One of the stronger originalist aspects of Justice Thomas’s concurring opinion in Town of Greece v. Galloway was his insistence on applying what I have dubbed “originalism at the right time.” As I argued in “Originalism at the Right Time?,” originalist interpretation should apply the correct temporal framework to ascertain the meaning of words. (I would argue the same applies to construction, though others like Balkin and Calabresi would disagree with that).
When interpreting a provision of the Constitution, the correct time period is 1787. When interpreting a provision of the Bill of Rights as applied to the federal government, the correct time period is (the virtually identical) 1791. When interpreting a provision of the Bill of Rights, as applied to the tates, the correct time period is not 1791, but 1868, when the 14th Amendment, the “incorporator” was drafted.
Justice Thomas aptly deploys this framework in Greece by considering the meaning of the Establishment Clause at the time of the framing of the 14th Amendment, separate from its meaning at the time of the framing of the First Amendment.
None of these founding-era state establishments remained at the time of Reconstruction. But even assuming that the framers of the Fourteenth Amendment reconceived the nature of the Establishment Clause as a constraint on the States, nothing in the history of the intervening period suggests a fundamental transformation in their understanding of what constituted an establishment . . . . For example, of the 37 States in existence when the Fourteenth Amendment was ratified, 27 State Constitutions “contained an explicit reference to God in their preambles.” Calabresi & Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 Tex. L. Rev. 7, 12, 37 (2008). In addition to the preamble references, 30 State Constitutions contained other references to the divine, using such phrases as “‘Al- mighty God,’” “‘[O]ur Creator,’” and “‘Sovereign Ruler of the Universe.’” Id., at 37, 38, 39, n. 104. Moreover, the state constitutional provisions that prohibited religious “comp[ulsion]” made clear that the relevant sort of compulsion was legal in nature, of the same type that had characterized founding-era establishments.These provisions strongly suggest that, whatever nonestablishment principles existed in 1868, they included no concern for the finer sensibilities of the “reasonable observer.”
Thomas found no change in meaning, or practice, with respect to the Establishment Clause between 1791 and 1868. I have no comment on the merits of Thomas’s history, but I appreciate that he employed proper methodology. I was somewhat disappointed he did not at least mention the Privileges of Immunities Clause, which as he argued (rightly in my mind) in McDonald was the correct vehicle for incorporation. But I think the answer would be the same in any event for Justice Thomas.