. Debated by Congress in August 1876, it passed the House by a vote of 180-7, but just fell short of the necessary two-thirds vote required for passage in the Senate. The Senate vote, held on August 14, 1876, was 28-16 in favor of the amendment. 4 Cong. Rec. 5595 (1876).
The importance of the proposed amendment, as suggested by one author, is three-fold. First, the first clause of this proposal, aside from its applicability to state action, was in the identical words of the First Amendment. Second, the measure was proposed and discussed only seven years after the ratification of the Fourteenth Amendment. Third, it was considered by the Forty-fourth Congress, which included twenty-three members of the Thirty-ninth Congress, TWO OF WHOM ACTIVELY PARTICIPATED in the drafting of the Fourteenth Amendment. Alfred W. Meyer, The Blaine Amendment and the Bill of Rights, 64 Harv. L. Rev. 939, 941 (1951)[hereinafter Meyer].
Even more poignant was Senator Fredrick Frelinghuysen’s comments regarding the proposed amendment, which attests that the Fourteenth Amendment did not incorporate the First Amendment: I call the attention of the Senate to the first 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 an 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 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 establishment 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. Frelinghuysen)
. In arguing against the proposed amendment, Senator Stevenson intriguingly employed the statements of Thomas Jefferson when he declared:
Friend as he [Jefferson] was of religious freedom, he would never have consented that the States, which brought the Constitution into existence, upon whose sovereignty this instrument rests, which keep it within its expressly limited powers, should be degraded and that the Government of the United States, a Government of limited authority, the mere agent of the States with prescribed powers, should undertake to take possession of their schools and their religion… 4 CONG. REC. 5589 (Aug. 14, 1876) (statement of Sen. Stevenson).
In the end, the amendment failed to achieve the essential two-thirds majority necessary for it to begin the ratification process among the states. Mr. Meyer suggests that “ the debates on the Blaine Amendment and the later attempts to make the religious provisions of the First Amendment binding upon the states point out the historical inaccuracy of concluding that the First Amendment was incorporated by the Fourteenth Amendment.
----------------------------------------------------------------------------- Once again, here is the proof I spoke of which gives evidence to the fact that those who wrote the 14th knew that it's intent was not to incorporate the "establishment clause" of the First Amendment. Pay particular attention to the bold and capitalised words. -------------------------------------------------------------------------------- Post Reply | Private Reply | To 559 | View Replies