Hunter Baker replies to my review of his book. I thank him for his contribution, as I thank him for his book. As I wrote to Hunter in an exchange we had after I posted my review, I am not concerned about what the religious nature of the founding may have been. My point is that through the Privileges and Immunities Clause, we should find that the Establishment and Free Exercise Clauses do set forth a substantive theory of religious freedom. To the extent that we rely on the First Amendment alone, that degree of religious freedom applies to Congress, but when we get the Fourteenth Amendment into it, I think we can safely apply it to the states through Privileges and Immunities, which again needs to be revived after the damage done by the Slaughter-House Cases.
Hunter made the argument in our colloquy that he believes the Establishment and Free Exercise Clauses in the First Amendment are jurisdiction in nature, and that they do not establish a substantive theory of rights. If it weren’t for the Incorporation Doctrine, I might be inclined to agree with that analysis. But at the end of the day, via the construction of the Establishment and Free Exercise Clauses, as written, and via the Privileges and Immunities Clause, it should be found that the states cannot make a law respecting the establishment of religion, or prohibiting the free exercise thereof. The states may be found to have certain jurisdictional prerogatives when it comes to religion, and for the sake of this discussion, we can assume that they do. But per the Fourteenth Amendment’s incorporation, they cannot offer less than the First Amendment’s guarantees.
Put another way, the states may have some discretion, but there is a floor for religious freedoms, and that is encapsulated by the First Amendment. Whatever the intent of the Framers, and the content of the Ratification Debates, original public meaning jurisprudence takes the text as written per the understanding that would have been afforded it at the time of its writing. Intent and legislative history matter significantly less. All of this serves to inform my analysis.