These critics of the modern separation of church and state also note the official establishment of religion in several of the states at the time of ratification, to suggest that the modern incorporation of the Establishment Clause as to state governments goes against the original constitutional intent.[citation needed] The issue is complex, however, as the incorporation ultimately bases on the passage of the 14th Amendment in 1868, at which point the first amendment's application to the state government was recognized. Many of these constitutional debates relate to the competing interpretive theories of originalism versus modern, progressivist theories such as the doctrine of the Living Constitution. Other debates center on the principle of the law of the land in America being defined not just by the Constitution's Supremacy Clause, but also by legal precedence, making an accurate reading of the Constitution subject to the mores and values of a given era, and rendering the concept of historical revisionism irrelevant when discussing the Constitution.

Critics of modern separation of church and state note there was official establishment of what in several states at the time of ratification?