Over at Prawfsblog, Kurt Lash has a post on Incorporation of the Establishment Clause. Kurt did pioneering work on this issue back in the day, work which is rightly esteemed. In the first part of his post, Kurt argues that people at the time of the 14th Amendment understood the meaning of the Establishment Clause differently than they did at the time of the Bill of Rights. And he argues that the 14th Amendment should get the meaning in existence at that time.
While I don’t think we really understand the original meaning of the 14th Amendment, I am sympathetic both to incorporation and to a two track approach to incorporation, with the 14th Amendment incorporated Bill having a different meaning than the original Bill. (As an example, see this paper where I argue that the 1791 Takings Clause does not extend to regulatory takings, but that the 1868 version may.)
But Kurt then takes a further step:
