The First Amendment to the US Constitution states “Congress shall make no law respecting an establishment of religion . . .”
Given this wording (the use of “Congress”), what is there to stop a state from, say, making a law to prohibit the practice of Islam? In other words, although the Bill of Rights prohibits the Federal Government, i.e. Congress, from making such a law, is there anything stopping a state from doing so.
I assume this is a fairly basic question that comes up with the most superficial scrutiny of such things, and thus has a simple answer. Still, as my other thread (about which prevails when federal law is at odds with a state’s law) shows, I am quite ignorant in this area but am trying to learn a few things.
The conflict still exists. The process that applies the Bill of Rights to the states via the 14th Amendment is called Incorporation. There are still rights that are not incorporated, notably the 2nd Amendment, and the reason the process continues is because the supreme Court gutted the Privileges and Immunities clause of the 14th Amendment shortly after it was passed. leaving Selective Incorporation as the only real means of applying the Bill of Rights to the states.
Well, I wouldn’t be quite so narrow to say that selective incorporation was the “only real means”–there was some real debate among judges in the late Nineteenth and early to mid Twentieth centuries, and there remains a fairly lively debate among academics about whether the XIV due process clause incorporated the bill of rights by total incorporation–applying the whole bill of rights against the states (as Hugo Black contended), by selective incorporation–applying certain rights against the states, (principally William Brennan, although it has come to be the prevailing view), or that the fourteenth amendment did not incorporate the bill of rights at all–but protected “Fundamental Fairness”–a set of rights that often coincided with, but were not necessarily related to the bill of rights itself (championed by Felix Frankfurter). Justice Harlan (I) also argued in dissents for some reverse incorporation–notably, that the fourteenth, was incorporated against the federal government through the fifth, barring the federal government from race discrimination (see notably Gibson v. Miss).
The modern debate has mostly adopted selective incorporation–with a tinge of fundamental fairness, but there remains a vibrant debate over how it works. While there are many rights that have been clearly determined to be incorporated, there is still debate on (1) whether other rights, notably II, should be incorporated, or more broadly, which rights are selectively incorporated, and (2) whether and what the rule is (ideally, a consistent and sensible one) that can be used to determine what to incorporate (on which there is really no consensus).
Just to add more, the Supreme Court decision Barron v. Baltimore in 1833 ruled that the Bill of Rights did not apply to the states (more specifically, the 5th amendment didn’t apply). This was overruled in 1925 by the SC using the 14th amendment.
Incorporation began at the end of the 19th century (CB&QRR vs City of Chicago, 1897), and got heavy in the New Dea; Era and after that through the Sixties. Working from a selective interpretation context, Wikipedia’s article on incorporation summarizes the case law on the subject.
It might be noted that the court cases address points of law related to the case being heard. Gideon v. Wainwright had no reason to address the Fourth Amendment’s protection against unreasonable search and seizure; conversely, Mapp v. Ohio didn’t address the Sixth Amendment right to counsel. (Each, of course, focused on what I said the other did not.) The point is that a court seeking to rule in accordance with law will overrule statute law only to the extent that it conflicts with the Constitution, as a majority of SCOTUS understand it to apply (the Supremacy Clause).
A zoning law providing a buffer area between housing and heavy industry without comprising a taking of property, for example, is subject to state statute, and the Constitution will not affect its validity. It won’t raise a Federal question nor will it be considered by SCOTUS at all. But one that uses land use provisions to force an umpopular religious body out of town, would contravene First Amendment rights.
If it is not clear, by the way, the Fourteenth Amendment (a) makes citizens of any state citizens of the U.S., and (b) is normally construed to prohibit states from violating any right guaranteed to citizens of the U.S., which would include the Bill of Rights, as well as other provisions here and there.
This question is now coming before SCOTUS regarding the right to bear arms: whether the 2d Amendment is incorporated into the 14th. (Washington, DC, is a federal enclave.)
As I understand it, the history behind the 14th Amendment discloses a debate as whether to include all of the Bill of Rights in it. It was decided that SCOTUS would decide on an amendment by amendment basis. The inclusion is known as substantive due process.
The inclusion is known as incorporation. The constitutional-law doctrine (i.e. the mechanism) through which incorporation is given effect is known as substantive due process, specifically because it is based in the due process clause of XIV, and because it grants substantive rights–protection against certain types of government interference.
This can be contrasted to “procedural due process”–which grants rights, based on the due process clause, that define the procedural protection a person is entitled to, for example, notice and a hearing before being deprived of certain kinds of property.
Indeed, there is some historical evidence that the Establishment Clause was intended to protect the established state churches from being overridden by a federal church.
As far as total incorporation goes, I’ve always thought that the stumbling block was the Seventh Amendment, and the courts being reluctant to impose on the states the cost of providing a jury in essentially every civil trial.
There are actually other instances where the courts have been reluctant to compel the states to meet the Constitutionally-specified procedurs that bind the Federal government. Many states, for example, have done away with the grand jury; in a victory for Frankfurter’s position, SCOTUS held that a state desirous of bringing an accused to trial for a felony need not secure a grand jury indictment, so long as equivalent non-prosecutorial inquiry sufficient to match returning a true bill is carried out, e.g., by a judge holding a hearing (someone with experience in criminal law in a non-grand-jury state may be able to flesh this out for more clarity).
Dallin H. Oaks, a former Utah Supreme Court justice and one of the LDS Quorum of the 12 Apostles, wrote a paper a few decades ago stating that Joseph Smith, Jr. was legally within his rights as mayor of Nauvoo, Illinois, to order the destruction of the Nauvoo Expositor newspaper, because the First Amendment had not yet been extended to the state governments, much less local governments, when the incident occurred in 1844.
Not sure if his assessment is considered valid or not, but it’s an interesting take on this question.
I don’t know about that, as the Illinois Constitution of 1818 would have applied, and two sections would probably have been relevant:
It seems that many people fail to remember that states have Constitutions which often provide greater protection to individual liberties than the federal Constitution does.