I’m pleased to report that this past week the brilliant Justice Clarence Thomas cited my work on the Necessary and Proper Clause in his concurring opinion in Town of Greece v. Galloway, an Establishment Clause case that received wide publicity. This was the thirteenth citation in the third Supreme Court case in the past 11 months.
The Establishment Clause is that part of the First Amendment that provides that, “Congress shall make no law respecting an establishment of religion. . . ” The question at issue in the case was whether the Town of Greece (one of many places in upstate New York with classical Roman or Greek names), had violated that clause when it sponsored overwhelmingly Christian prayers at town council meetings.
Despite the language of the Establishment Clause (“Congress shall make no law. . .”), the Court has held for many years that the Clause applies to other branches of the federal government and to the states and all subdivisions of the states, including municipalities. Judicial application of parts of the Bill of Rights to the states is called the Incorporation Doctrine.
The Court ruled, 5-4 that the Town had not violated the Establishment Clause. The dispute between the majority opinion (written by Justice Kennedy) and the dissent (written by Justice Kagan) was more over the facts and the application of the facts than over basic doctrine. More on Establishment Clause jurisprudence next week.
Justice Thomas wrote separately to express his view that the Establishment Clause was designed primarily to protect official state religions (of which there were several at the Founding) from federal interference—in other words that the Establishment Clause was chiefly a protection for federalism, much like the Tenth Amendment. Since it was designed for the protection of the states, he argued, it was improper to apply it against the states. In other words, the Incorporation Doctrine should be used with some other parts of the Bill of Rights, but not with the Establishment Clause.
Justice Thomas cited one of my chapters in a book on the Necessary and Proper Clause which I wrote with Professors Gary Lawson, Geoffrey Miller, and Guy Seidman, and which was published by Cambridge University Press in 2010. The portion he cited discussed how opponents of the Constitution feared that the Necessary and Proper Clause would be abused by the federal government. Justice Thomas pointed out that the Establishment Clause, like the rest of the Bill of Rights, was adopted in part to block over-use of the Necessary and Proper Clause.
While I’m skeptical about the validity of the Incorporation Doctrine generally, I’m not sure that Justice Thomas is correct to read the Establishment Clause so narrowly. More on Establishment Clause doctrine and the significance of the Town of Greece case next week.
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