“So much for the state religious establishments the First Amendment originally protected against Federal interference, and so much for the notion of self-government: it is our custodians who keep us from setting up a Taliban-style regime in America. How lucky we are to have them!” — Jim Kalb

Amen, Mr Kalb. Amen. I can say no better.

Is Mr. Kalb implying the Constitution gives state-established religions the right to remove things belonging to nonestablished religions if the things are on state property?

The original Constitution, as ratified by the people of the several states in 1787 and thereabouts, delegated certain specific duties and authorities to the federal government. All other authority was retained by the people and by the states in which they resided. The Bill of Rights was an attempt by the colonial Anti-federalists, who feared that the new federal government would inevitably slip its moorings, to forfend that by specifically prohibiting the federal government from acting in certain areas where it was thought most likely to offend. The Bill of Rights, that is to say, was a series of negatives upon the actions of the *federal government*, but had no force or effect whatsoever upon the states. The states were free to restrict speech or establish religions (or whatever) to their hearts’ content, consistent with the wishes of their citizens and their own state constitutions.

But we no longer live under the Constitution adopted in 1787. So if you’re asking whether anyone thinks the Constitution, as interpreted today, gives a state the right to suppress a religious symbol while promoting another, the answer is surely “no.” With the passage of the 14th Amendment following the Civil War, the entire Bill of Rights was reinterpreted by the courts as applying to the states as well as to the federal government.

Just a couple of qualifications on the Constitution. As far as I understand it, not all the Bill of Rights applied only to the Congress. For example, the Fourth Amendment, prohibiting unreasonable searches and seizures, makes no mention of Congress and seems to be a restriction on police powers at all levels of government. Ditto the Fifth Amendment with its protections of criminal defendants. The main change worked by the Incorporation Doctrine was on the First Amendment with all those restrictions on Congress from controlling rights of speech, assembly, religion, and so on, which were later applied to the states.

A second qualification. Though the Fourteenth Amendment was ratified in the late 1860s, it wasn’t until the early to mid 20th century that it was interpreted as restricting the states in areas where formerly it only restricted Congress. Thus, by the early 1970s, the Supreme Court was telling local governments that they couldn’t have anti-loitering laws, since these were now deemed to be restrictions on the right of the people to “peaceably assemble and petition for redress of grievances”! Thank William O. Douglas for that one.

The view of the ACLU is that the First Amendment makes a particular religious outlook compulsory at all levels of government and requires removal from public property of all suggestions of a contrary view.

The provisions of the Bill of Rights that on their face could apply to the states were not so applied until well into the 20th century. That just wasn’t the function of the document and there was a case that said as much early on. Not all such provisions apply to the states even today. The requirement of a grand jury indictment in criminal cases and the right to a jury trial in civil cases are not in terms restricted to Federal cases but are still not applicable to the states.

I would suggest a slight adjustment to Mr. Auster’s second comment, the one on the 14th Amendment to the U.S. Constitution.The 14th. provided federal rights for all state citizens, motivated by the south’s continued post civil war cultural resistance to any rights for black citizens. It saw use almost from the beginning against Jim Crow state laws irregularly for the next hundred years..

“As far as I understand it, not all the Bill of Rights applied only to the Congress. For example, the Fourth Amendment, prohibiting unreasonable searches and seizures, makes no mention of Congress and seems to be a restriction on police powers at all levels of government.” — Lawrence Auster

You’re entirely correct about the wording of the amendment but incorrect about the significance of it. The provisions of the BoR were never interpreted as applying to the states, even by Federalists such as John Marshall. Marshall specifically ruled, in fact, in the first case involving this question that came before the Supreme Court (Barron vs. Baltimore, 1833) that the Fourth Amendment did *not* apply to the states. His argument for this, as it should have, centered upon the actual history of the Bill and upon the intentions of its Framers in drafting their amendments, and not simply upon the language.

“Though the Fourteenth Amendment was ratified in the late 1860s, it wasn’t until the early to mid 20th century that it was interpreted as restricting the states in areas where formerly it only restricted Congress.” — Lawrence Auster

Mea culpa. In the interest of brevity (a virtue I’m trying to inculcate in myself, with limited success) I didn’t give a complete history of 14th Amendment jurisprudence. Basically, what I was intending was simply to suggest that it was the adoption of the 14th Amendment that provided the legal and philosophical foundation for the subsequent reinterpretation of the entire Bill of Rights, regardless of when precisely that occurred in time.

(One could point out that my use of the phrase “the entire Bill of Rights” isn’t strictly accurate, either, inasmuch as certain provisions—those of the Second Amendment, for example—have still never been used to restrict the rights of the states. They all are now applicable *in principle* however.)

That’s fascinating. I didn’t know that even Amendments that don’t say “Congress shall not …” were still understood as directed solely at Congress. But wait—what about the Fifth Amendment? Did witnesses in state courts never “take the Fifth” until after the Incorporation Doctrine in the 20th century? What about cruel and unusual punishment?

