by David Upham
Nearly a century ago, the State of Maryland permitted a group of citizens to establish a memorial cross for veterans of World War I on property owned and maintained by the state. This cross is still there.
Does this Maryland cross violate our Constitution? That very question is currently before the Supreme Court. Maryland-National Capital Park and Planning Commission v. American Humanist Association is an appeal from the Fourth Circuit’s decision that the cross is an establishment of religion in violation of the Fourteenth Amendment.
The challenge to the 94-year-old cross (erected in 1925) rests entirely on a 72-year-old precedent, established in Everson v. Board of Education (1947). In Everson, the Court held that the Constitution’s Fourteenth Amendment makes both Religion Clauses fully applicable against the states, and therefore, that the federal courts have authority to forbid any state action they deem an establishment of religion.
In the Maryland cross case, the litigants and judges have seemingly all accepted this precedent as settled and fully applicable law. Despite the conservative leanings of several Justices, the participants in the litigation have thus far shown little interest in the text or original understanding of the Amendment. Indeed, neither the text nor the very name of the “Fourteenth Amendment” appears anywhere in the Respondents’ 100-page main brief or in the lengthy opinions authored by the Fourth Circuit. Further, with the exception of two amici, no one has addressed whether Everson might be a bad precedent, inconsistent with the original understanding of the Fourteenth Amendment.
Moreover, no one, it seems, has raised the objection that it would be unjust to retroactively apply Everson so as to destroy the work of those who, two decades earlier, could not have foreseen the incorporation of the Establishment Clause.
In this essay, I’d like to establish two facts that seem to me highly relevant to a just resolution of this case. First, when the Maryland cross was erected, the virtually unanimous legal consensus was that the federal Constitution did not incorporate the Establishment Clause against the states, and that, consequently, the respective states retained the exclusive authority to regulate themselves in matters of religious nonestablishment. Second, this non-incorporation consensus was plainly harmonious with the original understanding of the Fourteenth Amendment.
Consequently, the citizens who established the cross could not have reasonably foreseen Everson and thus had good reason to rely on Maryland’s permission as final. A reasonable person would not have predicted that the federal judiciary would later order the destruction of the cross as violative of the Constitution.
Some of the evidence supporting these claims is well known by scholars. But some of it has not been published before.
The Permoli legal consensus—wide and deep
By nearly all accounts, the antebellum federal Constitution did not secure religious freedom against the states. The religion provisions of Article VI and the First Amendment plainly applied only to “the United States” and the “Congress” thereof, respectively. Hence, as Joseph Story explained, “the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions.” In the oft-cited Permoli decision, the Supreme Court likewise pointed out that the “Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws: nor is there any inhibition imposed by the Constitution of the United States in this respect on the states.”
When the Maryland cross was established in 1925, this Permoli truism remained the uncontested law of the land. For decades, Federal judges, state judges, and many, many scholars had affirmed the maxim without any apparent controversy. Accordingly, the 1917 Corpus Juris, published in 1917, cited Permoli and a 1916 case to support the black-letter rule that the Constitution incorporates “no protection against action by the states; and thus leave[s] the states free to enact such laws as they may deem proper in respect to religion, restrained only by limitations of their own respective constitutions.” And the several states, in exercising this reserved authority, had adopted a “considerable variety” of diverse policies as to state-sponsored “religious exercises,” despite a multistate consensus generally endorsing the liberty of conscience.
The Permoli consensus was old, extending as far back as the late 1870s. In the nineteenth century, the consensus was expressly endorsed by leading jurists and impliedly affirmed by the Supreme Court in Reynolds v. United States (1879). Moreover, as many commentators have noted, the Permoli maxim was deemed axiomatic in the debates over the proposed “Blaine Amendment.” For example, in its 1880 national platform, the Republican Party endorsed such an amendment by first pointing out that “[t]he Constitution wisely forbids Congress to make any law respecting the establishment of religion” and then recommended “that the Constitution be so amended as to lay the same prohibition upon the Legislature of each State.”
To my knowledge, the sole exception to the Permoli legal consensus, from 1875 to 1925, can be found in dicta made only by Justice John Harlan and only in his last decade on the Supreme Court (1900-1911). So, for instance, in Maxwell v. Dow, Harlan objected to the majority’s anti-incorporation conclusion with an argument ad absurdum, that the logical result would be that Utah could establish the Mormon Church.
