# states rights **URL:** \ **Category:** Great Debates\ **Created:** [August 17, 2003, 6:56pm UTC](https://boards.straightdope.com/t/states-rights/195814 "2003-08-17T18:56:03Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![zipper](https://avatars.discourse-cdn.com/v4/letter/z/5f8ce5/32.png) [@zipper](https://boards.straightdope.com/u/zipper)\ **Post date:** [August 17, 2003, 6:56pm UTC](https://boards.straightdope.com/t/states-rights/195814/1 "2003-08-17T18:56:03Z")
The chief justice of the state of Alabama has defied a federal court order to remove a huge slab of granite inscribed with the Ten Commandments from his courthouse, and vowed to call on the Supreme Court on Friday to prevent the order being enforced. (/quote) From what I heard on the news it seems to me that the chief justice of Alabama. Is trying to make this a states rights issue rather than a religious issue. He was referring to the tenth amendment of the constitution during he speech. (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.) Is this a states rights issue? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [August 17, 2003, 7:35pm UTC](https://boards.straightdope.com/t/states-rights/195814/2 "2003-08-17T19:35:25Z")
> [@](#): > > \*Originally posted by zipper \* > (The powers not delegated to the United States by the Constitution, **nor prohibited by it to the States** , are reserved to the States respectively, or to the people.) Does the Establishment Clause of the First Amendment ring any bells? It applies against the states thanks to the later enactment of the 14th Amendment. ---
**Author:** ![zipper](https://avatars.discourse-cdn.com/v4/letter/z/5f8ce5/32.png) [@zipper](https://boards.straightdope.com/u/zipper)\ **Post date:** [August 17, 2003, 10:01pm UTC](https://boards.straightdope.com/t/states-rights/195814/3 "2003-08-17T22:01:19Z")
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. How is the chief justice of the state of Alabama depriving anyone of life, liberty, or property, due process of law; or denying any person within its jurisdiction the equal protection of the laws? If the people of Alabama want it what’s wrong with that, it should be a state problem. ---
**Author:** ![Milum](https://avatars.discourse-cdn.com/v4/letter/m/ea666f/32.png) [@Milum](https://boards.straightdope.com/u/Milum)\ **Post date:** [August 17, 2003, 10:04pm UTC](https://boards.straightdope.com/t/states-rights/195814/4 "2003-08-17T22:04:00Z")
Yes putting a memorial to anything in the anteroom of a state courtroom is the right and preogative of that particular state. Unless, that is, that it can be proven that somehow that memorial violates a right of the citizenry that is so said in the U.S. Constitution and the Amendments. Well it could easily be proven that Judge Roy Moore’s $ 25,000 granite monument to the Ten Commandments is gaudy, garish, and in poor taste but it does not inhibit anyone’s right to a fair trial. Nor does it intimidate. Nor does it convert new believers. So what’s the bitch? ---
**Author:** ![Aldebaran](https://avatars.discourse-cdn.com/v4/letter/a/c6cbf5/32.png) [@Aldebaran](https://boards.straightdope.com/u/Aldebaran)\ **Post date:** [August 17, 2003, 10:14pm UTC](https://boards.straightdope.com/t/states-rights/195814/5 "2003-08-17T22:14:39Z")
OK… I’ll have US Muslims write to that judge to ask if they can place there a stone engraved with Qur’anic calligraphy. Let us see what happens then. Salaam. A ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [August 17, 2003, 10:27pm UTC](https://boards.straightdope.com/t/states-rights/195814/6 "2003-08-17T22:27:21Z")
The theory of “Fourteenth Amendment Incorporation” is generally agreed in by most constitutional law scholars, though you do find a few not on the lunatic fringe who object to it. Bottom line is this: Section 1 of the Fourteenth defines all citizens of any state as citizens of the United States, and continues to guarantee them the rights and privileges of such citizenship, and prohibits states from removing them without due process of law. The question then arises, what _are_ the rights and privileges of being a “citizen of the United States”? And the answer that the SCOTUS identified, back in _Gitlow v. New York_ in 1925, is that those rights protected as against Federal encroachment are, in general, protected against State encroachment by the due process clause. Justice Edward