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.
[log in to unmask] wrote:
>Brent--
>
>It is my understanding that your interpretation below is the
>Constitutionally correct one, at least until the Gitlow case
>in the 1920s began the "incorporation" of the Federal Bill of
>Rights into the State Constitutions.
>
>Professor Finkelman is our resident Constitutional
>historian--perhaps he would be so good as to enlighten as
>further? How about it, Paul--inquiring minds demand
>instruction! Profess! :)
>
>All my best,
>Kevin
>
>---- Original message ----
>
>
>>Date: Wed, 7 Dec 2005 10:05:59 -0500
>>From: Brent Tarter <[log in to unmask]>
>>Subject: Re: Religious freedom?
>>To: [log in to unmask]
>>
>>The First Amendment (not the original Constitution) actually
>>
>>
>states:
>
>
>>"Congress shall make no law respecting an establishment of
>>
>>
>religion, or
>
>
>>prohibiting the free exercise thereof." The words "freedom of
>>
>>
>religion"
>
>
>>are not in the Constitution or the First Amendment.
>>
>>Which raises an interesting question: What did the members of
>>
>>
>Congress
>
>
>>intend when they wrote that "Congress shall make no law
>>
>>
>respecting an
>
>
>>establishment of religion"? We assume the words means that
>>
>>
>Congress may
>
>
>>not establish one. But it is also logical and grammatical to
>>
>>
>assume that
>
>
>>Congress could not disestablish one or make any law that
>>
>>
>countenanced or
>
>
>>discountenanced or altered any state's laws "respecting"
>>
>>
>church and
>
>
>>state.
>>
>>Brent Tarter
>>The Library of Virginia
>>[log in to unmask]
>>
>>Visit the Library of Virginia's web site at
>>
>>
>http://www.lva.lib.va.us
>
>
>>-----Original Message-----
>>From: Discussion of research and writing about Virginia history
>>[mailto:[log in to unmask]] On Behalf Of jadams957
>>Sent: Tuesday, December 06, 2005 9:36 PM
>>To: [log in to unmask]
>>Subject: Re: Religious freedom?
>>
>>Here we go again.
>>The Constitution says FREEDOM "OF" RELIGION, not freedom from
>>
>>
>religion.
>
>
>>Learn what the prepositions mean. If everyone will remember
>>
>>
>that our
>
>
>>President tried to explain the meaning of IS. Law has gotten
>>
>>
>to the
>
>
>>point of being an English lesson. Our forefathers designed
>>
>>
>our statutes
>
>
>>to codify the separation of religion and to not have a State
>>
>>
>religion,
>
>
>>but allow the worship of the Christian doctrine, as
>>
>>
>represented, in the
>
>
>>1700's as the concept worth fighting our cousins the English.
>>
>>
>Maybe if
>
>
>>we pay attention to the teaching of the values and the
>>
>>
>beliefs our
>
>
>>country was built upon the NEED for private schooling would
>>
>>
>not need to
>
>
>>be in such great demand.
>>This also goes for West Virginia not being in existence
>>
>>
>before 1863.
>
>
>>Thanks
>>John Philip Adams
>>
>>To subscribe, change options, or unsubscribe, please see the
>>
>>
>instructions
>
>
>>at http://listlva.lib.va.us/archives/va-hist.html
>>
>>
>Kevin R. Hardwick, Ph.D.
>Department of History
>James Madison University
>
>To subscribe, change options, or unsubscribe, please see the instructions
>at http://listlva.lib.va.us/archives/va-hist.html
>
>
--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK 74104-3189
918-631-3706 (office)
918-631-2194 (fax)
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