Part of the problem is that it is the nature of authoritative tradition that it cannot be made fully explicit. All we can ever put to explicit word and symbol is the top of the iceberg poking out of the water. So the problem is deeper than just fixing the founding so that the traditional part is more explicit, while still retaining the liberal part.

There are three primary forms of immanent authority: explicit principles, implicit tradition, and authority vested in actual persons. Any functional polity that hopes to endure must admit them all — the most phenomenologically difficult of these for a modern is that human authority must sometimes trump explicit principles (Solomon must sometimes be able to break the rules). All three must exist in a harmonious balance, with none ascending to a level of tyranny over the others.

That also begs the questions: what about the liberal part is worth retaining, and what sort of liberalism (if any) is it safe to retain given its Hegelian propensity to consume everything?

I gather then that Matt disagrees with the monument (not with the right of Alabama to have it, but with the desirability of the monument itself)?

Further, if Matt does oppose the monument, then what happens to traditionalist conservatism?

There are a couple of different arguments here. Matt says he opposes making tradition explicit. I’d like to hear more on that. But he also says that principles must be explicit. So the question becomes, is the Decalogue in this instance a tradition or a set of principles?

If anyone wants to inform himself further about the case, here is the U.S. Circuit Court of Appeals decision. It also provides the factual background, which cannot be found in any news stories that I’ve seen.

http://www.stcl.edu/faculty_pages/faculty_folders/terrell/frstam/GlassrothVsMoore.doc

To get an idea of the established understandings of the non-establishment clause that Moore is contending against, below is a quote from the decision, which in turn quotes a 1989 Supreme Court decision: It is apparent that from this phrasing, even a government expression as to the mere existence of God would be considered unconstitutional.
——
In the more than two centuries since that clause became part of our Constitution, the Supreme Court has arrived at an understanding of its general meaning, which is that “government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution’s affairs.”
——

I am in perfect agreement with the monument, actually. A small step in the right direction is still a step in the right direction.

It isn’t that I am opposed to making tradition explicit. It is that it is literally impossible to make tradition fully explicit, and that the attempt to do so leads to the error of thinking that only the explicit has authority.

Finally, the decalogue is the explicit tip of an iceberg of tradition. When we hear “thou shalt not murder” we know what “murder” means, but it can never be made fully explicit for all possible persons and circumstances. Moderns like to say “thou shalt not kill” instead because it give a cozy feeling of having a more complete and explicit definition, even though we know that that complete and explicit definition is wrong.

President Grant had advocated a constitutional amendment that would specifically prohibit any ‘religious’ instruction in public schools, as well as the use of tax monies for religious schools, and requiring taxation of all church property. His Seventh Annual Message to Congress, Dec 7, 1875, also included the following proposal to be “legislated upon and settled at this session”:

“Declare church and state forever separate and distinct, but each free within their proper spheres…”

He also articulated these views in a speech to the Society of the Army of Tennessee in Des Moines, Sept 30, 1875.

It must seem strange today that a President would have called for a codification of separation of church and state! But having failed in these pursuits, secularists switched to another ultimately successful strategy, that of using judicial ‘interpretation’ to effect their aims. Beginning in the mid-1940’s, (perhaps the Ballard Case of 1944?) this effort began to bear bitter fruit.

As to the fact that the Founders did not explicitly affirm in our Supreme Law the Christian basis of our Republic, I have seen a number of quotes expressing concern over how the loss of such an understanding would lead the political structure into decline. The Farewell Address expressed this. But I have to wonder whether the Founders could have envisioned how steep our decline could be. They may have neglected to clarify this for the same reason they would not have debated whether low-level helicopter surveillance represented an infringement of property rights.

It was so well understood even a century later, that only a year after President Grant’s tirades, a Supreme Court decision read:

“This is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation … These are not individual sayings, declarations of private persons: they are organic utterances, they speak the voice of the entire people … These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.”

I am only beginning to understand more of the history behind all this, so I welcome clarifications and rebuttals.

That’s a great quote from the 1892 case Holy Trinity Church vs. U.S. Curiously, the controversy had nothing to do with religion but with a church that had contracted to employ a rector from Britain, which violated a U.S. statute designed to discourage contract immigrant labor. The Court said the law was obviously not aimed at a high level professionals such as a churchman, but at cheap labor, and besides, no law could stand that got in the way of religion. Then it went into an interesting series of quotes backing up the view of America as a Christian nation.

The record on Grant is also interesting and shows how the U.S. might have taken very different paths. We might have put “separation of religion and state” in the Constitution—but we didn’t. We might have said that Congress could veto any law passed by a state (which was Madison’s proposal)—but we didn’t. And, as Joel says, when centralizers didn’t get what they wanted through lawful means, they began to pursue it through unlawful means, corrupting our whole system in the process, until by now it’s unimaginable how we could return to Constitutional probity since it would require the literal destruction of much of the governing apparatus of modern liberal America. Yet my position is that that’s what we should seek.

Also, under existing precedents on religious establishment, it’s hard to see how Judge Moore could have won his case. But that’s the whole point. Courts have kept expanding their definition of an unlawful establishment of religion until it means virtually any expression by the state intended to advance or promote religious belief. It seems to me, as with so many other areas of Constitutional overreaching, that the solution is to fix the 14th Amendment by getting rid of the Incorporation Doctrine which applies the First Amendment to the states. Then cases like this simply wouldn’t arise at the federal level; and, without that ongoing juggernaut, the endless expansion of the prohibited type of activities would cease as well. State constitutions would of course have their own measures as to religious establishment.

Part of the problem with trying to advocate this, which I’m not sure how to respond to, is that the public has now taken the Bill of Rights for granted as applying to them on all legal levels. And this is true even on conservative issues.

Hence, we speak of our Second Amendment rights, but expect them to be honored at the state and local levels as well. Easy for me to say, being a West Virginian whose State Constitution explicitly grants me the right to keep and bear arms — and use them. But the Second Amendment is really only a restriction on Federal power.

Would this also mean that a state could outlaw American Renaissance conferences being held therein? Or AmRen literature being propagated? Or VFR being downloaded?

I think these questions have to be addressed and worked through.

And frankly, in the case of the First Amendment, it explicitly says only what Congress cannot do. The language of the Fourth Amendment for instance is more general, “The right of the people … shall not be infringed.” Perhaps this is why you single out the First Amendment in referring to the Incorporation Doctrine, although I’ve always understood this doctrine to refer to the whole Bill of Rights, (and never understood where this leaves the 9th and 10th Amendments.) But these are probably just details that all point to the same question.

Don’t hold me to this, but I in all cases I can think of, the Incorporation Doctrine has applied only to the First Amendment, overthrowing, for example, school prayer, loitering and vagrancy laws (right of the people peacefully to assemble, hah hah), laws against pornography, and so on. I think (but am not sure) that the Fourth Amendment has always been a restriction on state as well as federal officials, similarly the Eight Amendment on cruel and unusual punishment. So the original Bill of Rights did restrict the states.

In answer to your question, without the Incorporation Doctrine, a state probably could outlaw an American Renaissance conference or whatever. For that matter a state could institute socialism or various economic controls. The Supreme Court overthrew various progressive-era legislation that it saw as a restriction on free economic activity. But judicial conservatives today like Bork today say that was an example of conservative judicial activism.

In addition to rejecting incorporation, which makes no sense whatsoever in the federal system, since the purpose of the Constitution was to distinguish powers that were allocated to the states from those which were allocated to the federal government, not to make the states miniature yet impotent models of the federal government, we need to return to a rugged common sense in interpreting the language of the Constitution. “An establishment of religion” is a government-supported church. None of the issues that arise under this language—hillside creches, prayers at football games, the Pledge of Allegiance, vouchers for attendance at Catholic schools, and now a courthouse monument commemorating the transcendent sources of our Law—bears the remotest resemblance to the establishment of a government-supported church with the ills such an establishment was believed to bring in its train. Anything short of that, and anything not creating a real danger of that, does not come under the prohibition of the Establishment Clause. In retrospect, some day, the daring innovations of the 20th century’s liberal courts may seem no more than reckless and decadent sophistry.

