 65 (1992) [hereinafter Green, The Blaine Amendment].
139. Green, The Blaine Amendment, supra note 92, at 51 n. 84, 54 & n. 107;
140. John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 MICH. L. REV. 279, 302 (2001);
141. Lash, Establishment Clause, supra note 6, at 1147-48. In addition to applying the Religion Clauses against the states, Blaine would have absolutely prohibited the use or control of tax money, public lands, and other state resources by "any religious sect." See supra text accompanying note 69. These provisions were widely understood to have been directed against efforts by Roman Catholics to obtain state support for parochial schools serving a swelling Catholic immigrant population.
142. See United States v. Cruikshank, 92 U. S. 542 (1876) (holding that the Fourteenth Amendment did not protect the First Amendment right of assembly and Second Amendment right to bear arms);
143. Walker v. Sauvinet, 92 U. S. 90 (1876) (same regarding the Seventh Amendment right to trial against contrary state action);
144. see also Twining v. New Jersey, 211 U. S. 78, 96 (1908) (conceding that Slaughter-House "[u]ndoubtedly... gave much less effect to the Fourteenth Amendment than some of the public men active in framing it intended, and disappointed many others");
145. Slaughter-House Cases, 83 U. S. (16 Wall.) 36 (1872) (conventionally read as having rejected application to the states of most provisions of the Bill of Rights). Although Blaine was introduced on December 14, 1875, it was not debated and voted upon by Congress until August 4, 1876
146. see 4 CONG. REC. 5189-91 (1876)
147. months after Walker and Cruikshank had been argued and decided in March and April 1876, ANNE ASHMORE, DATES OF SUPREME COURT DECISIONS AND ARGUMENTS (2006), available at http://www.supremecourt.gov/opinions/datesofdecisions.pdf.
148. Curtis, THE BILL OF RIGHTS, supra note 20, at 170;
149. Green, The Blaine Amendment, supra note 92, at 50-51;
150. Lupu & Tuttle, Federalism & Faith, supra note 28, at 47-48.
151. Green, The Blaine Amendment, supra note 92, at61.
152. 4 CONG. REC. 5585 (1876) (remarks of Sen. Oliver Morton (R-IN)).
153. See 2 CONG. REC. app. 242 (1874) (Sen. Thomas Norwood (D-GA));
154. Steven K. Green, Federalism and the Establishment Clause: A Reassessment, 38 CREIGHTON L. REV. 761, 766-67, 786-88 (2005) [hereinafter Green, A Reassessment] (same).
155. See GREENAWALT, RELIGION, supra note 6, at 34-35;
156. Green, A Reassessment, supra note 111, at 774-77, 787, 790-95;
157. Laycock, Theology Scholarships, supra note 6, at 242-43;
158. see also School Dist. v. Schempp, 374 U. S. 203, 234 (1963) (Brennan, J., concurring).
159. cf. Touche Ross & Co. v. Redington, 442 U. S. 560, 571 (1979) ("[I]mplying a private right of action on the basis of congressional silence is a hazardous enterprise, at best.");
160. Girouard v. United States, 328 U. S. 61, 69 (1946) ("It is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.").
161. See Smith, Foreordained Failure, supra note 4, at 21-22, 52-53. Smith argues that the Free Exercise Clause is also purely jurisdictional and thus lacks a substantive right or liberty that could be incorporated. I consider his arguments only as they relate to the Establishment Clause.
162. see also STEVEN D. SMITH, THE CONSTITUTION AND THE PRIDE OF REASON 136-37 (1998) ("Nearly all scholars agree... that the establishment clause was intended at least in part to protect state-established religion from federal intervention. But 150 years later (and as a result of an 'incorporation' decision that was at best dimly understood by those who made it, if indeed they were conscious of having made such a decision at all), that clause is found to authorize federal intervention to eliminate offensive state religious practices." (emphasis in original)). Smith does acknowledge that if Lash were right, the historical focus for originalist arguments would necessarily shift from the colonial and revolutionary eras to the midnineteenth century, though this would constitute a "major reorientation" of historically supportable doctrine and norms. Smith, Foreordained Failure, supra note 4, at 53-54.
163. Id. (quoting WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT 3 (1988) (original alteration omitted)).
164. See Abington Sch. Dist. v. Schempp, 374 U. S. 203, 254 (1963) (Brennan, J., concurring).
165. see Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 VAND. L. REV. 1539 (1995) [hereinafter Bybee, Taking Liberties].
166. See Lash, Establishment Clause, supra note 6, at 1098-99 ("[S]tatements by those involved in the framing of the Establishment Clause, early constitutional treatise writers, numerous congressional leaders, and even the Supreme Court, are remarkably consistent in their interpretation of the Establishment Clause as representing no power to the federal government and reserving the same to the states.").
167. Cf. Kurt T. Lash, Two Movements of a Constitutional Symphony: Akhil Reed Amar's The Bill of Rights, 33 U. RICH. L. REV. 485, 494 n. 39 (1999) [hereinafter Lash, Two Movements] ("Amar has made the Establishment Clause disappear by defining its core (prohibiting coercive establishments) as 'really' involving free exercise concerns.").
168. Lash, Establishment Clause, supra note 6, at 1142.
169. In addition to Lash, Establishment Clause, supra note 6
170. see Lash, Two Movements, supra note 130, at 492-98;
171. Kurt T. Lash, Beyond Incorporation, 18 J. CONTEMP. LEGAL ISSUES 447, 456-59 (2009) [hereinafter Lash, Beyond Incorporation].
172. See also Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. U. L. REV. 1106 (1994) [hereinafter Lash, Free Exercise] (making analogous arguments in relation to the Free Exercise Clause).
