Boerne and Treaty Power

[Michael McConnell]

Maybe I didn't clearly express my question to Kurt Lash. I
understand that he thinks (with some reason) that the term
"law respecting an establishment of religion" had a
different meaning by 1866 than it had in 1789, and thus
that the Establishment Clause means something different as
applied to the states through the 14th amendment than as
applied to the federal government directly. This makes
sense as an explanation for why a states-rights
provision could be "incorporated" as a "no
establishment" provision. What I don't understand is how
the 14th amendment could plausibly be read as changing the
meaning of the first amendment itself. The beginning is "no
state shall ...." How can this language be read to amend a
provision that begins "Congress shall"?
-- Michael McConnell (U of Utah)