To go back to the original point, to the generation of the Founders, a man’s faith was his essential and most precious quality. It would have been incredible to them that Jacobinism could gain a foothold here and exploit their civilized self-restraint (in leaving the transcendent basis of society in the background)to deny the transcendent basis and abolish civilization.

I agree entirely with Mr. Carpenter, and this is precisely the area where, in addition to the procedural expansion of the Incorporation Doctrine, the substantive definition of establishment itself has kept expanding. This issue is discussed in the decision I linked above. Moore says the monument is not commanding or forbidding, which is what a “law” does, as in “Congress [or under the ID, “the states”] shall make no law …” Unfortunately, the Court then turns to established precedents, summarized in the Lemon Docrine, which defines any promotion or advancement of religion as an “establishment” of religion. Another operative test is that the activity must have a secular purpose. They determined that Moore’s monument does not have a secular purpose; it is, by his own account of it, intended to bring people back to an acknowledgement of God. No way that that’s “secular.”

The upshot is, the only way to get out of this dead-end is that the whole structure of modern jurisprudence in this area has to be swept aside. That would mean nothing less than a revolution. Is that about to happen? No. But the tragic thing is, that conservatives don’t even talk about these issues any more. They’re not even aware they exist. Instead of trying to get rid of Incorporation, they’ve tried creating _additional_ federal rights to counter the liberal juggernaut, thus deepening the Constitutional chaos in which we live.

In reply to Mr. Carpenter’s second comment, I do think that people in, say, the early 19th century would have not wanted such a conspicuous, dominating monument as Moore’s seems to be. They wouldn’t have felt the need for it, because the religious basis of the society was secure. But now, in a kind of reaction to the total secularization of society, Moore is trying to force religion back into the public square in a very bold and aggressive way.

The imposition of the Incorporation Doctrine seems to have it’s beginning in the 1925 case Gitlow v. New York, which indeed applied the First Amendment via the 14th.
http://www.lewrockwell.com/kirkwood/kirkwood8.html
http://www.hrcr.org/safrica/expression/gitlow_ny.html

As to whether the other Amendments were thought to apply to the States previous to this, they apparently were not. The only case I could immediately locate that addressed this was Maxwell v. Dow (1990), which at one point reads:

“In order to limit the powers which it was feared might be claimed or exercised by the Federal government, under the provisions of the Constitution as it was when adopted, the first ten amendments to that instrument were proposed to the legislatures of the several states by the first Congress on the 25th of September, 1789. They were intended as restraints and limitations upon the powers of the general government, and were not intended to and did not have any effect upon the powers of the respective states. This has been many times decided.”
http://www.soc.umn.edu/~samaha/cases/maxwell%20v%20dow.html

A few commentaries noted that the extension of the other Amendments to the States, pursuant to the Incorporation Doctrine, occured gradually in the ensuing decades after ‘Gitlow,’ notably by the Warren Court.
So the question I think is one we have to address, and carefully, before we can present the case for original Federalism, as there are hazards here that could frighten liberal and conservative alike.

Regarding Mr. Carpenter’s excellent observation, I would only add that States continued to have their own established churches long after the passage of the Bill of Rights. In fact, I believe some States had more than one.

It’s odd, then, that only the First Amendment says “Congress shall make no law …”, while the others say things like, “such and such right shall not be infringed.” But I guess the real meaning was known and understood.

However, Gitlow v. New York doesn’t seem to have anything to do with Incorporation. The Court rejects Gitlow’s case that the New York State law against anarchy under which he was convicted was unconstitutional, and re-affirms his conviction.

Also, a key case holding that the Establishment Clause applies to the states through the Due Process Clause of the Fourteenth Amendment is Everson v. Bd. of Educ. (1947):

http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/historic/query=[Group+330+U.S.+1:]([Level+Case+Citation:]|[Group+citemenu:])/doc/{@1}/hit_headings/words=4/hits_only?

