I don't think the Establishment Clause is going to be unincorporated anytime soon. However, I think it's important to answer good arguments. There is a good argument to be made that the Establishment Clause never should have been incorporated. There is also an argument to be made that NONE of the Bill of Rights should have been incorporated, which means that states would be free OR NOT to infringe on all of the Bill of Rights. There is also a good argument that the Privileges or Immunities Clause of the 14h Amendment in fact was intended to incorporate the Bill of Rights to apply against state and local governments. Then there is a refined argument that Justice Thomas is sympathetic to that yes, the P or I Clause was meant to incorporate the Bill of Rights, but not the Establishment Clause.
And that's because "Privileges or Immunities" relate to individuals rights. And whereas the Free Exercise and Free Speech Clauses of the First Amendment do relate to individual rights, the Establishment Clause does not. Rather it was understood, when constructed by America's founders to be a federalism provision. Incorporating the Establishment Clause would be akin to incorporating the 10th Amendment.
That's a good argument.
But here is a more specific answer to that claim that I didn't mention in my last post on this matter. You actually have to get to the end of Prof. Kurt Lash's 71 page article for him to make it. It is this: Whereas America's founders understood the exact words of the Establishment Clause to have a particular meaning, the framers and ratifiers of the 14th Amendment gave those same exact words a different meaning, one that reflected "anti-establishment values."
It should be noted that when John Bingham, a chief architect of the 14th Amendment, said on the floor of Congress "that the privileges and immunities secured by the Amendment were 'chiefly defined' in the first eight amendments, and then fully quoted all of these amendments," he included the Establishment Clause. He just read the first eight amendments verbatim.
We need to stress a point of interpretive contention: The argument is what is incorporated is NOT what America's original founders thought, rather it is what the framers and ratifiers of the 14th thought.
You are going to have to read Lash's entire article for his evidence, but I will provide one smoking gun in favor of this contention. It's on page 50/1133 of Lash's article. The 1857 Iowa Constitution and it reads: "The general assembly shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."
Try doing this with the 10th Amendment and see it totally doesn't work.
I know there is more to the argument. That provision of the Iowa Constitution doesn't demand the Establishment Clause in fact be incorporated against state and local governments. But I think it does demonstrate that it certainly is possible to view the clause as something other than a federalism clause.
20 comments:
"...the framers and ratifiers of the 14th Amendment gave those same exact words a different meaning, one that reflected "anti-establishment values."
It should be noted that when John Bingham, a chief architect of the 14th Amendment, said on the floor of Congress..."
Yes, we know what one framer said and thought. But was that how the ratifiers understood it? Did they think the 14th Amendment was also about religion, of did they believe its only "expected application" would be to the newly-freed slaves?
As Madison said of his notes on the framing of the Constitution [and re Bingham]:
"As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.
However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses."---Letter to Thomas Ritchie, September 15, 1821
"There is also an argument to be made that NONE of the Bill of Rights should have been incorporated, which means that states would be free OR NOT to infringe on all of the Bill of Rights."
That's Hamburger's position. He didn't think the ratifiers thought they were ratifying incorporation of ANY of the BOR.
Whereas America's founders understood the exact words of the Establishment Clause to have a particular meaning, the framers and ratifiers of the 14th Amendment gave those same exact words a different meaning, one that reflected "anti-establishment values."
Where are the words? Nothing has been presented to show any framers of the 14th A differed from the ff's. In fact, all the evidence contradicts Kurt Lash.
OFT: Read the text of the Iowa Constitution.
The 1857 Iowa Constitution and it reads: "The general assembly shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."
I read it and there's nothing about incorporating the bill of rights. Lash wrote that himself. Iowa lists some rights, that's all. Other states did the same thing. Those Iowans chose not to establish a religion, but it has nothing to do with forfeiting that right, nor does it mention any such thing.
Lash's article provides evidence of John Bingham getting up on the floor of House and saying the "Privileges or Immunities" includes the first 8 amendments of the BOR, including the Establishment Clause.
I don't think you understand the meaning of what it means to be a "federalism" provision.
I haven't read any evidence supporting the 14A incorporated the bill of rights against the states. A list in the iowa constitution is nothing. He should post a plethora of quotes from Sen Howard, Sen Bingham or his right hand man, but it appears there's nothing.
Maybe you should read this new article, what I will post to the front page tomorrow, for the evidence.
https://www.lawliberty.org/2019/03/21/the-privileges-or-immunities-clause-and-unenumerated-rights/
Your Dunning-Kruger is showing again. You don't understand the reason why we cited the Iowa constitution because you don't understand what it means to be a "federalism" provision.
Lash's article provides evidence of John Bingham getting up on the floor of House and saying the "Privileges or Immunities" includes the first 8 amendments of the BOR, including the Establishment Clause.
Bingham's speeches are the same as what they call "dicta" in court decisions, including the US Supreme Court. They might or might not be relevant, but they are not binding. They are accompanying chatter to the substance of the decision.
Only the text itself is binding, the text understood by those who ratified it, not by those who framed the language. Bingham's speeches are not germane here unless cited specifically by those who ratified the 14th Amendment.
And even if you could prove that Bingham's speeches were relevant to some ratifiers, you could never prove they were accepted by ALL the ratifiers.
