[quote]pushharder wrote:
MeinHerzBrennt wrote:
You don’t need a law by Congress when the 14th amendment made the Bill of Rights applicable to the States, including, gasp, Illinois.
Or do you find fault with that Supreme Court precedent as well?
If you were in charge, how would you interpret the Establishment Clause? Assuming for purposes of this that you would hold it applicable to the States (just like the rest of the Bill of Rights).
Would it be ok for a state legislature to enact a law forcing public school teachers to lead students in prayer? Is everything fair game so long as we don’t have a state adopting X religion or denomination as the official religion?
Not surprisingly, I have a serious problem with the way the equal protection clause has been interpreted by many. I am not a lonely voice crying out in the wilderness either.
Many others have a similar problem. I believe it’s enforcement now goes waaaaay beyond the intent of those who authored and ratified it.
“…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.” I can’t pry all the hidden meanings out of that statement like many can but hey, I’m just a simple country boy. What do I know, right?
There is a serious question by many legal scholars whether or not the 14th has the power, by virtue of its broadly structured statement, to literally abridge the 1st.
If the original intent was indeed to delete the word “Congress” in the 1st and replace it with “any U.S. civil government entity, state or local included”, then the 14th should have read in one of its clauses, “The First Amendment of the United States Constitution is hereby amended as follows…”
The framers of the Bill of Rights were not dummies. They used “Congress” in the verbiage of the Bill of Rights where they meant Congress. I believe the word is conspicuously absent in other amendments and that is consistent with their intent.
Would it be ok for a state legislature to enact a law forcing public school teachers to lead students in prayer? Is everything fair game so long as we don’t have a state adopting X religion or denomination as the official religion?
The technical answer is yes and yes. The Constitution via the Tenth Amendment insures vast amounts of power are to reside with the states. The state of Illinois has a constitution of its own just as every other state and the people in Illinois through their state government should deal with many issues now ceded to the feds and the same applies to other states as well.
If you were in charge, how would you interpret the Establishment Clause?
I’d interpret it literally. Keep it simple. I would not go on a scavenger hunt to find all kinds of odd, nifty, obscure things that I can say apply to it.
See, I tend to see the Constitution more as a limiting document overall rather than an enabling one.
It mainly defines limits on government power and should not be seen as a fountain that bubbles and burps unfathomed, incalculable gobs of power to the federal government. It’s a football field that is pretty darn close to 50 x 120 yards in size.
Not a playing field that originally meant just that but now includes the bleachers, the parking lot and the adjacent sports bars and indoor tennis clubs downtown.[/quote]
I can understand the argument that the Court impermissibly expanded on individual rights by interpreting the DP clause of the 14th amendment to make the Bill of Rights apply to the states. But the way it is now makes more sense, to me.
Without the BOR applying to the states, all the states would need to do is make sure their laws do not violate the DP clause in the 14th amendment, which is specifically directed at the states and not the federal government.
Take any right implicated in the BOR. A state can pass a law which someone may view as unconstitutional, thus forcing a court to decide whether law X violates the “liberty” mentioned in the 14th Amendment, a term that is pretty ambiguous (or at least doesn’t come with a clear definition in the Constitution itself).
The way I view it, it makes sense for the Court to apply the BOR to the states instead of analyzing the issue under “due process” or “liberty.”
Take search and seizure as an example. Instead of trying to enact a law regarding S&S that doesn’t violate the “liberty” element found in the 14th amendment, it is only natural to think that the Court, in analyzing the issue, would look to the federal counterpart for guidance.
If a court was constantly looking to the federal counterpart found in the BOR for guidance, it makes sense to end up concluding that “due process” and “liberty” means “the minimum rights protected under the BOR.” The states are then free to give more freedom if they choose.
In any event, if the BOR did not apply to the states and assuming state X did not have a provision similar to the EC or FE clauses, I see nothing that would stop a state from establishing their own religion.
This would be absurd. Religion clearly cannot be established or endorsed by the federal government. To have a system of government whereby an individual’s religious freedom is only protected against federal, as opposed to state action doesn’t make any sense. Same goes for any of the other rights.
You’d have the FBI not being able to conduct a warrantless search and seziure, but a NY cop could. Or the federal government not being able to inflict cruel and unusual punishment, but NJ could. A defendant has the right to counsel and a speedy trial when prosecuted by the feds, but not necessarily when prosecuted by a state. Again, pretty scary thought.
But I guess we just have opposite views on this.