I’m not sure yet why so many academic and legal sites point to Gitlow as a pivotal decision. However, the Court upheld the conviction only on the merits and not because the First Amendment did not apply. The whole assumption underlying the case is that it DID apply, which is why the Supreme Court claimed any jurisdiction in the matter at all. The Court upheld the lower ruling on the basis that the right of free speech protected by the First Amendment ITSELF has practical limitations, which is still true today, though obviously to a lesser standard in terms of advocacy of revolution, et.al.

This is probably the reason why the case is considered an important precedent. The Maxwell case I referred to above was delivered only 25 years prior, so a significant change in the Court’s jurisprudence had taken place in a relatively short time. And other cases, including the Everson case you cite, must have proceeded in some degree from Gitlow.

But to return to the main question of how we present our case for Federalism, we have to give careful consideration to the implications of this. Even if it were only the First Amendment that had no relevance to the several States, this still leaves open the power of each State to ban certain religions, free speech, a free press, free association. Hence a State could require Boy Scouts to accept homosexual leaders, as just one example here. Under present societal circumstances, this presents serious complications in itself.

But if our position is construed to mean that the rights secured by the other Amendments offer no protection from state or local laws, then we lose before the fight has begun. It’s a huge loose end I have never been sure how to address.

I seem to be chasing an ever receding object. The Appellate Court in the Judge Moore case referred to Everson v. Bd of Ed. as the case that applied the First Amendment to the States. I looked up Everson, and Everson says it was Murdoch v. Pennsylvania (1943) which applied the First Amendment to the states. I looked up Murdoch, and the Court in that case treated the application of the First Amendment to the states as an already settled principle, with Justice Douglas writing: “The First Amendment, which the Fourteenth makes applicable to the states …” So I’m leaving this hunt for the time being.

[In fact, Everson was the first case that applied the non-establishment of religion clause to the states. See comment posted below at 11:04 p.m. for explanation.]

I think Joel’s concern about state tyranny may be misplaced. Look at it this way. Government decisions ultimately have to be made somewhere, at some level . Some entity is finally going to have authority. If the states don’t have it, the national government will have it. So, what do you do if the national government becomes tyrannical? Ultimately authority is going to rest somewhere and you can’t escape it forever. But the federal type system allows the greatest play for self-government.

The practical question is, what is the appropriate level of government for a particular kind of matter. The original Constitution left the states completely free to make authoritative decisions as to speech and religion (within the limits that each state was guaranteed a “republican form of government,” which would preclude outright tyranny). If under the original Constitution, a state banned meetings by conservative organizations, people could protest that law and try to change it. If they failed, they could move to another state. Other states would probably condemn the first state, which would become isolated. All this would be the normal working of self-government. You win some, you lose some.

For example, in the 1790s Pennsylvania had a radical democracy, with a one-house, democratically elected legislature and a weak governor. The have-nots began lording it over the haves, with very little appeal because power was so centralized in the legislature. The system didn’t work and was abandoned. But the point was that under the Constitution Pennsylvania had the right to experiment with such a government.

Beware falling into the liberal attitude that sees the states as tyrannies for which the only cure is the federal government. That’s what got us into the modern liberal state in the first place.

Another matter that naturally belongs at the state level is the regulation of marriage. But that assumes an overall agreement among the states as to what constitutes marriage in the first place. An attempt to redefine marriage to include homosexual couples is such a radical attack on those common assumptions that a law stopping it by formally defining marriage as consisting of one man and one woman appropriately belongs at the national level. The national level attends to the fundamentals. Once those fundamentals are assured, the states attend to the particulars appropriate to each community.

Actually the answer is found in Murdoch, in the dissent by Justice Jackson, (who dissented only on the merits,):

“It is only in recent years that the freedoms of the First Amendment have been recognized as among the fundamental personal rights protected by the Fourteenth Amendment from impairment by the states. Until then these liberties were not deemed to be guarded from state action by the Federal Constitution. The states placed restraints upon themselves in their own constitutions in order to protect their people in the exercise of the freedoms of speech and of religion.”