The Supreme Court is not to guess at these things. Bingham may be evidence toward what they thought they were ratifying, but he is not binding.
Me, I've had ignored the bloviating bastard and voted for the 14th Amendment simply for what it said about the rights, privileges and immunities--the fundamental equality before the law--of the freed slaves. Religion and the 1st Amendment would have been the furthest thing from my decision to ratify.
All u would need is a majority of ratifiers to approve the context given by the fathers of the 14A, which i doubt would be a problem.
Bingham and Howard were both adamant the entire congress knew the context because they all went over it so completely, with Bingham making this clear to Congress.
The rights pertinent are the bill of rights given to freed blacks. Do u believe the 14A forbids a state religion?
"The Supreme Court is not to guess at these things."
As is evident from my first paragraph --
I don't think the Establishment Clause is going to be unincorporated anytime soon. However, I think it's important to answer good arguments. There is a good argument to be made that the Establishment Clause never should have been incorporated. There is also an argument to be made that NONE of the Bill of Rights should have been incorporated, which means that states would be free OR NOT to infringe on all of the Bill of Rights. There is also a good argument that the Privileges or Immunities Clause of the 14h Amendment in fact was intended to incorporate the Bill of Rights to apply against state and local governments. Then there is a refined argument that Justice Thomas is sympathetic to that yes, the P or I Clause was meant to incorporate the Bill of Rights, but not the Establishment Clause.
-- there are many possible different twists and turns here.
In the sense of how it was all "meant" to go down, I'm not unconvinced that the DPC and EPC were meant to be entirely procedural, meaning clauses that target state courts and state executives to protect blacks, whites and potentially butterfly collectors equally under generally existing rules relating to homicide, assault & battery, rights to sue and be sued.
The P or I was meant to be the big substantive clause that would constitutionalize the Civil Rights Act of 1866 but also give Congress the constitutional power to do other things as well. Like incorporate the BOR against the states or desegregate schools or bar bans on interracial marriage.
But it would be Congress' job to police these matters.
I'm not saying I endorse this as what OUGHT to be, but I'm convinced it's probably the most consistent view on how the framers and ratifiers of the amendment expected it to operate.
But I think it does demonstrate that it certainly is possible to view the clause as something other than a federalism clause... to protect blacks, whites and potentially butterfly collectors equally under generally existing rules relating to homicide, assault & battery, rights to sue and be sued..
But I think it does demonstrate that it certainly is possible to view the clause as something other than a federalism clause."
Sen Bingham said thete would be no 14A if not for slavery. Therefore, the context is entirely slavery and he made sure everyone knew this because he was quite perturbed due to congress going over everything so much.
Things like torture of blacks obviously violates natural law, but the 14A has nothing to do with religion, nor should it apply to whites, because every scenario is covered under the 5A and P and I. .
Sen. Bingham said the P or I Clause of the 14th incorporated the BOR. I don't know how you can invoke him for authority and then try to get around that.
Sen. Bingham said the P or I Clause of the 14th incorporated the BOR. I don't know how you can invoke him for authority and then try to get around that."
If he did say that, which you haven't specifically presented, it was only towards rebel states and slavery.
Check the newest post that I'm about to put up for the Bingham stuff.
As to "[i]f he did say that, ... it was only towards rebel states and slavery" you are just making stuff up.
This Privileges and Immunities business always seems to overreach its plain meaning:
If a white dude has this or that P or I in State X, so does a black dude.
The rest is speculation.
Also of interest, stare decisis versus original meaning:
During the March 2010 oral arguments in that case [McDonald v. City of Chicago, a gun rights case], Justice Scalia openly mocked the idea of reviving the original meaning of the Privileges or Immunities Clause. "Why are you asking us to overrule 150, 140 years of prior law?" Scalia asked the libertarian lawyer Alan Gura, who was representing Otis McDonald in his gun rights fight. "Why do you undertake that burden," Scalia went on, "instead of just arguing substantive due process, which as much as I think it's wrong, I have—even I have acquiesced in it?"
It was a jaw-dropping moment. For decades Scalia had attacked the idea of using the Due Process Clause to protect substantive individual rights, denouncing it as a "judicial usurpation" and as an excuse "to render democratically adopted texts mere springboards for judicial lawmaking." Yet here was Scalia, a self-professed originalist, failing to practice what he preached in a major case dealing with the original meaning of the 14th Amendment.
Clarence Thomas kept quiet that day, as he usually does during oral arguments. But he spoke up loud and clear in his written opinion. Whereas Justice Scalia, Justice Kennedy, and Chief Justice Roberts joined the majority opinion of Justice Alito, which applied the Second Amendment against the states via substantive due process, Justice Thomas filed a lone concurrence that argued for applying the Second Amendment against the states via the Privileges or Immunities Clause and thereby restore the long lost original meaning of that provision. Thomas also strongly implied that Slaughter-House should be overruled. "The mere fact that the [Privileges or Immunities] Clause does not expressly list the rights it protects does not render it incapable of principled judicial application," Thomas wrote.
In short, Justice Thomas stood up for the original meaning of a core constitutional provision while Justice Scalia "acquiesced" to an approach that Scalia himself described as un-originalist and "wrong."
https://reason.com/blog/2017/03/20/does-neil-gorsuch-side-with-clarence-tho/print
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