Lash on the Establishment Clause

Kurt T. Lash (Loyola Law School Los Angeles) has posted The Second Adoption of the Establishment Clause: The Rise of the Non-Establishment Principle (Arizona State Law Journal, Vol. 27, No. 1085, 1995) on SSRN. Here is the abstract:

In the 70 years since Gitlow first incorporated the First Amendment protections of speech and press against the states, the Establishment Clause has been a boon to incorporation's enemies and an embarrassment to its friends. Scholars who make the historical case for general incorporation either ignore, or carefully distinguish, the case of the Establishment Clause. Anti-incorporationists, on the other hand, use the case against incorporation of the Establishment Clause as their cause celebre. In fact, so wonderfully ambiguous is the history surrounding this opening line of the Bill of Rights that originalists use it to attack incorporation, and nonoriginalists use it to attack originalism. For example, at the time of the Founding, the vast majority of state governments supported and encouraged religious exercise in one form or another. Originalists cite this state of affairs as evidence that the Establishment Clause could not have been intended to apply against the states. Nonoriginalists, on the other hand, cite the sheer variety of the Founders' views regarding religious establishments as the primary example of why the search for a single "original intent" is fundamentally flawed.

These conflicting approaches are linked by a common assumption: The historical period surrounding the adoption of the original Establishment Clause is directly relevant to determining the intent behind the incorporated Establishment Clause. Such an assumption, however, places the Founding cart before the Incorporation horse. Incorporation 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 left to state discretion is now restricted by the Fourteenth Amendment. But if the people changed their mind about the role of federalism in the promotion of individual liberty, perhaps they also changed their mind about the role of the Establishment Clause. In fact, we are not the first generation since Madison wrote his Memorial and Remonstrance to question the melding of the scepter and the cross. Obscured in the search for the Founders' intent are the subsequent struggles over the meaning and value of the Establishment Clause. In the years following the adoption of the Bill of Rights, state after state grappled with the issue of civil power over the subject of religion. Slowly, through a long series of cases and controversies, the idea evolved that citizens ought to be free from government-imposed religious establishments.

This important paper is now available on SSRN for the first time.  It's primary focus is on the establishment clause, but it provides important theoretical discussion of the originalist theory in the context of incorporation.  Highly recommended!