In the footnote to the first sentence quoted above, he cites 3 cases as precedent:
Gitlow v. New York (1925)
Near v. Minnesota (1931)
Cantwell v. Connecticut (1940)

Gitlow is just the earliest such case.

It is no surprise that in each case you mentioned the most recent decision would be cited as precedent — the most recent would be the most liberal. :-/

It occurred to me after I my last post that Gitlow had an eerie parallel to Marbury v. Madison, with Chief Justice Marshall’s seemingly self-deprecating sleight-of-hand which resulted in the precedent of judicial review. Similarly, Gitlow affirms the lower court ruling on an interpretation of the First Amendment, but in deciding the case on that basis at all had effected another judicial revolution.

My concern was not really about state tyranny, (and I agree with your last sentence 100%,) my concern was over how to present this case to others.

And sir, you have given me just the answer I needed and was missing. :-)

(Just remember though, you’re talking to a West Virginian, whose people had to secede from the ‘mother’ state over such things.)

Also, a link to the full text of Murdoch:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=319&invol=105

Without looking at Murdoch again, I’d say it seems like more of the same. That is, Justice Jackson is referencing an already established principle. I’ve yet to find the case where Incorporation was actually enunciated. It’s an extremely radical change in the Constitution.

A correspondent sent me this which provides a useful summary of the reach of the Incorporation Doctrine. Notice that one of the motivating factors for Incorporation was that the language of the 14th Amendment, the “liberty” that could not be taken away without due process of law, was so vague that it had to be filled with some substance; so the Court looked to the Bill of Rights for the substance. But this seems to me like complete bull, because the liberty language is entirely clear and unambiguous and not needing any amplification. It simply means a person cannot be deprived of his liberty, i.e., he cannot be arrested and placed in prison, without a proper, formal, judicial proceeding. But somehow they expanded this “liberty” to mean the freedom of speech, the freedom to sell pornography, the freedom to practice animal sacrifice, the freedom to loiter, the freedom to be a vagrant, the freedom to go to public school dressed like a bum, and all the other “freedoms” that state and local governments are now helpless to restrict. And of course, they completely separated these freedoms from the idea of due process. Now these freedoms were protected from _any_ government restriction, not just from an absence of due process. The whole thing is a total outrage, a monstrous perversion of language. Yet that is the basis of the modern Constitutional system under which we have lived for many decades now.

DUNCAN V. LOUISIANA 1968 EXCERPT FROM JUSTICE BYRON WHITE’S OPINION

“The Fourteenth Amendment denies the States the power to “deprive any person of life, liberty, or property, without due process of law.” In resolving conflicting [p*148] claims concerning the meaning of this spacious language, the Court has looked increasingly to the Bill of Rights for guidance; many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment. That clause now protects the right to compensation for property taken by the State; [n4] the rights of speech, press, and religion covered by the First Amendment; [n5] the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized; [n6] the right guaranteed by the Fifth Amendment to be free of compelled self-incrimination; [n7] and the Sixth Amendment rights to counsel, [n8] to a speedy [n9] and public [n10] trial, to confrontation of opposing witnesses, [n11] and to compulsory process for obtaining witnesses. [n12]”

This whole issue shows how far gone we are. Grutter and Lawrence are terrible outrages. But we’ve been living under such outrages since the early to mid 20th century. When these totally irrational and indefensible expansions of the 14th Amendment were instituted and _not_ protested in the strongest way, the country’s constitutional and intellectual basis became deeply corrupted thereby. Having already yielded the key principles, how could the country protest yet further corruptions as they developed from decade to decade? Roe v. Wade (based on the idea that a state statute prohibiting abortion is actually a deprivation of “liberty” without “due process of law”!), as monstrous as it was, was really just a further extension of a modern judicial “tradition” that was decades old by 1973. (To clarify: the Incorporation Doctrine that made Roe possible was decades old, but the specific new “right of privacy” that was being discovered in the penumbras and emanations of the Bill of Rights and then being “incorporated” in the 14th Amendment was only a few years old.) The pro-life movement passionately protested Roe and sought to get around it, but they never challenged the underlying perversion of the Constitition that had made it possible in the first place. They just sought to federalize the matter further, by having a federal amendment banning abortion. It’s a further example of the inability of American conservatives to think in terms of first principles.

