TGirsch: you are correct that a wholesale repeal of the incorporation doctrine would make the entire Bill of Rights, and not just the Establishment Clause, inapplicable to the states. However, no one wants to repeal the doctrine in toto, and AFAIK only Justice Thomas wants to peel back any part of it at all. His rationale, as I understand it, is that there is no real evidence that the Due Process clause was ever intended to incorporate anything, but there is evidence the long-neglected Privileges or Immunities clause was. To the extent this theory is correct, the P&I clause should incorporate the individual rights protected by the B of R, but not the structural/federalist limitations. It may be a little arbitrary, but it’s less arbitrary than the rule we have now, which is to incorporate everything the court has chosen to incorporate (Amendments I, III, IV, VI, VIII, IX and most of V), and to not incorporate whatever the court has chosen not to incorporate (Amendments II, VII, X and the grand jury clause of V).

This has always bothered me, really, because it means that none of the First Amendment’s protections extend beyond the Congress. Meaning that not only could a state hypothetically establish “Baptist” as the official state religion (if not otherwise hindered by the state constitution), they could equally outlaw the Baptist church with no constitutional violation. Similarly, they could quash your free speech, freedom of the press, etc. It is only the federal congress that could not do those things.

Is there anyone out there who seriously interprets the First Amendment in this way? (Don’t answer that, the response might scare me…)

And what concerns me about Thomas is the rather arbitrary declaration that the establishment clause “resists incorporation” while the other clauses don’t. Why should that particular clause get special treatment, one way or the other?

maybe I’m missing something obvious or about to start a flame war, but isn’t that in the 1st Amendment?

As regards Thomas, I’m all for his interpretation of the Constitution. If you don’t like states having the ability to establish a state church, pass an amendment to the Constitution. If the amendment is popular enough (and the idea of a State Church that offensive) it will pass easily. I think it would.

I’m all for limiting the power of Congress, but unfortunately so much damage has been done that trying to reverse the entropy might not be the best path now.