The Permoli doctrine qualified
Though still the law of the land in 1925, the original Permoli maxim had been modified. Courts had suggested three ways by which the prohibitions of the Fourteenth Amendment, partially and incidentally, incorporated the principles of the Religion Clauses. First, the Supreme Court affirmed, in America Sugar Refining Co. v. Louisiana (1900), that the Fourteenth Amendment secured equality before the law by prohibiting the imposition of any discriminatory tax or regulation on the basis of a citizen’s “religious opinions” or “political affiliations,” or “color, race, [or] nativity”; thus, a creedal tax, therefore, was as unconstitutional as a racial tax. Second, just two years before the Maryland cross’s construction, in Meyer v. Nebraska, the Court affirmed that the Amendment secured the liberty “to worship God according to the dictates of his own conscience” as one of the “privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Finally, various state courts, in upholding Sunday-closing laws, sometimes suggested that the states’ reserved police power extended only to regulations reasonably related to such terrestrial and community goods as public health, safety, or morals, and thus excluded, for instance, laws whose motive was exclusively biblical or whose purpose was exclusively private or celestial.
This defined equality and liberty, however, but did not fully encompass the Religion Clauses. The equality of all citizens before the law did not entail the equality of all creeds in the law; this civil equality did not forbid state endorsement of a religious creed any more than it banned the endorsement of a political creed. Moreover, the liberty defined in Meyer could not encompass some freedom from religious establishments, for that right was not “long recognized at common law.” Nor did this liberty necessarily encompass the full free exercise of religion, as the liberty to teach and preach a creed might not include the broader, general freedom to act in accord with that creed.
The Permoli consensus and the original understanding of the Fourteenth Amendment
But it might be said that this Permoli consensus, however dominant from 1875 to 1925, was inconsistent with some lost incorporationist Fourteenth Amendment. According to this account, the Amendment, as originally understood, had fully incorporated the Religion Clauses against the states, but this meaning was obscured by the Supreme Court’s misinterpretation of the Amendment in the Slaughter-House Cases (1873); thus, the 1947 Everson holding was merely a restoration of that lost original meaning. If so, one might conclude that the citizens and state of Maryland had constructive knowledge of this incorporation in 1925, notwithstanding the prevailing Permoli consensus, so they could have foreseen the risk that a federal court would order the Cross’s destruction.
To the contrary, however, the Permoli legal consensus prevailed before as well as after Slaughter-House—and with the same two modifications later recognized by the Supreme Court.
Substantial evidence of this consensus can be found in the express statements of those who participated in the adoption and initial interpretation of the Amendment. Between the Amendment’s ratification in 1868 and Slaughter-House, the Permoli maxim was affirmed as axiomatic by at least three members of the Thirty-Ninth Congress that had framed the Amendment—Connecticut Senator James Dixon, Illinois Senator Lyman Trumbull, and Ohio Representative William Laurence. Trumbull cited the case simply to point out, “there is no such inhibition on the States; it is simply upon Congress.” During this same time, at least two state supreme courts (of New Hampshire and Indiana) likewise cited this axiom without any apparent controversy.
Equally compelling evidence is the deafening silence. During these years, there were many prominent controversies involving religion and the states (most notably the extensive litigation in Ohio over biblical instruction in schools, and other states’ religious tests for office—including the old one of New Hampshire and the new one incorporated in Tennessee’s 1870 constitution). Yet seemingly no participant in these controversies mentioned the pending or recently-adopted Amendment as relevant at all.
Several jurists, however, did note two ways in which the Amendment had modified the Permoli maxim. First, many indicated that the Amendment secured equality before the law, regardless of religious creed. Most notable was Representative Lawrence’s discussion of the matter in a scholarly article published in early 1873; he cited Permoli but wrote that by force of the Amendment, “perhaps no state could give any preference to any one class of persons because of their religious opinions over any other.” In a similar vein, during the framing and ratification of the Amendment, Lawrence and Representative Roscoe Conkling, and others had said or suggested that the rights to be secured by Section 1 would include “equal rights of all, regardless of color, race, or creed.” Second, various participants in the Amendment’s adoption, including Senator Jacob Howard and Representative John Bingham, explained that it would secure a certain freedom of speech or “discussion,” with Bingham and a few others specifying religious speech or the “freedom of conscience.”
But none of these jurists—not one—stated that the Amendment would secure against the states the full freedom from religious establishments or the full free exercise of religion.
In other words, according to the original, pre-Slaughter-House understanding, the Amendment modified the Permoli doctrine only in the two defined ways later identified by the Supreme Court: equality before the law, regardless of creed, and freedom of religious speech.