Terry Sanford wrote: > [@](#): > > for present purposes, we may and do assume that freedom of speech and of the press … are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states." (268 U.S. 666) In general, the court has been inclined to identify such rights individually on a case-by-case basis, and in particular the rights of the accused as regards trials are not incorporated verbatim but with a view that state procedures may vary from those prescribed for federal courts but must result in justice and the due process of law or else will violate the protections of the Fifth and Sixth Amendments. In this case, there is a general consensus that the erection of any artifact having a religious basis constitutes an “establishment of religion” in violation of the First Amendment, and a coercion against the “free exercise of religion” therein protected. The most common holding is that there is a “wall of separation between Church and State” which the state may not legally cross. Justice Sandra Day O’Connor is the current leading exponent of a second theory, that of religious neutrality, which says simply that the government is obliged to be neutral on issues where the religious beliefs of its citizenry differ. While they tend to arrive at similar results, the two theories do have some practical differences. For example, in time of a state of emergency due to natural disaster, the Constitutional authorization to protect the general welfare enables the government to provide assistance to those victimized by the natural disaster, as a purely secular act. Most religious groups also believe it to be a meritorious action in accord with their principles to aid such victims. SOCAS would say that government may not utilize the services of religious groups in channeling aid where it is needed; neutrality would say that this is perfectly acceptable, so long as it does not constitute a showing of government preference towards the beliefs of one group. Now Judge Moore holds that to require him to remove the Ten Commandments from his courtroom would be forcing him to deny his God. (I report, I do not attempt to understand his logic.) The view taken by most liberals is that his displaying them is using state funds and the authority of the courts to give official credence to them, and in particular to the view of parts of evangelical Christianity that they constitute a special and focal element of what all men are obliged to obey. Many conservative Christians either cannot or will not grasp the perspective that this is indeed a mandate of Judge Moore’s religious beliefs on those who enter his court. [Added close quote tag. – MEB] ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [August 17, 2003, 10:28pm UTC](https://boards.straightdope.com/t/states-rights/195814/7 "2003-08-17T22:28:09Z")
> [@](#): > > \*Originally posted by Milum \* > So what’s the bitch? The Establishment Clause of the First Amendment to the United States Constitution, of course. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [August 17, 2003, 10:32pm UTC](https://boards.straightdope.com/t/states-rights/195814/8 "2003-08-17T22:32:27Z")
BTW, “states rights” is a misnomer left over from the 1950s when it was coined as a counter to “civil rights.” Technically, what the Tenth Amendment protects is state powers. Anything not delegated to the Federal government by the Constitution, nor forbidden by it to the states, is within their powers so far as Federal law is concerned – that the state constitution may bar the state from taking a particular action is, obviously, not “a Federal question.” The Federal government and the state governments have only one “right” – the right to exercise the powers granted it in the appropriate constitution, subject to the prohibitions that constitution (and the Federal constitution) may place in their way. ---
**Author:** ![Julius\_Henry](https://avatars.discourse-cdn.com/v4/letter/j/8797f3/32.png) [@Julius\_Henry](https://boards.straightdope.com/u/Julius_Henry)\ **Post date:** [August 17, 2003, 11:03pm UTC](https://boards.straightdope.com/t/states-rights/195814/9 "2003-08-17T23:03:32Z")
“States rights” was not coined in the 1950s. It was also used in the 1850s as a counter to “slavery.” More generally, “states rights” is used to mean “I don’t like what the federal government says to do, so I’m going to do it my way.” ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [August 17, 2003, 11:16pm UTC](https://boards.straightdope.com/t/states-rights/195814/10 "2003-08-17T23:16:19Z")
