Nonincorporation of the Establishment Clause: Satisfying the Demands of Equality, Pluralism, and Originalism
Rupal M. Doshi, 98 Geo. L.J. 459 (2010)
This Note will begin by describing the origins of the First Amendment and its meaning to the Framers who drafted it. Part I will also briefly describe the history surrounding the ratification of the Fourteenth Amendment in order to shed light on the principles of the First Amendment that were later incorporated in the twentieth century. Part II will narrate the evolution of modern Establishment Clause law since incorporation and will describe some of the approaches that have been applied to resolve establishment disputes and their respective shortcomings. Part III will begin by describing Justice Clarence Thomas’s view of the Establishment Clause and its proper position in the Court’s jurisprudence. Part III will also attempt to imagine what a state without an Establishment Clause restriction would look like by applying the nonincorporation principle to different categories of establishment cases. This Note will conclude by arguing that disincorporation is not a far-fetched ideal. In fact, not only is it possible, it is desirable. The suggested approach to evaluating Establishment Clause cases– disincorporating the Establishment Clause and applying other constitutional principles in its place to resolve states’ establishment issues–will lead to consistent, predictable, and rational results that further the ends of pluralism.