The evidence usually presented by total incorporationists does not contradict, but bolsters this thesis. Several participants in the adoption and early interpretation of the Amendment did closely associate the first eight amendments with the Privileges or Immunities Clause. But these jurists very strongly indicated that the Religion Clauses were, at most, only partly incorporated against the states. Of particular note is the oft-quoted speech of Senator Jacob Howard, as well as the opinions offered by Judge William Woods for a circuit court in United States v. Hall (1871), and by Justice Bradley in dissent in Slaughter-House—as well as an unreported 1871 opinion by Robert Hill, a Mississippi federal district judge.
In each case (except Judge Hill), these jurists first cited Corfield v. Coryell to generally define the guaranteed “privileges and immunities”—those privileges that (1) belonged, of right, to citizens in all free governments and (2) had been enjoyed in the American states since 1776. Now the freedom from religious establishment plainly could satisfy neither of these elements, for that principle had been disregarded in many free governments, including several of the American states until well into the 1800s; perhaps the same could be said of the full free exercise of religion. Therefore, in identifying the “privileges and immunities” among the rights listed in the eight amendments, each of these four jurists, either conspicuously omitted the Religion Clauses altogether (Senator Howard and Judge Woods) or carefully mentioned only those aspects of religious freedom that might satisfy the Corfield standard, viz., the “free exercise of religious worship” (Justice Bradley) or the “right to worship God according to the dictate of our own consciences” (Judge Hill).
That is to say, each of these putative incorporationist jurists strongly indicated that the Amendment incorporated, at most, only part of the Religion Clauses against the states—namely, the same freedom of worship recognized by the Supreme Court in Meyer just two years before the establishment of the Maryland cross.
For a decade after the assembly of the Maryland cross, federal and state courts continued to affirm the Permoli maxim without controversy. Yet following the jurisprudential revolution of 1937, the Supreme Court began declaring the full incorporation of the Religion Clauses against the states—leading up to the holding in Everson. These repeated assertions amounted to nothing more than a naked ipse dixit, for the Court did not—and could not—support the assertion with argument from constitutional text, original understanding, or any pre-1937 precedent.
What should the Court do with these facts? Perhaps the Court can leave both the Everson precedent and Maryland’s cross undisturbed. But what if there is some irreconcilable opposition between the two? Then, I think, the Court should be faithful to the constitutional text, original meaning, and decades of subsequent precedent. The Court should tear down Everson and not the cross.
 The Permoli maxim appeared as neither a contested legal opinion nor even a resolution of any legal dispute, but as an axiom, an agreed-upon premise. It warranted repetition chiefly for the benefit of laypersons, who sometimes made the reasonable mistake that the multistate consensus favoring religious free exercise and nonestablishment had been incorporated into the federal Constitution against the states as well as Congress—that is, laypersons confused the American consensus with the American Constitution. For instance, in a 1930 article mentioned in the Respondents’ main brief, one jurist cited Permoli and the U.S. Code Annotated (1926) to note, “[d]espite the general impression to the contrary, the First Amendment to the Federal Constitution merely denied to Congress the right to establish religious worship, reserving this power to the states.”
 The other purported exceptions, sometimes cited by today’s total-incorporationist scholars, are not exceptions. Various late-nineteenth-century jurists closely associated the Amendment with the rights listed in the Bill of Rights. But all those authorities confirmed the Permoli consensus by conspicuously omitting the Establishment Clause from the list of rights secured against the states. See Randolph Tucker’s argument as counsel in Spies v. Illinois (1887); the dissent of Justice Field in O’Neil v. Vermont (1892); and William Guthrie’s Lectures on the Fourteenth Article of Amendment to the Constitution (1898).
 Stronger evidence can be found in Bingham’s oft-cited congressional speech of March 1871, wherein he said that the privileges and immunities secured by the Amendment were “chiefly defined” in the first eight amendments, and then fully quoted all of these amendments. But this evidence is both anomalous and ambiguous. The speech was anomalous because Bingham’s discussion rested on a sharp distinction between the privileges discussed in Corfield and those privileges of U.S. citizenship protected in the Amendment, yet virtually everyone before this speech had treated Corfield as providing the leading definition of these privileges—including Bingham himself in a formal committee report a few weeks earlier. The speech was ambiguous because Bingham did not say that the privileges of US citizenship was coextensive with the eight amendments, but instead that these privileges were encompassed by (“defined in”) the amendments. Hence, in his elaboration, he did not refer to the full free exercise and nonestablishment of religion, but only to the “rights of conscience,”—thus suggesting that he too understood the Amendment to only partially incorporate the Religion Clauses, and only to protect the individual freedom of religious opinion.