But, as I said in the article, “Is conservatism finished?”, the realization by a significant number of conservatives over the last couple of months that conservativsm has really and finally and decisively lost the battle, may free and inspire them to articulate a deeper conservatism and try to win back the ground that was lost, to become, in a word, counterrevolutionaries, or, at the least, radical dissidents from the current system.

Here’s a clarification on Everson v. Board of Education (1947). Everson was the first case that specifically applied the non-establishment of religion clause to the states. Prior to that there had been decisions that applied the right of freedom of religion to the states. Everson mentions that previously established idea, and then extends it:

“The meaning and scope of the First Amendment, preventing establishment of religion or prohibiting the free exercise thereof, in the light of its history and the evils it was designed forever to suppress, have been several times elaborated by the decisions of this Court prior to the application of the First Amendment to the states by the Fourteenth. The broad meaning given the Amendment by these earlier cases has been accepted by this Court in its decisions concerning an individual’s religious freedom rendered since the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. There is every reason to give the same application and broad interpretation to the ‘establishment of religion’ clause.”

At least in this passage, there is no attempt to justify what the Court is doing by any logical argument. The Court is simply saying, we’ve applied this to _other_ areas, so now we are going to apply it to _this_ area. But think of what one has to accept in order to accept this: One must accept, for example, that if a municipality has a Christmas chrèche, what that is really doing is “depriving” people of their “liberty” without “due process of law.” Originally those words meant that the state couldn’t throw a person in jail without a trial. Now it meant that a town can’t display a Nativity scene.

In this connection, I’ve recently written a very long article I’m trying to get published in which I show the unbelievable, Orwellian manipulations by which the Grutter decision is justified. I describe this as unprecedented, revolutionary decision. But, when we look back at these Incorporation Doctrine cases from the early and mid twentieth century, we realize that the corruption of words and concepts that was happening then was even worse. It’s interesting to think that during the post war years, the years of non-revolutionary, anti-Communist, “Vital Center,” pro-family liberalism, America was destroying its own Constitution, and hardly anyone cared. And this was _before_ the Warren Court.

This is a fascinating discussion; and it shows how profound the subversion of our constitutional framework was, despite the cunning of the subverters in concealing it.

Willmoore Kendall wrote quite a number of essays — and maybe a book or two as well — addressing the Bill of Rights, and the First Amendment in particular, in the context of the larger constitutional tradition. Kendall brilliantly locates both documents within an American political tradition of _legislative primacy_ stretching back to the Mayflower Compact. He also argues (this was in the 1960s) that the tradition had been derailed, and that further outrages would continue until legislative supremacy was restored.

Kendall recommended various courses of action: more vigorous use of the impeachment power (to fire unruly and activist judges); Article III, Section 2 (“In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make”); and finally, if necessary, constitutional amendments. It is remarkable how much Kendall foresaw, and how clearly; and how little he was heeded by his fellow conservatives, as far back as 40 years ago.

Here is an essay I wrote after delving into Kendall’s work. It was a early attempt to get a grasp of things, and I am sure is filled with errors of varying magnitude. I would welcome any critiques by the fine mind of VFR contributors.

http://cellasreview.blogspot.com/2002_10_20_cellasreview_archive.html#83390937

It occurs to me that the step by step progress of the Incorporation Doctrine over a period of many decades, incorporating into the 14th Amendment one provision of the Bill of Rights after another and applying them to the states, is analogous to, and in large part identical with, the forward march of equal freedom itself as we’ve often discussed it at VFR. Thus, for example, Griswold v. Connecticut (1965) held that a state law restricting the sale of contraceptives was actually a deprivation of freedom under the 14th Amendment, specifically of a newly discovered right of privacy in the Bill of Rights. (In other words, with the invention of the right of privacy, it was not only the _enumerated_ rights in the Bill of Rights that were being illegitimately incorporated into the 14th Amendment and being used to overturn state laws, but even fictional rights in the Bill of Rights as well.) Then in Roe v. Wade (1973), it was found that a state law prohibiting abortion was also a deprivation of a person’s right of privacy in the bill of rights, which was incorporated under the protected “liberty” of the 14th Amendment. Then, with Lawrence v. Texas (2003), the same was found with regard to laws prohibiting private consensual acts of homosexual sodomy, and of all other possible private consensual sexual acts as well.