173. See, e.g., Aynes, Ink Blot or Not, supra note 6, at 1317-18 & nn. 118-19;
174. Greenawalt, Common Sense, supra note 6, at 508-09 & n. 122, 124;
175. Laycock, Theology Scholarships, supra note 6, at 242 & n. 549.
176. See Lash, Beyond Incorporation, supra note 134, at 458-59; see also Levy, supra note 19, at 148, 225 (asserting that the framers of the Fourteenth Amendment did not understand it to apply the Establishment Clause to the states, but defending its incorporation on textual grounds).
177. Elk Grove Unified Sch. Dist. v. Newdow, 542 U. S. 1, 51 (2004) (Thomas, J., concurring).
178. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L. J. 16, 30-58 (1913).
179. See David Kennedy, Wesley Hohfeld, in THE CANON OF AMERICAN LEGAL THOUGHT 47, 48 (David Kennedy & William W. Fisher III eds., 2006);
180. Walter Wheeler Cook, Hohfeld's Contribution to the Science of Law, 28 YALE L. J. 721, 727-28 (1919);
181. Arthur L. Corbin, Legal Analysis and Terminology, 29 YALE L. J. 163, 166 (1919);
182. See, e.g., Roscoe Pound, Fifty Years of Jurisprudence, 50 HARV. L. REV. 557, 571-76 (1937) (noting Hohfeld's indebtedness to the nineteenth-century positivists and criticizing the artificiality of some of his legal concepts and relations).
183. See JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 199 (1980) (explaining that Hohfeldian relations are actually "three-term[ed]", consisting of the two parties to the relation and some "act-description signifying some act").
184. Alan Ross Anderson, The Logic of Hohfeldian Propositions, 33 U. PITT. L. REV. 29, 31 (1971).
185. See PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 230 (1982);
186. THE FEDERALIST No. 9, at 51 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) ("The regular distribution of power into distinct departments... are means, and powerful means, by which the excellencies of republican government may be retained and its imperfections lessened or avoided.");
187. THE FEDERALIST No. 47, at 323 g (James Madison) (Jacob E. Cooke ed., 1961) ("Having reviewed the general form of the proposed government, and the general mass of power allotted to it: 1 proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts.");
188. THE FEDERALIST No. 51, at 351 (James Madison) (Jacob E. Cooke ed., 1961) ("[T]he power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments.").
189. ERNEST A. YOUNG, THE SUPREME COURT AND THE CONSTITUTIONAL STRUCTURE 621-22 (2012);
190. e.g., Dennis v. Higgins, 498 U. S. 439, 453 (1991) ("[T]he Commerce Clause is a structural provision allocating authority between federal and state sovereignties.") (Kennedy, J., dissenting).
191. See U. S. CONST, amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."); Tribe, supra note 82, § 2-1, at 119.
192. Compare U. S. CONST, art. I, § 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States....")
193. with Pennoyer v. Neff, 95 U. S. 714, 722 (1877) (holding that the states of the United States "possess and exercise the authority of independent States... except as restrained and limited" by the Constitution).
194. See, e.g., U. S. CONST., art. I, § 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed."); id. § 10 ("No State shall... pass any Bill of Attainder, ex post facto Law, or Law impairing the obligation of Contracts....");
195. see also Jay S. Bybee, Common Ground: Robert Jackson, Antonin Scalia, and a Power Theory of the First Amendment, 75 TUL. L. REV. 251, 314-15 (2000) [hereinafter Bybee, Common Ground] (summarizing the Constitution's "principal focus" as "the distribution of power within a new federal government, the relationship between the new federal government and existing state governments, and the withdrawal of power from federal and state governments").
196. See, e.g., J. M. Balkin, The Hohfeldian Approach to Law and Semiotics, 44 U. MIAMI L. REV. 1119, 1125-26 (1990);
197. Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N. Y. U. L. REV. 354, 392-93 (1999);
198. Bybee, Taking Liberties, supra note 127, at 1546-66;
199. Bybee, Common Ground, supra note 159, at 315-28;
200. I. Glenn Cohen, The Constitution and the Rights Not to Procreate, 60 STAN. L. REV. 1135, 1140 n. 8 (2008);
201. Richard H. Fallon, Jr., Individual Rights and the Powers of Government, 27 GA. L. REV. 343, 344 & n. 4 (1993);
202. Ronald R. Garet, Three Concepts of Church Autonomy, 2004 BYU L. REV. 1349, 1354-56, 1369-70;
203. Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U. PA. L. REV. 1033 (1968);
204. Ira C. Lupu & Robert W. Tuttle, Courts, Clergy, and Congregations: Disputes Between Religious Institutions and Their Leaders, 7 GEO. J. L. & PUB. POL'Y 119, 122 & n. 20, 135-37 (2009) [hereinafter Lupu & Tuttle, Religious Institutions];
205. Gregory E. Maggs, Innovation in Constitutional Law: The Right to Education and the Tricks of the Trade, 86 NW. U. L. REV. 1038, 1048-49 (1992);
206. William T. Mayton, "Buying-Up Speech": Active Government and the Terms of the First and Fourteenth Amendments, 3 WM. & MARY BILL RTS. J. 373, 373 (1994);
207. Simeon C. R. McIntosh, On Reading the Ninth Amendment: A Reply to Raoul Berger, 28 How. L. J. 913, 921-24 (1985);
208. H. Newcomb Morse, Applying the Hohfeld System to Constitutional Analysis, 9 WHITTIER L. REV. 639 (1988);
209. Allen Thomas O'Rourke, Refuge from a Jurisprudence of Doubt: Hohfeldian Analysis of Constitutional Law, 61 S. C. L. REV. 141 (2009);
210. Samuel C. Rickless, The Right to Privacy Unveiled, 44 SAN DIEGO L. REV. 773, 77-80 (2007);
211. Frederick Schauer, Hohfeld's First Amendment, 76 GEO. WASH. L. REV. 914 (2008);
212. Howard M. Wasserman, Jurisdiction, Merits, and Non-Extant Rights, 56 U. KAN. L. REV. 227, 232-34 (2008);
213. Gordon G. Young, Justifying Motive Analysis in Judicial Review, 17 WM. & MARY BILL RTS. J. 191, 256-57 (2008);
214. see also Sierra Club v. Morton, 405 U. S. 727, 732 n. 3 (1972) (citing Jaffe, supra).
