Saturday, October 23, 2010

The WWJD School of Constitutional Interpretation

I have little use for Christine O'Donnell, the Republican Senate candidate in Delaware, partly because she sued one of the finest conservative organizations on the planet, the Intercollegiate Studies Institute, for $6.9 million for "mental anguish" caused by alleged "gender-based discrimination." That and her record of public comment is not exactly impressive. And just by invoking tea party affiliation doesn't get you immunity from legitimate criticism.

All that being said, she's right in saying that the First Amendment does not contain the words (or the principle) "separation of church and state"--and she's right in thinking that it matters. And Rush Limbaugh was correct earlier this week in defending her.

But Ed Brayton, who fashions himself a voice of reason on church/state issues, is having none of it. Brayton loves to criticize David Barton for oversimplifying and misrepresenting the role of religion in America's founding. I agree with much of what Barton says, but Brayton is correct in criticizing some of Barton's overstatements and oversimplifications. He was also correct this week in criticizing the argument, often used by Barton and many evangelicals, purporting to demonstrate a connection between the taking of prayer out of public schools and the later decline in SAT scores. You couldn't invent a more egregious example of the post hoc ergo propter hoc fallacy--that the mere fact of something following another thing implies that the former is caused by the latter.

But secularists like Brayton don't usually just react to religionists like Barton and O'Donnell, they more commonly overreact, as Brayton does to O'Donnell's remarks:
Only an ignoramus, a moron or a demagogue would make such an argument. The fact that it doesn't use this exact phrase is irrelevant. Nowhere in the constitution will you find the phrases "separation of powers," "checks and balances" or "limited government." But no one in their right mind would claim that those concepts are not accurate descriptions of the purpose of various provisions in the Constitution.
Ed is right is saying that from the fact that something is not explicit it does not follow that it is not implicit. But if it is not explicit, you better have a good argument for saying that it is implicit. Brayton and his ilk argue that within the first, establishment clause is some latent church/state separatism. In other words the reason for preventing Congress from establishing an official national religion was because of the larger concern that government and religion be kept apart. Is this true? Was it really because they had a philosophical problem with mixing religion and government? What is the evidence for that?
How do we know this? Because the men who wrote the Constitution used those phrases to describe those provisions, just as Jefferson and Madison used the phrase "separation of church and state" to describe the purpose of the First Amendment. We can disagree about what exactly that phrase means or entails, of course; the founders themselves disagreed on it. But to pretend that it just isn't there at all is either idiotic or dishonest -- take your pick.
Somehow you just knew that Jefferson's name would come up in this regard, since he is the man who coined the phrase "separation between church and state" in a letter to Baptists. This is the most common argument for this position--just as the argument that the expression doesn't actually appear in the First Amendment is the most common argument on the other side.

Can we just map every belief Jefferson had onto the Constitution? Wouldn't that make everyone's life easier? This way, the courts could save themselves a lot of trouble trying to interpret it: they could just look at what Jefferson said, and presto, you've got your answer.

WWJD: What Would Jefferson Do?

It all sounds so simple. But while it is common to see the WWJD School of Constitutional Interpretation in operation, it's hard to find people who will actually man up and expressly admit to their assumption that we can simply take the views of a few of the Founders and simply map them onto the Constitutional language, as if the plain language of the Constitution itself didn't matter.

In fact, isn't this exactly the kind of reasoning that Brayton and his ilk criticize when they see it in the arguments of those who argue that America is a Christian nation? Can we just take some statements from the orthodox Christians involved in the Constitutional Convention and do the same thing?

So why did the writers of the Constitution try to prevent the establishment of a national church? If it was because of some commonly held belief among the delegates of the signatory states that government and religion should not be officially (or unofficially) connected, then why was it that, at the time of the signing of the Constitution, five of the thirteen colonies had established state churches? And two or three of them only disestablished during the course of the Constitutional deliberations. Only Pennsylvania, New Jersey, Rhode Island, and Delaware never had established churches.

This fact is not even in dispute. No one denies it. But people like Brayton do the next best thing: they ignore it.

