Ragnarok

I have heard this argument. The 1st ammendment says "Congress shall make no law respecting an establishment of religion..." This means the federal Congress only. The states are thus free to establish religion, restrict free speech and restrict the free exercise of religion to their hearts content. The states, may in essence, ignore the 1st ammendment because of the way it is worded. I know that this is not the view of most legal scholars. But what do they base their views on? Any civil liberties attorneys here? Hezekiah J?

Joel

I found information on this site:

<a href="http://gi.grolier.com/presidents/aae/side/14amend.html" target="_blank">14th Amendment</a>

It basically states the fourteenth amendment has been used by SCOTUS to extend the rights set forth in the Bill of Rights to the state level. (There are some exceptions outlined at the site listed above.) It prevents the state governments from denying these rights. Somebody please correct me if I'm wrong here.

hezekiah jones

The application of the Bill of Rights to the states is called "incorporation," and the argument proceeds from the privileges and immunities and due process clauses of the 14th Amendment.

It took several decades of confusion for incorporation to be articulated by the Supreme Court. In a 1908 case called Twining v. New Jersey the Court invoked "selective incorporation," in that Bill of Rights protections would be incorporated against the states on a case by case basis, clause by clause of the Bill of Rights.

There were several cases prior to Twining (and subsequent to it) that nonetheless denied plaintiffs' incorporation arguments.

Many Bill of Rights protections have been incorporated: freedom of speech, freedom of assembly, free exercise and establishment of religion, unreasonable search and seizure, double jeopardy, public trial, cruel and unusual punishment, and several others.

Some have yet to be incorporated, for example, the right to keep and bear arms, the right against excessive bail and fines, and the right to a grand jury hearing.

Interestingly Clarence Thomas, in his opinion in the recent school voucher case, suggests that the establishment clause should not apply as stringently to the states as it does to Congress. You hear a lot of talk these days about judges whose judicial philosophy is "out of the mainstream." Thomas' suggestion here is definitely "out of the mainstream."

In addition to the site Joel linked to above, you might want to check out findlaw's extensive guide to the 14th Amendment:

<a href="http://caselaw.lp.findlaw.com/data/constitution/amendment14/" target="_blank">U.S. Constitution: Fourteenth Amendment</a>

Like several other expressions used in the Constitution, due process is a fairly nebulous term and is open to a wide variety of interpretation.

The findlaw subheading <a href="http://caselaw.lp.findlaw.com/data/constitution/amendment14/03.html#2" target="_blank">The Development of Substantive Due Process</a> gives a historical overview of some incorporation issues with reference to some of the major cases.

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[ July 04, 2002: Message edited by: hezekiah jones ]</p>

Ragnarok

Thanks HJ! I knew you would clear this up.

hezekiah jones

No problem. I should have mentioned that incorporation applies to county and local governments as well, although our rights in civil as opposed to criminal actions are vastly different, but that's another story. A defendant in a state criminal action, appearing in county court seeking to avoid self-incrimination can "take the Fifth" rather than "take the Fourteenth," which would be redundant.

And for our purposes, because of incorporation the Court has written extensive establishment clause opinions that apply to the entire country based on some little town's display of baby Jesus at Christmas.

Madison himself had originally wanted the Bill of Rights to apply to the states but his proposal was never ratified.

Here is a column on incorporation by Nat Hentoff:

<a href="http://www.jewishworldreview.com/cols/hentoff010300.asp" target="_blank">Liberty lion should be Man of Century</a>

Ron Garrett

Now that the SCOTUS has validated spending our tax dollars at religious schools, outraged theists can send their children to schools where they may pledge allegiance to their gods at institutions still paid for by the public treasury and yet with no public oversight or control. How sweet for the religious loons of America that they may now train 31 flavors of Taliban wackos with our tax dollars while public schools continue down the drain.