The Founders' Intent for the First Amendment

CPI News ^ | May 3, 2002 | Nathan McClintock

[nonliberal]

When the Constitution was adopted, nine of the thirteen states had established religions. The First Amendment was written so as to prohibit the federal government from interfering with state establishments.

That is why it reads "AN establisment of religion" and not "THE establishment of religion."

[muawiyah]

Funniest thing, I thought the First Amendment was written at exactly the same time as the Second and the Third. Taken together these constitute a barrier against the anti-Protestant depredations of the kind fomented by the French Kings Louis XIII and XIV.

As we all instantly recall, they were in the practice of hunting down Protestants like animals and having them murdered, and all that sort of thing.

There's a lot more to this, but we all agree that without the Bill of Rights the current Constitution would not be adopted.

[elephantlips]

My copy of "Original Intent" is dog-eared and falling apart. I wrote a play around the facts and quotations found within which has been playing annually for five years with the sixth coming up this July. Each year audience members are astounded at the "real" words the Founding Fathers spoke. We've even taken the production onto the streets with some unusual results but always people are surprised.

[Tauzero]

BUMP!

[CPI News]

Good column.

*bump*

[Fithal the Wise]

My copy of "Original Intent" is dog-eared and falling apart. I wrote a play around the facts and quotations found within which has been playing annually for five years with the sixth coming up this July. Each year audience members are astounded at the "real" words the Founding Fathers spoke. We've even taken the production onto the streets with some unusual results but always people are surprised.

Interesting. Is the text of your play available for email? I'd like to read it.

[NathanM]

That sounds like a very interesting play. I too, would be interested in an emailed copy if it is available. My web address is NathanMcclintock.com.

[edsheppa]

The substantive due process doctrine built on the 14th changed the game.

[Shooter 2.5]

"In other words, each State, and not the federal government, protects the rights of its citizenry. Meanwhile, the Founders intended the First Amendment as a protection for the States from the tyranny of a federal dictatorship.

And all this time, I thought that the Bill of Rights protected U.S. citizens and not state governments. < sarcasm >

[inquest]

The substantive due process doctrine built on the 14th changed the game.

More precisely, it provided the courts with a pretext for changing the game. Nothing in the 14th amendment actually stated that the restrictions in the BOR would now apply against state governments.

[edsheppa]

Remember that the doctrine is quite old. Courts of the late 19th century were much closer than we to when the 14th amendment was passed so perhaps there's something to their interpretation.

[inquest]

But it wasn't till about the 1920's that the courts started interpreting the 14th that way. Prior to then, they had explicitly rejected such an interpretation.

[edsheppa]

Not so. You may find this interesting. Scroll down a page or so. Just a guess on my part but I bet this doctrine had basis in law before 1897.

[inquest]

OK, I think I've misunderstood what you were saying. Yes, you're right that the 14th amendment explicitly prohibits states from denying anyone life, liberty, or property without due process. But that doesn't mean that the other provisions of the BOR apply to the states. The courts began ruling that way in response to a different part of the 14th - the "privileges and immunities" clause. Sorry I wasn't paying close enough attention.

But anyway, it's that "privileges and immunities" clause that's been misapplied, in my view, because privileges and immunities of citizenship are not the same as rights of people.

[NathanM]

The 14th Amendment, which was ratified July 9, 1868, was to protect from discrimination between blacks and whites. Very simply, the Amendment dictated that State governments must give equal rights to all races. Today, this Amendment is used broadly (more Fed control), instead of being used to see that all citizens of each State enjoy the same rights as the others in the State. Nathan McClintock

[edsheppa]

I'm not an expert by any means, but the author of that article I linked definitely thinks that substantive due process is based on an interpretation of the due process clause of the 14th.

... The Due Process Clause of the Fourteenth Amendment, ratified in 1868, declares, "[N]or shall any State deprive any person of life, liberty, or property, without due process of law" (§ 1). This clause limits the powers of the states rather than those of the federal government.

The Due Process Clause of the Fourteenth Amendment has also been interpreted by the Supreme Court in the twentieth century to incorporate protections of the Bill of Rights, so that those protections apply to the states as well as to the federal government. Thus, the Due Process Clause serves as the means whereby the Bill of Rights has become binding on state governments as well as the federal government.

... The modern notion of substantive due process emerged in decisions of the U.S. Supreme Court during the late nineteenth century. In the 1897 case of Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832, the Supreme Court for the first time used the substantive due process framework to strike down a state statute. ... The Allgeyer case concerned a Louisiana law that made it illegal to enter into certain contracts with insurance firms in other states. The Court found that the law unfairly abridged a right to enter into lawful contracts guaranteed by the Due Process Clause of the Fourteenth Amendment.

[NathanM]

Good point. However, I do not believe the Founders would have approved of the 14th Amendment, because it is totally contrary to what they believed and wrote.

[edsheppa]

Probably true but irrelevant. They believed in the consent of the governed and, realizing that the opinions of the people about government change in time, the founders were wise enough (the second time around) to make it possible to amend the constitution and thereby change the law of the land - even is ways of which they might disapprove.