The Blaine Amendment was not in 1871. It was several years later during the lead-up to the 1876 presidential election. The Republicans (unfortunately) jumped on the anti-Catholic bandwagon. The growing Catholic population was starting parochial schools in many areas and many Protestants did not want their tax money going to Catholic schools. Aid to parochial schools was permitted, because the 14th Amendment had not incorporated the Establishment Clause. Congress had passed civil rights laws under its 14th Amendment enforcement power. Those bills protected the freed black slaves but didn't mention imposing the Establishment Clause on the states at all.
So there was prayer in school, Bible readings in school, and aid to religious schools throughout the nation. Those states which had ratified the 14th Amendment a few years earlier just kept right on with their pre-ratification policies on religion as if nothing had happened, because as far as the religion issue goes, nothing did.
However, some Protestants balked at the idea of "Papists" getting their tax dollars, and the Blaine Amendment was drafted to prohibit such aid. The Republicans thought it would be a good issue. Not only would it appeal to anti-Catholic attitudes, which were surging, but would split the Democrats. Southern Democrats mostly had Protestant constituents, who would like the Blaine Amendment. But in the North the growing Catholic vote went to the Democrats, so the Southerners needed the Catholic Northerners as allies to end Reconstruction.
At the time the Democrats controlled the House, the Republicans controlled the Senate. The Republicans planned to pass the Blaine Amendment in the Senate, watch it die in the Democrat House, and then go into the 1876 election accusing the Democrats of being "Papist".
The Democrats foiled the plan by passing the Blaine Amendment in the House. Of course, before doing so they removed the provision allowing Congress to enforce it, which made it meaningless for the most part. However, the average voter didn't understand those nuances, as the Democrats knew. In the Senate, the Republicans put the enforcement clause back in. However, fear then arose that if ratified, Blaine might enable Catholics to get the then common Protestant Bible readings kicked out of the public schools. So the Republicans added language to the Blaine Amendment to protect such Bible readings. The final vote went straight down party lines, with every Republican voting for and every Democrat voting against, so two-thirds were not achieved.
The Blaine Amendment was introduced in Congress for years afterward, even as late as 1930 if I recall, but never went anywhere. However, many states added Blaine Amendments to their state constitutions. Fueled by anti-Catholic sentiment, these amendments were designed to ban parochial aid (Protestant private schools were a rarity back then since the public schools were essentially Protestant) but not to secularize the schools.
Bingham did discuss the 14th Amendment during an 1871 debate. He said the eight amendments of the Bill of Rights did not apply to the states until the 14th made it so. A congressman from Pennsylvania responded that if he had claimed that before ratification the 14th would have been rejected. Indeed, life went on in Congress and in the states after the 14th's ratification as if nothing had happened vis-a-vis religious establishment. There was no action to get rid of state ties to religion to conform to the new Amendment, no action in Congress to enforce the Establishment Clause against the states, no Supreme Court edicts until many decades later as leftist judicial activism began its rise.
The NH Constitution empowered the state legislature to authorize towns, parishes, and religious societies "to make adequate provision....for the support and maintenance of public Protestant teachers of piety, religion, and morality" and, under NH law, only Protestants were eligible to be governor or legislator.
In a 276 page opinion, the 14th Amendment (again, ratified only 5 months earlier, including by the state of NH) was not mentioned once...either in the opinion of the Court or the dissent. The only mention of the US Constitution's 1st Amendment was in the majority opinion as follows:
...the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions...Probably at the time of the adoption of the constitution and of the amendments to it now under consideration, the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state, so far as not incompatible with the private rights of conscience and the freedom of religious worship.
Another illustration that incorporation by the 14th Amendment was hardly crystal clear...none of the NH Supreme Court justices or the litigants in that case seemed aware of it
In all candor, I have not read Curtis' book (its been on my Amazon wish list forever). So I will take curiosity's advice and get it and read it.
My mistake. Thanks for pointing it out.
Aid to parochial schools was permitted, because the 14th Amendment had not incorporated the Establishment Clause. Congress had passed civil rights laws under its 14th Amendment enforcement power. Those bills protected the freed black slaves but didn't mention imposing the Establishment Clause on the states at all.
Well, I don't think they mentioned imposing the establishment clause because most people didn't believe aiding parochial schools would violate it. In fact, as far as I know, under today's broader interpretation of the clause, aid to parochial schools via vouchers passes muster. Public schools continued Bible readings and prayers well into the 1950's, long after the incorporation doctrine was firmly established in the courts.
Again, I think your problem is with the current interpretation of the establishemnt clause, which I agree is wrong, not with incorporation of establishment.
Bingham did discuss the 14th Amendment during an 1871 debate. He said the eight amendments of the Bill of Rights did not apply to the states until the 14th made it so.
I'd like to see the citation for that. I remember reading several speaches during the debates leading up to 1868 where Bingham explicitly says the 14th Amendment applies the first 8 Amendments to the states. I will give you references if you wish.
A congressman from Pennsylvania responded that if he had claimed that before ratification the 14th would have been rejected.
Well then, the Congressman was full of it, because Bingham did make this claim during the debates prior to ratification. Citations available upon request.
Indeed, life went on in Congress and in the states after the 14th's ratification as if nothing had happened vis-a-vis religious establishment.
That's because no one thought any states were violating the establishment clause at the time. Again, the clause itself was interpreted much less broadly in those days.
There was no action to get rid of state ties to religion to conform to the new Amendment, no action in Congress to enforce the Establishment Clause against the states, no Supreme Court edicts until many decades later as leftist judicial activism began its rise.
In those days, people were not as concered about establishment as they are today. However, incorporation was revived long before the dawn of leftist judicial activisim. In fact, it was right-wing courts who revived it with the substantive due process doctrine in the 1890's.