Now ask yourself a question: If the First Amendment was a general declaration of the principle of the "separation between church and state," then how could the delegates from these five states have approved it? If that was the understanding, how could they, being the representatives of states with established churches, have committed their states to it? The answer, of course, is they couldn't--and wouldn't--have. It is fairly clear that those who deliberated on the First Amendment did not have anything like the view of it that the WWJD School has.

In fact, isn't it more likely, given the historical context, that at least one of the reasons Congress was prohibited from establishing a national church was that it would have conflicted with the state churches then in existence--and with state and church entanglement that existed in the colonies? That view would make far more sense than the strict separationist view that now rules in the courts and on secularist blogs.

But one thing is perfectly clear--not only from the express language, but from the likely principle that the framers were working from: the First Amendment says nothing about what states themselves (as opposed to the federal government) should or can do. Nothing. It applies only to the federal government ("Congress shall make no law..."). Brayton can bellow all he wants about "ignoramuses, morons, and demagogues," but at least the ignoramuses, morons, and demagogues can read plain language.

Let's do something that most of the people who make these kinds of arguments hardly ever do. Let's review the actual language of the First Amendment as it pertains to religion:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...
In other words, the Congress (that's right, the Congress alone) can neither establish a national religion or prohibit people from doing religious things.

That's it.

If anything is clear from this amendment, it is that its chief purpose seems to be to restrict the federal government from being involved in the issue at all--one way or the other. After all, there are only two ways the federal government could conceivably be involved: through a) having an official religion itself and b) restricting some other religion(s). So the import of the text is pretty clear: "Federal government, don't have anything to do with religion. Don't have one of your own and don't do anything to hamper anyone else's." And yet from this language has been spawned all kinds of mutant legal progeny.

The First Amendment is a limitation on the federal government explicitly, and, far from imposing a limit on the states as to what they can or cant' do about religion, part of the reason for the amendment was to protect what the states could do in promoting and entangling themselives with religion from federal government limitation.

How do we know this? Why, because Jefferson said so:
In matters of religion, I have considered that its free exercise is placed by the constitution independent of the power of the federal government. I have therefore undertaken, on no occasion, to prescribe the religious exercises suited to it; but have left them, as the constitution found them, under the direction of state or church authorities acknowledged by the several religious societies. (Second Inaugural Address)
Furthermore, Jefferson himself, as a state legislator, voted in favor of bills that entangled church and state.

WWJD. You gotta love it.

34 comments:

Singring said...

WWJD?

Let's ask him:

'Because religious belief, or non-belief, is such an important part of every person's life, freedom of religion affects every individual. Religious institutions that use government power in support of themselves and force their views on persons of other faiths, or of no faith, undermine all our civil rights. Moreover, state support of an established religion tends to make the clergy unresponsive to their own people, and leads to corruption within religion itself. Erecting the "wall of separation between church and state," therefore, is absolutely essential in a free society.
We have solved, by fair experiment, the great and interesting question whether freedom of religion is compatible with order in government and obedience to the laws. And we have experienced the quiet as well as the comfort which results from leaving every one to profess freely and openly those principles of religion which are the inductions of his own reason and the serious convictions of his own inquiries.
-- Thomas Jefferson, to the Virginia Baptists (1808) ME 16:320. This is his second kown use of the term "wall of separation," here quoting his own use in the Danbury Baptist letter. This wording of the original was several times upheld by the Supreme Court as an accurate description of the Establishment Clause: Reynolds (98 US at 164, 1879); Everson (330 US at 59, 1947); McCollum (333 US at 232, 1948)'


He would have built a 'wall of separation'.

WWJD. You gotta love it.

Martin Cothran said...

Thomas Jefferson, widely ecognized as the most vigorous advocate of church/state separation and author of the "wall of separation" metaphor, had a similar understanding of the federalism principles inherent in the establishment clause. As President of the United States, first amendment principles precluded Jefferson from declaring customary fast and thanksgiving days as previous presidents had done. Yet, as a state legislator, Jefferson demonstrated his understanding that states should be free to legislate in religious matters by voting in favor of a bill empowering Virginia's governor to make such declarations, by himself decreeing a day of prayer as governor, and by advocating use of a city court house for Sunday worship services." (William K. Lietzau, "Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation," Deapaul Law Review, Summer, 1990)

And to the question, "How do we know that the delegates to the Constitutional Convention held to Jefferson's belief in separation of church and state?" it is hardly convincing to just simply quote another Jefferson passage.

