How the Constitutions of the Thirty-Seven States in Effect When the Fourteenth Amendment Was Adopted Demonstrate That the Governmental Endorsement Test in Establishment Clause Jurisprudence Is Contrary to American History and Tradition

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I. INTRODUCTION

"The Establishment Clause was first incorporated and applied to the states as a matter of substantive due process in Everson v. Board of Education in 1947."1 Incorporation of the Establishment Clause gives rise to serious conceptual questions for textualists and originalists. First, the text "Congress shall make no law respecting an establishment of religion"2 is expressly directed against Congress in a way, and to a degree, unique in the Bill of Rights. This is so because, as a matter of original intent, the Establishment Clause was supposed to protect states against disestablishment, among other things.3 Professor Lash, in our estimation, has responded to those questions by noting that the "[i]ncorporation doctrine assumes that, at some point, the people changed their collective mind about the role of federalism in the protection of individual liberties; what was once leftto state discretion is now restricted by the Fourteenth Amendment."4

The time and occasion for this collective change of mind is reasonably well established. As a matter of history, Justice Thomas had the better side of the argument in McDonald v. City of Chicago when he maintained that the Privileges and Immunities Clause of the Fourteenth Amendment was intended to protect fundamental rights against state infringement and that the rights deemed fundamental included the first eight amendments.5 This would mean that Justice Black was also broadly correct in Adamson v. California,6 and that Frankfurter,7 and his supporter Professor Charles Fairman,8 were wrong.9 However, the Court decided otherwise in the Slaughter-House Cases10 and made it clear in McDonald v. City of Chicago11 that it is not disposed to reconsider that decision. This means that incorporation of the Establishment Clause under Due Process Clause analysis was correct only if nonestablishment was a right fundamental to the nation's sense of ordered liberty12 and was "deeply rooted in this Nation's history and tradition."13

No one doubts that free exercise is such a right. Some, however, have asserted that nonestablishment interests cannot be coherently regarded as a personal right.14 This overlooks the crucial historical fact that certain sects, including the Baptists, regarded nonestablishment as an aspect of free exercise.15 William Tennent, a South Carolina Presbyterian and advocate of equal rights on behalf of a coalition of dissenting groups, clearly articulated this thought, saying: "My first, and most capital reason, against all religious establishments is, that they are an infringement of Religious Liberty."16 The principles of nonestablishment for which the evangelical dissenters pressed were freedom from religious coercion, equality of treatment, no public financial support of churches, and no jurisdiction over church governance.17 For the Bill of Rights to exist in its current form, James Madison had to defeat James Monroe and be elected to the First Congress, and to do that he needed Baptist support.18

Because nonestablishment was historically regarded as an individual right in sectarian quarters,19 it is perfectly coherent to follow the lead of Calabresi and Agudo and look to the state constitutions as they stood in 1868 to determine whether nonestablishment interests were also deeply rooted in American history and tradition by that time. 20 Because Calabresi and Agudo have already correctly answered that question in the affirmative,21 the focus of this article is on two follow-up questions: (1) what were the nonestablishment principles that were understood as fundamental, and (2) what effect does that understanding have on the governmental endorsement test from an originalist viewpoint?

II. THE PRESENT STATUS OF THE GOVERNMENTAL ENDORSEMENT TEST

The governmental endorsement test was first proposed by Justice O'Connor in her concurrence in Lynch v. Donnelly22 as "an analytical device" that supposedly "clarifies" the three-part test found in Lemon v. …