The federal district and appeals courts ordered the removal of the monument based on the Establishment Clause of the First Amendment of the U.S. Constitution (applied to the states by the Fourteenth Amendment). Now, if you want to argue that this is an improper application of the Establishment Clause, and that either the State of Alabama or the federal government can legitimately set up monuments proclaiming a particular god to be the One True God, that’s one thing (although I would of course disagree with you). But if you are arguing that the Establishment Clause simply doesn’t apply to the states at all, then you are arguing that the State of Alabama could constitutionally proclaim, say, the Alabama Baptist Convention to be the official Church of Alabama, and this would not violate the constitutional rights of U.S. citizens who are also citizens of Alabama. ---
**Author:** ![zipper](https://avatars.discourse-cdn.com/v4/letter/z/5f8ce5/32.png) [@zipper](https://boards.straightdope.com/u/zipper)\ **Post date:** [August 17, 2003, 11:28pm UTC](https://boards.straightdope.com/t/states-rights/195814/11 "2003-08-17T23:28:36Z")
Let’s get this straight," said Moore. “It’s about the acknowledgment of God.” A quote. I guess the real question is acknowledgment of God the same as the establishment of God and/or religion? ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [August 17, 2003, 11:41pm UTC](https://boards.straightdope.com/t/states-rights/195814/12 "2003-08-17T23:41:15Z")
The “acknowledgment of God” by citizen Roy Moore, or the “acknowledgment of God” by the State of Alabama? Would it be OK if the State of Alabama “acknowledged” the Lordship of Jesus Christ? How about if the State of Alabama “acknowledged” the Biblical commandment for believer’s baptism, and the un-Biblical nature of infant baptism? I’ll bet Roy Moore lives in a nice house with a nice front lawn with plenty of room for 5,300-pound religious monuments, which could be easily seen by people driving by on the public street his house is on. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [August 18, 2003, 12:08am UTC](https://boards.straightdope.com/t/states-rights/195814/13 "2003-08-18T00:08:40Z")
> [@](#): > > \*Originally posted by MEBuckner \* > \*\*But if you are arguing that the Establishment Clause simply doesn’t apply to the states at all, then you are arguing that the State of Alabama could constitutionally proclaim, say, the Alabama Baptist Convention to be the official Church of Alabama, and this would not violate the constitutional rights of U.S. citizens who are also citizens of Alabama. \*\* Many people are shocked to learn that at one time states did exactly that. Massachusetts was the last holdout, not disestablishing the Congregational religion until 1833. Of course, at that time, prior to the adoption of the Fourteenth Amendment, the Establishment Clause _clearly_ did not apply to the states. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [August 18, 2003, 12:18am UTC](https://boards.straightdope.com/t/states-rights/195814/14 "2003-08-18T00:18:59Z")
zipper > [@](#): > > He was referring to the tenth amendment of the constitution during he speech. > > ( **The powers _not_ delegated to the United States by the Constitution** , nor prohibited by it to the States, are reserved to the States respectively, or to the people.) (emphasis mine) How the \*^%& did this guy get to be a judge? Hell, how did this guy graduate from college? This is no more a state rights issue than is the question of whether states can print their own money. It’s one thing to claim the right of nullification against _laws_ passed by the federal government, and quite another to claim the right to ignore the Constitution altogether. Even if the state of Alabama did have the right to ignore the federal Constitution, the Alabama Constitution would still prohibit this. > [@](#): > > Let’s get this straight," said Moore. “It’s about the acknowledgment of God.” No, it’s not. There are plenty of ways Moore can acknowledge God that don’t involve disobeying a court order. The message is not “God exists”, it’s “People who don’t believe in God don’t matter”. > [@](#): > > \*Originally posted by Milum \* > Well it could easily be proven that Judge Roy Moore’s $ 25,000 granite monument to the Ten Commandments is gaudy, garish, and in poor taste but it does not inhibit anyone’s right to a fair trial. Nor does it intimidate. Nor does it convert new believers. > > So what’s the bitch? Would you be okay with something commemorating a lynching? This is insulting to atheists. There’s one good reason to take it down. What good reason is there to keep it up? ::crickets chirping: ---