215. Bybee, Common Ground, supra note 159, at 318-22;
216. Bybee, Taking Liberties, supra note 127, at 1547-50;
217. Lupu & Tuttle, Religious Institutions, supra note 160, at 122-23 & n. 20;
218. Hohfeld himself identified the Contracts Clause, "No State shall pass any Law impairing the Obligation of Contracts", U. S. CONST, art. I, §10, cl. 1 (ellipses omitted), as having created a disability/immunity relationship. See Hohfeld, supra note 146, at 57. This text disables the states from enacting legislation that alters or interferes with contractual obligations; parties to and beneficiaries of those obligations are correspondingly immune from legislation that purports to alter or interfere with their performance or enforcement.
219. E.g., Bond v. United States, 131 S. Ct. 2355, 2364 (2011) ("Federalism... protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions.");
220. New York v. United States, 505 U. S. 144, 181 (1992) ("[F]ederalism secures to citizens the liberties that derive from the diffusion of sovereign power.") (internal quotation marks omitted);
221. see also THE FEDERALIST No. 45, at 309 (James Madison) (deriding the idea that the Revolution was fought to restore the "dignities and attributes of [state] sovereignty" rather than to ensure personal "peace, liberty and safety");
222. MICHAEL STOKES PAULSEN, STEVEN G. CALABRESI, MICHAEL W. MCCONNELL & SAMUEL L. BRAY, THE CONSTITUTION OF THE UNITED STATES 45 (2010) ("The Constitution's structure-separation of powers, federalism-is designed in part to promote individual liberty, as well as effective, limited government.").
223. E.g., Bond, 131 S. Ct. at 2363-64 ("The individual, in a proper case, can assert injury from governmental action taken in excess of the authority that federalism defines. Her rights in this regard do not belong to a State.... [A]llocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.").
224. E.g., INS v Chadha, 462 U. S. 919, 935-36 (1983).
225. U. S. CONST, amend. I.
226. See, e.g., Agostini v. Felton, 521 U. S. 203, 243, 244 (1997) (explaining that the Establishment Clause's "flat ban on subsidization" of government by religion is a "structural and libertarian guarantee[]") (Souter, J., dissenting);
227. Lee v. Weisman, 505 U. S. 577, 589-90 (1992) (explaining that the Establishment Clause restricts government action even when the action does not interfere with minority free exercise);
228. Downes v. Bidwell, 182 U. S. 244, 294-98 (1901) (explaining that the Establishment Clause and the rest of the First Amendment constitute an absolute prohibition on congressional power to legislate);
229. Lamont v. Woods, 948 F.2d 825, 835 (2d Cir. 1991) ("[T]he basic structure of the Establishment Clause, which imposes a restriction on Congress, differs markedly from that of the Fourth Amendment, which confers a right on the people-[T]he constitutional prohibition against establishments of religion targets the competency of Congress to enact legislation of that description-irrespective of time or place.");
230. see also JOHN HART ELY, DEMOCRACY AND DISTRUS 94 (1980) ("[P]art of the point of combining these cross-cutting commands [of the Religion Clauses] was to make sure the church and the government gave each other breathing space: the provision thus performs a structural or separation of powers function. ");
231. REX E. LEE, A LAWYER LOOKS AT THE CONSTITUTION 129 (1981) ("The underlying concepts of the two religion guarantees are quite different. The free-exercise clause is analogous to other First Amendment provisions; its function is to secure free choice in religious matters against governmental intrusions", whereas "the establishment clause deals with structural matters."); Esbeck, supra note 4, at 6, 21 ("Remedies tailored to relieving plaintiffs of injuries actually suffered are indicative of an individual rights clause", whereas under the Establishment Clause, "courts have enjoined government from acting in an entire field of concerns deemed to be in the exclusive province of religion.... [F]rom its inception the Establishment Clause... had the role of a structural clause rather than a rights-based clause.");
232. Lupu & Tuttle, Religious Institutions, supra note 160, at 122-23 ("[T]he Constitution disables civil courts from resolving certain classes of questions. This is an adjudicative disability, not a right of autonomy, and it rest[s] on the Establishment Clause-"); Meier, supra note 4, at 164 ("[T]he [Supreme] Court has tended to view the [Establishment] Clause as more of a structural provision rather than as a clause protecting individual rights.");
233. Jessica Powley Hayden, Note, The Ties That Bind: The Constitution, Structural Restraints, and Government Action Overseas, 96 GEO. L. J. 237, 243 (2007) ("One of the [Establishment] Clause's central purposes was to manage federal power vis-à-vis the states.... Although the Religion Clauses, working in tandem, embody an individual right of religious freedom, the prohibition on establishment was meant to act as a prohibition on government action, not as a specific right held by the people.");
234. Note, Rethinking Incorporation, supra note 4, at 1710 (The Establishment Clause "is a structural limit upon federal power and a reservation of authority to the states.").
235. 182 U. S. 244 (1901).
236. U. S. CONST, art. I, § 8, cl. 1 ("[A]ll Duties, Imposts and Excises shall be uniform throughout the United States.").
