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Frederick Mark Gedicks

2012

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Establishment Clause Incorporation: A Logical, Textual, And Historical Defense, Frederick Mark Gedicks Feb 2012

Establishment Clause Incorporation: A Logical, Textual, And Historical Defense, Frederick Mark Gedicks

Frederick Mark Gedicks

Incorporation of the Establishment Clause against the states is logically and textually impossible—so say most academics, many lower-court judges, and a Supreme Court justice. They maintain that because the Clause was originally understood as a mere structural protection of state power, it cannot coherently restrain state power or protect a personal due process liberty. Anti-incorporationists also seem to think that the purported incoherence and textual inconsistency of Establishment Clause incorporation excuse serious engagement of Reconstruction history, since they mostly ignore it except for the Blaine Amendment defeated as the Reconstruction era ended. If anti-incorporation critics are right, the entire body …