To: sinkspur; lugsoul
In regards to the extent that the First Amendment applies to the states:
After the Barron case ruling the states were not responsible to adhere to th First Amendment, in Permoli v. Municipality No. 1 of the City of New Orleans (1845), the Supreme Court reaffirmed the doctrine that the First Amendment did not restrict the actions of states. The court said the following in its ruling:
"There is no repugnancy to the constitution, because no provision thereof forbids the enactment of law or ordinance, under state authority, in reference to religion. The limitation of power in the first amendment of the Constitution is upon Congress, and not the states."
The Slaughterhouse cases (1873, after the 14th Amendment) found that states have the right to restrict some rights and that state citizenship is different from federal citizenship. Thus, in this case, the 14th Amendment was not considered to make the BOR apply to the states.
Furthermore:
State debates on the 14th Amendment do not express even a hint of a belief that the amendment would make the BOR apply to the states, thus prohibiting more religious expressions by states than was forbidden before. There is no evidence the people debating state ratification were worried or were pleased that this might be a result of the amendment.
In Davis v. Beason, the Supreme Court REJECTED one defense that the 14th Amendment applied to the states the First Amendment and that polygamy was thus protected.
The Blaine Amendment failed, with NOT ONE PERSON speaking up and saying "hey, we don't even need this, as the 14th Amendment already does it."
It was not until 1947 that the establishment clause was applied to the states by the SCOTUS.
I believe it was 1925 IIRC that the SCOTUS first applied the BOR to the states (free speech first).
490 posted on
08/21/2003 12:23:30 PM PDT by
rwfromkansas
("Men stumble over the truth, but most pick themselves up as if nothing had happened." Churchill)
To: rwfromkansas
[In the 1873 Slaughterhouse cases] the 14th Amendment was not considered to make the BOR apply to the states.Now that's a huge understatement. What the Slaughterhouse cases did was to essentially render the Privileges or Immunities clause null and void, which of course ultimately led to what is now the hopelessly convoluted doctrine of Selective Incorporation via Substantive Due Process.
Something you might enjoy reading is Justice Thomas' 1999 dissent in Saenz v. Roe. Snippet from footnotes:
Legal scholars agree on little beyond the conclusion that the Clause does not mean what the Court said it meant in [the Slaughterhouse cases]. See, e.g., Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1418 (1992) (Clause is an antidiscrimination provision); D. Currie, The Constitution in the Supreme Court 341 351 (1985) (same); 2 W. Crosskey, Politics and the Constitution in the History of the United States 10891095 (1953) (Clause incorporates first eight Amendments of the Bill of Rights); M. Curtis, No State Shall Abridge 100 (1986) (Clause protects the rights included in the Bill of Rights as well as other fundamental rights); B. Siegan, Supreme Courts Constitution 4671 (1987) (Clause guarantees Lockean conception of natural rights); Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L. J. 453, 521 536 (1989) (same); J. Ely, Democracy and Distrust 28 (1980) (Clause was a delegation to future constitutional decision-makers to protect certain rights that the document neither lists
or in any specific way gives directions for finding); R. Berger, Government by Judiciary 30 (2d ed. 1997) (Clause forbids race discrimination with respect to rights listed in the Civil Rights Act of 1866); R. Bork, The Tempting of America 166 (1990) (Clause is inscrutable and should be treated as if it had been obliterated by an ink blot).
853 posted on
08/21/2003 8:01:07 PM PDT by
Sandy
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