237. Downes, 182 U. S. at 277 (emphasis in original).
238. (citing Chi., Rock Island & Pac. Ry. Co. v. McGlinn, 114 U. S. 542 (1885));
239. accord Thomas Jefferson, Resolutions Adopted by the Kentucky General Assembly, Res. Ill (Nov. 10, 1798), in 30 THE PAPERS OF THOMAS JEFFERSON: 1 JANUARY 1798 TO 31 JANUARY 1799, at 550, 550-51 (2003) (The First Amendment confirms that the Constitution afforded the federal government "no power" over the freedoms of religion, speech, or press, so that "libels, falsehoods, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the [Sedition Act] which does abridge the freedom of the press, is not law, but is altogether void and of no effect.").
240. E.g., Sherbert v. Vemer, 374 U. S. 398, 413 (1963) (Stewart, J., concurring) ("[N]o liberty is more essential to the continued vitality of the free society which our Constitution guarantees than is the religious liberty protected by the Free Exercise Clause explicit in the First Amendment and imbedded in the Fourteenth.");
241. Near v. Minnesota, 283 U. S. 697, 707 (1931) ("It is no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. It was found impossible to conclude that this essential personal liberty of the citizen was left unprotected by the general guaranty of fundamental rights of person and property.");
242. Gitlow v. New York, 268 U. S. 652, 666 (1925) ("For present purposes we may and do assume that freedom of speech and of the press... are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States."); Lee, supra note 166, at 129 ("[F]ree-exercise problems arise in the standard First Amendment individual-rights context.").
243. See, e.g., Lamont v. Woods, 948 F.2d 825, 835 (2d Cir. 1991) (Downes "suggested that the constitutional prohibition against establishments of religion targets the competency of Congress to enact legislation of that
244. See, e.g., Lee v. Weisman, 505 U. S. 577, 596 (1992) (holding that Establishment Clause violations may not be balanced against majoritarian preferences);
245. Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1266 (10th Cir. 2008) (opinion by McConnell, J.) (holding that all Establishment Clause violations except those involving religious discrimination are "flatly forbidden without reference to the strength of governmental purposes"); Esbeck, supra note 4, at 2-3 ("For government to avoid violating a right is a matter of constitutional duty owed to each individual within its jurisdiction. On the other hand, for government to avoid exceeding a structural restraint is a matter of limiting its activities and laws to the scope of its powers.");
246. Lupu & Tuttle, Religious Institutions, supra note 160, at 129 ("[A]n Establishment Clause-anchored doctrine of ministerial exemption... would admit of no interest-balancing whatsoever...."); see also Lee, supra note 166, at 129 (Unlike Establishment Clause doctrine, free exercise doctrine "balanc[es] governmental interests against individual interests.").
247. See, e.g., Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447, 455 (9th Cir. 1994) (holding that majority student vote to allow graduation prayer could not waive constitutional limitations imposed by Establishment Clause)
248. vacated as moot, 515 U. S. 1154 (1995);
249. EEOC v. Catholic Univ. of Am., 856 F. Supp. 1, 12-13 (D. D. C. 1994) (holding sua sponte that court lacked jurisdiction under Establishment Clause to adjudicate theological questions despite failure of either party to raise issue)
250. ajf' d, 83 F.3d 455 (D. C. Cir. 1996);
251. Johnson v. Sanders, 319 F. Supp. 421, 432 n. 32 (D. Conn. 1970) ("The Establishment Clause is the guardian of the interests of society as a whole and is particularly invested with the rights of minorities. It cannot be 'waived' by individuals or institutions, any more than the unconstitutionality of state-prescribed school prayers could be 'waived' by certain pupils absenting themselves from the classroom while they were conducted.")
252. aff'd mem., 403 U. S. 955 (1971);
253. Lupu & Tuttle, Religious Institutions, supra note 160, at 135-36, 146 ("[Establishment Clause limitations] cannot be waived or conferred by consent of the parties-For example, even if all of the parents in a public school district agreed to permit official prayers in the schools, the practice would still violate the Establishment Clause-Similarly, a congregation's waiver of the ministerial exception should not vest a court with jurisdiction to decide on the quality of a minister's job performance.");
254. Laurence H. Tribe, The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence, 99 HARV. L. REV. 330, 333 n. 14 (1985) ("[The Establishment Clause] gives rise to rights that are clearly not subject to waiver or alienation by any individual-certainly not by a recipient of government aid to religion, or by a citizentaxpayer who is the source of such aid. Thus it is plain that a church or church-related school could not, for example, 'waive' the right to avoid intrusive governmental entanglement in order to receive direct monetary aid from the public treasury.");
255. Kimberly A. Yuracko, Education Off the Grid: Constitutional Constraints on Homeschooling, 96 CALIF. L. REV.
256. But see Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Home, 698 F.3d 1295, 1301-02 (10th Cir. 2012) (upholding laches defense to Establishment Clause claim and vacating lower court determination that structural limits set by the Clause were not subject to waiver).
257. See Serbian E. Orthodox Diocese for the U. S. & Can. v. Milivojevich, 426 U. S. 696, 713-14 (1976) (explaining that courts may "exercise no jurisdiction" over a "subject matter" involving "theological controversy, church discipline, ecclesiastical govemment, or the conformity of the members of the church to the standard of morals required of them.")