KyCobb said...

Martin,

In this case, the intent of the framers isn't particularly relevant, because the religious freedoms guaranteed against the federal government by the 1st Amendment have been incorporated by the due process clause of the 14th amendment and now apply to the states. And before you complain about that, keep in mind that by the same process the 2d Amendment right to keep and bear arms also now applies to the states. If you want to establish an official state church, you will also have to allow state and local governments to regulate firearms.

Singring said...

'it is hardly convincing to just simply quote another Jefferson passage.'

As opposed to simply quote another passage from someone writing about Jefferson?

It was you who asked so boldly 'what Jefferson would do'. Not me.

Seems to me he wanted to build a wall of seperation between church and state.

But like I've said before, I'm all in favour of the US doing away with that.

Martin Cothran said...

Kycobb:

Did the second amendment explicitly restrict its meaning to what the Congress could do?

KyCobb said...

Martin,

It doesn't say that explicitly. However prior to McDonald v. Chicago, decided this year, the Court had not applied the 2d Amendment to the states. The five Justices in the majority all applied the 2d Amendment by way of the 14th Amendment-none of them took the position that the framers intended the 2d Amendment to be applied to the states.

Martin Cothran said...

KyCobb,

The 1st Amendment explicitly states, as the 2nd Amendment does not, that the Congress can't do something. How can that apply to the states?

KyCobb said...

Martin,

The 14th Amendment prohibits the states from denying people life, liberty or property without due process of law. This includes both procedural and substantive due process. The courts have interpreted it as incorporating the fundamental rights guaranteed by the Bill of Rights which originally only restricted the federal government. Thus the states, like Congress, are now prohibited from passing laws respecting the establishment of religion. You are correct that the framers originally intended the 1st amendment to apply only to Congress, but the 14th Amendment now applies it to the states.

I know that some on the Right are worried about the possibility of muslims imposing sharia law in the United States. If local governments were not restricted by the 1st Amendment, it would increase the possibility that muslims could gain sufficient political power in some locality to enact sharia law.

One Brow said...

Martin,

The notion of the wall of separation in America is taced to Roger Williams. Jefferson *and Madison* both echoed Williams in their respective comments.

KyCobb has already pointed out why the states need to follow the same restriction. Before you become too committed to the word "Congress", please keep in ming that the First Amendment is also the location where the freedoms of speech, the press, assembly, and redress of grievances reside. Are you suggesting Kentucky has the right to stop you posting on your blog or formulating news releases?

Martin Cothran said...

Onebrow,

Let's assume the Supreme Court's interpretation of how the 14 amendment incorporates fundamental is legitimate. The only right in the establishment clause is the right of states to be protected from any attempt by the federal government to say whether it should have an established religion or not. Under your interpretation, the incorporation of the amendment by the 14th would literally result in the purpose being turned on its head.

The establishment clause protected states from the federal government messing with them on the issue of establishing a religion. If by incorporation, the exact opposite results--that now the federal government is not only allowed to do that, but required to, then that isn't incorporation. It's repeal and much worse. In your interpretation the establishment clause is not just incorporated. In fact, it's not only repealed. Under your interpretation a new amendment it put in its place to do exactly the opposite of what it was mean to do in the first place.

You can't incorporate parts of the Bill of Rights that don't involve fundamental rights but that rather spell out how the federal government relates to the states. If that were the case, then the tenth amendment would be incorporated, but it's not. There's no way to do it since it doesn't talk about fundamental rights, it talks about how the federal government relates to the states.

Just like the establishment clause.

One Brow said...

Martin,

Again, by your argument, the rights of the free press, of free speech, of assembly, and of redress to grievances all belong to the states, and not the people.

Or, does the right to freedom of religion belong to the people? If so, then the state should not be allowed to infringe on my right any more than federal government, which is the pattial purpose and general interpretation of the 14th amendment.

Thomas said...

Onebrow,

It is a demonstrable historical fact that the purpose of the establishment clause was to protect states' established religions, not to establish an individual right. The states that were pushing for the establishment clause were those who had established religions. Those who ratified the Constitution understood the establishment clause in this way.

It's also obvious from the language of the clause. If the point were to prevent establishments of religion, the language would have read "Congress shall not establish a religion", or better "no government shall establish a religion." Instead the establishment clause reads "Congress shall make no law respecting an establishment of religion", which obviously contemplates there being establishments of religion. Even a cursory view of the history confirms that the clause was meant to prohibit Congress from interfering with the states' established religions. If you have access to legal journals, 39 DePaul L. Rev. 1191 details the legal history of the clause.

By construing the 14th amendment against the states, the Supreme Court has made the establishment clause have precisely the opposite effect it originally was understood to have. In other words, the Supreme Court has made the establishment clause do exactly what those who voted for the Bill of Rights thought it would prevent. When Judges can construe an amendment to mean the opposite of what those who voted for it understood it to mean, the whole system of democracy is fundamentally broken.

This is also the problem with citing Thomas Jefferson's letters as though they had some precedential authority. The American people did not vote on his letters, and to call a system democratic in which the opinion of one person overrides the will of the people as expressed in a Constitutional Amendment is perverse.

KyCobb said...

Thomas,

"The American people did not vote on his letters, and to call a system democratic in which the opinion of one person overrides the will of the people as expressed in a Constitutional Amendment is perverse."

The system is democratic. Politicians can run for Congress and the Presidency on the promise that they will seek either to amend the Constitution to clarify that each state can establish its own official church, or to seek the appointment of Justices who will interpret the Constituion as allowing each state to establish an official church. If its important to you that Kentucky tax dollars go to support the Kentucky Baptist Convention, support candidates who will seek to make it happen.

One Brow said...

Thomas,

It's a demonstrable fact that the founders interpreted the religious proscription of the First Amendment differently. To pretend there was a single intent or interpretation is propaganda, not history. States that did not have established religions (such as Rhode Island) were just as eager to include the proscription, to avoid the federal government doing what they chose not to do. Further, in addition to not making a law respecting the establishment of a religion, Congress can not prohibit the free exercise of religion.

Just like the rights to free exercise of religion, free speech, the press, assembly, and redress belong to the people, and not the states, so does the right to not have an established religion belong to the people, and not the state.

Yes, the 14th Amendment changed the original intent of the 1st on all six of those rights, by putting the rights of the people explicitly above those of the states. There would be little point to the process of amending the Constitution if we then had to hue to the original document anyhow. The judges have correctly construed the intent fo the 14th, from what I can tell, even though this opposes the intent of the 1st in the minds of some of the founders.

I agree that Jefferson's (and Madison's) letters hold no legal weight, except to the degree that they also reflect the intent of the founders (including the original author).

Thomas said...

The original intent of the author is irrelevant, what matters is the understanding the American people had when they ratified the Bill of Rights.

"It's a demonstrable fact that the founders interpreted the religious proscription of the First Amendment differently."

Are you saying that some of the Founders did not construe the establishment clause as a delegations to state governments to decide whether or not those state governments would establish a religion? Let's see the scholarship you're basing that judgment on.

As a matter of historical fact, the establishment clause was seen as a federalist mechanism whereby the federal government was prohibited from telling states whether or not to establish religions, and which ones to establish. If you look up the legal journal article I cited above, see section A:1-2, which lays out the legislative history, clearly demonstrating that the purpose of the clause was to delegate the power to decide the controversial issue of church/state relations to the states.

Your claim that the voters who affirmed the 14th amendment wanted to incorporate the establishment clause is false for several reasons. One is that the 14th amendment does not explicitly provide for the incorporation of the Bill of Rights at all. Just read the text. The point of the 14th amendment was to prohibit laws that prevented freed blacks from access to state court systems, not to declare new rights to the public generally.

Even assuming the doctrine of incorporation is in the 14th amendment, it does not incorporate allocations of power between the federal and state governments. If it did, the commerce clause, the power to mint money, and the restrictions on the police power of Congress would be incorporated. It's unclear what incorporating these federalist mechanisms would even look like.

Additionally, around the time of the passage of the 14th amendment, there actually was a Constitutional amendment that would have prevented the states from establishing religions. It didn't even make it through the initial ratification process, and during the course of the debate over the amendment, the subject of whether or not the 14th amendment had already effectively done this never came up. Which is strange, because the 14th amendment was passed only several years earlier. It seems unlikely they would have forgotten about it.