**Author:** ![Milum](https://avatars.discourse-cdn.com/v4/letter/m/ea666f/32.png) [@Milum](https://boards.straightdope.com/u/Milum)\ **Post date:** [August 18, 2003, 12:35am UTC](https://boards.straightdope.com/t/states-rights/195814/15 "2003-08-18T00:35:13Z")
**The First Amendment to the US Constitution** Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Note it is… **Congress** that shall make no law respecting (with regard towards) an establishment of religion. or (of making a law) prohibiting the free exercise thereof (from that source). So clearly the Establishment Clause has no directment towards the actions of an individual state. Next? ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [August 18, 2003, 12:40am UTC](https://boards.straightdope.com/t/states-rights/195814/16 "2003-08-18T00:40:05Z")
So you are in fact arguing that Alabama is free to establish an official State Church. In fact, the First Amendment refers to solely to Congress in _all_ of its clauses, so I guess Alabama could also make heresy from the doctrines of the Church of Alabama punishable by death, huh? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [August 18, 2003, 12:52am UTC](https://boards.straightdope.com/t/states-rights/195814/17 "2003-08-18T00:52:06Z")
> [@](#): > > \*Originally posted by MEBuckner \* > I’ll bet Roy Moore lives in a nice house with a nice front lawn with plenty of room for 5,300-pound religious monuments, which could be easily seen by people driving by on the public street his house is on. Has he traded up from the double-wide? ---
**Author:** ![Milum](https://avatars.discourse-cdn.com/v4/letter/m/ea666f/32.png) [@Milum](https://boards.straightdope.com/u/Milum)\ **Post date:** [August 18, 2003, 1:12am UTC](https://boards.straightdope.com/t/states-rights/195814/18 "2003-08-18T01:12:42Z")
**MEBuckner:** So you are in fact arguing that Alabama is free to establish an official State Church. (Smile.) No MEBruckner, I’m not arguing at all. Since the diminution of the hostilities in 1865, Alabama has agreed to obey the wording and spirit of the United States Constitution. All I’m asking of you all is to show me where it is written that Roy has to remove his rock. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [August 18, 2003, 1:29am UTC](https://boards.straightdope.com/t/states-rights/195814/19 "2003-08-18T01:29:13Z")
Well, it’s written in the First Amendment’s Establishment Clause, which was made applicable to the states by the Fourteenth Amendment. For example, see [_Jones v. City of Opelika_ (1943)](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=319&invol=105): > [@](#): > > The First Amendment, which the Fourteenth makes applicable to the states, declares that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press …’ ---
**Author:** ![Milum](https://avatars.discourse-cdn.com/v4/letter/m/ea666f/32.png) [@Milum](https://boards.straightdope.com/u/Milum)\ **Post date:** [August 18, 2003, 1:55am UTC](https://boards.straightdope.com/t/states-rights/195814/20 "2003-08-18T01:55:48Z")
**U.S. Constitution Amendment XIV** Earlier \*\*Jklann \*\*wrote; “Many people are shocked to learn that at one time states did exactly that. Massachusetts was the last holdout, not disestablishing the Congregational religion until 1833. Of course, at that time, prior to the adoption of the Fourteenth Amendment, the Establishment Clause clearly did not apply to the states.” ```auto OK **MEBuckner** , let's semantically examine the Fourteenth Amendment and see what changes it has brought about. Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. **No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.** So... Does Chief Justice Roy's granite rock... * Make any laws? * Deprive any person of life, liberty, or property without due process of law? * Deny any person equal protection of the law? _____________It's just a piece of granite.__________ ``` [Next page](https://boards.straightdope.com/t/states-rights/195814.md?page=2)