(Corrects description of Thomas's opinion in first and second paragraph, and in second footnote.)
Speed-reading Clarence Thomas’s concurring opinion in the prayer case decided Monday, I got carried away. For years I’ve been frustrated with Thomas’s idiosyncratic argument that the establishment clause of the First Amendment was actually intended not only to bar establishment of a national religion but also to protect state establishments of religion. As I wrote on Tuesday and at much greater length in an academic article and in a book, this view is wrong and historically unsupported. No state admitted to having an established religion by 1789. The New England states facilitated local funding of ministers, but they didn’t call it an “establishment,” which was already a dirty word. And Thomas’s idea of protecting state establishments was, unsurprisingly, unmentioned in any state ratifying convention or in Congress when the clause was being proposed and discussed. In short, there’s no evidence in support of the view, and lots against it.1
In my excitement, I thought Thomas had finally “jettisoned” this belief -- my word -- in his Town of Greece opinion. He spent most of his time arguing that the clause in its original context can be read as a provision applying only to the federal government, and therefore shouldn’t be applied to the states under the Fourteenth Amendment. This view, I explained, is at least plausible, even if I disagree.
On reflection, I was overly optimistic. Thomas cited his own concurrence in the 2004 pledge of allegiance case, Elk Grove v. Newdow, where he said the clause bars Congress from interfering with state establishments. To be sure, he did say in Town of Greece that the clause only “suggests” this reading. In Newdow, he said the clause “made clear that Congress could not interfere with state establishments.” “Suggests” is better than “made clear,” but it isn’t a withdrawal from the position, just a slight weakening. So unlike Justice Thomas, I’d like to jettison my own paragraph.2
Is there a lesson in all this, beyond “avoid wishful thinking when reading judicial opinions”? I think there is. Clarence Thomas is the most committed originalist on the court, going even further than Justice Antonin Scalia. I respect consistency in adhering to an interpretive philosophy, whether I agree with the philosophy or not. But originalism requires doing good history, and good historians admit their mistakes. Thomas is just wrong about his pet reading of the establishment clause -- but so far, he hasn’t admitted it. Originalists should be willing to change their views of history when the evidence isn’t there. I hope it is a mark of my respect for Thomas that for a moment I thought maybe he had.
1 When my former teacher, Professor Akhil Amar, proposed something like this view in his 1998 book, "The Bill of Rights," it was a reflection of his brilliance and willingness to propose creative ideas. It wasn’t a manifestation of his historical precision, which he has demonstrated in many other distinguished instances.
2 I also erred in introducing the paragraph by mentioning Justice Scalia, who only joined part of Thomas’s concurring opinion, not the section where the wrong interpretation of the clause was discussed. Scalia thankfully has never adopted this view.
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