Some leading federalists were also antidisestablishmentarians. John Jay, for example, who recorded no objection to the Constitution's ban on religious tests for federal office, led the fight in New York to impose a Protestant-test oath for state officeholders.
In this way, RFRA violated the First Amendment's specific antidisestablishmentarian requirement.(20) RFRA would therefore have been unconstitutional even if it had fallen within Congress's section 5 powers, and it will still be unconstitutional if reenacted along the lines its supporters now propose.
Thus New Hampshire's ratifying convention proposed as an amendment that "Congress shall make no Laws touching Religion, or to infringe the rights of Conscience."(52) This proposal "grew out of antifederalist fears that the national government was insufficiently devoted to Christianity" and was specifically designed to guarantee "protection from congressional intermeddling with New Hampshire's regime of publicly maintained orthodoxy."(53) As Professor Amar has pointed out, of all the state-proposed amendments on religion, New Hampshire's antidisestablishmentarian proposal most closely tracked the actual language eventually adopted in the First Amendment.(54)
The supporters of New England's laws -- the very men who fought for an amendment prohibiting Congress from interfering with them - overwhelmingly denied that these laws established.(74) The core purpose of the Establishment Clause's antidisestablishmentarian component was to bar Congress from tampering with state religion laws, whether or not those laws amounted to actual establishments.
Thus the New Englanders who fought for an antidisestablishmentarian First Amendment did not by any means concede that their states had actually established religion.
The Constitution's antidisestablishmentarian principle, strange though it may at first seem, is in reality part of something deeply familiar.
"The Court has expressly stated that the Fourteenth Amendment altered the preexisting constitutional principles of federalism, and on that ground has held that section 5 trumps the Eleventh Amendment.(109) Your antidisestablishmentarian principle is in essence a principle of federalism.
But as I have tried to show throughout, the First Amendment's antidisestablishmentarian component is not and never was merely a protection of federalism.
This argument -- that the Establishment Clause, because of its antidisestablishmentarian component, cannot logically be incorporated -- might, if acceptable, have strengthened the case against RFRA.
On the other hand, a court could also hold that the Fourteenth Amendment does make an antidisestablishmentarian principle applicable against the states as well.(124) Both of these possibilities, however, suggest only that the Fourteenth Amendment at most duplicated the Establishment Clause, in part or in whole, as a constitutional guarantee against state action, not that the Fourteenth Amendment repealed the Establishment Clause, in part or in whole, as a guarantee against congressional action.
In deciding the scope of free exercise rights, the Court is not constrained by an antidisestablishmentarian principle.