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Supreme Court (Except for Justice Thomas) Gets it Wrong Again on Establishment Clause

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


TOPICS: Your Opinion/Questions
KEYWORDS: establishmentclause; mccreary; scotus; tencommandments; theocrat
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To: justshutupandtakeit; RayStacy
Here is a good article which discusses the terms of art used in the 14th Amendment, including "privileges and immunities" and "due process." Incorporation through the 14th Amendment is done through the due process clause rather than the P&I.

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.

14th Amendment Terms of Art

61 posted on 06/27/2005 12:15:08 PM PDT by Irontank (Let them revere nothing but religion, morality and liberty -- John Adams)
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To: ZULU
Treaty of Tripoli: Ratified treaty, formerly the law of the land, stating that "the Government of the United States of America is not, in any sense, founded on the Christian religion".

http://en.wikipedia.org/wiki/Treaty_of_Tripoli

Deist believe in God.

The Declaration of Independence says... "Nature's God" and "Creator"; cannot find a third reference. The term "Nature's God" is about as Deist as one can get, and "Creator" is neutral. Not once does it mention the God of the Bible or Jesus.

Jefferson was elected President subsequent to the Washington administration, so his removal from the cabinet of Washington is a nonsequeter.

Yes, there were more founding fathers than just Paine and Jefferson. Franklin considered himself a "thorough Deist". Washington was described by a pastor friend of his as a "Deist". Madison and Adams can also be quoted upon their opinion of matters of church and state...

What influence, in fact, have ecclesiastical establishments had on society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the civil authority; on many instances they have been seen upholding the thrones of political tyranny; in no instance have they been the guardians of the liberties of the people. Rulers who wish to subvert the public liberty may have found an established clergy convenient auxiliaries. A just government, instituted to secure and perpetuate it, needs them not. [Pres. James Madison, A Memorial and Remonstrance, addressed to the General Assembly of the Commonwealth of Virginia, 1785]

The number, the industry, and the morality of the priesthood, and the devotion of the people have been manifestly increased by the total separation of the church from the state. [James Madison, 1819]

Who does not see that the same authority which can establish Christianity, in exclusion of all other religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects? [James Madison]

"Twenty times, in the course of my late reading, have I been upon the point of breaking out, 'This would be the best of all possible Worlds, if there were no Religion in it,' !!! But in this exclamation I should have been as fanatical as Bryant or Cleverly [a minister and a schoolteacher, mentioned earlier in the letter]. Without Religion, this World would be Something not fit to be mentioned in polite company, I mean Hell." -- John Adams letter to Thomas Jefferson, April 19, 1817

Yes, many of the founding fathers were Christian; but not all of them. And they did not found this nation as a Christian nation, but as one with absolute freedom of religion.
62 posted on 06/27/2005 12:21:35 PM PDT by Mylo
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To: savedbygrace
I've said it before, and I'll say it again

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?

63 posted on 06/27/2005 12:21:43 PM PDT by Tired of Taxes (and sick of eminent domain abuse)
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To: RayStacy

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."


64 posted on 06/27/2005 12:37:37 PM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: Irontank

Thanks. I will give it close scrutiny.


65 posted on 06/27/2005 12:38:59 PM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: RockinRight

Kudos to Justice Thomas, he's a giant.


66 posted on 06/27/2005 12:39:58 PM PDT by hershey
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To: hershey

He needs to be Chief Justice.


67 posted on 06/27/2005 12:41:32 PM PDT by RockinRight (Conservatism is common sense, liberalism is just senseless.)
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To: RockinRight

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.


68 posted on 06/27/2005 12:41:57 PM PDT by hershey
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To: hershey

Forget Chief Justice...

...Clarence Thomas for PRESIDENT!!!


69 posted on 06/27/2005 12:42:41 PM PDT by RockinRight (Conservatism is common sense, liberalism is just senseless.)
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To: RockinRight

Wouldn't that be a great day, if he gets to be Chief Justice! I'd be bursting with pride!


