The Bill of Rights states," Congress shall make no law abridging free speech…" My question is, does that mean that State Legislatures are free to make such a law? Is the President allowed to abridge free speech by Presidential order?
I tried to do a search of the SD board to see if this had been answered, but it was taking too long, and I didn’t want to tie up the bandwidth any longer.
No. Section 1 of the 14th Amendment says:
Joe_Cool answered the first question. As to the second, the President only has the authority to issue orders to people who are part of the various executive Departments (Defense, Energy, HHS, Transportation, Agriculture, etc) and in some cases certain independant executive agencies. The President has no power to order private citizens to do anything.
What about the Pres., though?
Thanks, friedo. Slow server syndrome.
The general stance is that if Congress has no right to legislate X, then the President (and his Administration) and the Courts have no right to require it as regards their own jurisdictions within the powers of the government.
Because the first eight amendments (and several adopted since) define rights retained by American citizens, the Fourteenth protects them against encroachment by the states. (The courts are loath to find rights guaranteed by the Ninth Amendment but not spelled out, but have done so in a few cases, and these rights too are protected by the Fourteenth.)
It’s worth noting that only the First Amendment specifies the Federal government or a branch thereof – the remainder of the bill of rights simply outline rights. While constitutional jurisprudence from the start has read the Bill of Rights (without the Fourteenth) as applicable only to the Federal government, it is arguable that the actual wording of Amendments II-IX could be taken to mean the states as well. Arguing this before the Rehnquist Court, however, seems to me to fit closely the dictionary definition of “futility.”
Polycarp, it should be noted that not all of the first 8 amendments have been incorporated by the 14th A. - I believe the 2nd A. is the exception (if not, it’s the 3rd). I’m sure someone will make the distinction.
Well, yeah, there have been no court decisions regarding the Second and Seventh, and several provisions incorporated in the others. (E.g., much of what’s required of federal courts in the Sixth is not verbatim mandated of state courts, so long as they adopt procedures that give the same protection, the same degree of justice.) Also, nobody, federal or state, has attempted to compel the quartering of soldiers against a citizen’s will in contravention of the Third.
But the principle is that the Fourteenth mandates as against the states the protection of the rights that the Bill of Rights mandates as against the federal government. While I’ve learned that nobody can predict what the Rehnquist Court will do with a constitutional principle, and no particular case can be foreordained, in a case that forced the court to render a decision on one of the missing ones as applied to the states, I’d say that they would either incorporate via the 14th or pull a “reasonable equivalent” ruling a la the 6th.
Also among the rights NOT incorporated by the 14th amendment–and thus, NOT directly enforceable against the states as a matter of federal constitutional law–are
*the right to grand jury indictment (a clause of the fifth amendment),
*the right to trial by jury in civil cases (7th amendment), and
*the right against excessive fines and (arguably) bail (8th amendment).
As noted, however, many (if not all) states provide substantially identical assurances as a matter of state constitutional law. (I believe, however, that there are some states that do not provide for indictment at all; in those states, felony charges are brought, instead, exclusively by information, preliminary hearing, and holding orders binding defendants over for trial.)
The 2nd Circuit Court of Appeals has held that the Third Amendment can apply to actions by the states as well as to the federal government: Engblom v. Carey, 677 F. 2d 957 (2d Cir. 1982). Don’t know how the case ultimately came out: having decided that there was a live issue of fact to be determined, the Circuit Court remanded to the District Court, but the subsequent decisions are not on-line, as far as I can tell: *Engblom v. Carey, *on remand, 572 F. Supp. 44 (S.D.N.Y.), aff’d. per curiam, 724 F.2d 28 (2d Cir. 1983).
Thanks, Piper! I’ll never trust my copy of Corwin again! 
You’re welcome, Polycarp. If it’s any consolation, FindLaw does refer to it as “the curious case of Engblom v. Carey,” so it doesn’t seem to be a mainstream case.