There has been some buzz about a blatantly unconstitutional effort in North Carolina from establishing an official religion. Of course, even though the Establishment clause by its text only applies to the federal government, through the 14th Amendment, this provision has been incorporated.

But not everyone is of that opinion, as I noted in Keeping Pandora’s Box Sealed, both Justice Thomas and Akhil Amar, for largely similar reasons, hold that the Establishment Clause is a federalism provision that resists incorporation.

Professor Amar notes that the Establishment Clause resists incorporation because it is a federalism provision, and not an individual liberty.323 Justice Thomas made a similar point in Elk Grove v. Newdow.324 In contrast, the Free Exercise Clause is an individual liberty in the common-law tradition.

23. AMAR, supra note 22, at 227 (“This implicit filter might also explain the omission of the establishment clause, which, unlike its First Amendment companions, does not so obviously resonate with common-law rights of personal property, personal security, and bodily liberty.”).

Update: Eugene Volokh makes a similar point about Amar and Thomas.

324. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 50 (2004) (Thomas, J., concurring) (“Quite simply, the Establishment Clause is best understood as a federalism provision—it protects state establishments from federal interference but does not protect any individual right.”).

Thomas wrote, quite clearly, “I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.”

So you got one vote North Carolina nullifiers!