by Frederick Gedicks, Guy Anderson Chair and Professor in Law, Brigham Young University Law School
The recent case of Town of Greece v. Galloway saw Justice Clarence Thomas once again astride a favorite hobby horse, the benighted notion that both logic and text should have precluded the application of the Establishment Clause against the states. As in his many other forays into this field, Thomas concedes that the Clause (“probably”) prohibits a federally established church, but he otherwise reads the Clause as entirely devoted to the protection of state sovereignty—specifically, state power to establish or disestablish religion. Like the 10th Amendment, Thomas maintains, the Establishment Clause was meant to protect the states and thus is rendered absurd when applied to limit state power. Thomas relies on this purported absurdity to excuse himself from any serious engagement of the historical record, unilaterally shifting the burden of historical proof to incorporationists. As I have shown elsewhere in detail, all of this is demonstrably wrong.
It is puzzling that such an ardent champion of federalism as Justice Thomas should fail to grasp that the Establishment Clause, like the Constitution’s other structural limitations on the federal government, was originally understood to protect individual liberty as well as state sovereign power. The Federalist Papers repeatedly emphasize that the division of sovereignty between the federal government and the states protects both state power and personal liberty from federal power. The Court’s own precedents emphasize this as well, most recently in Bond v. United States (2011), a unanimous opinion which unambiguously declared, “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.”