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The relevant time frame to best understand the Establishment Clause for state religion cases should be 1868, not 1791.
Unlike many other areas of constitutional law, the Supreme Court’s approach to the Establishment Clause has always focused on history. Yet, jurists on the left and right often disagree about which history is dispositive. Liberal Justices often rely on Thomas Jefferson’s private letter to the Danbury Baptists to argue that the Constitution requires a wall of separation between church and state. By contrast, conservative Justices look to practices from the Washington Administration and the First Congress, which promoted a strong role for religion in civil society. Somewhere in the middle is James Madison’s famous Memorial and Remonstrance, which opposed a proposed tax to fund religious schools. Both sides cite this document as support for their positions.
Perhaps it makes sense to focus on history from the late eighteenth and early nineteenth centuries when interpreting the Establishment Clause as applied to the federal government. However, a different analysis is needed for applying it to the states. Justice Clarence Thomas has long argued that the Establishment Clause is a federalism provision that cannot be incorporated. While I agree with Justice Thomas, no other Justices have joined him. Yet, even for the rest of the Court, there is an originalism problem: the relevant time frame to best understand the Establishment Clause for state religion cases should be 1868, not 1791.
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Josh Blackman is an adjunct fellow at the Manhattan Institute.