So, the advance of equal freedom has often been practically identical with the progressive application of the Incorporation Doctrine to more and more rights under the First Amendment, even as those rights themselves are given wider and wider definitions (e.g. the right of peaceful assembly defined as the right to loiter, or the freedom of speech defined as the freedom of children to wear slovenly or freaky clothing to public school) or are even invented out of thin air (e.g. the right of privacy).

If you guys really want to understand the Bill of Rights, as well as modern incorporation doctrine, you really must read “The Bill of Rights,” by Akhil Reed Amar, a Yale University law professor. Trust me on this one. Get it. Read it. Memorize it. Amar is not a conservative himself, but he’s got the history and the legal analysis (mostly) correct, which nobody else I know of does.

(I say “mostly correct” only because he’s wrong on certain issues surrounding the Civil War. Those aside, he’s spot on. You who disagree with me about the Civil War will probably agree with the man 100%.)

Here’s a link. Let your wisdom show by using it.
http://www.amazon.com/exec/obidos/ASIN/0300082770/qid=1061601231/sr=2-1/ref=sr_2_1/104-3699605-9197502

This whole thread, and Mr. Cella’s comment above in particular, prompted me to dust off an old volume passed to me by my father entitled, “We The States: An Anthology of Historic Documents and Commentaries thereon, Expounding the State and Federal Relationship.” It was compiled by the Virginia Commission on Constitutional Government and published in 1964.

I have just read the Introduction. Had I done so earlier, I would have had no need to bother Mr. Auster for suggestions in countering objections to original Federalism.

I leave with my friends here an exerpt:

“Today it is apparent to even the most casual eye that the house of our fathers has fallen into decay. The great beams that gave it strength—the separation of powers within the central government, the division of responsibility between the States and the Federal authority—now tend to crumble under subtle and insidious attack. The men who framed the Constitution built tight doors against the despotism they knew so well; now the doors hang awry, and a cold wind of judicial construction sweeps along the corridors. The States themselves, falling into impotence, often seem helpless to halt the destruction. And too many Americans, afflicted with the ills of an affluent society, are indifferent to the fundamental principles by which the greatness of the American Republic was achieved.”

The remainder of this essay, (and particularly considering the time it was written,) is enough to evoke in the mind of a conscious traditionalist a sense of unremitting terror.

Thanks to Joel for giving us that magnificent passage. Who wrote that?

The complete Introduction was written by James J. Kilpatrick, who served as Vice Chairman of the Commission, (and Chairman on the Committee On Publications.) Strangely, (or not,) I have seen no reference to his participation in this Commission during a brief Internet search of various biographies.

The Chairman of the Commission was David J. Mays, whom I’ve never heard of.

Question for Bubba: In the Amazon reviews of The Bill of Rights, one reviewer criticizes Amar for his vitriol directed at Raoul Berger (author of the seminal Government by Judiciary: The Transformation of the Fourteenth Amendment). Can Bubba tell us (briefly) what is Amar’s beef with Berger? :-)

In answer to my question above, a correspondent sent me this quote from a review. It seems Amar believes incorporation was the intent of the framers of the 14th Amendment from the start, a radical and inplausible notion. I wonder, then, why Bubba would so strongly recommend his book?

“In one of the most compelling sections of the book, Amar argues strenuously that the authors of the 14th Amendment did intend for it to comprehend the various provisions of the Bill of Rights and thus make them applicable to state action. Thus Amar defends the doctrine of incorporation fashioned by the Supreme Court during the age of conservative activism and brought to fruition by the Warren Court in decisions like Malloy v. Hogan (1964) and Duncan v. Louisiana (1968). Here Amar effectively takes on Raoul Berger and others who argue that the doctrine of incorporation smacks of judicial imperialism.”

