These guys clearly don’t have a legal leg to stand on and in the end I assume they will back down eventually. However suppose the they refused to recognize the legitimacy of the court, generated resolutions declaring North Carolina a Christian state and starting every public meeting with a prayer “to our lord Jesus Christ the only savior”.
What would happen to them? Is there a specific crime they could be charged with? How would it be enforced? I can’t imagine Federal agents breaking up a legislative session to arrest represenatives for saying a prayer. On the other hand we can’t have states decide for themselves what is or isn’t constitutional.
They’re sorta right. The Constitution does not specifically say that the federal government or the federal courts have the power to determine what is or is not constitutional. But the idea that they do is one of the oldest precedents in federal caselaw. So they’re kind of like the “freeman on the land” loons: go ahead and insist that you’re right, but in view of the fact that the entire system has decided you’re wrong, you’re in fact wrong, because that how the system works.
Anyway, presumably someone injured by the practice would file suit in federal court. After the state lost, the court would enter an order. Officials defying that order would be subject to arrest for contempt.
The federal government is explicitly prohibited from establishing a religion. IIRC some states did have established religions even after the ratification of the First Amendment.
This article from The Atlantic shows disestablishment did not come to some New England states until well into the 1800s.
Perhaps one of the Doper lawyers can fill us in more on how the First Amendment has been applied to the states.
IANAL, but my understanding is that the Constitution doesn’t specify that the federal courts have the power to rule on the constitutionality because nobody felt that it needed to be said. Stare decisis is one of the founding principles of common law, and the tradition of judges having the broad authority to interpret the law goes back at least to Anglo-Saxon times.
Note that by this same logic, states could restrict free speech and a free press since the First Amendment covers all of those. The 14th Amendment (the due process clause in particular I believe) has been used by federal courts to make the Bill of Rights applicable to the states as well as Congress.
The Wikipedia article on Incorporation of the Bill of Rights notes that an 1876 decision of the SCOTUS in United States v. Cruikshank held that the First and Second Amendments did not apply to the states. Under that reasoning a state could establish a religion… and also gun control. My how times have changed.
Since the 1876 ruling in United States v. Cruikshank, later rulings did incorporate the First Amendment in Everson v. Board of Education, a case from 1947.
Per that Wikipedia article some rights in the Bill of Rights have not been incorporated for application against the states include:
5th Amendment right to indictment by grand jury
7th Amendment right to jury trial in civil cases
8th Amendment protection against excessive fines
Thanks, I think this is what I was looking for. Since what they were violating seemed to be more a a constitutional principal rather than a specific law I wasn’t sure how it would be handled. A statement of “You have to do this because we told you to” in the form of a contempt of court citation would seem to be the right remedy, although I still wonder who they would actually arrest/fine? The speaker of the House? The whole legislature?
The link doesn’t work. I found a HuffPo article that says such a bill was introduced in the NC legislature earlier this year and immediately voted down.
Well, these legislators are presumably acting per the will of the people, so as ludicrous as their actions may sound, they are doing what they were elected to do. Some–perhaps most–of their constituents truly think that enacting this law would be a better use of state time and money than blowing it on roads and schools and stuff.
I guess technically courts, federal or other, don’t declare laws “unconstitutional”. What they declare is that a law is in conflict with a constitutional provision. If two laws are in conflict, the consitutional provision overrides any other law unless replaced by an amendment to the constitution.
If the state tries to apply a law and someone disputes it due to an overriding constitutional provision, then the case ends up in the courts - ultimately, the Supreme Court may decide. Other courts then apply that precedent.
So a state can attempt to enforce whatever it wants - each time, it will lose the case. Eventually, a court may issue an injunction forbidding them from being pig-headed idiots in trying to enforce a law that cannot be made to stick in the courts. (Hence “unconstitutional” - most intelligent lawmakers see the writing on the wall instead of beating their heads against it.) If they persist, even larger damages, contempt cites, etc. may result. Lawyers likely will decline to be the agents of stupidity in court at the expense of their bar accreditation… etc. If an entire state infrastructure persists in being stupid, well there’s always the union army or national guard. (Think Little Rock, 1954)
As to the validity of “the federal constitution does not apply to the state”… I strongly suspect that argument has been settled in detail long long ago. States do not torture, states cannot inflict cruel and unusual punishment, nor legalize slavery, raise armies, declare they override the feds, etc.
Not necessarily. There are legal systems where other bodies rule on constitutionality issues. In the United States, it could have been a legislative function or an executive function just as easily as a judicial function.
But as Bricker pointed out, constitutional review was set in the judicial system a long time ago: Marbury v Madison in 1803. It’s about as established as any principle in American government can be.
I feel like Shodan. To nitpick the otherwise excellent posts of Bricker and Little Nemo, the Constitutional Convention enumerated what powers the 13 little newly independent nations on the eastern seaboard of North America would delegate to the Federal govenrment they had recently come together to form, and which they would retain as separate states. Public pressure impelled them to add a list of about two dozen rights as examples of the rights their former Britannic masters had denied them. They did so by placing each of the basic powers of government in a separate institution, the judicial power being placed in a Supreme Court and such lesser courts as Congress shall see fit to establish, and rhe Constitution itself, and the laws and treaties that cpnform to it, shall become the supreme law of the land. These provisions become the first sentences of Articles 3 and 6 pf the new Constitution. By 90 years later it had become obvious the same protection was neded against the states too. Prior to Chief Justice John Marshall being named to lead the Court in 1801, their custom was to deliver opinions seriatim rather than per curiam. During this period Justice John Iredell, ironically from here in North Carolina, wrote in Calder v. Bull that laws under the new Constitution need to be tested to ensure they conformed to it.
I’ve just been reading Constitutional Myths by Ray Raphael. He offers evidence that the Bill of Rights was essentially a bait-and-switch scheme.
When the Constitution was written and sent out for ratification, there were a lot of people who essentially said, “Well, okay, we needed something to replace the Articles of Confederation and this works as a first draft. But the government this Constitution creates is way too powerful. We’ll enact it but we’re going to amend it to make the central government less powerful.”
So people like Madison and Washington pushed hard for a bunch of amendments that defended individual rights. They figured these proposals would dominate people’s attention and interest in amending the Constitution and would push amendments aimed at changing the federal government on to the back burner.
And it basically worked. People were so busy considering the twelve amendments Madison proposed that other proposals on issues like limiting the federal government’s power to tax or giving states nullification rights or limiting the President’s power over the military were never enacted.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;-
To me , there is no room for any other interpretation. If a CASE arises under the Constitution, then the courts have a right to decide it.