Thomas said...

KyCobb,

Take a second and think about what you are saying. The judiciary is insulated from the democratic process. That's the whole reason for appointing them. If a system allows people who are insulated from the democratic process to overturn the will of the people as expressed in the Constitution because they disagree, that's anti-democratic by definition. This is fifth-grade civics class stuff.

Martin Cothran said...

Onebrow:

Just like the rights to free exercise of religion, free speech, the press, assembly, and redress belong to the people, and not the states, so does the right to not have an established religion belong to the people, and not the state.

How could the First Amendment involve the "right not to have an established religion" when there were established religions in some of the states?

You're not even making sense here.

KyCobb said...

Thomas,

First, the Justices aren't completely insulated from the democratic process. A major issue in presidential races is the judicial philosophy of the justices the candidates intend to appoint to the Court.

Second, none of us voted on the Constitution-the people who did are long dead. If we disagree with how the justices interpret the Constitution, we can vote for change. The Court voted to incorporate the 1st amendment establishment clause decades ago, and there hasn't exactly been a massive groundswell to amend the Constitution in order to create state churches. That would seem to indicate the Justices have not thwarted the will of the people who are alive today.

Thomas said...

So the court can construe a Constitutional amendment to mean the exact opposite of what the people who voted for it understand it to mean (and what the text itself says), and the only recourse is to wait until the judges dies or retires and try to elect someone who you think might appoint a justice that will reverse that case or else pass a constitutional amendment (the most difficult legal procedure in the American system)... and this is democratic? That is hands down the most bizarre Constitutional theory I have ever heard.

So the Supreme Court could construe the 14th amendment to say that no woman can be a CEO of a major company, and the only way to overturn that is to wait for years until a justice retires and vote for a presidential candidate who will appoint someone that the candidate hopes will overturn precedent or else start calling Constitutional conventions?

That is completely bizarre....

KyCobb said...

Thomas,

There are other avenues if the Court made such an outrageous hypothetical ruling, which it wouldn't. Remember FDR's court packing scheme? He couldn't get it passed, but women voters would be so outraged by your hypothetical, that Congress might well pass legislation to pack the Court with new justices to overrule it. There's nothing in the Constitution that says the Court has to have exactly nine members.
In reality, the Court is well aware that it doesn't control the purse or the guns, and its power is derived from the willingness of the other branches and the people to defer to its wisdom. If the Court started making bizarre rulings as in your hypothetical, it could quickly lose its legitimacy.
I doubt you are ever going to convince five justices that the states ought to start establishing official churches, so your only option is to start a political movement. Good luck with that, since I doubt most people are eager to watch their tax dollars sent to churches they don't belong to.

Martin Cothran said...

KyCobb,

It seems as if you have completely abandoned any actual argument about what the law says and how it should be properly interpreted in favor of some "might makes right" view of the law.

You seem to be simply saying that whoever has the political power gets to interpret the Constitution the way they see fit.

You people get scarier by the day.

KyCobb said...

Martin,

"you people"? Republicans have spent decades running against "activist judges" and promising to appoint judges who will rule in a particular way.

One Brow said...

How could the First Amendment involve the "right not to have an established religion" when there were established religions in some of the states?

Because initially, the Bill of Rights only applied to the Federal government. Before the 14th Amendment, every state had Constitutional permission to try a person after they had been acquitted previously, suppress newspapers, torture prisoners, and establish churches. The right to not have an established religion, not be tortured, run a press, or avoid multiple trials only applied to federal matters. All of those rights were applied in state/local procedures by the 14th Amendment.

One Brow said...

Are you saying that some of the Founders did not construe the establishment clause as a delegations to state governments to decide whether or not those state governments would establish a religion?

My understanding is that they contrued the Bill of Rights as delegation to state governments to decide for themselves what constituted the need for quartering soldiers, trial by jury, and pretty much every other right specified in Bill of Rights. You seem to be very narrowly focused on the establishment clause here.

Within those indivdual states voting in the Bill of Rights, many founders did this to make sure there would be no established religion in their state. I don't think you dispute that.

So, it stil seems to me that different founders saw the effects of the Bill of Rights generally, and the establishment clause specifically, in different lights.

