The Court's Establishment Clause jurisprudence is a jumbled, contradictory mess.
So it's like... every other aspect of constitutional law. Noted.
Of course, it is possible that it's a "jumbled mess" because any judgment will necessarily be subjective, and there is not (and never will be) any easy way to determine if something has violated the Establishment Clause. Further, the people who need to make that call change over time, as do their ideas about the relevant laws and standards, and the circumstances of the various cases.
To the extent that you criticize it because "it isn't simple," or because not every ruling is 100% consistent with your (highly idiosyncratic) beliefs, then you are making an unreasonable demand of the law and the courts.
Thomas is one of several Supreme Court justices who have taken the view that the Court grossly misinterpreted the Establishment Clause by incorporating it....
Yes, and his views on incorporation are thoroughly rejected by the legal community. IIRC even Scalia didn't agree with Thomas on that view.
And what is the view? For some odd reason, you showed off your chops by... not explaining it.
Thomas' view is... slightly bizarre. It relies not only on his usual radical Textualism, but a radical reading of the text:
The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.” As a textual matter, this Clause probably prohibits Congress from establishing a national religion. But see P. Hamburger, Separation of Church and State 106, n. 40 (2002) (citing sources). Perhaps more importantly, the Clause made clear that Congress could not interfere with state establishments, notwithstanding any argument that could be made based on Congress’ power under the Necessary and Proper Clause.
He believes that individual states are empowered to establish official religions, whereas the federal government cannot establish a national religion. Further, the federal government should not be allowed to interfere in states that establish official religions.
On this basis, he concludes that the Establishment Clause is not an individual right, and should not be selectively incorporated.
The first problem here is with (surprise!) his extreme Textualism. He's deliberately ignoring the intent of its author and the other Framers, particularly Virginia Statute for Religious Freedom, and Madison's
Memorial and Remonstrance Against Religious Assessments ("The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right" etc).
The second is with the reading of the text. To put it mildly, it's a stretch. A plain-English rendering, and the way Americans have understood it for centuries, is closer to "Congress shall make no law that establishes a state religion." His reading just doesn't make sense, which is
probably why so few people interpret it as he does.
A third problem is that this
does involve individual rights. While the Free Exercise Clause protects an individual's freedom
of religion, the Establishment Clause protects an individual's freedom
from religion -- i.e. protection against the state imposing religious beliefs on individuals. This is not necessarily restricted to coercion, as I as an individual am certainly impacted if my state gives preferential treatment to a religion to which I do not belong. Again, see Madison's
Memorial.
On a side note, Thomas does not espouse a judicial philosophy one can accept selectively. You cannot be a radical Textualist with the Establishment Clause, and then drop it when it comes to other provisions. At a minimum, there certainly is nothing in any of the Constitution which justifies such inconsistent application of Textualism. So, is that your method of Constitutional interpretation? Are you really committed to that view?
<< cont'd >>
