From Opportunity to Right: Constitutional Change and the Establishment Clause

In Living Originalism, Jack Balkin encourages us to consider the Constitution as a ―framework, a solid base upon which generations of Americans build up and out to create a structure whose façade the Framers might hardly recognize, but whose foundation should always remain familiar. Sometimes—as during the New Deal—entire floors of the building are renovated overnight. Other parts take decades to create; Americans of one era think they can envision the finished structure, yet their successors tear it down or build in another direction, public opinion having shifted to favor a different plan altogether. An important example of the latter mode of construction involves the issue of government-imposed religious establishments. As several scholars have suggested, Americans‘ interpretation of the First Amendment‘s Establishment Clause experienced a remarkable transformation in the eighty years between the framings of the First and Fourteenth Amendments. Examining state constitutions‘ establishment clauses and their interpretations by state courts—important sources heretofore largely ignored in this discussion—this Note reinforces this story of change. As I will argue, these documents show that in 1789, lawmakers and courts saw state religious establishments as consistent with personal religious freedom; whether to establish religion—in the most basic sense, to devote government money to churches—was simply a choice to be made by legislatures. By Reconstruction, however, Americans had come to understand the values embodied by the Clause differently. Proscribing religious establishments by means of state constitutional provisions, many nineteenth-century Americans believed religious establishments necessarily violated a treasured individual right—just the sort of freedom the Fourteenth Amendment forbade states to infringe