As a matter of historical fact, the establishment clause was seen as a federalist mechanism whereby the federal government was prohibited from telling states whether or not to establish religions, and which ones to establish.

I accept your word. How does that differ from any other item in the Bill of Rights?

Your claim that the voters who affirmed the 14th amendment wanted to incorporate the establishment clause is false for several reasons. One is that the 14th amendment does not explicitly provide for the incorporation of the Bill of Rights at all. Just read the text. The point of the 14th amendment was to prohibit laws that prevented freed blacks from access to state court systems, not to declare new rights to the public generally.

So, the 14th Amendment does not require Kentucky to respect the freedom of the press? Kentucky has Constitutional permission to close any newspaper it doesn't like? Back in the 1890s, Mississippi had the authority to try a black man four times for a crime even if he was found not guilty every time, to deny trial by jury to black men, to put soldiers in the homes of black people against their will, to raid any black home under no pretext at all, etc., as long as the people could access the courts?

Now, may it's my amateur understanding, but I didn't see anything about court access in the 14th Amendment. I saw things like "privileges or immunities of citizens of the United States". Are you saying that the rights listed in the Bill of Rights are not "privileges or immunities of citizens of the United States"?

Even assuming the doctrine of incorporation is in the 14th amendment, it does not incorporate allocations of power between the federal and state governments.

No, I'm fairly sure that's part of Article VI and of Amendment X (depending on which direction you mean).

If it did, the commerce clause, the power to mint money, and the restrictions on the police power of Congress would be incorporated.

Which of these are "privileges or immunities of citizens of the United States"?

Which is strange, because the 14th amendment was passed only several years earlier. It seems unlikely they would have forgotten about it.

You think it is strange that people would pass a law, or an Amendment, that has unintended consequences?

One Brow said...
This comment has been removed by the author.
Thomas said...

KyCobb,

So it's democratic to give a politically insulated branch the power to effectively invalidate laws the American public voted for because they disagree with them because it's possible to pack the court? Are you serious?

I can't imagine where you came up with such a bizarre theory. It's certainly not in the Constitution: all of the legislative power is vested in Congress, and so the Judiciary has no legislative power (Article 1 section 1). Only two extra-legislative means to overturn a law exist according to the Constitution: the veto power that belongs to the President (from Article I section 7) and the inherent power in the Constitution to override statutes that would, in effect, amend it without going through the amendment process (implicit in article 5).

The supremacy of the Constitution over statutes that conflict with it means that courts, when faced with a situation where the Constitution conflicts with a statute, must follow the Constitution--otherwise article 5 is void. But it does not vest in the courts a legislative power to overturn statutes when the courts disagree on policy grounds (that power, again, belongs to the legislature alone) or the power to veto, which belongs to the executive alone. How did you not learn this as a child in your civics class? Have you even read the Constitution?

Thomas said...

"My understanding is that they contrued the Bill of Rights as delegation to state governments to decide for themselves what constituted the need for quartering soldiers, trial by jury, and pretty much every other right specified in Bill of Rights."

This is sort of correct, but mostly misleading. The right to free exercise of religion, for example, was recognized by all states in their state Constitution. In other words, the American voters recognized the existence of an individual right to free religious exercise, which was codified at the state and federal level. The same is not true of the establishment clause. There was not a generally recognized individual right not to have a state establish a religion (unless that religion forcibly imposed its views on non-believers), though people differed over the wisdom of establishing religions. Voters could not have been recognizing an individual right to not have an established religion, because such established religions existed, and many of those same voters supported them.

If you argue that where the Constitution deprives the federal government the power to do something an individual right is established, you create all sorts of problems. For example, the Constitution proscribes the state from exercising unenumerated police powers under its regulatory function. If this created a general right to be free of these unenumerated police powers, then state governments could not pass laws in the area of family law or school regulation. To make your argument, you must establish that the voters were recognizing a general right to be free of established religions, which, of course, they weren't (even Wikipedia gets that one right).

The claim the privileges and immunities clause refers to the bill of rights is historically untenable, for a number of reasons. Most obviously, the legal concept of the "privileges and immunities" predates the bill of rights (you can find it, for example, in the first charter of Virginia).