258. (quoting Watson v. Jones, 80 U. S. (13 Wall.) 679, 733-34 (1871) (emphasis omitted));
259. accord Dowd v. Soc'y of St. Columbans, 861 F.2d 761, 764 (1st Cir. 1988);
260. Catholic Univ., 856 F. Supp. at 12-13;
261. Downs v. Roman Catholic Archbishop, 683 A.2d 808, 811 (Md. Ct. App. 1996);
262. Gaydos v. Blaeuer, 81 S. W.3d 186, 192-93 (Mo. Ct. App. 2002);
263. Cha v. Korean Presbyterian Church, 553 S. E.2d 511, 514-15 (Va. 2001);
264. Pritzlaff v. Archdiocese, 533 N. W.2d 780, 790 (Wis. 1995);
265. Frederick Mark Gedicks, Narrative Pluralism and Doctrinal Incoherence in Hosanna-Tabor, 64 MERCER L. REV. 405 (2013);
266. Lupu & Tuttle, Religious Institutions, supra note 160, at 135. The Court had traditionally rested this limitation on the First Amendment generally rather than in the Religion Clauses or the Establishment Clause alone, perhaps to preserve the freedom of association implicit in the Speech Clause as part of the exception's doctrinal foundation. In Hosanna-Tabor, however, the Court expressly rejected the freedom of association as a basis for the ministerial exception, instead resting the exception on a religious group right to church autonomy under the Free Exercise Clause and on a structural disability on theological entanglement under the Establishment Clause.
267. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 704-07 (2012).
268. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U. S. 520 (1993) (holding that state action targeting a particular religion may be upheld if narrowly tailored to a compelling government interest).
269. E.g., Akhil Reed Amar, The Bill of Rights As a Constitution, 100 YALE L. J. 1131, 1158 (1991);
270. see also SMITH, FOREORDAINED FAILURE, supra note 4, at 18 ("[The Religion Clauses were] simply an assignment of jurisdiction over matters of religion to the states-no more, no less.").
271. Compare U. S. CONST, amend. I ("Congress shall make no law respecting an establishment of religion"), with id. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.").
272. Cf. GREENAWALT, RELIGION, supra note 6, at 29 (arguing that the Establishment Clause was originally understood to have deprived the federal government not only of jurisdiction over state establishment or disestablishment of religion, but also to have imposed a substantive prohibition against establishing a national church);
273. Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484, 1505-06 (1987) [hereinafter McConnell, Federalism] (book review) (same);
274. see also ELLIS M. WEST, THE RELIGION CLAUSES OF THE FIRST AMENDMENT 22 (2011) ("[A] constitutional provision may deny a government jurisdiction over a certain subject/domain for two entirely different reasons-to protect states' rights or to protect a natural right...." (emphasis in original));
275. See JOHN WITTE, JR. & JOEL A. NICHOLS, RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT 89 (3d ed. 2010);
276. Green, A Reassessment, supra note 111, at 767-68;
277. Greenawalt, Common Sense, supra note 6, at 488, 491;
278. Lash, Establishment Clause, supra note 6, at 1088-89;
279. McConnell, Federalism, supra note 180, at 1506.
280. SMITH, FOREORDAINED FAILURE, supra note 4, at 23;
281. Steven D. Smith, The Jurisdictional Establishment Clause: A Reappraisal, 81 NOTRE DAME L. REV. 1843, 1871 (2006) [hereinafter Smith, Jurisdictional Establishment Clause];
282. Note, Rethinking Incorporation, supra note 4, at 1707;
283. See, e.g., CHESTER JAMES ANTIEAU, ARTHUR T. DOWNEY & EDWARD C. ROBERTS, FREEDOM FROM FEDERAL ESTABLISHMENT 1-2, 4-20, 24-29 (1964);
284. Lupu & Tuttle, Federalism & Faith, supra note 28, at 27;
285. Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2131, 2144-46, 2159-76 (2003) [hereinafter McConnell, Establishment].
286. Lupu & Tuttle, Federalism & Faith, supra note 28, at 27;
287. McConnell, Establishment, supra note 186, at 2131, 2146-59.
288. See, e.g., Lupu & Tuttle, Federalism & Faith, supra note 28, at 27;
289. McConnell, Establishment, supra note 186, at 2131-44.
290. See Greenawalt, Common Sense, supra note 6;
291. Smith, Jurisdictional Establishment Clause, supra note 182;
292. see also WEST, supra note 180, at 2-3, 29-36 (criticizing Smith on similar grounds). Greenawalt shows how a substantive reading of the Clause would have prohibited Congress from establishing but not disestablishing religion in federal enclaves such as U. S. territories, the District of Columbia, or U. S. military camps or forts, whereas a jurisdictional limitation would have prohibited both establishment and disestablishment by Congress in such enclaves.
293. Greenawalt, Common Sense, supra note 6, at 481-86. As Greenawalt suggests, it seems unlikely that the Framers who drafted the Establishment Clause or the public that ratified it intended to prevent the federal government from disestablishing religion in such enclaves. Id. at 498-99. Professor Smith attempts to salvage the jurisdictional reading by characterizing it as "two-way" in the states-that is, Congress was disabled from interfering with state decisions to establish or to disestablish religion in the states-but only "one-way" in federal enclaves-that is, Congress was disabled from establishing religion in such enclaves, but not from disestablishing it, should the need to do so have ever arisen. Smith, Jurisdictional Establishment Clause, supra note 182, at 1851-53. This Article assumes that the Establishment Clause originally prevented the federal government from establishing a national religion. Whether this is a substantive prohibition or a one-way jurisdictional limitation is immaterial.
294. SMITH, FOREORDAINED FAILURE, supra note 4, at 24 ("[I]t seems nonsensical or incoherent to suggest that a provision representing 'essential federalism' has [a] substantive content that can be 'extended' to the states.")
295. Note, Rethinking Incorporation, supra note 4, at 1709 ("As originally understood, the Establishment Clause prevented the federal government from interfering with state authority over religion. However, incorporation achieves the opposite result-the elimination of such authority.").
296. Ex parte Virginia, 100 U. S. 339, 345 (1880);
297. see also CURTIS, THE BILL OF RIGHTS, supra note 20, at 54 ("[M]any Republicans wanted personal liberty and personal rights placed in the keeping of the nation and protected from local legislation. ").
