Good post. But it does seem a bit offbeat to use an absolutist reading on the Bill of Rights in this manner.
The current position of the Supreme Court is that the First Amendment does apply now to states and localities (as it clearly did not originally) through the Doctrine of Incorporation. If this is true, and if you are correct in your assessment of the Establishment Clause, then the Constitution has been flipped upside down. An amendment (the First) originally designed to restrict federal power now is held to unleash such power against the states & localities and the desires of the voters in those jurisdictions. Judge Jones is the most recent example of such unleashed federal power.
Would you accept narby's position that the Doctrine of Incorporation doesn't apply to the relevant provisions of the First Amendment? The DOI is, after all, judicially created and is applied by the Supreme Court only when it's convenient to what they politically want to do. It's like the amorphous "right to privacy". It doesn't mean you can do anything you want in private. It means you can do anything the majority of justices find unobjectionable in private. Ditto for their interpretation of the Fourteenth Amendment's Equal Protection Clause. It's never been interpreted to ban all laws that discriminate, only discriminatory laws the majority of the court politically dislike (so excluding women from VMI is a violation while progressive taxation is not).
Ignoring the DOI, states & localities would be free to teach ID regardless of the intent of the framers of the First Amendment. And whatever that intent was as it relates to Congress, it's certain that it was never intended to be a club with which to bash states, localities, and their electorates.
I don't like hypocrites. I don't like them whether they're the Liars for Jesus on the Dover school board. And I don't like them if they're judges on a court that pretends to take the Constitution so seriously on the one hand, while totally ignoring the original intent of it's writers on the other.
My argument on whether the 14th expanded the restrictions in the First is interesting. I don't think there's any way it would gain much acceptance, mainly because the First also contains language about the press, and I doubt if even the Bloggers would stand for any reduction in their rights as now recognized by the courts.
What bothers me the most is that it's apparent that we no longer actually have a constitution at all. The courts rely more on subsequent precedent rather than it's original intent. And the countries leadership won't really stand for removing power from them today, and giving it to those that wrote and ratified the constitution years ago. Thus, Bork was Borked when he tried to lecture the Congress on the Constitution.
We really have an unwritten constitution, like England. I just wish someone in power would be honest and say that out loud.
No. Not a present. But I'll make you a deal. You (all) manage to reverse the precedents that every other damn thing falls under federal jurisdiction (primarily via the Commerce Clause) and then I'll join you in advocating reversal of Incorporation as well. Otherwise the States are too weak and unaccountable, compared to what they need be, to alone ensure our religious liberty.