...to states, only to the Federal gov.
It's actually the 14th amemdment he disagrees with;
it made the states fall in line with all the other amendments.
And, YES, if Thomas had his way, states would be able to do that.
Here's some commentary on his arguements in the case of
ELK GROVE UNIFIED SCHOOL DIST. V. NEWDOW :
http://www.willamette.edu/~blong/LegalEssays/Thomas.htmlSNIP>
Thomas' second point is an arcane one, even for many lawyers.
In my judgment it ultimately has no merit,
but it has a superficial appeal.
Thomas argued that when the First Amendment religion provisions
became "incorporated" by the Supreme Court
into the Fourteenth Amendment
(that is, became obligatory not simply upon Congress
but also on the States) during the 1940s,
the Court made a mistake.
The Establishment Clause only really was intended to relate to
Congress' not establishing a religion;
it had nothing to do, in fact, with state establishments.
Thomas doensn't note it here, as he does elsewhere,
but several states had an established church long after
the First Amendment was adopted
(MA, for example, was not fully disestablished until 1833),
and so, the argument goes, the First Amendment couldn't have referred
to state establishments. Thus, according to Thomas,
since the CA state law requiring patriotic observances
in each school district is the result of state action,
the US Supreme Court, interpreting here only the federal constitution,
has no authority to deal with the question.
The states are supreme in this instance.
As Thomas says, "the text and history of the Establishment Clause
strongly suggest that it is a federalism provision
intended to prevent Congress from interfering with state
establishments."