70 posted on 06/27/2005 12:42:57 PM PDT by hershey
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To: RockinRight

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.


71 posted on 06/27/2005 12:51:41 PM PDT by hershey
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To: hershey

Oh, I know...I really want him as CJ...just venting about the Pres thing...I actually support Mike Pence for 2008...


72 posted on 06/27/2005 12:55:43 PM PDT by RockinRight (Conservatism is common sense, liberalism is just senseless.)
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To: Mylo
I will play your copy and paste game, ha, ha, ha!!!

http://members.aol.com/EndTheWall/tripoli.htm

"It is important to note that the 1805 Treaty with Tripoli differs considerably from the 1797 Treaty. The most important difference is this:

In the 1805 version "as the Government of the United States of America is not in any sense founded on the Christian Religion" is conspicuously absent. The first Treaty was terminated by war. A new treaty was drafted in 1805 (ratified April 12, 1806). Article 14 of the new treaty corresponds to Article 11 of the first treaty. It reads in part: "[T]he government of the United States of America has in itself no character of enmity against the laws, religion, or tranquility of Musselmen." The phrase declaring that the "government of the United States of America is not in any sense founded on the Christian religion" does not appear. Assurances are still offered that the United States will not interfere with their religion or laws.

It's obvious that by 1805 the United States had greater bargaining power and did not have to knuckle under to the demands of this Muslim stronghold. A strong navy and a contingent of marines also helped."
73 posted on 06/27/2005 1:02:59 PM PDT by rollo tomasi (Working hard to pay for deadbeats and corrupt politicians)
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To: Ignatius J Reilly
Good point, but shouldn't you be scribbling your invective onto Big Chief tablets instead of using the Internet?

:)

(Love your screen name)

74 posted on 06/27/2005 1:11:11 PM PDT by Constitution Day (Member: Evil Smelly Anthracite-Hearted Budgie-Crushing Christer Kill-the-Ayrabs Yokel Confederacy.)
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To: Mylo
the Treaty of Tripoli is not addressed
Very true, it is not. Primarily because we have no national religion. We did not then nor do we now. We were dealing with a Muslim nation at the time (ironic don't you think). The Muslims are sworn enemies of Christians and there could not be peace with a "Christian" nation.
The question at hand is can a State declare a State religion. (Not even going into the issue of a wall hanging being the same as Congress passing a law). At the time of the writing of the Constitution many states had official state religions and after the ratification of the Constitution, three retained their official state religion, well into the mid-1800's. Keeping in mind that these were the very people who wrote and ratified our Constitution it is reasonable to assume that they fully understood it's meaning. Many of the states who did not retain their state religion required that all public officials publicly express a belief and faith in Jesus Christ.
The first amendment forbids the Federal Government from having an opinion at all on establishment issues - it can neither establish or unestablish.

The issue then becomes does the 14th amendment cause the first 10 amendments to apply to State Governments. Well if it does then all state firearms legislation is unconstitutional. Also, as mentioned in an earlier post, two states do not have a Grand Jury system and one that does has not convented on in over 25 years. The FEDERAL Constitution is quite clear on this issue. The State not having a Grand Jury has withstood at least one Supreme Court challenge. (No I don't have the reference handy right now).


Cordially,
GE
75 posted on 06/27/2005 1:18:30 PM PDT by GrandEagle
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To: justshutupandtakeit

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.


76 posted on 06/27/2005 1:57:26 PM PDT by RayStacy
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To: Mylo

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.


77 posted on 06/27/2005 2:03:17 PM PDT by ZULU (Fear the government which fears your guns. God, guts, and guns made America great.)
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To: ZULU

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.


78 posted on 06/27/2005 2:11:06 PM PDT by Mylo
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To: RayStacy

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.


79 posted on 06/27/2005 2:27:19 PM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: justshutupandtakeit

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.


80 posted on 06/27/2005 2:42:14 PM PDT by RayStacy
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