298. U. S. CONST. amend. XIV, § 1 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law....").
299. (quoting Arthur E. Sutherland, Jr., Establishment According to Engel, 76 HARV. L. REV. 25, 41 (1962))
300. see also MARK DEWOLFE HOWE, THE GARDEN AND THE WILDERNESS: RELIGION AND GOVERNMENT IN AMERICAN CONSTITUTIONAL HISTORY 72-73 (1965) ("[I]t seems to me extraordinarily difficult to take seriously the suggestion that the framers and the ratifiers of the Fourteenth Amendment believed that its adoption was going to have a significant effect upon the country's religious institutions.... [I]t is not easy to see how... laws of the state which, although they may respect an establishment, do not deny liberty can be made into unconstitutional deprivations of liberty.").
301. Elk Grove Unified Sch. Dist. v. Newdow, 542 U. S. 1, 50-51 (2004) (Thomas, J., concurring in the judgment)
302. See Duncan v. Louisiana, 391 U. S. 145, 148-49 & n. 14 (1968).
303. U. S. Const, amend. XIV, § 1.
304. Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975, 988;
305. Though the presumption may be rebutted: The absence of government power sometimes enables private exploitation of persons whom government has an obligation to protect. See, e.g., Elizabeth M. Schneider, The Violence of Privacy, 23 CONN. L. REV. 973, 973-74 (1991).
306. U. S. Const, amend. XIV, § 1.
307. Cf. Lash, Establishment Clause, supra note 6, at 1130 (arguing that various Reconstruction-era controversies reflected an evolved understanding of the Establishment Clause "that stood for personal 'immunity' from state establishment of religion");
308. Lash, Beyond Incorporation, supra note 134, at 458 (arguing that by the 1860s anti-establishment norms had evolved into privileges or immunities of citizenship). While I agree with Professor Lash's contention that the Establishment Clause entailed this personal immunity at the time the Fourteenth Amendment was ratified, I contend that it was part of the original understanding of the Clause, and not the result of interpretative evolution. See supra Part II. B.l.
309. Compare "disability" in BLACK'S LAW DICTIONARY 528 (9th ed. 2009) (defining disability as "inability to perform some function", especially "the inability of one person to alter a given relation with another person"), with "immunity" in id. at 817-18 (defining immunity as "exemption from a duty, liability, or service of process");
310. compare "disability", IV OXFORD ENGLISH DICTIONARY 713 (2d ed. 1989) ("Want of ability (to discharge any office or function); inability, incapacity, impotence."), with "immunity", VII id. at 691 ("Exemption from a service, obligation, or duty", including "freedom from liability to taxation, jurisdiction, etc." and a "privilege granted to an individual or a corporation conferring exemption from certain taxes, burdens, or duties."). The argument here is purely textual and does not depend on whether the contemporary meanings of "disability" and "immunity" coincide with their mid-nineteenth century meanings.
311. Cf. Curtis, Historical Linguistics, supra note 50, at 1098-131 (developing pro-incorporation argument based upon original meanings of "privilege" and "immunity"). This Article sketches a historical argument for Establishment Clause incorporation infra Part III.
312. See Richard L. Aynes, Enforcing the Bill of Rights Against the States: The History and the Future, 18 J. CONTEMP. LEGAL ISSUES 77, 81-85 (2009) [hereinafter Aynes, Enforcing the Bill of Rights]
313. E.g., 4 CONG. REC. 5585 (1876) (remarks of Sen. Oliver Morton (R-IN)) (arguing that in light of the virtual destruction of the Fourteenth Amendment by judicial construction, the provisions of the Blaine Amendment should be "so specific and so strong that they cannot be construed away and destroyed by courts").
314. E.g., MICHAEL KENT CURTIS, FREE SPEECH: "THE PEOPLE'S DARLING PRIVILEGe" (2000) [hereinafter CURTIS, FREEDOM OF SPEECH] (documenting extensive violations of freedom of speech in the North and South during antebellum, Civil War, and Reconstruction eras);
315. Kurt T. Lash, The Constitutional Referendum of 1866: Andrew Johnson and the Original Meaning of the Privileges or Immunities Clause 50-56 (University of Illinois College of Law, Working Paper, 2012) [hereinafter Lash, Referendum of 1866], available at http://ssm.com/abstract=21253 (53.
316. See generally Curtis, THE BILL OF RIGHTS, supra note 20, at 28-56.
317. See Barron v. Baltimore, 32 U. S. (7 Pet.) 243 (1833). However, many state supreme courts adopted Bill of Rights norms as a matter of general law despite their not binding the states as a matter of federal constitutional law.
318. See generally Jason Mazzone, The Bill of Rights in Early State Courts, 92 MINN. L. REV. 1 (2007).
319. See MARK NOLL, THE CIVIL WAR AS A THEOLOGICAL CRISIS (2006);
320. see, e.g., LINDA PRZYBYSZEWSKI, RELIGION, MORALITY, AND THE CONSTITUTIONAL ORDER 17 (2011) ("The dispute over the morality of slavery as a legal institution was rooted in opposing visions of the natural rights and natural capacities of African Americans.");
321. DAVID SEHAT, THE MYTH OF AMERICAN RELIGIOUS FREEDOM 76 (2011) ("Northern establishmentarians began to question slavery, and Southern establishmentarians began to see it as a linchpin to a moral society.").
322. see also CLEMENT EATON, THE FREEDOM OF THOUGHT IN THE OLD SOUTH 292-93 (1951) (describing how Christian clerics in the antebellum South formulated "a plausible defense of slavery" by use of a "narrow and literal interpretation of the Scriptures").
323. Aynes, Ink Blot or Not, supra note 6, at 1317;
324. Aynes, Ink Blot or Not, supra note 6, at 1317 (noting that antebellum slave-holding states tightly regulated "the content of religious doctrine presented to parishioners");
325. cf. Richard Albert, Beyond the Conventional Establishment Clause Narrative, 28 SEATTLE U. L. REV. 329, 356-63 (2005) (describing Frederick Douglass's view that proslavery ideology corrupted American Evangelical Christianity in the slave-holding states).
