Isn’t Congress a federal institution that makes laws? Doesn’t the wording clearly suggest that the law specifically is directed at a branch of the federal government?
What then prevents the states from establishing a religion by law.
This queery is a result of comments in this thread where a judge is accused of violating the First Amendment.
In the early days of the country, states could establish religion.
The 14th Amendment has been interpreted to apply the First Amendment to the states.
It seemed a little queery to me too.
Which adverb would you put in there? Correctly? Incorrectly? Unconstitutionally? Stupidly? Wrongly? Thankfully?
“Questionably.”
Since you asked.
I think it’s good public policy, don’t get me wrong.
I think that the finding that the text of the Fourteenth Amendment compels this conclusion is questionable.
But you knew that.
Well, I would say that I “educatedly guessed” that. 
Do not feel the need to answer this, if you do not wish to:
Were you a Supreme Court Justice in 1925, would you find that the First Amendment has been incorporated in the 14th? If not, how would you rule? How would you rule today?
And they did, didn’t they-- in the sense that some churches were state supported?
Was this ever found to be unconstutional before the 14th amendment? Was it the 14th that ended the practice, or did it die out on its own?
Why don’t we just cut and paste the last discussion we had? It will boil down to the same conclusions.
If the states can pass a law violating the First Amendment, will anyone here pony up for airfare to some other land to fly me somewhere else in the world where I may freely exercise religious freedom? THAT’S worth dying for.
OK. I’m right you’re wrong. Wow, great debate.
Well, at least I don’t have to wade through six more pages trying to follow y’all’s arguments.
Well, Rick, I can understand how some people (you and Dewey, for example) could reasonably feel that the 14th Amendment has been abused to impede proper use of state police powers. However, I find it very difficult to construe the Privileges and Immunities clause in any way but the one that says, “There are rights guaranteed elsewhere in this Constitution, or by law conforming to it, to citizens of the United States, which the Federal government may not abridge. According to the 14th Amendment, no state may abridge those rights either.” We can (and have!) discuss[ed] at length the Due Process and Equal Protection clauses, but the bottom line of the 14th for me is the idea that if something is defined as a guaranteed right which the Feds. may not tamper with, neither may the states.
The federal Bill of Rights would be completely worthless if the states could violate them at will. That’s just common sense.
Really? Then – assuming the 14th does in fact apply the majority of the Bill of Rights to the state – why did it take them so long to do it? Why didn’t the Bill of Rights explictly apply to the states when it was written? And, since this was common sense, and all, why did the authors of the 14th choose to make the Bill of Rights applicable to the states through such cagey language? Why not start the 14th Amendment off by saying, “The first ten Amendments to this Constitution apply to each of the states.”
Why did it take until the 20th century for the Court to decide that the “common sense” interpretation you urge actually existed?
I can think of a few New Orleans butchers that would be quite surprised to hear of this expansive view you’ve given the Privileges and Immunities clause.
I don’t say you’re wrong. I do say that the P&I clause was not the hook that most of this “Bill of Rights applies to the states” business was hung upon.
And all that time, THAT was the secret!?!
Seriously, I didn’t mean to sound either dismissive or weary… just pointing out that the issues we will tread upon in this discussion, if we have it, are likely to simply be restatements of our respective positions in other debates – weakened for me here because I do think the end result is a good one. I would argue here only against the process, not the result; an argument which has heretofore fallen of deaf or at least unsympathetic ears.
Probably because they felt the need to confirm it due to poor decisions made by some judges without common sense previously. It’s only when they find a pressing need to spell things out in more exacting detail that they would do so.
They were also trying to preserve the rights of the state governments to make independent decisons. Our leaders were reluctant to step in and make blanket judgements that states had to adhere to. Over time this became more nessecary to preserve the rights of citizens.
The only problem is the arguments regarding incorporation of the Bill of Rights are even more tenuous, with even less authority, than those regarding Substantive Due Process. While I can understand, and, of course, disagree with your argument in the realm of the creation of “new rights” such as sexual intimacy or marriage, I have even more problems giving any credence to the position that the 14th Amendment did not incorporate already enumerated rights. With the exception of Thomas’ silly dissent in the pledge case, I find no legal authority for that position. Of course there will be part of the argument will boil down to policy, but the incorporation doctrine (be it partial or full) is even harder to argue against than substantive due process.
While we are on the 1st Amendment, I happened to come across this post in this [url=“http://boards.straightdope.com/sdmb/newreply.php?do=newreply&p=6227848”]thread.
Violation of the 1st Amendment ?
make that thread
I wouldn’t think so. Did the U.S. Congress make a law that required Qur’ans to be supplied? Somebody may have required it, but did Congress?