The time frame is important because there’s a lot of history in there, with the framers of the Fourteenth Amendment explicitly stating their narrow understanding of it, and then, in the next century, liberals coming along and giving it a radically different and wider scope. So, while the Fourteenth Amendment provided the pragmatic MEANS for the improper restrictions on the states via the Incorporation Doctrine, I don’t think it’s correct to say that it “provided the legal and philosophical foundation for the subsequent reinterpretation of the entire Bill of Rights.” To say the latter is to imply that the Incorporation Doctrine is constitutionally sound, rather than, as is the case, a usurpation.

Isn’t there a basic tendency built into the equal protection clause to broaden substantive equality, and in to the due process clause to broaden formal equality, though? Weren’t they created specifically as tools for the judiciary to stamp out all the various particular ways in which the various states did then and would in the future attempt to maintain inequality of former slaves? If so, doesn’t that imply that the broadening of formal equality (due process) and substantive was built into the 14th, and incorporation more of a natural phase change in an inevitable (once started) process rather than an usurpation?

“That’s fascinating. I didn’t know that even Amendments that don’t say ‘Congress shall not …’ were still understood as directed solely at Congress. But wait—what about the Fifth Amendment? Did witnesses in state courts never “take the Fifth” until after the Incorporation Doctrine in the 20th century? What about cruel and unusual punishment?” — Lawrence Auster

It was a different world back then. Local lawyers arguing in state courts didn’t always know what the federal bench had decided. Thus, there were cases, even after Barron, where incorporationist interpretations carried the day in state courts, relying, as you did in your first reply, on the evident fact that the amendments don’t all say “Congress shall not.” It is also true that *prior* to Barron some state courts interpreted some provisions of the Bill of Rights as applying to the states as well. But the fact remains that, as a matter of Constitutional law as decided by God Itself—the Supreme Court (I’m being sarcastic, naturally)—the Bill of Rights was held at least up until the end of the Civil War to apply only to the federal government BECAUSE THE INCORPORATIONIST INTERPRETATION WAS IN VIOLATION OF THE INTENTIONS OF THE FRAMERS.

“So, while the Fourteenth Amendment provided the pragmatic MEANS for the improper restrictions on the states via the Incorporation Doctrine, I don’t think it’s correct to say that it ‘provided the legal and philosophical foundation for the subsequent reinterpretation of the entire Bill of Rights.’” — Lawrence Auster

You’re right. I should have said “the semblance of a legal and philosophical foundation…” Nevertheless, I still see the 14th Amendment as fundamentally flawed in itself. I don’t think it’s possible to interpret it in any way that doesn’t have far-reaching negative consequences for the balance of power between the states and the federal government as instituted by the Framers.

“…doesn’t that imply that the broadening of formal equality (due process) and substantive was built into the 14th, and incorporation more of a natural phase change in an inevitable (once started) process rather than an usurpation?” — Matt

My own use of the word “usurpation” (I’ll let Mr. Auster speak for himself, since he also used it) reflects my opinion that the 14th Amendment was passed, in effect, by force of arms, due to the North’s victory in the Civil War and its subsequent subjugation of the South. Prior (1865) to the Reconstruction Act (1867), which placed the South under military rule and occupation and commanded them to ratify, the Amendment had been voted down by the all the Southern and border states (excepting Tennessee), causing it to fall short of the required two-thirds majority.

Jim Newland opines that the 14th Amendment was passed by force of arms.Pretty close to the truth.From my research comes the following.

Heath’s 1961 volume The Civil War and Reconstruction says of the 14th Amendment:

“The amendment…had been proposed in 1866 but had failed of adoption. The Radicals resuscitated it by providing no state could be restored to the Union until the amendment had been actually become part of the constitution.”

“Maintaining that the Southern states were not in the Union until redeemed by congress, the radicals were driven to the absurd conclusion that the (southern) states could not qualify as members of the union until after they had performed a function which only members can perform i.e. ratify a Federal Constitutional amendment.”

“In the Congressional resolution (declaring ratification of the 14th Amendment ) one of the most important congressional resolutions in American legal history, since it declared in force an amendment which has produced far reaching constitutional and economic effects, only twenty-seven states were named as ratifying the amendment and were declared to be three-fourths and more of the several states of the Union. This was certainly incorrect if the Union included thirty seven states in 1868.”

This congressional resolution of approval was not debated, was clotured forward to stop discussion and the senate vote was not recorded, only the house vote of 127 of 215 votes.”

