Posted on 08/21/2003 8:33:17 AM PDT by rwfromkansas
Edited on 04/22/2004 12:37:00 AM PDT by Jim Robinson. [history]
MONTGOMERY, Ala.
(Excerpt) Read more at foxnews.com ...
Now, since you consider my earlier comments a joke, why don't you tell us all, after Slaughter-House, what the legal import of the privileges and immunities clause is?
Let's say the 14th DOES incorporate the 1st against the states--but the 1st Amendment was never intended to protect commercial speech, for instance--but everyone on the Court today recognizes that the 1st Amendment protects commerical speech, and that includes Scalia and Thomas. Heck, for that matter, the 1st Amendment was never intended to protect political speech that was critical of the Administration--see, for instance, the Alien and Sedition Act which was drafted by many of the same folks which drafted the Constitution and the Bill of Rights. I think the most accurate "originalist" glint on the 1st Amendment was that it intended to forbid "prior restraint" by the government. We can't stop you from saying it, but once you say it, you can still be put in hot water.
I doubt seriously whether the authors of the 14th Amendment intended to "incorporate" the establishment clause against the states, but it's really a non-issue. I don't think even the largest "originalist" in the world would argue that the 1st Amendment shouldn't apply against the States. I consider Thomas to be the biggest "original intent" Justice on the Court, and I've NEVER seen an opinion of his which claims that the establishment clause shouldn't apply against the States. Maybe I'm wrong.
I'm concerned with a lot of the language floating around today to describe judges because there's simply no such thing as an "originalist" or "textualist." They can't exist in today's world; they'd never become judges.
So essentially what I'm saying is that from where I sit, the "original intent" of the Founders is a red herring, clung to or villified by any judge, just depending on whether the original intent supports his position or not. If the "original intent" supports his argument, you bet he'll cite it or quote it or whatever. If it appears that it doesn't, it's pushed to the corner and maybe mumbled about in the opinion and then glossed over to make room for the expanded version of events. The expansion of rights is not a bad thing, as I see it, especially when it comes to preventing government oppression in the form of religious persecution.
And what's more, you know it, hence the dishonest comment.
Blaine was an anti Catholic bigot and the fruits of the anti Catholic bigotry have contributed to the mythical wall.
You want to debate the Blaine Amendments smart guy. Be my guest. You need an eduaction.
But first, why don't you be a man and acknowledge the fact that TWO of the authors of the 14th Amendment offered an Amendment after the ratification of the 14th to apply the "establishment clause" to the states.
Nothing worse than a smartass absent the smarts.
Why, a run at the Governorship...what do you think this whole thing was about anyway?
Actually, I've already addressed it, but I'll put it point-blank for you: there is no such right in the 14'th Amendment that you infer ought to exist, for one very simple reason. Namely, the 14'th Amendment extends the protections of the Bill of Rights by restricting how states may act, and there is no protection from interference in secular ideas within the Bill of Rights that is akin to the First Amendment protection for freedom from interference with religious expression. None. You seems to be implying that such a thing ought logically to exist, but there is absolutely no support for such a notion anywhere in the Constitution, equal protection claims notwithstanding. And despite your apparent advocacy of such a thing, I know you are quite clever enough to recognize that if such a thing as you propose were invented out of whole cloth, it would render the implementation of any sort of public policy impossible, composed of competing secular ideas as they are. And I mean any public policy - it would no longer be possible for politicians to implement their preferred policies if such a thing were to come to pass.
Courts, you say, ought to base their decisions in "rational principles" and evaluate their impact in future situations. I agree. Unfortunately, you have yet to stumble upon a rational principle which you seek to extend - this equal-protection for secular ideas thing ain't it, I assure you, based as it is on no text within the Constitution, no ideas of the founders. Nothing, it appears, at all, save your desire to invent consequences that will act to preserve Judge Moore's illegal and unconstitutional advancement of his own religion at the expense of others.
You asked for direct - you have it, my friend. I respect the heck out of you, but this line of reasoning you are developing is neither tenable, supportable, historical, or Constitutional. And now you may answer my question directly: by what right doeas Judge Moore enjoy the power of the state to promote his religion, while simultaneously denying that freedom to others?
In case you forgot, I wasn't the one who brought up Blaine, smarta*s.
I've asked for what you reference, since some of what you discuss is clearly prior to the passage of the 14th. Interestingly, you never seem to want to deal with the 14th itself. What say you to this passage?