Second, if the privileges and immunities clause were intended to incorporate the bill of rights, why does the 14th amendment have a separate clause guaranteeing due process? There is already a due process clause in the Bill of Rights, and so that guarantee would be completely redundant. Clearly that wasn't the intent.

Even the Supreme Court recognized this when they refused to use the privileges and immunities clause to incorporate the individual rights found in the bill of rights in the Slaughter-House cases.

One Brow said...

This is sort of correct, but mostly misleading. The right to free exercise of religion, for example, was recognized by all states in their state Constitution.

Would that be true of every right enumerated, or just this one and a few others?

In other words, the American voters recognized the existence of an individual right to free religious exercise, which was codified at the state and federal level.

Yet, many voters did not feel that this right was being recognized. For example, "and therefore what religious privileges we enjoy (as a minor part of the state) we enjoy as favors granted, and not as inalienable rights; and these favors we receive at the expense of such degrading acknowledgements as are inconsistent with the rights of freemen." When you let states establish religions, this is the result.

If you argue that where the Constitution deprives the federal government the power to do something an individual right is established, you create all sorts of problems.

Such a view would be inconsistent with the 9th Amendment, which specifies the rights listed are enumerated, not created, and are not limited to what is in the document.

Also, unless I misunderstand your postion, you are saying that there are six rights in the 1st Amendment, of which five belong to the people and one to the states, but there was no separation between them to indicate this difference. Given the subsequent divisions in the rest of the Bill or Rights, does that really seem consistent to you?

To make your argument, you must establish that the voters were recognizing a general right to be free of established religions, which, of course, they weren't (even Wikipedia gets that one right).

As I have said before, I fully accept that voters were not recognizing a general right to the free execise of religion, to avoid double jeopardy, etc.

The claim the privileges and immunities clause refers to the bill of rights is historically untenable, for a number of reasons.

http://en.wikipedia.org/wiki/Privileges_or_Immunities_clause

Maybe the wikipedia article is wrong, but it does state clearly this was Bingham's original purpose in intruducing the clause.

Second, if the privileges and immunities clause were intended to incorporate the bill of rights, why does the 14th amendment have a separate clause guaranteeing due process? There is already a due process clause in the Bill of Rights, and so that guarantee would be completely redundant. Clearly that wasn't the intent.

If the notion of due process covers every right in the Bill of Rights, why was any amendment besides the 5th Amendment necessary? After all, both refer to the deprivation of "life, liberty, or property". Yet, you would one instance cover every right in the Bill of Rights, while the other does not?

Also, the Due Process clause was first used incorporate rights against the state some 26 years after the Slaughter HOuse cases you mention below. Do you think the order of those cases might have something to do with this choice? To an amatuer, it looks like an end-around to avoid overthrowing precedent.

Is the redress of grievances an issue of life, liberty, or property? You can also make a credible argument that double jeopardy does not violate due process, since it follows due process. Torture in prison, as long as it is not fatal, does not violate life, liberty, nor property. Your argument would seem to leave all of the options on the table for state governements.

Even the Supreme Court recognized this when they refused to use the privileges and immunities clause to incorporate the individual rights found in the bill of rights in the Slaughter-House cases.

Yes, the Supreme court said only indivdual rights that derive from federal citizenship are covered.

KyCobb said...

Thomas,

I don't recall saying that the Court can invalidate a law because they disagree with its policy. Perhaps you could point out where I wrote that.

Thomas said...

Onebrow,

"[Y]ou are saying that there are six rights in the 1st Amendment, of which five belong to the people and one to the states, but there was no separation between them to indicate this difference. Given the subsequent divisions in the rest of the Bill or Rights, does that really seem consistent to you?"

If you're arguing that because the other rights apply to individuals, the establishment clause does as well, you're committing the fallacy of hasty generalization. Given the fact that the historical purpose of the clause was to actually protect established state religions, the historical record demonstrates this is not an individual right. Again, see William K. Lietzau, Rediscovering the Establishment Clause, 39 DePaul L. Rev. 1191 (1990) (if it's not available online, any library should have access to it; let me know if you can't get it).

If the original understanding of the establishment clause was that it recognized a right to be free from an established religion (and not only an established religion that violated free exercise of religion), then by definition it does not recognize a right of disestablishment. And, as far as I can tell, the historical record is clear on this point. Absent any scholarship you can produce to the contrary, the establishment clause protects states, not individuals.