326. DANIEL WALKER HOWE, WHAT HATH GOD WROUGHT: THE TRANSFORMATION OF AMERICA, 1815-1848, at 163 (2007) (noting that the Vesey slave-rebellion conspiracy generated "tighter security measures", including "stricter limitations on black religious gatherings");
327. Lash, Establishment Clause, supra note 6, at 1137-39 (noting that "[b]lack religious assemblies were heavily regulated; slaves were not permitted their own ministers, nor could they worship without the presence of a white man");
328. Lash, Free Exercise, supra note 134, at 1133-34 (What emerged in the slave-holding states after the Nat Turner rebellion "was a complex and highly regulated system of religious exercise.");
329. see also ERIC FONER, RECONSTRUCTION 78-79, 88 (1988) (The end of slavery also brought an end to "white supervision" of black churches.)
330. JOHN PATRICK DALY, WHEN SLAVERY WAS CALLED FREEDOM: EVANGELICALISM, PROSLAVERY, AND THE CAUSES OF THE CIVIL WAR 2, 3 (2002) (Southerners believed that "slavery had arisen in keeping with the 'genius of the age.'");
331. PRZYBYSZEWSKI, supra note 220, at 18 ("Defenders of the southern laws of slavery... [argued] that God approved of the peculiar institution as a benefit to the inferior African race.")
332. Lash, Establishment Clause, supra note 6, at 1137;
333. E.g., Joint Comm, on Reconstr., 39th Cong., 1st Sess., Rep. No. 30 (Va., N. C., S. C.), at 52-53 (1866) (testimony regarding refusal of postwar Virginia county to license black minister to perform marriages); id. (Fla., La., Tex.), at 79 (testimony regarding refusal of postwar New Orleans police to allow black church meetings after 9:00 p. m.); see Daly, supra note 226, at 152 ("Proslavery ideology lived on in a world without slavery, much as the defense of the Confederate cause went on in a world without a Confederacy.")
334. PRZYBYSZEWSKI, supra note 220, at 19 ("Military defeat did not discourage white southerners from identifying white supremacy with the divine order.")
335. See Aynes, Ink Blot or Not, supra note 6, at 1317;
336. Lash, Establishment Clause, supra note 6, at 1089;
337. Lash, Free Exercise, supra note 134, at 1133-34.
338. CONG. GLOBE, 38th Cong., 1st Sess. 1202-03 (1864).
339. Lash, Establishment Clause, supra note 6, at 1140 (noting the "common (modem) tendency" of viewing the Establishment Clause as a constitutional prohibition on government support for religion, and the Free Exercise Clause as the source of protection of religious worship).
340. See Lash, Two Movements, supra note 130, at 495 ("Even when Reconstruction Republicans did not quote the Establishment Clause, they often used words or phrases that arguably could include both the Free Exercise and Establishment Clauses.").
341. See Aynes, Ink Blot or Not, supra note 6, at 1318
342. (quoting Eloquent Speech of John A. Bingham, THE CADIZ REPUBLICAN, Aug. 15, 1866, at 2 (reporting Bingham's nomination address for the Cincinnati Gazette)).
343. CONG. GLOBE, 39th Cong., 1st Sess. app. 1, 5 (1866) ("Here religion, released from political connection with the civil government, refuses to subserve the craft of the statesman, and becomes, in its independence, the spiritual life of the people.").
344. But see Lash, Referendum of 1866, supra note 218, at 5 (noting that Johnson opposed ratification of the Fourteenth Amendment).
345. See, e.g., CONG. GLOBE, 39th Cong., 1st Sess. 158 (1866) (Rep. Bingham, referring to the Fourteenth Amendment as a protection for "equal personal rights" including "freedom of conscience"); id. at 237 (Rep. John Kasson (R-IA), speaking of the right of suffrage as a "natural right" protected by the Fourteenth Amendment, like "personal liberty" and "the right of exercising personal conscience").
346. See James Madison, Memorial and Remonstrance Against Religious Assessments, in 8 THE PAPERS OF JAMES MADISON 295, 298-304 (Robert A. Rutland, William M. E. Rachal, Barbara D. Ripel & Fredrika J. Teute eds., 1973) (June 20, 1785).
347. See Lash, Establishment Clause, supra note 6, at 1141.
348. See, e.g., RAOUL BERGER, GOVERNMENT BY JUDICIARY 134-56 (1979) (arguing that the Fourteenth Amendment was not understood to have applied any portion of the Bill of Rights to the states); Nelson, supra note 123, at 117-19 (arguing that the Amendment was understood only to require equality of and due process in enforcement of fundamental and other rights the people enjoy under state law).
349. This was Fairman's conclusion. See Fairman, supra note 67, at 139; see also EARL MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS 117-18 (1990);
350. JACOBUS TENBROEK, THE ANTISLAVERY ORIGINS OF THE FOURTEENTH AMENDMENT 223 (1951).
351. See William Winslow Crosskey, Charles Fairman, "Legislative History", and the Constitutional Limitations on State Authority, 22 U. CHI. L. REV. 1 (1954);
352. See, e.g., Amar, supra note 4; CURTIS, FREEDOM OF SPEECH, supra note 218; Maltz, supra note 249;
353. Aynes, Enforcing the Bill of Rights, supra note 211;
354. Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L. J. 57 (1993)
355. [hereinafter Aynes, John Bingham]
356. Michael Kent Curtis, The Bill of Rights and the States: An Overview from One Perspective, 18 J. CONTEMP. LEGAL Issues 3, 4-11 (2009);
357. James Jay Ward, The Original Public Understanding of Privileges or Immunities, 2011 B YU L. REV. 445;
358. Wildenthal, Nationalizing the Bill of Rights, supra note 20;
359. Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 OHIO ST. L. J. 1051 (2000).
