Posted on 06/27/2005 8:47:57 AM PDT by Irontank
To reach the state of Kentucky's placement of the 10 Commandment in a state courthouse, the Court has to first hold that the 14th Amendment made the First Amendment applicable to the states (remember that it says "Congress shall make no law respecting the establishment of a religion")
Did the 14th Amendment make the 1st Amendment applicable against the states? Well, that's what the Supreme Court has said since 1947...but its a lie
We know its a lie because, in 1875 (only 7 years after it passed the 14th Amendment), the Congress debated adding another amendment (known as the Blaine Amendment) that read:
No state shall make any law respecting the establishment of religion....
The proposed amendment passed the House and was barely defeated in the Senate. More important than the fact that the proposed amendment failed is the fact that no one in Congress, during the debates over the Blaine Amendment, ever stated that the proposed amendment would have been unnecessary because they just made the 1st Amendment applicable to the states 7 years earlier. Had they really intended to make the 1st Amendment applicable, don't you think someone would have mentioned it? After all, many members of the Congress that passed the 14th Amendment were serving in the Congress that debated the Blaine Amendment.
Senator Frederick Frelinghuysen, one of the sponsors of the Blaine Amendment, made the following statement in Congress during the Blaine Amendment debates:
I call the attention of the Senate to the alteration the House amendment makes in our Constitution. The first amendment to the Constitution, enacted shortly after the adoption of the Constitution provides that - "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." This is an inhibition on Congress, and not on the States. The House article very properly extends the prohibition of of the first amendment of the Constitution to the States...Thus the article, as amended by the Senate prohibits the States, for the first time, from the estabishment of religion, from prohibiting its free exercise and from making any religious test a qualification to office.
4 CONG REC 5561 (Aug. 14, 1876, Statement of Sen. Frelighuysen)
If, in 1876, the 14th Amendment had not made the Establishment Clause applicable to the states (according the the very congressman who passed the 14th Amendment), how did the Supreme Court magically "interpret" it to do so 75 years later>?
I've not read the opinion, but only Clarence Thomas has previously noted that the Establishment Clause cannot logically or historically be applied against the states...I expect he will note that again in his dissent in the Kentucky case
The purpose of the 14th Amendment, in the minds of most of the men who passed and ratified it was fairly limited...they wanted to ensure that free blacks received equal protection under the laws of their states and other states to which they might travel. The late Professor Raoul Berger (a true liberal law professor if ever there was one) wrote several law review articles and a book (I believe called Government by the Judiciary) in which he analyzed what those who drafted and ratified the 14th Amendment were trying to achieve.
These writings earned Professor Berger bitter anger from his friends on the left for the rest of his days because, as we know, the left has been abusing and preverting the 14th Amendment for most of the 20th century in its attempts to create a social agenda it could never enact legitimately and they viewed Professor Berger's meticulous research and writings on the 14th Amendment as a serious threat to their efforts to prevert the Constitution.
I don't know who you are, or where you've said anything before.
But, if you're saying that the federal gov't shouldn't be entangled in local schools, I agree with you. No Dept. of Educ. and no federal funds. Still, the schools would have to abide by state laws, and other arguments against religious endorsements/displays would apply. (The best option would be no gov't schools at all).
My question again: If the First Amendment only applies to Congress, then how is Congress/federal gov't entangled in a state courthouse that it would have jurisdiction over what is displayed there? I think it's an interesting argument to explore. Anyone know more?
There is no doubt that the first did not apply to the states since it specifically stated that Congress... and there is also no doubt that states could, and some did, establish a state religion nor that they could abridge freedom of the press and expression.
Barron v. Baltimore stated for the first time that the amendments did not apply to states and localities. But to believe that states did not have to provide trial by jury or could search without warrants or violate prohibitions against self-incrimination is a bit dicey.
I was using "apply" more as "refer to."
Thanks. I will give it close scrutiny.
Kudos to Justice Thomas, he's a giant.
He needs to be Chief Justice.
If you ever get a chance to see/hear Justice Thomas speak, once in a blue moon on C-Span, usually before kids, he's fascinating, charming, and truly humble. It's a rare Treat, with a capital T.
Forget Chief Justice...
...Clarence Thomas for PRESIDENT!!!
Wouldn't that be a great day, if he gets to be Chief Justice! I'd be bursting with pride!
Clarence Thomas would probably refuse to run for Pres. unless he felt the country needed him in that office. He isn't personally ambitious, like John Kerry, for instance, and he shuns the limelight; but he shines with integrity and grace. Truly amazing man.
Oh, I know...I really want him as CJ...just venting about the Pres thing...I actually support Mike Pence for 2008...
:)
(Love your screen name)
So far so good. Where then, point to the place in the Cons., do you find that states have to abide by rule x, or rule y in criminal justice matters? Art 1. sec 10 contains the prohibitions on state actions, and you will find nothing there concerning crim. just. Remember the times the cons. was ratified (and if you know b. vs. balt. then you've got a good start) -- the people who ratified the cons were in no way shape or form afraid of their own states. The idea that they thought that they needed a cons to tell them how to try their accused is simply ridiculous.
Last paragraph, first sentence "Supreme Judge of the World" and last paragraph "divine Providence".
I was wrong. There are four.
Some of the Founding Fathers were Deists, but most of them were not and most of their predecessors and contemporaries and successors were not. They were Christians.
None of these are specific references to the God of the Bible or Jesus. They are references to "Nature's God", the "Creator", "Supreme Judge", and "Providence". All these are consistant with the Deist beliefs of many of the founding fathers; and the phrase "Nature's God" is EXACTLY how a Deist would refer to the Creator.
Well I disagree wrt people not fearing their own states during the period of the CC. The Convention was called precisely because the power of the states had begun to do great damage to the Nation. The main reason it was called was to limit the power of the states particularly their legislatures which were not sufficiently protective of private property.
G. Morris, Hamilton and Madison were three who had great concerns about the state power. They were not as concerned about judicial abuses as legislative and the rights to a fair trial were pretty much assumed. Certainly those three were not in favor of a BoR but conceded to avoid a nasty fight and perhaps the refusal to ratify.
It is also true that opinions as to how to proceed were somewhat fluid so much so that Madison was even more of a Nationalist than Hamilton at that time. While Madison changed his views Hamilton never did.
There is no specific point of the Constitution which instructed states on judicial operations. Yet it is hard to imagine, given the nature of the people, that there would be no trial by juries in states.
Precisely!!!!! The cons. does not direct the states to use jury trials, therefore they do not have to. But, you are quite correct -- all the states DID employ jury trials, the Framers knew this, and hence were unconcerned with jury trials. And you are further correct in that it is inconceivable that any state would do away with jury trials. It's much like cannibalism -- it is not prohibited by the cons for various reasons, one of which is that it would never occur to the Framers that a state prohibition on cannibalism would ever be necessary.
You are correct about another point (and I sincerely congratulate you here, because I have never known another human being to mention this)-- the FRAMERS were concerned about state abuses of property, and this is one of the most vital reasons for the calling of the convention, BUT, the ratifiers of the cons, the mass of people themselves, were not all that concerned about said abuses. When confronted with this new cons, their chief concern was "Hey! Let's be real careful about the powers of this new gov." As noted earlier, the people certainly did not feel they needed this new gov. to tell them how to run their criminal justice systems.
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