The incorporation debate is a weird one, because there doesn't seem to be much common ground between the backers of the amendment. Some believed the privileges or immunities clause recognized a body of natural law, others believed it specifically overruled Dred Scott (the holding of which specifically denied "privileges and immunities" to slaves). Probably the most immediate legal understanding was that it provided a Constitutional basis for the Civil Rights Act of 1866, which was on Constitutionally shaky ground. Apparently many people thought that the bill of rights already mostly applied to the states. Bingham and Howard both argued before Congress for incorporation, but this doesn't seem to have reflected the public's understanding of the bill. Since this is a Constitutional Amendment, the understanding that matters is not the drafters, but the American people from whose consent the legitimacy of the Constitution derives.

But even if we say that it's the drafters opinion that matters, the drafters did not think they were applying the establishment clause against the states. Senator Howard, one of the drafters, explicitly said on the floor of the Senate in the debate over the 14th amendment that it did not apply the establishment clause against the states (Cong. Globe, 39th Cong., 1st Sess. 2765.).

Thomas said...

Even more telling is the history of the Blaine Amendment. To quote the Lietzau piece:

"Congress' rejection of the Blaine amendment [FN97] would appear to be dispositive on the issue. [FN98] Considered several times by both the House and the Senate, [FN99] the amendment was introduced only seven years after ratification of the fourteenth amendment and would have explicitly prohibited any state from establishing a religion. [FN100] The proposal's repeated rejection was accompanied by argument extolling state performance in protecting religious liberty and affirming the importance of federalism. [FN101] When proposed, congressional ranks included six senators and eight congressmen who had participated in drafting the fourteenth amendment. [FN102] All participants demonstrated a clear understanding of state authority in the area of religion, [FN103] and during the debate, it was never intimated that the fourteenth amendment had any impact on a state's legislative competence with respect to religion. [FN104]

Moreover, the principle objection of opponents to the Blaine amendment, namely that it was “much better ... to leave the State Governments to themselves,” [FN105] was the same objection to Madison's 1789 proposal requiring free exercise within states. Through decades of reconsideration of Blaine-type amendments, it was never argued that the first amendment of the Constitution could be applied against the states. [FN106] With respect to the establishment clause, such a suggestion would have simply made no sense."

Thomas said...

KyCobb,

Sure:

Me - "The American people did not vote on his letters, and to call a system democratic in which the opinion of one person overrides the will of the people as expressed in a Constitutional Amendment is perverse."

You - "The system is democratic. Politicians can run for Congress and the Presidency on the promise that they will seek either to amend the Constitution to clarify that each state can establish its own official church, or to seek the appointment of Justices who will interpret the Constituion as allowing each state to establish an official church..."

So your argument is that a system where a person can use his opinion (say, a Justice) to override the will of the people (as expressed in the constitution) is democratic because (a) we can vote for people who will appoint different justices and (b) we can pack the court.

One Brow said...

Thomas,

Moreover, the principle objection of opponents to the Blaine amendment, namely that it was “much better ... to leave the State Governments to themselves,” [FN105] was the same objection to Madison's 1789 proposal requiring free exercise within states. Through decades of reconsideration of Blaine-type amendments, it was never argued that the first amendment of the Constitution could be applied against the states. [FN106] With respect to the establishment clause, such a suggestion would have simply made no sense."

Your quote indicates that no one thought *any* of the provisions of the 1st Amendment could be used to limit the states. Did I misunderstand that?

If that is true, do you support that interpretation currently, for all six rights you seem to believe are discussed in the First Amendment? In the whole Bill of Rights?

If you do not support that interpretation, and believe that some prohibitions are correctly incorporated against the state and others are not, can you provide material from the original voters expressing why this would be so?

I have repeatedly asked you about your position on various other enumerated rights. Answering these questions would really help me understand your position.

KyCobb said...

Thomas,

Justices disagree on how to interpret the Constitution. Republicans have been running for decades on the promise to appoint judges who will interpret the Constitution in a particular way in order to reverse decisions they don't like. That doesn't mean the Justices appointed by GOP Presidents are deciding cases for purely policy reasons rather than how they interpret the Constitution.