360. See, e.g., Maltz, supra note 249, at 117-18 (stating that although the Fourteenth Amendment's application of the Bill of Rights is "not proven beyond a reasonable doubt[,]... one can only conclude that contemporaries must have understood the privileges and immunities clause to embody most of the Bill of Rights, and they probably viewed the first eight amendments as incorporated in their entirety"); Aynes, John Bingham, supra note 251, at 103 (stating that "Bingham's view that the Privileges or Immunities Clause of the Fourteenth Amendment applies the Bill of Rights to the states" was shared by "[m]any of his contemporaries", including "three highly-regarded legal treatise writers");
361. Aynes, Ink Blot or Not, supra note 6, at 1309 ("Though the full extent of the contours of the [Privileges or Immunities] Clause is subject to interpretation, there should be no controversy that, at the core, these provisions included the Bill of Rights.");
362. Wildenthal, Nationalizing the Bill of Rights, supra note 20, at 1626 (concluding that evidence from 1886-67 "seems sufficient to support the inference that it nationalized the Bill of Rights.").
363. See, e.g., PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATES 434-76 (2002)
364. See generally Wildenthal, Nationalizing the Bill of Rights, supra note 20, at 1520-25 (surveying anti-incorporation views of contemporary scholars).
365. Wildenthal, Nationalizing the Bill of Rights, supra note 20, at 1532.
366. CONG. GLOBE, 39TH CONG., 1st Sess. 1034 (1866) ("The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States [Art. 4, Sec. 2], and to all persons in the several States equal protection in the rights of life, liberty, and property [5th Amendment].").
367. See, e.g., CURTIS, THE BILL OF RIGHTS, supra note 20, at 51-52;
368. Alfred Avins, Incorporation of the Bill of Rights: The Crosskey-Fairman Debates Revisited, 6 HARV. J. ON LEGIS. 1, 5-6, 10-11 (1968);
369. Aynes, John Bingham, supra note 251, at 74, 78-80.
370. CURTIS, THE BILL OF RIGHTS, supra note 20, at 61-64; Maltz, supra note 249, at 115;
371. Aynes, John Bingham, supra note 251, at 74-75;
372. Randy E. Barnett, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, 3 J. LEGAL ANALLYSIS 165, 248-50 (2011);
373. Wildenthal, Nationalizing the Bill of Rights, supra note 20, at 1569.
374. CONG. GLOBE, 39th Cong., 1st Sess. 1034 (1866);
375. AYNES, ENFORCING THE BILL OF RIGHTS, supra note 211, at 86 ("This was simply a proposition to arm the Congress of the United States... with power to enforce the Bill of Rights as it stood in the Constitution. ")
376. (quoting Washington News, N. Y. TIMES, Mar. 1, 1866, at 5);
377. Aynes, John Bingham, supra note 251, at 67;
378. Wildenthal, Nationalizing the Bill of Rights, supra note 20, at 1539.
379. CONG. GLOBE, 39th Cong., 1st Sess. 1089-91 (1866)
380. (referring to Barron v. Baltimore, 35 U. S. 243 (1833)
381. and Lessee of Livingston v. Moore, 32 U. S. 469 (1833));
382. see also Maltz, supra note 249, at 115; Wildenthal, Nationalizing the Bill of Rights, supra note 20, at 1540-41.
383. CONG. GLOBE, 39th Cong., 1st Sess. 2542 (1866) ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person with the jurisdiction of the equal protection of the laws."). Another provision gave Congress power to enforce the rights guaranteed by this language. Curtis, The Bill of Rights, supra note 20, at 85.
384. See CONG. GLOBE, 39th Cong., 1st Sess. 2542 (1866) (arguing that the Amendment would halt violations of the Eighth Amendment that were then common among the states).
385. CONG. GLOBE, 39th Cong., 2d Sess. 811 (1867) (arguing that the Amendment would empower Congress to enforce "all the limitations for personal protection of every article and section of the Constitution").
386. See Wildenthal, Nationalizing the Bill of Rights, supra note 20, at 1532.
387. 6 F. Cas. 546, 551-52 (C. C. E. D. Pa. 1823).
388. CONG. GLOBE, 39th Cong., 1st Sess. 2765-66 (1866). Howard introduced this enumeration with the phrase "such as" and thus expressly framed it as nonexhaustive.
389. See Wildenthal, Nationalizing the Bill of Rights, supra note 20, at 1561. It is thus of no moment that he did not expressly cite either of the Religion Clauses.
390. Wildenthal, Nationalizing the Bill of Rights, supra note 20, at 1568, 1583-84 & n. 248.
391. Lash, Referendum of1866, supra note 218, at 16, 26, 32.
392. CONG. GLOBE, 42d Cong, 1st Sess. app. 84 (1871). [T]hat the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows: [Exact recitation of Amendments I through VIII.] Id.
393. 2 CONG. REC. app. 233, 242 (1874). All issues of the Congressional Record are available at http://memory.loc.gov/ammem/amlaw/lwcrlink. html nchor42.
394. Aynes, Enforcing the Bill of Rights, supra note 211, at 98-99 & n. 115.
395. with Watson v. Jones, 80 U. S. (13 Wall.) 679 (1871).
396. +See e.g., DR. ORLY TAITZ, ESQUIRE, http://www.orlytaitzesq.com (arguing that President Obama is not a natural-born citizen);
397. The Lack of Natural Born Citizen Status of Barack Hussein Obama, II, THE BIRTHERS, http://www.birthers.org (same).
398. See JOHN KENNETH GALBRAITH, THE AFFLUENT SOCIETY 9 (1958).