There has never been much the anti-incorporationists could do with the May 1866 speech by Senator Jacob M. Howard, Republican of Michigan, formally introducing the Fourteenth Amendment in the Senate on behalf of the Joint Committee on Reconstruction, which was reprinted as front-page news the next day in the New York Times.[79] Senator Howard declared that the privileges and immunities protected by the Amendment would include
the personal rights guarantied [sic] and secured by the first eight amendments of the Constitution; such as [he then listed rights contained in the First, Second, Third, Fourth, Sixth, and Eighth Amendments] . . . . [I]t is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied [sic] by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. . . . [T]hey stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating . . . them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.[80]
Howard’s views on incorporation were thus consistent with those of Bingham, the primary framer and leading House backer of the Amendment, and not a single member of either House of Congress, throughout all the debates, ever contradicted their plainly expressed understanding.[81]
[79] See Curtis, No State, supra note 22, at 87, 128; Fairman, supra note 22, at 54, 68 (both citing, inter alia, N.Y. Times, May 24, 1866, at 1). The New York Times also fully reported Bingham’s earlier speeches, unambiguously conveying his understanding that the Amendment would enforce the Bill of Rights against the states. Bingham’s speeches to this effect were also widely distributed in pamphlet form. See Aynes, Bingham, supra note 54, at 72 & nn.84–85 (citing, inter alia, John A. Bingham, One Country, One Constitution, and One People: Speech of Hon. John A. Bingham, of Ohio, in the House of Representatives, Feb. 28, 1866, in Support of the Proposed Amendment to Enforce the Bill of Rights (1866); N.Y. Times, Mar. 1, 1866, at 5; id., Mar. 10, 1866, at 1).
[80] Cong. Globe, 39th Cong., 1st Sess. 2765–66 (May 23, 1866).
[81] See Curtis, No State, supra note 22, at 91; Amar, supra note 22, at 1238. Anti-incorporationists have tried to blunt the impact of Howard’s speech by various means. Aside from denigrating Howard’s abilities and clarity of thought (the same tactic used against Bingham, see supra notes 71 and 73), some have placed undue stress on the fact that he was filling in for Senator William P. Fessenden, Co-Chairman of the Joint Committee, who was ill. See, e.g., Berger, Fourteenth, supra note 60, at 135–37; Berger, Government, supra note 33, at 147–48; Fairman, supra note 22, at 54–57, 134 n.381. This seems to grasp at straws, because Howard was a member of the Joint Committee and thus had been privy to its discussions and was obviously trusted by his colleagues to speak in Fessenden’s stead. Furthermore, his lengthy and detailed speech indicated thorough preparation and command of the issues. See Curtis, No State, supra note 22, at 126–28.
...a Justice with whom...
Father Foote, a Jesuit Priest and my English Professor of years gone by, would have been deeply ashamed of my last post.
"Measures of great Temper are necessary with the Germans: and am not without Apprehensions, that thro' their indiscretion or Ours, or both, great disorders and inconveniences may one day arise among us; Those who come hither are generally of the most ignorant Stupid Sort of their own Nation, and as Ignorance is often attended with Credulity when Knavery would mislead it, and with Suspicion when Honesty would set it right; and as few of the English understand the German Language, and so cannot address them either from the Press or Pulpit, 'tis almost impossible to remove any prejudices they once entertain. Their own Clergy have very little influence over the people; who seem to take an uncommon pleasure in abusing and discharging the Minister on every trivial occasion. Not being used to Liberty, they know not how to make a modest use of it; and as Kolben says of the young Hottentots, that they are not esteemed men till they have shewn their manhood by beating their mothers, so these seem to think themselves not free, till they can feel their liberty in abusing and insulting their Teachers. Thus they are under no restraint of Ecclesiastical Government; They behave, however, submissively enough at present to the Civil Government which I wish they may continue to do: For I remember when they modestly declined intermeddling in our Elections, but now they come in droves, and carry all before them, except in one or two Counties; Few of their children in the Country learn English; they import many Books from Germany; and of the six printing houses in the Province, two are entirely German, two half German half English, and but two entirely English; They have one German News-paper, and one half German. Advertisements intended to be general are now printed in Dutch and English; the Signs in our Streets have inscriptions in both languages, and in some places only German: They begin of late to make all their Bonds and other legal Writings in their own Language, which (though I think it ought not to be) are allowed good in our Courts, where the German Business so encreases that there is continual need of Interpreters; and I suppose in a few years they will be also necessary in the Assembly, to tell one half of our Legislators what the other half say; In short unless the stream of their importation could be turned from this to other colonies, as you very judiciously propose, they will soon so out number us, that all the advantages we have will not in My Opinion be able to preserve our language, and even our Government will become precarious." --- Benjamin Franklin
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