I post the above only for the historical uniqueness accorded it by the U.S Legislature

“In the Congressional resolution (declaring ratification of the 14th Amendment ) one of the most important congressional resolutions in American legal history, since it declared in force an amendment which has produced far reaching constitutional and economic effects, only twenty-seven states were named as ratifying the amendment and were declared to be three-fourths and more of the several states of the Union. This was certainly incorrect if the Union included thirty seven states in 1868.” — Heath, via sandy

This is true. Ohio and New Jersey withdrew their support in protest over what the radical Republicans were doing down South. The Republicans simply ignored them and ignored the Constitution, declaring the amendment ratified even though they hadn’t succeeded in garnering the required two-thirds vote (even *with* the unconstitutional forced votes from the South!). Such was the way in which the entire face and character of our country was changed.

Jim
Secretary Seward,was required by his office to record the ratification as adopted , but he hedged his wording to include the phrase “If The New Jersey and Ohio consents are counted then ratification may be assumed to be effective”.(He knew they’d been withdrawn in writing)

Congress not liking his if-then language forced its own resolution as I outlined above.

Of course the law requiring a resolution announcing passage for each amendment by ratification was later discarded by the congress in favor of automaticity upon states ratification.

It’s often been said that if Lincoln had lived, the Reconstruction regime with all its bitterness would not have occurred. But this discussion adds a new twist: if Lincoln had lived, there would not have been a Fourteenth Amendment, since it was only the expanded powers that Congress had under the Reconstruction regime which included military rule of the South that gave them the power to force through the Amendment. Lincoln of course had wanted the rapid re-inclusion of the defeated Confederate states in the Union, but once he was gone there was nothing to stand against the radicals.

We are perhaps a little afield from the original comment but Larry raises some interesting speculation.

Lincoln’s personal political power certainly stood athwart the Republican party of his time and, as Larry suggests,he probably would have softened the anti- south rhetoric of his party’s radical wing and the terms for the Souths re-admission would have been less onerous.

I’m more certain that the assassin, Booth, not only gave the radicals much more fuel for their fire, but by his single action he, more imoportantly , also enucleated the moderates influence over the party for the remainder of the decade and ushered in the reconstruction era.

The south, in defeat, could hardly have had a worst enemy than John Wilkes Booth.

In reply to Matt’s question whether all the equality coming from the Amendment was inevitable, a top book in this area is Government by Judiciary: The Transformation of the Fourteenth Amendment, by Raoul Berger, which goes into the numerous statements made by the framers of the amendment showing that they explicitly limited the protected rights to “fundamental human rights,” meaning the ability to own property, to pass one’s property on to one’s children, to move about, to own a business, to make contracts, and so on, and the framers excluded from the protected rights such things as the franchise and mandated integration. The reason they did this, as Berger tells it, was that even the Northern people at the time had extreme Negrophobia and so would have rejected the Amendment if it meant overall social equality.

Of course, with the wide-open vague abstract language of the Amendment itself, it was probably inevitable that it would be stretched and stretched as time went by.

“Of course, with the wide-open vague abstract language of the Amendment itself, it was probably inevitable that it would be stretched and stretched as time went by.” — Lawrence Auster

Which is why I’m in favor of rolling back the law and the constitutional order to at least its pre-Civil War character. If we still possessed the right of self-government in any meaningful sense and the people were allowed to rule themselves locally, according to their own judgments, through real representatives rather than men who are representative in name only, we would never have had most of this insanity that we all complain about every day on these boards, because the people would never have stood for it; at worst, what insanity did creep in would have been confined to specific locales instead of being instantly spread throughout fifty states the way it is now.

Of course, being stained with the corruption that centralization has wrought it is much more difficult to go back now, but I see no other alternative. The present system is unworkable. I believe the modern US will be remembered in history as proof positive that James Madison was wrong in thinking that a huge republic could long endure free. We need to return to the original vision of a federation of independent states, united for certain purposes and for certain purposes only. I’d even like to see the states themselves broken up into smaller pieces, given that they are too big and unwieldy anymore (but only as the people themselves will, of course).

I couldn’t agree more, Jim Newland, with every single thing you just said. Let’s get started! Let’s go back to the very last place we remember being, just before everything began going so horribly wrong, and let’s do everything over again, making it all come out right this time.

Reagan said it was morning in America? It still is. Let’s change our ghastly nightmarish midnight, the result of some horribly mistaken wrong turns we took all those years ago, into the blessed streaming-through-the-windows break-of-day sunshine of a new morning and a new beginning.

Let’s do it!

Jim Newland writes:
“I’d even like to see the states themselves broken up into smaller pieces, given that they are too big and unwieldy anymore (but only as the people themselves will, of course).”

Isn’t there something a bit self-contradictory here though? Most of “the people” are liberals or neocons and would disapprove of the devolution Mr. Newland suggests; and in any case no amount of tweaking of the formal arrangements of governance will make “the people” repent from their liberalism. “The people” after all have spoken, and what they want is _The Osbornes_ and _The Sopranos_.

Thanks to Mr. Auster for the book reference.