Paul--

That is terrific and informative.  Constitutional history is a
neglected field in history departments these days, and I for
one am grateful to have an authority resident on our
list-serv.  Many, many thanks!

I am still waiting for someone to comment on the thesis I
tossed out earlier this week regarding congruencies between
evangelical critiques of American culture today and 18th
century republicanism ala Pocock.  No one took up that
challenge, alas!  I would welcome your thoughts on that as well.

Kevin

---- Original message ----
>Date: Fri, 9 Dec 2005 00:16:19 -0600
>From: Paul Finkelman <[log in to unmask]>
>Subject: Re: Religious freedom?
>To: [log in to unmask]
>
>Just discovered this among the hundreds of e-mails on I have
received in
>the last two days.  Brent's analysis is not implausible,
given the
>language of the amendment. Curiously, as far as I know, there
was never
>any discussion of this theory of the Amendment until the 15
or 20 years
>when people who want to breatk down the wall of separation
(to use
>Jefferson's phrase) between church and state argued that the
>establishment clause was disigned to allow the states to do
whatever
>they wanted with religion, and only prevented the federal
government
>from "establishing religion.".   Even if this interpretation was
>correct, the 14th Amendment undermines its value.  Starting
with Gitlow
>v. NY (1925) the Court has "incorporated" most of the Bill or
Rights to
>the states (not all of it).  This 1st Amendment has been intirely
>incorporated.  What this means is simply that the Court has
held, over
>and over again, for more than 75 years, that certain rights
protected by
>the Bill of RIghts (such as those in the1st amendment) cannot be
>abridged by the states just as they cannot be abridged by the
federal
>government.
>
>So, our right to free speech is protected whether it is a
state or a
>federal law that might be abridging it.  Thus, in Near v.
Minnesota
>(1931) the superme court held that a state could not prevent
a newspaper
>from publishing because the first amendment, as applied to
the states
>throught the 14th amendment, did not allow such censorship.
Similarly,
>in Cantwell v. Connecticut (1940) the Court held that a state
or city
>government could not prohibit religious speech by a Jehovah's
Witness.
> Similarly, in the school prayer cases the Court ruled that
prayer in
>public schools constituted an establishment of religion by
the state, in
>violation of the 1st and 14th Amentment.  Last spring the
court applied
>this to the posting of Ten Commandment plaques in Kentucky
Courthouses.
>  Jefferson, I am sure, would have applauded this decision.
>
>I hope this helps.
>
Kevin R. Hardwick, Ph.D.
Department of History
James Madison University

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