A brief footnote to the above remarks regarding the advance of equal freedom: in the same period some basic rights have been expanded beyond all recognition, and new fundamental rights have been invented out of whole cloth, fundamental rights of property and economic freedom have been interpreted into non-existence. For example, a legislature need only have a “rational basis” for violating an economic actor’s right to equal protection of the laws. There are rights liberals like, and rights liberals don’t like.

“There are rights liberals like, and rights liberals don’t like.”

Yes, but that’s not, as many conservatives believe, contradictory or hypocritical. Liberals expand the rights (e.g., radical sexual freedom) that break down traditional society and institutions, and restrict the rights (e.g. property) that uphold traditional society and institutions. The two seemingly contradictory categories of acts really belong to one, unitary agenda.

To Mr. Auster: Who died and made Raoul Berger God? :) Amar’s book is a re-examination and reinterpretation of the Bill of Rights—a reinterpretation, however, only relative to commonly held opinion today. It is not some pie-in-the-sky wack job of historical revisionism. It is a scholarly work well fortified with loads of references for your researching pleasure. Amar means to show that much of what has been taught and believed about the BoR—the original articles as well as subsequent innovations—over the course of the last decades is, ahem, wrong.

Thus, the question isn’t whether Amar agrees or disagrees with Raoul Berger. The proper question to ask is, is Akhil Amar right? I say he is.

Let me ask you this: why does it seem to you to be somehow beyond the pale to suggest that the framers of the Fourteenth Amendment intended it to form the basis for incorporation of the BoR against the states? The very wording of the Amendment itself, as Amar explains, demands it. Moreover, the radical Republicans who drafted it were avowed enemies of state’s rights doctrine and massive centralizers. Frankly, I can’t see how anyone would think that they WEREN’T interested in restricting the rights of the states vice the central government in every conceivable area. But anyway, I don’t want you to take my word for it. Read the book. See for yourself if Amar’s argument is compelling or not, rather than judging it before you’ve heard it. That’s all I meant to achieve by my posting: to get people to read the book.

Bubba’s assertion on the inevitability of the Incorporation Doctrine as proceeding from the 14th Amendment is simply not supported by the historical record.

I will repeat again what I posted above, an exerpt in the decision of the U.S. Supreme Court, Maxwell v. Dow, made as recently as 1900, (and not 1990 as I erroneously mistyped,):

“In order to limit the powers which it was feared might be claimed or exercised by the Federal government, under the provisions of the Constitution as it was when adopted, the first ten amendments to that instrument were proposed to the legislatures of the several states by the first Congress on the 25th of September, 1789. They were intended as restraints and limitations upon the powers of the general government, and were not intended to and did not have any effect upon the powers of the respective states. This has been many times decided.”

It was not until 1925, in the case ‘Gitlow v. New York’ that the Supreme Court presumed to apply the Bill or Rights, (in this case the First Amendment,) into the realm of State law. And this occurred DECADES after the 14th Amendment was ratified.

Thus did the Virginia Commission on Constitutional Government present an essay in 1960 with the title somberly asking, “Did the Court Interpret or Amend?” referencing the notorious Brown v. Board of Education.

The framers of the 14th amendment left overwhelming evidence of their intentions, namely that the rights referred to were the minimal human rights that had been specified in the Civil Rights Act of 1866, which the 14th Amdt was based on, and not any rights beyond that. Given the body of their own statements as to legislative intent, the idea that they “really” intended the BOR to be incorporated in the 14th, without their having given the slightest indication that that was their intention, is dismissible on the face of it. This position is strengthened further by the fact that it took many decades before their supposedly “real” intention of Incorporation began to applied, step by step, and not completed apparently until about one hundred years after the Amendment was ratified. Of course, I’ll be interested in reading the Amar book, but I’m familiar enough with the historical record to be extremely dubious of his thesis as Bubba has stated it here.

Alan Keyes has delivered an effective critique of this decision and its implications, and it’s worth a look:

http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=34270