Jonathan Rowe takes on Prof. Barnett’s assertion that the Establishment Clause is not a protection for individual liberty. I think there’s more to be said for Barnett’s position here than Rowe acknowledges. It’s true that Jefferson and Madison believed that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical,” and thus that it violated their rights to be taxed for the support of churches they despise. But theirs was a minority view at the time.
More importantly, can it really be said that the Establishment Clause protects a specific right, above and beyond the right not to be taxed for anything? That is to say, it violates our rights to degree X to be taxed, regardless of where that funding goes: if it goes to support sex ed, or the building of a post office, or for the arming of soldiers, or for the support of a church whose doctrines I despise, it still violates the same right, and to the same degree. For a Quaker to be taxed to pay for the army surely violates his conscience as much as my being taxed to support an established church with which I disagree.
Now, in his Bill of Rights, Prof. Amar makes what I think is a convincing argument that the framers of the Fourteenth Amendment did see the right to be free from established religions as a particular individual right, above and beyond the right not to be taxed for this or that government program of which one might disapprove; he concludes that the Establishment Clause is transformed to some degree by the addition of the Fourteenth Amendment. But if we confine the discussion to the First Amendment itself, it’s not clear, either from the text or from principles of political philosophy, that the Establishment Clause either does, or can, protect an individual liberty—as opposed to simply limiting federal power.
None of this is to say that I approve of established religions. I rather obviously don’t, and I think Jefferson’s Bill for Religious Freedom is worthy of all the praise it’s received. But the question is, granting that it violates one’s rights to be taxed for the support of institutions one despises, why does this principle apply only with regard to religious establishments, and not to other tax-supported institutions I despise, such as PBS, the NEA, the Department of Commerce, the Department of Education, the USPS, and so forth?